UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 1 
 
 A 
 
 DIGEST 
 
 OF 
 
 DECISIONS IN CRIMINAL CASES, 
 
 CONTAINED IN THE REP-^JJRTS 
 
 FEDERAL COURTS AND THE COURTS OF THE 
 SEVERAL STATES, 
 
 FROM THE EARLIEST PERIOD TO THE PRESENT TIME. 
 
 By THOMAS W. WATERMAN, 
 
 COUNSELLOR AT LAW. 
 
 NEW YORK: 
 BAKER, VOORHIS & CO., LAW PUBLISHERS, 
 
 G6 NASSAU STREET. 
 
 1877.
 
 Entered according to Act of Congres?, in the year one thousand eight hundred and seventy-seven, 
 
 By baker, VOORHIS <fe CO., 
 
 In the office of the Librarian of Congress, at Washington. 
 
 6c 
 
 f?77 
 
 BAKER & GODWIN, Printers, 
 25 Park Row, N. Y.
 
 PREFACE. 
 
 The preparation of the following pages was undertaken 
 by the author at the solicitation of the publishers, who, from 
 their familiarity as booksellers with the wants of the profession, 
 were convinced of the desirability of such a work. A digest 
 of decisions on criminal law, compiled by Mr. John L. Hakes, 
 was published several years ago, and it was at first designed 
 to revise and republish Mr. Hanes' book, adding thereto the 
 subsequent cases. That project was, howev^er, abandoned as im- 
 practicable ; it being found necessary, for purposes of condensa- 
 tion and rearrangement, to write an entirely new w^ork, which 
 has been done. 
 
 The leadino; features aimed at in this dio;est have been, the 
 incorporation into it of all of the Federal and State decisions 
 on criminal law of any importance, omitting such as are obso- 
 lete, or of merely local and temporary interest; tlie presenta- 
 tion of the points decided in simple and concise language, with- 
 out repetition ; the giving of a succinct and comprehensive state- 
 ment of facts, whenever such statement is needed for the under- 
 standing of the subject ; the bringing together under each head 
 all the cases which support the same proposition, thus avoiding 
 the needless reiteration of similar legal principles ; and finally, 
 the systematic and orderly arrangement of the whole, with ap- 
 propriate cross references. How far the author has succeeded 
 in carrying out the foregoing programme, must be determined 
 by others; but he indulges the hope, that in view of the 
 difficulty of such a task, of which none are so well aware as 
 those w'hose opinion is of the most value, the measure of its 
 performance may be deemed sufficient. 
 
 By an elaboration of the materials at command, the work 
 might easily have been swelled to two volumes. Such an in- 
 crease of its size would however have enhanced its cost, without 
 
 7 
 
 ?.' rjT'.y
 
 VI 
 
 REPORTS REFERRED TO. 
 
 Michigan 
 
 NAME OF REPORT. 
 
 Douglass 
 
 Manning (1 Michigan) . 
 
 Michigan 
 
 Minnesota 
 
 Minnesota 
 
 NO. OF VOLS. 
 
 2 
 
 1 
 
 33 
 
 Mississippi. 
 
 Howard ("2-8 Mississippi) . 
 Mississippi (33-49) 
 Sincdes and ^Marshall (9-32 Miss.) 
 Walker (1 Mississippi) . 
 
 Missouri 
 
 Montana 
 
 Nebraska 
 
 Nevada 
 
 Missouri, 
 
 Montana. 
 
 Nebraska. 
 
 Nevada, 
 
 New Hampshire. 
 Foster (31-31 New Hampshire) 
 New Hampshire (1-20 and 33-55) 
 
 New Jersey. 
 
 Coxe (1 New Jersey) 
 Dutcher (25-29 New Jersey) . 
 Green (13-15 New Jersey) 
 Halsted (6-12 New Jersey) 
 Harrison (16-19 New Jersey) 
 Pennington (2-3 New Jersey) , 
 Southard (4- 5 New Jersey) 
 Spencer (20 New Jersey) 
 Vroom (30-37 New Jersey) 
 Zabriskie (21-24 New Jersey) . 
 
 New York 
 Abbott 
 Barbour 
 Caines 
 
 Caines' Cases 
 City Hall Recorder 
 Comstock (1-4 New York) 
 Court of Appeals Decisions, by Abbott 
 Cowen 
 Denio 
 Hill . 
 Johnson 
 Johnson's Cases 
 Keyes 
 Lansing 
 New York 
 New York Supreme Court (New Series) 
 Parker 
 Selden (5-10 New York) 
 
 20 
 
 1 
 
 66 
 
 3 
 
 2 
 
 6 
 
 4 
 
 4 
 
 9 
 
 5 
 
 7 
 
 20 
 
 3 
 
 4 
 
 7 
 
 61 
 
 14 
 
 
 
 6 
 
 New York — continued. 
 
 NAME OF REPORT. NO. 
 
 Transcript of Appeals 
 
 Wendell 
 
 Wheeler's Criminal Cases 
 
 North Carolina. 
 Busbee (44 North Carolina) 
 Devereux (12-15 North Carolina) . 
 Devereux and Battle (18-21 North Ci 
 Hawks (8-11 North Carolina) . 
 Haywood (1-2 North Carolina) 
 Iredell (23-35 North Carolina) 
 Jones (46-53 North Carolina) 
 Martin (1-3 North Carolina) . 
 Murphey (5-7 North Carolina) 
 North Carolina (63-74) . 
 Phillips (61 North Carolina) 
 Taylor (3 North Carolina) 
 
 Ohio. 
 
 Griswold (14-19 Ohio) . 
 
 Hammond (1-9 Ohio) 
 
 McCook (1 Ohio, N. S.) 
 
 Ohio. .... 
 
 Ohio (New Series) 
 
 Stanton (11-13 Ohio) 
 
 Wright . , . . 
 
 OF VOLS. 
 
 7 
 
 26 
 
 3 
 
 Oregon. 
 
 Oregon 
 
 Pennsylvania, 
 Addison . . , . 
 
 Ashmead 
 
 Barr , . . . 
 
 Binney 
 
 Browne .... 
 Pennsylvania 
 
 Rawle .... 
 Sergeant & Rawle . 
 Watts . . . 
 
 Watts & Sergeant . 
 Wharton 
 Yeates 
 
 Ehode Island. 
 Rhode Island 
 
 South Carolina. 
 Bailey . . . . 
 
 Bay . 
 Brevard . 
 Cheves 
 
 Constitutional Court 
 Dudley 
 Hill 
 
 McCord 
 McMullan 
 
 Nott and McCord . 
 Rice 
 Richardson .
 
 REPORTS REFERRED TO. 
 
 Vll 
 
 South Carolina — continued. 
 
 NAME OF REPORT. 
 
 Richardson (New Series) 
 
 Riley 
 
 Speer 
 
 Strobhart 
 
 Tennessee. 
 Coldwell 
 Cooke 
 Head . 
 Heiskell 
 Humphrey 
 Martin & Yerger 
 Meigs 
 Overton 
 Peck 
 Sneed 
 Swan 
 Yerger 
 
 Texas 
 
 Texas 
 
 United States 
 Baldwin . 
 Bissell 
 Blatchford 
 Bond 
 Call 
 
 Campbell 
 Clifford . 
 Curtis 
 Dillon . 
 Gal li son 
 Hempstead 
 Mason 
 McAllister 
 McLean 
 Paine 
 Peters 
 Sawyer . 
 Story 
 Sumner . 
 Wallace 
 Wallace, Jr. 
 Washington . 
 Woodbury & Minot 
 Woods 
 Woolworth 
 
 CiRCl 
 
 NO. OF VOLS. 
 
 5 
 
 1 
 
 2 
 
 Court 
 
 43 
 
 1 
 5 
 13 
 3 
 6 
 1 
 2 
 3 
 2 
 3 
 1 
 5 
 1 
 6 
 3 
 1 
 3 
 3 
 3 
 3 
 8 
 4 
 3 
 1 
 1 
 
 United States Circuit and District 
 Courts. 
 
 NAME OF REPORT. 
 
 Abbott . 
 Deady 
 
 NO. OF VOL?. 
 
 2 
 
 United States District Court. 
 
 Bee's Admiralty 
 
 Benedict .... 
 
 Crabbe ..... 
 
 Gilpin . . 
 
 Lowell . . . . ■ , 
 
 Newberry's Admiralty 
 
 United States Supreme Court. 
 
 Cranch ..... 
 Dallas .... 
 
 Howard ..... 
 Peters .... 
 
 Wallace ..... 
 Wheaton .... 
 
 Vermont. 
 
 Aiken 
 Brayton 
 D. Chipman 
 N. Chipman 
 Tyler . 
 Vermont 
 
 Virginia. 
 
 Grattan . 
 
 Hening & Munford . 
 
 Leigh ... 
 
 Munford 
 
 Randolph 
 
 Robinson 
 
 Virginia Cases . 
 
 West Virginia. 
 West Virginia . 
 
 Wisconsin. 
 
 Chandler 
 Smith (1-3 Wis.) 
 Wisconsin (3-39) 
 
 9 
 
 4 
 34 
 16 
 33 
 13 
 
 3 
 1 
 3 
 1 
 3 
 47 
 
 26 
 4 
 
 13 
 6 
 6 
 2 
 3 
 
 4 
 
 2 
 
 37
 
 A 
 
 TABLE OF TITLES AND SUBJECTS, 
 
 WITH REFERENCES TO THE PAGES WHERE THEY ARE FOUND. 
 
 ABATEMENT, PLEA IN. 
 
 1. When proper, 1. 
 Pendency of indictment, 1. 
 Omission by justice, 1. 
 Misnomer, 1. 
 
 Objections to grand jury, 1. 
 Exemptions from JU17 duty, 1. 
 
 2. Validity, 2. 
 When double, 2. 
 UnnecesSLiry averment, 2. 
 Plea insufficient, 2. 
 Waiver, 2. 
 Judgment, 2. 
 
 ABDUCTION. 
 
 What constitutes, 2. 
 How regarded in the several States, 2,3. 
 Indictment, 3. 
 Verdict, 3. 
 
 ABORTION. 
 
 1. Nature of the offense, 3, 4. 
 In Maine and Massachusetts, 3. 
 In Vermont, 3, 4. 
 
 In New York, 4. 
 
 2. Indictment, 4, 5. 
 Averment of time and place, 4. 
 Averment of means, 4. 
 Unnecessary averments, 4, 5. 
 
 3. Evidence, 5-7. 
 Priiof of time, 5. 
 Medicine administered, 5. 
 Prosecutidx as a witness, 5, 6. 
 Declarations of female, 6. 
 Prosecutrix to be corroborated. G. 
 Impeachment of prosecutrix, 6. 
 Presumptions, 6, 7. 
 
 Proof in defense, 7. 
 
 4. Verdict, 7, 8. 
 
 Defendant need not be present, 7. 
 Of guilty, when, 7, 
 For miinslaughter, 7. 
 For offense against person not named, 
 7,8. 
 
 ACCESSORY. 
 
 1. Who drkmed, 8, 9. 
 Distinction as to guilt or innocence of 
 
 principal, 8, !J. 
 Encouraging design, 9. 
 B 
 
 ACCESSORY— c«??i«mMe(Z. 
 
 2. Liability, 9. 
 As principal, 9. 
 
 3. Absence op liability, 9. 
 Principal not in general liable for act 
 
 of agent, 9. 
 
 Person present not liable for not pre- 
 venting felony, 9. 
 
 Person absent from State not amenable 
 to punishment, 9. 
 
 4. Indictment, 9, 10. 
 
 Of accessory as principal, 9. 
 What to contain, 9, 10. 
 
 5. Trial, 10, 11. 
 
 May be with or without principal, 10. 
 Principal to be first convicted, 10, 11. 
 
 6. Evidence, 11. 
 
 Proof of conviction of principal, 11. 
 
 Threats of principal, 11. 
 
 Under indictment charging defendant 
 
 as principal, 11. 
 Of i^rincipal, 11. 
 
 8te Indictment. 
 
 ACCOMPLICE. 
 
 See Accessory; Evidence; Par- 
 don; Witness. 
 
 ACQUITTAL. 
 
 See Former acquittal or convic- 
 tion; Verdict. 
 
 ADJOURNMENT. 
 
 See Continuance. 
 
 ADULTERY. 
 
 1. What constitutes, 11-13. 
 How defined, 11, 12. 
 
 By whom committed, 12. 
 
 Where husband remains absent, 12. 
 
 Must be open and notorious, 12, 13. 
 
 2. Place of trial, 13. 
 
 Improper change of venue not ground 
 of reversal, 13. 
 8. Indictment, 13, 14. 
 
 Parties, 13. 
 
 Township need not be stated, 13. 
 
 Certainty required in, 13. 
 
 Averment that woman is not wife, 13, 14. 
 4. Evidence, 14-16. 
 
 Time, 14.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 ADULTERY— (-^^w^i/i ued. 
 ]\rarriage, 14. 
 Bunlen of proof, 14. 
 Evidence must supijort charge, 14, 15. 
 Husband not a competent witness, 15. 
 Admissions and presumptions, 15, 16. 
 Proof of acts subsequent to indict- 
 ment, 16. 
 Proof of divorce, 16. 
 
 5. Verdict, 16. 
 Designation of time, 16. 
 For less oftense, 16. 
 
 6. Judgment, 16. 
 
 For support of child, 16. 
 See Bigamy; Incest. 
 
 AFFRAY. 
 
 1. What constitutes, 16, 17. 
 What is meant by, 16, 17. 
 May be by words. 17. 
 Fighting must be public, 17. 
 
 2. Indictment, 17. 
 
 Must specify what was done, 17. 
 Averment of place, 17. 
 
 3. Evidence, 17, 18. 
 
 Proof of time and place, 17. 
 Declarations, 17, 18. 
 
 4. Verdict, 18. 
 
 Some of the defendants may be acquit- 
 ted and the rest convicted, 18. 
 For assault and battery, 18. 
 
 See Assault and battery : For- 
 mer ACQUITTAL OR CONVIC- 
 TION; Homicide. 
 
 ALIBI. 
 
 See Evidence. 
 
 AMENDMENT. 
 
 Of process, 18. 
 ANIMALS. 
 
 1. Cruelty to, 18,19. 
 Nature of offense, 18. 
 Indictment, 18. 
 Evidence, 18, 19. 
 
 2. Rescuing, 19. 
 Indictment, 19. 
 
 APPEAL. 
 
 By State, 19. 
 Jur'sdiction, 19. 
 Objection to evidence, 19. 
 Judgment, 19. 
 
 See Writ of error. 
 
 ARREST. 
 
 1. Nature and power of, in general, 
 
 19, 20. 
 What deemed an arrest, 19,20. 
 Law governing, 20. 
 Exemption from, 20. 
 Ground of, may be investigated, 20. 
 
 2. By private person, 20. 
 Without warrant, 20. 
 Disposal of prisoner, 30. 
 Bv command of ofBcer, 20. 
 
 XBKE^T—contintied. 
 Must give notice, 20. 
 3. By officer, 20-22. 
 Without warrant, 20,21. 
 Right to break open doors, 21. 
 How arrest should be made, 21. 
 Notice of authority, 21. 
 When notice need not be given, 22, 
 On void process, 22. 
 Out of State, 22. 
 Rearrest, 22. 
 
 ARREST OF JUDGMENT. 
 
 See Judgment. 
 
 ARSON. 
 
 23. 
 
 1. What constitutes. 
 The burning, 23. ' 
 Guilty intent, 23. 
 
 2. Subject of, 23-25. 
 House of another, 23. 
 
 What deemed a dwelling-house, 23, 24. 
 Burning one's own house, 24. 
 Tenant setting fire to house, 24, 25. 
 By setting fire to adjoining building, 25. 
 Burning jail, 25. 
 Burning school-house, 25. 
 What not deemed a building, 25. 
 Burning barn, 25. 
 
 3. Indictment, 25-20. 
 Averment of burning, 25, 26. 
 Averment of time and place, 26. 
 Charging intent, 36, 27. 
 Description of property burned, 27, 28. 
 Allegation of ownership of property, 28. 
 Averment of value, 29. 
 Conclusion, 29. 
 
 4. Evidence, 39-31. 
 Property burned, 29. 
 Ownership of building, 29. 
 Proof of tlie burning, 29. 
 Guilty motive, 29, 30. 
 Presumptions, 30, 31. 
 
 5. Verdict, 31. 
 
 For lower degree , of offense than 
 charged, 31. 
 
 ASSAULT AND BATTERY. 
 1. Simple, 32-47. 
 
 (a) What constitutes, 32-37. 
 Meaning of assault, 32. 
 Must be violence, 32, 33. 
 Accompanied with threats, 33, 34. 
 Must have been ability to injure, 34. 
 Eflect of absence of intention, 34. 
 Liability of infant, 34, 35. 
 By mutual consent, 35. 
 Inciting an assault, 35. 
 By direction of another, 35. 
 By husband on wife, 35, 36. 
 By parent, 36. 
 By teacher, 36. 
 By master, 36. 
 By officer, 36. 
 In resisting officer, 36, 37. 
 By conductor, 37.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 Xt 
 
 ASSAULT AND BA.TTmtY— continued 
 
 (b) Jmtifiiihle vse of force, 37-39. 
 
 In ejecting passenger from car, 37, 38. 
 Defense of property, 38. 
 Defense of person, 38, 39. 
 Abusive language, 39. 
 
 (c) Indictment, 39-42. 
 Finding, 39. 
 Venue, 39. 
 
 Effect of omitting to state time, 39. 
 Description of person injured, 39, 40. 
 For resisting officer, 4^. 
 Charging offense, 40, 41. 
 Immaterial averments, 41. 
 Averment of intent, 41, 42. 
 Conclusion, 43. 
 
 Not abated by death of complain- 
 ant, 43. 
 id) How tried, 42. 
 Under joint indictment, 43. 
 Election of ofienses, 43. 
 
 (e) Evidence for prosecution, 42-45. 
 Record, 43. 
 
 Proof of time and place, 42, 43. 
 Wife may testify against husband, 43. 
 Proof of party injured, 43. 
 Weapon, 43. 
 
 Character of weapon, how deter- 
 mined, 43. 
 Proof of act, 43, 44. 
 Proof of intent, 44. 
 Burden of proof, 44. 
 Presumptions, 44, 45. 
 What need not be proved, 45. 
 
 (f) Evidence for defense, 45-47. 
 Where person assaulted is unknown, 
 
 45. 
 Self-defense, 45. 
 Defense of property, 45. 
 Character of prosecutor, 45. 
 Character of defendant, 45. 
 Wife may testify for husband, 45. 
 Mitigating circumstances, 46. 
 Declarations of defendant, 46, 47. 
 
 (g) Verdict and jud'jment. 47. 
 
 Under plea of former conviction, 47. 
 
 Without plea, 47. 
 
 Where there are two indictments, 47. 
 
 Conviction in case of several defend- 
 ants, 47. 
 
 Verdict for part of offense charged, 
 47. 
 
 Construction of verdict, 47. 
 
 Compromise, 47. 
 2. Assault with intent to kill, 48-58. 
 (a) Whdt conditutea, 48, 49. 
 
 Need not be wounding, 48. 
 
 Act must be adapted to design, 48. 
 
 Weapon need not have been deadly, 
 48. 
 
 What intent required, 48, 49. 
 
 Need not be malice in fact, 49. 
 
 Meaning of assault with intent, 49. 
 
 When deemed a felony, 49. 
 (J) Indictment, 49-51. 
 
 ASSAULT AND Bk.TTE.Wl— continued. 
 
 Averment of acts constituting offeme,^.^^ 
 
 Description of weapon, 49, 50. 
 
 Description of person injured, 50. 
 
 Averment of malice, 50, 51. 
 
 Charging intent, 51. 
 
 Immaterial averments, 51. 
 (c) Evidence, 51-56. 
 
 Proof of place, 51, 53. 
 
 Person injured, 52. 
 
 Weapon, 52. 
 
 Proof of intent, 53. 
 
 Proof of character of assault, 53. 
 
 Proof of malice, 53. 
 
 Declarations of party assaulted, 54. 
 
 Declarations of defendant, 54. 
 
 Declarations of co-defendant, 54. 
 
 Presumptions, 55. 
 
 Circumstances, 55. 
 
 Affront by words will not extenuate, 
 55. 
 
 Where defendant was the aggressor, 
 55. 
 
 Defense of property, 55, 56. 
 
 Exercise of legal right, 56. 
 
 Antecedent grudge, 56. 
 
 Previous assault, 50. 
 
 Mutual combat, 56. 
 
 Wife as witness, 56. 
 {d) Verdict, 56-58. 
 
 Form, 56, 57. 
 
 Variant from charge, 57. 
 
 On one of two counts, 57, 58. 
 
 Amendment, 58. 
 
 See Affray. For assault with in- 
 tent to commit rape, see Rape. 
 
 ATTORNEY. 
 
 Right to visit jail, 58. 
 
 Designation by court, 58. 
 
 Buying claim, 58. 
 
 Removal, 58. 
 
 As to privileged communications be- 
 tween attorney and client, see 
 Evidence. 
 
 AUTREFOIS ACQUIT AND AUTRE- 
 FOIS CONVICT. 
 
 See Former acquittal or con- 
 viction. 
 
 BAIL AND RECOGNIZANCE. 
 
 1. Authority to admit to bail or to 
 
 compel a recogniz.1nce, 59, 00. 
 In general, 59. 
 By courts of record, 59. 
 By justices of the peace, 59, 60. 
 By U. S. commissioner, 60. 
 Sureties for good behavior, 60. 
 
 2. Bail when in general refused or 
 
 ALLOWED, 60-63. 
 
 In treason, 60. 
 in murder, 60, 01. 
 
 Circumstances of homicide to be in- 
 quired into, 01. 
 Illness of prisoner, 61.
 
 Xll 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 BAIL AND RECOGNIZANCE— 0(?«ii«we(Z. 
 In cases not capital, 61, 63. 
 For omission to prosecute, 62. 
 After conviction, 02. 
 Upon tillowauce of writ of error, 63. 
 Appeal from decision, 62, 63. 
 
 3. Proof required to admit to bail, 
 
 63. 
 In genera], 63. 
 Testimony at inquest, 63. 
 Affidavits or oral testimony, 63. 
 
 4. Form and requisites op recogniz- 
 
 ance. 63-66. 
 At common law, 63. 
 Hew taken, 63. 
 Date, 63. 
 
 Commencement, 64. 
 General requisites, 64. 
 Description of ofi'ense, 64. 
 Name. 64. 
 Condition, 64, 65. 
 Amount, 65. 
 
 Number of sureties, 65, 66. 
 How executed, 66. 
 Approval, 06. I 
 
 Ameudment, 66. 
 
 5. Construction and validity, 66-68. 
 Rule of construction, 66, 67. 
 Sufficiency of complaint, 67. 
 
 Taken by unauthorized person, 67. 
 Sufficiency of recital, 67. 
 Entered into by several, 67. 
 Place to appear, 67. 
 Force and eft'ect, 67. 
 
 6. Return op recognizance, 68. 
 How to be made, 68. 
 
 What to be returned, 68. 
 To be filed, 68. 
 Right of sureties, 68. 
 
 7. DiSCEARGE OF BAIL, 68, 69. 
 
 In general, 68. 
 
 Failure to prosecute, 68. 
 
 By appearance of defendant, 68, 69. 
 
 Unlavv'ful ai'rest, 69. 
 
 Arrest on other cliarge, 69. 
 
 Surrender of defendant, 69. 
 
 8. Forfeiture op recognizance, 69-73. 
 When to be, 69. 
 
 Calling defendant, 69. 
 
 Time to appear, 70. 
 
 Neglecting to appear, 70. 
 
 Failure to comply with judgment, 70. 
 
 Entry, 71. 
 
 Efiect, 71. 
 
 Remission, 71. 
 
 See Bastardy. 
 BARRATRY. 
 Meaning of, 71. 
 
 Cannot be committed by negligence, 71. 
 Intoxication not an excuse, 71. 
 BARRETRY. 
 
 Who deemed a barretor, 71, 
 
 Justice cf the peace indictable for, 71. 
 
 What indictment should contain, 71. 
 
 BAKWETRY— continued. 
 Bill of particulars, 71. 
 Punishment, 73. 
 
 j BASTARDY. 
 
 1. The complaint, 73, 73. 
 I By whom made in tiie different State8,73. 
 
 Nature of the proceedings, 73. 
 Requisites of complaint, 72, 73. 
 3. Warrant, 73. 
 How issued, 73. 
 Must aver the time of the child's birth, 
 
 73. 
 How far evidence, 73. 
 
 3. Examination, 73. 
 By whom had, 73. 
 
 Defendant need not be arraigned, 73. 
 Proceeding when barred, 73. 
 
 4. Indictment, 73, 74. 
 Requirements of, in different States, 73, 
 
 74. 
 
 5. Evidence, 74, 75. 
 Testimony of prosecutrix, 74. 
 Proof of birth of child, 74. 
 Proof of non-access, 74. 
 Presumption as to paternity of child, 75. 
 Admissions of defendant, 75. 
 Impeachment of prosecutrix, 75. 
 Proof of intercourse of jirosecutrix with 
 
 others, 75. 
 Proof of efforts to produce an abortion, 
 
 75. 
 Proof required to convict, 75. 
 
 6. Security, 75, 76. 
 Nature and effect, 75, 76. 
 How dated, 76. 
 
 7. Settlement op prosecution, 76. 
 When the parties may or may not settle, 
 
 76. 
 Payment of fees and expenses, 76. 
 Proceedings not abated by marriage of 
 
 prosecutrix, 76. 
 Effect of t!ie taking by defendant of 
 
 the poor debtor's oath, 76. 
 Order of maintenance notwithstanding 
 
 paidon, 76. 
 
 8. Concealing death of bastard child, 
 
 76, 77. 
 Child must have been born alive, 76. 
 Indictment and evidence, 77. 
 
 BAWDY HOUSE. 
 
 See Nuisance, 
 
 BIGAMY. 
 
 1. Who may commit, 77. 
 
 By nephew. 77. 
 
 By emancijiated slave, 77. 
 
 In case of infant, 77. 
 3. When committed, 77, 78. 
 
 In case of divorce, 77, 78. 
 
 In case of absence of husband or wife, 78. 
 
 Place of second marriage, 78. 
 3. Indictment, 78, 79. 
 
 Immaterial averments, 78. 
 
 Where to be tried, 78.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XIU 
 
 BIGAMY — eontlrmed. 
 4. Evidence, 79-81. 
 
 Marriage must be proved, 79. 
 License and certificate, 79, 80. 
 Testimon}' of persons present at cere- 
 mony, 80. 
 "Wife as witness, 80. 
 Confession of defendant, 80, 81. 
 Testimony for defense, 81. 
 
 BILL OF EXCEPTIONS. 
 
 1. Nature and office, 81, 82. 
 Meaning. 81. 
 
 In New York. 81. 
 
 Wiien it will or will not lie, 81, 82. 
 
 Waiver, 82. 
 
 2. What it should contain, 82. 
 • Must set out the evidence, 82. 
 
 In case of exceptions to charge of court. 
 
 82. 
 When to be disregarded, 82. 
 
 3. Settlement. 83, 83. 
 
 By whom made in New York, 82, 83. 
 
 4. Effect, 83. 
 
 What brought up, 83. 
 AV'hat entertained, 83. 
 Presumption in favor of court below. 83. 
 Where there is no proof of venue. 83. 
 See Appeal; Indictment; Trial; 
 Writ of error. 
 
 BILL OF PARTICULARS. 
 
 Is in the discretion of the court, 83. 
 BLASPHEMY. 
 
 At common law, and by statute, 83. 
 Indictment, 84. 
 Evidence, 84. 
 
 BOARDING VESSEL. 
 
 Constitutionality and construction of act 
 
 of Congress, 84. 
 What con.stitutes the offense, 84. 
 Evidence for the prosecution, 84. 
 What not a defense, 84. 
 
 BREACH OF THE PEACE. 
 By improper language, 84. 
 By assaulting another, 84. 
 By rapid driving, 84. 
 By forcible entry, 84. 
 
 As to sureties of tlie jvxice, se<i Bail 
 and recognizance. 
 
 BRIBERY. 
 Power of Congress to punish, 83. 
 Venue, 85. 
 
 Bribery at election, 85. 
 Bribing officer, 85. 
 Offering bribe, 85. 
 Indictment, 85. 
 
 BURGLARY. 
 
 1. What constitutes, 85-89. 
 Definiticm, 85. 
 
 What breaking and entering is, 85. 80. 
 Constructive breaking, 87. 
 
 BVRGLAUY— continued. 
 May be in day time, 87. 
 Must be a lelonious intent, 87. 
 Intent when not an ingredient of offense, 
 
 88. 
 Building in which it may be committed, 
 
 88, 89. 
 
 2. Indictment, 89-92. 
 Averment of breaking, 89. 
 Description of premises, 89, 90. 
 Allegation of ownership of building, 90. 
 Averment of the time of breaking, 90^ 
 
 91. 
 Averment of intent, 91. 
 Averment of steaHng, 91. 
 Place of trial, 91, 92. 
 
 3. Evidence, 92-94. 
 Proof of the breaking, 92. 
 Proof of time and place, 92. 
 Proof of intent, 92. 
 
 Proof that house was occupied, 93. 
 Presumptions, 93. 
 Possession of burglar's tools, 94. 
 Possession of stolen property, 94. 
 Proof of other offense, 94, 
 
 4. Verdict, 95. 
 Form, 95. 
 
 In case of larceny, 95. 
 
 CARRYING CONCEALED WEAPONS. 
 
 See Concealed weapons. 
 CEMETERY. 
 
 Desecration of, 95. 
 Removal of dead bodies, 95. 
 See Disinterring the dead. 
 
 CERTIORARI. 
 
 1. When it will lie, 95, 96. 
 Basis of application, 95, 96. 
 When proper, 96. 
 
 When demandable, 96. 
 
 Under the statute of New York, 96. 
 
 2. Form, 96, 97. 
 In general, 96. 
 
 In special cases, 96, 97. 
 
 3. Service, 97. 
 
 Upon whom made, 97. 
 
 4. Return, 97. 
 Order for, 97. 
 Contents of, 97. 
 Correction of, 97. 
 Cannot be refused, 97. 
 
 5. Judgment, 97, 98. 
 
 By what court rendered, 97, 98. 
 Ground of, 98. 
 
 CHALLENGE. 
 
 See Dueling ; Trial. 
 
 CHEAT. 
 
 See False pretenses. 
 
 COMMITMENT. 
 
 Jurisdiction of court, 98. 
 
 Form and requisites of the warrant, 98, 99.
 
 XIV 
 
 TABLE OF TITLES AISID SUBJECTS. 
 
 COMMON DRUNKARD. 
 
 Who deemed, 99. 
 Complaint, 99. 
 Evidence, 99. 
 
 COMPLAINT. 
 
 Venue, 99. 
 
 Allegation of time, 99. 
 Necessary averments, 100. 
 Conclusion, 100. 
 Execution, 100. 
 Amendment, 100. 
 Waiver of objection, 100. 
 
 CONCEALED WEA.PONS. 
 When deemed deadly, 101. 
 Complaint, 101. 
 Indictment, 101. 
 Evidence, 101. 
 
 Construction and constitutionality of stat- 
 utes, 101. 
 
 CONSPIRACY. 
 
 1. What cokstitutes, 101-104. 
 How defined, 101. 
 
 What essential to, 102. 
 
 By new party, 102. 
 
 Need not be overt act, 102. 
 
 Must be intent to injure, 102. 
 
 What deemed at common law, 102, 103. 
 
 Acts which amount to, 103, 104. 
 
 All engaged equally liable, 104. 
 
 Act must lelate to common object, 104. 
 
 When merged in the offense, 104. 
 
 2. Indictment, 104-107. 
 Parties, 104. 
 
 Description of offense, 104, 105. 
 Averment of means employed, 105, 106, 
 
 107. 
 Matters of inducement, 107. 
 
 3. Triai,, 107. 
 
 Must be where act was committed, 107. 
 Cannot be separate, 107. 
 
 4. EvroENCE, 107-109. 
 
 Must sustain charge, 107, 108. 
 Proof of overt acts, 108. 
 Consummation of design, 108. 
 Proof of other acts, 108. 
 Acts and declarations of confederate, 
 
 108, 109. 
 Proof of circumstances, 109. 
 
 5. Verdict and judgment, 109, 110. 
 Form of judgment, 109, 110. 
 Verdict variant from charge, 110. 
 
 CONTEMPT. 
 
 Power of courts to punish, 110. 
 
 What constitutes, 110. 
 
 Proceeding, 110, 111. 
 
 Review of judgment, punishing for, 111. 
 
 CONTINUANCE. 
 
 1. In BEHALF OF PROSECUTION, 111. 
 
 Ground for, 111. 
 
 Affidavit, 111. 
 
 When it operates as an acquittal. 111. 
 
 CONTmUAT^CE— continued. 
 2. In behalf of defendant, 111-114. 
 In general discretionary with court. 111, 
 
 112. 
 Decision subject to review, 112. 
 What defendant required to show, 112, 
 
 113. 
 When defendant entitled to continuance, 
 
 113. 
 Absence of witnesses to character not 
 
 in general ground for, 114. 
 Eifect of admission of absent testimony, 
 
 114. 
 Imposition of terms, 114. 
 
 CONVICTION. 
 
 See Summary conviction ; Verdict. 
 
 CORONER'S INQUEST. 
 
 Nature of, at common law, 114. 
 Holding of second inquest, 114. 
 
 CORPORATION. 
 
 Right under charter, 114. 
 Forfeiture of franchises, 114. 
 Wlien liable to indictment, 114. 
 Judgment against, 114. 
 
 DEAD BODY. 
 
 Leaving unburied indictable, 115. 
 
 See Cemetery : Disinterring the 
 dead. 
 
 DEADLY WEAPONS. 
 
 See Concealed weapons. 
 DEMURRER. 
 
 Judgment on, 115. 
 Admission by, 115. 
 
 DISINTERRING THE DEAD. 
 
 Was a crime at common law, 115. 
 What constitutes, 115. 
 Indictment, 115. 
 Evidence, 115. 
 
 DISORDERLY HOUSE. 
 
 See Nuisance. 
 DISORDERLY PERSON. 
 
 Proof of marriage, 116. 
 
 Defense, 116. 
 
 Requiring security, 116. 
 
 Review of proceedings, 116. 
 
 DISTURBING RELIGIOUS MEETING. 
 
 See Religious meeting. 
 DRUNKENNESS. 
 
 See Common drunkard; Intoxi- 
 cation AS A defense. 
 
 DUELING. 
 
 Sending challenge, 116, 117. 
 Form of challenge, 117. 
 Indictment, 117. 
 Evidence, 117.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XV 
 
 DURESS. 
 
 What deemed, 117. 
 How deteriiiined, 117, 118. 
 Order from superior authority does not 
 excuse, 118. 
 
 ea\t:sdropptng. 
 
 How committed, 118. 
 EMBEZZLEMENT. 
 
 1. What constitutes, 118-120. 
 
 There need not have been demau(^ or 
 
 denial, 118. 
 By person mingling funds with his own, 
 
 118. 
 By misappropriation of property, 119. 
 By fraudulent conversion of propertv, 
 
 119. 
 Acts which do not amount to, 119, 120. 
 Who not deemed servant or agent, 120. 
 
 2. Indictment, 120-122. 
 
 Averment of relation of defendant to 
 
 party injured, 120, 121. 
 Description of property, 121. 
 Averment of ownership, 121, 122. 
 Charging distinct acts, 122. 
 
 3. Jurisdiction, 122. 
 Of State courts, 122. 
 
 4. Evidence, 122, 123. 
 
 Proof of delivery of property, 122. 
 Must be proof of fraud, 122, 123. 
 Need not be jjroof of separate acts, 123. 
 Presumptions, 123. 
 Employer a competent witness, 123. 
 
 5. Verdict, 123. 
 Against several, 123. 
 
 Under indictment for embezzlement and 
 
 larceny, 123. 
 Cannot be for diftereut offense, 123. 
 
 EMBRACERY. 
 
 At common law, 123. 
 ENLISTMENT. 
 
 Indictment, 123. 
 
 ERROR. 
 
 See Writ of error. 
 
 ESCAPE. 
 
 At common law, 123, 124. 
 
 What constitutes, 124. 
 
 Who not liable, 124. 
 
 Rendering aid or assistance, 124. 
 
 What not deemed aiding, 124. 
 
 Indictment, 124, 125. 
 
 Evidence, 125. 
 
 Effect on the rights of the defendant, 125. 
 
 ESTRAY. 
 
 Taking up, indictable, 125. 
 Indictment, 125, 126. 
 
 EVIDENCE. 
 
 1. In general, 120-129. 
 
 When material, must be received, 120. 
 To be derived from the facts, 126, 127. 
 
 EVIDENCE— co«^?« ued. 
 
 Must be responsive to the issue, 127. 
 Proof of defendant's name, 127. 
 Proof of name of party injured, 127, 128. 
 Middle letter of name not in general 
 
 material, 128. 
 Proof of identity of prisoner, 128. 
 Immaterial averments need not be 
 
 proved, 128. 
 Precise time need not be proved, 128. 
 Proof of place essential, 129. 
 
 2. Amount op proof required to con- 
 
 vict, 129, 130. 
 
 Must satisfy the jury beyond reasonable 
 doubt, 129. 
 
 Cleaning of reasonable doubt, 129. 
 
 When negation equivalent to affirma- 
 tion, 129, 130. 
 
 Testimony partly false, how regarded, 
 130. 
 
 3. BmDEN OF PROOF, 130. 
 
 When on prosecution, 130. 
 When with defense, 130. 
 
 4. Documentary evidence, 130-132. 
 Record to be produced, 130, 131. 
 When copy of record competent, 131. 
 Proof of record, 131. 
 Proof of indictment, 131. 
 Entries, when admissible, 131. 
 Books of science, 131. 
 Admission of map in discretion of 
 
 court, 132. 
 Advertisements, 132. 
 Letters, 132. 
 Papers of insolvent, 132. 
 Depositions, 132. 
 Writing partly illegal, 132. 
 
 5. Written instroments how proved, 
 132-135. 
 
 In general, 132, 133. 
 
 Proof of handwriting by witness, 133. 
 
 Proof of handwriting by comparison, 
 133. 
 
 Standard of comparison how determin- 
 ed, 134. 
 
 Proof of alterations, 134. 
 
 Proof of contents of writing, 134, 135. 
 
 6. Proof of testimony given on for- 
 mer trial, 135. 
 
 Waiver by defendant, 135. 
 
 Proof of testimony given before grand 
 
 jury, 135. 
 Proof of testimony of deceased witness, 
 
 135. 
 Proof of testimony of living witness, 
 
 135. 
 
 7. Admissions and declarations, 135-140. 
 Declarations of party injured not com- 
 petent, 135. 
 
 Acts and declarations of accused, 135, 
 
 136. 
 Distinction as to time, 130. 
 To be confined to subject of inquiry, 136. 
 Must have been made understand ingly, 
 
 136.
 
 XVI 
 
 TABLE or TITLES AlS^D SUBJECTS. 
 
 EVIDENCE —continued. 
 
 By hiisliand or wile, 136. 
 
 Proof of conversations, 186, 137. 
 
 Declarations of defendant in his own 
 beljalf, 137, 138. 
 
 Declarations of co-defendant, 138, 189. 
 
 Declarations of third person, 139. 
 
 Tacit admission of defendant, 139. 
 
 Tclegiaphic messages, 140. 
 
 Admissibility of jjroof improperly ob- 
 tained, 140. 
 
 Order of proof, 140, 
 
 Evidence in rebuttal, 140. 
 
 Declarations do not bind prosecution, 
 140. 
 8. COMFESSIOKS, 140-149. 
 
 Capacity to make, 140. 
 
 Manner V. 140, 141. 
 
 Subject of, 141. 
 
 General grounds of admission or exclu- 
 sion, 141. 
 
 By witness, 141, 142. 
 
 By person under arrest, 142. 
 
 By intoxicated person, 142. 
 
 By prisoner of his own accord, 142. 
 
 Obtained by artifice, 142. 
 
 In answ^er to question, 142, 143. 
 
 Obtained bv promise of advantage, 143, 
 144. 
 
 Confession obtained by persuasion, ad- 
 missible, 144. 
 
 Justifiable inducements, 144, 145. 
 
 Improper inducements, 145, 146. 
 
 Made through fear, 146. 
 
 Obtained by threats, 146. 
 
 Threatening circumstances not ground 
 of exclusion, 146. 
 
 Confession obtained wliile the jjrisoner 
 is tied, 147. 
 
 Confession admissible notwithstanding 
 improper influence, 147. 
 
 Facts obtained by confession whicli is 
 
 inadmissible, 147, 148. 
 Confession of co-defendant, 148. 
 
 Admissibility of, to be determined by 
 
 the court, 148. 
 Confession when presumed to have been 
 
 improperly obtained, 148. 
 Confession how proved, 148, 149. 
 Must be corroborated, 140. 
 "Weight of confession, 149. 
 Waiver of objection, 149. 
 Reversal of decision admitting confes- 
 sion, 149. 
 
 9. Privileged commtinicatioss, 150, 
 Attorney and client, 150. 
 Physician, 150. 
 
 Clergyman, 150. 
 Husband and wafe, 150. 
 Telegraph operatoi-, 150. 
 
 10. Character, 150, 151. 
 
 Proof of, how- regarded, 150, 151. 
 Proof confined to the time previous to 
 
 the commission of the oftense, 151. 
 Proof restricted to character in issue, 151. 
 
 EVIDENCE— cor? /fm uecl. 
 
 Eft'ect of failure to jMove, 151. 
 
 11. Presumptive evidence, 152-157. 
 Capacity for crime, 152. 
 
 General presumption as to guilt, 152. 
 
 Concealment, 152. 
 
 Giving false account, 152. 
 
 Trying to escape. 152. 
 
 Destruction of evidence, 152. 
 
 Falsehood or silence of defendant, 152. 
 
 Failure to produce evidence in explana- 
 tion, 153, 154. 
 
 Neglect to make special defense, 154. 
 
 Defendant not to testify in his own be- 
 half, 154. 
 
 Conduct of defendant, 154, 155. 
 
 Condition of clothes, 155. 
 
 Proof of motive, 155. 
 
 Guilty knowledge and intent, 155. 
 
 Proof of malice, 155, 156. 
 
 Proof of marriage, 156. 
 
 Coercion of wife, 156 
 
 Proof of independent facts relied on as 
 a presumption of guilt, 156. 
 
 General presumptions, 156, 157. 
 
 Presumption from relationship, 157. 
 
 Non-existence of facts on the record, 157. 
 
 Rebuttal of presumj)tions, 157. 
 
 12. Proof op other offense, 157, 158. 
 Not in general admissible, 157, 158. 
 May be received when it tends to prove 
 
 offense charged, 158. 
 Proof that oflense is difiierent from that 
 proved before grand jury, 158. 
 
 13. Testimony of accomplice, 158-160. 
 When admissible, 158. 
 Conviction may be upon uncorroborated 
 
 testimony of accomjslice, 158, 159. 
 Ought in general to be corroborated, 
 
 159. 
 What deemed a corroboration, 159. 
 When partly false must be corroborated, 
 
 159. 
 Who not deemed an accomplice,159, 160. 
 
 14. Testimony of experts, 160-162. 
 When admissible, 160. 
 Must be based on facts, 160. 
 Opinion as to cause of death, 160. 
 Opinion as to instrument, 161. 
 Testimony on the question of insanity, 
 
 161, 162. 
 Mav be interrogated to test their skill, 
 
 162. 
 Testimony given through interpreter, 
 
 162, 163. 
 
 15. Opinions of witnesses who are not 
 experts, 163, 164. 
 
 Indistinct recollection, 163. 
 
 Opinion as to defendant's guilt not ad- 
 missible, 163. 
 
 On questions of common knowledge, 163» 
 
 As to age of person, 163. 
 
 On the question of health, 163. 
 
 As to declarations of the defendant, 163, 
 164.
 
 TABLE OF TITLES A2sD SUBJECTS. 
 
 XVU 
 
 EVIDENCE— w« ifi/i ued. 
 
 Opinion as to defendant's intention, not 
 admissible, 164. 
 
 Speculation or conjecture not admissi- 
 ble, 164. 
 
 Opinion relative t® tlie sanity of the 
 prisoner, 164. 
 
 Opinion as to intoxication of defendant, 
 164, 165. 
 
 16. Proof op alibi, 165, 166. 
 Nature of, 165. 
 
 Burden of proof, 165, 
 
 What requii'ed to establish, 165. 
 
 Proof need not be exact as to time, 165, 
 
 166. 
 Evidence to disprove, 166. 
 Effect of failure to prove, 166. 
 
 17. Evidence to discredit or sustain 
 
 WITNESS, 166-170. 
 
 Improper conduct of witness, 166. 
 Rule as to facts collateral to the issue, 
 
 166, 167. 
 Rule as to contradiction by party of his 
 
 own witness, 167. 
 Failure to testify before magistrate not 
 
 to be regarded, 167. 
 Discrediting written statement, 167,168. 
 Contradictory acts and declarations, 168. 
 Imi^eachment of character, 168, 169. 
 Prejudice of witness against prisoner, 
 
 109. 
 Testimony to sustain witness, 169, 170. 
 Proof of good character of witness, 170. 
 For eiidence in special cases, see the 
 titles of the different offences. 
 
 EXAMINATION OF PARTY ARRESTED. 
 
 Proceedings on, 171. 
 EXCEPTIONS. 
 
 See Bill op exceptions. 
 EXPERTS. 
 
 See Evidence. 
 EXTORTION. 
 
 1. What constitutes, 171, 172. 
 At common law, 171. 
 
 When committed, 171. 
 
 Must l>o a corrupt intent, 171. 
 
 When payment voluntary, 0ifeu;^e noL 
 
 committed, 171, 172. 
 Unconstitutionality of statutes, 172. 
 
 2. Indictment, 172. 
 What to contain, 172. 
 
 3. Evidence, 172. 
 
 Proof of existence and delivery of writ, 
 
 1 ^^2 
 Proof of time, 172. 
 Proof of amount, 172. 
 Impeachment of officer's return, 172. 
 See Threatening to accuse of 
 
 CRIME. 
 
 EXTRADITION. 
 
 See FcorTiVEs from justice. 
 
 FALSE IMPRISONMENT. 
 
 What deemed, 172. 
 Indictment, 173. 
 
 FALSE PRETENSES. 
 
 1. What constitutes, 173-180. 
 ^lust be likely to deceive, 173. 
 Is not committed where party has means 
 
 of information, 174. 
 Not committed by mere falsehood, 174. 
 Must have been part of inducement, 
 
 174, 175. 
 Must relate to past event, 175. 
 Property must have passed, 175, 176. 
 Property must have been parted with 
 
 for honest purpose, 176. 
 Intention to restore the property not a 
 
 defense, 176. 
 False statement as to ownership of prop- 
 erty, 176, 177. 
 In purchase or sale of goods, 177. 
 In payment of money, 177. 
 Inducing person to sign a note, 177. 
 Between creditor and del)tor, 177, 178. 
 Under the statutes of New York, 178. 
 Under the statutes of Massachusetts, 
 
 178, 179. 
 In several other States, 179. 
 Under acts of Congress, 179. 
 Where the money was in custody of a 
 
 bailee, 179. 
 By one of several, 179. 
 Otfense, when completed, 179, 180. 
 
 2. Affidavit for arrest, 180. 
 What to contain, 180. 
 
 3. Indictment, 180-185. 
 Must charge that the property was ob- 
 tained by means of the representa- 
 tions, 180. 
 
 Should set forth sale or exchange of 
 property, 180, 181. 
 
 For removing and concealing property, 
 181. 
 
 For obtaining signature to written in- 
 strument, 181. 
 
 Charging bankrujjt, 181. 
 
 Must set out the pretenses, 181, 182, 183. 
 
 Averment of intent, 183. 
 
 Description of property, 183, 184. 
 
 Averment of ownership, 184. 
 
 Allegation of value, 184, 185. 
 
 Charging several, 185. 
 
 ^lust negative truth of pretenses, 185. 
 
 SufRciency of indictment, question of 
 law, 185. 
 
 Place of trial, 185. 
 
 4. Evidence, 185-189. 
 Burden of proof, 185. 
 Best evidence must be produced, 185,1 86. 
 All of the pretenses need not be proved, 
 
 186. 
 Variance as to name of parly injured, 
 
 186. 
 Proof as to amount falsely represented, 
 
 186, 187.
 
 XVIU 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 FALSE PRETENSES— w»^??i(/eJ. 
 Proof as to propertj^, 187. 
 Ivcprcscntation as to indebtedness, 187. 
 AVherc goods are obtained from an 
 
 agent, 187. 
 Proof of credit, 187, 18§. 
 Proof of guilty knowledge and intent, 
 
 188, 18<J. 
 Testimony for the defense, 189. 
 Testimony to impeach witness, 189. 
 Pretense, question for jury, 189. 
 
 FELONY. 
 
 What deemed, 189, 190. 
 
 See the titles of the several offenses. 
 
 PINE. 
 
 When it will go to the State, 190. 
 
 FIRE ARMS. 
 
 Careless use of, 190. 
 
 See CONCEAXED WEAPONS. 
 
 FISHERY. 
 
 Town no right in, 190. 
 Unlawful taking of fish, 190. 
 Complaint, 190. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. What constitutes, 190, 191. 
 When entry deemed forcible, 190, 191. 
 Detainer, when forcible, 191. 
 
 2. Proceedings. 191, 193. 
 Nature, 191, 193. 
 
 Who may maintain, 193. 
 Against whom they will lie, 192. 
 
 3. Complaint, 193. 
 
 What it must contain, 193. 
 Verification, 193. 
 
 Objection, how and where made, 193. 
 Waiver of objection, 193. 
 
 4. Indictment, 193, 194. 
 At common law, 193. 
 Averment of title, 193. 
 Description of premises, 193, 194. 
 Traverse, 194. 
 
 5. Evidence, 194. 
 
 As to premises, 194. 
 Proof of possession, 194. 
 Proof of entry, 194. 
 Injured party as witness, 194. 
 
 6. Trial, 194, 195. 
 
 Right of defendant on, 194. 
 Defendant to be notified of inquisition, 
 
 194. 
 Inquisition may be dated in figures, 194. 
 What inquisition should contain, 194. 
 Restitution, 194. 
 Damages, 195. 
 Certiorari, 195. 
 
 FORCIBLE TRESPASS. 
 IIow committed, 195. 
 When indictable, 195. 
 Indictment and evidence, 195. 
 See Trespass. 
 
 FORGERY AND COUNTERFEITING. 
 
 1. What constitutes, 195-198. 
 How defined, 195, 196. 
 
 Acts which are deemed, 196, 197. 
 
 The uttering, 197.- 
 
 False instrument need not have been 
 received as genuine, 197. 
 
 Fraudulent intent, 197, 198. 
 
 May be committed by agent, 198. 
 
 Must be in the name of some one in ex- 
 istence, 198. 
 
 By several acts, 198. 
 
 2. What may be the subject of, 198-202. 
 Must appear to be the act of another, 198. 
 Must be calculated to injure, 198, 199. 
 Need not be such as that, if genuine, it 
 
 would be binding, 199. 
 
 Must be likely to deceive, 199, 200. 
 
 Must be such that it would have been 
 good if genuine, 200. 
 
 Forgery of instrument having no valid- 
 ity, 200. 
 
 Printed instrument, 201. 
 
 Instrument without address, 201. 
 
 Revenue stamp, 201. 
 
 Writing made on Sunday. 201. 
 
 Deed of laud in another State, 201. 
 
 Instrument for counterfeiting coin, 301. 
 
 Note or order, 201, 202. 
 
 Indorsements. 203. 
 
 3. Indictment, 202-211. 
 
 Must show the forgery of a valid in- 
 strument, 202, 203. 
 
 Need not allege validity of instrument, 
 203. 
 
 Forged instrument need not be named, 
 203. 
 
 Instrument should be set out, 203, 204. 
 
 Where forged instrument is in foreign 
 language, 204. 
 
 Charging the forgery of note, 204. 
 
 For forgery of indorsement on note, 204. 
 
 Charging the forgeiy of a bond, deed 
 or mortgage, 204. 
 
 Description of counterfeit bank bill, 
 
 204, 205. 
 
 Existence of bank need not be alleged, 
 
 205. 
 lucorjDoration of bank must be averred, 
 
 205, 206. 
 
 Charging non-existence of bank, 206. 
 
 Description of counterfeit coin, 206. 
 
 Description of bank check, 206. 
 
 Description of order for payment of 
 money, 207. 
 
 Charging the forgery of a county war- 
 rant, 207. 
 
 Information for uttering forged power 
 of attorney, 207. 
 
 Description of party injured, 207, 208. 
 
 Averment of time, 208. 
 
 Charging guilty knowledge and intent, 
 208, 209. 
 
 Descriptive averment, 209. 
 
 Immaterial averments, 209, 210.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XIX 
 
 FORGERY AND COUNTERFEIT.— ra?!f.r7. 
 Charijing several acts, 310. 
 Insufficieut or improper averments, 210, 
 
 211 
 Conclusion, 211. 
 
 4. Place of trial, 211, 212. 
 
 For counterfeiting U. S. coin, 211. 
 Where the forgery is in one county, and 
 
 the uttering in another county, 211, 
 
 212. 
 
 5. Evidence, 212-222. 
 
 Party injured may be a witness, 212. 
 
 Proof must support charge, 212, 213. 
 
 Proof of part of charge sufficient, 213. 
 
 A trifling variance not regarded, 213, 
 214. 
 
 Must be confined to the issue, 214. 
 
 Instrument must be produced or its ab- 
 sence accounted for, 214, 215. 
 
 Proof of existence of bank, 215. 
 
 Name of bank and of its president, 215. 
 
 Proof of false character of bank bills, 
 215, 216. 
 
 Proof of handwriting in general, 216. 
 
 Comparison of hands, 216, 217. 
 
 Proof of contents of writing, 217. 
 
 Name of party injured, 217. 
 
 Proof of attempt to pass forged instru- 
 ment made through agent, 217, 218. 
 
 Declarations of party injured, 218. 
 
 Acts and declarations of defendant, 218. 
 
 Presumption as to bank, 218. 
 
 Presumption from conduct of defend- 
 ant, 218, 219. 
 
 Presumption from possession, 219, 220. 
 
 Presumption as to place, 220. 
 
 Bad character of prisoner, 220. 
 
 Proof of guilty knowledge and intent, 
 220, 221, 222. 
 
 Intoxication of defendant, 223. 
 
 Forged instrument to be submitted to 
 jury, 322. 
 
 6. Verdict, 223. 
 
 Need not negative mitigating circum- 
 stance, 223. 
 When bad for uncertainty, 223. 
 
 FORMER ACQUITTAL OR CONVIC- 
 TION. 
 
 1. General principles, 223, 224, 
 Rights of prisoner, 223. 
 
 What required to constitute a bar, 323. 
 Pendency of second indictment, 223. 
 Demurrer to j)lea to jurisdiction, 223. 
 Impaneling jury without arraignment, 
 
 223, 234. 
 Where the offense is against separate 
 
 jurisdictions, 224. 
 
 2. Former acquittal, 224-227. 
 Discharge by magistrate, 224. 
 Quashing indictment, 224. 
 Suspension of trial, 224. 
 Entry of nolle prosequi, 224. 
 Discharge of jury, 224. 
 Separation of jury, 224. 
 
 FORMER ACQUITT. OR COlHY.—confd. 
 Acquittal through error of court, 224, 
 
 225. 
 Effect of judgment that ofl'cnse is not 
 
 punishable, 225. 
 In case of variance, 225. 
 Acquittal of co-defendant, 225. 
 Acquittal of joint otiense, 325. 
 Acquittal on some of several counts, 325. 
 Acquittal in case of distinct offenses, 
 
 225, 226. 
 In case of larceny, 220. 
 In case of forgery, 226, 237. 
 In case of seduction, 227. 
 
 3. Former conviction, 227-231. 
 Where the proceedings were illegal, 227. 
 Conviction ol>tained by fraud, 227. 
 Improper dismissal of indictment, 338. 
 Insufficient verdict, 338. 
 
 Arrest of judgment, 238. 
 
 Improper reversal of judgment, 228. 
 
 Where there are several indictments, 
 228. 
 
 Must have been for same offense, 228, 
 229. 
 
 Conviction of lesser offense, 229. 
 
 Where the same act constitutes distinct 
 offenses, 229, 230. 
 
 Need not have been a judgment, 230. 
 
 Where the verdict is improper or insuf- 
 ficient, 331. 
 
 4. Plea, 231. 
 
 At common law, 331. 
 What to contain, 331. 
 Demurrer to, 231. 
 Trial, 231. 
 
 5. Evidence, 231, 232. 
 Burden of proof, 331. 
 
 Weight and effect of previous judg- 
 ment, 333. 
 Oral testimony, 333. 
 
 FORNICATION. 
 
 See ADLTiTERY ; Bastardy ; Rape ; 
 Seduction. 
 
 FRAUD. 
 
 See False Pretenses. 
 
 FUGITIVES FROM JUSTICE. 
 
 1. From foreign country, 232-234. 
 Who is, 232. 
 
 " Right to demand surrender, 233. 
 
 Extradition treaties, 332. 
 
 Jurisdiction in proceedings for extradi- 
 tion, 232, 233. 
 
 Autliority not to be exercised by State, 
 233. 
 
 What necessary to give jurisdiction, 233. 
 
 Complaint and warrant, 233. 
 
 Evidence, 233. 
 
 Adjournment, 234. 
 
 Review of decision, 234. 
 
 2. From othkr State, 234, 335. 
 Who deemed, 234. 
 
 Construction of U. S. Constitution, 234.
 
 :sx 
 
 TABLE OF TITLES A^D SUBJECTS. 
 
 FUGITIVES FROM JVSTICE— continued 
 Need uot have been requisition, 2'i'A. 
 Arrest after letting to bail, 234. 
 Must be charge pending, 234, 235. 
 Evidence required for issuing warrant. 
 
 235. 
 Warrant; Review; Stay of proceedin<;s. 
 
 335. 
 Reward, 235. 
 
 See Habeas corpus. 
 GAMING. 
 
 1. What constitutes, 235-241. 
 In general, 235, 230. 
 
 By playing once, 236. 
 
 Setting up table, 236, 237. 
 
 Betting, 237, 238. 
 
 Inciting others to bet, 238. 
 
 Horse racing, 238. 
 
 What not deemed gaming. 238. 
 
 Offense with reference to place, 238,239, 
 
 240. 
 What uot deemed a public place, 240, 
 
 241. 
 Power and duty of grand jury, 241. 
 Construction of statutes, 241. 
 
 2. Indictment, 241-244. 
 Parties, 241, 242. 
 Description of game, 242. 
 Averment of keeping house for gaming, 
 
 242, 243. 
 
 Averment of betting, 243. 
 
 Time need not be charged with partic- 
 ularity, 243. 
 
 Averment of place, 243, 244. 
 
 Charging several acts, 244. 
 
 3. Evidence, 344-246. 
 Bill of particulars, 244. 
 Proof of time and place, 244. 
 Proof of betting, 244, 245. 
 
 Proof as to the persons |)laying, 245. 
 
 Proof of game played, 245, 246. 
 
 Proof as to the money won or lost, 246. 
 
 GRAND JURY. 
 
 How constituted, 246. 
 
 Who may be a grand juror, 246. 
 
 Summoning, 246, 247. 
 
 Proof of organization, 247. 
 
 Two grand juries in same county at 
 
 same time, 247. 
 Amendment of panel. 247. 
 Objecting to, 247, 248. 
 How sworn, 248. 
 Power and duty, 248. 
 Testimony before, 348. 
 Disclosing testimony, 248. 
 Discharge of grand jurors, 248, 249. 
 See Indictment ; Trial. 
 
 HABEAS CORPUS. 
 
 When demandable as a right. 249. 
 When not proper remedy. 249. 
 Application for, 249, 250. 
 Notice of petition, 250. 
 
 I HABEAS COBTTJS—cotiHnued. 
 
 Proceedings in U. S. Supreme Court, 
 
 250. 
 Proceedings in U. S. Circuit Court, 
 
 250. 
 Jurisdiction of State court where party 
 
 is held by Federal authority, 250,251. 
 Where pany is detained under State 
 
 process, 251. 
 When granted, 251. 
 When refused, 251, 252. 
 Form, 252. 
 
 Service, return, and rule to aj^pear, 353. 
 Certiorari for removal, 253. 
 Duty of court to inquire into legality of 
 
 detention, 252. 
 Nature and extent of inquiry, 252, 353. 
 AVhen evidence must be produced, 353. 
 Evidence for prisoner, 353. 
 Evidence as to legality of detention, 353. 
 Discharge of prisoner, 353. 
 Effect of decision, 253, 354. 
 
 HAWKERS AND PEDDLERS. 
 
 See Peddlers. 
 HOMICIDE. 
 1. Murder, 254-305. 
 
 (a) What constitutes, 354-264. 
 
 Definition of murder, 254. 
 
 May be in heat of passion, 254, 255. 
 
 Intoxication no defense, 255. 
 
 Need uot be enmity, 255. 
 
 May be committed by infant, 255. 
 
 Must be intent to kill, 255. 
 
 Intent to kill, may be formed on the 
 instant, 255, 256. 
 
 Degree of offense determined by in- 
 tent, 257. 
 
 Murder l)y poisoning, 357. 
 
 In riot or atiray, 257. 
 
 Bv engaging another in a fight, 357, 
 '258. 
 
 In mutual combat, 358. 
 
 Bv third person interfering in fight, 
 "259. 
 
 In resisting officer, 359. 
 
 In resisting trespass, 359, 360. 
 
 In case of adultery, 360. 
 
 While committing other offense, 260, 
 361. 
 
 By several in prosecution of common 
 design, 261, 262. 
 
 By acts regardless of life, 363, 368. 
 
 By cruel treatment, 363. 
 
 By advising suicide. 363, 264. 
 
 Death from unskillful treatment, 264. 
 (&) Indictment, 365-269. 
 
 Venue, 265. 
 
 Averment of time, 265. 
 
 Averment of place, 2S5. 
 
 Averment of means emploved, 265, 
 366. 
 
 Name of deceased, 266, 267. 
 
 Statement as to location of wound,267.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXI 
 
 ROMIGID E—co}iti>med. 
 
 Description of wound, 267. 
 
 Must show that party died of the in- 
 jury, 267, 268. 
 
 Averment of intent, 268, 269. 
 
 Averment of premeditation, 269. 
 
 Unnecessary averments, 26l». 
 
 Plea to indictment, 269. 
 
 Trial of plea, 269. 
 (c) Evidence in general, 269-276. 
 
 Right of prosecution as to introduc- 
 tion of evidence, 269. 
 
 Person killed, 269, 270. 
 
 Proof of cw^MS delicti, 270, 271. 
 
 Weapon employed, 271, 272. 
 
 Mode of violence, 272. 
 
 Proof of time and place, 272, 273. 
 
 Opinions as to cause of death, 273. 
 
 Opinion on question of insanitv, 273. 
 
 Proof of malice, 273, 274. 
 
 Proof of premeditation, 274, 275. 
 
 Intoxication of accused, 275. 
 
 Res gestoR. 275, 276. 
 
 Extenuating circumstances, 276. 
 {d) Presumptio-iis, 276-283. 
 
 What implied from the killing, 276, 
 277. 
 
 Possession or use of deadly weapon, 
 277, 278. 
 
 Feebleness of person killed, 279. 
 
 Footprints, 279. 
 
 Spots of blood, 279. 
 
 Anonymous letter, 279. 
 
 Ill feeling between the parties,279,280. 
 
 Presumption from threat, 280. 
 
 Alienation of affection, 280. 
 
 Adulterous intercourse, 280. 281. 
 
 Outcries of person killed, 281. 
 
 Conduct and situation of defendant, 
 281. 
 
 Silence of prisoner, 281. 
 
 Appearance of defendant, 281, 282. 
 
 Escape of defendant, 282. 
 
 Handwriting of prisoner, 282. 
 
 Possession of money by person killed, 
 282. 
 
 Commission Ijy defendant of other 
 offense, 283. 
 
 Suicide of ])erson killed, 282. 
 
 Demeanor of deceased, 282. 
 
 Presumptions in favor of defense, 282, 
 283. 
 
 Presumption from record, 283. 
 {e) Admissions and declarations of de- 
 fendant, 283-287. 
 
 In general, 283, 284. 
 
 Conversation between prisoner and 
 deceased, 284. 
 
 Threats by defendant, 284. 
 
 Testimony l)efore coroner, 284, 285. 
 
 Testimony before magistrate, 285. 
 
 Admissions in affidavit, 285. 
 
 Confessions, 285, 286. 
 
 Acts and declarations of defendant in 
 his own behalf, 286, 287. 
 
 llOmCID'E—continved. 
 
 Declaration of third person in defend- 
 ant's favor, 287. 
 (/) Admissions and declarations of co-de- 
 fendant, 287, 288. 
 
 Statements in relation to occurrence, 
 287. 
 
 Threats by one of several defendants, 
 287. 
 
 Acts and declarations by husband or 
 wife, 287, 288. 
 
 Declarations of witness, 288. 
 
 Record of conviction or acquittal, 288. 
 ig) Declarations of person hilled, 288-292. 
 
 Complaint, 288. 
 
 Statement of cause of injury, 288, 289. 
 
 Declarations of deceased as to his in- 
 tentions, 289, 290. 
 
 Must have come to defendant's knowl- 
 edge, 290. 
 
 Threats of deceased, 290, 291. 
 
 In case of conspiracy, 291. 
 
 Must have been overt act, 291. 
 
 Proof of declarations in corroboration 
 or rebuttal, 292. 
 
 How to be regarded by jury, 292. 
 (A) Dying declarations, 292-298. 
 
 General grounds of admissibility, 292, 
 293. 
 
 Substance of declaration suflRcient,293. 
 
 Opinions not admissible, 293, 294. 
 
 Who competent to make, 294. 
 
 Must have been made in the belief of 
 apiifoaching death, 294, 295, 296. 
 
 Declarations of husband, 296. 
 
 Declarations of other person killed at 
 the same time, 296. 
 
 Declarations of co-defendant, 296. 
 
 How taken, 29t). 
 
 Admissibility of, how determined, 
 296, 297. 
 
 How proved, 297. 
 
 How discredited, 297, 298, 
 (/) Character of person lilled, 298, 299. 
 
 Prosecution'not permitted to show, 
 298. 
 
 Cannot in general, be proved by the 
 defense, 298. 
 
 When defendant may show, 298. 
 
 What may be proved, 298, 299. 
 (j) Character of de.fendant, 299, 300. 
 
 Defendant not obliged to prove, 299. 
 
 When admissible, 299. 
 
 By whom shbwn, 299. 
 
 Proof to be confined to offense 
 charged, 299. 
 
 Eifect of proof of good character, 
 299, 300. 
 {Tc) Burden of proof, 300-302. 
 
 When on prisoner, 300. 
 
 Rule in different States, 300, 301, 302. 
 (I) Weight and svffinencT/ of proof, 302. 
 
 What requireci to convict, 302. 
 
 Disadvantage of circumstantial evi- 
 dence, 302.
 
 XXll 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 ILOMlCTDE—con'inued. 
 
 (m) Charge of court, 302, 303. 
 
 Duty of court, 303, 303. 
 
 Withdr;nvinw question from iury, 303. 
 («) Verdict, 303-305. 
 
 May be general, 303. 
 
 May be for less offense than charged, 
 303, 304. 
 
 Must find degree, 304. 
 
 Prisoner must be present, 304, 305. 
 
 Consent of prisoner, 305, 
 
 Separation of jury, 305. 
 
 Amendment, 305. 
 
 Doubt that will justify acquittal, 305. 
 (o) Sentence, 305. 
 
 Interrogating prisoner, 305. 
 
 In case of escape, 305. 
 
 How satisfied, 305. 
 
 2. Maj^slaughter, 305-314. 
 («) What constitutes, 305-311. 
 
 Meaning and characteristics, 305, 806. 
 From sudden passion, 307. 
 In mutual combat, 307, 808, 309. 
 By third person interfering in fight, 
 
 309. 
 Upon provocation, 309. 
 In resisting unlawful arrest, 809, 810. 
 In resisting trespass, 310. 
 By cruelty, 310. 
 By killing unborn child, 310. 
 Through ignorance, 310. 
 From omission, 310. 
 Through recklessness, 810, 311. 
 From negligence, 311. 
 By command of superior, 311. 
 (&) Indictment, 311, 312. 
 Nature and requisites, 311. 
 Averment of place, 311. 
 Where there are several defendants, 
 
 811, 312. 
 Description of wound, 312. 
 Averment of death, 312. 
 Technical averments, 312. 
 
 (c) Trial, 312. 
 
 In case of joint indictment, 312. 
 
 (d) Evidence, 312-314. 
 
 Facts and circumstances must be 
 
 shown, 312. 
 Nature of act, 312. 
 Proof as to nature of injury, 312. 
 Heat of passion, 312, 313. 
 Admissions and declarations, 313. 
 Opinion as to condition of deceased, 
 
 313, 314. 
 Proof as to motive, 314. 
 Burden of proof, 314. 
 {e) Verdict, 314. 
 
 In case of i)roof of higher ofl^ense, 314. 
 Is not restricted, 314. 
 Effect, 814. 
 
 3. Justifiable homicide, 314-323. 
 {a) In self-defense, 314-321. 
 
 Must have been overt act. 814, 315. 
 Must have been apparent danger, 315. 
 
 B.O'SllCVDE— continued. 
 
 Pule in New York, 315, 316. 
 
 Rule in Pennsylvania and Missouri, 
 316. 
 
 Rule in Kentucky, 316, 317. 
 
 Rule in Tennessee, Louisiana, Mi- 
 chigan, and Minnesota, 317. 
 
 Rule in Iowa, 317, 318. 
 
 Rule in North Carolina, Alabama, 
 Mississippi, and California, 318. 
 
 Rule in Virginia, 318, 319. 
 
 Rule in Wisconsin, Kansas, Nevada^ 
 and Oregon, 319. 
 
 Attack may be anticipated, 319. 
 
 Defendant must not have been to 
 blame, 319, 320. 
 
 Duty of defendant to retreat, 320. 
 
 Defendant not obliged to resort to 
 legal protection, 820, 321. 
 
 Person defending another, 321. 
 
 Nature of inquiry, 321. 
 (h) In. protecting property, 321, 822. 
 
 General rule, 321. 
 
 Defense of dwelling, 821, 822. 
 
 Intruder must not be pursued, 322. 
 
 Defending right to public property, 
 322. 
 (c) In prevention of felony, 322, 828. 
 
 Reasonable belief sufficient, 322, 
 
 In arresting felon, 322. 
 
 In resisting attempt, 322. 
 
 In suppressing riot, 322, 323. 
 {d) In case of shipwreck, 323. 
 
 Must be decision by lot, 323. 
 (e) In case of accident, 323. 
 
 Must have been in lawful act, 823. 
 
 Caused by disrcase, 323. 
 (/) Evidence, 823. 
 
 Burden of proof, 323. 
 
 Right of defendant to show circum- 
 stances, 323. 
 
 IDIOCY. 
 
 Rule of evidence, 323, 324. 
 See Insanity. 
 
 IGNORANCE OP LAW. 
 When open to inquiry, 324. 
 
 INCEST. 
 
 1. What constitutes, 824. 
 
 What deemed an incestuous marriage, 
 334. 
 
 What deemed an attempt, 324. 
 
 Cohabitation with a stepdaughter is 
 not, 324. 
 
 Offense may be committed wnth an il- 
 legitimate daughter, 324. 
 
 2. Indictment, 324, 325. 
 Averment of relationship, 324. 
 Must specify time, 324. 
 Must charge guilty knowledge, 324,325. 
 Defendant may be convicted of rape, 
 
 325.
 
 TABLE OP TITLES A^B SUBJECTS. 
 
 XXlll; 
 
 INCEST, continued. 
 3. Evidence, 335. 
 
 Admis.sions and declarations, 325. 
 Proof of other acts, 325. 
 
 INDECENCY. 
 
 See Lasciviotjsness ; NniSANCE. 
 
 INDICTMENT. 
 
 1. When it will lie, 336. 
 
 Constitutional right, 326. 
 
 When in general, the proper remedy, 
 336. 
 
 Offenses amenable to, 326. 
 
 Agreement to do act, not indictable, o36. 
 3. Finding, 336, 338. 
 
 Composition of grand jury, 336. 
 
 Oath of grand jurors, 336, 327. 
 
 Proof required, 337. 
 
 Stranger in grand juiy room, 337. 
 
 Vacancy in ofRce of district attorney, 
 337. 
 
 Signing by foreman, 327, 
 
 Indorsing true bill, 337. 
 
 Return of indictment, 327. 
 
 Indorsement of name of prosecutor, 327, 
 328. 
 
 Indorsement of names of witnesses, 338. 
 
 Filing indictment, 328. 
 
 Delivering copy of indictment to pris- 
 oner, 328. 
 
 Loss of indictment, 328. 
 
 3. Venue, 328, 329. 
 
 Must be laid in county, 328, 329. 
 Where a new county is created, 329. 
 
 4. Caption, 329, 330. 
 Nature and office, 329. 
 How entitled, 329. 
 
 What it should contain, 339, 330. 
 Indictment made certain by, 330. 
 Amendment, 330. 
 Omission of caption, 830. 
 
 5. Commencement, 330. 
 Form, 330. 
 
 6. Body of the indictment, 330-347. 
 (a) Mime of defendant, 330-333. 
 
 Must be alleged, 330. 
 
 Where name is unknown, 330. 
 
 Christian name, 330, 331. 
 
 Abbreviation of surname, 331. 
 
 Middle letter, 331. 
 
 Idem sonans, 331. 
 
 Description of defendant, 331, 332. 
 (6) Niirne of party injured, 332. 
 
 Must be alleged, 333. 
 
 Averment that name is unknown, 333. 
 
 Describing by initials of christian 
 name, 332. 
 
 Need not describe by any addition, 
 332. 
 
 Omission of name, 333. * 
 
 Name of deceased person, how deter- 
 mined, 333. 
 (c) Tiine and place, 332-335. 
 
 Must be stated, with certainty, 333. 
 
 mDlCTME^H— continued. 
 
 Words then and there, 332, 333. 
 
 Rule as to the averment of time, 333^ 
 384. 
 
 Use of figures, 334. 
 
 Rule as to averment of place, 334,335.. 
 {d) Statement of the offense, 335-847. 
 
 Must be intelligible, 335, 336. 
 
 Averment of means, 336. 
 
 Office of videlicet, 336. 
 
 One count sufficient, 330. 
 
 Mast state facts constituting the 
 offense, 336, 337, 338. 
 
 Charging ofi'ense in different ways, 
 838. 
 
 Charging several acts, 838, 389. 
 
 Disjunctive averment, 339. 
 
 Charging distinct offenses, 339, 340. 
 
 Joinder of ofienses, 340. 
 
 Charging several with dift'erent of- 
 fenses, 340, 341. 
 
 Charging time of enactment of stat- 
 ute, 341. 
 
 Describing statutory offense, 341, 343. 
 
 Charging offense in words of statute, 
 343, 343, 344. 
 
 When exceptions in statute must be 
 negatived, 344, 345. 
 
 Description of written instrument, 845. 
 
 Description of property, 345. 
 
 Averment of guilty knowledge and. 
 intent, 345, 346. 
 
 Technical words, 346. 
 
 Conclusion, 346, 347. 
 
 7. Removal op indictment, 347. 
 How eff"ected, 347. 
 
 8. Peoop required, 347-349. 
 
 As to holding of court, 347, 348. 
 
 Indictment on tile proves itself, 348. 
 
 Evidence as to finding of indictment,. 
 348. 
 
 Must be shown that offense was com- 
 mitted in county, 348. 
 
 Proof of immaterial averments, 348. 
 
 Proof must supjiort charge. 348, 349. 
 
 9. Objection to indictment, 349, 350. 
 How made, 349. 
 
 Waiver of objection not binding on ac- 
 cused, 349,350. 
 When objection too late, 350. 
 
 10. Amendment op indictment, 350,351. 
 Not in general permitted, 350, 851. 
 When amendment allowed, 351. 
 Rejecting words as surplusage, 351. 
 Mutilation, 351. 
 
 11. Quashing indictment, 351-353. 
 Motion, 351. 
 
 By prosecution, 351. 
 Is in discretion of court, 351, 352. 
 Grounds for granting motion, 352. 
 In case of several defendants, 353, 353. 
 When motion denied, 353. 
 
 See Grand Jury. For indictments 
 
 in the several offenses, see the titles 
 
 of those offenses.
 
 XXIV 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 INFORMATION. 
 Nature. 353. 
 When it will lie, 353. 
 What it should contain, 353, 354. 
 Amendmeut; plea; conclusion, 354. 
 
 INNKEEPER. 
 
 What constitutes, 354, 355. 
 Right to detain horses, 355. 
 Indictmeat against, 355. 
 
 INSANITY. 
 
 1. When a defense, 355, 356. 
 Partial insanity, 355. 
 
 Moral insanity, 355. 
 
 Test of responsibility, 855, 356. 
 
 How determined, 356. 
 
 2. Evidence, 356-360. 
 
 When given contrary to wishes of de- 
 fendant, 356. 
 
 Importance of, to defense, 356. 
 
 What proof required, 356. 
 
 Jury must be satisfied of prisoner's san- 
 ity, 356, 357. 
 
 Acts and declarations of accused, 357, 
 358. 
 
 Good character of prisoner, 358. 
 
 Opinions of non-professional witnesses, 
 358. 
 
 Rumor, 358. 
 
 Hereditary taint. 358. 
 
 Presumption from previous derange- 
 ment, 358. 
 
 Presumption from proof of insanitv at 
 trial, 358, 359. 
 
 Burden of proof, 359, 860. 
 See Homicide. 
 
 INTOXICxiTION AS AN EXCUSE FOR 
 CRIME. 
 Will not in general excuse, 360. 
 When entitled to consideration, 360, 33 L 
 Where defendant was unconscious of his 
 
 act, 361, 362. 
 Where intoxication causes madness, 362. 
 Proof to be contined to date of offense, 
 862. 
 
 JEOPARDY. 
 
 See Former acquittal or con- 
 viction. 
 
 JUDGMENT. 
 
 1. Nature and requisites, 362, 363. 
 On demurrer, 362. 
 
 Judgment on conviction, 362. 
 
 Date may be given in figures, 362, 368. 
 
 Reversal of judgment, 363. 
 
 2, Arrest of judgment, 363, 364. 
 Nature and object of motion, 363. 
 When the motion may be made, 363. 
 Where the oflense is barred, 363. 
 When the motion will be denied, 363. 
 Presumption that motion was rightly 
 
 overruled, 364. 
 See New trial; Trial. 
 
 JURISDICTION. 
 
 1. Of courts in general, 364,365, 
 Cannot be conferred by consent, 364. 
 Judge de facto, 364. 
 
 Ab-ence of judge. 364. 
 
 Judge interested, 364. 
 
 Irregularity in issuing precept, 364. 
 
 End of term, 865. 
 
 Jurisdiction, how determined, 365. 
 
 2. With riiFerence to the place op 
 
 TRIAL, 365, 366. 
 Designation of place by court, 365. 
 Where the offense is committed out of 
 
 the State, 365. 
 What included in county, 365, 366. 
 Where the offense is committed on the 
 
 boundary of two counties, 366. 
 
 3. Jurisdiction op State courts, 366- 
 
 868. 
 In case of unlawful arrest out of State, 
 
 366. 
 In the case of Indians, 366. 
 Offenses against the United States, 366, 
 
 367. 
 New York Supreme Court, 367. 
 New Y^ork Court of Oyer and Terminer, 
 
 367. 
 New York Court of Sessions, 367, 368. 
 Supreme Court of Louisiana, 368. 
 
 4. Jurisdiction op United States 
 
 COURTS, 868. 
 In relation to offenses in general, 368. 
 In cases of Tiolation of State law, 368. 
 
 JURY. 
 
 Eight to trial by. 368, 369. 
 
 Prisoner cannot waive, 369. 
 
 Who may serve on, 869. 
 
 Persons who are incompetent to serve as 
 
 jurors, 369, 370. 
 Exemption from service on, 370. 
 Struck jury, 370. 
 Jury de medietate liuQUce, 370. 
 How summoned. 870. 
 Officer's return, 870. 
 Objection to venire, 370, 371. 
 Drawing j ury, 871. 
 Summonirg talesmen, 371. 
 
 See Grand Jury. For challenges 
 
 and other matters relating to jurors, 
 
 see Trial. 
 
 KIDNAPPING. 
 
 Nature of offense, 371. 
 What constitutes, 371. 
 Indictment, 871. 
 Evidence, 371, 372. 
 
 LARCENY". 
 1. The tIking, 372-^80. 
 JMust be against will of owner, 373. 
 Must have been a removal, 372. 
 Slight removal sufficient, 872, 373. 
 Delivery of property by owner, 373.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXV 
 
 LA-HCET^Y— continued. 
 
 Where the owner parts with the posses 
 
 sion, but not with the title, 373-375. 
 Taking by servant, 375. 
 Taking by clerk, 375. 
 Consent of wife of owner, 375. 
 In committing trespass, 375, 376. 
 Is included in robbery, 376. 
 When taking deemed larceny and not 
 
 robbery, 376. 
 When attempt to steal from person 
 
 complete, 376. 
 Suing for fictitious demand, 376, 377. 
 Acquiring jDOSsession through mistake, 
 
 377. 
 Obtaining property by trick, 377. 
 Obtaining goods by false pretenses, 
 
 377, 378. 
 Obtaining property by borrowing or 
 
 hiring, 378. 
 Fraudulent taking of goods by owner, 
 
 378. 
 When finder of property is guilty of 
 
 larceny, 378, 379, 380. 
 Taking from house or building, 380. 
 3. The intent, 380-383. 
 
 Felonious intent essential. 380, 381. 
 Must be intent to deprive owner of 
 
 property, 381. 
 Intent to destroy propertv not sufficient, 
 
 381. 
 Intent to deprive owner of property 
 
 temporarily, 381. 
 Intent to charge another, 381, 383. 
 Need not be intent to convert prop- 
 erty, 383. 
 Time of forming intent, 383. 
 Where owner is unknown, 383. 
 
 3. Subjects op larceny, 383-384. 
 Must be of some value, 383. 
 Bonds and notes, 383. 
 
 Bank bills, 383, 383. 
 Receipt, 383. 
 Account books, 383. 
 Mail matter, 383. 
 Mortgaged property, 383. 
 Domestic animals, 383, 384. 
 Animals of a wild nature, 384. 
 Property unlawfully obtained, 384. 
 Things which savor of the realty, 384. 
 
 4. Warrant, 384. 
 For arrest, 384. 
 
 Of commitment, 384. 
 
 5. Place of indictment, 385, 386. 
 Where property is stolen abroad, 385. 
 Where property is stolen in anotlier 
 
 State, 385. 
 AVhere goods stolen in one county are 
 
 carried into another county, 385, 386. 
 For offenses against United States, 386. 
 
 6. Indictment, 386-398. 
 
 Otiense only punishable by process of 
 
 law, 380. 
 Will lie against deaf and dumb person, 
 
 386. 
 
 LA.nC'E.'NY— continued. 
 
 Cannot be maintained against feme 
 
 covert, 386. 
 When acquittal not a bar, 386. 
 Statement of venue, 386. 
 Joinder of defendants, 886, 387. 
 Averment of guilty knowledge and in- 
 tent, 387. 
 General rule as to description of prop- 
 erty, 387, 388. 
 Description of promissory notes, 388. 
 Averment of the stealing of money, 389. 
 Description of bank bills, 389, 390. 
 Describing bank bills as promissory 
 
 notes, 390. 
 Need not name bank, 390, 391. 
 Insufficient description of bank bills,391. 
 Description of coin, 391, 393. 
 Description of building, 393. 
 Ownership of property must be averred, 
 
 393. 
 Owner of stolen goods must be named, 
 
 393. 
 Ownership of mail matter, how averred, 
 
 393, 393. 
 Describing articles furnished by parent 
 
 to child, 393. 
 Property of married woman, how de- 
 scribed, 393. 
 In case of joint ownership, 393. 
 In case of a general and special owner- 
 ship, 393, 394. 
 Averment of possession, 394. 
 Averment of value, 394, 395. 
 Averment of place of offense, 395, 396. 
 Charging attempt to commit offense, 396. 
 Charging second offense, 396, 397. 
 Charging offense in different ways, 397. 
 Averment of the stealing of articles be- 
 longing to different pei'sons, 397. 
 Charging distinct offenses, 397, 398. 
 Material and immaterial averments, 398. 
 Conclusion, 398. 
 
 7. Evidence, 398-413. 
 
 (rt) Proof of taking, 398, 399. 
 Taking must be shown, 398. 
 To convict of stealing letters there 
 
 must be proof of a taking from the 
 
 mail, 398. 
 Proof of substance of charge sufficient, 
 
 398, 399. 
 Uncorroborated testimony of prosecu- 
 tor, 399. 
 W^hen prosecution compelled to elect, 
 
 399. 
 Question for jury, 399. 
 (b) Evidence as to property talen, 399, 400. 
 Proof of stealing more than charged, 
 
 399. 
 Proof as to one of several articles 
 
 stolen, 399. 
 Slight variance disregarded, 399, 400. 
 When description must be proved as 
 
 laid, 400.
 
 XXVI 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 LARCENY— CO?! tm iied. 
 
 (c) Proof of place of offense, 400, 401. 
 
 Exact proof not required, 400, 401. 
 {(f) Proof of ownership of jiroperty, 401- 
 403. 
 
 How made, 401. 
 
 Proof of special ownership sufBcient, 
 401, 402. 
 
 Property of married woman must be 
 proved as laid, 402. 
 
 Proof ol stealing property of corpora- 
 tion, 402. 
 
 In case of joint ownership, 402. 
 
 Proof of name of owner. 402, 403. 
 (e) Proof of value of property, 403, 404. 
 
 Genuineness of bank notes must be 
 shown, 403. 
 
 Genuineness of bank bills, how 
 proved, 403. 
 
 Presumption as to genuineness of 
 b;ink bills, 403. 
 
 Proof of contents of bank bills. 403, 
 404. 
 
 Value ofgoods stolen, how proved,404. 
 
 Value inferred, 404. 
 {f) Presumptite evidence, 404-410. 
 
 From handwriting, 404. 
 
 From footprints, 404. 
 
 From possession by defendant of 
 other property, 404. 
 
 Embarrassed circumstances of the de- 
 fendant, 404, 405. 
 
 Acts of defendant, 405. 
 
 Defendant pointing out stolen prop- 
 erty, 405. 
 
 Taking by defendant of other goods, 
 405, 4fi6. 
 
 Commission of distinct larceny, 406. 
 
 Flight and return of defendant, 406. 
 
 Possession of stolen property, 406. 
 
 Possession of property must have been 
 recent, 400, 407. 
 
 Possession of stolen property, how re- 
 garded in the different States, 407, 
 408, 409. 
 
 Pact of possession of stolen property 
 to go to jury, 409. 
 
 Possession of stolen property may be 
 explained. 409. 
 
 Possession of stolen property obtained 
 from carrier, 409. 
 
 Presumption of discharge from former 
 conviction, 410. 
 
 Effect of circumstantial evidence, 410. 
 (g) Admissions, declarations and confes- 
 sions, 410-412. 
 
 Not to be excluded because owner 
 not a witness, 410. 
 
 When not sufficient, 410. 
 
 Silence of defendant, 410. 
 
 Offer of defendant to pay for prop- 
 erty, 410. 
 
 Confession, 410. 
 
 Declarations of owner of property, 
 410, 411. 
 
 LARCENY — con tin ued. 
 
 Declarations of defendant in his own 
 
 behalf, 411,413. 
 Admission by district attorney, 412. 
 Wife of defendant as witness. 412. 
 (A) Ouilty hnoidedge and intent, 412, 413. 
 must be proved, 412. 
 Possession of other stolen property, 
 
 412. 
 Mental condition of defendant, 412. 
 Minority of defendant, 413. 
 Proof of mistake by defendant, 413. 
 Right of defendant to explain intent, 
 
 413. 
 To be determined by jury, 413. 
 (j) Former conviction, 413. 
 To be alleged and proved, 413. 
 Waiver of objection, 413. 
 
 8. Charge of court, 413, 414. 
 Charging as to value, 413, 414. 
 
 9. Verdict, 414, 415. 
 
 Where the stealing of several articles is 
 
 charged, 414. 
 When finding of value is necessary, 414. 
 Finding value of part of articles stolen, 
 
 414. 
 Finding collective value, 414, 415. 
 Where another offense is charged, 415. 
 In case of charge against two, 415. 
 
 10. Sentence, 415, 416. 
 
 Must be consistent with verdict, 415. 
 For part of offense found, 415. 
 Defendant disfranchised, 415, 416. 
 
 See Receiving stolen property. 
 
 LASCIVIOUSNESS. 
 
 1. What constitutes, 416, 417. 
 Wanton behavior, 416. 
 Indecent exposure, 416. 
 Obscene language, 416. 
 Keeping house of ill-fame, 416. 
 Renting house for prostitution, 416. 
 Lascivious cohabitation, 416, 417. 
 
 2. Indictment, 417. 418. 
 When it will lie, 417. 
 Joinder of parties, 417. 
 Name of defendant, 417. 
 Charging lascivious behavior, 417. 
 Averment of indecent exposure, 417, 418. 
 Description of common night-walker, 
 
 418. 
 Charge of publication or sale of indecent 
 
 prints, 418. 
 Charge of keeping house of ill-fame, 418. 
 Charge of unlawful cohabitation, 418. 
 
 3. Evidence, 418-420. 
 Complainant as a witness, 418. 
 Intent of defendant material, 418, 419. 
 Proof of open lewdness, 419. 
 
 Acts of illicit intercourse, 419. 
 
 Proof of renting house for purposes of 
 
 prostitution, 419. 
 Proof of evil reputation of house, 419. 
 Proof of keeping house of ill-fame, 419, 
 
 420.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXVll 
 
 LASC\Y10\J SN'ESS—contimted. 
 
 Proof of UDlawful cohabitation, 420. 
 Proof of marria<i;e, 420. 
 Admissions and declarations, 420. 
 
 See Adtxltery; Bigamy; Incest; 
 Nuisance ; Obscene publica- 
 tions. 
 
 LETTER. 
 
 Unlawful to open, 420, 421. 
 
 Indictment, 421. 
 
 When defendant entitled to acquittal, 421. 
 
 See THREATENJNCi TO ACCUSE OF 
 CRIME. 
 
 LIBEL. 
 
 1. Meaning and nature, 421, 422. 
 What deemed, 421. 
 
 Need not be ill-will, 421. 
 What is not, 421, 422. 
 
 2. Indictment, 422, 423. 
 
 Must show that the publication is a libel, 
 
 422. 
 What it ought to contain, 422. 
 Office of an innuendo, 422. 
 AveiTQent of publication, 422. 
 Libelous matter must be set out, 422, 423. 
 
 3. Evidence, 423-425. 
 
 Descriptive averment must be proved, 
 423. 
 
 Proof of publication, 423. 
 
 When publication by defendant will be 
 presumed, 423. 
 
 Language of publication may be ex- 
 plained, 423. 
 
 Admissions, 423, 424. 
 
 Malice presumed, 424. 
 
 Proof of other publication, 424. 
 
 Proof in justification or mitigation, 424. 
 
 Truth of publication mav be shown, 424, 
 425. 
 
 Proof of character, 425. 
 
 Waiver by defendant, 425. 
 
 4. Verdict, 425. 
 What to contain, 425. 
 
 Must be consistent with charge, 425. 
 
 5. Writ of error, 425. 
 
 For exclusion of evidence, 425. 
 Record, 425. 
 
 LICENSE. 
 
 Necessity of, 425. 
 
 To partnership, 425. 
 
 Unlawful granting of, 425, 42G. 
 
 Indictment, 42(J. 
 
 Evidence, 42G. 
 
 See Spirituous liquors, sale of. 
 
 LOTTERY. 
 
 1. What constitutes, 426-128. 
 What deemed, 426. 427. 
 Lottery tickets, 427. 
 Advertising, when indictable, 427. 
 Prohibitory statutes, 437, 428. 
 
 2. Indictment, 428. 
 Descriptive averments, 428. 
 
 MAGISTRATE. 
 
 Proceedings before, deemed continuous, 
 429. 
 
 MALICIOUS ARREST. 
 
 See False imprisonment. 
 MALICIOUS MISCHIEF. 
 
 1. What constitutes, 429, 430. 
 What meant by, 429. 
 Essence of offense, 429. 
 
 At common laAV, 429. 
 Injury ol animals, 429, 430. 
 Destruction of property, 430. 
 
 2. Indictment, 430-432. 
 Averment of malice, 430. 
 
 Need not charge that oHense was with 
 
 force and arms, 430, 431. 
 Description of property, 431. 
 Averment of ownership, 431. 
 Allegation of value, 431. 
 Description of injury, 431, 432. 
 
 3. Evidence, 432-434. 
 Proof of ownership, 432. 
 
 Proof of another offense, 432, 433. 
 Proof of malice, 433. 
 Presumption, 433. 
 Declarations of defendant. 433. 
 Evidence in justification, 433, 434. 
 
 4. Verdict, 434. 
 
 Must find malice, 434. 
 
 See Malicious trespass. 
 
 MALICIOUS PROSECUTION. 
 
 When indictable, 434. 
 
 MALICIOUS TRESPASS. 
 
 1. What is, or is not deemed, 434, 435. 
 Destruction of property, 434. 
 Killing dog, 434. 
 
 Acts not regarded as criminal, 434, 435. 
 
 2. Complaint, 435. 
 
 What it ought to contain, 435. 
 8. Indictment, 435. 
 
 Averment of injury, 435. 
 
 Description of property, 435. 
 4. Evidence, 435. 
 
 Proof of ownership of property, 435. 
 
 Proof of malicious intent, 435. 
 
 See Malicious mischief ; Trespass. 
 
 MANDAMUS. 
 
 What deemed sufficient ground for, 435. 
 
 MANSLAUGHTER. 
 
 See Homicide. 
 
 M.WHEM. 
 
 1. What constitutes, 436. 
 At common law, 436. 
 
 In New York, Nortli Carolina, Alabama 
 and Arkansas, 436. 
 
 2. Indictment, 436. 
 Necessary averments, 436. 
 Description of injury, 436. 
 
 3. Evidence, 436, 437. 
 
 Malice need not be proved, 436.
 
 XXVI 11 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 MXYUE'Sl—cmt limed. 
 
 Restoration of nieuibcr not a defense, 
 
 436. 437. 
 Proof in justilication, 437. 
 4. Verdict, 437. 
 
 May be for simple assault, 437. 
 See Assault and battery. 
 
 MISDEMEANOR. 
 
 1. What constitutes, 437, 438. 
 In general, 437. 
 
 xVt common law, 437. 
 
 Acts which are deemed, 437, 438. 
 
 Attempt to commit, 438. 
 
 AVhat is not a misdemeanor, 438. 
 
 Compounding, 438. 
 
 Degrees of guilt, 438. 
 
 2. Indictment, 438, 439. 
 When it will lie, 438. 
 Need not be precise, 438. 
 Name of county, 438. 
 Description of offense, 438. 
 Joinder of offenses, 438, 439. 
 
 May be good, although defectire as to 
 
 a felony charged, 439. 
 Effect of overruling demurrer to, 439. 
 
 3. Trial, 439. 
 
 Absence of defendant, 439. 
 
 4. Evidence, 439. 440. 
 Weight and sutificiency of, 439. 
 Good character of defendant, 440. 
 Proof of felony, 440. 
 
 •5. Verdict, 440. 
 
 May be given in the absence of defend- 
 ant, 440. 
 
 May be for attempt, 440. 
 6. Judgment, 440. 
 
 Upon conviction of felony, 440. 
 
 Under general verdict of guilty, 440, 
 
 Arrest of, 440. 
 
 MURDER. 
 
 See Homicide. 
 
 NEW TRIAL. 
 
 1. Jurisdiction of court, and when ex- 
 
 ercised, 440-442. 
 United States courts, 440. 
 State courts, 440, 441. 
 Motion for, upon what based, 441. 
 Duty of court, 441. 
 Discretionary power of court, 441. 
 In case of vacancy in court, 441, 442. 
 In case of acquittal, 442. 
 Where application should be made, 442. 
 When defendant must be present, 442. 
 Hearing of motion, 442. 
 Affidavits of prisoner, 442. 
 Affidavits of jurors, 442. 
 Waiver of motion, 442. 
 
 2. Grountds for, 442-465. 
 
 (a) On account of indictment, 443, 443. 
 Irregularity in finding, 442, 443. 
 Indictment stolen or missing, 443. 
 
 NEW TRIAJj— continued. 
 
 (&) Irregidarity in summoning or impan- 
 eling jury, 443, 444. 
 
 Objection, how made, 443. 
 
 Failure to return venire, 443. 
 
 Omission to place jurors' names in 
 box. 443. 
 
 Error in drawing jury, 443. 
 
 Setting aside juror improperly, 443. 
 
 Improper withdrawal of juror, 443, 
 444. 
 
 Insufficient number of jurors, 444. 
 {c) Disqualification of jurors, 444-447. 
 
 Disqualification must have been un- 
 known, 444. 
 
 When objection must be made, 444. 
 
 Insanity of juror, 445. 
 
 Bias or prejudice, 445, 446. 
 
 Opinion which is not fixed will not 
 disqualify, 446. 
 
 Opinion founded on rumor, 446. 
 
 Examination of juror on oath, 446. 
 
 Denial by juror of previous bias, 446, 
 447. 
 
 (d) Improper admission or exclusion of 
 evidence, 447-449. 
 
 Witness not sworn, 447. 
 
 Withdrawal of witness, 447. 
 
 Irrelevant evidence, 447. 
 
 Admission of illegal evidence, 447. 
 
 Illegal evidence presumed injurious, 
 447. 
 
 Presumption of injurv may be re- 
 butted, 447, 448. 
 
 Misdirection of evidence, 448. 
 
 Waiver by failing to object to evi- 
 dence, 448. 
 
 Inability to present evidence, 448. 
 
 Withholding evidence from jiry,448. 
 
 Jury viewing premises in absence of 
 prisoner, 448. 
 
 Questionable credibility of witness, 
 
 448, 449. 
 Improper argument, 449. 
 Evidence must be set out, 449. 
 
 (e) Erroneous p>roceeding or instruction, 
 
 449, 450. 
 
 Must have caused injury, 449. 
 
 Erroneous instruction must be ex- 
 cepted to, 449. 
 
 Error in admitting or excluding ju- 
 rors, 449. 
 
 Uncalled for remark by judge, 449. 
 
 Where the jury may have been mis- 
 led, 449, 450. 
 
 Judge intimating his opinion of the 
 evidence, 450. 
 
 Appeal to prejudices of jury, 450. 
 
 Judge neglecting or refusing to 
 charge, 450. 
 
 Charging a second time, 450. 
 
 Court neglecting to interrogate pris- 
 oner, 450. 
 (/") Tampering with jury, 450-452. 
 
 By prosecutor before trial, 450.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXIX 
 
 NEW TmA.L—co?itinued. 
 
 By counsel for prosecution, 450. 
 
 By witness for prosecution, 450. 
 
 By stranger, 451. 
 
 By officer, 451, 453. 
 
 Person not sworn taking charge of 
 
 jury, 453. 
 Judge communicating with juiy after 
 
 they have retired, 453. 
 (g) Misconduct of jury, 453-456. 
 Will not be presumed, 453. 
 Jurors taking notes, 453, 453. 
 Juror sleeping, 453. 
 Sejiaration without improjier motive, 
 
 453, 454. 
 Separation of jury presumed injuri- 
 ous, 454. 
 Unexplained separation of jury fatal 
 
 to verdict, 454, 455. 
 Separation of jury by consent, 455. 
 Jury taking refreshments, 455. 
 When drinking of spirituous liquor 
 
 by jury is excusable, 455, 456. 
 When drinking of liquor by jury is 
 
 fatal to verdict, 456. 
 Proof of misconduct of jury, 456. 
 {li) Surprise, 456-458. 
 As to disqualification of juror,456,457. 
 That names of witnesses were not on 
 
 indictment, 457. 
 Artifice or management, 457. 
 Omission or mistake, 457. 
 Neglect to obtain witness, 457. 
 Absence of witness, 457. 
 Intoxication of witness, 458. 
 Witness leaving court, 458. 
 Perjury of witness, 458. 
 Incapacity of interpreter, 458. 
 Intoxication of defendant, 458. 
 Unexpected evidence, 458. 
 Improper admission by counsel, 458. 
 (i) Newly discovered evidence, 458-460. 
 When ground for relief, 458, 459. 
 Must have been unknown and no 
 
 ■want of diligence, 459. 
 Must be material, 459. 
 Must not be cumulative, 459, 460. 
 (j) Irregularities in the care or conduct of 
 
 the jury, 'iGO,AQl. 
 Jury not under care of officer, 460. 
 Change of officer, 460. 
 Papers handed to jury by officer, 460. 
 Jury taking out documents, 460. 
 Examination of statutes, 460. 
 Reading newspapers, 460. 
 Receiving additional evidence, 460, 
 
 461. 
 Juror communicating information to 
 
 his fellows, 461. 
 (A-) Improper rendering of verdict,4:CAAQ2. 
 Jury resorting to calculation, 461. 
 Disclosing verdict, 461. 
 Absence of prisoner, 461, 
 Jury not polled, 461, 463. 
 Jury not acquiescing in verdict, 463. 
 
 NEW TRIAL— continued. 
 
 (I) Wrong^ verdict, 463-465. 
 
 Insufficient for the rendering of judg- 
 ment, 463. 
 Against law or evidence, 463, 463. 
 Withholding from prisoner benefit of 
 
 doubt, 403. 
 Verdict variant from Charge, 463,464. 
 Where no injustice has been done, 464. 
 Presumption in favor of verdict, 464. 
 Relief when granted, 464. 
 Review of decision, 464, 465. 
 3, Effect of setting aside verdict, 465. 
 Prisoner to be tried again, 465. 
 Subject of rehearing, 465. 
 
 See Appeal ; Bill of exceptions ; 
 Certiorari ; Writ of error. 
 
 NOLLE PROSEQUL 
 
 In the United States courts, 465. 
 
 In the State courts, 465, 466. 
 
 To some of several counts, 466, 467. 
 
 Is not a bar to further prosecution, 467. 
 
 Effect on bond, 467, 
 
 Withdrawal, 467. 
 
 NUISANCE. 
 
 1. Nature and requisites, 467, 468, 
 Must be an annoyance to the public, 
 
 467, 468. 
 Nature of acts to be regarded, 468. 
 Must be obnoxious in fact, 468. 
 
 2. Acts endangering life, 468, 469. 
 Keeping explosives, 468. 
 
 Spring guns, 468, 469. 
 Improper driving, 469. 
 
 3. Acts detrimental to health, 469,470. 
 Ofifensive trade, 469. 
 
 Corrupting water, 469. 
 Poisoning air with sta'gnant water, 469, 
 470. 
 
 4. Obstructing highway, 470-473. 
 Highway, how created, 470. 
 What deemed a highway, 470. 
 Right of way, 470,471. 
 
 Acts rendering party liable, 471. 
 Partial encroachment, 471. 
 Obstructing sidewalk, 471. 
 Obstructing passage-way, 471, 473, 
 Encroachment by railroad, 473. 
 Encroachment on public square, 472, 
 Cattle in street, 473, 
 Obstructing railroad, 472, 473. 
 
 5. Neglect to repair highway or 
 
 bridge, 473, 474. 
 May be punished criminally, 473. 
 Liability of turnpike company, 473, 
 Neglect of town to repair road, 473. 
 Neglect to repair streets, 473. 
 Duty to repair bridge, 473, 474. 
 Neglecting to keep bridge lighted, 474. 
 
 6. Obstructing river, 474. 
 Indictable at common law, 474, 
 Erection of dam, 474. 
 Where indictable, 474.
 
 XXX 
 
 TABLE OF TITLES ATSD SUBJECTS. 
 
 'NJJISA'NCE— continued. 
 
 7. Disorderly house, 474, 475. 
 What deemed, 474, 475. 
 Regarded as a nuisance, 475. 
 Liability of keeper, 475. 
 Liability of landlord, 475. 
 
 8. Gaming house, 475. 
 Indictable at common law, 475. 
 
 9. Bowling alley, 475, 476. 
 Deemed a nuisance, 475, 476. 
 
 10. Trial, 476. 
 
 Right to jury trial, 476. 
 
 11. l^rDICTMENT, 476-481. 
 
 Right to, not affected by penalty, 476. 
 Who not liable to, 476. 
 Liability of attorney, 476, 
 Husband and wife may be jointly in 
 
 dieted, 476. 
 Landlord and tenant, 476. 
 Corporation, 476, 477. 
 Averment of time and place, 477. 
 Description of highway, 477, 478. 
 Description of building, 478. 
 Allegation as to ownership of property, 
 
 478. 
 Statement of facts constituting offense, 
 
 478,479. 
 Insufficient averment, 479. 
 Duplicity, 479, 480. 
 Averment as to defendant's duty and 
 
 liability, 480. 
 Averment as to guilty intent, 480,481. 
 Conclusion, 481. 
 
 12. Evidence, 481-486. 
 Proof of place, 481. 
 View of premises, 481. 
 
 Variance as to ownership of property, 
 481. 
 
 Evidence aS to person committing in- 
 jury, 481, 482. 
 
 Proof of acts constituting offense, 482. 
 
 Evidence must tend to support charge, 
 482, 483. 
 
 Presumptions, 483, 484. 
 
 Proof of guilty intent, 484. 
 
 Admissions and declarations, 485. 
 
 Weight and sufficiency of proof, 485,486. 
 
 13. Verdict, 486. 
 
 In case of several defendants, 486. 
 
 14. Judgment, 486. 
 
 For obstruction of highway, 486. 
 Must command defendant to abate nui- 
 sance, 486. 
 For removal of nuisance, 486. 
 
 15. Abatement op nuisance, 486. 
 By private person. 486. 
 
 By mortgagor, 486. 
 
 See Breach of the peace; Las- 
 civiousness. 
 
 OBSCENE PUBLICATIONS. 
 Indictment, 487. 
 
 See Lasciviousness ; Libel. 
 
 OBSTRUCTING HIGHWAY. 
 
 See Nuisance. 
 
 OFFICER. 
 
 1. Authority and duty, 487-489. 
 
 When magistrate protected, 487. 
 
 Who deemed an officer de facto, 487. 
 
 How far acts of officer de facts valid, 487. 
 
 Duties of commissioners of excise, 487, 
 488. 
 
 Right to make arrest in default of prop- 
 erty, 488. 
 
 Right of justice of the peace to com- 
 mand assistance, 488. 
 
 Duty to arrest deserters, 488. 
 
 May enter house without warrant, 488. 
 
 Right to search house, 488. 
 
 May break open door of house, 488. 
 
 Duty of officer to show his precept, 488, 
 489. 
 
 When justified in taking life, 489. 
 
 May take stolen propertv into his cus- 
 tody, 489. 
 
 Magistrate may direct the delivery of 
 property, 489. 
 
 Has custody of prisoner, 489. 
 
 Duty to return warrant, 489. 
 
 2. Liability, 489. 
 Neglect of duty, 489. 
 Fraudulent conversion, 489. 
 Overdrawing account, 489. 
 Buying order, 489. 
 
 3. Resisting officer, 489, 490. 
 What constitutes, 489,490. 
 Hindering person deputed to serve 
 
 warrant, 490. 
 Resistance by tax-payer, 490. 
 Resisting seizure of property, 490. 
 Duty of soldiers to obey orders, 490. 
 
 4. Indictment, 490-492. 
 
 For misconduct in office, 490, 491. 
 For taking unlawful fee, 491. 
 Failure to execute warrant, 491. 
 Making false return, 491 . 
 Falsely personating officer, 491. 
 Resisting officer, 491,492. 
 Information for removal of officer, 492. 
 
 5. Evidence, 492, 493. 
 Proof of authority, 492. 
 
 Proof of intent to defraud, 492, 493. 
 Process admissible although not re- 
 turned, 493. 
 Officer not required to be a witness, 493. 
 See Arrest; Embezzlement. 
 
 OUTLAWRY. 
 
 Prosecution to, 493. 
 Process of, 493. 
 
 PARDON. 
 
 Power of executive to grant, 493. 
 Remission of part of fine, 493. 
 May be conditional, 493, 494. 
 By repeal of statute, 494. 
 Implied promise of, 494. 
 How proved, 494.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXXI 
 
 PAED ON —con tinued. 
 
 How taken advantage of, 494. 
 
 Averment of, 494. 
 
 General effect, 494. 
 
 Does not affect offense not mentioned 
 
 in it, 495. 
 Restoration of competency to testify, 
 
 495. 
 When person pardoned not a compe- 
 tent witness, 495. 
 Does not remit interest in penalty, 495. 
 Effect on costs, 495. 
 PEACE, BREACH OF. 
 
 See Affray ; Breach of the peace ; 
 Riot. 
 PEDDLERS. 
 
 Meaning of, 495, 496. 
 Constitutionality of statute respecting,496. 
 Indictment against, 496. 
 Burden of proof, 496. 
 PERJURY AND SUBORNATION OF PER- 
 JURY. 
 1. Perjury, 496-513. 
 
 (a) Wfceii and how committed, 496-501. 
 Meaning of perjury, 496. 
 By swearing falsely under general 
 
 oath, 496. 
 Swearing to fact without any knowl- 
 edge of it, 497. 
 Swearing contrary to belief, 497. 
 Evidence deemed material, 497. 
 False statement need not tend direct- 
 ly to prove the issue, 497, 498. 
 Where the false testimony was inad- 
 missible, 498. 
 Where the witness was improperly 
 
 sworn, 498. 
 Where case failed from defect of 
 
 proof, 498. 
 Immaterial statements, 498. 
 Mode of statement not important, 498. 
 Need not have caused injury, 498, 499. 
 False oath must have been taken will- 
 fully, 499. 
 Subjects of offense, 499. 
 In naturalization proceeding, 499. 
 In proceedings before grand jury, 500. 
 By juror when examined as to his 
 
 competency, 500. 
 In affidavit required by statute, 500. 
 Tribunal administering oath must 
 
 have had jurisdiction, 500. 
 Oath administered by unauthorized 
 
 person, 500. 
 Extrajudicial oath, 500, 501. 
 {b) indictment, 501-509. 
 General requisites, 501. 
 Must show t iiat offense was in judicial 
 
 proceeding, 501. 
 Must state where the oath was admin- 
 istered, 501. 
 Must show authority to administer 
 
 oath, 501, 502, 503. 
 Must show nature of proceeding.s, 503. 
 Averment of time and place, 503, 504. 
 
 PERJURY, &c.—continuel . 
 
 Charging administration of oath, 504. 
 
 Form of oath need not be averred, 
 504, 505. 
 
 Averment of substance of oath suf- 
 ficient, 505. 
 
 Averment of guilty knowledge and 
 intent, 505. 
 
 Averment of falsity of testimony, 505, 
 506. 
 
 Specifying in what the offense con- 
 sists, 506, 507. 
 
 Must charge materiality of testimony, 
 507. 508, 509. 
 
 Conclusion, 509. 
 
 Form, 509. 
 (c) Eeidence, 509-513. 
 
 Authority to administer oath, 509. 
 
 Proof that defendant was sworn, 509. 
 
 Evidence as to nature of oath, 509,510. 
 
 Proof of time and place, 510. 
 
 Evidence as to nature of proceedings, 
 510. 
 
 Proof as to matter sworn to, 511. 
 
 Testimony required to convict, 511. 
 
 Written evidence, 511, 513. 
 
 Party to suit may be a witness, 513. 
 
 Wife as witness, 513. 
 
 Presumptive evidence, 512. 
 
 Proof of guilty knowledge and intent, 
 513, 513. 
 
 Declarations of defendant, 513. 
 
 Proof of defendant's good character, 
 513. 
 
 Offer of prosecution to settle, 513. 
 
 Burden of explanation on defendant, 
 513. 
 {d) Verdict, 513. 
 
 Variant from charge, 513. 
 3. Subornation op perjury, 513, 514. 
 {a) Requidtes, 513, 514. 
 
 Perjury must have been instigated,513. 
 
 Must have been knowledge that tes- 
 timony would be false, 513, 514. 
 
 May be through party in another 
 State, 514. 
 
 (b) Indictment. 514. 
 
 Must aver that the witness testified, 514. 
 Description of proceeding's, 514. 
 Must charge guilty knowledge, 514. 
 May ciiarge several, 514. 
 For attempt, 514. 
 
 (c) Evidence. 514. 
 
 One witness sufBcient, 514. 
 PILOT. 
 
 Liability of, 515. 
 PIRACY. 
 
 At common law, 515. 
 
 May be committed on ship at anchor, 515. 
 
 Under acts of Congress, 515. 
 
 Privateers, 515, 516. 
 
 Foreign cruisers, 516. 
 
 Robbery on foreign vessel, 516. 
 
 Se'zure of piratical vessel, 516. 
 
 Indictment, 516.
 
 xxxu 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 TlKACY—amtimied. 
 
 Proof character of vessel, 516. 
 Must be proof of guilty knowledge and 
 intent, 516. 
 
 See Slate trade. 
 POISONING. 
 
 See Homicide. 
 POUND BREACH. 
 
 What essential to constitute the oifense, 
 516. 
 PRESENTMENT. 
 At common law, 516. 
 How used in Virginia, 516. 
 Finding and entering of record, 517. 
 PROFANE SWEARING. 
 How regarded, 517. 
 What constitutes, 517. 
 Defendant may be arrested by a justice of 
 
 the peace, 517. 
 Indictment. 517. 
 
 See Blasphemy. 
 PROVISIONS. 
 
 See Unwholesome provisions, sale of. 
 PUBLIC BRIDGE. 
 See Toll. 
 PUBLIC JUSTICE, OBSTRUCTION OF. 
 
 Indictment, 517, 518. 
 RAILROAD TRAIN, UNLAWFULLY 
 STOPPING. 
 By pulling bell rope, 518. 
 RAPE. 
 
 1. What constitutes, 518-520. 
 Meaning of, 518. 
 
 Must be force, 518. 
 
 Must have been resistance, 518, 519. 
 
 Where female is insensible, 519. 
 
 Purpose accomplished by fraud, 519. 
 
 Where female consented, 519. 
 
 Penetration, 519. 
 
 Emission, 519, 520. 
 
 2. Who may commit, 520. 
 Boy under fourteen, 520. 
 
 Ail participating regarded as principals, 
 520. 
 
 3. Against whom offense may be com- 
 
 mitted, 520. 
 With reference to age, 520. 
 
 4. Indictment, 520, 521. 
 Parties, 520. 
 
 Necessary averments, 520. 
 Name of person injured, 520. 
 Averment of sex, 521. 
 Description of female, 521. 
 Charging different offenses, 521. 
 When barred, 521. 
 
 5. Evidence, 521-528. 
 
 Of prosecutrix through interpreter, 521. 
 Proof of force, 521,522. 
 Proof of resistance, 522. 
 Proof of penetration, 522. 
 Evidence of guilty intent, 522, 523. 
 Age of female, 523. 
 Place of transaction, 523. 
 Complaint of female, 523, 524. 
 
 RAPE — continued. 
 
 Reasons for delay in making complaint, 
 524. 
 
 Reason of complaint, 524. 
 
 Admissions and declarations of prose- 
 cutrix, 524. 
 
 Declarations of husband of prosecutrix, 
 524. 
 
 Presumptions, 524, 525. 
 
 Bad character of prosecutrix, 525, 526, 
 527. 
 
 Good character of prosecutrix, 527. 
 
 Character of defendant, 527. 
 
 Identity of defendant, 527. 
 
 Consent of female, 527. 
 
 Weight of evidence, 527, 528. 
 
 6. Verdict, 528. 
 
 Where different grades of offense are 
 
 charged, 528. 
 For lesser offense, 528. 
 For different offense, 528. 
 
 7. Assault with intent to commit rape, 
 
 528-533. 
 (a) What deemed, 528, 529. 
 
 Must have been rape if the purpose 
 had been accomplished, 528. 
 
 Intention to employ force requisite, 
 528. 
 
 Leaving off on account of resistance, 
 528. 
 
 Consent of female, 529. 
 (I)) Who may commit, 529. 
 
 Boy under fourteen, 529. 
 
 Person standing by, 529. 
 (c) Indictment, 529, 530. 
 
 Description of female, 529. 
 
 Must cbarge that force was used, 529. 
 
 Technical averments, 529, 530. 
 
 Unnecessarv averments, 530. 
 {d) Evidence,' 5m-5Z2. 
 
 Prosecutrix need not be a witness,530. 
 
 Proof of violence, 530. 
 
 Proof of resistance, 530. 
 
 Complaint of female, 530, 531. 
 
 Declarations of female, 531. 
 
 Appearance of female, 531. 
 
 Proof of guilty intent, 531. 
 
 Character of prosecutrix, 531. 
 
 Corroboration of charge, 531. 
 
 Weight and sufficiency of proof, 531, 
 532. 
 (e) Verdict, 532. 
 
 Need not negative higher offense, 532. 
 (/) Punishment, 532. 
 
 Under former statutes in relation to 
 
 RECEIVING STOLEN PROPERTY. 
 1. Offense when constituted, 532-534. 
 What constitutes charge of conceal- 
 ment, 532. 
 Construction of statute, 533. 
 What is a receiving, 533. 
 Possession not necessary, 533. 
 Offense may I)e committed by owner of 
 property, 533.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXXlll 
 
 RECEIVING STOLEN PROF.— contimied. 
 
 By agent, 533. 
 
 Where there is a pretense of agency, 
 533, 534. 
 
 Receiver not an accessory, 534. 
 
 The thief not an accomplice of the re- 
 ceiver, 534. 
 
 Must have been a fraudulent intent, 534. 
 
 To obtain a reward, 534. 
 
 Need not have been an expectation of 
 benefit, 534. 
 
 2. Indictment, 534-536. 
 When it will lie, 534. 
 Description of j^roperty, 534, 535. 
 Need not allege value, 535. 
 Averment of ownership of property, 535. 
 Name of thief, 535. 
 
 Unnecessary averment, 535. 
 Charging offense disjunctively, 535. 
 Averment of intent, 535, 536. 
 Compelling prosecution to elect, 536. 
 
 3. Place of trial, 536. 
 
 With reference to the county, 536. 
 Where the goods were stolen in another 
 State, 536. 
 
 4. Evidence, 536-539. 
 Must support charge, 536. 
 Admissions and declarations of defend- 
 ant, 536, 537. 
 
 Declarations of confederate, 537. 
 Admissions and declarations of thief, 
 
 537. 
 Presumption from possession, 537. 
 Proof of other similar acts, 537, 538. 
 Proof that goods were bought for less 
 
 than they were worth, 538. 
 Opportunity to commit offense, 538. 
 Presumption from conduct of accused, 
 
 538. 
 Proof of time of receiving goods, 538, 
 
 539. 
 Testimony of accomplice, 539. 
 Impeachment of witness for prosecution, 
 
 539. 
 
 5. Charge op court, 539. 
 
 Assuming proof of guilty knowledge, 
 539. 
 
 6. Verdict and .judgment, 539. 
 Where there is a separate count for lar- 
 ceny, 539. 
 
 Need not name thief, 539. 
 
 Where the proof differs from the 
 
 charge, 539. 
 Where there is a plea of guilty of part 
 of charge, 539. 
 RECOGNIZANCE. 
 
 See Bail and recognizance. 
 RELIGIOUS MEETING, DISTURBANCE 
 OF. 
 
 1. Character of offense, 540, 
 
 Is indictable at common law, 540. 
 What deemed a disturbance, 540. 
 What not deemed an offense, 540. 
 
 2. Indictment, 540, 541. 
 Averment of place, 540. 
 
 D 
 
 RELIGIOUS M^^TINQ— continued. 
 De.5cription of meeting, 540, 54L 
 Description of disturbance, 541. 
 3. Evidence, 54L 
 
 Proof as to place, 54 L 
 Proof of specific acts, 541. 
 Proof of disturbance by others, 541. 
 Proof of character, 541. 
 RESISTING PROCESS. 
 
 See Officer ; Indictment, sub. 37. 
 REVENUE LAW, VIOLATION OF. 
 Indictment, 541. 
 Burden of proof, 541. 
 REVOLT. 
 
 Restraint of master, 541. 
 Attempt to commit, 541, 542. 
 Proof of ownershijj of vessel, 542. 
 RIOT. 
 
 1. What constitutes, 542, 543. 
 How defined, 543. 
 
 What assemblage requisite, 542. 
 Acts amounting to, 542. 
 By trespassers, 542, 543. 
 Destruction of one's own property, 543. 
 Aiding and encouraging others, 543. 
 Neglecting to suppress, 543. 
 
 2. Indictment, 543, 544. 
 Must state facts, 543. 
 
 Must charge unlawful assemblage, 543. 
 Naming the defendants, 543. 
 Description of propeiiy, 543, 544. 
 Charging violence and terror, 544. 
 Averment of purpose, 544. 
 Indorsement of name of prosecutor, 544. 
 
 3. Trial, 544. 
 
 Defendants not entitled to be tried 
 separately, 544. 
 
 4. Evidence, 544, 545. 
 
 Order and burden of proof, 544. 
 Proof of possession, 544, 545. 
 Sufficiency of proof, 545. 
 
 5. Verdict, 545. 
 
 Where the charge is for riot and as- 
 sault, 545. 
 ROBBERY. 
 
 1. What constitutes, 545-547. 
 At common law, 545. 
 
 Need not have been a putting in fear. 
 
 545. 
 Must have been force or intimidation, 
 
 545, 540. 
 Construction of act of Congress, 546. 
 Threatening to accuse of crime, 546. 
 Removal of property, 546. 
 Property need not be taken from owner, 
 
 546. 
 Must be a felonious intent, 546, 547. 
 All concerned, deemed equally guilty, 
 
 547. 
 
 2. Indictment, 547. 
 Averment of force, 547. 
 
 Must charge a taking from the person, 
 
 547. 
 Averment as to place, 547. 
 Descri})tion of proi)erty taken, 547.
 
 XXXIV 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 ROliBVMY— continued. 
 
 Averment as to ownersbijj of in-operty, 
 547. 
 
 3. Evidence, 547-549. 
 Proof of violence, 547. 
 Proof of putting in fear, 547. 
 Proof of concert of action, 548. 
 Proof as to place, 548. 
 
 Proof as to property taken, 548. 
 Declarations of party injured, 548. 
 Suspicious conduct of accused, 548. 
 Attempt of prisoner to escape, 548. 
 Situation of party injured, 548, 549. 
 Testimony required to, prove coiyus de- 
 
 lidi, 549. 
 Determination of felonious intent, 549. 
 
 4. Verdict, 549. 
 
 Cannot find defendant guilty as an ac- 
 cessory, 549. 
 May be for assault and battery, 549. 
 See Larceny. 
 SABBATH. 
 
 See Sunday. 
 SEARCH WARRANT. 
 Can only be issued upon oath or affirm- 
 
 atiou, 549. 
 Must conform to statute, 549. 
 Description of place to be searched, 549, 
 
 550. 
 Right of officer to enter apartments, 550. 
 Force and effect of officer's return, 550. 
 See Officer. 
 SEDUCTION. 
 
 1. Offense, when committed, 550, 551. 
 What meant by, 550. 
 
 Must be promise or deception, 550. 
 Promise may be conditional, 550. 
 Need not be pregnancy, 550. 
 Chastity of female, 550, 551. 
 Intention of defendant, 551. 
 Who may commit the oft'ense, 551. 
 By married man, 551. 
 Custody of female, 551. 
 Statute of limitations, 551. 
 
 2. Indictment, 551, 553. 
 
 Must aver that female was seduced, 551, 
 
 552. 
 Need not allege a valid promise, 552. 
 
 3. Evidence, 552, 553. 
 
 Proof of promise of marriage, 552. 
 
 Corroboration of prosecutrix, 552. 
 
 Proof of repetition of oflFense not ad- 
 mis-siljle, 552. 
 
 Moral character of prosecutrix, 552,553. 
 
 Interrogation of prosecutrix as to pre- 
 vious acts, 553. 
 
 Testimony to impeach prosecutrix, 553. 
 
 Proof of good character of i^rosecutrix, 
 553. 
 See Abduction ; Incest ; Lascivi- 
 
 OUSNESS. 
 
 SELF-DEFENSE. 
 
 See Assault and battery ; Homi- 
 cide. 
 
 SENTENCE. 
 
 Duty of court to pronounce, 553, 554. 
 
 Single judge may pass, 554. 
 
 Delaying sentence, 554. 
 
 Original indictment not necessary, 554. 
 
 When accused must be present, 554, 555. 
 
 When prisoner need not be present. 555. 
 
 Asking prisoner if he has anvthing to sav, 
 555. 
 
 When prisoner need not be interrogated, 
 555, 556. 
 
 Upon overruling demurrer, 556. 
 
 Under pleas of former conviction and ac- 
 quittal, 556. 
 
 In case of escape, 55G. 
 
 Where defendant violates condition of 
 pardon, 556. 
 
 In case of repeal of statute, 556. 
 
 Under joint indictment, 556. 
 
 Under indictment containing several 
 couiits, 556, 557. 
 
 Under indictment charging distinct of- 
 fenses, 557. 
 
 Under two indictments, 557. 
 
 Where there are distinct punishments, 
 557. 
 
 Under verdict finding less than amount 
 charged, 557. 
 
 Under statute punishing common law 
 oft'ense, 557. 
 
 Before expiration of previous sentence, 557. 
 
 For successive terms of imprisonment, 557. 
 
 To additional punishment, 558. 
 
 Designating time of imprisonment, 558. 
 
 Directiug mode and place of imprison- 
 ment, 558. 
 
 Designating time of execution, 558. 
 
 Cannot be upon facts agreed upon, 558, 
 559. 
 
 Must not be conditional, 559. 
 
 Amendment of sentence. 559, 560. 
 
 Presumption in favor of sentence, 560. 
 
 Execution of sentence, 560, 561. 
 
 Effect of sentence on rights of prisoner, 
 561. 
 
 Assignment of error upon, 561. 
 
 Evidence in mitigation of, 561. 
 SHOW. 
 
 See Theatrical performance. 
 SLAVE TRADE. 
 
 1. UJjlawful participation in, 561,562. 
 How the slave trade is regarded, 561. 
 Acts of Congress in relation to, 561, 562. 
 State courts have not jurisdiction, 562. 
 
 2. Seizure and forfeiture of vessel, 
 
 562, 563. 
 When vessel may be seized, 562. 
 When forfeiture of vessel incurred, 562, 
 
 563. 
 Remission of forfeiture, 563. 
 Disposal of negroes, 563. 
 Effect of taking negro to Africa, 563. 
 
 3. Indictment, 563, 564. 
 Against master of vessel, 563. 
 Joinder of offenses, 563.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXXV 
 
 SLAVE TRA'D'E— continued. 
 Averment of intent, 564. 
 4. Evidence, 564, 565. 
 
 Ownership and equipment of vessel, 564. 
 Procurinj^ negroes with intent to ruuke 
 
 them slaves, 564, 565. 
 Burden of proof, 565. 
 See Piracy. 
 SMUGGLING. 
 
 What deemed, 565. 
 
 See Revenue law, violation of. 
 SODOIVIY. 
 
 When committed, 565. 
 Indictment, 565. 
 Testimonv of accomplice, 565. 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 1. Under what circumstances illegal, 
 
 565-568. 
 Constitutionality of statutes, 565, 566. 
 Construction of city charter, 566. 
 What deemed spirituous liquor, 566. 
 Sale of imported liquor, 566. 
 Unlawful granting of license, 566. 
 ■ Protection afforded by license, 566. 
 License only good for a single place, 
 
 566, 567. 
 Validity of license, 567. 
 What constitutes a keeping of liquors for 
 
 sale, 567. 
 Sale of liquor for medicinal purposes,567. 
 What constitutes a sale, 567. 
 Place of sale, 567, 568. 
 Sale to several persons at the same 
 
 time, 568. 
 Sale by clerk or agent, 568. 
 
 2. Complaint, 568, 569. 
 Averment of time, 568. 
 Description of place, 568. 
 
 Charging the offense in the alternative, 
 
 568. 
 Duplicity in, 568, 569. 
 Unnecessary averments, 569. 
 Conclusion, 569. 
 
 3. Indictment, 569-572. 
 
 ' Not barred by previous conviction, 569. 
 Not taken away by action, 569. 
 Joinder of parties, 569. 
 Allegation of time, 569. 
 Charging sale, 570. 
 Description of liquor. 570. 
 Averm(mt of place of sale, 570. 
 Naming person to whom sale was made, 
 
 570,571. 
 Charging distinct sales, 571, 572. 
 
 4. Evidence, 572-577. 
 
 Proof of maintaining building for sale 
 
 of liquor, 572. 
 Offer to sell need not be shown, 572. 
 Giving liquor away, 572. 
 Sale by servant or agent, 572. 
 Sale to agent, 572. 
 Sale to minor, 572. 
 Proof that liquor sold was intoxicating, 
 
 572, 573. 
 Quantity of liquor sold, 573. 
 Person to whom sale was made, 573. 
 
 SPIRITUOUS LIQUORS, &c.— continued. 
 Time of sale, 573. 
 Place of sale, 573, 574. 
 Proof of drinking, 574. 
 Proof of distinct violations of law, 574. 
 Proof that defendant is common seller, 
 
 575. 
 Proof of sale by partners, 575. 
 Sale by married woman, 575. 
 Sale to common drunkard, 575, 576. 
 Proof of second conviction, 576. 
 Burden of proof on defendant, 576. 
 Proof in justification, 576. 
 Irrelevant testimony, 578, 577. 
 
 5. Verdict, 577. 
 
 In case of several acts of sale, 577. 
 Discharge of defendant, 577. • 
 
 6. Seizure and condemnation of li- 
 
 quors, 577, 578. 
 Course of procedure, 577. 
 Subject of inquiry, 577. 
 Proof of possession and destruction of 
 
 liquor, 578. 
 Proof of ownership of liquor, 578. 
 Warehouseman's lien, 578. 
 Officer's return, 578. 
 See License. 
 STATUTES. 
 
 How proved, 578. 
 Unconstitutionality of, 578, 579. 
 When deemed constitutional, 579. 
 When deemed ex -post facto, 579, 580. 
 When not regarded as ex j)ost facto, ~)S0. 
 When doctrine in relation to ex post 
 
 facto law not applicable, 580. 
 Effect of repeal of statute, 580, 581. 
 Revival of statute, 581. 
 Operation of statute of limitations, 581. 
 Statute imposing no penalij% 581. 
 In relation to fieedmen, 581. 
 Creating and regulating courts, 581. 
 City ordinances, 581. 
 Effect of statute imposing penalty, 581, 
 
 582. 
 Legalizing obstruction of highway, 582. 
 General rule of construction, 582. 
 When to be liberally construed, 582. 
 Meaning of Avord offender, 582. 
 When it includes persons not named in 
 
 it, 582. 
 Construction in case of repeal, 582,583. 
 SUBORNATION OF PERJURY. 
 
 See Perjury and subornation of 
 
 I'EUJURY. 
 
 SUMMARY CONVICTION. 
 
 Is regulated by statute, 583. 
 
 When statute to be strictly followed, 583. 
 
 When it will be sustained, 583 
 
 When statute in relation to is void,583. 
 SUNDAY. 
 
 Right to enforce the observance of, 583. 
 
 Construction of statute, 583. 
 
 When labor on, not proiiibited,583, 584. 
 
 Work of necessity, 5M4. 
 
 Complaint, 584. 
 
 Indictment, 584.
 
 XXXVl 
 
 TA.BLE OF TITLES AND SUBJECTS. 
 
 SUNDAY— continued. 
 
 What evidence sufficient, 584. 
 
 Reasonable doubt, 584. 
 
 Is not a day of the term of a court, 584. 
 See Religious meeting. 
 THEATRICAL PERFORMANCE. 
 
 Indictment for unlawful exhibition, 585. 
 THREATENING TO ACCUSE OF CRIME. 
 
 What constitutes, 585. 
 
 What does not amount to, 585. 
 
 Indictment, 585, 586. 
 
 Evidence, 586. 
 See Libel. 
 TOLL. 
 
 Indictment for exacting, 586. 
 TREASON. 
 
 1. What constitutes, 586, 587. 
 Entering the service of the enemy, 586. 
 Persuading another to join the enemv, 
 
 586. 
 Restoring prisoners, 586. 
 Resisting act of Congress, 586. 
 What deemed a levying of war, 587. 
 Who regarded traitors, 587. 
 What not deemed treason, 587. 
 
 2. Indictment, 587. 
 
 Need not be specific as to number en- 
 gaged, 587. 
 Must allege nature of intelligence sent, 
 587. 
 '3. Jury, 587. 
 
 Composition of, 587. 
 4. Evidence, 587, 588. 
 Place of offense, 587. 
 Presimiption from authority of defend- 
 ant, 587. 
 Proof of distinct offense, 587. 
 Admissions and declarations of defend- 
 ant, 587, 588. 
 Defendant as a witness, 588. 
 TRESPASS. 
 
 Has a technical meaning, 588. 
 Invading another's premises, 588. 
 Taking personal property, 588. 
 Destruction of personal projierty, 588. 
 Right of entry, 588. 
 Right to expel intruder, 588, 589. 
 Right of landlord to resume possession, 
 
 589. 
 Forcibly retaking personal property, 589. 
 When an indictment will lie, 589. 
 Averment of act constituting offense, 589. 
 Description of place, 589. 
 Trial, 589. 
 Evidence, 590. 
 
 See Forcible trespass. 
 TRIAL. 
 
 1. Matters preliminary to, 590-593. 
 Right of prisoner to speedy trial, 590. 
 Where offense committed on vessel is to 
 
 be tried, 590. 
 Summoningjury and filing jury lists,590. 
 Serving prisoner with copy of indict- 
 ment and venire, 590. 
 Waiver of right to copy of indictment, 
 590,591. 
 
 TRIAL — continued. 
 
 Employment of counsel by prosecution, 
 
 591. 
 Compelling bill of particulars, 591. 
 Release of prisoner for want of trial, 591. 
 Moving case for trial, 591. 
 Separate trial in discretion of court, 
 
 591. 
 Arraignment of prisoner, 591, 593. 
 Prisoner standing mute, 593. 
 Waiver of arraignment, 593. 
 Plea in abatement, 593. 
 Plea of non-identity 593, 593. 
 Proof of identity, 593. 
 Replication to plea, 593. 
 Pica of guilty, 593. 
 
 Determination of question as to insan- 
 ity of prisoner, 593. 
 Plea of not guilty, 593. 
 Waiver of objection to grand juror, 593. 
 Refusal to plead, 593. 
 Remanding prisoner, 593. 
 3. Impaneling jury, 593, 604. 
 (a) Excusing jurors, 593. 
 
 Authority of court, 593. 
 {h) Of challenges in general, 593-596. 
 In United States courts, 593. 
 Challenge to the array, 593, 594. 
 Order of challenge to the polls, 594. 
 Challenge in case of joint defendants, 
 
 594. 
 Right to interrogate juror, 594. 
 Mode of determining challenge to the 
 
 polls, 594, 595. 
 Trial of challenge by court, 595. 
 Consent that court try challenge not 
 
 revokable, 595. 
 Triers how sworn, 595. 
 Written instructions to triers not 
 
 ])roper, 595. 
 Testimony on trial of challenge, 595. 
 Juror not bound to criminate himself, 
 
 595. 
 Examination of witnesses, 595. 
 Prisoner bound by his challenge, 595. 
 Challenge alter previous challenge 
 
 overruled, 595. 
 Waiver of challenge, 595, 596. 
 When challenge too late, 596. 
 Decision of court. 596. 
 Review of decision, 596. 
 Right of court to set juror aside after 
 he is sworn, 596. 
 (c) Grounds of princi2Ml challenge to the 
 jjolls, 596-600. 
 That a juror is not qualified to serve, 
 
 596, 597. 
 That a juror is of kin to the prisoner, 
 
 597. 
 Conscientious scruples of juror, 597. 
 Competency of juror who is opposed 
 
 to capital punishment, 597, 598. 
 Prejudice of juror against a certain 
 
 class, 598. 
 Opinion of juror as to guilt or inno- 
 cence of prisoner, 598, 599.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXX Vll 
 
 TRIAL — continued. 
 
 Opinion in order to exclude must be 
 absolute, 599, 600. 
 
 Ojjinion which is not relative to the 
 issue, 600. 
 
 Juror member of grand jury, 600. 
 
 Juror ssYorn on previous trial, 600. 
 
 Juror a witness on former trial, 600. 
 (<?) Grounds of challenge to the polls for 
 f'cor. 600-602. 
 
 Unsettle:! opinion, 600, 601. 
 
 Opinion founded on report, 601. 
 
 Opinion of prisoner's character, 601. 
 
 Opinion derived from proceedings in 
 court, 601, 603. 
 
 Statement of juror that he is impar- 
 tial, but has a fixed opinion, 602. 
 (e) Peremptory challenge, 602, 003. 
 
 When to be made, 602. 
 
 Questions upon, 602. 
 
 Effectofperemptoi7challenge,602,603. 
 
 Waiver of peremptory challenge, 603. 
 (/) Completion of jury, 603, 604. 
 
 Number of jurors required in case of 
 felony, 603. 
 
 When less than twelve jurors per- 
 mitted, 003, 604. 
 
 3. Initiatory proceedings in the case, 
 
 604-607. 
 Swearing jury, 604. 
 Form of oath to jury, 604. 
 Reswearing of jury by consent, 604. 
 Recital in the record that the jury were 
 
 sworn, 604, 60o. 
 Amendment of minutes as to swearing 
 
 of grand jury, 605. 
 Presence of accused when necessar3-,605. 
 Presumption as to the presence of the 
 
 accused, 005. 
 Prisoner's right to be present cannot be 
 
 waived, 005. 
 Temporary absence of prisoner not im- 
 proper, 605. 
 Removal of prisoner from court room 
 
 for interrupting counsel, 605, 600. 
 When presence of accused not required, 
 
 606. 
 Presumption as to demand for trial, fiOG. 
 Continuance of cause need not be shown, 
 
 606. 
 Death of prosecutor, 606. 
 Proceedings upon quashing indictment, 
 
 606. 
 Effect of dismissal of sufficient indict- 
 ment, 606. 
 When prosecution compelled to elect,60G. 
 Accused not confined to one of several 
 
 pleas, 606. 
 Retrial after conviction upon ow of 
 
 several counts, 606. 
 Issue on special plea to be tried first, 
 
 606, 607. 
 
 4. Proceedings in the conduct op the 
 
 CASE, 607-624. 
 (a) Introduction of evidence, 007-609. 
 What notice sufficient, 607. 
 
 TRIAL — continued. 
 
 Objection that names of witnesses 
 have not been furnished, 607. 
 
 Requiring counsel to state what they 
 expect to prove, 607. 
 
 Inquiry as to competency of proof, 607. 
 
 When witness must be objected to, 
 607. 
 
 Objection to evidence how made, 607. 
 
 Objection to mode of proof, 607, 608. 
 
 Admitting evidence without objec- 
 tion, 608. 
 
 Answer not responsive to question, 
 608. 
 
 Witness testifying without being- 
 sworn, 608. 
 
 Evidence given in absence of judge, 
 608. 
 
 Admission of hearsay, 608. 
 
 Rule as to proof of part only of trans- 
 action, 608. 
 
 Jury viewing premises, 608. 
 
 Purpose for which premises may be 
 viewed, 608. 
 
 Latitude of proof allowed one of 
 several defendants, 608. 
 
 When testimony should be stricken 
 out, 609. 
 
 Admitting testimony after case is 
 closed, 609. 
 (J) Ruling of court, 609-612. 
 
 As to intercourse with the bench, 609. 
 
 Refusing to hear argument, 609. 
 
 Giving tlie prosecution the benefit of 
 legal doubts, 609. 
 
 Judge expressing an opinion as to the 
 evidence, 609, 610. 
 
 Instructingjury to disregard evidence, 
 610. 
 
 Admitting evidence previouslv ex- 
 cluded, 610. 
 
 Setting aside juror, 610, 611. 
 
 Discharging jury, 611, 612. 
 (c) Deportment of the jury while the case 
 is before them, 612. 
 
 Juror leaving box, 612. 
 
 Juror talking with bystander, 612. 
 
 Separation of jurj', 612. 
 {d) Smmning up of counsel, 612, 613. 
 
 Right to open and close, 612. 
 
 Judge directing as to remarks of 
 counsel, 612, 613. 
 
 Reading of books by counsel, 613. 
 
 Counsel commenting upon conduct of 
 witness, 613. 
 
 Correction by counsel of misstate- 
 ments of adversary, 613. 
 {e) Charge (f judge, 613-624. 
 
 To be given when the case is sub- 
 mitted, 613. 
 
 How to be construed, 613. 
 
 Must embrace whole case. 613, 614. 
 
 To be confined to actual facts, 614. 
 
 Should present the case in all its 
 aspects, 614. 
 
 Omissions of judge, 614.
 
 XXXVlll 
 
 TABLE OF TITLES AND SUBJECTS. 
 
 TRIAL — continued. 
 
 Attention of court must be called to 
 omission, 614. 
 
 Refusing to charge as to reasonable 
 doubt, 614, 6lo. 
 
 Refusal to charge as to eflfect of false 
 testimony, 615. 
 
 Refusal to instruct as requested, G15. 
 
 When request to charge is only in 
 part correct, 615. 
 
 Refusing to charge the same proposi- 
 tion over again, 615. 
 
 Refusing to charge abstract proposi- 
 tion, 615, 616. 
 
 Instruction need not be given as to 
 what is obvious, 616. 
 
 Charging as to probabilities, 616. 
 
 Presenting to jury considerations of 
 public policy, 616. 
 
 Charging as to punishment, 616, 617. 
 
 Referring jury to their personal ex- 
 ])t'rience, 617. 
 
 Calling attention to character of 
 Avound, 617. 
 
 Charging erroneous legal proposition, 
 617. 
 
 "Where charge though erroneous can 
 do no harm, 617. 
 
 Charging as to presumptions, 617. 
 
 Instruction based on insufficient proof, 
 018. 
 
 Judge misleading jury, 618. 
 
 Charging as to reasonable doubt, 610. 
 
 Referring question of law to jury, 611), 
 
 Requiring the jury to receive the law 
 from the court, 619. 
 
 Charging as to the degree of guilt,61'J. 
 
 Judge improperly commenting on tlie 
 evidence, 619, 620. 
 
 Judge assuming the proof of fticts. 
 620. 
 
 Court improperly determining the 
 weight of evidence. 620, 621, 622. 
 
 Charging as to character of evidence, 
 623. 
 
 Judge qualifying his comments on the 
 evidence, 623. 
 
 Calling attention of jury to contra- 
 diction in testimony, 623. 
 
 Charging as to construction of evi- 
 dence, 623. 
 
 Charging as to conclusiveness of 
 proof, 623, 624. 
 
 Instructing jury as to interpretation 
 of charge, 624. 
 
 Charging jury as to their duty, 624. 
 
 Correction of charge, 624. 
 
 Waiver of objection to charge, 624. 
 
 Presumption in favor of charge, 624. 
 
 Time of excepting to charge, 624. 
 5. Proceedings subsequent to submit- 
 ting CASE TO JURY, 624-630. 
 Jury taking out with them, or sending 
 
 for books, 624, 025. 
 Jury taking out with them evidence, 
 
 625, 626. 
 
 TRIAL — continued. 
 
 Jurv procuring a copy of the instruc- 
 tions, 626. 
 
 Officer in jury room. 626. 
 
 Judge communicating with jury pri- 
 vately, 020. 
 
 Jury returning into court for informa- 
 tion, 626, 627. 
 
 Persons talking to jurors, 627. 
 
 Improper separation of jury, 627. 
 
 When consent to separation of jury pre- 
 sumed, 627. 
 
 Right of court to discharge jury, 627, 
 028. 
 
 When discharge of jury equivalent to 
 acquittal, 028. 
 
 Expiration of term of court before ver- 
 dict, 029. 
 
 Prisoner to be present when the verdict 
 is rendered, 629. 
 
 Refusal of court to interrogate jury, 629. 
 
 Polling jury, 629. 
 
 Verdict must be freely rendered, 629, 
 630. 
 
 Reconsideration of verdict, 630. 
 
 Amendment of verdict, 630. 
 
 When too late to change verdict, 630. 
 
 0. Record op conviction, 030, 631. 
 What it ought to contain, 630, 631. 
 
 See Bill op exceptions; Certi- 
 orari ; Contempt ; Continu- 
 ance ; Evidence ; Former ac- 
 quittal or conviction ; In- 
 dictment; Judgment; Juris- 
 diction ; Jury ; New trial ; 
 Nolle prosequi ; Sentence ; 
 Venue, change of ; verdict ; 
 Witness ; Writ of error. 
 UNWHOLESOME PROVISIONS, SALE 
 
 OF. 
 
 1. When seller liable, 631. 
 What constitutes the offense, 631. 
 
 2. Indictment. 031, 032. 
 Averment of sale, 031. 
 
 Averment of guiltv knowledge, 031,032. 
 3 Evidence, 032. 
 
 Proof of sale in market sufficient, 632. 
 
 Proof that servant had possession for 
 sale, 032. 
 
 Proof of sale to wife, 632. 
 
 Testimony of experts, 032. 
 
 Proof of guiltv knowledge, 632. 
 USURY. 
 
 When committed, 633. 
 
 What constitutes distinct offenses, 633. 
 
 Description of contract, 633. 
 
 Averment of place, 033. 
 
 Averment of intent, 033. 
 
 Proof of time of agreement, 033. 
 VAGRANT. 
 
 Who deemed, 033. 
 
 Indictment, 633, 634. 
 
 Record of conviction, 634. 
 
 Inquiry on habeas corpus, 034. 
 VENUE, CHANGE OF. 
 
 Grounds of, ()34.
 
 TABLE OF TITLES AND SUBJECTS. 
 
 XXXIX 
 
 VENUE, CHANGE OF— continued. 
 
 Wheu defeudtmt entitled to, as of right, 
 
 634. 
 In case of several defendants, 634, 635. 
 Bj' court to which indictment is re- 
 moved, 635. 
 Place to which the trial should be 
 
 changed, 635. 
 Order of court and entry of record, 635. 
 Presumptions in relation to, 635. 
 Transcript of record, 635. 
 Verification of clerk's certificate, 036. 
 Presumption from clerk's certificate, 
 
 636. 
 Certiorari, 636. 
 
 Jurisdiction of court must be showu,636. 
 Trial to be had on transcript, 636. 
 Prisoner need not be arraigned, 630. 
 Disposal of indictment, 636. 
 Remedy for denial of motion, 636. 
 
 See Indictment, tit. 3; Jurisdic 
 TION, tit. 2. 
 VERDICT. 
 
 1. Right and duty of juiiy in deter- 
 mining, 636-638. 
 Jury to decide as to credibility of wit- 
 ness, 636, 637. 
 Questions of fact to be determined by 
 
 jury, 637. 
 Jury not to decide upon their private 
 
 knowledge, 637. 
 How far jury judges of the law, 637,638. 
 When court may direct a verdict, 638. 
 Determining verdict by experiment. 638. 
 Jury entertaining doubt, 638. 
 3. Nature and requisites, 638-641. 
 (a) General verdict, 638-641. 
 Must respond to charge, 638. 
 Under indictment charging distinct 
 
 offenses, 638, 639. 
 For part of offense, 639. 
 For offense consisting of diftereut de- 
 grees, 639, 640. 
 Under indictment containing several 
 
 counts, 640. 
 Under indictment against several, 
 
 640, 641. 
 Need not find malice, 641. 
 Must be oral, 641. 
 Sealed verdict, 641. 
 Recommendation of prisoner to mer- 
 cy, 641. 
 (h) Special rer diet, 641. 
 Must be definite, 641. 
 Must ascertain facts, 641. 
 Must find that offense was committed 
 
 in the county, 041. 
 Consequences of being set aside, 641. 
 
 3. How RECORDED, 641. 
 
 Must be in English, 641. 
 
 4. Validity, 641, 042. 
 Must be delivered, 641. 
 
 Must have been arraignment and plea, 
 
 641, 043. 
 Mistaking name of accused, 642. 
 Effect of misconduct of the jury, 648. 
 
 YERBICT— continued. 
 
 Jurors not permitted to impeach ver- 
 dict, 642. 
 Testimony of jurors to sustain verdict, 
 642. 
 5. When evidence, 642. 
 
 Under plea of former acquittal, 642. 
 On trial of principal in second degree, 
 642. 
 See Judgment ; Trial. As to settihcj 
 aside verdict, see New trial. For 
 verdict in the several offenses, see the 
 titles of those offenses. 
 VESSEL. 
 
 Adding to equipment, 642. 
 Destruction, 642. 
 VOTING. 
 
 1. Disfranchisement of citizen, 642, 
 
 643. 
 On account of desertion, 642, 643. 
 By striking name from list of voters, 643. 
 
 2. Illegal voting, 643-645. 
 (a) Offense in general, 643. 
 
 How regarded, 643. 
 
 What constitutes, 643. 
 
 Voting at illegal election, 643. 
 
 Aiding and abetting illegal voting, 
 643. 
 
 Preventing persons from voting, 643. 
 (5) Indictment, 643, 644. 
 
 Must state grounds of defendant's dis- 
 ability, 643. 
 
 Unnecessary averments, 643, 644. 
 
 Form of indictment for double voting, 
 644. 
 (c) Evidence, 644, 645. 
 
 In behalf of prosecution, 644. 
 
 For defense, 644, 645. 
 
 3. Betting at election, 645. 
 What deemed a bet, 645. 
 Wheu not indictable, 645. 
 When prosecution barred, 645. 
 Indictment and evidence, 645. 
 Decision of inspectors of election as to 
 
 bet, 645. 
 See Bribery; Gaming. 
 WARRANT. 
 
 Right and duty of magistrate to issue, 
 
 645, 646. 
 Statement of time of issuing, 646. 
 Need not contain facts disclosed to mag- 
 istrate, 646. 
 Necessary averments, 640. 
 Need not set out the evidence, 646. 
 Must name the party to be arrested, 640. 
 How to be directed, 046. 
 Directing to person not an officer, 646. 
 Substitution of person not an officer, 
 
 646. 
 Command, 646. 
 Must be under seal, 646, 647. 
 To be shown and explained to accused, 
 647. 
 
 See Arrest; Officer; Search 
 warrant. 
 WEAPONS. See Concealed weapons.
 
 xl 
 
 TABLE OF TITLES AIJD SUBJECTS. 
 
 WEIGHTS AND MEASURES. 
 
 Fraud in the use of, 647. 
 WITNESS. 
 
 1. Persons who are competent or in- 
 
 competent TO testify, C47-653. 
 
 In general, 647. 
 
 Yoiin<T child, 647, 648. 
 
 Lunatic, 648. 
 
 Effect of returning to court room in vi 
 olation of order of court, 648. 
 
 Competency not affected by religion- 
 belief, 648. 
 
 Persons interested, 648. 
 
 Prisoner's counsel, 648. 
 
 Prosecutor, 648. 
 
 Informer, 648, 649. 
 
 Accomplice, 649. 
 
 Accomplice not entitled to favor, 649. 
 
 Co-defendant, 649, 650. 
 
 Defendant testifying in his own behalf, 
 650. 
 
 Husband, 650, 651. 
 
 Wife testifying for or against husband. 
 651. 
 
 Wife of accomplice, 651. 
 
 Wife of co-defendant, 651, 652. 
 
 Convicted criminal, 652. 
 
 Member of court, 652. 
 
 Juror and grand jurors, 652. 
 
 Persons incompetent by statute, 652, 653. 
 
 Expert, 653. 
 
 Interpreter, 653. 
 
 2. Procuring attendance, 653. 
 When prisoner's witnesses are to be pro- 
 cured by prosecution, 653. 
 
 Attachment against witness, 653. 
 Keeping witness away, 653. 
 
 3. Introducing, 653, 654. 
 
 Calling witness is in the discretion of 
 
 the court, 653, 654. 
 Administering oath, 654. 
 
 4. Examination, 654-660. 
 (a) In general, 654-657. 
 
 Right of court to control examination 
 
 of witness, 654. 
 Objecting to witness, 654. 
 Leading questions, 654, 655. 
 Witness refreshing his memory, 655. 
 Privileged communications, 655. 
 Answer tending to criminate, 655, 656. 
 Answer tending to disgrace, 656,657. 
 (h) Attacking credibility of icitness, 657- 
 
 659. 
 Value of affirmative testimony, 657. 
 Contradictoiy statements of witness, 
 
 657, 658. 
 Testimony of defendant may be im- 
 peached, 658. 
 Showing that witness is interested, 
 
 658. 
 Party may not contradict his own 
 
 witness, 658. 
 Showing hostility of witness, 658. 
 Showing defect of religious belief, 
 
 658. 
 
 WITNESS— c<>«<m?<e^. 
 
 Showing intoxication of witness, 658. 
 
 Attacking character of witness. 658, 
 659. 
 
 Method of impeaching character of 
 witness, 659. 
 (c) Sustaiimig credibility of witness, 659- 
 660. 
 
 Character of witness must have been 
 first assailed, 659, 660. 
 
 Who may testify as to character of 
 Avitness, 660. 
 
 Negativing imputed hostility of wit- 
 ness, 660. 
 
 Corroborating testimony of witness, 
 660. 
 
 Credibility of witness to be deter- 
 mined by jury, 660. 
 See Evidence ; Trial. 
 
 WRIT OF ERROR. 
 
 1. When it will lie, 661. 
 
 Must have been a final judgment, 061. 
 What deemed a judgment, 661. 
 In case of decision on demurrer, 661. 
 Exception must have been taken, 661. 
 Objection once raised, need not be re- 
 newed, 661. 
 Not taken away by appeal, 661. 
 In behalf of prosecution, 661. 
 
 2. When it will lie, 662. 
 In case of acquittal, 662. 
 
 Where the decision is on a question of 
 
 practice, 662. 
 In case of objection to evidence, 662, 
 Irregularities of jury not ground for, 662. 
 In case of discharge of jury, 662. 
 
 3. Proceedings in obtaining, 662, 663. 
 In case of several defendants, 662. 
 Application for, how made, 662. 
 
 By whom allowed, 662. 
 
 Stay of proceedings, 662, 663. 
 
 4. What to contain, 663. 
 Command, G63. 
 
 5. Return, 663. 
 
 What brought up by, 663. 
 
 Presumption that prisoner was present 
 during the trial, 663. 
 
 Must state that prisoner was interro- 
 gated, 663. 
 
 Expunging interpolated matter, 663. 
 
 6. Hearing, 663-665. 
 
 Accused need not be present, 663, 664. 
 
 Not to be had on reporter's minutes,664. 
 
 Confined to questions of law, 664. 
 
 Special causes not available under gen- 
 eral assignment, 664. 
 
 Burden of proof, 664. 
 
 Proceedings in court below presumed 
 regular, 664. 
 
 Evidence in court below presumed suf- 
 ficient, 664. 
 
 Error relieved against, notwithstanding 
 no exception was taken, 664, 665. 
 
 Possibility of injury ground of relief,665. 
 See Appeal ; Bill of exceptions.
 
 UNITED STATES CRIMINAL DIGEST.
 
 UNITED STATES CRIMINAL DIGEST. 
 
 Qlbatnucut-|)li;a in. 
 
 1. When proper. 
 
 2. Validity. 
 
 1. When proper. 
 
 1. Pendency of indictment. The pend- 
 ency of one indictment is ground for a plea 
 in abatement to another indictment for the 
 same cause. Com. v. Drew, 3 Cush. 279. 
 But see Austin v. State, 12 Mo. 393. 
 
 2. Omission by justice. Where a person 
 was committed for a secret assault, and the 
 justice did not insert in his certificate that 
 the complainant had sworn that he "was 
 wounded, and shown his wounds, it was 
 held that this should be j^Ieaded in abate- 
 ment. Northrup v. Brush, Kirby, 108. 
 
 3. Misnomer. A misnomer of the sur- 
 name or christian name may be cause for a 
 plea in abatement. Lynesv. State, 5 Porter, 
 236; Com. v. Dockham, Thach. Crim. Cas. 
 238. 
 
 4. Where the indictment was against 
 William Gabe, alias Santa Anna, and there 
 was a motion to quash on the ground that a 
 second christian name was alleged under an 
 alias dicttis, it was held that this was matter 
 for plea in abatement, and not for a mere 
 motion. Gabe v. State, 1 Eng. 519. 
 
 5. Where the prisoner was described in 
 an indictment as A., the wife of B., it was 
 held that if the allegation was erroneous, the 
 proper remedy might be by a plea in abate- 
 ment. Com. T. Lewis, 1 Mete. 151. In 
 North Carolina, Ihe want of the defendant's 
 addition in an indictment is not ground for 
 a plea in abatement. State v. Newman, 2 
 Car. Law Repos. 74. It is otherwise in Vir- 
 
 ginia. Haught V. Com. 2 Va. Cas. 3; and 
 the same in the latter State as to a false 
 addition. Com. v. Clark, lb. 401. 
 
 6. Objections to grand jury. The incom- 
 petency of grand jurors may be pleaded in 
 abatement. Rawls v. State, 8 Sm. & Marsh. 
 599; McQuillen v. State, lb. 587; Nugent v. 
 State, 19 Ala. 540; State v. Middleton, 5 
 Porter, 484. Where a statute provided that 
 gi'and jurors should be freeholders, a plea in 
 abatement to an indictment stating that some 
 of the grand jury were not freeholders, was 
 held good. State v. Rockafellow, 1 Halst. 
 332 ; State v. Duncan, 7 Yerg. 271 ; contra, 
 People V. Jewett, 6 Wend. 386. 
 
 7. The objection that seventeen instead 
 of sixteen grand jurors were impaneled and 
 passed upon the indictment, should be made 
 by plea in abatement. Shropshire v. State, 
 7 Eng. 190; and the question as to whether 
 a grand jury has been summoned, drawn 
 and impaneled according to law, can only 
 be considered under this plea. State v. 
 Greenwood, 5 Porter, 474 ; Smith v. State, 
 19 Conn. 493. 
 
 8. Where for some reas(m not appearing 
 in the record, the court set aside the whole 
 panel of grand jurors, and ordered a special 
 venire returnable forthwitii, it was held that 
 a plea in abatement was proper. Baker v. 
 State, 23 Miss. 243. 
 
 9. An objection that the indictment was 
 found by less than twelve grand jurors, 
 taken on motion in writing, in the nature of 
 a plea in abatement, is not too late at the 
 arraignment of the prisoner. State v. Sy- 
 Djonds, 36 Maine, 128. 
 
 10. Exemption from jury duty. Tiie 
 special exemption of individuals from jury 
 service is not a disqualilication which will
 
 ABATEMENT.— ABDUCTION. 
 
 Validity. 
 
 What Constitutes. 
 
 In Different States. 
 
 abate an indictment. State v. Brooks, 9 
 Ala. 10; Com. v. Long, 2 Va. Cas. 318. 
 
 2. YAIilDITY. 
 
 11. When double. Two pleas in abate- 
 ment may be pleaded to the same present- 
 ment. Com. V. Long, 2 Va. Cas. 318. But 
 a plea in abatement which alleges several 
 distinct matters, is bad for duplicity. Find- 
 ley V. People, 1 Manning, '234. 
 
 12. Unnecessary averment. A plea in 
 abatement that certain persons (naming 
 them) were sworn and charged as members 
 of the grand jury, need not state that tbey 
 served on the grand jury. State v. Rickey, 
 5 Halst. 83. 
 
 13. Plea insufficient. A general state- 
 ment in a plea in abatement that the com- 
 missioners were not authorized to make the 
 selection of the grand jurors on the 6th day 
 of May, is insufficient, the plea not showing 
 that the 6th of May was not included in the 
 May term of the board of commissioners. 
 State V. Newer, 7 Blackf. 307. 
 
 14. A plea in abatement, that two of the 
 grand jury had, before they were sworn, 
 formed and publicly expressed opinions that 
 were unfavorable to the defendant, was held 
 bad on general demurrer. State v. Kickey, 
 5 Halst. 83. 
 
 15. A plea in abatement, that the grand 
 jury were not legally qualified to find the in- 
 dictment, is bad on special demurrer when 
 it alleges objections to the drawing of sev- 
 eral jurors having no necessary connection 
 and dependent upon different evidence for 
 proof. State v. Ward, 63 Maine, 225. 
 
 16. Waiver. Pleas in abatement in crim- 
 inal, as well as in civil cases, must be pleaded 
 at the proper time. By pleading guilty, the 
 accused waives matter in abatement. Mc- 
 Quillen v. State, 8 Smed. & Marsh. 587; 
 State V. Butler, 17 Vt. 145; State v. Carver, 
 49 Maine, 588. 
 
 17. Judgment. In cases of misdemeanor, 
 the judgment of the court upon a plea in 
 abatement is final, and if the plea is found 
 against the defendant, the judgment should 
 include the penalty. Guess v. State, 1 Eng. 
 147. See Indictment. 
 
 ^bbuctioiL 
 
 1. What constitutes. On the trial of an 
 indictment for the forcible seizure, abduction 
 and removal of a child from the State, it ap- 
 peared that the child, who was about four 
 years old, was taken from the lawful cus- 
 tody of its mother, to whom it had been 
 assigned by a decree of divorce, by the fa- 
 ther, with force, and carried out of the State. 
 Held that the child must be deemed to have 
 been taken without its consent, and that the 
 purpose, with which the father carried it 
 away, was not a justification, though it 
 might afifect the measure of punishment. 
 State V. Farrar, 41 New Hamp. 53. 
 
 2. In Maine. In Maine, where the de- 
 fendant by false representations induced an 
 unmarried female to go with him to a 
 neighboring town, and there, having made 
 her partially intoxicated, had repeated sexual 
 intercourse with her, it was held, that he 
 could not be convicted of enticing her away 
 •' for the purpose of prostitution " under the 
 statute. Laws of 1861, ch. 4; State v. 
 Stoyell, 54 Maine, 24. 
 
 3. In Illinois. To constitute the forcible 
 abduction of a person within the meaning 
 of the statute of Illinoie, it is not necessary 
 that physical force or violence be used upon 
 the person kidnapped. It will be suflScient 
 if, to accomplish the removal, the mind of 
 the person was operated upon by the de- 
 fendant by falsely exciting the fears, by 
 threats, fraud, or other unlawful or undue 
 influence, amounting substantially to a coer- 
 cion of the will, so that, if such means had 
 not been resorted to or employed, it would 
 have required force to effect the removal. 
 Moody V. People, 20 111. 315. 
 
 4. In New York. The taking of the 
 female, in the sense of the statute of New 
 York against abduction, contemplates some 
 positive act to get her away from the person 
 having the legal charge of her, beyond a 
 mere attempt at her seduction. The " pur- 
 pose of prostitution," mentioned in the same 
 statute, means a design to introduce her to 
 an indiscriminate criminal intercourse with 
 men. A purpose of concubinage will not be
 
 ABDUCTION.— ABOKTION. 
 
 In Different States. 
 
 Nature of the Offense. 
 
 implied where the defendant was a married 
 man living with his wife, and the female a 
 girl under fourteen years of age. Neither in 
 such case will there be an inference of a 
 purpose of marriage. Peoi)le v. Parshall, 
 6 Parker, 129. 
 
 5. The words "previous chaste charac- 
 ter," in the statute of New York (of March 
 20, 1848), punishing abduction, mean act- 
 ual personal virtue in the female. In order 
 to sustain the indictment, it must be 
 proved that she was chaste up to the 
 commencement of the acts of the defend- 
 ant, and that she was abducted for the 
 purpose of her indiscriminate meretricious 
 intercourse with men. But although the 
 female had previously lost her virtue, yet 
 if she had afterward reformed, she may be 
 the subject of the offense. Carpenter y. 
 People, 8 Barb. 603. 
 
 6. In Massachusetts. In Massachusetts, 
 to constitute abduction within the meaning 
 of the statute (of 1845, ch. 216, § 1), the 
 female must be enticed away with the view 
 and for the purpose of placing her in a 
 house of ill fame, j)lace of assignation, or 
 elsewhere, to become a prostitute. Com. v. 
 Cook, 12 Mete. 93. 
 
 7. Indictment. An indictment for ab- 
 duction, under a statute which prescribes 
 the punishment for taking a female under 
 fourteen years of age from certain persons 
 mentioned, for one of three specified pur- 
 poses, is not vitiated by alleging, that the 
 female was taken for all of those purposes; 
 and the allegation of an intent to do further 
 acts not mentioned in the statute may be 
 regarded as surplusage. People v. Parshall, 
 6 Parker, 129. 
 
 8. "Verdict. Where, on the trial of an in- 
 dictment for abduction, some of several 
 counts were undisposed of by the verdict, it 
 was held error for which the judgment 
 must be reversed. People v. Parshall, 
 supra. 
 
 9. Where two were indicted for abduct- 
 ing a girl under the age of sixteen years, and 
 the indictment contained several counts, 
 some under the 3d section of the Stat. 4 and 
 5, Phil, and M. ch. 8, which punishes such 
 abduction with two years' imprisonment or 
 
 by fine, and some under the 4th section of 
 the same statute, which punishes the same 
 offense, by five years imprisonment or by fine, 
 it was held that the joinder of the counts 
 was good, and that there might be a general 
 verdict of guilty ; that the count under the 
 4th section, for abducting and marrying, in- 
 cluded the less offense of abducting ; and 
 that the verdict found the greater degree of 
 guilt, as well of him who contracted mar- 
 riage with the girl as of him who aided him 
 in abducting her. State v. Tidwell, 5 
 Strobh. 1. 
 
 1. Nature op the offense. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Verdict. 
 
 1. Nature op the offense. 
 
 1. At common law. At common law, it 
 is not an indictable oflFense to procure an 
 abortion with the consent of the woman, un- 
 less she is quick with child. Com. v. Parker, 
 9 Mete. 263. And in the latter case, it is not 
 murder or manslaughter, J)ut a misdemeanor. 
 State V. Cooper, 2 Zabris. 52. 
 
 2. In Maine. In Maine, when in an 
 attempt to procure an abortion there is an 
 intent to produce death, and death ensues, 
 it is murder; but in the absence of such in- 
 tent, it is only manslaughter. Smith v. State, 
 33 Maine, 48. 
 
 3. In Massachusetts. In Massachusetts, 
 it is no defense to an indictment for procur- 
 ing a miscarriage under the statute (of 1845, 
 « 27) that the female was not pregnant with 
 a quick child. The procuring of a mis- 
 carriage is malicious, if done from any 
 wicked or base motive ; and the consent of 
 the woman, or the defendant's desire to 
 screen her or himself from exposure and 
 disgrace, furnish no justification. Com. v. 
 Wood, 11 Gray, 85. 
 
 4. In Vermont. To convict a person of 
 the attempt to ])rocure the miscarriage of a 
 woman pregnant with child, under the 
 statute of Vermont (C'omp. St. ch. 108), it
 
 ABOKTION. 
 
 Nature of Offense. 
 
 Indictment. 
 
 is not necessary that the fcetus should be 
 alive at the time of committing the offense. 
 State V. Howard, 33 Vt. 380. 
 
 5. In New York. Where the crime 
 charged under the statute of New York 
 (Laws of 1873, ch. 181), was that of per- 
 suading the deceased to submit to the use of 
 an instrument upon her person, and to take 
 drugs with intent to produce her miscarriage, 
 in consequence of which her death and that 
 of the child were caused, it was held that 
 the death of the deceased was not a nec- 
 essary ingredient of the crime ; that of the 
 child being sufficient to make the offense a 
 felony. The act alleged was a crime under 
 the third section of the statute, in the ab- 
 sence of the death of the mother or child : 
 such death only increasing the degree of the 
 crime and the punishment. People v. Davis, 
 56 N. Y. 95. 
 
 6. Whether under an indictment for using 
 instruments upon a female, with the intent to 
 destroy a quick child of which such female 
 was pregnant, the prisoner can be convicted 
 of a misdemeanor in using such instruments 
 upon the same female, with intent to pro- 
 duce a miscarriage — query. Cobel v. People, 
 5 Parker, 348. 
 
 7. In New York, a woman who takes a 
 drug in order to effect a miscarriage is guilty 
 of a criminal offense of the same grade as 
 that committed by the person who adminis- 
 ters the drug, and is liable, upon conviction, 
 to the same punishment. Frazer v. People, 
 54 Barb. 306 ; 8 N. Y. Rev. Statutes, 5th 
 ed. 975, § 21. 
 
 3. Indictment. 
 
 8. Averment of time and place. A count 
 in an indictment charged that at a certain 
 time and place the said E. D. was pregnant, 
 and that the defendant, with the intent to 
 cause and produce her miscarriage, did ad- 
 vise and procure her then and there to take, 
 &c. It was objected that the allegation 
 should have been that the defendant "did 
 then and there advise and procure the said 
 E. D. then and there to take," &c. Held 
 that time and place were sufficiently averred. 
 Crichton v. People, 1 N. Y. Ct. of Appeals 
 
 Decis. 467; affl'g 6 Parker, 363; s. c. 1 
 Keyes, 341. 
 
 9. Averment of means. An indictment 
 averred that the defendant provided ergot, 
 and advised, ordered and commanded B. and 
 C. to administer it to D. then and there 
 quick and pregnant with child, and by so 
 ordering, commanding and advising, and by 
 the taking and swallowing of such ergot 
 into her stomach by the said D., he did ad- 
 minister the same to her unlawfully and with 
 intent to procure her to miscarry and be pre- 
 maturely delivered of said child. Held that 
 the defendant was charged as a principal, and 
 not as an accessory. And where, in addition 
 to the foregoing, the indictment also alleged 
 that the defendant used certain instruments, 
 it was held not bad for duplicity, and that 
 it would be sustained by proof of either of 
 the means alleged. Com. v. Brown, 14 Gray, 
 419. 
 
 10. Where a statute makes the attempt to 
 procure a miscarriage a criminal act unless 
 such miscarriage was necessary to preserve 
 life, an indictment is insufficient which 
 charges that a particular instrument was un- 
 necessarily employed to procure that result, 
 without alleging that the miscarriage was 
 not necessary to save the life of the woman. 
 Bassett v. State, 41 Ind. 303; Willey v. 
 State, 46 Ind. 363. 
 
 11. Unnecessary averments. An indict- 
 ment for administering medicine to a preg- 
 nant woman to procure an abortion, need 
 not allege the particular kind, quantity or 
 or quality of the medicine. State v. Van 
 Houten, 37 Mo. 357; State v. Vawter, 7 
 Blackf. 593. In New Jersey, an indictment 
 under the statute (Nix. Dig. 177, § 103), for 
 advising or directing a pregnant woman to 
 take a drug with intent to cause her miscar- 
 riage, need not allege that the drug was 
 actually taken by her. State v. Murphy, 3 
 Dutch. 112. 
 
 12. In Massachusetts, an indictment for 
 procuring a miscarriage, and thereby causing 
 the death of the woman, need not charge the 
 offense of murder, or allege that it was com- 
 mitted feloniously: and the means employed 
 are sufficiently described as "a certain in- 
 strument, the name of which is to the jurors
 
 ABOKTION. 
 
 Indictment. 
 
 Evidence. 
 
 iinknown." (Sts. of Mass. of 1845, eh. 27, 
 and of 1853, oh. 37) ; Com. v. Jackson, 15 
 Gray, 187. An indictment for procuring a 
 miscarriage under the statute (Gen. Stats, ch. 
 165, § 98), need not allege that the act was 
 committed ' ' maliciously and without lawful 
 justification ; " the words " unlawfully " and 
 " with intent " being sufficient. Com, v. 
 Sholes, 13 Allen, 554. In the same State it 
 has been held that an indictment for using 
 an instrument with intent to procure a mis- 
 carriage need not allege whether or not the 
 woman died. The averment that the acts 
 were done "maliciously and without any law- 
 ful justification " is sufficient, although the 
 word " unlawfully " is used in the statute. 
 Com. V. Thompson, 108 Mass. 461. 
 
 13. In Massachusetts, an indictment under 
 the statute (of 1845, § 27), for procuring a 
 miscarriage, need not allege that the defend- 
 ant used the instrument with which he com- 
 mitted the offense, or state who the woman 
 was, or that she brought forth the child pre- 
 maturely, or that the child was dead. Com. 
 V. Wood, 11 Gray, 85. 
 
 14. In Maine, an indictment for causing 
 the death of a pregnant female in attempt- 
 ing to procure an abortion, need not allege 
 that the deceased was quick with child. 
 State T. Smith, 32 Maine, 369. 
 
 15. In Pennsylvania, in charging an at- 
 tempt to procure an abortion, the indictment 
 need only allege an intention to procure an 
 abortion or miscarriage to cause the death or 
 premature birth of the child, without charg- 
 ing that the mother was quick with child. 
 Mills V. Com. 13 Penn. St. 631. 
 
 16. As pregnancy ceases when the child is 
 removed from the body of the mother, be- 
 fore the severance of the umbilical cord, the 
 averment in an indictment for procuring a 
 miscarriage, of violence by the hand of the 
 defendant at that period, constitutes no part 
 of the offense, and may be rejected as sur- 
 plusage. Com. V. Brown, 14 Gray, 419. 
 
 3. Evidence. V 
 
 17. Time. On the trial of an indictment 
 for procuring an abortion, the witnesses for 
 the prosecution all testified that the opera- 
 tion was performed at A. on the 20th of May ; 
 
 and there was no testimony as to any other 
 date. The defendant introduced testimony 
 tending to show that on the 19th, 20th and 
 2l8t days of May, he was more than a hun- 
 dred miles from A. ; and he asked the court 
 to charge the jury that there was no evi- 
 dence in the case which would warrant them 
 in finding that the defendant did the act 
 complained of upon any other day than May 
 20th, and that if they were satisfied that he 
 did not do the act on that day, they could 
 not convict. Held that the instruction was 
 properly refused, the exact day not being 
 material, and a discrepancy as to the date 
 only going to the credibility of the wit- 
 nesses. Com. V. Snow, 116 Mass. 47. 
 
 18. Medicine. In Massachusetts, on the 
 trial of an indictment under the statute (of 
 1845, ch. 27) for advising a woman to take 
 medicine to procure a miscarriage, the pros- 
 ecution need not prove what the medicine 
 was, or whether it was such as would tend 
 to produce the effect designed, or whether it 
 was actually taken by the woman. Com. v. 
 Morrison, 16 Gray, 224. 
 
 19. An indictment for advising a preg- 
 nant woman to procure a miscarriage alleged 
 that the defendant recommended her to take 
 "Dr. James Clark's female pills," and the 
 proof was that he told her to take " Dr. 
 Clark's female pills." Held that there was 
 no variance. Crichton v. People, 1 N. Y. 
 Ct. of Appeals Decis. 467 ; affi'g 6 Parker, 
 363; s. c. 1 Keyes, 341. 
 
 20. In a trial for procuring an abortion 
 by administering drugs which caused the 
 death of the female, it was held that in order 
 to show the nature of the drugs, their proba- 
 ble eflect, and the purpose for which the ac- 
 cused administered them, evidence was ad- 
 missible to prove that about two years pre- 
 vious, the accused advertised that he could 
 be consulted in relation to tlie procuring of 
 miscarriage, and stated how he might be 
 consulted by females without exposure. 
 Weed V. People, 56 N. Y. 628 ; s. c. 3 N. Y. 
 Supm. N. S. 50. 
 
 21. Prosecutrix a competent witness. 
 On the trial of an indictment for advis- 
 ing and procuring a pregnant woman to 
 take a drug, with intent to procure her mis-
 
 ABOETIOK 
 
 Evidence. 
 
 carriage, she is a competent witness, although 
 deemed an accomplice. But she is not strict- 
 ly an accomplice, the law regarding her rather 
 as the victim than the perpetrator of the 
 crime. Dunn v. People, 29 N. Y. 523. 
 
 22. On the trial of a husband and another 
 man jointly indicted for personal violence 
 to the wife by inserting an instrument into 
 her body witli intent to procure her miscar- 
 riage, she is a competent witness for the 
 prosecution. State v. Dyer, 59 Maine, 137. 
 
 23. Declarations of woman. The de- 
 clarations of a woman on whom a miscar- 
 riage has been produced, accompanying acts 
 done in furtherance of the criminal purpose, 
 are admissible in evidence against one who 
 joined in the unlawful act. And where the 
 death of the woman resulted from the mis- 
 carriage, it was held competent to prove the 
 declarations of the deceased made immedi- 
 ately after an interview had by her with 
 the prisoner, showing the object of her visit 
 to him and what took place. Solander v. 
 People, 3 Col. 48. 
 
 24. On a trial for attempting to procure 
 the miscarriage of a woman pregnant with 
 child, resulting in her death, her declarations 
 as to her object in going to the prisoner's 
 house are admissible in evidence as part of 
 of the res gestae ; as also are her declarations 
 soon after she arrived there, as to her feel- 
 ings, and the state of her health. State v. 
 Howard, 32 Vt. 380. 
 
 25. On the trial of an indictment for pro-, 
 curing an abortion, under the statute of 
 New York (Laws of 1872, ch. 181, § 1), the 
 death of either the mother or child is the 
 substance of the offense, and therefore the 
 dying declarations of the mother are ad- 
 missible. Davis V. People, 2 N. Y. Supm. 
 N. S. 212. 
 
 26. Prosecutrix to be corroborated. The 
 submission to an operation, or the taking of 
 drugs with intent to procure a miscarriage, 
 is a moral as well as a legal offense, and with 
 confessed want of chastity is an impeach- 
 ment of the woman as a witness, and renders 
 her corroboration proper if not indispens- 
 able. Frazer v. People, 54 Barb. 306. 
 
 27. In Vermont, on the trial of an indict- 
 ment for attempting to procure the miscar- 
 
 riage of a woman pregnant with child, result- 
 ing in her death, it was held that the woman 
 must be corroborated on material points, and 
 to such an extent as upon the whole case to 
 leave no reasonable doubt of the prisoner's 
 guilt. State v. Howard, 32 Vt. 380. But in 
 Massachusetts, on a trial under the statute 
 (of 1845, § 27), it was held not erroneous to 
 charge the jury that the prosecutrix is not 
 an accomplice within the rule requiring her 
 testimony to be corroborated. Com. v. 
 Wood, 11 Gray, 85. 
 
 28. In California, on the trial of an indict- 
 ment for an attempt to produce an abortion, 
 it is not enough that the prosecutrix is cor- 
 roborated in some particulars which involve 
 no criminality in the defendant. She must 
 also be corroborated in at least some portion 
 of her testimony which imputes to the de- 
 fendant the commission of the crime alleged. 
 She need not be corroborated in respect to 
 the method employed, provided she be cor- 
 roborated by testimony tending to show an 
 attempt by the defendant to produce an 
 abortion in any method. Peojile v. Josse- 
 lyn, 39 Cal. 393. 
 
 29. Impeachment of prosecutrix. On a 
 trial for an attempt to procure an abortion, 
 the prosecutrix testified, on cross-examin- 
 ation, that she had been examined as a wit- 
 ness in proceedings in bastardy against the 
 present defendant, as the father of her 
 child. She was then asked; "Did you not 
 testify on that trial that you never had had 
 sexual intercourse with any other man, and 
 was he not discharged in those proceedings 
 on the ground that he was not the father of 
 your child ? Held that the question was 
 properly excluded, it being immaterial. 
 Crichton v. People, 6 Parker, 363 ; s. c. 1 
 Keyes, 341 ; afh'd 1 N. Y. Ct. of Appeals 
 Decis. 467. 
 
 30. Presumptions. On the trial of an in- 
 dictment for procuring an abortion, it is 
 competent to prove that the prosecutrix was 
 in feeble health, and that there were bloody 
 stains upon her bed a month subsequent 
 to the alleged offense. Com. v. "Wood, 11 
 Gray, 85. And where it was proved that 
 ergot was administered, it was held proper 
 to show that it was the popular belief that
 
 ABOETION. 
 
 Evidence. 
 
 Verdict. 
 
 that drug -would cause abortion. Carter v. 
 State, 2 Carter, 617. 
 
 31. On the trial of an indictment for pro- 
 curing an abortion, alleged to have been 
 committed with instruments, portions of the 
 body of the deceased preserved in spirits 
 may be submitted to the inspection of the 
 jury. Com. v. Brown, 14 Gray, 419. 
 
 32. On the trial of an indictment for pro- 
 curing the miscarriage of E., resulting in 
 her death, it was held proper for a witness 
 to testify to a conversation had with the de- 
 fendant previous to the transaction, in which 
 the defendant represented herself as having 
 skill and experience in operations of the 
 kind, that she had repeatedly performed 
 thorn with success, and that she was willing 
 to undertake the performance of such an 
 operation upon E., which conversation was 
 communicated to E. Com. v. Holmes, 103 
 Mass. 440. 
 
 33. For defense. Where it was claimed 
 that one H. was the father of the child of 
 which the prosecutrix was enciente, it was 
 held that H. was a competent witness to 
 prove that he had never had sexual inter- 
 course with her. Dunn v. People, 29 N. Y. 
 523. 
 
 34. On the trial of an indictment under 
 § 148 of the act of Congress of June 8, 1873 
 (17 U. S. Stats, at Large, 302), as amended by 
 § 3 of the act of March 3, 1878, making it 
 a misdemeanor for any person knowingly to 
 deposit for mailing or delivery anything 
 having a tendency to prevent conception or 
 procure abortion, evidence is not admissible 
 to show that the article deposited in the 
 mail by the defendant had no such tend- 
 ency, and that its harmlessness in this re- 
 spect was known to the defendant, it being 
 proved that the article was put up in a form 
 and described in a manner to insure its use 
 for the prohibited purpose. And wliere the 
 evidence shows the deposit of a notice, stat- 
 ing that certain articles contraband by the 
 statute can be obtained at a designated 
 place, it is immaterial whether or not the 
 information in the notice is true. U. S. v. 
 Bott, 11 Blatch. 346; s. c. 2 Green's Crira. 
 Reps. 239. 
 
 4. Verdict. 
 
 35. Defendant need not be present. In 
 Illinois, the offense of abortion being only a 
 misdemeanor, the defendant need not be 
 present when the verdict is given. Halliday 
 v. People, 4 Gilmau, 111. 
 
 36. Of guilty, when. It is not errone- 
 ous on a trial for procuring an abortion, 
 and thereby causing the death of the female, 
 to charge the jury that if they iiud that a 
 abortion was committed upon the deceased, 
 or an attempt at it made, and that the de- 
 fendant was connected with it, and that the 
 death resulted therefrom, they must convict. 
 Weed v. People, 3 N. Y. Supm. K S. 50 ; 
 56 N. Y. 628. 
 
 37. In New York, on the trial of an in- 
 dictment for causing the abortion of a quick 
 child, which by statute is a felony, the 
 prisoner may be convicted, though it appear 
 that the child was not quick, and the offense 
 therefore a misdemeanor. People v. Jack- 
 son, 3 Hill, 93. 
 
 38. For manslaughter. An indictment 
 alleged that the defendant feloniously, will- 
 fully, knowingly, maliciously, and inhu- 
 manly forced and thrust a wire up into the 
 womb and body of one B. C, she being then 
 pregnant and quick with child, with a 
 wicker], malicious, and felonious intent, to 
 cause her to miscarry and bring forth the 
 child with which she was then pregnant 
 and quick ; that by the means thus employed 
 she brought forth the said child dead : and 
 that she afterward, in consequence of the 
 means so used, became sick and distemper- 
 ed in her body, suffered and languished, and 
 by reason thereof died. Held that as an in- 
 tent to kill the child was not charged, there 
 could only be a verdict for manslaughter. 
 State v. Smith, 32 Maine, 369. 
 
 39. For offense against person not 
 named. Where an indictment for man- 
 slaughter in the second degree alleged the 
 killing of the quick child of B., by instru- 
 ments used on her body in order to procure 
 an abortion, and the verdict was " Not guilty 
 of manslaughter in the second degree, but 
 guilty of a misdemeanor, to wit., in the use 
 and employment of instruments and other 
 means upon the person of a pregnant woman
 
 ACCESSOKY. 
 
 Who Deemed. 
 
 with intent thereby to procure the miscar- 
 riage of such woman," it was held, that the 
 verdict was erroneous, in finding that the 
 oflFense was committed on a woman not 
 named, instead of upon B., as cliarged in the 
 indictment. Cobel v. People, 5 Parker, 348. 
 
 1. Who deemed. 
 
 2. Liability. 
 
 3. Absence of liability. 
 
 4. Indictment. 
 
 5. Tkial. 
 
 6. Evidence. 
 
 1. Who deemed. 
 
 1. Distinction as to guilt or innocence 
 of principal. A felony may be committed 
 through the instrumentality of others, 
 though the principal be not present. But 
 this is where the agent is an innocent party. 
 When the i:)erson employed is guilty, he is 
 the principal, and his employer but an ac- 
 cessory. Wixon V. PeoiJle, 5 Parker, 119. 
 The following charge of the court to the 
 jury was held erroneous : " That although 
 W. had no part in breaking the store and 
 taking the goods, yet if he knew it was to 
 be done by A. and B., or either of them, and 
 the goods were immediately taken to his 
 house, and he aided in furnishing a box to 
 secrete the goods, and directed where they 
 should be placed to avoid discovery, and 
 prevent the owner from finding them, so as 
 to convert them to his own use, he was 
 guilty of larceny. lb. 
 
 2. At common law, a person may be a 
 principal in an ofiiense without being an eye 
 witness of the transaction, or within hear- 
 ing. It is suflacient that he had knowledge 
 of the crime, and watched near enough to 
 assist those actually engaged, if required. 
 Doan V. State, 26 Ind. 495. But to convict 
 a party of felony who is constructively pres- 
 ent at its commission, he must be of the 
 party, and do some act in execution of the 
 common design, or be near enough to the 
 scene of operations to assist in carrying it 
 out, or to aid those who are immediately en- 
 
 gaged, in it to escape, should necessity re- 
 quire. Wixon V. People, supra. 
 
 3. On a trial for an attempt to burn in- 
 sured goods, with intent to prejudice the 
 insurer, it appeared that the prisoner gave 
 one D. matches, and hired him to set fire to 
 the prisoner's shop, in which the insured 
 goods were ; that D. set the shop on fire, but 
 that the fire was extinguished without de- 
 stroying either the shop or any of the goods. 
 Held that although the prisoner was not 
 present when D. set the shop on fire, yet 
 that he was equally guilty with him. 
 Mackesey v. People, 6 Parker, 114. 
 
 4. On the trial of an indictment for grand 
 larceny in stealing a horse, it appeared that 
 the animal was Aever in the possession of the 
 prisoner, but that it was taken by one C. on 
 the prisoner's order, and the testimony 
 tended to implicate 0. in the transaction. 
 After conviction, the following charge of 
 the judge to the jury was held correct: 
 " That they were to determine upon the evi- 
 dence whether or not C. was an innocent 
 agent of the prisoner in taking the horse ; 
 that if they so found, and if they further 
 found a felonious intent uj)on the part of the 
 prisoner in the taking by C, he could be 
 convicted; but that if they found that C. 
 had a knowledge of the prisoner's felonious 
 intent, then their verdict should be not 
 guilty, the prisoner in that case being only 
 an accessory before the fact." People v. 
 McMurray, 4 Parker, 234. 
 
 5. If a person in one State commits a crime 
 in another State through an innocent agent, 
 the law will regard him as personally pres- 
 ent, and hold him resi^onsible. If a person 
 in one State procure the commission of a 
 misdemeanor in another State through even 
 a guilty agent, the procurer is regarded as a 
 principal, and as being present where the 
 oflense was committed, and he is answerable 
 there. An accessory before the fact in one 
 State to a felony committed in another State, 
 is guilty of a crime in the State where he 
 becomes an accessory, and answerable there, 
 w^hile the principals are indictable in the 
 latter State. State v. Chai)in, 17 Ark. 561. 
 
 6. If goods be feloniously taken and re- 
 moved by a servant, under his master's in-
 
 ACCESSORY. 
 
 Who Deemed, 
 
 Liability. 
 
 Absence of Liability. 
 
 Indictment. 
 
 . structions, who is absent, and the master 
 afterwards assists in secreting the goods, he 
 can only be held as au accessory. Norton 
 V. People, 8 Cow. 137. 
 
 7. A wife is not shielded from responsi- 
 bility for crime committed by her husband's 
 order, unless she is within his presence and 
 control. Com. v. Fecney, 13 Allen, 560. 
 
 8. Encouraging design. Where upon 
 the trial of one as accessory to murder, the 
 court charged that it was immaterial whether 
 the principal had formed the intention to 
 kill the deceased before his interview with 
 the accessory ; that if the accessory encour- 
 aged him in that design they must find 
 the defendant guilty — it was held correct. 
 Keithler v. State, 10 Sm. «fc Marsh. 192. 
 
 2. Liability. 
 
 9. As principaL In Illinois, an accessory 
 before the fact is deemed a principal. Bax- 
 ter v. People, 3 Oilman, 368. In Tennessee, 
 by the statute (of 1829, ch. 23), § 64, an ac- 
 cessory after the fact to obtaining goods by 
 false pretenses is punishable as principal. 
 Long V. State, 1 Swan, 287. 
 
 10. If an accessory aid and abet a principal 
 who is not amenable to the law, he cannot 
 be arraigned unless his acts are such as to 
 render him liable as principal. U. S. v. 
 Libby, 1 Woodb. & Minot, 321. 
 
 3. Absence op liabelity. 
 
 11. Principal for act of agent. As a 
 general rule, the principal is not responsible 
 criminaliter, for the illegal act of his agent, 
 unless done by his express authority; nor 
 are the declarations of the agent, in the per- 
 formance of such illegal act, competent evi- 
 dence against the principal when sought to 
 be charged in a criminal proceeding. Nail 
 V. State, 34 Ala. 262 ; Watts v. State, 5 W. 
 Va. 352 ; s. c. 2 Green's Crim. Reps. 676. 
 
 12. Person present at felony. One who 
 is present when a felony is about to be com- 
 mitted, and does not interfere, does not 
 thereby participate in the felony. Although 
 he has a right to prevent if he can the per- 
 petration of the felony, yet he, is not bound to 
 do so, or otherwise partake of the guilt. 
 State V. Hildrcth, 9 Ired. 440. 
 
 13. When several are doing what is law- 
 
 ful, and some of them without the co-opora- 
 tion of the others, though in their presence, 
 commit a felony, the latter can neither be 
 regarded as principals nor as accessories, 
 U. S. V. Jones, 3 Wash. C. C. 223. 
 
 14 . Person out of State. Held in Indi- 
 ana, that a person who out of the State 
 becomes an accessory before the fact to a 
 felony committed within the State, cannot 
 be punished by the laws of the State. Johns 
 V, State, 19 Ind. 421. 
 
 4. Indictment. 
 
 15. Accessory charged as principal. In 
 
 Kansas, under the statute (Oen. Stat. 839), 
 an accessory before the fact may be charged 
 and convicted as a jiriccipal. State v. Cas- 
 sady, 12 Kansas, 550. In Iowa, under the 
 statute (Rev. Stats, 153), accessories before 
 the fact are deemed principals, and may be 
 charged as such in the indictment. Bonsell 
 V, U. S. 1 Iowa, 111. But in Alabama, it 
 was held that a defendant who was charged 
 in the indictment as principal could not be 
 convicted upon proof that he was only an 
 accessory before the fact. Hughes v. State, 
 12 Ala. 458. 
 
 16. In Nevada, an accessory before the 
 fact being regarded as a principal, an indict- 
 ment against him need not allege the special 
 act by which he aided or abetted, but only 
 the ultimate act itself, the same as in the 
 case of a principal (State v. Chapman, 6 
 Nev. 320) ; and it is not essential to his con- 
 viction that the guilt of the principal be first 
 proved. State v. Jones, 7 Nev. 408. 
 
 17. In Illinois, an accessory to a murder 
 may be indicted and punished as principal. 
 But the prosecution must establish the guilt 
 of the principal before the jury can find the 
 accessory guilty. Baxter v. People, 2 Gil- 
 man, 578. 
 
 18. If one be present, aiding and assisting 
 another to commit murder, he may be in- 
 dicted as an accessory and convicted of 
 manslaughter; and it is the same where one 
 aids and assists another in committing man- 
 slaughter. State V. Colman, 5 Porter, 32. 
 
 19. Requisites. An indictment against an 
 accessory must, in addition to otiier matter, 
 contain all the averments which would be
 
 10 
 
 ACCESSORY 
 
 Indictment. 
 
 Trial. 
 
 necessary in an indictment against the prin- 
 cipal. People V. Theall, 50 Cal. 415. 
 
 20. The indictment of an accessory need 
 not state that the principal has been con- 
 victed, but it must allege his guilt, and it 
 must be proved that his guilt was legally as- 
 certained. Holmes v. Com. 25 Penn. St. 221 ; 
 State V. Crank, 2 Bail. 06 ; State v. Sims, lb. 
 29; Com. v. Williamson, 2 Va. Cas. 211; 
 State V. Simmons, 1 Brev. 6 ; State v. Ricker, 
 29 Me. 84; State v. Roclielle, 2 Brev. 338. 
 
 21. An indictment alleging that A. entered 
 a dwelling-house in a burglarious manner for 
 the purpose of stealing, and stole therein, 
 and that B. was accessory to " the offense 
 aforesaid," is good. Stoops v. Com. 7 Serg. 
 & Rawle, 491. 
 
 22. In Vermont, an indictment against an 
 accessory under the statute (Rev. Stat. ch. 
 102, § 11), must allege that he does not 
 stand in the relation contemplated by the 
 excepting clause of the statute, unless the 
 exception is in a separate section of the 
 statute, or in a proviso distinct from the 
 enacting clause. State v. Butler, 17 Vt. 145. 
 
 5. Tkial. 
 
 23. May be with principal. If the court 
 choose, and the accessory and principal are 
 willing, they may be tried together. Sam- 
 son V. Com. 5 Watts & Serg. 385. In South 
 Carolina, it is in the discretion of the court 
 to allow an accessory a separate trial. State 
 V. Yancy, 1 Const. Ct. 241. 
 
 24. Principal to be first convicted. At 
 common law, the principal must first be 
 convicted before the accessory can be put 
 on trial against his consent. And when the 
 principal dies before conviction, the acces- 
 sory must be discharged. Com. v. Phillips, 
 16 Mass. 423 ; Whitehead v. State, 4 Humph. 
 278; Stoops v. Com. 7 Serg. & Rawle, 491 ; 
 State V. Pybass, 4 Humph. 442; Com. v. 
 Woodward, Thach. Crim. Cas. 63; Holmes 
 V. Com. 25 Penn. St. 221. 
 
 25. In New York, an accessory cannot be 
 tried before the conviction of the principal. 
 He may be tried in the county where he 
 committed his part of the offense, notwith- 
 standing the principal offense was com- 
 mitted in another county. But he cannot be 
 
 tried in the county where the principal 
 offense was committed unless his offense as 
 accessory was committed in that county. 
 Baron v. People, 1 Parker, 246. 
 
 26. In Ohio, the accessory may be first 
 tried and convicted if the principal cannot 
 be found. But if the principal be acquitted, 
 the accessory must be discharged, U. S. v. 
 Crane, 4 McLean, 317. In Indiana, where a 
 person charged as an accessory before the 
 fact to an assault and battery with intent to 
 murder was tried before the principal and 
 found guilty, but before judgment the al- 
 leged principal was tried and acquitted, it 
 was held that the accessory was entitled to 
 be discharged. McCarty v. State, 44 Ind. 
 214; s. c. 2 Green's Crim. Reps. 715. 
 
 27. In North Carolina, the accessory can- 
 not be tried before the conviction of the 
 principal, unless the latter is beyond the 
 reach of the law. State v. Goode, 1 Hawks, 
 463 ; State v. Groff, 1 Murph. 270. 
 
 28. An accessory before the fact to arson, 
 cannot be tried until after the conviction of 
 the principal felon. Smith v. State, 46 Ga. 
 298. An accessory before the fact to mur- 
 der is not entitled to his discharge without 
 trial because the principal felon has escaped, 
 and two terms have elapsed since the findiag 
 of the indictment. Com. v. Sheriff, 16 
 Serg. & Rawle, 304. 
 
 29. When several are charged as principals, 
 the court in its discretion may arraign one 
 as accessory to such of the principals as are 
 convicted, and if he be found guilty as ac- 
 cessory to them or any of them, judgment 
 will pass upon him. But if he be acquit- 
 ted, he may be tried as accessory to the 
 others; and he may be regarded as acces- 
 sory to him who has been convicted, though 
 the evidence shows that he was accessory to 
 several. But when all of several charged as 
 principals, are not convicted, it is error to 
 arraign one as accessory to all so charged, 
 against his own consent. Stoops v. Com. 7 
 Serg. & Rawle, 491 ; see Com. v. Woodward, 
 Thach. Cr. Cas. 63. 
 
 30. Although an accessory may be tried 
 and convicted when one only of several 
 principals named in the indictment has been 
 convicted, yet in such case, the accessory
 
 ACCESSORY.— ADULTERY. 
 
 11 
 
 Indictment. 
 
 Evidence. 
 
 Adultery — What Constitutes. 
 
 must be tried as accessory to the convicted 
 principal in the same manner as though the 
 convicted principal only was named in the 
 indictment. Starin v. People, 45 N. Y. 
 333. 
 
 31. Aiders and abettors may be convicted, 
 though the chief actor or principal has been 
 acquitted. People v. Newberry, 20 Cal. 
 439. 
 
 6. Evidence. }/ 
 
 32. Conviction of principal. When the 
 accessory is tried, the record of conviction 
 of the principal must be produced, unless 
 the principal dies or is pardoned before 
 trial, or the accessory consents to be ar- 
 raigned without the production of the record, 
 or both are tried ; or unless the accessory is 
 charged as being present aiding and abet- 
 ting. State v. Crank, 3 Bail. 66. 
 
 33. On the trial of an accessory to a felony, 
 the record of the principal's conviction is 
 conclusive as to that fact, and frima facie 
 evidence of the principal's guilt. State v. 
 Chittera, 2 Dev. 49. But the presumption 
 may be rebutted by proving that there was 
 no offense committed by the principal. Com. 
 V. Knapp, 10 Pick. 478; and the confession 
 of the principal that he committed the offense 
 is not admissible. Ogden v. State, 12 Wis. 
 533. 
 
 34. An accessory cannot take advantage 
 of an error in the record of conviction of the 
 principal ; and the attainder of the principal 
 while unreversed is 'prima facie evidence 
 against the accessory of the principal's guilt. 
 State V. Duncan, 6 Ired. 236. 
 
 35. On the trial of an accessory before the 
 fact, the original minutes of the trial in the 
 Oyer and Terminer, are not at common law 
 competent proof of the conviction of the 
 principal. But the copy certified by the 
 clerk corresponds to the sworn copy of the 
 record of conviction, and tlie revised min- 
 utes to the original record; and under the 
 statute (3 R. S. 1851) either is competent, 
 if no record has been made. People v. 
 Gray, 35 Wend. 465. 
 
 36. Where a principal and accessory are 
 jointly indicted, and the accessory is tried 
 separately, evidence of the conviction of the 
 principal is not admissible, unless judg- 
 
 ment has been first rendered against the 
 l^rincipal. State v. Duncan, 6 Ired. 98. 
 
 37. Threats of principal. A witness for 
 the prosecution, on the trial of an accessory 
 before the fact in a capital case, being asked 
 by the defense whether he had stated before 
 the examining magistrate what he was then 
 testifying, replied that he had not, for the 
 reason that he had been deterred by the 
 threats of the principal, and was proceeding 
 to state the conversation between himself and 
 the principal, when the defense objected. 
 Helil that the evidence was proper. State 
 V. Duncan, 6 Ired. 98. 
 
 38. Defendant charged as principal. 
 An indictment which charges A. as principal, 
 and B. as accessory, is sustained if the jury 
 find the former guilty as accessoi^, and the 
 latter guilty as principal. State v. Mairs, 
 Coxe, 453. 
 
 39. Confession of principal. The con- 
 fession of a principal cannot be given in 
 evidence against an accessory. State v. 
 Newport, 4 Harring. 567. But the princi- 
 pal is a competent witness against him. 
 People V. Whipple, 9 Cow. 707. 
 
 8te Indictment. 
 
 Accomplice, 
 
 See Accessory; Evidence; Pardon; 
 Witness. 
 
 AcquittaL 
 
 See Former Acquittal or Conviction ; 
 Verdict. 
 
 Abjounnncnt 
 
 See Continuance. 
 
 Abultcrn. 
 
 1. What constitutes. 
 3. Place of trial. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 5. Verdict. 
 G. Judgment. 
 
 1. What constitutes. 
 1. Meaning of. Adultery is the illicit 
 commerce of two persons of the opposite sex,
 
 12 
 
 ADULTERY 
 
 What Constitutes. 
 
 one of whom at least is married, and includes 
 the crime of fornication. State v. Hinton, 6 
 Ala. 864; Hull v. Hull, 3 Strobh. Eq. 174; 
 Miner v. People, 58 111. 59 ; Helfrich v. Com. 
 33 Penn. St. 68. A man may be guilty of the 
 offense although he effected the carnal inter- 
 course by force. State y. Sanders, 30 Iowa, 
 583. 
 
 2. In Connecticut the solicitation of an- 
 other to commit adultery is indictable. State 
 V. Avery, 7 Conn. 367. But it has been held 
 otherwise in Pennsylvania. Smith v. Com. 
 54 Penn. St. 309. Adultery is not a crime 
 at common law, except when connected with 
 other matters which of themselves are a mis- 
 demeanor ; and the same is true of fornica- 
 tion. Anderson v. Com. 5 Rand. 637 ; Com. 
 V. Isaaks, lb. 634 ; State v. Cooper, 16 Vt. 551. 
 The latter may be defined the carnal and 
 illicit intercourse of an unmarried person 
 with the opposite sex. Terr, of Mont. v. 
 Whitcomb, 1 Mont. 359. 
 
 3. In Alabama (Code, § 3331 ; Clay's Dig. 
 p. 431, § 3), adultery and fornication are dis- 
 tinct offenses. Therefore under an indict- 
 ment for adultery which has but a single 
 count the defendant cannot be convicted if 
 the evidence shows that both parties were 
 unmarried. Smithermanv. State, 37 Ala. 88. 
 
 4. By -whom committed. In Maine, the 
 offense may be committed if either the man 
 or woman is married. State v. Hutchinson, 
 36 Maine, 361. But when a divorce from 
 the bonds of matrimony has been decreed 
 on the application of one party for the mis- 
 conduct of the other, the latter by marrying 
 again, is not guUty of adultery. State v. 
 Weatherby, 43 Maine, 358. 
 
 5. In New Hampshire, adultery may be 
 committed by intercourse between an un- 
 mamed man and a married woman from 
 which spurious issue may arise ; and both 
 both parties are guilty. State v. Wallace, 
 9 New Hamp. 515. 
 
 6. In Indiana, an unmarried man who has 
 illicit intercourse with a married woman 
 may be convicted of adultery. State v. 
 Pearce, 3 Blackf. 318. And in Massachu- 
 setts, it has been held that the offense may 
 be committed by a married man with an un- 
 
 married woman. Com. v. Call, 31 Pick. 
 509; Com. v. Reardon, 6 Cush. 78. 
 
 7. In Georgia, it has been held that a 
 married man who has criminal intercourse 
 with his daughter, a single woman, is guilty 
 of incestuous adultery, and she of incestuous 
 fornication. Cook v. State, 11 Ga. 53. 
 
 8. In Minnesota, illicit connection be- 
 tween a married man and an unmarried wo- 
 man does not constitute adultery within the 
 statute, but fornication. State v. Arm- 
 strong, 4 Minn. 335. 
 
 9. In Pennsylvania, under the statute 
 of 1705, an indictment against an unmarried 
 man for adultery cannot be sustained ; but 
 he may be convicted of fornication. Resp. 
 V. Roberts, 3 Dall. 184. 
 
 10. In Virginia, where an indictment 
 charged a single man with Ulicit intercourse 
 with a married woman, the offense was held 
 to be fornication in the man. Com. v. 
 Lafferty, 6 Gratt. 673. 
 
 11. Where husband absents himself. 
 If the husband absent himself from his wife 
 for the space of seven years, and a man, sup- 
 posing that she has no husband, marries 
 and cohabits with her as his wife, he will not 
 be criminally punishable for adultery, al- 
 though it afterward appear that the fonner 
 husband was then living. Com. v. Thomp- 
 son, 6 Allen, 591. But such exemption from 
 liability does not exist when the desertion 
 is on the part of the wife. s. c. 11 Allen, 
 33. 
 
 12. Must be open and notorious. In 
 Illinois, the crime of adultery cannot be 
 sustained by proof of a single act of illicit 
 intercourse, or of a number of acts. The 
 living together must be open and notorious, 
 as if the relation of husband and wife exist- 
 ed, and the illicit intercourse must be habit- 
 ual. Miner v. People, 58 111. 59; s. c. 
 1 Green's Crim. Reps. G55. In Missouri, to 
 constitute the offense of living in a state of 
 open and notorious adultery within the stat- 
 ute (Wagn. Stat. p. 500, § 8), the parties must 
 reside together publicly in the face of society, 
 as if the conjugal relation existed between 
 them. State v. Crowner, 56 Mo. 147; s. c. 
 3 Green's Crim. Reps. 616. And see People 
 V. Gates, 46 Cal. 53; s. c. 3 Green's Crim.
 
 ADULTERY. 
 
 15 
 
 What Constitutes. 
 
 Place of Trial. 
 
 Indictment. 
 
 Reps. 425. The same is true in Mississippi, 
 under the statute. Rev. Code, art. 8, p. 573. 
 Carotti v. State, 42 Miss. 334. And see 
 Terr, of Mont. v. Whitcomb, 1 Mont. 359. 
 
 13. In Alabama, under the penal code 
 (ell. 6, § 3 ; Clay's Dig. 431), it was intimat- 
 ed that if the adulterous connection existed 
 but for a single day, the parties might be 
 convicted ; and where the supposed par- 
 amour of the defendant lived but half a mile 
 distant, and visited and remained with her 
 all of one night every week for seven months, 
 it was held sufficient to sustain a conviction. 
 Collins V. State, 14 Ala. 608. But it seems 
 that in that State, a single act of criminal 
 intimacy is not " living in adultery or forni- 
 cation" within the statute (Code, § 3231), 
 although committed by pre-arrangemenl. 
 Smith V, State, 39 Ala. 554. And the same 
 has been held as to occasional acts of illicit 
 intercourse. A man and woman had carnal 
 intercourse with each other as many as half 
 a dozen times, the woman having a husband, 
 but the man and his mistress did not live 
 together. Held not to "be adultery within 
 the meaning of the statute of Texas. 
 Richardson v. State, 37 Texas, 346. 
 
 2. Place of trial. 
 
 14. Improper change of venue. A change 
 of venue on a trial for adultery, on the appli- 
 cation of the defendant, in a case not allowed 
 by statute, Held not a ground for a reversal 
 of the judgment on the defendant's motion, 
 the court which tried the indictment having 
 jurisdiction. Porter v. State, 5 Mo. 538, 
 Napton, J., dissenting. 
 
 3. Indictment. 
 
 15. Parties. One of two parties charged 
 with fornication and adultery, may be in- 
 dicted and tried without or before the other. 
 State V. Parliam, 5 Jones, 416 ; or the parties 
 may be jointly indicted. State v. Bartlett, 
 53 Maine, 446. In North Carolina, a separate 
 indictment may be found against the man 
 for fornication. State v. Cox, 2 Tayl. 165. 
 And when the indictment alleges fornication 
 and adultery, it is sufficient to charge an un- 
 lawful "bedding and cohabiting" together. 
 State V. Jolly, 3 Dev. & Batt. 110. 
 
 16. Township. The defendant's township 
 need not be stated in an indictment for 
 adultery. Duncan v. Com. 4 Serg. & Rawle, 
 449. 
 
 17. Must be certain. Every material fact 
 constituting the offense should be alleged 
 with precision as to time and place. An in- 
 dictment charging that the defendant at A., 
 on the 25th of March, 1851, did commit 
 adultery with B., the wife of C, she, the 
 saidB., being a married woman, and the law- 
 ful wife of C, was held bad for uncertainty. 
 State V. Thurstin, 35 Maine, 205. 
 
 18. Where an indictment alleged that 
 a man and woman " did live in a state of 
 adultery or fornication," without averring 
 that they thus lived with each other, it was 
 held demurrable. McGuire v. State, 37 
 Ala. 160. 
 
 19. In Georgia, an indictment charged 
 that on a certain day, the defendant, being 
 an unmarried woman, had carnal connection 
 with J. F., a married man. Held bad on 
 demurrer under the statute, in not charging 
 the offense as " adultery and fornication." 
 Bigby V. State, 44 Ga. 344 (Code, § 4458). 
 
 20. Must charge that woman is not wife. 
 The indictment must allege that the woman 
 with whom the illicit connection is charged 
 to have taken place, was not the wife of the 
 accused. Moore v. Com. 6 Mete. 243. An 
 indictment charged that the defendant 
 having "a living lawful wife, from whom 
 he had never been divorced, did cohabit and 
 live in adultery with one L. S." Held in- 
 sufficient, in not averring that L. S. was not 
 the wife of the defendant. Tucker v. State^ 
 35 Texas, 113. 
 
 21. Where the indictment charges that 
 the female, with whom the defendant is 
 alleged to have committed adultery is the 
 lawful wife of a person other than the de- 
 fendant, such allegation is equivalent to an 
 averment that she is not the lawful wife of 
 the defendant. Com. v. Reardon, 6 Cush. 
 78. Where the indictment alleged that E. 
 H., being then and there a married man, and 
 having a lawful wife alive, did commit the 
 orime of adultery with L. H., the wife of M. 
 H., it was held a sufficient averment that the 
 defendant was married to some other person
 
 14 
 
 ADULTERY. 
 
 Indictment. 
 
 Evidence. 
 
 than L. H. State v. Hutcliinson, 86 Maine, 
 
 2G1. 
 
 22. In Massachusetts, as adultery may be 
 committed by a married man with an un- 
 married woman, the indictment need not 
 show that the female was married, or 
 describe her by name, provided it is charged 
 and shown that she is not the defendant's 
 lawful wife. Com, v. Tompson, 3 Cush. 
 551. 
 
 4. Evidence. ^ 
 
 23. Time. The prosecution being called 
 upon to elect upon which of several acts of 
 adultery testiiied to, he would go to the jury, 
 made choice of one occurring on the evening 
 of January 15tb. The time was identified 
 by the circumstances attending the loss by 
 the defendant of his ticket to a fair. These 
 circumstances made it certain however that 
 the evening in question could not have been 
 January 15th, but some date between Feb- 
 ruary 7th and February 28th. Held that 
 the error in the assumed date was not ma- 
 terial, provided the act charged was sutii- 
 ciently identified by other circumstances. 
 Com. v. O'Connor, 107 Mass. 219. 
 
 24. Marriage. There must be proof of 
 actual marriage, reputation and cohabitation 
 not being sufficient. Miner v. People, 58 111. 
 59; 8. c. 1 Green's Crim. Reps. 655; State v. 
 Eood, 12 Yt. 296. 
 
 25. On the trial of an indictment for 
 adultery, proof of the marriage of the de- 
 fendant by those present is sufficient. Com. 
 V. Norcross, 9 Mass. 492. Or it may be 
 proved by the defendant's admissions. Cook 
 V. State, 11 Ga. 53; State v. McDonald, 25 
 Mo. 176 ; State v. Sanders, 30 Iowa, 582 ; 
 State V. Libby, 44 Maine, 469 ; State v. Med- 
 bury, 8 R. I. 543 ; or by the testimony of the 
 husband or wife, together with proof of con- 
 tinued cohabitation. State v. Wilson, 22 
 Iowa, 364 ; State v. Dudley, 7 Wis. 664. It 
 is not necessary to produce the license, or to 
 show that the person officiating was author- 
 ized to solemnize the marriage. Murphy v. 
 State, 50 Ga. 150. 
 
 26. Where a statute provides that a copy 
 of the town clerk's record shall be proof of 
 marriage, such copy is not better evidence 
 
 than proof of the marriage by persons who 
 were present at it. State v. Marvin, 35 New 
 Hamp. 22. 
 
 27. On a trial for adultery, the court in- 
 structed the jury that "if from all the testi- 
 mony in the case, introduced for the purpose 
 of proving the marriage of the defendant, 
 they were satisfied beyond a reasonable 
 doubt that he was legally married, and his 
 wife to whom he was legally married was 
 living at the time of the crime alleged to 
 have been committed, they were authorized 
 to find the fact of marriage." Held correct. 
 State V. Libby, 44 Maine, 469. 
 
 28. But in the same State, where on a 
 trial for adultery, it was not proved that the 
 marriage was solemnized by any one profess- 
 ing to be either a justice of the peace, or an 
 ordained or licensed minister of the gospel, 
 or that it was consummated with a full be- 
 lief on the part of either of the persons 
 married that they were lawfully married 
 (R. S. ch. 59, § 17), and the only evidence 
 of the marriage of either was the testimony 
 of the jiarticeps criminis, that she was mar- 
 ried two years previous, by C. L., at his house, 
 it was held that the conviction could not be 
 sustained. State v. Bowe, 61 Maine, 171 ; 
 s. c. 2 Green's Crim. Reps. 459. 
 
 29. Burden of proof. Where it appeared 
 that the defendant four or five years previous 
 to the commission of the alleged offense, 
 was living with a man as his wife, that she 
 held herself out to the world as such, and so 
 declared, it was held that it was incumbent 
 on her to show his death. Com. v. Reardon, 
 6 Cush. 78. 
 
 30. Must support indictment. When a 
 single act is charged in one count, acts com- 
 mitted at different times and places cannot 
 be proved. State v. Bates, 10 Conn. 372. 
 
 31. When the indictment alleges that the 
 act was committed by living openly and no- 
 toriously together, proof of occasional un- 
 lawful intercourse will not be sufficient. 
 Wright v. State, 5 Blackf. 358 ; People v. 
 Gates, 46 Cal. 52; s. c. 2 Green's Crim. 
 Reps. 425. 
 
 32. An indictment for adultery charged 
 that the ofl:ense was committed with Ada- 
 line Winders. The proof showed that the
 
 ADULTERY. 
 
 15 
 
 Evidence. 
 
 woman's name was Mary Ad aline Winders. 
 Held that the variance was fatal. State v. 
 Dudley, 7 Wis. 6G4. 
 
 33. An indictment charged adultery with 
 B., in a certain town. It was proved that 
 there were two persons in such town of the 
 same name, father and son, and that the 
 latter had the addition of junior to his 
 name. It was held that there could not be 
 a conviction without proving that the of- 
 fense was committed with the father. State 
 V. Vittum, 9 New Hamp. 519. 
 
 34. Husband not competent witness. 
 Where the act is charged to have been com- 
 mitted with a married woman, the husband 
 of the woman is not a competent witness for 
 the prosecution, though at the time of the 
 trial he is divorced from his wife on account 
 of the adultery. State v. Jolly, 3 Dev. & 
 Batt. 110; Com. v. Sparks, 7 Allen, 584; 
 State V. Welch, 26 Maine, 30; Miner v. 
 People, 58 111. 59; s. c. 1 Green's Crim. 
 Reps. 655; contra^ State v. Bennett, 31 Iowa, 
 24. 
 
 35. A wife and her paramour being jointly 
 indicted for adultery, the wife was tried 
 separately and acquitted. Held, on the trial 
 of the other defendant, that the husband was 
 not a competent witness to prove that he 
 saw his wife in the act of adultery. State 
 v. Wilson, 2 Vroom (31 N. J.) 77. 
 
 36. Admissions. On the trial of a joint 
 indictment for adultery, the confession of 
 one party is not admissible in evidence 
 against the other. Frost v. Com. 9 Mon. 
 362. Therefore the admission of the woman 
 in her paramour's absence, that she was the 
 wife of another, is not admissible in evidence 
 against the man. Com, v. Thompson, 99 
 Mass. 444. Parties cannot be jointly con- 
 victed of a single act of adultery upon the 
 admission by one of an act of adultery com- 
 mitted at one time, and by the other of a 
 different act of adultery committed at an- 
 other time. Com. v. Cobb, 14 Gray, 57. 
 
 37. Presumptions. On the trial of an 
 indictment for adultery, the fact that the 
 defendant resided in the same house witli 
 the woman, that he had means of access to 
 her, that she was delivered of a child which 
 was apparently a bastard, that he applied to 
 
 a physician prior to the birth of the child 
 to attend her in her confinement, and then 
 called her his wife, are circumstances proper 
 to be considered by the jury in connection 
 with his admissions, as evidence of his guilt. 
 Com. V. Tarr, 4 Allen, 315. 
 
 38. On the trial of an indictment for for- 
 nication, the court charged the jury as fol- 
 lows: " That if the jury believed the par- 
 ties were found on the bed together, that 
 the door of the room was closed, that there 
 was no one else present in the room, that the 
 woman was a prostitute, and that the de- 
 fendant was in the habit of frequently visit- 
 ing her house, they were bound to find the 
 defendant guilty." Held, that as the effect 
 of the instruction was to exclude from the 
 consideration of the jury every circumstance 
 in the case, except such as were referred to 
 by the court, it was erroneous. Ells v. State, 
 20 Ga. 438. 
 
 39. A record of conviction of bigamy in 
 another State does not prove the commis- 
 sion of adultery. Wilson v. Wilson, Wright, 
 128. 
 
 40. It is erroneous to admit in evidence 
 rumor and talk in the neighborhood that 
 adultery openly and notoriously existed. 
 Belcher v. State, 8 Humph. 63. 
 
 41. On the trial of an indictment for 
 adultery, evidence of acts of familiarity of 
 the parties prior to the time relied on by the 
 prosecution, is admissible as tending to 
 show guilty intent. Com. v. Pierce, 11 Gray, 
 447; Com. v. Durfee, 100 Mass. 146; Com. 
 V. Lahey, 14 Gray, 91 ; State v. Wallace, 2 
 New Hamp. 515; contra, Com. v. Thrasher, 
 11 Gray, 450. 
 
 42. Although parties cannot be convicted 
 of living in adultery, on proof of acts which 
 occurred more than twelve months before 
 the finding of the indictment, yet evidence 
 of such acts is admissible to show an 
 adulterous intercourse between the parties 
 within the period covered by tlie indict- 
 ment. McLeod V. State, 35 Ala. 395. The 
 prosecution offered to prove that the defend- 
 ant was guilty of other acts of familiarity 
 with the woman about the time of the of- 
 feuse charged. Tlie cross-examination of 
 the witness left it doubtful whether or not
 
 16 
 
 ADULTEEY.— AFFRAY. 
 
 Evidence. 
 
 Verdict. 
 
 Judgment. 
 
 What Constitutes. 
 
 the acts occurred about the time or a year 
 previous. Held that the evidence vpas not 
 incompetent, the nearness of the time going 
 only to its cflect, and if in doubt, being a 
 matter for the determination of the jury. 
 Com. V. Morris, 1 Cush. 391. 
 
 43. Where a witness vpho testifies to a 
 single act of adultery is sought to be im- 
 peached, other acts between the defendant 
 and the same woman committed a short 
 time previous to the act proved may te 
 shown in corroboration. Com. v. Merriam, 
 14 Pick. 418. 
 
 44. On the trial of an indictment for 
 adultery, the defendant and his alleged par- 
 amour having testified that the acts charged 
 had never been committed by them, it was 
 held proper to cross-examine them as to 
 their intimacy with and relations with each 
 other at various places in other States. Com. 
 V. Curtis, 97 Mass. 574. 
 
 45. Where it was proved that the defend- 
 ant and the woman with whom he was al- 
 leged to have committed the offense met 
 several times in the defendant's barn, it was 
 held competent to show that on one occasion 
 she was seen alone near the barn, with ap- 
 pearances upon her dress which looked as 
 though she had recently been in the barn. 
 And where the husband of the woman is a 
 witness, he may testify as to whether or not 
 he is living with her at the time of the trial. 
 State V. Marvin, 35 New Hamp. 32. 
 
 46. Acts subsequent to indictment. Ev- 
 idence tending to show criminal conduct 
 between the parties subsequent to the find- 
 ing of the indictment is prima facie irrel- 
 evant, and only admissible when connected 
 with other relevant evidence. Sraithmerman 
 V. State, 40 Ala. 355; State v. Crowley, 13 
 lb. 173. Therefore, on the trial of an in- 
 dictment for adultery with H. 8., at T., in 
 the county of B., it is not competent for the 
 prosecution to prove that the defendant, 
 subsequent to the time charged in the in- 
 dictment, had illicit intercourse with H. S. 
 in another county, called her his wife, and 
 stated that he had resided at T. Com. v. 
 Hcrton, 3 Gray, 354. 
 
 47. Proof of divorce. Where, on the 
 trial of an indictment for adultery, the de- 
 
 fendant sought to prove that he obtained a 
 divorce from his wife in California, who was 
 not there at the time, and had no notice of 
 the proceedings, a certificate of the county 
 clerk of the city and county of San Fran- 
 cisco, and ex officio clerk of the district court 
 of California, of the judgment, record, and 
 decree of divorce entered in said court was 
 held inadmissible, there being no proof that 
 the court had jurisdiction. Com. v. Blood, 
 97 Mass. 538. 
 
 5. Verdict. 
 
 48. Designation of time. On the trial 
 of an indictment for adultery, the verdict 
 need not designate the time of the commis- 
 sion of the offense ; and it will not be a vari- 
 ance if the proof does not show that the 
 crime was committed on the day alleged, 
 provided it be shown that the act was com- 
 mitted on some day within the statutory 
 period. Com. v. Cobb, 14 Gray, 57. 
 
 49. For less offense. Where an indict- 
 ment charges in separate courts the commis- 
 sion by the defendant, of rape and adultery, 
 he may be acquitted of the former and con- 
 victed of the latter. Com. v. Squires, 97 
 Mass. 50. 
 
 50. In North Carolina, under an indictment 
 for adultery and fornication, the defendants 
 may be acquitted of the adultery and con- 
 victed of the fornication. State v. Cowell, 
 4 Ired. 331. 
 
 6. Judgment. 
 
 51. For support of child. In Pennsyl- 
 vania, if the offense is pardoned, the court 
 cannot give judgment for costs, but may 
 make an order for the support of the child 
 which is the fruit of the adultery. Duncan 
 V. Com. 4 Serg. & Rawle, 449. 
 
 See Bigamy ; Incest. 
 
 ^ffrat). 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Verdict. 
 
 1. What constitutes. 
 1. Meaning. An affray is a fighting by
 
 AFFRAY. 
 
 17 
 
 What Constitutes. 
 
 Indictment. 
 
 Evidence. 
 
 mutual consent, by two or more persons, in 
 some public place, to the terror of the 
 people. Simpson v. State, 5 Yerg. 356; 
 Duncan v. Com. 6 Dana, 295. But consent 
 is not essential. Cash v. State, 2 Overt. 
 198 ; contra, Khun v. State, 1 Blackf. 377. 
 A person who aids, assists and abets an 
 aflEray is guilty as principal. Hawkins v. 
 State, 13 Ga. 322. See State v. Lanier, 71 
 N. C. 288 ; s. c. 2 Green's Crim. Reps. 753. 
 
 2. By words. Mere words, when ac- 
 companied by acts, such as the drawing of 
 knives and attempting to use them in a 
 public street, will constitute an affray. Haw- 
 kins V, State, 13 Ga. 322, And if a person, 
 by such abusive language toward another 
 as is calculated and intended to bring on a 
 fight, induces the other to strike him, he is 
 guilty of an affray, though he may be una- 
 ble to return the blow. State v. Perry, 5 
 Jones, 9 ; State v. Sumner, 5 Strobh. 53 ; 
 contra, O'Neil v. State, 16 Ala. 65. 
 
 3. On the trial of A. and B., for an 
 aflFray, it was proved that they quarreled in 
 front of the latter's house, and that the latter 
 ordering the former to leave, which he de- 
 clined to do, B. went to his house, several 
 yards distant, and returned with a pistol in 
 his hand ; that A. having meanwhile retired 
 some thirty yards, came back, daring him 
 to shoot, which he did, wounding him in 
 the leg. Held proj^er for the court to 
 charge the jury that both of the defendants 
 were guilty. State v. Downing, 74 N. C. 
 184. 
 
 4. Where to be. The place of fighting 
 must have been public. State v. Sumner, 5 
 Strobh. 53. An inclosed lot, thirty yards 
 from the street of a village, and seen from 
 the street, is a public place, within the 
 common-law definition of an affray. Car- 
 wile v. State, 35 Ala. 392. But a highway 
 is not necessarily a public place, within the 
 statute against affrays. State v. Weekly, 29 
 Ind. 206. And where a field, surrounded 
 by a dense wood, is situated a mile from any 
 highway or other pul>lic place, it does not 
 lose its private character by the casual pres- 
 ence of three persons, so as to make two of 
 them who fight, guilty of an alTray. Taylor 
 V, State, 22 Ala. 15. 
 
 2 
 
 5. Where a fight commenced in private, 
 is kept up until the parties reach a public 
 place where it is continued, they are guilty 
 of an affray. Wilson v. State, 3 Heisk. 278 ; 
 s. c. 1 Green's Crim. Reps. 550. 
 
 2. Indictment. 
 
 6. Must state what was done. An in- 
 dictment which merely alleges that the de- 
 fendants made an affray, without specifying 
 what was done, is insufficient. State v. 
 Woody, 2 Jones, 335. And an information 
 for an aSray which alleged that the defend- 
 ants fought in a public place, but did not 
 state whom or what they fought, was held 
 bad. State v. Vanloan, 8 Ind. 182. But an 
 indictment which charged that two persons, 
 with force and arms, did make an aflFray by 
 fighting, was held sufficient. State v. Ben- 
 thai, 5 Humph. 519; State v. Vridely, 4 lb. 
 429. 
 
 7. Averment of place. Where the in- 
 dictment charges a fighting in a public 
 place, it is sufficient without further de- 
 scription of the place. Wilson v. State, 3 
 Heisk. 278 ; s. c. 1 Green's Crim. Reps. 550. 
 But an allegation in an indictment for an 
 afl'ray, that the fighting was in the town of 
 Clarksville, is not sufficient. State v. Hef- 
 lin, 8 Humph. 84. 
 
 3. Evidence. 
 
 8. Time and place. On a trial for mur- 
 der, it appeared that there were two affrays 
 between the prisoner and the deceased, in 
 the second one of which the deceased was 
 killed. The two affi'ays occurred about four 
 miles apart, and the time between them was 
 about an hour, while the parties were driv- 
 ing along the same road. Held that one 
 afl'ray could not be deemed a continuation 
 of the other, so as to make the conversations 
 of the deceased and his companions in the 
 interval, in the absence of the defendant, 
 admissible in evidence as a part of the res 
 gestm. State v. Potter, 13 Kansas, 414. 
 
 9. Proof that two persons were seen lying 
 on the ground in close combat, will not sus- 
 tain an indictment for an affray against 
 them. Klum v. State, 1 Blackf. 377. 
 
 10. Declarations. On the trial of an 
 mdictmcut for discharging a gun at a per- 
 
 1/
 
 18 
 
 A FFRA Y.— AMENDMEN T.— ANIMALS. 
 
 Evidence. 
 
 Verdict. 
 
 Amendment of Process. 
 
 Cruelty to Animals. 
 
 son and wounding him, in an affray which 
 took place on the premises of the defendant, 
 it was held that the defendant might prove 
 the declarations of the prosecutor, made 
 while on his way to the i)lace where the 
 affray occurred ; and also, previous threats, 
 made by the prosecutor as to the defendant, 
 and previous affrays between them, if so 
 connected with the affray in question, as to 
 have a tendency to show that the defendant 
 at the time had just cause to fear serious in- 
 jury to his person or property. State v. 
 Goodrich, 19 Vt. 116. 
 
 4. Verdict. 
 
 11. Where one is acquitted. On the 
 trial of several for an affray, one or more 
 may be acquitted and the rest convicted. 
 Cash V. State, 2 Overt. 198. But where two 
 persons are indicted for an affray, the suc- 
 cessful defense of one, will have the effect 
 of acquitting the other. Hawkins v. State, 
 13 Ga. 322. 
 
 12. For assault and battery. Although 
 every affray includes an assault, yet under an 
 indictment alleging that the defendants 
 made " an affray by then and there fighting, 
 to the terror," «&c., they cannot be found 
 guilty of an assault and battery. Childs v. 
 State, 15 Ark. 204. But in Virginia, where 
 an indictment against two persons for an 
 affray contained no count for assault and 
 battery, and both were acquitted of the 
 affray, it was held that a verdict of assault 
 and battery by the one on the other could be 
 found. Com. v. Perdue and Dillon, 2 Va. 
 Cas. 227 ; contra, State v. Allen, 4 Hawks, 
 356. 
 
 See Assault and battery ; Former ac- 
 quittal OR cojsviction ; Homicide. 
 
 See Evidence. 
 
 applies only to euch matters as are required 
 to be stated under the oath of the party mak- 
 ing the complaint or presentment. State v. 
 Smith, 54 Maine, 33. 
 
 ^incnbmcnt. 
 
 Of Process. The rule that criminal pro- 
 cesses cannot be amended except by consent 
 of the party against whom they are issued, 
 
 1. Cruelty to. 
 
 2. Rescuing. 
 
 1. Cruelty to. 
 
 1. Nature of offense. Maiming or wound- 
 ing an animal without killing it, is not an 
 indictable offense at common law. State v. 
 Beekman, 3 Dutch. 124; State v. Manuel, 73 
 N. C. 201; People v. Stokes, 1 Wheeler's 
 Cr. Cas. Ill, contra. 
 
 2. In Massachusetts, the cruel treatment 
 of animals which the statute contemplates 
 (Gen. Stats, ch. 165, §41), is the same whether 
 inflicted by the owner of the animal or by 
 another; and if the defendant's object would 
 have been lawful for any person, and his act 
 was not an excessive and cruel use of force, 
 he cannot be convicted. Com. v. Lufkin, 7 
 Allen, 579. 
 
 3. Indictment. An indictment for ma- 
 licious mischief in wounding and cruelly 
 beating and abusing an animal, which omits 
 to name the owner of the animal, is insuffi- 
 cient. State V. Smith, 21 Texas, 748. But 
 in Massachusetts, an indictment under the- 
 statute (Gen. Stats, ch. 165, § 41), for cruelly 
 beating a horse, need not allege that the 
 horse was the property of any person, or de- 
 scribe the horse. Com. v. McClellan, 101 
 Mass. 34. 
 
 4. A complaint for killing a deer contrary 
 to law, which alleges that the defendant 
 "did drive, worry and kill a live animal 
 called a deer," is not bad for duplicity. 
 State V. Norton, 45 Vt. 258. 
 
 5. Evidence. On the trial of an indict- 
 ment for cruelly whipping a horse, evidence 
 is admissible to show that the horse was kind 
 and manageable unless harassed with the 
 whip ; and a witness may state that he saw 
 nothing vicious or obstinate in the horse, 
 and also the apparent effect of the blows
 
 ANIMALS.— APFEAL.—AKREST. 
 
 19 
 
 Rescuing. 
 
 Nature and Power of Arrest, in General. 
 
 upon the horse. State v. Avery, 44 New 
 Hamp. 392. 
 
 6. On the trial of a complaint for willfully 
 and cruelly overdriving a horse, it is not 
 necessary to prove that the defendant's pur- 
 pose was to tortui'e the animal. Pain in- 
 flicted in wanton and reckless disregard of 
 the suffering it might occasion, would be 
 equally criminal. The following instructions 
 were held all that the defendant could 
 claim: That, " if in the proper exercise of 
 his own judgment, he thought he was not 
 overdriving the horse, he must be ac- 
 quitted ; and that he could not be convicted 
 unless he knowingly and intentionally over- 
 drove. Com. V. Wood, 111 Mass. 408. 
 
 7. In the same case, the defendant's 
 mother testified that she had seen him driv- 
 ing the horse, and that he was not then over- 
 driving. On cross-examination, she denied 
 that she had said that the defendant was 
 guilty. Having been re-examined by the de- 
 fense as to the alleged conversation, it was 
 held competent for the prosecution to prove 
 that she had said so. Com. v. Wood, 
 supra. 
 
 2. Kescuing. 
 
 8. Indictment. An indictment for rescu- 
 ing cattle while being driven to the pound, 
 should allege that they were found either 
 damage feasant, or going at large contrary 
 to the statute, and that the complainant was 
 about to impound them for that cause ; and 
 the defendant well knowing the premises, 
 unlawfully and against the will of the com- 
 plainant, with force and arms, rescued the 
 said animals out of his custody and prevented 
 the complainant from impounding the same, 
 contrary to the form of the statute, &c. 
 State v. Barrett, 42 New Ilanip. 46G. 
 
 ^jjpcaL 
 
 1. By State. The State is not entitled to 
 an appeal in a criminal prosecution. State 
 V. Jones, 1 Mur[)hy, 257. 
 
 2. Jurisdiction. If an appeal has been 
 given in all cases within the jurisdiction of 
 the sessions, and afterwards its jurisdiction 
 is extended to new cases, an appeal will lie 
 
 in those new cases, because it would be a 
 reasonable presumption that the Legislature 
 did not intend that its jurisdiction should in 
 any case be final. Com. v. Messenger, 4 
 Mass. 462. 
 
 3. An appeal from the decision of a cir- 
 cuit judge denying a writ of Jiaheas corpus, 
 will not be heard, if before the application 
 for the hearing of the appeal the petitioner 
 has been set at liberty, and has gone beyond 
 the jurisdiction of the court. E^ parte 
 Pereira, 6 Rich. 149. 
 
 4. Objection on. An objection to the ad- 
 missibility of evidence, different from that 
 made at the trial, cannot be entertained on 
 appeal. Where therefore, on a trial for 
 murder, a witness was asked if he saw a 
 knife on the premises, which was objected 
 to as leading, admitted, and exception 
 taken, it w^as held that it could not be urged 
 on appeal, that the evidence was improper 
 on the ground that the indictment contained 
 no averment that the homicide was produced 
 by the knife. Shufflin v. People, 6 N. Y. 
 Supm. N. S. 215. 
 
 5. Judgment. Where the defendant de- 
 murred to an indictment for a misdemeanor, 
 in the court below, and judgment was there 
 rendered against the people, which was re- 
 versed on error, it was held that the appel- 
 late court must give a final judgment for the 
 people on the demurrer, and pass sentence 
 on the defendant ; and that he could not be 
 permitted to withdraw the demurrer and 
 l^lead. People v. Taylor, 3 Denio, 91. 
 
 See Writ of error. 
 
 Arrest. 
 
 1. Nature and power of, in general. 
 
 2. By private person. 
 
 3. By officer. 
 
 1. Nature and power of, in general. 
 
 1. What is an arrest. No manual touch- 
 ing of the body or actual force is necessary 
 to constitute an arrest. It is sufficient if the 
 party be within the power of the officer and 
 submit to the arrest. Gold v. Bisscl, 1 Wend. 
 215 y contra, 2 New Ilamp. 318; Huntington
 
 20 
 
 ARREST. 
 
 Nature and Power of. 
 
 By Private Person. 
 
 By Officer. 
 
 V. Scbultz, Harpex-, 453; U. S. v. Benuer, 1 
 Bald. 239; Lawson v. Buzines, 3 Harring. 
 ■116: State v. Malion, lb. 5G8. 
 
 2. Law governing. The law of the State 
 in which an arrest is made governs as to its 
 legality, and when made in another State 
 under legal process it will be prima facie 
 justiiiable. Stouffer v. Latshaw, 2 Watts, 
 165. 
 
 3. Exemption from. Members of the State 
 militia who are exempted by law from arrest 
 on civil process while under military duty, 
 do not cease to be exempt when the force to 
 which they belong is mustered into the serv- 
 ice of the United States. People v. Camp- 
 bell, 40 N. Y. 133, Grover, Lott and James, 
 JJ., dissen(i))g. 
 
 4. Ground of, may be inquired into. The 
 court may inquire as to whether any evi- 
 dence was given of the defendant's guilt on 
 the application for his arrest, and if none 
 was produced, quash the indictment; but it 
 cannot pass upon the sufticiency of the evi- 
 dence if any was given. An information 
 not supported by oath or affirmation will 
 not authorize a warrant of arrest. U. S. v. 
 Shepard, 1 Abb. 431. 
 
 5. Where an arrest is made regular and 
 lawful in form by the perjury of the party 
 procuring it, he will not be permitted to 
 derive any benefit from it. Strong v. Gran- 
 nis, 26 Barb. 122. 
 
 2. By pkivate person. 
 
 6. "Without warrant. A private individ- 
 ual may lawfully arrest without warrant one 
 who has committed a felony ; and he may 
 arrest on suspicion where a crime has been 
 committed, and there is good reason to sus- 
 pect the person arrested. Burns v. Erben, 
 40 N. Y. 463. But for mere misdemeanors, 
 after their commission, an arrest can only in 
 general be made upon a warrant from a 
 magistrate. People v. Adler, 3 Parker, 249. 
 
 7. The felony which will justify an arrest 
 by a private individual upon suspicion with- 
 out a warrant, must be an offense that may 
 be tried by the courts of the State in which 
 the arrest is made. Mandeville v. Guernsey, 
 51 Barb. 99. 
 
 8. A private person may arrest another 
 
 while in the act of committing an aff"ray, 
 without warrant. Knot v. Gay, 1 Root, 66. 
 It is a defense to an indictment for assault 
 and battery that the complainant had com- 
 mitted petit larceny, and that the alleged 
 assault and battery by the defendant con- 
 sisted in arresting the complainant theretbr 
 without process and delivering him to a 
 public olficer. People v. Adler, 3 Parker, 
 249. 
 
 9. It is lawful for a private person to 
 arrest one who, after trial and conviction 
 and sentence to the house of reformation, 
 has escaped therefrom without actual break- 
 ing or force. State v. Holmes, 48 New 
 Hamp. 877. 
 
 10. Disposal of prisoner. A private per- 
 son who may have arrested another for 
 treason or felony actually committed, may 
 convey him to the jail of the county, or 
 may take him before a justice of the peace. 
 Com. V. Deacon, 8 Serg. & Rawle, 47. 
 
 11. By command of officer. Where an 
 Olficer verbally authorizes another to assist 
 him in arresting another, the acts of such 
 person are valid if he take the prisoner. 
 But both should be in pursuit, though the 
 officer be not in sight when the arrest is 
 made. Com. v. Field, 13 Mass. 321. 
 
 12. Where an indictment charged that 
 one B. was arrested by W., a deputy sheriff, 
 by lawful authority, and that B. resisting 
 the officer, the defendant was summoned by 
 the officer to assist but he refused, it was 
 held that the indictment was insufficient in 
 not setting forth the authority of the olficer 
 to make the arrest. State v. Shaw, 3 Ired. 
 20. 
 
 13. Must give notice. Unless a private 
 person in arresting another for felony noti- 
 fies the party arrested of his purpose, he will 
 be guilty of trespass. State v. Bryant, 65 
 N. C. 327. 
 
 3. By officer. 
 
 14. Without warrant. At common law, 
 a constable may arrest for a reasonable cause 
 of suspicion, or for a breach of the peace in 
 his presence, and deposit the prisoner in 
 jail, and the jailer is bound to receive him. 
 And it is his duty to present to the court all 
 offenses inquirable into by it. McCuUough
 
 AEEEST. 
 
 21 
 
 By Officer. 
 
 V. Com. 67 Penn. St. 30; Com. v. Deacon, 8 
 ScTg. & Rawle, 47. 
 
 15. In cases of misdemeanor, a peace 
 officer may arrest on view, or under a war- 
 rant. In cases of felony, he may arrest with- 
 out a warrant upon information, where he 
 has reasonable cause. But Avhen a private 
 person anests another for felony on sus- 
 picion, nothing short of proving the felony 
 will justify the arrest. Doering v. State, 
 49 Ind. 56; Eames v. State, 6 Humph. 58; 
 Rohan v. Sawin, 5 Cush. 281. 
 
 16. A person standing in the streets of a 
 city used abusive language to a sergeant on 
 duty in a fort, whereupon the sergeant ar- 
 rested him with his military guard, and con- 
 ducted him with fixed bayonets to the gar- 
 rison. Held that the sergeant was justified. 
 Oglesby v. State, 39 Texas, 53. 
 
 17. An officer cannot lawfully arrest one 
 without a warrant for a crime proved or sus- 
 pected, if such crime be not a felony. Com. 
 v. Carey, 12 Cush. 246 ; Com. v. McLaughlin, 
 lb. 615; contra^ State v. Brown, 5 Barring. 
 505. 
 
 18. A police officer may lawfully enter a 
 disorderly house to suppress the disorder, 
 and arrest the disorderly persons therein. 
 State V. Lafferty, 5 Harring. 491. 
 
 19. Right to break open doors. An 
 officer, acting under criminal process may 
 break open the outer doors of a dwelling- 
 house, either in the day or night time, in 
 order to execute such process, having first 
 demanded admittance and been refused. 
 Bell V. Clapp, 10 Johns. 263 ; State v. Smith, 
 1 New Ilamp. 346 ; State v. Shaw, 1 Root, 
 134; Kelley v. Wright, 1 Root, 83. 
 
 20. If an officer having a warrant to 
 arrest a man, finds him at his house, he may 
 not break into the house until he has de- 
 manded admittance and been refused. He 
 may not attack the house, or the persons 
 within, with violence until he has been re- 
 sisted ; and if he proceeds to do so, he justi- 
 fies violence. If an officer conies without 
 lawful authority to arrest a man in his own 
 house, the party is not bound to yield, but 
 may resist force with force, provided he do 
 not go beyond the line of resistance propor- 
 tioned to the character of the assault. If 
 
 death ensue from the abuse of the power to 
 arrest, or of the right to resist, it will be an 
 unlawful killing; but unless there is malice, 
 it will be manslaughter only. State v. Oliver, 
 2 Houst. Del. 585. 
 
 21. How made. An officer must make the 
 arrest peaceably and with as little violence 
 as possible. But if resisted, he may use force 
 sufficient to effect his purpose. State v. 
 Mahon, 3 Harring. 568. 
 
 22. If a statute require that a criminal 
 process shall be executed by a specified per- 
 son, the execution of such process by any 
 other person . is void. Reynolds v. Orvis, 
 7 Cow. 269; Wood v. Ross, 11 Mass. 271; 
 Com. V. Foster, 1 Mass. 488. 
 
 23. An officer cannot lawfully arrest an- 
 other by a wrong name, though he was the 
 person intended to be arrested, unless it be 
 shown that he was known as well by one 
 name as the other. Griswold v. Sedgwick, 1 
 Wend. 126 ; s.o. 6 Cow. 456 ; Mead v. Hawes, 
 7 Cow. 322; Gurnsey v. Lovell, 9 Wend. 319. 
 
 24. Notice of authority. When an arrest 
 is made by one who is not a known officer, 
 he is bound at the time to show his author- 
 ity. State V. Kirby, 2 Ired. 201. A party 
 arrested has a right to see the warrant at the 
 time; although if he resists before an oppor- 
 tunity is given to the officer to comply with 
 his demand, the officer may secure the arrest 
 first. Drennan v. People, 10 Mich. 169, 
 per Campbell, J., referring to Com. v. Cooley, 
 6 Gray, 350 ; State v. Phinney, 42 Me. 384 ; 
 Com. V. Field, 13 Mass. 321 ; State v. Curtis, 
 1 Hayw. 471 ; Arnold v. Steves, 10 Wend. 
 514. 
 
 25. An officer may arrest a person for fel - 
 ony, althouc;h the warrant is in the posses- 
 sion of another officer; but he should tell the 
 accused the reason of his arrest. Where the 
 officer, instead of doing this, simply told the 
 defendant that he had a warrant for him, 
 and when the defendant asked to see it, he 
 refused, saying he was not l)ound to show 
 it, and at once seized the defendant, who 
 cocked and pointed a loaded revolver at the 
 officer, it was held that a conviction of the 
 defendant for an assault with intent to mur- 
 der could not be sustained. Drennan v. 
 People, 10 Mich. 169.
 
 22 
 
 ARREST. 
 
 By Officer. 
 
 26. When notice not required. When 
 both the official character of the party mak- 
 ing the arrest, and the charge upon which it 
 is made, are known to the party arrested, 
 notice is not required without demand. State 
 V. Townsend, 5 Harring. 487. Where there- 
 fore on a trial against an officer for man- 
 slaughter, alleged to have been committed in 
 the attempt to arrest the deceased without 
 a warrant, it appeared that the deceased 
 knew the officer and the cause of arrest, it 
 was held error for the court to charge that, 
 if the deceased had no notice of the cause of 
 arrest, it was lawful for him to resist, and if 
 in such resistance the deceased fired upon 
 the defendant, the latter had no right to re- 
 turn the fire until he had desisted from the 
 attempted arrest in such manner that the 
 deceased had notice that the illegal attempt 
 to arrest him was abandoned. Wolf v. 
 State, 19 Ohio, N. S. 485. 
 
 27. Where a person is taken in the com- 
 mission of an offense, or upon fresh pursuit 
 afterward, or when a violent assault is made 
 upon the officer, notice is not required, be- 
 cause in either case, the accused is presumed 
 to know the cause of his arrest. Lewis v. 
 State, 3 Head. 127; People v. Pool, 27 Cal. 
 592. 
 
 28. On void process. If a criminal pro- 
 cess is insufficient on the face of it, and such 
 defect is apparent, the officer will not be 
 justified, and if he act under it, he will be 
 liable as a trespasser. Sandford v. Nichols, 
 13 Mass. 286; Lam2)son v. Landon, 5 Day, 
 508; Griswold v. Sedgwick, 6 Cow. 456; 
 Eeynolds v. Corp, 3 Caines, 269 ; Grumond 
 V. Raymond, 1 Conn. 40. 
 
 29. If an officer, wlio has two warrants, 
 the one legal and the other illegal, says at 
 the time of arrest that he makes the arrest 
 by virtue of the illegal warrant, it is not 
 false imprisonment, the lawfulness of the 
 arrest not depending upon his declaration, 
 but upon the sufficiency of his authority. 
 State V. Kirby, 2 Ired. 201. 
 
 30. On the trial of an indictment for the 
 murder of a constable while endeavoring to 
 arrest the defendant on a warrant which 
 had been indorsed served by a deputy sheriff, 
 
 it was held that if it appeared from parol 
 evidence, that the warrant had never in fact 
 been served, but that it bad been given back 
 by the magistrate to the officer for service, 
 it was so far valid in the hands of the de- 
 ceased as to authorize him to arrest the 
 defendant on it and take him before the 
 magistrate. Com. v. Moran, 107 Mass. 
 239. 
 
 31. Out of State. Where a person in- 
 dicted for forgery escaped to another State, 
 where he was arrested and taken back -nith- 
 out process and imprisoned, it was held, on 
 an application to release him by a writ of 
 habeas corpus, that though the arrest was 
 illegal, it was not a ground for the prison- 
 er's discharge. Dow's Case, 18 Penn. St. 
 37. 
 
 32. Where a deputy sheriff having a war- 
 rant for the arrest on a charge of grand lar- 
 ceny of a person who was in Canada, got a 
 police officer there to take him by force 
 across the State line, where be was arrest- 
 ed, committed by a magistrate and subse- 
 quently indicted, it was held that there was 
 no reason for quashing the indictment or dis- 
 charging the prisoner from arrest. People 
 v. Rowe, 4 Parker, 253. 
 
 33. Re-arrest. A police officer having 
 arrested a person for being disorderly, while 
 intoxicated, released him on his promise to 
 go home peaceably. It was held that the 
 officer had a right to re-arrest such person 
 upon his going into a drinking saloon before 
 he had left the officer's sight. Com. v. Has- 
 tings, 9 Mete. 259. 
 
 34. Where a person arrested by warrant 
 indorsed pursuant to the statute of New 
 York, is discharged by a magistrate of the 
 county in which the arrest is made, upon a 
 recognizance, the officer cannot lawfully 
 make a re-arrest without a new warrant. 
 Doyle V. Russell, 30 Barb. 300 ; disapproving 
 Clark V. Cleveland, 6 Hill, 349, Hogeboom, 
 J., dissenting. 
 
 ^vrc0t of Subgmmt. 
 
 See Judgment.
 
 ARSON. 
 
 23 
 
 What Constitutes. 
 
 Subject of. 
 
 3.VS0U. 
 
 1. What constitutes. 
 
 2. Subject op. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 5. Verdict. 
 
 1. What constitutes. 
 
 1. The burning. To constitute arson at 
 common law, tliere must be an actual burn- 
 ing of the whole or some part of the house ; 
 but it is not necessary that any part of the 
 house should be wholly consumed. Mary v. 
 State, 24 Ark. 44 ; State v. Sandy, 3 Ired. 
 570 ; People v. Butler, 16 Johns. 203 ; Com. v. 
 Yan Schaack, 16 Mass. 105. It is sufficient 
 if the wood of the house be charred in a 
 single place, so as to destroy its fibre. People 
 V. Haggerty, 46 Cal. 354 ; s. c. 2 Green's Crim. 
 Reps. 431. 
 
 2. On the trial of an indictment for setting 
 fire to a barn, and thereby burning a dwell- 
 ing-house, the defendant requested the 
 judge to charge that the jury "must be 
 satisfied that some portion of the dwelling- 
 house had been actually on fire by reason of 
 the burning of the barn, and had been burned 
 and consumed thereby; and that the sub- 
 stance and fibre of the wood of such portion 
 so on fire was actually destroyed." The 
 judge declined so to charge, but instructed 
 the jury that "they must be satisfied that 
 some portion of the dwelling-house had been 
 actually on fire by reason of the burning of 
 the bam, and had been burned thereby, so 
 that the substance of the wood of such por- 
 tion so on fire was actually burned." Ileld 
 correct. Com. v. Tucker, 110 Mass. 403; 
 s. c. 2 Green's Crim, Heps. 266. 
 
 3. Where the language of a statute was : 
 "If any person shall willfully and malicious- 
 ly set fire with intent to burn, to the 
 dwelling-house of another, or any outbuild- 
 ings adjoining thereto, or to any other 
 building," &c., it was held that it was to be 
 understood the same as put fire to or place 
 fire upon, or against, or put fire in connection 
 with, and that it was not necessary to a con- 
 viction that the building should have been 
 
 actually set on fire. State v. Dennin, 32 
 Vt. 158. 
 
 4. Guilty intent. A design to produce 
 death is not necessary to constitute arson in 
 the first degree, either at common law or 
 under the statute of New York ; and it is 
 immaterial whether the prisoner knew that 
 the building burned had usually, or at any 
 time been occupied by persons lodging 
 therein. People v. 6rcutt, 1 Parker, 252. 
 
 5. The intent maliciously to set fire to 
 the building of another, and in pursuance 
 of such intent, to apply fire to a boat in the 
 same, or to other combustible matter, is a 
 misdemeanor at common law. Com. v. 
 Francis, Thach. Crim. Cas. 240. 
 
 6. In New York, it is not error for the 
 court, on a trial for arson, to refuse to 
 charge, that. if the fire did not reach the 
 house of P. until after she was aroused, and 
 she had time to escape before the fire reached 
 her house, and she neglected to do it, it was 
 not arson in the first degree, the statute 
 making the fact that some human being is 
 in the house at the time it is set on fire, the 
 test of peril, and drawing no distinction as 
 to its imminency. Woodford v. People, 
 5 N. Y. Supm. N. S. 539. 
 
 2. Subject of. 
 
 7. House of another. At common law, 
 the burning must be of the house or out- 
 house of another, and it is necessary to aver 
 and prove ownership in another. In Con- 
 necticut, to constitute arson in burning an 
 office, store, or shop, under the statute, the 
 building must be the property of another. 
 But the absolute title or entire interest need 
 not be in the person named in the informa- 
 tion as the party injured. Such a possession 
 as gives a special property while it exists is 
 sufficient. State v. Lyon, 12 Conn. 487. 
 
 8. What deemed a dwelling-house. In 
 New York, any building is a "dwelling- 
 house," witliin the meaning of the statute 
 defining arson in tlie first degree, which is 
 wholly or in part usually occupied by per- 
 sons lodging therein at night, althougli 
 other parts or the greater part may be used 
 for an entirely different purpose. People v. 
 Orcutt, 1 Parker, 252. And the court will
 
 24 
 
 ARSOK. 
 
 Subject of. 
 
 not inquire into the tenure or interest of the 
 occupant. People v. Van Blarcum, 2 Johns. 
 105. 
 
 9. Where, in an indictment for burning a 
 dwelling-house, the building was described 
 as built and designed for a dwelling-house, 
 and constructed in the usual manner, and it 
 appeared that it was not yet painted, and 
 that not quite all the glass was set in one 
 of the outer doors, and that the building 
 had never been occupied, and was not parcel 
 nor appurtenant to any other, it was held 
 that this was not a dwelling-house in such a 
 sense as that to bum it constituted arson. 
 State V. McGowan, 20 Conn. 245. 
 
 10. In Massachusetts, to constitute arson, 
 within the statute (1 R S. ch, 126, § 1), the 
 building burned must be a residence, and if 
 the occupier is temporarily absent there 
 must be the purpose of return. It cannot 
 be the dwelling-house of an individual be- 
 fore he has begun to occupy it. Com. v. 
 Barney, 10 Cush. 478. 
 
 11. In Georgia, although a person is tem- 
 porarily absent from a dwelling-house in 
 which he lives and has his household effects, 
 yet if the house is burned during such tem- 
 porary absence, it is the burning of an occu- 
 pied dwelling-house within the meaning of 
 the statute punishing arson. Johnson v. 
 State, 48 Ga. 116. 
 
 12. On the trial of an indictment for set- 
 ting fire to and burning a house, the evidence 
 tended to prove that the building had been 
 erected and used as a dwelling-house, and 
 for no other purpose (except as a place of 
 deposit for some fodder for a short time), 
 until about ten months before it was burned, 
 and that the owner had been in the habit of 
 renting it out as a dwelling, and had done 
 so, and ordered it to be cleaned for the ten- 
 ant a short time before it was burned, who 
 had not taken possession. Held not a dwell- 
 ing-house within the statute of Virginia. 
 Code, ch. 192, § 2; Hooker v. Com. 13 
 Graft. 763. 
 
 13. As arson is the burning of the dwell- 
 ing-house of another, Avhere the husband 
 lives with his wife, and has a rightful pos- 
 session jointly with her of the dwelling- 
 house which she owns, and they both oc- 
 
 cupy, he cannot be guilty of arson in burn- 
 ing it. Whether if the family relation is 
 broken up in fact, and the husband and wife 
 are living apart, the same exemption from 
 criminal liability exists — query. Snyder v. 
 People, 26 Mich. 108 ; s. c. 1 Green's Crim. 
 Reps. 547. 
 
 14. If the building set on fire is appro- 
 priated to ordinary domestic uses, and is 
 situated so near to the dwelling-house as to 
 endanger it, it is arson. Gage v. Shelton, 3 
 Rich. 242. A dwelling-house, within the 
 meaning of the statute of Maine punishing 
 the Imrniug of a dwelling-house within the 
 curtilage, must be a house either actually 
 occupied by some jaerson, or temporarily left 
 with the intention of returning, and the fact 
 that the house was intended for occupation, 
 or capable of being so occupied, is not 
 suSicient. State v. Warren, 33 Maine, 30. 
 And see State v. Shaw, 31 lb. 523; Com. 
 V. Flynn, 3 Cush. 529. 
 
 15. Burning cne's own house. Setting 
 fire to one's own house in a city, the house 
 being occupied by himself and other tenants, 
 is a great misdemeanor. Ball's Case, 5 City 
 Hall Rec. 85 1. 
 
 16. It is not a crime at common law for a 
 man to destroy his own property by fire, 
 unless it be accompanied by an injury to or 
 by a design to injure some other person. 
 Bloss V. Tobey, 2 Pick. 325. 
 
 17. In New York, arson in the first degree 
 may be committed by a person burning his 
 own house. Shepherd v. People, 19 N. Y. 
 537; overruling People v. Henderson, 1 
 Parker, 560. In New Hampshire, under a 
 statute (Gen. Stats, ch. 262, § 1), providing 
 that "If any person shall willfully and ma- 
 liciously burn any dwelling-house," he should 
 be punished, etc., it was held that an in- 
 dictment might be sustained which charged 
 the defendant with feloniously, willfully, and 
 maliciously burning his own dwelling-house. 
 State V. Hurd, 51 New Hamp. 176. 
 
 18. Tenant setting fire to house. In 
 Indiana, an indictment for arson cannot be 
 maintained against one who is in possession 
 of a house as a tenant for a year, and will- 
 fully bmns it. McNeal v. Woods, 3 Blackf.. 
 485.
 
 AESON. 
 
 25 
 
 Subject of. 
 
 19. In Alabama, where a person under a 
 lease of a house on public land for one year 
 went into possession, but it appeared after- 
 ward that the same premises had been 
 previously let by parol without his knowl- 
 edge to another person, who, during the 
 absence of the first tenant, took possession, 
 it was held that the first tenant was not 
 guilty of arson by reason of his burning the 
 house. Sullivan v. State, 5 Stew.& Port. 175. 
 
 20. By settine fire to adjoining building. 
 The willful and malicious setting fire to a 
 building, the burning of which is only a 
 misdemeanor, will become a felony if the 
 dwelling-house of another, or barn with 
 grain in it, be thereby burned, when such 
 burning is the piOl)al)le conse(iuence of the 
 first illegal act. State v. Laughlin, 8 Jones, 
 354. 
 
 21. A barn eighty feet from a dwelling, 
 house, in a yard or lane, with which there 
 is a communication from the house by a pair 
 of bars, is within the curtilage. People v. 
 Taylor, 2 Mich. 250. 
 
 22. In the New York statute, which pro- 
 vides that "every person who shall willfully 
 set fire to or burn, in the night time, any 
 building not being the subject of arson in 
 the first degree, but adjoining to or within 
 the curtilage of any inhabited dwelling-house, 
 so that such house shall be endangered by such 
 firing, shall, upon conviction, be adjudged 
 guilty of arson in the second degree," the 
 term "adjoining," is used in its strictest 
 sense, as indicating actual contact. Pever- 
 elly V. People, 3 Parker, 59. 
 
 23. Burning jail. In New York, setting 
 fire to a jail by a prisoner, merely for the 
 purpose of effecting his escape, is not arson. 
 People V. Cotteral, 18 Johns. 115. And in 
 Texas, it has been hold that a person com- 
 mitting such an offense, cannot be convicted 
 of the willful burning of a house, under the 
 statute. Delany v. State, 41 Texas, 601. In 
 Virginia, where a county jail was burnt, 
 and the indictment for burning the same 
 described the jail as the house of B., sheriff 
 and jailer of the county, the burning of sucli 
 jail was held to be a felony, under the stat- 
 ute (Rev. Code, ch. 160, § 4), and tiiat tiic 
 description of the house as the slicriff's 
 
 Indictment. 
 
 might be rejected as surplusage. Stevens' 
 Case, 4 Leigh, 683. 
 
 24. In North Carolina, under the statute 
 which i^unishes the burning of a jail (R. S. 
 ch. 34), it was held that the burning must 
 be both willful and malicious, though the 
 word "or" was inserted in the statute, be- 
 tween the words " willfully and maliciously." 
 State V. Mitchell, 5 Ired. 350. If a prisoner 
 set fire to the jail, without intending to de- 
 stroy it, he is not guilt?y under the statute. 
 But if he put fire to the jail, with an in- 
 tent to burn it down and destroy it, he is 
 guilty, notwithstanding the fire goes' out or 
 is put out by others. lb. 
 
 25. School-house. Under the statutes of 
 Maryland and Connecticut, it was held to be 
 arson to burn a school house. Jones v. 
 Hunger ford, 4 Gill & Johns. 402 ; State y. 
 O'Brien, 2 Root, 516. And in Kentucky, 
 the statute makes it an indictable offense, 
 although at common law such an act would 
 not be arson. Wallace v. Young, 5 Monr. 
 156. 
 
 26. Other buildings. The prisoner was 
 indicted under a statute making it a felony 
 to set fire to or burn " any building erected 
 for the manufacture of cotton or woolen 
 goods, or both." The frame of the whole 
 building was not up at the time of the fire, 
 and that part which had been raised, was 
 not entirely inclosed. The floors were not 
 laid, the stairs not up, and no part of it 
 ready for use. Held that it was not a build- 
 ing within the purview of the statute, and 
 that the defendant must be discharged. Mc- 
 Gary v. People, 45 N. Y. 153, Grover, 
 Peckham and Folger, JJ , dissenting: rev'g 
 3 Lans. 227. 
 
 27. A saw-mill is not necessarily a build- 
 ing within the prohibition of a statute (H. 
 S. of N. H. ch. 215), punishing the burning 
 of any building other than such as are speci- 
 fied. State V. Livermore, 44 New Ilarap, 386. 
 
 28. To burn a barn containing hay and 
 grain is arson at common law. Sampson v. 
 Com. 5 Watts & Serg. 385. 
 
 ■i. Indictment. 
 
 29. The burning. Under a statute defin- 
 int!- arson to be "the burnins: or causinjr to
 
 26 
 
 ARSON. 
 
 Indictment. 
 
 "be burned,'' &c., tlie indictment need not 
 allege that the defendant " set fire to" the 
 house. People v. Myers, 20 Cal. 76 ; over- 
 ruling People V. Hood, 6 Cal. 236. But 
 in Virginia, an indictment for arson, under 
 the statute (Rev. Code, ch. 160), which does 
 not contain the word "bum," but merely 
 charges "a setting fire to," is insuflScient. 
 Howell V. Com. 5 Gratt. 664. 
 
 30. In Maine, in an indictment founded 
 upon the statute (R*. S. cli. 119, § 4), punish- 
 ing the willful and malicious turning of any 
 building, it is sufiicient to allege the " set- 
 ting Jire to " a building. State v. Taylor, 45 
 Maine, 322. And if the building is alleged to 
 have burned in the day time, it is not neces- 
 sary to allege whether or not it was within 
 the curtilage of a dwelling-house. lb. 
 
 31. An indictment for arson which alleged 
 the "setting fire to, and the same house 
 then and there by the spreading of such fire, 
 feloniously burning," was held sufficient. 
 Palston V. State, 14 Mo. 463. 
 
 32. An indictment for an attempt to 
 commit arson need not describe the com- 
 bustibles alleged to have been used by the 
 defendant. Com. v. Flynn, 3 Cush. 529. 
 
 33. An indictment which charges the 
 burning of " a certain barn and an out- 
 house thereto adjoining," need not sepa- 
 rately charge the burning of each. Com. v. 
 Lamb, 1 Gray, 493. In New Hampshire, an 
 indictment under the statute (Gen. Stat. ch. 
 262, § 2), which alleges that the defendant 
 burned a building called a bum, need not 
 state whether or not a dwelling-house was 
 also burned. State v. Emerson, 53 New 
 Hamp. 619; s. c. 2 Green's Grim. Reps. 362. 
 
 34. Where the consequence of a single 
 act is the destruction by fire of thirty-five 
 dwelling-house.?, the prisoner may be in- 
 dicted as for one offense ; and if the destruc- 
 tion of every house constitutes the same de- 
 gree of arson, the indictment need con- 
 tain but one count. Regarding the entire 
 fire as one transaction, the condition, situa- 
 tion and occupancy of the several houses are 
 matters of detail, and evidence may be given 
 as to the burning of all of them. Woodford 
 v. People, 5 N. Y. Supm. K S. 539. 
 
 35. An indictment for arson charged the 
 
 prisoner with setting fire to the dwelling- 
 house of P., and the dwelling-houses of sev- 
 eral others, naming some of them and de- 
 scribing others as " divers persons, to the 
 jurors unknown," and then used this lan- 
 guage : " there being then and there, within 
 the said dwelling-houses, some human 
 being." Held that the words charged the 
 presence of a human being in each of the 
 dwelling-houses. Woodford v. People, su- 
 pra. In Missouri, an indictment under the 
 statute, for setting fire to a dwelling-house 
 in which there was a human being, need 
 not state the name of the person in the 
 house. State v. Aguilar, 14 Mo. 130. 
 
 36. In Massachusetts, an indictment under 
 the statute (R. S. ch. 133, § 12), which 
 charges in one count, a breaking and enter- 
 ing the building in the night time, and in 
 another count, an attempt to burn the build- 
 ing after breaking and entering it, is not 
 bad for duplicity. Com. v. Harney, 10 
 Mete. 422. 
 
 37. Time. In Virginia, an indictment 
 charging the felonious, willful and malicicais 
 burning of a dwelling-house, contrary to 
 the form of the statute, need not state 
 whether the offense was committed in the 
 day time or at night. Curran's Case, 7 
 Gratt. 619. 
 
 38. Place. An indictment for burning a 
 barn and outhouse " at A., in the county of 
 B.," is sufficient without the words " there 
 situate.'' Com. v. Lamb, 1 Gray, 493. 
 
 39. Where an indictment for burning a 
 barn charged the offense as having been 
 committed at S., in the county of B., it was 
 held that the omission of an allegation that 
 the dwelling-house within the curtilage of 
 which the barn was, was also in S., did not 
 render the indictment substantially defect- 
 ive. Com. V. Barney, 10 Cush. 480. 
 
 40. Intent in general. An indictment 
 for arson which charges that the act was 
 done " feloniously, willfully and unlawfully," 
 omitting the word " maliciously," is insuffi- 
 cient. Killenbeck v. State, 10 Md. 431. 
 But an indictment was held sufficient which 
 charged that the act was done feloniously, 
 unlawfully and maliciously, without alleging 
 that it was done willfully. Chapman v.
 
 ARSON. 
 
 27 
 
 Indictment. 
 
 Com. 5 Whart. 427; People v. Haynes, 55 
 Barb. 450. 
 
 41. Where the indictment is for setting 
 fire to the dwelling-house of another, whereby 
 it was burned, the intent is sufficiently in- 
 dicated. But if the accused did not set fire 
 to the house itself, but caused its destruction 
 by kindling another fire, the intent to do 
 more must be set out. State v. Hill, 55 
 Maine, 365 ; State v. Watson, 63 lb. 128. 
 
 42. An indictment for arson, which alleges 
 that the defendant set fire to the house with 
 intent to injure the owner, instead of charg- 
 ing that the intent was to burn the house, is 
 bad. Mary v. State, 24 Ark. 44. 
 
 43. To prejudice insurer. An indictment 
 for an attempt to burn insured goods with 
 intent to prejudice the insurer, need not 
 allege the particular manner in which the 
 attempt was made. Mackesey v. People, 6 
 Parker, 114. But an information under a 
 statute which punishes the setting fire to a 
 building, or to any other material with in- 
 tent to cause such building to be burned, or 
 attempting by any other means to cause a 
 building to be burned, is not sufficient which 
 merely alleges that the defendant solicited a 
 person to burn the building, although it also 
 alleges that the defendant furnished such 
 person with combustibles for the purpose. 
 McDade v. People, 29 Mich. 50, Cooley, J., 
 dusenting. 
 
 44. An indictment for burning a building 
 insured against loss by fire, with intent to 
 defraud an insurance company, must allege 
 that the company is incorporated. People 
 T. Schwarz, 32 Cal. 160. But in New York, 
 an indictment for setting fire to a shop with 
 intent to burn the prisoner's goods therein, 
 which were insured by the North American 
 Fire Insurance Company, was held not de- 
 fective in not alleging that the said com- 
 pany was a corporation, or had the right to 
 insure the goods of the prisoner. Mackesey 
 V. People, 6 Parker, 114. 
 
 45. In New York, to convict of arson in 
 the third degree under sec. 5 of the statute 
 <2 Rev. Stat. 607), it must be alleged that 
 the house was insured against loss or dam- 
 age by fire, and that the offense was com- 
 mitted with intent to defraud an insurance 
 
 company. Peojile v. Henderson, 1 Parker, 
 560. And see Martin v. State, 29 Ala. 30. 
 
 46. In New York, where an indictment 
 for arson charged that the prisoner in the 
 night time feloniously set fire to his own 
 dwelling-house, in which there were at the 
 time divers human beings, with intent to 
 burn the said dwelling-house, and with in- 
 tent thereby to defraud a certain fire insur- 
 ance company, it was held on demurrer that 
 the indictment was not sufficient to bring 
 the offense within arson in the first degree, 
 because it was not the dwelling-house of 
 another, nor the third degree because it was 
 not charged that the property was insured. 
 People V. Henderson, 1 Parker, 560. 
 
 47. Property burned. An indictment 
 for arson at common law need not state that 
 the house alleged to have been burned was 
 a dwelling-house. Com. v. Posey, 4 Call, 
 109. 
 
 48. An indictment for arson alleging that 
 the defendant did maliciously, &c., set fire 
 to and burn a house used as a dwelling- 
 house, in the night time, the property of M. 
 H., sufficiently shows that the house burned 
 is a dwelling-house. McLane v. State, 4 
 Ga. 335. 
 
 49. In Massachusetts, under the statute 
 (Rev. Stat. ch. 126, § 5), describing the 
 building burned as not then completed, 
 was held sufficient, the question wiiether it 
 was such a structure as to constitute it a 
 building being a question of fact for the 
 jury. Cora. v. Squire, 1 Mete. 258. 
 
 50. In New York, it is sufficient in an in- 
 dictment for arson in the first degree to 
 describe a building which has been usually 
 occupied by persons lodging therein at 
 night, as a "dwelling-house," although it 
 may not be a dwelling-house according to 
 the ordinary and popular acceptation of that 
 term. People v. Orcutt, 1 Parker, 252. 
 
 51. Where the second floor of a building 
 was occupied by the prisoner and his wife, 
 and the residue by a tenant who habitually 
 lodged therein, it was held proper to de- 
 scribe it in an indictment for arson as the 
 dwelling- liouse of tiic tenant. Shepherd v. 
 People, 19 N. Y. 537. 
 
 52. An indictment for arson which charged
 
 28 
 
 ARSON. 
 
 Indictment. 
 
 that the defendant did willfully and mali- 
 ciously set fire to and burn a " certain build- 
 ing called a saloon " — held bad in not 
 showing f«r what purpose the building was 
 occupied. State v. O'Connell, 26 Ind. 266. 
 
 53. In Pennsylvania, an indictment under 
 the statute (act of March 21st, 1806), which 
 charged that the defendant set fire to '' a 
 certain barrack," was held insufficient in 
 omitting to allege that the barrack con- 
 tained hay. Chapman v. Com. 5 Whart. 
 427. An indictment which alleges that the 
 defendant on a certain day set fire to and 
 burned a stack of hay, and also a building 
 used as a stable and granary, is bad for 
 duplicity. State v. Fidment, 35 Iowa, 541. 
 
 54. An indictment charging that " S., with 
 force and arms in said county, unlawfully, 
 wickedly, maliciously and mischievously did 
 set fire to, burn and consume one hundred 
 barrels of tar, of the goods and chattels," 
 &c., was held good. State v. Simpson, 2 
 Hawks, 460. 
 
 55. Ownership. An indictment for arson 
 at common law must correctly allege the 
 ownership of the i^roperty burned. McGary 
 V. People, 45 N. Y. 153 ; rev'g 3 Lans. 
 227 ; Martha v. State, 26 Ala. 72 ; Martin v. 
 State, 28 lb. 71. Where the indictment 
 charged the burning of a certain dwelling- 
 house which was the j^roperty of one L., and 
 the dwelling-house of one C, it was held 
 bad, it being uncertain whether the build- 
 ing burned was the property of L. or C. 
 People V. Myers, 20 Cal. 76. 
 
 56. Where an indictment for arson alleged 
 that the building burned was the property 
 of "The Phoenix Mills Company," and it 
 was proved on the trial that the name of the 
 company was "The Phoenix Mills, of Seneca 
 Falls," it was held that the variance was 
 fatal. McGary v. People, 45 N. Y. 153, 
 Grover. Peckham and ¥o\gev,^ 3. ^dissenting; 
 rev'g 2 Lans. 227. 
 
 57. Arson being an offense against the 
 security of the dwelling-house, and not 
 against the building as property, the proper 
 mode of describing the suVvject of the burn- 
 ing in an indictment, is to call it the house 
 of the person who dwells in it. Where the 
 buildinsr was allesed to be the buildinsr of 
 
 the owner, and it was proved, that at the 
 time of the oftense, it was in the possession 
 of a tenant, it was held that the prisoner 
 could not be convicted. People v. Gates, 15 
 Wend. 159. 
 
 58. Where part of a building is let for a 
 year, which part has no communication with 
 other parts of the building, the part so 
 occupied, may be laid in an indictment for 
 arson, as the property of the lessee. State 
 V. Sandy, 3 Ired. 570. Where the house 
 consists of two distinct tenements owned 
 and occupied severally, in one of which the 
 crime was committed, it is a misdescription 
 to call it the dwelling-house of both occu- 
 pants; and the fact that there is an interior 
 communication between tenements which 
 are owned and occupied in severalty, with 
 no communication in actual use between 
 them, does not render them by legal intend- 
 ment one habitation. State v. Toole, 39 
 Conn. 342. 
 
 59. An indictment for arson may allege 
 the ownership of the building destroyed to 
 be in the widow of the deceased owner, she 
 having occupied the same since her hus- 
 band's death, notwithstanding there are 
 heirs, and there has been no assignment of 
 dower. State v. Gailor, 71 N. C. 88. 
 
 60. An indictment for burning a barn f 
 sufficiently alleges ownership by the words 
 "then and there heJonging toy Com. v. 
 Hamilton, 15 Gray, 480. 
 
 61. An indictment for arson in burning a 
 public building need not allege that it be- 
 longed to any one. State v. Roe, 12 Vt. 
 93. 
 
 62. When on a trial for arson, the proof 
 of ownership varies from the allegation, and 
 a nolle pros, is thereupon entered, this does 
 not prevent a subsequent prosecution under 
 a new indictment, in which the ownership 
 is alleged to be in a different person; and if 
 the second indictment contains several 
 counts, in one of which the allegation of 
 ownership is the same as in the first indict- 
 ment, and the defendant pleads to the whole 
 indictment autrefois acquit and discontinu- 
 ance, the record of the former prosecution 
 does not sustain either plea. Martha v. 
 State, 26 Ala. 72.
 
 AKSON. 
 
 29 
 
 Indictment. 
 
 Evidence. 
 
 63. An indictment for arson, each count 
 of which charges the offense in the first de- 
 gree, but alleges a different house and differ- 
 ent ownership, is not bad on demurrer. 
 Miller v. State, 45 Ala. 24. 
 
 64. Averment of value. In Indiana, an 
 indictment for arson must allege the value 
 of the property destroyed, and aver the 
 property burned to belong to the person or 
 persons in the actual possession, in his or 
 their own right. Ritchey v. State, 7 Blackf 
 168. 
 
 65. An indictment for burning a barn, un- 
 der a statute which makes the offense punish- 
 able without reference to the value of the 
 building, is not defective by reason of its 
 not alleging value. Com. v. Hamilton, 15 
 Gray, 480. 
 
 66. Conclusion. When arson is forbidden 
 by more than one statute, the conclusion 
 contra formam statuti in the indictment is 
 bad. And in like manner, a conclusion con- 
 tra formam statutorvm is bad, where there is 
 but one statute. State v. Sandy, 3 Ired. 
 570. 
 
 67. In Pennsylvania, an indictment for 
 burning a barn, which did not conclude 
 " against the form of the statute in such case 
 made and provided," was held fatally de- 
 
 ^ fective. Chapman v. Com. 5 Whart. 427. 
 
 4. Evidence, y 
 
 68. Property burned. When an indict- 
 ment for arson alleges that the building 
 burned was called a barn, it may be proved 
 that it was thus called and designated, 
 although it was used for a j^upose other than 
 that indicated by its name. State v. Smith, 
 28 Iowa, 565. 
 
 69. Whether a building is within the curti- 
 lage of a dwelling-house, is a question to be 
 determined by the jury upon the evidence. 
 Com. V. Barney, 10 Cush. 480. 
 
 70. Where the indictment charged the 
 accused with setting fire to a dwelling-house, 
 and the evidence showed that he did not set 
 fire to the house, but attempted to burn uji 
 some personal i)roperty belonging to himself, 
 with intent to defraud the insurers, it was 
 held that the variance was fatal, although 
 the offense proved was embraced in one of 
 
 the inferior statutory degrees of arson. 
 Dedieu v. People, 22 N. Y. 178. 
 
 71. An indictment for burning stacks of 
 wheat is not sustained by evidence of burn- 
 ing shocks of wheat. Denbow v. State, 18 
 Ohio, 11. 
 
 72. Ownership. On the trial of an in- 
 dictment for burning a dwelling-house in 
 the night, the ownership of the house is 
 material, and must be proved as laid. 
 Carter v. State, 20 Wis. 647 ; Com. v. Wade, 
 17 Pick. 395. 
 
 73. On a trial for maliciously setting fire 
 to a building, proof that it was in the actual 
 occupation and possession of the persons 
 named, is evidence of ownership. State v. 
 Taylor, 45 Maine, 323. 
 
 74. On the trial of an indictment for 
 arson, proof that the defendant was in pos- 
 session of the building burned, paying rent 
 to the alleged owner, is sufficient evidence 
 of ownership. People v. Simpson, 50 Cal. 
 304. But such an indictment is not sus- 
 tained by proof that the defendant was in 
 possession of the property under a contract 
 of purchase. State v. Fish, 3 Dutch. 323. 
 
 75. Burning. On a trial for the malicious 
 burning of an outhouse, a piece of the side of 
 the building charged to have been burned, 
 was offered in evidence as exhibiting the 
 whole of the part burned. Held a question 
 of fact for the jury to determine whether the 
 building was actually burned. Com. v. 
 Betton, 5 Cush. 427. 
 
 76. An indictment for arson in burning a 
 gin-house is sustained by proof that it was 
 burned by the ignition of matches, which 
 the defendant put amidst the unginned cot- 
 ton in the gin-house, with the intention of 
 causing it to take fire in the necessary or 
 probable handling of the cotton. Over- 
 street V. State, 40 Ala. 30. 
 
 77. Guilty motive. On a trial for arson, 
 proof that the property burned was insured 
 is admissible to show motive on the part of 
 the prisoner. Didicu v. People, 4 Parker, 
 593; Freund v. People, 5 lb. 198; also, that 
 the prisoner lived unhappily with his wife, 
 who was burned with the building. Shep- 
 herd V. People, 19 N. Y. 537. 
 
 78. On the trial of an indictment for
 
 30 
 
 ARSON. 
 
 Evidence. 
 
 burning a dwelling-house, -which the de- 
 fendant occupied with his family, and also 
 used as a provision store, it appearing that 
 tliere was an insurance on his furniture and 
 stock of provisions, it was held competent 
 for the purpose of showing motive to prove 
 that the property was insured for much 
 more than it was worth. Com. v. Hudson, 
 97 Mass. 565. 
 
 79. Where, on the trial of an indictment 
 for setting fire to the defendant's barn, 
 whereby it and his adjoining dwelling- 
 house were consumed, it was proved that 
 the defendant held a policy of insurance on 
 the buildings, which he surrendered before 
 the trial to the agent of the company, who 
 was out of the jurisdiction of the court, it 
 was held that parol evidence of the contents 
 of the policy was admissible on the question 
 of motive. State v. Watson, 63 Maine, 128 
 
 80. Where, on a trial for arson, it ap- 
 peared that there was a very large insurance 
 upon the goods of the defendant which were 
 destroyed by fire, it was held that the place 
 and amount of such insurance might be 
 proved by parol. State v. Cohn, 9 Nev. 179. 
 
 81. Where an indictment for arson al- 
 leges that the burning was "with intent to 
 charge or injure an insurance company," the 
 jury must be satisfied from the evidence that 
 the defendant had knowledge of the in- 
 surance. Martin v. State, 28 Ala. 71. 
 
 82. On tbe trial of an indictment for 
 burning a building with intent to defraud 
 an insurance company, the existence of the 
 company as a corporation need not be proved 
 by its charter ; nor need a compliance on its 
 part with the laws of the State be proved. 
 It is sufficient to show a corporation de 
 facto^ and that the agents by whom the con- 
 tract of insurance was made were the 
 agents de facto of the corporation. People 
 V. Hughes, 29 Cal. 257. Neither is it neces- 
 sary to prove that the policy was valid ; and 
 a variance between the name of the in- 
 surance company in the indictment, and 
 that proved, will not be a ground for arrest 
 of judgment. lb. 
 
 83. On the trial of an indictment for 
 burning a barn, it was held that threats of 
 revenge made by the defendant on account 
 
 of an arrest and imprisonment caused by 
 the owner of the barn, and uttered from one 
 to two years previously, were admissible in 
 evidence. Com. v. Goodwin, 14 Gray, 55. 
 
 84. Where, on the trial of an indictment 
 for burning a barn, there is proof of the hos- 
 tility of the defendant toward the occupant 
 of the property destroyed, it is not a case re- 
 quiring the judge to instruct the jury 
 whether or not uncorroborated confessions 
 will warrant a conviction. Com. v. Mc- 
 Cann, 97 Allen, 580. 
 
 85. On a trial for setting fire to a jail, the 
 indictment under which the defendant was 
 confined in the jail at the time he set' fire to 
 it is competent evidence to show the cause 
 of his detention, and his intent. Luke v. 
 State, 49 Ala. 30. 
 
 86. Presumptions. It is competent to 
 prove that the defendant, some five or six 
 months before the burning charged in the 
 indictment, requested another person to bum 
 the house. Martin v. State, 28 Ala. 71. 
 
 87. A hay bam was burned in the same 
 village in which arson was committed, 
 about three hours previous thereto, and it 
 was proved that the prisoner was seen in 
 the vicinity of the barn before and after it 
 took fire. Held^ that the evidence was 
 proper to show the whereabouts and con- 
 duct of the prisoner shortly before the oc- 
 currence with which he was charged, as 
 bearing upon the question of opportunity 
 and guilty intent. Woodford v. PeojDle, 5 
 N. Y. Supm. N. S. 539. 
 
 88. On the trial of an indictment for ar- 
 son, it is competent to prove that goods 
 stolen from the burnt house were found in 
 the possession of the prisoner. Johnson v. 
 State, 48 Ga. 116. 
 
 89. On a trial for arson it is not erroneous 
 to charge the jury that the fact that two of 
 the witnesses acted upon their belief and 
 knowledge that the person they saw was the 
 accused, and caused him to be arrested 
 within an hour after the fire was set, tended 
 to corroborate their testimony as to identi- 
 fying him, notwithstanding they swore less 
 positively as to his identity before the com- 
 mitting magistrate. State v. Denniu, 32 
 Vt. 158.
 
 ARSON. 
 
 31 
 
 Evidence. 
 
 90. On the trial of an indictment for 
 burning a barn and slaughterhouse, after 
 proof that the fire was set by means of a 
 box containing a lighted candle, that the 
 box was prepared for incendiary purposes, 
 and that it was made at the defendant's 
 shop, an anonymous letter in the defendant's 
 handwriting, dated five days before the fire, 
 was put in evidence, stating that the writer 
 and another person had been engaged in 
 setting fire to buildings by means of boxes, 
 and that they expected to receive more of 
 such boxes, and to use them for setting 
 other fires. It was then proved that another 
 box was found a few weeks before the fire, 
 similar to the first mentioned box, and that 
 it was made at the defendant's shop. The 
 jury were instructed that if they should be 
 satisfied that the defendant made the latter 
 box the evidence was not to be used to show 
 that he also made the box with which the 
 fire was set, but only to show that he 
 possessed the requisite skill, materials, 
 tools, and opportunity to have made it, 
 unless they should find that one hand 
 must have made both. Held^ no ground 
 of exception. Com. v. Choate, 105 Mass. 
 451. 
 
 91. On the trial of an indictment for will- 
 fully setting fire to, and burning a barn, it 
 appeared that the owner of the barn kept a 
 watch-dog, which usually slept in the kitch- 
 en of the house; that the dog was there 
 when the barn was burnt, and did not bark 
 until strangers began to collect around the 
 building, after the alarm of fire had been 
 given. Eeld^ that it was not competent to 
 prove that the dog generally barked when 
 strangers passed the house, and was quiet 
 when inmates of the house passed, in order 
 to show that the person who committed the 
 offense was an inmate of the house, or to 
 corroborate the declaration of the defendants 
 that they intended to set fire to the barn, 
 and must do it soon after leaving the house, 
 before the dog forgot them. Com. v. Mar- 
 shall, 15 Gray, 202. 
 
 92. On the trial of an indictment for ar- 
 son, it was held competent for the prosecu 
 tion to prove another and different firing of 
 the premises, three or four weeks previous to 
 
 Verdict. 
 
 the firing charged in the indictment, under 
 circumstances tending to cast suspicion on 
 the defendants. State v. Rohfrischt, 12 La. 
 An. 382. 
 
 93. "Where, on a trial for arson, the prose- 
 cution has proved the burning of the house, 
 as charged, and offered evidence tending to 
 show that the defendant was the person who 
 set fire to it, evidence that another house 
 was subsequently burned, owned by the 
 prosecutor, is irrelevant; nor is it made rele- 
 vant by being offered in connection with 
 proof of defendant's declaration made after 
 the first, but before the second burning, 
 that he was not yet done with the prose- 
 cutor, especially if this declaration is proved 
 to have been made in a conversation, when 
 '' no reference was made to either of the 
 burnings, the parties speaking of a civil case 
 which defendant brought before the prose- 
 cutor as a justice of the peace, the defendant 
 complaining that the prosecutor had treated 
 him rascally." Brock v. State, 26 Ala. 
 104. 
 
 94. On the trial of an indictment for 
 burning a house which is insured, with in- 
 tent to injure or defraud the insurer, after 
 evidence tending to establish a conspiracy 
 to commit the offense between the defendant 
 and another, the acts or declarations of such 
 other person showing an effort to procure 
 payment from the insurer of the amount of 
 the loss insured against are admissible. 
 People V. Trim, 39 Cal. 75. 
 
 95. Where two persons are separately in- 
 dicted for arson, the production of the rec- 
 ord of conviction of one of them is not evi- 
 dence against the other. Kazer v. State, 5 
 Ham. 280. 
 
 5. Ve;i{dict. 
 
 96. Degree of guilt. In New York, under 
 an indictment for a higher degree of arson, 
 the defendant may be found guilty of a 
 lower degree; and although charged with 
 setting fire to a building, he may be tried 
 for setting fire to the goods and furniture in 
 the building. Didieu v. People, 4 Parker, 
 593; Freund v. People, 5 lb. 198.
 
 32 
 
 ASSAULT AND BATTERY. 
 
 Simple. 
 
 What Constitutes. 
 
 Assault ani Sattmi. 
 
 1. Simple. 
 
 (a) What constitutes. 
 
 (5) Justifiable use of force. 
 
 (c) Indictment. 
 
 (d) Sow tried. 
 
 (e) Evidence for prosecution. 
 (/) Eoidence for defense, 
 (g) Verdict and judgment. 
 
 2. Assault with intent to kill. 
 
 {a) What constitutes. 
 (5) Indictment. 
 
 (c) Evidence. 
 
 [d) Verdict. 
 
 1. Simple. 
 (a) What constitutes. 
 
 1. Meaning of assault. An assault is an 
 attempt or offer to commit personal violence : 
 as the striking at one with or without a 
 weapon, or presenting a gun at him within a 
 distance which the gun will carry, or point- 
 ing a pitchfork at him, standing within the 
 reach of it, or by holding up one's i3st at him 
 in a threatening manner. State v. Morgan, 
 3 Ired. 186 ; U. S. v. Hand, 2 Wash. C. C. 
 435. An assault may be committed on one 
 or more persons at the same time, and by 
 the same act. State v. Bradley, 34 Texas, 
 95. 
 
 2. Must be violence. In order to con- 
 stitute an assault, there must be something 
 more than mere menace. There must be vio- 
 lence begun to be executed. But where 
 there is a clear intent to commit violence, 
 accompanied l)y acts which, if not interrupt- 
 ed, will be followed by personal injury, tlie 
 assault is complete. People v. Yslas, 27 Cal. 
 630. A mere purpose to commit violence, 
 however plainly declared, if not accompanied 
 by an effort to carry it into immediate exe- 
 cution, does not constitute an assault. Smith 
 V. State, 39 Miss. 521. Handy, J., dissent- 
 ing, held that if a party make an advance 
 upon another, armed with a dangerous weap- 
 on, likely to produce great bodily injury, 
 and in a hostile attitude, to all appearances 
 indicating an intention to do the other great 
 bodily harm, it is an assault, though the party 
 
 did not intend to do the other any bodily 
 injury. The mere fact of a person going to 
 a place with the design to commit an assault 
 upou another, will not make him liable, un- 
 less he carry his intention into effect. Yoes 
 V. State, 4 Eng. 42. So, the drawing of 
 a pistol without presenting or cockiug it, 
 is not an assault. Lawson v. State, 30 Ala. 
 14. 
 
 3. If a person ride his horse so near to 
 another as to endanger his person, and create 
 a belief in his mind that it is his intention 
 to ride upon him, it is an assault. State v. 
 Sims, 3 Strobh. 137. 
 
 4. An offer to strike by rushing upon an- 
 other, will be an assault, alrhough the assail- 
 ant be not near enough to reach his adver- 
 sary, if the distance be such as to induce a 
 man of ordinary firmness to suppose that he 
 will instantly receive a blow. State v. Davis, 
 1 Ired. 125; State v. Benedict, 11 Vt. 236. 
 A. approached B. in a threatening manner, 
 with a stick in his hand, which he raised in 
 the attitude to strike when he was stopped 
 by a third person before he was near enough 
 to B. to reach him witli the stick. Held an 
 assault. State v. Vannoy, 65 N. C. 532. On 
 the trial of a complaint for an assault, the 
 following instruction was held correct: That 
 " if the defendant, within shooting distance, 
 menacingly jjointed at H. a gun which H. 
 had reasonable cause to believe was loaded, 
 and H. was actually put in fear of immediate 
 bodily injury therefrom, and the circum- 
 stances were such as ordinarily to induce 
 such fear in the mind of a reasonable man, 
 an assault was committed, whether the gun 
 was in fact loaded or not. Com. v. White, 
 110 Mass. 407; s. c. 2 Green's Crim. Reps. 
 269. 
 
 5. There may be an assault without per- 
 sonal injury. State v. Myers, 19 Iowa, 517. 
 But a criminal conviction for an assault can- 
 not be upheld where no battery has been 
 committed, and none attempted, intended, 
 or threatened by the party accused. People 
 V. Bransby, 32 N. Y. 525. In Massachusetts, 
 where the defendant snatched two bank bills 
 from another's hand, touching the hand as' 
 he did so, but without any force, and run- 
 ning away, it was held that it did not con-
 
 ASSAULT AND BATTERY 
 
 33 
 
 Simple. 
 
 What Constitutes. 
 
 stitute an assault with force and violence 
 ■within the statute (R. S. eh. 125, § 16). 
 Com. V. Ordway, 12 Cush. 270. 
 
 6. To constitute an assault with a gun, it 
 is not necessary that the person holding it 
 should raise it to his shoulder. State v. Ep- 
 person, 27 Mo. 255. Upon the occurrence of 
 an altercation between A. and B., A. got up 
 from his seat and took his gun down from 
 its rack, whereupon a bystander immediately, 
 before he turned around with it, seized hold 
 of him and prevented his using it. Held, 
 that if A. took the gun from the rack with 
 the intention of making an immediate bat- 
 tery with it, he was guilty of an assault. 
 Higginbotham v. State, 23 Texas, 574. But 
 to constitute an assault with a pistol, the 
 pistol must be presented within a dangerous 
 distance. Tarver v. State, 43 Ala. 354. 
 
 7. Any forcible taking of property from 
 the possession of another, by means which 
 overcome resistance, however slight, con- 
 stitutes an assault. State v. Gorham, 55 
 New Hamp. 152; but not the striking of the 
 horses of the prosecutor in a rude and angry 
 manner while he is driving his team in a 
 field, in the act of gathering corn. Kirk- 
 land V. State, 43 Ind. 146 ; s. c. 2 Green's 
 Grim. Reps. 706. 
 
 8. Sprinkling paint from the second story 
 window of a house upon a person in the 
 street below, is an assault and battery. Peo- 
 ple V. McMurray, 1 Wheeler's Cr. Gas. 62. 
 
 9. Addressing another with threatening 
 language, and then placing the open hand 
 on his breast and pushing him back, consti- 
 tutes assault and battery. State v. Baker, 
 65 N. G. 332. 
 
 10. Where a person who was about to be 
 arrested by an officer for a breach of the 
 peace, drew back a knife within striking 
 distance, and ordered the officer to stand, 
 which he did, it was held that the person 
 was guilty of an assault. Stockton v. State, 
 25 Texas, 772. 
 
 11. If a person unlawfully detain another, 
 he is liable to an indictment for assault and 
 battery. Long v. Rogers, 17 Ala. 540; and 
 if the opposition is such as a prudent man 
 would not risk, it is false imprisonment. 
 Smith V. State, 7 Humph. 43. 
 
 3 
 
 12. Threats. Threats aggravate an as- 
 sault ; and it matters not that the threats 
 were conditional, if the conditions were such 
 as the party had no right to impose. Crow 
 V. State, 41 Texas, 468. A person drew a 
 pistol, cocked it, pointed it toward another's 
 breast, the parties being close together, and 
 said, "If you do not pay me my money, I 
 will have your life." Held an assault. Keefe 
 V. State, 19 Ark. 190. An instruction that 
 " if the prosecutor gave up his gun to the 
 prisoner through fear of bodily harm reason- 
 ably excited in his mind by the conduct or 
 manner of the prisoner, then the prisoner 
 might be guilty of an assault," is not erro- 
 neous. Balkum v. State, 40 Ala. 671. 
 
 13. When a person presents a pistol at an- 
 other, threatening to shoot, and putting him 
 in fear, it is an assault; and it is doubtful 
 whether the act can be excused by proving 
 that the pistol was not loaded, without also 
 proving that the other person knew that 
 fact. In such case, the burden of proof is 
 with the defendant, to show that the pistol 
 was not loaded, and that the party assaulted 
 knew that it was not. State v. Cherry, 11 
 Ired. 975; State v. Smith, 2 Humph. 457; 
 State V. Shepard, 10 Iowa, 126; Crow v. 
 State, 41 Texas, 468. But see Agitone v. 
 State, lb. 501. 
 
 14. Defendant having lost his pocket-book, 
 took a pistol, and holding it in his hand, 
 told his clerk that he believed he had the 
 money, that if he knew he had it he would 
 kill him, at the same time pointing his fin- 
 ger at his head to show where he would 
 shoot him. Being told by a third person to 
 put up the pi>tol, he did so, and then put 
 his hands on the clerk's pocket to see if the 
 pocket-book was there. Held an assault 
 and battery. Johnson v. State, 17 Texas, 
 515. 
 
 15. Where several armed men pursue an- 
 other with threats and insults, and induce 
 him to go home sooner than, or by a difier- 
 ent route than the one he intended, they are 
 guilty of an assault upon him, altiiough a 
 gun was not pointed at him, and they did 
 not approach nearer him than seventy-five 
 yards. State v. Rawles, 65 N. C. 334. 
 
 16. Where the defendant placed himself
 
 34 
 
 ASSAULT AND BATTERY, 
 
 Simple. 
 
 What Constitutes. 
 
 immediately in front of the prosecutor, as- 
 sumed an attitude to strike within striking 
 distance, and in an angry manner exclaimed, 
 " I have a good mind to strike you," it was 
 held an assault. State v. Hampton, 63 N.C. 13. 
 And where the defendant drew a pistol, ad- 
 vanced within ten steps of the prosecutor,who 
 was retiring, threatened to shoot him if he 
 did not leave, and drove him from the place, 
 which was where he had a right to be, it 
 was held an assault, although the pistol was 
 neither cocked nor presented. State v. 
 Church, 63 N. C. 15. 
 
 17. If one offers to strike with a deadly 
 weapon, although he announces his purpose 
 not to do so if his terms are instantly com- 
 plied with, and although his terms be such 
 as he has a right to exact, he is guilty of an 
 assault, for the reason that he ought first to 
 resort to milder measures, and not put in 
 use a deadly weapon at the outset. Where, 
 therefore, under an indictment charging an 
 assault to have been committed on S., it 
 WPS proved that the defendant stood in the 
 door of his grocery with a pistol in his 
 hand presented, sometimes bearing upon S. 
 and sometimes not, and swearing that if S. 
 came in he would shoot him, it was held 
 that the defendant was properly convicted. 
 State V. Myerfield, Phil. N. C. 108. 
 
 18. A conviction cannot be had for an 
 attempt to discharge a i^istol when the in- 
 dividual indicted has proceeded no further 
 toward an actual discharge than to raise and 
 point the pistol uncocked at another, at the 
 same time threatening to discharge it if the 
 other puts his hand on him or advances 
 toward him. Mulligan v. People, 5 Parker, 
 105. 
 
 19. Where the defendants, with their com- 
 rades, in all six in number, with loud oaths, 
 dealt heavy blows with dangerous weap- 
 ons, inflicting terrible wounds, the provoca- 
 tion being that their entrance was resisted 
 into a lawful and peaceable gathering, which, 
 by a formal vote previously made known to 
 them, had excluded all who had not re- 
 ceived tickets of admission, it was held 
 that they were rightly convicted of an un- 
 lawful assembly and riotous assault. State 
 Y. Yeaton, 53 Maine, 125. 
 
 20. Ability to injure. Whatever may 
 have been the intention of a person, as man- 
 ifested by threatening gestures and words, 
 if he had not the ability to commit a battery, 
 he cannot be convicted of an assault. Smith 
 V. State, 33 Texas. 593. 
 
 21. Absence of intention. If when a 
 person raises his whip to strike another he 
 says : '' Were you not an old man I would 
 knock you down," and has no present 
 intention to strike, it is not an assault. State 
 V. Crow, 1 Ired. 875 ; Com. v. Eyre, 1 Serg. 
 & Rawle, 347. 
 
 22. The pointing of a pistol at another 
 playfully, or accompanied with a declara- 
 tion that he did not intend to shoot, or 
 other words showing the absence of a crim- 
 inal intent, would not be an assault, unless 
 the other had good reason to apprehend 
 danger. Richels v. State, 1 Sneed, 606. 
 
 23. A. went up to B. with a cocked pistol 
 in his hand, but which he did not raise or 
 point, and addressing B., said : "I am now 
 ready for you." B. thereupon seized him by 
 the collar and pushed him back several feet, 
 when A. struck him with his pistol, extri- 
 cated himself from his grasp, and went into 
 a neighboring store. Held, that A. was not 
 guilty of an assault. Warren v. State, 33 
 Texas, 517. 
 
 24. Where person presents a gun within 
 shooting distance of another, who is armed 
 with a knife, and about to attack him, it is 
 not an assault, if there be no attempt to use 
 the gun, or intention to use it until first at- 
 tacked. State V. Blackwell, 9 Ala. 79. 
 
 25. On the trial of an indictment for as- 
 sault and battery and false imprisonment, 
 proof that the defendants were employed to 
 arrest and forcibly imprison a child, they 
 being wholly ignorant of an intent on the 
 part of their employer to cause the child to 
 be sent out of the State, will not, in law, 
 charge them with such intent. Com. v. 
 Kickerson, 5 Alien, 518. 
 
 26. By infant. Although at common law 
 a boy under the age of fourteen is not liable 
 to indictment for an ordinary assault and 
 battery, yet it is otherwise when the battery 
 is aggi'avated, or when from numbers it
 
 ASSAULT AND BATTERY. 
 
 35 
 
 Simple, 
 
 What Constitutes. 
 
 amounts to riot, or when it is prompted by 
 lust. State V. Pugh, 7 Jones, G1. 
 
 27. By mutual consent. Two persons 
 may commit an assault and battery each 
 upon the other at the same time, as when 
 they mutually fight by agreement. Each 
 would be guilty of a distinct and several 
 ofiense, but the oiFenders may be joined in the 
 same indictment if severally charged. State 
 V. Lonon, 19 Ark. 577. 
 
 28. There need not be mutual blows to 
 constitute a mutual combat. There must be 
 a mutual intent to fight, but if this exists, 
 and but one blow be struck, the mutual 
 combat exists, even though the first blow 
 kills or disables one of the parties. Tate v. 
 State, 46 Ga. 148. 
 
 29. Where an indictment which charged 
 that the defendant and one T. " did commit 
 an affray by fighting together by mutual and 
 common consent in public view" was in- 
 dorsed "a true bill" as to the defendant 
 alone, it was held that he might be convicted 
 of assault and battery. State v. Wilson, 
 Phil. N. C. 237. 
 
 30. On the trial of an indictment for as- 
 sault and battery, the jury were instructed 
 that if the defendant took the prosecutrix 
 into a room and locked himself in with her, 
 with intent to have connection with her, she 
 being ignorant of his intent, he was guilty 
 of an assault, although she afterward as- 
 sented to his wishes, and to his having con- 
 nection with her. Held, error. People v. 
 Bransby, 33 N. Y. 525. 
 
 31. Inciting. One who incites or pro- 
 cures another to commit an assault and bat- 
 tery, without directly participating in it 
 himself, is guilty as a principal. State v. 
 Lymburn, 1 Brev. 397; Baker v. State, 12 
 Ohio, N. S. 214. 
 
 32. The following instruction was held 
 correct: That if in a tumultuous crowd the 
 defendant saw a person by him known to be 
 an officer in the discharge of his duty, as- 
 saulted, and used words, acts, or gestures 
 which tended to incite and encourage the 
 person then assaulting the officer to assault 
 him, he might be convicted of an assault, 
 notwithstanding he did not in person touch 
 
 or injure the officer. Com. v. Hurley, 99 
 Mass. 433. 
 
 33. Where several persons, without proces3 
 of law, enter a man's premises in order to 
 search for stolen property, and one of them 
 commits an assault and battery on the owner, 
 the others are not liable, unless the assault 
 was committed during the prosecution of 
 their original unlawful purjDose, or within 
 such a time afterward as to satisfy the jury 
 that it was connected therewith. Thomp- 
 son V. State, 25 Ala. 41. 
 
 34. By direction of another. The forci- 
 ble taking away a child nine years of age, 
 against the will of his father, or of those to 
 whom his father had committed him for 
 nurture or education, will constitute an as- 
 sault and battery and imprisonment of the 
 child, whatever may have been the apparent 
 wishes or satisfaction of the child in being 
 thus taken, and althougli the defendants 
 acted by direction of the mother of the child. 
 Com. V. Nickerson, 5 Allen, 518, 
 
 35. Where two persons cultivated land on 
 shares, and the agent of one of them went 
 on to the land to remove his principal's 
 share of the crops, which he attempted to 
 do from a cart in which the other had de- 
 posited crops gathered by him, and a servant 
 of the latter forcibly removed the agent 
 from the land, by his master's orders, it was 
 held that the servant was guilty of an assault 
 and battery. Com. v. Rigney, 4 Allen, 316. 
 
 36. By husband on wife. A husband 
 cannot lawfully inflict corporal chastisement 
 on the wife, or offer any violence to her, ex- 
 cept to prevent her improper interference 
 with the exercise of his parental authority. 
 Gorman v. State, 42 Texas, 231 ; or to defend 
 himself against her, and restrain her from 
 acts of violence toward himself or other.". 
 People V. Winters, 2 Parker, 10. 
 
 37. In North Carolina a man could not 
 formerly be convicted of assault and battery 
 for moderately whipping his wife, although 
 done without provocation. State v. llhodes, 
 Phil. N. C. 453. But in that State the old 
 doctrine, tliat a husband has a right to wliip 
 his wife, provided he uses a switch no larger 
 than his thumb, is not now law. State v. 
 Oliver, 70 N. C. GO. Where a husband, seiz-
 
 36 
 
 ASSAULT AND BATTERY 
 
 Simple. 
 
 What Constitutes. 
 
 ing his wife by her left arm, said he would 
 kill her, and then, brandishing a knife over 
 her, drew back as if to strike, when his arm 
 was caught by a bystander, it was held that 
 the husband was guilty of an assault. State 
 Y. Mabrey, 64 N. C. 592 ; approving State 
 V. Rhodes, stipra. 
 
 38. By parent. On the trial of an indict- 
 ment for assault and battery, it appeared 
 that the defendant lived with the mother of 
 the boy ; that although they were not mar- 
 ried, they lived together as man and wife; 
 that the mother committed the care of the 
 boy to the defendant, and that for some mis- 
 conduct the defendant whipped the boy. 
 Held, that as the defendant acted in loco 
 parentis^ and the injury to the boy was not 
 lasting, the defendant was justified. State 
 v. Alford, 68 N. C. 322. 
 
 39. By teacher. As a general rule, teach- 
 ers, in chastising their pupils, exceed the 
 limits of their authority when they cause 
 lasting mischief, but act within the limits of 
 it when they inflict temporary pain. State 
 v. Pendergrass, 2 Dev. & Batt. 365. Courts 
 and juries should hold a strong and stern 
 hand over teachers who abuse their author- 
 ity by the infliction of excessive corporal 
 punishment. Gardner v. State, 4 Ind. 632. 
 Whether, under the circumstances, the pun- 
 ishment of a pupil by a teacher is excessive, 
 must be left to the jury. Com. v. Randall, 
 4 Gray, 36. 
 
 40. Where the relation of schoolmaster 
 and scholar, parent and child, master and 
 apprentice, or any similar relation is estab- 
 lished, in defense of a prosecution for assault 
 and battery, the legal presumption is that the 
 chastisement was proper ; and the burden of 
 proof is on the prosecution to show that it 
 was excessive or without proper cause. An- 
 derson V. State, 3 Head, 455. 
 
 41. Where the teacher of a private school 
 requests one of the pupils to leave for insub- 
 ordination and misconduct, which he refuses 
 to do, the teacher may lawfully avail him- 
 self of the assistance of a third person to 
 remove the pupil, and a schoolmate of the 
 latter oftering resistance inhisbehalf, will be 
 guilty of assault and battery. State v. Wil- 
 liams, 27 Vt. 755. 
 
 42. By master. A master cannot law- 
 fully punish his apprentice for obedience ta. 
 a subpoena or any other legal process. Where 
 an apprentice had testified as a witness on a 
 trial, it was held that whether he had been 
 subpoenaed or attended voluntarily, his mas- 
 ter could not lawfully chastise him for it. 
 People V. Suiffin, 1 Wheeler's Cr. Cas. 512. 
 
 43. The authority of a master over his 
 apprentice is strictly personal, and he has 
 no right to direct or permit a person in 
 his employ to chastise the apprentice. Peo- 
 ple V. Phillips, 1 Wheeler's Cr. Cas. 155. 
 
 44. The keeper of an almshouse, for the 
 purpose of maintaining order, may lawfully 
 restrain its inmates by a reasonable amount 
 of preventive force; but he has no right 
 to confine and chain a pauper 79 years of 
 age, although directed to do so by the select- 
 men of the town. State v. Hull, 34 Conn. 
 132. 
 
 45. By oflBcer. An officer will not be ex- 
 cused, who without intending to commit an 
 assault and battery uses in making an arrest 
 more force than is necessary. Golden v.. 
 State, 1 Rich. N. S. 292. 
 
 46. An agricultural society has no right 
 to exclude public travel from any portion of 
 the highway, although there is sufficient 
 room for public travel on the highway outside 
 of the limits included in their lines. There- 
 fore on the trial of a complaint against the 
 officers of such a society for assault and bat- 
 tery, it was held that the jury were properly- 
 instructed that the defendants were not jus- 
 tified in arresting the complainant with- 
 out legal process, because he refused when 
 directed to fall back within lines fixed by 
 the society within the highway, or because 
 when thus directed, he struck the horse of 
 one of the marshals, without any malicious 
 intent to injure the horse or its rider. Com. 
 V. Ruggles, 6 Allen, 588. 
 
 47. In resisting officer. If an officer take 
 property under an attachment in which the 
 defendant has no attachable interest, he can- 
 not be lawfully resisted by the owner; and 
 if tlie owner do so, he will be liable to an 
 indictment for assault and battery. State 
 V. Buchanan, 17 Vt. 573. But in Alabama, 
 where an ofliccr attempts to seize under exe- 
 
 J
 
 ASSAULT AND BATTERY. 
 
 37 
 
 Simple. 
 
 What Constitutes. 
 
 Justifiable use of Force. 
 
 ■cution articles exempt by law from levy and 
 sale, after being warned of the fact, the 
 owner may employ as much force as is 
 necessary to prevent the levy. State v. John- 
 son, 12 Ala. 840. The subsequent failure of 
 the officer to make a complaint before a 
 magistrate against his prisoner for the oifense 
 for which he had arrested him, is not a de- 
 fense to an indictment for an assault upon 
 the officer. Com. v. Tobin, 108 Mass. 42G. 
 
 48. By conductor. Where the conductor 
 of a railroad train, soon after it left the depot, 
 demanded from a passenger his ticket, with- 
 out offering him a check, and upon his re- 
 fusal to surrender his ticket, forcibly ejected 
 him from the car, it was held on the trial of 
 an indictment for assault and battery against 
 the conductor therefor, that the latter was 
 liable, on the ground that the passenger was 
 not bound to give up his ticket until a check 
 was first tendered him. State v. Thompson, 
 20 New Hamp. 250. 
 
 (h) Justijiulle use of fo-rce. 
 
 49. In ejecting passenger from car. A 
 passenger who does not purchase his ticket 
 before entering the cars may be required to 
 pay a higher rate of fare, and on his refusal, 
 may be expelled from them by force with no 
 unnecessary violence. State v. Chovin, 7 
 Iowa, 204, Stockton, J., dissentirig. 
 
 50. A railroad company has a right to fix 
 rates of fare by a tariff posted at their 
 stations, and to allow a discount on such 
 rates to persons who buy their tickets before 
 they enter the cars ; and one entering the 
 cars without buying his ticket cannot claim 
 the discount, though he had no knowledge 
 of the regulation, and if he refuses to pay 
 the full fare, he may be put off of the train 
 at a regular station. State v. Goold, .53 
 Maine, 279. 
 
 51. Where the conductor of a train called 
 upon a passenger for his fare, told him what 
 it was, and referred to the regulation of the 
 company fixing it at the amount demanded, 
 and the passenger replied that he should 
 only pay a less sum, naming it, and that the 
 conductor would have to put him off, as he 
 should only pay the sum which he had 
 offered, it was held the duty of the con- 
 
 ductor to put the passenger off of the cars 
 immediately, with as much expedition as 
 was consistent with the delinquent's safety 
 and the safety and convenience of other 
 passengers, and that after the train was 
 stopped for that purpose, the conductor was 
 not bound to receive the fare when tendered, 
 and permit the passenger to remain on the 
 train. People v. Jillson, 3 Parker, 234. 
 
 52. If the regulation for the collection of 
 railway tickets is a reasonable one, and es- 
 sential to the interests of the company, a 
 passenger who refuses to comply with it 
 may be required to leave the car, and if he 
 refuses to go, bs ejected without unnec- 
 essary violence. People v. Caryl, 3 Parker, 
 326. 
 
 53. A passenger on the cars had an excur- 
 sion ticket "good for one passage on the 
 day sold only," and also a regular ticket; 
 and upon being called on by the conductor 
 to show his ticket, he produced the one for 
 the excursion which had expired, and kept 
 the other out of view. Upon refusing to 
 pay his fare, he was forcibly ejected. Held 
 that he had no right afterward to enter the 
 cars upon producing his regular ticket. 
 State V. Campbell, 3 Vroom (32 N. J.) 309. 
 
 54. A person purchasing a railroad ticket 
 acquires the riglit to be carried directly to 
 his place of destination ; but not to be trans- 
 ported from one point to another upon the 
 route at different times, and by different 
 lines of conveyance. If, therefore, without 
 the j^ermission of the company, he gets out 
 at a way station, and upon taking another 
 train refuses to pay the fare, the conductor 
 may remove him from the cars, using no 
 more force than is necessary. The reason- 
 ableness of the regulation is a question of 
 law for the court. State v. Overton, 4 Zabr. 
 435. 
 
 55. Where a party takes passage on a rail- 
 road train, the company is not bound to 
 furnish him ingress and egress to and from 
 the cars at any intermediate station ; and if 
 he leaves the cars at any intermediate point, 
 he does so at his own risk. When a train 
 stops on a side track, awaiting the passage 
 of another train out of time, a passenger 
 may rightfully leave tiie car if no objection
 
 38 
 
 ASSAULT AND BATTERY. 
 
 Simple. 
 
 Justifiable use of Force. 
 
 be made or notice given ; but he for the 
 time surrenders his place as a passenger, and 
 takes upon himself the direction and re- 
 sponsibility of his own motions during his 
 absence. If he has left the car without 
 objection, and is on the platfonn or near 
 the track when the train is about to start, 
 the company should give him reasonable 
 notice to return; and if there be an estab- 
 lished signal by blowing the whistle, that 
 should be sounded. But they are not bound 
 to go after him if out of sight and out of the 
 reach of the voice. State v. Grand Trunk 
 R. R. 58 Maine, 17G. 
 
 56. A conductor may eject a passenger 
 from the car, not only for such misconduct 
 as disturbs the peace and safety of the otiier 
 passengers, but also for grossly profane or 
 indecent language. People v. Caryl, 3 
 Parker, 326. 
 
 57. Defense of property. A man may 
 order another out of his house, and if he 
 refuse to go, use sufficient force to put him 
 out. But no violence will be justifiable. 
 State V. Lazarus, 1 Rep. Con. Ct. 34. 
 
 58. The idea that is embodied in the ex- 
 pression that a man's house is his castle, is 
 not that he has a right to defend it by more 
 extreme means than he might lawfully use 
 to protect his shop, ofHce, or barn. An as- 
 sault on the house, can be regarded as an 
 assault on the person, only in case the pur- 
 pose of such assault be injury to the person 
 of the occupant or his family. In such case, 
 the inmate need not iiee from the house in 
 order to escape injury, but may meet his 
 assailant at the threshold, and prevent him 
 from breaking in by any means rendered 
 necessary by the exigency. State v. Patter- 
 son, 45 Vt. 308. 
 
 59. Where an assault is made on a house 
 with the intent of doing the inmate great 
 bodily harm, he may use a deadly weapon if 
 it be necessary, or the inuiate has reason to 
 believe, and does believe it necessary to pre- 
 vent the perpetration of such crime. lb. 
 
 60. Where a tenant at sufferance placed 
 windows in the dwelling-house occupied by 
 him, and after the expiration of the tenancy, 
 and after the house so occupied was sold to 
 anotlier, who had taken possession by his 
 
 tenant, went back to remove the windows 
 from the house, and was proceeding to do 
 so, when the occupant forcibly siezed and 
 took away the windows, causing some in- 
 jury to the former tenant. Held not assault 
 and battery. State v. Elliott, 11 New Hamp. 
 540. 
 
 61. On the trial of a complaint for assault 
 and battery, it appeared that the defendant 
 had charge of a church as sexton, and that 
 it was his duty to conduct funerals there; 
 that although the complainant had no right 
 to insist upon conducting a funeral, yet that 
 he did so, and that upon being requested to 
 desist and leave the church, he refused. 
 Held that the defendant upon his refusal, 
 had a right to remove him, and that if he 
 used no more force than was necessary, he 
 was justified. Com. v. Dougherty, 107 Mass. 
 343. 
 
 62. A person has no right to use force to 
 protect his possession, or to prevent an 
 injury to his property, unless it is really 
 necessary. A fear, or mere suspicion that 
 another may encroach upon his possession 
 will not justify an assault. McAuley v. 
 State, 3 Greene, 435. A person took hold 
 of the horse of another, and turned the 
 horse's head, whereupon he was told by the 
 owner to let go, wliich he did and then 
 struck the horse on the liead with his hand, 
 causing the horse to step back. The owner 
 of the horse then beat the other and 
 knocked him down with the butt of his 
 whip. Held that the battery was unjustifi- 
 able. Com. V. Ford, 5 Gray, 475. 
 
 63. A tenant in common of a barn floor 
 occupied by his cotenant and himself, has 
 no right to use force and violence to prevent 
 his cotenant from entering the door, though 
 it be for the declared purpose of removing 
 the former's wagon. Com. v. Lakeman, 4 
 Cusii. 597. 
 
 64. Defense of person. The rules which 
 justify self-defense, have been held to extend 
 only to the relations of parent and child, 
 husband and wife, and master and servant. 
 It would seem however that the relations of 
 brother and brother, or brother and sister, 
 or sister and sister, in this respect may be 
 said to stand ujion the same footing of rea-
 
 ASSAULT AND BATTERY. 
 
 39 
 
 Simple. 
 
 Justifiable use of Force. 
 
 Indictment. 
 
 son and justice. Armisteacl v. State, 18 Ga. 
 704, per Starnes, J. 
 
 65. On the trial of an indictment for 
 assault and battery, the defendant will not 
 be held excused, unless it ajjpear, that he 
 acted clearly ia self-defense. The fact that 
 a party has been struck, gives him no right 
 to retaliate by an assault, when it is in his 
 power to keep aloof from the party striking. 
 State V. Gibson, 10 Ired. 314. 
 
 66. If a gun be pointed at one in a threat- 
 ening manner, under such circumstances as 
 to induce a reasonable belief that it is loaded, 
 and will be discharged and thereby produce 
 death or inflict a great bodily injury on the 
 person threatened, he will be justified in 
 using whatever force may be necessary to 
 avert the apparent danger, though it may 
 afterward appear that the gun was not 
 loaded, and that he was in no danger what- 
 ever. People V. Anderson, 44 Cal. 65. 
 
 67. When a man goes to another to assail 
 him or demand explanations, or in anger, 
 and the person addressed puts his hand in 
 his pocket, the bare fear that he has a con- 
 cealed weapon which he is about to draw 
 and use, will not justify the commission of 
 acts of violence on his person. Mitchell v. 
 State, 41 Ga. 527. See Braswell v. State, 42 
 lb. 609. 
 
 68. Every assault will not justify a battery ; 
 and whether the degree of force used by the 
 defendant was justified by the occasion, is 
 to be determined on the evidence. The 
 party assaulted may strike, or use a sufii- 
 cient degree of force to prevent the intended 
 blow, without retreating. He must however 
 take care that he use no more violence than 
 may be necessary to prevent the violence of 
 the assailant. Gallagher v. State, 3 Minn. 
 270 ; State v. Quin, 3 Brev. 515 ; s. c. 2 Const. 
 Rep. 09 1. 
 
 69. Abusive language. Abusive words 
 will not excuse an assault. Stale v. Wood, 
 1 Bay, 351. But on the trial of an indictment 
 for assault and battery, the following charge 
 was held proper: That if the jury believed 
 the prosecutor used insulting and abusive 
 language to the defendant, it might or might 
 not amount to a justification, depending on 
 the extent of the battery ; and if they be- 
 
 lieved from the evidence, that the defendant 
 used the first insulting and opprobrious 
 words, they might take that into consider- 
 tion in determining whether the defendant 
 was justified in making the alleged assault. 
 Arnold v. State, 46 Ga. 455. 
 
 (c) Indictment. 
 
 70. Finding. Where an indictment charges 
 an assault and battery, the grand jury have 
 no right to find a true bill for the assault 
 alone, but must find for the entire charge, 
 State V. Wilburn, 2 Brev. 296. 
 
 71. Venue. An indictment which alleges 
 that the defendant did with force and arms 
 make an assault in and upon W., laborer, on 
 
 the ... day of , and then and there did, 
 
 with force and arms, beat, wound, &c., does 
 not lay the venue sufiicieutly, even though 
 the name of the county be in the margin. 
 Kennedy v. Com. 3 Bibb, 490. 
 
 72. Time. Where an indictment for an 
 assault and battery omitted to state a certain 
 day and year, it was held ground for arrest 
 of judgment. State v. Beckwith, 1 Stew. 
 318. And an information for an assault, 
 which did not allege the day on which the 
 oftense was committed was held fatally de- 
 fective. State V. Eubanks, 41 Texas, 291. 
 
 73. Person injured. In an indictment for 
 assault and battery, the name of the per- 
 son alleged to have been assaulted, is used 
 only for the purpose of identification ; and 
 when such person is known equally well by 
 two names, the use of either of them is sufli- 
 cient. State v. Bundy, 64 Maine, 507. 
 Where the indictment omitted to name the 
 person assaulted, but alleged that the de- 
 fendant did then and there the said J.L. beat, 
 wound, «&c., it was held sufficient. Heme 
 v. State, 39 Md. 552; s. c. 2 Green's Crim. 
 Reps. 394. 
 
 74. An indictment which alleges that an 
 assault and battery was made on the body 
 of the "deceased," is good; the word "de- 
 ceased " meaning in this connection, that the 
 person injured was dead when the indict- 
 ment was found. Com. v. Ford, 5 Gray, 
 475. 
 
 75. An indictment against a woman for 
 assaulting a female child, and willfully and
 
 40 
 
 ASSAULT AND BATTERY. 
 
 Simple. 
 
 Indictment. 
 
 maliciously leaving her exposed in the street 
 of a city in the night, without proper cloth- 
 ing, shelter or protection, without alleging 
 that the child was of tender years, or unable 
 to take care of herself, or that she was the 
 defendant's child, ward, servant, or appren- 
 tice, or in her care or keeping, or that the 
 child was injured, is insufficient, but may be 
 supported as an indictment for an assault. 
 Com. V. Stoddard, 9 Allen, 280. 
 
 76. An indictment alleged that the de- 
 fendant committed an assault and battery 
 upon a female "with clenched fists and open 
 hands," but did not allege that the oflFense 
 was committed by an adult male, or show its 
 character. Held that there could not be a 
 conviction of an aggravated assault. Black- 
 bum V. State, 39 Texas, 153. But an indict- 
 ment which alleges that the defendant made 
 an assault upon a constable while in the dis- 
 charge of his official duties, charges an 
 aggravated assault. State v. Coffey, 41 lb. 
 46. Where however, an indictment alleged 
 that the defendant " went into the residence 
 of A. and did then and there assault, strike, 
 and beat," it was held that it did not charge 
 an aggravated assault for the reason, that 
 there was no averment that A. had a family. 
 State V. Cass, 41 Texas, 552. 
 
 77. One who assaults two persons at the 
 same time, may be charged in a single count 
 with the assault upon both, and be convict- 
 ed upon proof of an assault upon either. 
 Com. V. O'Brien, 107 Mass, 208. And. an in- 
 dictment is good, which charges two persons 
 with committing an assault and battery upon 
 three others. Fowler v. State, 3 Heisk. 
 154; 8. c. 1 Green's Crim. Reps-. 295. But 
 an indictment against several, which charges 
 that they with a knive, which they then and 
 there with their right hand held, made an 
 assault, &c., is bad. State v. Gray, 21 Mo. 
 492. 
 
 78. For resisting officer. In an indict- 
 ment for resisting an officer in the service of 
 an execution, the place of service, as well as 
 the time the execution was delivered to the 
 officer, must be stated. State v. Hooker, 17 
 Vt. 658. 
 
 79. In Vermont an indictment under the 
 statute, for impeding an officer in the exe- 
 
 cution of his official duty, must show the 
 nature of the official duty, the manner of its 
 execution, and the mode of resistance. State 
 V. Burt, 25 Vt. 373. But not when the in- 
 dictment is laid for an assault of an officer 
 in the execution of his office, as at common 
 law, or under the general statute, upon the 
 matter of a breach of the peace. lb. 
 
 80. Where an indictment for an assault 
 upon a constable, charged that the officer 
 was in the due execution of the duties of the 
 office of constable, and that the defendant, 
 while the said officer was in the due and 
 lawful execution of liis said office, unlaw- 
 fully, knowingly, and designedly did hinder 
 and oppose him; it was held that it suffi- 
 ciently charged that the defendant, knew 
 that the officer assaulted was a constable. 
 Com. V. Kirby, 2 Cush. 577. 
 
 81. Charging offense. Where the indict- 
 ment charged that the defendant "mali- 
 ciously, wickedly and unlawfully did bite or 
 cut off the ear of C," it was held that the 
 disjunctive " or " would have been a fatal ob- 
 jection but for the assault and battery, which 
 was the ofl'ense; the mode in which the in- 
 jury was inflicted being only a circumstance 
 in aggravation. Scott v. Com. 6 Serg. & 
 Rawle, 224. 
 
 82. An indictment charged that the de- 
 fendant committed an assault and battery 
 upon the person of S., a deputy sheriff, while 
 in the lawful execution of the duties of his 
 office, and unlawfully, knowingly and de- 
 signedly obstructed, hindered and opposed 
 him, contrary to the form of the statute, &c. 
 Held not bad for duplicity ; the averments 
 as to the official position of S. and as to the 
 effect of the assault in hindering him being 
 matters in aggravation. State v. Dearborn, 
 54 Maine, 442. 
 
 83. In Massachusetts, an indictment under 
 the statute (of 1849, ch. 49, § 1), is sufficient 
 which charges that the accused *' by and in 
 pursuance of a previous appointment and 
 arrangement made to meet and engage in a 
 fight with another person, to wit. with one 
 C, did meet and engage in a fight with the 
 said C, against the peace," &c. Com. v. 
 Welsh, 7 Gray, 324. In the same State, un- 
 der section 2 of the same statute, an indict-
 
 ASSAULT AND BATTERY. 
 
 41 
 
 Simple. 
 
 Indictment. 
 
 mentis sufficient which charges that " M., 
 at S., on," &c,, " was present as an aid and 
 second, and did advise, encourage, and pro- 
 nnote a fight, in which one W. did then and 
 there, by previous appointment and arrange- 
 ment, go to meet and engage with one C, 
 against the peace," &c. Ih. 
 
 84. An indictment charges but one oflFense 
 which alleges that the defendants assaulted 
 a certain person and attempted thereb\% by 
 intimidation, to prevent his voting. State 
 V. Hardy, 47 New Hamp. 538. 
 
 85. An indictment is good which charges 
 assault and battery and false imprisonment 
 in a single count. Francisco v. State, 4 Zabr. 
 30. In Massachusetts, although in an in- 
 dictment under the statute (Gen. Stats, ch. 
 160, § 27), it is not necessary to allege a 
 battery, yet if alleged, there is no dui)licity. 
 Com. V. Thompson, 116 Mass. 346. 
 
 86. Immaterial averments. An indict- 
 ment for an assault need not state the 
 particular acts of the defendant. Bloomer 
 V. State, 3 Sneed, 66. As every intentional 
 maiming and disfiguring of a person neces- 
 sarily includes an assault and battery, an in- 
 dictment which charges such disfiguring, 
 with proper specifications as to the manner, 
 time, venue, person injured, and other 
 formal parts of the indictment is sufficient, 
 without alleging that the defendant as- 
 saulted the person. Benham v. State, 1 
 Iowa, 542. An indictment for an assault in 
 presenting a gun at another within the dis- 
 tance the gun would carry, need not allege 
 that the gun was pointed at the party as- 
 saulted. State V. Smith, 2 Humph. 457. 
 
 87. Where an indictment alleged that A., 
 in and upon one B. did make an assault, and 
 he, the said B., then and there did beat, 
 wound and ill-treat, it was held good, and 
 that the words he the said B. then and there 
 might be rejected as surplusage. Com. v. 
 Hunt, 4 Pick. 252. 
 
 88. The fact that it is not alleged in an in- 
 dictment for as.saulting an officer while in 
 the discharge of his duty, that the defend- 
 ant knew the party assaulted was an officer 
 at the time the assault was committed, is 
 not good cause for arrest of judgment, but 
 may be ground for entering judgment for a 
 
 simple assault. Com. v. Kerby, 2 Cush. ' 
 577. 
 
 89. An indictment for an assault upon an 
 officer, who at the time of the assault had 
 an execution against the body of the de- 
 fendant, which he was about to execute, 
 need not contain an allegation that the sum 
 due on the execution had been demanded of 
 the defendant, or that he refused to pay it. 
 State V. Hooker, 17 Vt. 658. 
 
 90. An indictment for an assault and 
 battery need not allege that the person as- 
 saulted was late of the county, nor that the 
 beating and wounding were to the prosecut- 
 or's damage. State v. Wimple, 8 Black f. 
 214. 
 
 91. An indictment for assault and battery 
 need not contain the word "unlawfully." 
 State V. Bray, 1 Mo. 180. Where the indict- 
 ment charged that A, feloniously and of his 
 malice aforethought, assaulted B. with a 
 sword, and then and there struck him, the 
 allegation of feloniously, and of liis malice 
 aforethought, apply also to the stroke. 
 State V. Owen, 1 Murphy, 452. 
 
 92. An indictment for assault and battery 
 need not charge that the person beaten was 
 in the peace of the State ; and the words 
 force and arms are not necessary. State v. 
 Elliott, 7 Blackf. 280. 
 
 93. In an indictment for assault and bat- 
 tery, the words " and other wrongs to the 
 said L. then and there did and committed," 
 may be rejected as surplusage. Com. v. 
 Randall, 4 Gray, 30. 
 
 94. Averment of intent. It is not suffi- 
 cient in an indictment (or assault and bat- 
 tery to allege that the defendant used un- 
 lawful violence upon the person of another; 
 but the intent to injure must also be charged. 
 Grayson v. State, 37 Texas, 228. 
 
 95. An indictment for an assault with a 
 dangerous weapon, under the 22d section of 
 the crimes act, of March 3d, 1825 (7 L. U. S. 
 401), need not allege that the as.sault was 
 committed with a felonious intent ; the act 
 contemplating only a misdemeanor. U. S. 
 V. Gallagher, 2 Paine, 447. 
 
 96. An indictment which charges an as- 
 sault with intent to do bodily harm upon 
 the person of another, designates the ofiFense
 
 42 
 
 ASSAULT AND BATTERY 
 
 Simple. 
 
 Indictment. 
 
 How Tried. 
 
 Evidence for Prosecution. 
 
 as a simple assault. People v. Martin, 47 
 Cal. 113. 
 
 97. Where a statute prescribed the punish- 
 ment for an assault with a dangerous weapon 
 with intent to kill or murder, and the in- 
 dictment charged such an assault with in- 
 tent to kill and murder, it was held that 
 the prisoner might be convicted of an as- 
 sault with intent to kill, without the intent 
 to murder being proved. State v. Reed, 40 
 Vt. 603. 
 
 98. Conclusion. An indictment for an 
 assault and battery which concluded with 
 the words "contrary to the statute," instead 
 of " statutes in such case made and pro- 
 ■vided," was held sufficient. State v. Berry, 
 4 Halst. 374. 
 
 99. Abatement. Where the complain- 
 ant under an indictment for assault and bat- 
 tery dies before trial, the indictment does 
 not abate. Com. v. Cunningham, 5 Litt. 
 392. 
 
 id) HoiD tried. 
 
 100. Under joint indictment. When one 
 of several jointly indicted for an assault and 
 battery pleads guilty, the others who plead 
 not guilty, cannot insist as a matter of right, 
 to be tried separately. Thompson v. State, 
 25 Ala. 41. 
 
 101. Election of offenses. Where two 
 assaults and batteries are committed on the 
 same day, within a short time of each other, 
 the i^rosecution may elect which it will try, 
 but cannot submit both to the jury. Tomp- 
 kins V. State, 17 Ga. 356. In South Car- 
 olina, where two assaults are alleged in 
 an indictment, it is customary to require 
 the prosecution to elect for which assault it 
 will proceed, after the evidence has been 
 heard, and not before. State v. Sims, 3 
 Strobh. 137. 
 
 102. An indictment charged an assault by 
 striking with a stick and cutting with a 
 knife. It was proved that during an alter- 
 cation between the parties, the prisoner 
 "held a stick in his hand, which he raised 
 in a threatening attitude, and approached 
 within about four feet of the prosecutor to 
 strike him, which he would have done if the 
 prosecutor had not got out of the way," and 
 
 that soon afterwards, at the same place, the 
 prisoner followed the prosecutor over a 
 fence for about thirty yards with a drawn 
 knife in his hand, and threatened him at a 
 distance of eight or ten feet. Held that it 
 was not a case for an election of offenses. 
 Johnson v. State, 35 Ala. 363. 
 
 103. In South Carolina, where a person 
 complaining of an assault has commenced 
 a civil action and public prosecution there- 
 for at the same time, the attorney general 
 will enter a nolle prosequi upon the indict- 
 ment unless the party makes his election. 
 State V. Blythe, 1 Bay, 166. 
 
 104. In Georgia, as a person has a right 
 to proceed both civilly and criminally for an 
 assault and battery, he cannot be compelled 
 to elect as to which he will pursue ; yet the 
 court will not give a severe judgment upon 
 the criminal conviction unless the prose- 
 cutor will agree to relinquish his civil rem- 
 edy. State V. Beck, Dudley, 168. 
 
 105. An assault in the presence of the 
 court is indictable, even after the party has 
 been fined for the contempt. State v. Yan- 
 cey, 1 Car. L, Rep. 519. 
 
 (e) Evidence for prosecution. 
 108. Record. A conservator may law- 
 fully enter the dwelling-house of his ward 
 to discharge any of the duties of his office 
 requiring such entry; and on the trial of a 
 complaint for an assault and battery by the 
 ward on the conservator while entering the 
 house of the ward, the record of the appoint- 
 ment of the conservator is admissible to 
 prove his appointment. State v. Hyde, 29 
 Conn. 564. 
 
 107. The complaint or affidavit made be- 
 fore a magistrate, upon which a prosecution 
 for assault and battery is based, may be 
 given in evidence on the trial, either to con- 
 tradict or sustain the complainant's testi- 
 mony. State V. Lazarus, 1 Rep. Const. Ct. 
 34. 
 
 108. Time and place. On the trial of an 
 information for an assault, the prosecution 
 must prove the time when and place where 
 the offense was committed. Baker v. State, 
 34 Ind. 104. See Clark v. State, lb. 436, 
 and Hampton v. State, 8 lb. 336, as to the
 
 ASSAULT AND BATTEEY. 
 
 43 
 
 Simple. 
 
 Evidence for Prosecution. 
 
 necessity of showing that the oifense was 
 committed on a particuhir day. 
 
 109. But where an indictment alleged the 
 commission of an assault in a certain town, 
 and the proof showed an assault in a different 
 town in the same county, it was held that 
 the variance was not material. Com. v. Tol- 
 liver, 8 Gray, 886. 
 
 110. Person injured. At common law, a 
 wife can testify against her husband in cases 
 of violence to her person committed by him. 
 Mathews v. Sta'e, :J2 Texas, 117. 
 
 111. Where on the trial of an indictment 
 alleging that H. assaulted R. and shot and 
 wounded him, it was proved that a person 
 by the name of R. was shot by H., but it 
 was not shown that the R. who was shot 
 was the party named in the indictment — it 
 was held that a conviction could not be sus- 
 tained. Hardin v. State, 26 Texas, 113. 
 
 112. The defendant was charged with an 
 assault and battery on T. A., a deputy 
 sheriif. On the trial, it was proved that the 
 person upon whom the assault and battery 
 was committed was commissioned a deputy 
 sheriff by the name of T. K. junior. Held 
 no variance. Com. v. Beckley, 3 Mete. 330. 
 
 113. A variance between the indictment 
 and evidence as to the name of the person 
 assaulted, is not material where the names 
 may be sounded alike. Ward v. State, 28 
 Ala. 53. But where the indictment charged 
 that the defendant assaulted Silas Melville, 
 and it was proved that the person assaulted 
 was Melvin, it was held that the variance 
 was fatal. State v. Curran, 18 Mo. 320. 
 Proof that tlie defendant had beaten Cath- 
 arine Swails will not sustain an indictment 
 for an assault and battery on Ratbarine 
 Swails. Swails v. State, 7 Blackf. 324. 
 
 114. The charge of an assault upon two is 
 in legal sense so different from a charge of 
 an assault upon one of them, tliist proof of the 
 commission of the act in regard to one will 
 not sustain the indictment. State v. Mc- 
 Clintock, 8 Iowa, 203. 
 
 115. Weapon. On the trial of an indict- 
 ment for assaulting another Avith a danger- 
 ous weapon, under the statute of New York 
 (Laws of 1854, ch. 74), tlie prosecution need 
 not prove with what weapon the assault 
 
 was made. It is sufficient to show that a 
 sliarp dangerous weapon to the jurors un- 
 known was emptoyed by the prisoner. Nel- 
 son V. People, 5 Parker, 39. 
 
 116. Where an indictment for an assault 
 charges the defendant with having com- 
 mitted the assault with several weapons, it 
 is immaterial whether he used one or all of 
 the weapons. State v. McClintock, 1 Iowa, 
 (Greene), 392. 
 
 117. Character of weapon, how deter- 
 mined. Where it is practicable for the 
 court to declare whether or not a weapon is 
 a dangerous weapon, it is matter of law. 
 Bat where the question is, whether an as- 
 sault with a dangerous weapon has been 
 proved, and the weapon might be dangerous 
 to life or not, according to the manner in 
 which it was used, or the part of the body 
 attempted to be stuck, it is matter of fact 
 to be determined by the jury. U. S. v. 
 Small, 2 Curtis C. C. 241. 
 
 118. Act committed. Where, under an 
 indictment for an assault by striking with a 
 stick, the evidence only shows an attempt or 
 offer to strike with a stick, the variance is 
 fatal. Johnson v. State, 35 Ala. 363. 
 
 119. An indictment against A. for an as- 
 sault and battery upon B. is not sustained by 
 proof that A. assaulted and beat B. in a 
 fight with the fists by mutual agreement, the 
 offense, under the statute (of Ohio), being 
 an affray. Champer v. State, 14 Ohio, N. S. 
 437. 
 
 120. An indictment charged that the 
 defendant and four others made an assault 
 upon a person named. It was proved that 
 the assault was made by the defendant and 
 
 five others. Held, that tlie variance was fatal. 
 State V. Harvell, 4 Jones, 55. 
 
 121. The section of the code of Alabama 
 on which the indictment was framed read 
 thus: "All persons, to the number of two 
 or more, who abuse, whip, or beat any per- 
 son, upon any accusation, real or pretended, 
 or to force such person to confess himself 
 guilty of any offense." (Code, § 3108). Held, 
 that to make out the offense contemplated 
 by this section, the accusation must be the 
 moving cause of the abuse or violence. 
 Underwood v. Stnte, 25 Ala. 70.
 
 44 
 
 ASSAULT AND BATTERY. 
 
 Simple. 
 
 Evidence for Prosecution. 
 
 122. Intent. The preconceived intention 
 of committing the assault may be proved in 
 aggravation. Yoes v. State, 4 Eng. 42. 
 
 123. On the trial of an information for 
 assault and battery it is competent to prove, 
 on the question of intent, that the defend- 
 ant, while the assault and battery were being 
 committed, declared that the person assailed 
 had, three years before, assaulted and drawn 
 a pistol on him, and that defendant was now 
 having his revenge for it. Hamilton v. 
 State, 36 Ind. 280. 
 
 124. To convict of an assault with a 
 deadly weapon, with intent to inflict a 
 bodily injury, it must be proved that the 
 defendant had both the ability and the 
 intention to make the assault. Therefore, 
 where the evidence showed that he pointed 
 and attempted to discharge a capped pistol 
 at another, beyond striking distance, it was 
 held that to warrant a verdict of guilty it 
 must be shown that the pistol was loaded. 
 State V. Napper, 6 Nev. 113. 
 
 125. Burden of proof. Where, on a trial 
 for assault and l)attery, the defendant does 
 not set up any independent fact in defense, 
 but contends that taking the facts and cir- 
 cumstances as proved on both sides, he is 
 entitled to acquittal, the burden is on the 
 prosecution to show his guilt beyond a 
 reasonable donbt. Com. v. McKee, 1 Gray, 
 61. 
 
 126. Where, on a trial for assault and 
 battery, it was proved that the prosecutor 
 was taking away from the presence of the 
 defendant his personal property, it was held 
 that he had a right to strike in defense of 
 the same, if the prosecutor was not then a 
 lawful officer, and that to make the defend- 
 ant criminally liable the onus lay on the 
 State to show that the prosecutor was at the 
 time a lawful officer, and was armed with a 
 lawful process. State v. Briggs, 8 Ired. 
 357. 
 
 127. Presumptions. Evidence that an 
 assault upon the prosecutor followed soon 
 after his declaration, " that no honest man 
 would avail himself of the bankrupt law," 
 is admissible, as tending to point out the 
 individual who committed the ofi^ense. State 
 V. Griffiths, 3 Ired. 504. 
 
 128. On a trial for an assault and battery 
 upon the person of Mrs. B., the defendant 
 claimed that the collision resulted from the 
 act of Mrs. B. herself, and was on the de- 
 fendant's part accidental, and not willful 
 or malicious. It was proved that Mrs. B. 
 was stricken down in the encounter and 
 seriously injured, and that she was for some 
 time confined to her room, under the care of 
 a physician. Held^ that on the question as 
 to who was the aggressor, it was competent 
 to show that the defendant did not call on 
 Mrs. B., or manifest toward her any sym- 
 pathy while she was suffering from the 
 injury; and also, that the two grown up 
 daughters of the defendant, who were living 
 with her, and who were present at the 
 assault, wholly neglected Mrs. B. after the 
 injury. State v. Alford, 31 Conn. 40. , 
 
 129. When the wife commits an assault in 
 the presence of her husband, she is pre- 
 sumed to act under bis coercion. State v. 
 Williams, 65 N. C. 398. Where the assault 
 of which a married woman was charged 
 was committed in the presence of her 
 husband, it was held error for the court, 
 when requested, to refuse to charge the jury 
 that " the presumption was that she acted 
 under the coercion and control of her 
 husband." Com. v. Eagan, 103 Mass. 71. 
 
 130. It is sufficient proof that a person 
 assaulted was a police officer, that at the 
 time he was acting as such, and had so acted 
 during the four previous years. Com. v. 
 Kane, 108 Mass. And see Com. v. Tobin, 
 108 Mass. 426. 
 
 131. On the trial of an indictment for an 
 assault and battery on an officer while seiT- 
 ing a warrant on the defendant, a witness 
 for the defendant who has explained the 
 relative position of the parties at the time 
 of the transaction, and stated who were 
 present, and how he and the others were 
 engaged, cannot be asked " if he would 
 have been likely to have heard if anything 
 had been said by the officer to the defendant. 
 Com. V. Cooley, 6 Gray, 350. 
 
 132. In Massachusetts, on the trial of an 
 indictment for prize fighting, under the 
 statute, it need not be proved by direct 
 evidence that there was a previous appoint-
 
 ASSAULT AND BATTERY. 
 
 45 
 
 Simple. 
 
 Evidence for Prosecution. 
 
 Evidence for Defense. 
 
 raent or arrangement, but it may be inferred 
 from circumstances, and it is not material 
 whether or not it was made in the State. 
 Cora. V. Welsh, 7 Gray, 324. 
 
 133. "What need not be proved. Under 
 a complaint for an assault, which alleges that 
 the defendant pointed a gun at another, and 
 threatened to shoot, it is not necessary to 
 prove a threat to shoot. Com. v. White, 110 
 Mass. 407. 
 
 134. On the trial of an indictment for 
 impeding an officer, averments in relation to 
 the character of the person assaulted need 
 not be proved, being merely descriptive of 
 the person. State v. Burt, 35 Vt. 373. 
 
 135. On the trial of an indictment for 
 ejecting a passenger from a railway car, it is 
 error for the court to receive evidence of the 
 general temperance and sobriety of the 
 prosecutor, his conduct on the passage in 
 question being alone in issue. People v. 
 Caryl, 3 Parker, 326. 
 
 {f) Eoidence for defense. 
 
 136. Where person assaulted is un 
 known. It can be no defense, to a person 
 indicted for an assault upon a person 
 unknown, that the person assaulted becomes 
 known prior to, or at the time of the trial. 
 But it must appear that the grand jury 
 knew such person at the time they found 
 the indictment, and that it was found for an 
 assault upon some other person who was not 
 made known to them. People v. White, 55 
 Barb. GOG. 
 
 137. Self-defense. It is erroneous for the 
 court to charge the jury that the facts 
 proved are no justification of the assault and 
 battery. The facts should be submitted to 
 them, with instructions as to what would, 
 and what would not, in law, be a justifica- 
 tion. Com. v. Goodwin, 3 Cush. 154. 
 
 138. Whether A. was justified in firing a 
 pistol at B. and wounding him, on the 
 ground that B. was throwing missiles at A., 
 and that the latter was in fear of his life, 
 and fired in order to frighten B. and deter 
 him from further violence, is a question of 
 fact for the jury in considering the charac- 
 ter of the assault of B. on A. Com. v. Mann, 
 116 Mass. 58. 
 
 139. Defense of property- The defend- 
 ant may prove that he owned the premises 
 on which the assault and battery were com- 
 mitted, and that he did the acts complained 
 of in defense of his possession ; and in New 
 York, if the assault and battery were com- 
 mitted in resisting persons entering upon 
 the premises to open and work a highway, 
 tlie defendant may prove that the alleged 
 highway was laid through his orchard of 
 four years' growth, without his consent. 
 Harrington v. People, 6 Barb. 608. 
 
 140. Character of prosecutor. On the 
 trial of an indictment for assault and bat- 
 tery, the defendant cannot set up the gen- 
 eral reputation or conduct of the prosecutor 
 as an overbearing, tyranical and dangerous- 
 man. But when it is shown that the de- 
 fendant was under reasonable fear of his 
 life, or great bodily harm from the prose- 
 cutor, the temper of the latter, in connec- 
 tion with previous threats, is admissible in 
 evidence. Harman v. State, 3 Head, 243. 
 Evidence that the person assaulted was a 
 quarrelsome man, is not available to the de- 
 fendant without proof that the fact was 
 known to him. State v. Meader, 47 Vt. 
 78. 
 
 141. On the trial of an indictment for an 
 indecent assault upon a female, evidence is 
 admissible of the bad character of the 
 prosecutrix for chastity. Com. v. Kendall, 
 113 Mass. 210. 
 
 142. Character of defendant. On the 
 trial of an indictment for assault and bat- 
 tery, it is competent for the defendant to 
 prove his general good character. Hance 
 V. State, 8 Fla. 56 ; Drake v. Com. 10 B. 
 Mon. 22.J, contra. 
 
 143. Wife as witness. On the trial of 
 tlie husband for an assault and battery com- 
 mitted by him on liis wife, she is a compe- 
 tent witness in his behalf. Com. v. Mur- 
 phy, 4 Allen, 491. 
 
 144. On the trial of an indictment against 
 a father and son for assault and battery, it 
 appeared that the son struck the prosecutor, 
 and that the father took no other part than 
 by words of encouragement to the son. Jleld 
 that the wife of the father was a competent 
 witness for the son. State v. Mooncy, 64 N.
 
 46 
 
 ASSAULT AND BATTERY 
 
 Simple. 
 
 Evidence for Defense. 
 
 C. 54; citing with approval, State v. Rose, 
 Pliil. 40G, and State v. Ludwick, lb. 401. 
 
 145. Mitigating circumstances. On the 
 trial of an indictment for assault and bat- 
 tery, it appeared that the language and de- 
 portment of the party injured, were in the 
 highest degree reprehensible, and calculated 
 to provoke violence on the part of the de- 
 fendant, who was an old man. Ileld that 
 they did not justify the assault, but could 
 only be considered by the jury in mitigation 
 of the fine. State v. Harrington, 31 Ark. 
 195. 
 
 146. On the trial of the husband for an 
 assault and batteiy committed by him, on 
 his wife, he may show in mitigation that 
 when he committed the offense, he was pro- 
 voked to do so by the misbehavior and mis- 
 conduct of his wife. Robbins v. State, 20 
 Ala. 3G. 
 
 147. On the trial of a railroad conductor 
 for assault and battery, in forcibly removing 
 a passenger fi*om the train, who had con- 
 ducted himself in a violent and disorderly 
 manner, so as seriously to disquiet the other 
 passengers, it was held competent for the 
 defendant to give evidence of misconduct 
 during the entire passage, as it was a short 
 one, if it was apparent that the disposition 
 and feeling which prompted it, continued 
 and influenced the complainant's conduct 
 up to the time of his removal. And one of 
 the grounds of justification being that the 
 complainant improperly refused to surrender 
 his ticket when requested, it was held that 
 the judge improperly rejected evidence to 
 prove that the regulation and custom of the 
 company had always been for the conductor 
 to collect tickets at a certain point, as that 
 would have shown that the defendant was 
 not influenced by any hostile motives when 
 the ticket was demanded. People v. Caryl, 
 a Parker, 326. 
 
 148. Evidence that the person assaulted 
 "was a lazy vagabond, w^ho would not 
 work if he could help it, that money could 
 not be made out of him by legal process, 
 that he had owed the defendant a long 
 time and would not pay, and that the de- 
 fendant, on the day on which the assault 
 was committed, had offered him ten dollars 
 
 an hour if he would work for him in pay- 
 ment of said indebtedness, and he had re- 
 fused to do it," is not admissible for the de- 
 fendant in mitigation. Ward v. State, 28 
 Ala. 53. 
 
 149. A party who, when an officer is en- 
 deavoring to ari'est him, by his violent con- 
 duct deprives the officer of the opportunity 
 to read the warrant or state the cause of 
 arrest, cannot avail himself of the omission 
 of the officer to do so, as a justification of 
 his resistance and efforts to escape. Com. v. 
 Cooley, 6 Gray, 350. 
 
 150. On the trial of an indictment for 
 assault and T)attery in resisting an officer in 
 serving an attachment against property in 
 which the defendant in the attachment had 
 no attachable interest, evidence is not ad- 
 missible in behalf of the accused to show 
 that the attachment was obtained by con- 
 nivance between the plaintiff and defendant 
 therein, with intent to get possession of his 
 goods and defraud him out of the same. 
 State V. Buchanan, 17 Vt, 573. 
 
 151. In South Carolina, it was held on the 
 trial of an indictment for assault and bat- 
 tery that under the plea of not guilty no evi- 
 dence of mitigating circumstances could be 
 offered, but that such evidence must be pre- 
 sented at the time of sentence. State v. 
 Smith, 2 Bay, 62. 
 
 152. Declarations of defendant. On the 
 trial of an indictment for assault and battery, 
 the remark of the accused to the person 
 beaten, ''If I had known you were a one 
 legged man I would not have struck you," 
 made as soon as the blow was given was held 
 admissible in evidence in mitigation. Riddle 
 V, State, 49 Ala. 389. But the defendant 
 cannot be allowed to prove what transpired 
 between him and the prosecutor at a pre- 
 vious interview, in the forenoon of the same 
 day. Rosenbaum v. State, 33 Ala, 354. 
 
 153. On the trial of an indictment for 
 assault and battery by firing a loaded pistol 
 at one B., it was proved that the defendant 
 took aim and fired at B. after announcing 
 his intention to do so, and that the ball pene- 
 trated B. 's clothing, and indented his watch ; 
 that B. then said, ''Now you've done it," and 
 the defendant replied " Didn't I say, FU hit
 
 ASSAULT AND BATTERY. 
 
 47 
 
 Simple. 
 
 Verdict and Judgment. 
 
 you?" and that B. then went away. Held 
 that the defendant could not show that after 
 B. left, he stated to persons present that he 
 did not know the pistol was loaded, that he 
 was not in the habit of carrying a pistol, that 
 the one used was an old one knocking about 
 in a club room, that it was frequently 
 snapped by persons frequenting the place, 
 and that just before B. came in, the de- 
 fendant put the muzzle into his mouth, and 
 snapped the pistol several times, the cylin- 
 der not revolving of itself, when the pistol 
 was snapped. Com. v. McLaughlin, 5 Allen, 
 507. 
 
 {g) Verdict and judgmeut. 
 
 154. Under plea of former conviction. 
 
 The plea of former conviction to an indict- 
 ment for assault and battery is an admission 
 of the charge, and when overruled, the court 
 should pronounce judgment against the de- 
 fendant as upon a conviction. State v. Epps, 
 4 Sneed, 552. 
 
 155. "Without plea. On a trial for assault 
 and battery, a verdict where there has been 
 neither an arraignment or plea, is a nullity ; 
 and the court cannot direct a plea of not 
 guilty to be entered for the defendant with- 
 out his consent, and then render judgment 
 against him on the verdict. Davis v. State, 
 38 Wis. 487. See State v. Cole, 19 lb. 129. 
 
 156. "Where there are two indictments. 
 Where there were two indictments, one for 
 resisting legal process, and the other for an 
 assault, it was held that if the same testimony 
 would support both charges, the party could 
 not be found guilty of both. State v. John- 
 son, 12 Ala. 840. 
 
 157. Against several. Some of several 
 jointly indicted may be convicted of assault, 
 and others of a battery, or of assault and 
 battery committed on the same occasion 
 upon the same party. White v. People, 32 
 N. Y. 465; Lewis v. State, 33 Ga. 131. 
 
 158. For part of offense charged. On 
 the triiil of an indictment for an assault with 
 intent to murder, a nolle jyrosequi may be 
 entered as to the intent to murder, and the 
 defendant be convicted of an assault. Baker 
 V. State, 12 Ohio, N. S. 214 ; contra, Grant 
 
 V. State, 2 Cold. Tenn. 216; approving 
 Britain v. State, 7 Humph. 159. 
 
 159. In Maine, under the statute (E. S. 
 ch. 131, § 4), when an indictment charges a 
 riot with an assault and battery, the de- 
 fendant may be acquitted of the former and 
 found guilty as to the latter. State v. Ham, 
 54 Maine, 194. 
 
 160. Under an indictment for manslaugh- 
 ter, the defendant may be convicted of 
 common assault and battery. State v. Scott, 
 24 Vt. 127. 
 
 161. On the trial of an information for 
 rescuing a prisoner from the sheriff, and for 
 assault and battery, the defendant may be 
 acquitted of the rescue and convicted of the 
 assault and battery. Rose v. State, 33 Ind. 
 167. 
 
 182. On the trial of an indictment for 
 maiming, the defendant may be found guilty 
 of an aggravated assault and battery. Guest 
 V. State, 19 Ark. 405. 
 
 163. Where the indictment charges a riot 
 and assault, a finding that the defendant is 
 guilty of a riot is insufficient. State v. 
 Creighton, 1 Nott and McCord, 256. 
 
 164. On the trial of an indictment for 
 assault and battery, the jury rendered the 
 following verdict : " Guilty of an assault, but 
 not with the intention of injuring the parties, 
 and not of the battery." Held bad for un- 
 certainty. State V. Izard, 14 Rich. 209. 
 
 165. Where an indictment charges an 
 assault and battery, and rescue, and the de- 
 fendant is convicted generally, if the aver- 
 ments as to the rescue are bad for uncer- 
 tainty, they may be rejected as surplusage, 
 and the defendant be sentenced upon the 
 verdict as for an assault and battery. State 
 V. Morrison, 2 Ired. 9. 
 
 166. Construction. The legal effect of the 
 following verdict: "We find the prisoner 
 guilty of an assault with intent to do bodily 
 harm," is, that the prisoner is guilty of a 
 simple assault. Hussy v. People, 47 Barb. 
 50:3. 
 
 167. Settlement. An assault and battery 
 cannot be compromised after the defendant 
 is found guilty. People v. Bishop, 5 Wend. 
 111.
 
 48 
 
 ASSAULT AND BATTERY. 
 
 Assault with Intent to Kill. 
 
 What Constitutes. 
 
 2. Assault with intent to kill. 
 
 (d) What contititute'i. 
 
 168. Need not be wounding. A person 
 may assault another w ith intent to kill with- 
 out striking or wounding. State v. McClure, 
 25 Mo. 338. Where a person went to an- 
 other's house after being told not to come, 
 and at the request of some of the inmates, 
 went in, and being ordered out by the 
 owner, asked him to go out with him, and 
 the owner refusing, he stopped at the door, 
 and drew a pistol upon the owner, it was 
 held an assault with intent to murder. State 
 V. Boyden, 13 Ired. 505, 
 
 169. Act must be adapted to design. 
 To justify a conviction for an assault with 
 intent to murder, there must be some 
 adaptation in the act done to accomplish 
 the alleged purpose. An instruction that 
 the presenting of a pistol loaded and cocked, 
 within carrying distance, by one man at an- 
 other, with his finger on the trigger, in an 
 angry manner, is of itself an assault with 
 intent to murder, is erroneous. Morgan v. 
 State, 33 Ala. 413. In Ohio, the discharging 
 a gun loaded with powder and wad at a 
 person so far distant that no injury would 
 probably result from the act, is not a vio- 
 lation of the statute. (Crimes Act, § 24.) 
 Henry v. State, 18 Ohio, 32. 
 
 170. A person having been arrested as a 
 deserter from the United States army, the 
 party arresting him, with a pistol in one 
 hand, and holding him by the collar with 
 the other, forced him into a groceiy and de- 
 tained him in confinement one hour. But it 
 did not appear that the pistol was presented 
 in a menacing manner, or that any effort 
 was made to shoot, or threat to do so. Held 
 that a conviction for an assault with a deadly 
 weapon with intent to inflict bodily injury 
 could not be sustained. Tarpley v. People, 
 42 111. 340. 
 
 171. But if the object fail of accomplish- 
 ment by reason of an impediment which was 
 unforseen by the ofiender, who employs 
 means ostensibly appropriate, the criminal 
 attempt is committed. Kuukle v. State, 32 
 Ind. 220 ; disapproving State v. Swails, 8 lb 
 524. On a trial for an assault with intent to 
 
 murder, committed on M., it was proved 
 that the defendant attemi3ted to cut M.'s 
 throat with a pocket knife, but that before 
 any blow was struck with it, M.'s wife caught 
 the knife, and it fell out of the defendant's 
 hand ; whereupon the defendant took up M.'s 
 gun, and M. seized it and took it away from 
 him. Held sufiicient to sustain a conviction. 
 Weaver v. State, 24 Texas, 387. 
 
 172. Where, after a party had been il- 
 legally arrested, and he had voluntarily 
 taken the officer to the room where his bag- 
 gage was, and submitted it to the inspection 
 of the officer, he shot the officer, it was held 
 that a conviction of assault with intent to 
 murder was proper. Johnson v. State, 30 
 Ga. 426. 
 
 173. Where on the trial of an indictment 
 for assaulting and shooting another, it was 
 proved that the defendant, being in search 
 of the prosecutor with a loaded gun, with a 
 deliberate purpose to take his life, saw the 
 prosecutor's gun presented towards him, and 
 instantly fired his own gun, in pursuance of 
 his original purpose to kill, it was held that 
 he was guilty of the ofiense charged. David- 
 son V. State, 9 Elumph. 455. 
 
 174. Where one, with great violence and 
 force, pushed another down, threw him iuto 
 a pond, and endeavored to strangle him by 
 holding his head underwater, it was held to 
 be an assault and battery with intent to kill. 
 Southworth v. State, 5 Conn. 325. 
 
 175. Weapon need not have been deadly. 
 In Missouri, to constitute a felonious assault 
 within the statute (Crimes Act, art. 2, § 38), 
 if the injury inflicted be of such a danger- 
 ous nature as to be liable to cause death, the 
 instrument used need not have been a deadly 
 weapon. Cameo v. State, 11 Mo. 579. 
 
 176. The intent. Where, under an in- 
 dictment for an assault with intent to mur- 
 der, the circumstances are such that, if 
 death had ensued, the killing would have 
 been murder, the offense is complete. People 
 V. Scott, 6 Mich. 287; Maher v. People, 10 
 lb. 212. But under the statute of New 
 York, prescribing the punishment for an as- 
 sault and battei-y upon another, by means of 
 a deadly weapon with the intent to kill, 
 maim, ravish, &c., it is not necessary that
 
 ASSAULT AND BATTERY. 
 
 49 
 
 Assault with Intent to Kill. 
 
 What Constitutes. 
 
 Indictment. 
 
 the defendant should entertain the intent 
 essential to the crime of murder. An intent 
 to commit any felony is sufficient to consti- 
 tute the oflfense. People v. Kerrains, 1 N. 
 Y. Supm. N. S. 333. 
 
 177. Need not be malice in fact. If 
 A., without any malice in fact against B., 
 intending to divert himself by frightening 
 B., shoots at him, not caring whether he hit 
 him or not, A. is guilty of an assault with 
 intent to murder. Collier v. State, 39 Ga. 
 31. 
 
 173. Meaning of assault with intent. 
 There is no material difference between an 
 assault with intent and assault with attempt 
 to commit a crime. Johnson v. State, 14 Ga. 
 55. An intent to do a wrongful act, coupled 
 with overt acts toward its commission, con- 
 stitutes the attempt spoken of by the statute 
 of New York (3 R. S. 5th ed. p. 583, § 3), 
 which provides that " every person who 
 shall attempt to commit an offense prohib- 
 ited by law, and in such attempt shall do 
 any act toward the commission of such of- 
 fense, but shall fail in the perpetration there- 
 of, and shall be prevented or intercepted in 
 executing the same, shall be, upon convic- 
 tion, punished,'' &c. McDermott v. Peo- 
 ple, 5 Parker, 102. 
 
 179. When deemed a felony. An assault 
 with intent to kill was not known as a felony 
 at common law. Hall v. State, 9 Fla. 203 ; 
 Ludwick v. State, lb. 404. Under the stat- 
 ute of New York, it is only a felony when 
 committed with some deadly weapon, or 
 with some other means or force likely to 
 produce death. O'Leary v. People, 4 Par- 
 ker, 187. 
 
 {i) Indictment. 
 
 180. Averment of acts constituting of- 
 fense. An indictment for an assault with 
 intent to commit a felony must specify the 
 felony. State v. Hailstock, 2 Blackf. 257; 
 and set forth the facts. Trexler v. State, 19 
 Ala. 21; State v. Jordan, 19 Mo. 212; Bcas- 
 ley V. State, 18 Ala. 535. But in Missouri, 
 under the statute (R. 0. 1835, art. 35), re- 
 quiring the Indictment to state the circum- 
 stances attending the commission of the of- 
 fense, it is sufficient to charge that the as- 
 
 sault is made feloniously and with a danger- 
 ous weapon. Jennings v. State, 9 Mo. 852. 
 
 181. An indictment for an assault with 
 intent to murder charged the defendant as 
 principal in the second degree in being pres- 
 ent, aiding and abetting the chief perpe- 
 trator, and specified the acts whereby the 
 aiding and abetting were done. Held that 
 the averment descriptive of such acts could 
 not be stricken from the indictment without 
 the consent of the defendant. Fulford v. 
 State, 50 Ga. 591. 
 
 182. An indictment charging that the de- 
 fendant feloniously assaulted one D. with a 
 pistol loaded with powder and ball, with in- 
 tent him, the said D., of his malice afore- 
 thought, to kill and mui'der, is sufficient, 
 without specifying the particular acts con- 
 stituting the assault. People v. English, 30 
 Cal. 214. And see State v. Robey, 8 Nev. 
 312 ; s. c. 1 Green's Grim. Reps. 674. 
 
 183. An indictment for an assault with a 
 dangerous weapon, is sufficient which alleges 
 that the defendant, being armed with a gun 
 loaded with powder and shot and capped, 
 made an assault in and upon A., with the 
 felonious intent to kill and murder him with 
 said gun by feloniously discharging the 
 same at him, and by beating, bruising 
 and wounding him with said gun, and 
 thereby inflicting upon him a mortal wound ; 
 and it will be supported by proof that the 
 defendant beat A. with the gun. Com. v. 
 Creed, 8 Gray, 387. 
 
 184. In Massachusetts, an indictment 
 under the statute (Gen. Stats, ch. 160, § 32), 
 which provides for the punishment of "who- 
 ever mingles any poison with food, drink 
 or medicine, with intent to kill or injure 
 another person," alleging that the defendant 
 mingled poison with water which he knew 
 was to be drunk by his wife, and with intent 
 to kill her, is sufficient without stating that 
 the mixture was poisonous or known to be 
 so by the defendant. Com. v. Galavan, 9 
 Allen, 271. 
 
 185. Description of weapon. If an as- 
 sault with intent to kill, be made with a 
 weapon the ordinary name of which ex vi 
 teriiiitii imports its deadly character, it is 
 sufficient to describe it in the indictment by
 
 50 
 
 ASSAULT AND BATTERY. 
 
 Assault with Intent to Kill. 
 
 Indictment. 
 
 such name; but in other oses, the instru- 
 ment used should be described and charged 
 to be deadly. If the weapon be insuffi- 
 ciently described, a conviction may be sus- 
 tained for assault and battery. Kruget v. 
 State, 1 Kansas, 365. 
 
 186. Where an assault is made with an 
 axe, it will be deemed a deadly weapon, 
 without being so described in the indict- 
 ment. Dollarhide v. U. S. 1 Morris, 233. 
 
 187. In New York, an indictment charg- 
 ing an assault and battery with " an intent 
 to kill," without setting forth some of the 
 means which the statute names, will not 
 warrant a conviction of any offense higher 
 than assault and battery. People v. Davis, 
 4 Parker, 61. In Texas, the indictment 
 need not state the instrument or means 
 employed. Martin v. State, 40 Texas, 19 ; 
 Bittick V. State, lb. 117. And it is the 
 same iu Iowa and Tennessee. State v. Sea" 
 mons, 1 Iowa, 418; Harrison v. State, 2 
 Cold. Tenn. 233. 
 
 183. When two commit a joint assault 
 with intent to murder, the one with a knife 
 and the other with a gun, an indictment 
 which charges theui jointly is not bad for 
 duplicity. Shaw v. State, 18 Ala. 547. 
 
 189. An indictment charging that the 
 defendant made "an assault with a certain 
 gun, the same being then and there a deadly 
 weapon, and him the said W., did attempt 
 with the gun aforesaid to shoot, with intent 
 (fee, was held bad in not averring that the 
 gun was loaded, or otherwise show that the 
 defendant had a present ability to inflict an 
 injury. Robinson v. Scate, 31 Texas, 170. 
 
 190. In Indiana, it was held on a charge 
 for an assault with intent to murder, that 
 the manner in which the firearm was loaded, 
 and the possibility of death being produced 
 by the discharge, were matters of evidence, 
 and not of averment. Rice v. State, 16 Ind. 
 298. In Iowa, it has been held that the in- 
 dictment need not allege that the gun was 
 loaded, or pointed, or discharged, or the 
 manner in which it was used. State v. 
 Shepard, 10 Iowa, 126. 
 
 191. An indictment for an assault with 
 intent to murder by shooting, need not al- 
 lege that the person assaulted was within 
 
 the distance to which the gun would carry, 
 nor that the gun was a deadly weapon. 
 Shaw V. State, 18 Ala. 597. 
 
 192. Person injured. An indictment for an 
 assault with intent to murder, was as fol- 
 lows : " With intent in so striking and beat- 
 ing him the said J. W., with the club afore- 
 said, in and upon the head as aforesaid, then 
 and there and thereby feloniously, willfully, 
 and of his (the said J. P.'s), malice afore- 
 thought, to kill and murder, against," &c. 
 Meld bad for uncertainty, in not naming the 
 person the defendant intended to kill. 
 State V. Patrick, 3 Wis. 812. 
 
 193. Where an indictment charges the 
 defendant in two diflerent counts, with an 
 assault with intent to murder, upon different 
 persons, the court may quash the indict- 
 ment, or compel the prosecution to elect on 
 which count it will proceed. State v. Fee, 
 19 Wis. 563. 
 
 194. Averment of malice. An indictment 
 for an assault with intent to kill, must 
 allege that the act was done feloniously 
 with malice aforethought. State v. Howell, 
 Geo. Decis. pt. 1, 158. In Missouri, an in- 
 dictment under the statute (R. C. 1855, p. 
 565), which charged an assault to have been 
 committed unlawfully and feloniously, and 
 with an intent to kill, omitting the words 
 " on purpose " and " of malice aforethought," 
 was held fatally defective. State v. Harris, 
 34 Mo. 347. In Iowa, the indictment need 
 not allege that the assault was committed 
 with malice aforethought. State v. New- 
 berry, 26 Iowa, 467. In Mississippi, an 
 indictment under the statute which did not 
 charge that the oiTens3 was committed with 
 express malice, was held bad on motion in 
 arrest of judgment. Anthony v. State, 13 
 Smed. & Marsh. 263. 
 
 195. An indictment for an assault with a 
 deadly weapon with intent to do bodily in- 
 jury, must either aver that there was no 
 considerable provocation, or that the cir- 
 cumstances of the assault showed an aban- 
 doned and malignant heart. Baker v. 
 People, 40 III. 308. 
 
 196. An indictment for an assault with a 
 deadly weapon with intent to kill, charged 
 that the defendant at, &c., " in and upon one
 
 ASSAULT A¥D BATTERY. 
 
 51 
 
 Assault with Intent to Kill. 
 
 Indictment. 
 
 Evidence. 
 
 J. P. feloniously did make an assault with 
 a deadly weapon, to wit, a pistol loaded 
 with powder and ball, with intent then and 
 there to kill said J. P., without any just 
 cause or provocation, but with an abandoned 
 and malignant heart." Held insufficient, 
 there being no allegation of premeditation 
 or malice aforethought. People v. Urias, 12 
 Cal. 325. 
 
 197. Charging intent. In Mississippi, an 
 indictment under the statute (How. & 
 Hutch. 698, § 39), for an assault with an 
 intent to kill, must charge that tlie accused 
 shot at a certain person with intent to kill 
 that person ; charging an intent to kill gen- 
 erally, is not sufficient. Jones v. State, 11 
 Smed. & Marsh. 315. 
 
 198. An indictment alleged that the de- 
 fendant " did unlawfully strike, beat, biuise, 
 and wound, one B. with a knife, with mal- 
 ice aforethought, and with the intention to 
 kill and murder him, the said B., did then 
 and there stab, cut, and wound, him the 
 said B., with a large knife which he then 
 and there, held in his hand, in three places, 
 one in the hip, one in the side, and one in 
 the back, with the intention of committing 
 a felony." Held that the indictment did 
 not sufficiently charge the intent to commit 
 the particular felony, but that an assault and 
 battery was charged. State v. Miller, 27 
 Ind. 15. 
 
 199. Where an indictment charged in one 
 count two independent felonies, one that 
 the prisoner committed the assault with 
 *' intent to do bodily barm," and the other 
 that he committed it *' with intent to kill," 
 each of which was in violation of a distinct 
 statute, but omitted to charge that the as- 
 sault to do bodily harm was " witliout ju>=.ti 
 fiable or excusable cause," it was held that 
 this omission saved the indictment from 
 being fatally defective for duplicity, the 
 charge of an intent to do bodily harm, with- 
 out the foregoing qualification, being sur- 
 plusage. Dawson v. People, 25 N. Y. 399. 
 
 200. An indictment against two, charging 
 one with an assault, with the intent ma- 
 liciously to kill and murder, and the other 
 with m iliciously and feloniously getting his 
 codefendant to make an assault with the 
 
 same intent, is good at common law. State 
 V. Pile, 5 Ala. 72. 
 
 201. An assault with intent to commit 
 manslaughter is sufficiently charged as an 
 assault with intent to kill. State v. John- 
 son, 4 Mo. 618. 
 
 202. An indictment for assault and bat- 
 tery with intent to kill must allege that the 
 intent was unlawful and felonious. Curtis 
 V. People, Breese, 197; contra, State v. 
 Williams, 3 Foster, 321. 
 
 203. An indictment for an assault, with 
 intent to commit murder, charging that the 
 offense was committed feloniously, unlaw- 
 fully, and with malice aforethought, omit- 
 ting the word " willfully," is sufficient. 
 McCoy V. State, 3 Eng. 451. 
 
 204. Immaterial averments. An indict- 
 ment for assault, with intent to murder 
 held good, although the word " assault " 
 was not used. State v. Munco, 12 La. An. 
 625. And where the word "a^sawZi" was 
 written in both counts '■'■ assatt,'''' it was held 
 that as the error was not such as to mislead, 
 it was immaterial. State v. Crane,4 Wis.401. 
 
 205. An indictment for an assault with a 
 dangerous weapon, is good, notwithstanding 
 the omission of the words " then and there," 
 before the words "did strike." Com. v. 
 Bugbee, 4 Gray, 206. 
 
 206. Where an indictment charged an as- 
 sault and battery, with an intent to murder, 
 it was held that the indictment was not bad 
 because the charge included a battery. Cole 
 V. State, 5 Eng. -818. 
 
 (c) Eoidence. * 
 
 207. Place. The identity and description 
 of the place where an alleged assault was 
 committed, being material, and it being 
 proved that the accused had undertaken to 
 pilot the complainant througli the woods, a 
 witness who had seen the latter, both be- 
 fore and after the commission of the assault, 
 the interval being three or four hours, may 
 be asked, " if he examined a place desig- 
 nated by the complainant aa the place wiiere 
 he was shot," the question being introduc- 
 tory of another respecting the marks of a re- 
 cent struggle in the designated place; the 
 court instructing the jury, at the time the
 
 52 
 
 ASSAULT AND BATTERY. 
 
 Assault with Intent to Kill. 
 
 Evidence. 
 
 evidence was admitted, "that it would be 
 no evidence that it was the place where the 
 complainant was shot, or that he was shot 
 at all." Magee v. State, S2 Ala. 575. 
 
 208. Person injured. An indictment 
 charged a shooting with intent to kill and 
 murder one M. It was proved that the ac- 
 cused shot at, and intended to kill, C, but 
 missed him and shot M. Eelcl, that the va- 
 riance was fatal. Barcus v. State, 49 Miss. 
 17. 
 
 209. Weapon. Where an indictment 
 charges an assault with a iasket Jcnife, with 
 intent to kill, and the evidence shows that 
 the instrument used was a basket iron, the 
 indictment will be sustained. State v. 
 Dame, 11 New Hamp. 371. 
 
 210. Intent. The intent cannot be im- 
 plied, but must be proved as a fact. State 
 V. Beaver, 5 Harring. 508 ; and proof of the 
 intent must be as of the time of committing 
 the act. People v. Kerrains, 1 N. Y. Supm. 
 N. S. 333. It is not suiiicient to prove a 
 general felonious intent, or any other than 
 the particular intent alleged in the indict- 
 ment; and the burden of proving the al- 
 leged intent, as Well as the other facts which 
 constitute the offense, is on the prosecution. 
 Ogletree v. State, 28 Ala. 693. But where 
 the evidence shows that it would have been 
 murder if death had ensued, that in itself 
 will be sufficient ground for the jury to infer 
 the existence of the intention to murder. 
 Cole V. State, 5 Eng. 318. 
 
 211. On the trial of an indictment for an 
 assault, with intent to murder E., the proof 
 conduced to show that the accused fired a 
 gun in the direction of W. and E., and of a 
 dog near them; but there was some doubt 
 whether the intent was to kill or wound the 
 dojr, or these men, or one of them. The 
 following charge of the court was held er- 
 roneous: That if a loaded gun was present- 
 ed within shooting range at W. or E., or at 
 the dog^ under circumstances not justified by 
 law, and showing an abandoned and malig- 
 nant heart, and the gun was fired off, and in- 
 flicted a dangerous wound upon E., an as- 
 sault with a deadly weapon, with intent to 
 inflict bodily injury upon E., had been 
 proved. People v. Keefer, 18 Cal. 636. 
 
 212. In New York, an indictment under 
 the Revised Statutes, charging one with an 
 assault and battery with a deadly weapon 
 with intent to kill, is sustained by proof of 
 having committed the offense with intent 
 to commit any felonious homicide. People 
 v. Shaw, 1 Parker, 327. 
 
 213. Where the prisoner was charged with, 
 an assault with intent to kill, it was held 
 that evidence of experts as to the location^ 
 character, and probable consequences of the 
 wound, was proper as bearing upon the 
 question of intent. People v. Kerrains, 1 
 N. Y. Supm. N. S. 333. 
 
 214. On the trial of an indictment for an 
 assault with a deadly weapon with intent tO' 
 kill, a surgeon was asked whether a wound 
 on the chest endangered life. Held proper, 
 the infliction of a dangerous wound being 
 more indicative of an intent to kill than one 
 of a slighter character. Rumsey v. People, 
 19 N. Y. 41. 
 
 215. On the trial of an indictment for an 
 assault with intent to murder, it was proved 
 that the defendant went to the house of the 
 prosecutrix, and after threatening to kill 
 her, seized a hatchet and started toward her 
 with it raised in a threatening attitude; that 
 she fled to an adjoining room, and thence to 
 a butcher's shop, a few rods distant; and 
 that the defendant, after waiting a few 
 minutes, followed her to the latter place. 
 Held that what occurred in the butcher's 
 shop, between the prosecutrix and the de- 
 fendant, was admissible on the question of 
 intent. People v. Yslas, 27 Cal. 630. 
 
 216. On the trial of an indictment for an 
 assault with intent to kill, the intent is a 
 question of fact for the jury. It is, there- 
 fore, error in the court to charge that ' ' the 
 law presumes that every man intends the 
 natural, necessary, and probable conse- 
 quences of his acts." State v. Stewart, 29 
 Mo. 419. And see Crocker v. State, 47 Ga. 
 5G8. Whether an assault by lying in wait is 
 deliberate, is not a conclusion of law, but a 
 question of fact. Floyd v. State, 3 Heisk. 
 343 ; 3. c. 1 Green's Crim. Reps. 757. 
 
 217. Intoxication may render a party in- 
 capable of forming or entertaining the in-
 
 ASSAULT AND BATTERY. 
 
 53 
 
 Assault with Intent to Kill. 
 
 Evidence. 
 
 Jtention of committing an assault with intent 
 to murder. Mooney v. State, 33 Ala. 419. 
 
 218. Character of assault. To sustain a 
 conviction, the proof must be such that if 
 death had ensued, it would have been mur- 
 der. Elliott V. State, 46 Ga. 159 ; Jackson 
 V. State, 51 lb. 402; Meeks v. State, lb. 429; 
 Smith V. State, 52 lb. 88 ; Eead v. Com. 23 
 Gratt. 924; State v. Neal, 37 Maine, 468; 
 McCoy V. State, 3 Eng. 451 ; Cole v. State, 
 6 lb. 318. 
 
 219. But the court is not bound to charge 
 the jury at the defendant's request, " that 
 they cannot find the defendant guilty of an 
 assault with intent to murder, unless they 
 are satisfied from the evidence, beyond a 
 reasonable doubt, that, if death had ensued 
 from the assault, he would have been guilty 
 of murder in the first degree." Ogletree v. 
 .fitate, 28 Ala. 693 ; Slatter v. People, 58 K 
 Y. 354. 
 
 220. In Minnesota, where on the trial of an 
 indictment for an assault with intent to mur- 
 der, the judge, after charging the jury as to 
 the general common-law definition of mur- 
 der, instructed them, that, in order to re- 
 turn a verdict of guilty, they must find that 
 if the assault had resulted in death, the kill- 
 ing would have been murder under the 
 general definition. Held erroneous, for the 
 reason that such general definition compre- 
 hended both the lesser degrees of murder 
 under the statute, and manslaughter. Bon- 
 fanti V. State, 2 Minn. 123. 
 
 221. It is erroneous to charge the jury, on 
 a trial for an assault with intent to murder, 
 that proof which would make the offense 
 murder if death had ensued, would be suffi- 
 cient evidence of the intention, since, by the 
 common law, a killing may amount to mur- 
 der, though the party committing the offense 
 did not intend to kill. Moore v. State, 18 
 Ala. 532. 
 
 222. On a trial for assault with intent to 
 .'murder, it was proved that the accused pre- 
 / sented a loaded gun, and attempted three 
 
 times to fire it, but that there was no cap on 
 it. A charge that the absence of the cap 
 would not avail the defendant if lie sup- 
 posed it was on the gun, and that the jury 
 must be satisfied beyond a reasonable doubt 
 
 that he did not know there was no cap on 
 it, is correct. Mullen v. State, 45 Ala. 66. 
 
 223. On the trial of an indictment for an 
 assault with a deadly weapon with intent to 
 inflict bodily harm, it appeared that the 
 prisoner threatened to shoot the prosecutor 
 if he did not leave certain land in dispute 
 between the parties, at the same time draw- 
 ing a revolver which he held in a line with 
 the body of the prosecutor, but with the 
 pistol so pointed that the ball would have 
 struck the ground before it reached the 
 latter if it had been discharged. Held that a 
 conviction was proper. People v. McMakin, 
 8 Cal. 547. See People v. Ilonshell, 10 
 Cal. 83. 
 
 224. Malice. On a trial for an assault 
 with intent to kill, it is competent to prove 
 that the defendant, who was in the employ 
 of the complainant, was maliciously and re- 
 vengefully disposed toward him, and that 
 the defendant purposely did his work badly 
 so as to injure the complainant. Peojjle v. 
 Kerrains, 1 N. Y. Supm. N. S. 333. 
 
 225. On a trial for an assault with intent 
 to murder, the State, in order to show 
 malice, may prove the fact of a previous diffi- 
 culty between the accused and the person 
 assaulted, but not the particulars of such 
 difficulty. Tarver v. State, 43 Ala. 354. 
 
 226. An indictment for an assault with in- 
 tent to murder, charging that the assault 
 was committed with malice aforethought, 
 will be sustained by proof that the assault 
 was made without premeditation or malice 
 aforethought, but willfully and maliciously, 
 with the intent charged. Sharp v. State, 19 
 Ohio, 379 ; State v. Parmelee, 9 Conn. 259. 
 
 227. On the trial of an indictment for as- 
 saulting an officer with intent to murder 
 him, while engaged in arresting M., the de- 
 fense proved that M. had given himself up, 
 and that the officer immediately called in 
 otlier persons, some of whom were armed, 
 and upon M.'s taking up his knife, but not 
 making any hostile demonstration with it, 
 the officer struck him several times on the 
 head with a club, and that thereupon, the 
 defendant shot the officer. Ueld that it was 
 for the jury to determine how far the rush- 
 ing in of an armed crowd, and a violent at-
 
 54 
 
 ASSAULT AND BATTERY. 
 
 Assault with Intent to Kill. 
 
 Evidence. 
 
 tack with a deadly weapon upon M. aflfected 
 the question of malice on the part of the 
 defendant. Jackson v. State, 51 Ga. 402. 
 
 228. Declarations of party assaulted. 
 On the trial of an indictment for an assault 
 with intent to murder, declarations of the 
 party assaulted, made immediately after the 
 encounter, are admissible as a part of the 
 res ge)it(B to show the impression on his mind 
 at the time as to the nature of the attack 
 made on him by the accused. Monday v. 
 State, 32 Ga. 672. But threats made by the 
 party assaulted to a third person against the 
 defendant, previous to the assault, are not 
 admissible in evidence in the defendant's be- 
 half, when it does not appear at what time 
 they were communicated to him. State v. 
 Jackson, 17 Mo. 544. 
 
 229. Declarations of defendant. On the 
 trial of an indictment for an assault with in- 
 tent to murder, the declarations of the de- 
 fendant the next day after the occurrence, 
 manifesting animosity toward the person at- 
 tacked, are admissible on the question of 
 malice. Meeks v. State, 51 Ga. 429. 
 
 230. On the trial of an indictment for an 
 assault and battery with intent to murder, 
 the prosecution were permitted to prove that 
 the defendant said a short time before he 
 committed the assault, that he expected to 
 kill some one before he left town. Read v. 
 State, 2 Carter, 438. 
 
 231. But on the trial of an indictment for 
 an assault on A. with intent to murder, the 
 defendant's threats, made several hours 
 " previous to the fight," that he would kill 
 B., are not admissible against him. Ogletree 
 V. State, 28 Ala. 693. 
 
 232. On the trial of an indictment for an 
 assault with intent to murder, the assault 
 having in fact been made by a mob, and not 
 by the defendant, if he is sought to be con- 
 victed by proof tliat he encouraged, aided 
 and abetted the mob to commit the assault 
 by words uttered by him, it must be proved 
 that they were addressed to, or at least 
 heard by the persons or some of them com- 
 posing the mob. Cabbell v. State, 46 Ala. 
 195. 
 
 233. Where on a trial for an assault with 
 intent to murder, the prosecution prove that 
 
 the defendant seized a deadly weapon, the 
 defendant has a right to elicit on cross-ex- 
 amination what was said by the defendant 
 when he took the weapon. Taliaferro v. 
 State, 40 Texas, 522. 
 
 234. On the trial of an indictment for an 
 assault with intent to murder, the statement 
 of the prisoner after he had been arrested 
 and gone 150 yards toward the guard house 
 is not admissible in his favor as a part of the 
 res gestae. Hall v. State, 48 Ga. 607. 
 
 235. Declarations of codefendant. When 
 three jointly indicted for an assault with 
 intent to murder are tried separately, a 
 letter written by one of them to the prose- 
 cutor before the commission of the assault, 
 which shows malice and ill will on the part 
 of the writer towards the prosecutor, cannot 
 be given in evidence against another, who 
 though particeps criminis in the assault, is 
 not shown to have had anything to do with 
 the writing of the letter, nor to have partici- 
 pated in his ill will towards the prosecutor. 
 Stewart v. State, 26 Ala. 44. 
 
 236. If, however, the defendants had 
 entered into a conspiracy to kill the prose- 
 cutor, and the letter was 'written subse- 
 quently by one to advance the common de- 
 sign, it would be evidence against all. lb. 
 
 237. On the trial of an indictment for an 
 assault with intent to commit murder, there 
 was some evidence tending to show that the 
 defendant was assaulted by the party in- 
 jured and several other persons. Held that 
 what was said by these persons at the time 
 of the assault, illustrative of its object and 
 the motive which prompted it, being a part 
 of the res gestae, was admissible in evidence. 
 People V. Roach, 17 Cal. 297. But see Max- 
 well v. State, 3 Heisk. 420 ; s. c. 1 Green's 
 Grim. Reps. 696. 
 
 238. On the trial of an indictment for an 
 assault and battery with intent to murder, 
 there was evidence of a conspiracy between 
 the defendant and B. to commit offenses of 
 force and violence, and that the assault and 
 battery was committed by B. while the de- 
 fendant was present aiding and abeiting 
 him. Held that the previous declarations 
 of B. as to the intentions of himself and the 
 defendant, which resulted in the assault and
 
 ASSAULT AND BATTERY. 
 
 55 
 
 Assault with Intent to Kill. 
 
 Evidence. 
 
 battery in question, were admissible in evi- 
 dence. Williams v. State, 47 Ind. 568. 
 
 239. Presumptions. On the trial of an in- 
 dictment for assaulting and stabbing another 
 with a knife, evidence that the defendant 
 was possessed of a knife, and its character 
 and condition, is admissible as tending to 
 show that the injury was inflicted with a 
 knife. Com. v. Roach, 108 Mass. 289. 
 
 240. On the trial of an indictment for an 
 assault with a deadly weapon with intent to 
 murder, a witness for the prosecution may 
 be asked on cross-examination, whether at 
 the time of the occurrence he was not ex- 
 cited from anger, and whether he did not 
 have a fight immediately previous. Hoffler 
 V. State, 16 Ark. 534. 
 
 241. On a trial for an assault with intent 
 to murder, a charge which selects a portion 
 only of the facts disclosed by the testimony, 
 and instructs the jury that if these facts are 
 proved, "the law presumes that the act was 
 malicious," and that the defendant "in- 
 tended to kill," is erroneous, nor is the error 
 cured by further instructing them in a sub- 
 sequent part of the charge that these pre- 
 sumptions of law only arise in the absence 
 of evidence tending to qualify or explain 
 the selected facts ; and if, upon the whole 
 evidence, they entertain a reasonable doubt, 
 they should acquit the defendant. Ogletree 
 V. State, 28 Ala. 693. 
 
 242. In Delaware, on the trial of an in- 
 dictment for an assault with intent to kill, 
 under the statute, the intent cannot be pre- 
 sumed from the act, as malice is, but must 
 be proved. State v. Negro Bill, 3 Harring. 
 571. 
 
 243. Circumstances leading to assault. 
 The circumstances which in fact led to the 
 assault are a part of the res gestae which the 
 jury are entitled to have before them to show 
 what was the ?eal nature of the act. It is 
 therefore competent for the defense to prove 
 that the person a.^saulted, the night before, 
 attempted the violation of the defendant's 
 wife. Biggs v. State, 29 Ga. 723. 
 
 244. On the trial df an indictment for an 
 assault on H. with iutent to murder, evi- 
 dence was held admissible which tended to 
 show the commission of adultery with the 
 
 prisoner's wife half an hour before the as- 
 sault ; that the prisoner saw them going to 
 the woods together; that he followed them, 
 and was told on the way by a friend that 
 they had committed adultery the day before 
 in the woods ; that H. and the prisoner's wife 
 were seen not long after coming from the 
 woods, knd that the prisoner pursued H. to 
 a saloon, where the assault was committed. 
 Maherv. People, 10 Mich. 212. 
 
 245. Charging the jury that they must find 
 A., the defendant, guilty if they believe that 
 he committed the assault with intent to take 
 life, is error, because it takes from the jury 
 all consideration of provocation or self-de- 
 fense. State V. Williamson, 16 Mo. 394, 
 
 246. Affront. No affront by mere words 
 or gestures is a sufficient provocation to ex- 
 cuse or extenuate such acts of violence as 
 manifestly endanger the life of another. 
 State V. Fuentes, 5 La. An. 427. 
 
 247. Where defendant was the aggres- 
 sor. When on a trial for an assault with 
 intent to murder, it is proved that the de- 
 fendant was the aggressor, he cannot miti- 
 gate the offense by showing that it was com- 
 mitted under the influence of sudden passion 
 caused by injuries inflicted by his adversary- 
 Crane V. State, 41 Texas, 494; nor that his 
 adversary had armed himself for a voluntary 
 fight, it appearing that the defendant after 
 arming himself sought to renew the combat. 
 Murray v. State, 36 lb. 42; s. c. 1 Green's 
 Crim. Reps. 654. 
 
 248. If a father make a felonious assault 
 upon another, and his son afterward aid his 
 father in the assault, on the trial of an in- 
 dictment against the son for an assault with 
 intent to murder, the jury cannot consider 
 his relation to his father, nor the circum- 
 stances of peril in Avhich his father was 
 placed. Sharp v. State, 19 Ohio, 379. • 
 
 249. Defense of property. An assault 
 with intent to murder cannot be excused 
 on the ground that it was in defense of 
 property. State v. Morgan, 3 Ired. 186. 
 
 250. On the trial of an indictment for an 
 assault upon D. with a deadly weapon, with 
 intent to inflict upon him bodily injury, it 
 is no justification that the defendant, while 
 he was in possession of and working his
 
 56 
 
 ASSAULT AND BATTERY. 
 
 Assault with Intent to Kill. 
 
 Evidence. 
 
 Verdict. 
 
 mining claim, shot D. because he had shut 
 off the supply of water in the gulch, to 
 which the defendant was entitled. Terr, of 
 Mont. V. Drennan, 1 Mont. 41 ; s. c. 1 Green's 
 Crim. Reps. 553. 
 
 251. Exercise of legal right. The 
 simple exercise of a legal right, no matter 
 how ofi^nsive to another, is never in law 
 deemed a sufficient provocation to justify or 
 mitigate an act of violen.ce ; and for a provo- 
 cation to have that effect, the act must be 
 the immediate result of, and follow the 
 provocation. State v. Lawry, 4 Nev. 161. 
 
 252. U])on the trial of an indictment for 
 an assault upon one S. with a deadly weapon, 
 with intent to kill, it was proved that it 
 was verbally agreed between S. and the 
 defendant, that the former should pay the 
 latter thirteen shillings a day for his services, 
 steady work, and give him the use of a 
 house to live in throughout the year, or 
 while they should agree. Held that the 
 relation was that of master and servant; 
 that S. had the right of possession of the 
 house, and the right to remove the defendant 
 with his effects therefrom, and to employ 
 all the force necessary for that purpose, and 
 that the defendant's resistance to such re- 
 moval was unlawful. People v. Ken-ains, 1 
 N. Y. Supm. N. S. 333. 
 
 253. Antecedent grudge. Mere threats 
 made will not excuse a deadly assault, when 
 the party assailed had made no attempt or 
 demonstration of a hostile or equivocal char- 
 acter. People V. Wright, 45 Cal. 260. 
 
 254. On the trial of an indictment for an 
 assault with intent to murder, evidence is 
 admissible of threats made by the person 
 assaulted, to drive the defendant from the 
 place, or take his life ; and whether the 
 threats were such as to excite the fears of a 
 reasonable man, and to induce the defendant 
 to apprehend violence to his person, so as to 
 justify an attack upon the party making 
 them, is a question for the jury, and if not 
 a justification, may, in their judgment, rebut 
 the presumption of malice. Howell v. State, 
 5 Ga. 48. 
 
 255. Previous assault. A prior assault 
 on the prisoner, by the person whom he is 
 alleged to have assaulted with intent to 
 
 murder, is not necessarily a defense, since 
 the injury inflicted by the prisoner may not 
 have been justified by the necessity of the 
 case, nor proportioned to the injury inflicted 
 on him. Mooney v. State, 33 Ala. 419. 
 
 256. On the trial of an indictment for an 
 assault with intent to murder, the defendant's 
 counsel proposed to prove a fight between 
 the parties two years previous, and stated 
 that he expected to connect the two fights 
 by repeated and continuous acts of violence 
 on the part of the complainant, down to the 
 time of the offense charged. Ileld proper 
 to begin with the proof at the last fight, 
 and go back to the first. Hatcher v. State, 
 18 Ga. 460. 
 
 257. Mutual combat. On the trial of an 
 indictment for stabbing, it was proved that 
 the prosecutor and defendant agreed to 
 fight; and that the prosecutor being un- 
 armed, the defendant commenced from the 
 first to use a knife. Held that this was not 
 self-defense. McAfee v. State, 31 Ga. 411. 
 
 258. Where on the trial of an indictment 
 against F. for stabbing W., which occurred 
 immediately after the latter had struck the 
 former with his fist, it did not appear that 
 there was great superiority in physical 
 strength on the part of W. , nor that F. was 
 in ill health, nor other circumstance which 
 produced great inequality between them 
 for sudden combat, it was held that F. was 
 properly con\acted. Floyd v. State, 36 Ga. 
 91. 
 
 259. Wife as witness. On the trial of 
 the husband for assault and battery upon 
 the wife with intent to kill her, the prosecu- 
 tion will not be compelled to call her as a 
 witness. In such case, the wife is a com- 
 petent witness for her husband, and may be 
 called on his behalf. People v. Fitzpatrick, 
 5 Parker, 26. 
 
 {d) Verdict. * 
 
 260. Form. On an indictment for assault 
 and battery with intent to kill, the verdict 
 should be, that " the prisoner is guilty of the 
 assault and battery with a deadly weapon 
 with intent to kill ; " or, " by such force as 
 was likely to produce death, with intent to 
 kill;" or, "guilty of assault and battery
 
 ASSAULT AND BATTERY. 
 
 57 
 
 Assault with Intent to Kill. 
 
 Verdict. 
 
 with intent to kill, as charged in the indict- 
 ment." People V. Davis, 4 Parker, 61 ; 
 O'Leary v. People, lb. 187. 
 
 261. If a person designedly fire a pistol in 
 the direction of two, and so near that it 
 ■would probably do them some great bodily 
 harm, and with such an intent, or regardless 
 which it might kill, he may be found guilty 
 of the same intent as to both. Com, v. Mc- 
 Laughlin, 12 Cush. 615. 
 
 262. In Alabama, where a person is in- 
 dicted for an assault with intent to kill and 
 murder, and the jury find him guilty of an 
 assault with intent to kill, it is equivalent to 
 a verdict of guilty of a simple assault, or as- 
 sault and battery. State v. Burns, 8 Ala. 
 313. 
 
 263. It is erroneous to charge the jury that 
 they may find the defendant guilty of "an 
 attempt to commit an assault with intent to 
 commit murder ; " no such offense being 
 known to the law. White v. State, 22 Texas, 
 C08. 
 
 264. Vaxiant from charge. The indict- 
 ment charged the defendant with having 
 made an assault with a dangerous weapon 
 upon one A. with intent to kill and murder. 
 The jury rendered the following verdict: 
 " The defendant D. S. is guilty of behig 
 accessory before the fact of an assault with 
 intent to kill A." Held that the judgment 
 must be arrested. State v. Scannell, 39 
 Maine, 68. 
 
 265. On a trial for an assault with intent 
 to murder, a special verdict which finds the 
 defendant guilty of striking with a loaded 
 whip, calculated to produce death, without 
 cause or provocation, does not justify the 
 court in rendering judgment of guilty in 
 manner and form as charged. Scitz v. 
 State, 23 Ala. 42. 
 
 266. Under an indictment for an assault 
 with intent to kill and murder, if the 
 offense when completed would have been 
 manslaughter, the prisoner may be convicted 
 of an assault with intent to kill, or of an 
 assault. State v. Butman. 42 New Eamp. 
 490. 
 
 267. In Maine, the statute makes an as- 
 sault with intent to murder and an assault 
 with intent to kill, distinct offenses. The 
 
 former necessarily includes the latter, and a 
 person charged with the greater offense may 
 be found guilty of the lesser. State v. 
 Waters, 39 Maine, 54. The first two counts 
 of an indictment charged an assault with in- 
 tent to murder, and the last two, an assault 
 with intent to kill. Held that it was com- 
 petent for the jury to find the prisoner guilty 
 of an assault simply, or of an assault with 
 intent to kill, or of an assault with intent to 
 murder. State v. Phinney, 42 Maine, 384. 
 
 268. In Connecticut, where the indictment 
 charged an assault with intent to murder, 
 and the jury found a verdict of guilty of an 
 assault with intent to kill, without malice 
 aforethought, it was held to be a good find- 
 ing. State V. Nichols, 8 Conn. 496. 
 
 269. Under an indictment for an assault 
 with intent to murder, the defendant may 
 be convicted of a simple assault, or of as- 
 sault and battery. State v. Coy, 2 Aiken, 
 181; Gardenheir v. State, 6 Texas, 348; 
 Clark V. State, 13 Ga. 350 ; State v. Ken- 
 nedy, 7 Blackf. 233; State v. Bowling, 10 
 Humph. 52; Stewart v. State, 5 Ohio, 241; 
 Tuberville v. State, 40 Ala. 715 ; Dixon v. 
 State, 3 Iowa, 416; State v. Shepard, 10 lb. 
 126; Foley V. State, 9 lb. 363; State v. Sted- 
 man, 7 Porter, 495 ; Cameron v. State, 8 Eng. 
 712. But see Wright v. State, 5 Iowa, 527. 
 Contra, in Florida and Arkansas, Ludowick 
 V. State, 9 Fla. 404; Sweeden v. State, 19 
 Ark. 205. 
 
 270. Under an indictment for an assault 
 with intent to murder, the jury cannot find 
 the defendant guilty of an assault with in- 
 tent to commit bodily injury. Carpenter v. 
 People, 4 Scam. 197. But in Kentucky, 
 under an indictment for shooting with in- 
 tent to kill and murder, the defendant may 
 be found guilty of shooting with intent to 
 wound. Robinson v. Com. 16 B. Mon. 609. 
 
 271. On one of two counts. After the 
 trial of an indictment for an assault with 
 intent ta murder which contained two 
 counts, the judgment entry recited that the 
 State moved that the defendant be tried on 
 the first count, and that the second count be 
 postponed until the first was disposed of; 
 to which there was no dissent by the defend- 
 ant. That the jury found the defendant
 
 58 
 
 ATTORNEY. 
 
 Assault with Intent to Kill. 
 
 guilty as charged in the indictment, and the 
 solicitor afterward entered a nolle prosequi 
 to the second count. Held 1. That the post- 
 poning of the second count until the first 
 ' was disposed of was error. 2. That the de- 
 fendant was not precluded from taking ad- 
 vantage of the error by the recital in the 
 judgment entry that he did not object. 3. 
 That if the defendant had consented to go 
 to trial on one count only, yet the verdict 
 being genei-al, it would have been erroneous. 
 Flanagan v. State, 19 Ala. 54G. 
 
 272. Amendment. On a trial for an 
 assault with intent to murder, the jury found 
 the defendant guilty of assault and battery 
 without the felonious intent. Held that 
 the verdict might be amended during the 
 sitting of the court, by striking out the 
 words "and battery." Com. v. Lang, 10 
 Gray, 11. 
 
 See Afpkat. Foi' assault with intent to 
 commit rape, see Rape. 
 
 ^ttovnci). 
 
 1. Right to visit jail. Counsel have the 
 right, at all reasonable hours of the day, to 
 visit a jail in order to advise with their 
 clients; and if denied admission, they are 
 not obliged to resort to an action of trespass, 
 but may obtain redress by summary process. 
 Matter of Sheriff and Jailer of N. Y. 1 
 Wheeler's Crim. Cas. 303. 
 
 2. Designation by court. The power to 
 appoint a counselor of the court to assist a 
 prosecuting officer in the trial, is an in- 
 cidental power of the court, and the fact 
 that such person expects compensation will 
 not deprive the court of its power to appoint 
 him. State v. Bartlett, 55 Maine, 200. 
 
 3. On the trial of an indictment for rape, 
 the defendant objected to F., an attorney 
 assisting in the prosecution, and filed his 
 affidavit stating in substance, that he had 
 employed F. to defend him, executed to F. 
 his notes for $250, and disclosed to him the 
 facts in the case, and the evidence for his 
 defense. Held that the permitting F. to 
 take part in the prosecution, was error. 
 Wilson V. State, 16 Ind. 392. 
 
 4. The fact that the trial was conducted 
 
 without the aid of any prosecuting attorney, 
 or by one who, with the assent of the court, 
 ^cted as such without competent authority, 
 is not ground for a new trial. Tesh v. Com. 
 4 Dana, 522. 
 
 5. Buying claim. The purchasing of 
 debts by attorneys, with intent to bring suits 
 upon them in justices' courts, is not pro- 
 hibited by the statute of New York (3 R. S. 
 5th ed. § 58), which provides that no at- 
 torney, counselor, or solicitor, shall buy any 
 bond, bill, promissory note, bill of exchange, 
 &c., for the purpose of bringing any suit 
 thereon. Goodell v. People, 5 Parker, 206. 
 
 6. Removal. The official misconduct of 
 an attorney at law, may be inquired into in 
 a summary manner by the court, and if 
 guilty, his name may be stricken from the 
 roll of attorneys. Rice v. Cora. 18 B. Mon. 
 472; Turner v. Com. 2 Mete. Ky. 619; 
 Walker v. Com. 8 Bush, 676. Or the pro- 
 ceeding may be by information. Baker v. 
 Com. 10 lb. 592. 
 
 7. The fact that the counsel of a prisoner 
 has projected his escape, is ground for the 
 removal of the counsel as a member of the 
 bar. Matter of Sheriff and Jailer of N. Y. 
 1 Wheeler's Cr, Cas. 303. 
 
 8. The power to disbar an attorney is 
 possessed by all courts which have authority 
 to admit attorneys to practice. It can only 
 be exercised when there has been such mis- 
 conduct on the part of the attorney as shows 
 him to be an unfit member of the profession. 
 Before a judgment disbarring an attorney 
 is rendered, he should have notice of the 
 grounds of complaint against him, and op- 
 portunity of explanation and defense. Man- 
 damus is the proper remedy to restore an 
 attorney disbarred, where the court below 
 has exceeded its jurisdiction. EJx parte 
 Robinson, 19 Wallace, 505, per Field, J.; 
 s. c. 2 Green's Crim. Reps. 135. 
 
 As to privileged communications ietween 
 attorney and client, see Evidence. 
 
 Autrefois Acquit, anh 
 ^utrcfob Couuict. 
 
 See FoEMER acquittal or conviction.
 
 BAIL AND KECOGNIZANCE. 
 
 59 
 
 Authority to admit to Bail, or to compel a Recognizance. 
 
 Sail ani Kccogmjancc, 
 
 1. Authority to admit to bail, ou to 
 
 compel a recognizanre. 
 
 2. Bail when in general refused or 
 
 ALLOWED. 
 
 3. Proof required to admit to bail. 
 
 4. Form and requisites of recogni- 
 
 zance. 
 
 5. Construction and validity of re- 
 
 cognizance. 
 
 6. Return of recognizance. 
 
 7. Discharge of bail. 
 
 8. Forfeiture of recognizance. 
 
 1. Authority to admit to bail, or to com- 
 pel A recognizance. 
 
 1. In general. The power to take bail 
 is incident to the power to hear and deter- 
 mine the offense charged. People v. Van 
 Home, 8 Barb. 158; Young v. Shaw, 1 
 Chip. 224. And the court may admit the 
 prisoner to bail on a second application 
 after having previously refused to do so. 
 Ex parte Campbell, 20 Ala. 89. 
 
 2. Courts of record. The Supreme Court 
 of New York, or a justice thereof, as well as 
 courts of Oyer and Terminer, have authority 
 to bail in all cases. People v. Van Home, 
 8 Barb. 158; Ex parte Taylor, 5 Cow. 39. 
 But though the offense appear but man 
 slaughter, it is not of course to admit to 
 bail. lb. 
 
 3. In New York, where a person is arrested 
 under a warrant indorsed pursuant to the 
 statute (2 R. S. 707, § 5), for an offense pun- 
 ishable by imprisonment in the State prison, 
 he cannot be admitted to bail in the county 
 where the arrest is made, but must be taken 
 back to the county in which the warrant 
 was issued. Clarke v. Cleveland, 6 Hill, 
 344. 
 
 4. In Georgia, the court has the discre- 
 tionary power to bail in all cases. State v. 
 Abl)ot, R. M. Charlt. 244. In Ohio, where 
 a person accused of crime has been com- 
 mitted for trial by a justice of the peace, 
 the Court of Common Pleas may recognize 
 him to appear from day to day without in- 
 vestigating the circumstances. State v. 
 Dawson, 6 Ohio, 251. 
 
 5. Justices of the peace. In Illinois, 
 justices of the peace are authorized to take 
 recognizances in all bailable cases. Mc- 
 Farlan v. People, 13 111. 9. In Kentucky, 
 they may take bail. Hostetter v. Com. 12 
 B. Mon. 1. 
 
 6. In South Carolina, two justices of the 
 peace have power to admit to bail a prisoner 
 brought before them on a charge of felony, 
 but not after he has been committed. Bar- 
 ton V. Keith, 2 Hill, S. C. 537. 
 
 7. In Massachusetts, a justice of the peace 
 has no authority to admit to bail for an 
 offense which may be proceeded against as 
 well by action or information qui tarn as by 
 indictment. Com. v. Cheney, 6 Mass. 347 ; 
 nor after a prisoner has been committed by 
 another justice. Com. v. Canada, 13 Pick. 
 86. Neither can he let to bail one convicted 
 of felony who escapes before sentence into 
 another State and is afterwards brought 
 back. Com. v. Otis, 16 Mass. 198. 
 
 8. In Vermont, a justice of the peace, upon 
 the complaint of a private person, for a 
 felony or misdemeanor, may arrest, bind 
 over or commit for trial. But unless the 
 party complaining has a pecuniary interest 
 in the conviction, the bond must be taken 
 to the State. State Treasurer v. Rice, 11 
 Vt. 839. 
 
 9. In Virginia, after the prisoner has been 
 sent to a court of record for trial, a justice 
 of the peace has no authority to admit him 
 to bail. Hamlett v. Com. 3 Gratt. 82. But 
 the justice can take bail alter the examining 
 court has decided that the prisoner is baila- 
 ble and fixed the amount of bail. lb. 
 
 10. In New York, where a justice of the 
 peace was authorized to hear a complaint 
 and take a recognizance only in the absence 
 of the police justice residing in the same 
 town, it was held that the presumption, in 
 the absence of proof, was that the justice of 
 the peace did not exceed his jurisdiction. 
 People V. Mack, 1 Parker, 567. The com- 
 mitment of the accused, after the record of 
 conviction has been signed, ousts the magis- 
 trate of jurisdiction to take a recognizance. 
 People V. Duffy, 5 Barb. 205; People v.. 
 Brown, 23 Wend. 47. Whether two justices 
 of the peace have autliority, under the statute
 
 (30 
 
 BAIL AND RECOGNIZANCE. 
 
 Bail when in General Refused or Allowed. 
 
 relative to disorderly persons, to take the 
 recognizance after the filing of the record 
 and previous to commitment — query. Peo- 
 ple V. Brown, 23 Wend. 47. 
 >■ 11. In Connecticut, a justice of the peace 
 may admit a prisoner to bail at an adjourned 
 examination. Potter v. Kingsbery, 4 Day, 
 98. In the same State, a justice of the peace 
 has authority to require sureties of the peace 
 and good behavior of a person charged with 
 keeping a bawdy-house, and on his failing 
 to comply with such order, may commit 
 him to prison for a term not exceeding 
 thirty days. Darling v. Hubbell, 9 Conn. 
 3o0. 
 
 12. A magistrate who is authorized to 
 take the recognizance of persons accused of 
 crime cannot delegate the power to another. 
 Butler V. Foster, 14 Ala. 323 ; nor after he 
 has bound over the accused, cancel the re- 
 cognizance and discharge him. Benjamin 
 V. Garee, Wright, 450. 
 
 13. U. S. commissioner. A United States 
 commissioner, as respects the taking of bail, 
 has the same power as State magistrates. 
 U. S. V. Hortou's Sureties, 2 Dillon, 94; s. c. 
 1 Green's Crim. Reps. 431. 
 
 14. Sureties for good behavior. At 
 common law, courts of record may require 
 sureties for good behavior from a person 
 who has been convicted of a gross mis- 
 demeanor. Estes V. State, 2 Humph. 49G. 
 In Pennsylvania, where a person is tried for 
 burglary and acquitted, the court may com- 
 pel him to find sureties for the peace and 
 good behavior. Bamber v. Com. 10 Barr, 
 339. 
 
 15. When a married woman is disqualified 
 by law from taking the oath necessary to ob- 
 tain a peace warrant, her husband may de- 
 mand surety of the peace in her behalf against 
 any one from whom danger to her life or 
 person may be justly apprehended; and the 
 same is true as to the other domestic rela- 
 tions. State V. Tooley, 1 Head, 9. 
 
 16. A complaint on oath praying for 
 .surety of the peace, which states that the 
 " affiant verily believes and actually fears, 
 and has just cause to fear and apprehend 
 that the said J. 8. will kill him, said affiant, 
 or do him great bodily injury, or procure 
 
 others to do so," is bad f»r being in the 
 alternative. Steele v. State, 4 Ind. 561. 
 
 2, Bail when in general refused ok 
 
 ALLOWED. 
 
 17. In treason. There must be strong 
 circumstances which will induce the court 
 to admit a person to bail who is charged 
 with high treason. U. S. v. Stewart, 3 
 Dallas, 343. But see U. S. v. Hamilton, 3 
 lb. 17. 
 
 18. In murder. An indictment for a 
 capital oQ'euse furnishes of itself, a pre- 
 sumption of guilt too great to entitle the 
 defendant to bail as a matter of right. It 
 creates a presumption of guilt for all pur- 
 poses, except the trial before a petit jury. 
 People V. Tinder, 19 Cal. 539. 
 
 .19. In Alabama, the court has power, 
 where " the proof is not evident, or the 
 presumption great," to admit to bail a 
 prisoner accused cf murder. Ex parte Simon- 
 ton, 9 Porter, 390. And in that State, under 
 the constitution (art. 1, § 17) and laws 
 (Code §§ 3669-70), a person indicted for 
 murder is entitled to bail, unless the court 
 to which the application is made is of 
 opinion, on the evidence, adduced, that he is 
 guilty of murder in the first degree, and if 
 the application for bail is made to a circuit 
 judge, and is by him refused, the evidence 
 in the case may be set out on exceptions 
 (Code §3673), and application made there- 
 on to the Supreme Court. Ex parte Banks, 
 28 Ala. 89. On such an application, the 
 prisoner is presumed to be guilty. Exparte 
 Vaughan, 44 Ala. 17. 
 
 20. In Alabama, where the trial of a 
 capital offense is continued at one term, on 
 account of the disability of the presiding 
 judge, and at the succeeding term by the 
 State, without the defendant's fault or con- 
 sent, he has a right to be admitted to bail, 
 notwithstanding the case had been previ- 
 ously continued on his motion. Ex parte 
 Stifl; 18 Ala. 464. 
 
 21. In Arkansas, an indictment in a capital 
 case raises such a presumption of guilt as to 
 deprive tlie prisoner of the privilege of being 
 admitted to bail as a matter of right; and 
 to entitle him to it, he must rebut the pre-
 
 BAIL AND EECOGNIZANCE. 
 
 61 
 
 Bail when in General Refused or Allowed. 
 
 sumption raised against him ])y the indict- 
 ment. Ex parte White, 4 Eng. 233. 
 
 22. In Indiana, where a prisoner is indicted 
 for murder in the first degree, he may sue 
 out a writ of habeas corpus to be admitted 
 to bail, and upon proof that he is guilty of a 
 bailable homicide, he should be allowed 
 bail. Lumm v. State, 3 Ind. 293. 
 
 23. In Illinois and Missouri, every offense 
 is bailable, except capital oflfenses where the 
 proof is evident or the presumption great. 
 Shore v. State, 6 Mo. 640 ; Foley v. People, 
 1 Breese, 33. In Pennsylvania and Ken- 
 tucky, in capital cases, where the proof is 
 evident, or the presumption great, the pris- 
 oner will not be admitted to bail. Com v. 
 Keeper of Prison, 3 Ashm. 237 ; Villery v. 
 Com. 8 B. Mon. 3. In New Jersey, the 
 power of the court to admit to bail in capital 
 cases, will be seldom exercised, and Avith 
 great caution. State v. Blackafellow, 1 
 Halst. 332. 
 
 24. In South Carolina, after indictment 
 for a capital offense, the prisoner may be 
 admitted to bail, at the discretion of the 
 court ; and the court may entertain affirma- 
 tive affidavits, showing that the prosecution 
 Avas instituted from malice or mistake. 
 State V. Hill, 3 Brev. 89. But where two 
 justices under the habeas corpus act had 
 admitted a prisoner to bail who was charged 
 in the warrant with murder, it was held 
 that they were liable to indictment. State 
 V. Arthur, 1 McMullan, 456, 
 
 25. Circumstances of homicide to be in- 
 quired into. The mere fact that a grand jury 
 has found an indictment for murder, docs 
 not preclude an inquiry into the facts of the 
 case to ascertain whether the offense may 
 not be of such grade as to entitle the prisoner 
 to bail. Lynch v. People, 33 111. 494. The 
 consideration that the jury in a capital case 
 disagreed, will not in itself, entitle the pris- 
 oner to bail. State v. Summons, 19 Ohio, 
 139. But in deciding an application to bail 
 a prisoner indicted for murder, the result of 
 a previous trial is proper to be considered 
 in determining the probability of a future 
 conviction, and of the prisoner's guilt. 
 Where the jury on a former trial were equally 
 divided, six being in favor of acquitta'. 
 
 and six for conviction, and it appeared that 
 a second trial would soon take place, and 
 that the prisoner's health was not being 
 seriously impaired by his confinement, bail 
 was refused. People v. Cole, 6 Parker, 695. 
 
 26. Illness of prisoner. Where a prisoner 
 under indictment for murder was in such ill 
 health that his confinement endangered his 
 life, it was held to be good cause for ad- 
 mitting him to bail. Semme's Case, 11 Leigh, 
 605. Where a person was detained on a 
 charge of piracy, it was held that if in the 
 opinion of a skillful physician, the nature of 
 the prisoner's illness was such that confine- 
 ment must be injurious, and might be fatal, 
 he ought to be bailed. U. S. v. Janes, 3 
 Wash. C. C. 234. In Virginia, where the 
 accused was in prison under four indict- 
 ments for felony, and it was proved that 
 continued confinement would endanger his 
 life, he was admitted to bail. Archer's 
 Case, 6 Graft. 705. 
 
 27. In cases not capital In cases of 
 felony the prisoner cannot demand as of 
 right to be released from imprisonment and 
 let to bail. He should not be so released, 
 unless the court can, upon all the facts, see 
 that letting to bail will probably insure his 
 forthcoming to abide his trial. People v. 
 Dixon, 4 Parker, 651. 
 
 23. The statute of New York, which pro- 
 vides that if a person brought up on habeas 
 corpus, appear to be guilty of an offense, the 
 judge shall hold the person to bail, although 
 his commitment be irregular, if it be a bail- 
 able offense, contemplates a clear case of 
 guilt, and does not apply to a case where 
 two coroner's inquests have been held, one 
 of which found that the death resulted from 
 suicide, and the other, that there was cause 
 to suspect the defendant of the homicide. 
 People V. Bitdge, 4 Parker, 519. 
 
 29. Where two grand juries had found 
 that the crime committed was manslaughter, 
 and one that it was murder, it was held that 
 the prisoner was entitled to the benefit of 
 the presumption that his offense was no 
 more than manslaughter, and he was ad- 
 mitted to bail. People v. Van Home, 8 
 Barb. 158. 
 
 30. In Virginia, where the defendant is
 
 G2 
 
 BAIL AND RECOGNIZANCE. 
 
 Bail when in General Refused or Allowed. 
 
 acquitted on the trial of one of several in- 
 dictments found on substantially one and the 
 same offense, he ■will be entitled to bail. 
 Green's Case, 11 Leigh, G77. But acquittal 
 on the trial of one of two indictments for 
 p:is.sing counterfeit money will not entitle 
 the prisoner to be let to bail in the other. 
 Summerfield's Case, 2 Rob. 767. 
 
 31. In Georgia, in crimes of a high grade, 
 where the proof is positive, and there are 
 no extrinsic circumstances in favor of the 
 prisoner, bail will be refused. State v. 
 Howell, E. M. Charlt. 120. But where there 
 are mitigating circumstances in favor of the 
 prisoner, and a presumption that he has only 
 been guilty of a minor ofiense, the court will 
 admit to bail. State v. Wicks, lb. 139. 
 
 32. Upon indictment for mayhem, if the 
 offense is flagrant without mitigating cir- 
 cumstances, bail will not be taken. State 
 V. Mairs, Coxe, 335. 
 
 33. When a person brought before a 
 magistrate for a violation of the act of New 
 York of April 9, 1855, " for the prevention 
 of intemperance, pauperism, and crime," de- 
 mands that his examination shall be taken, 
 and offers bail for his appearance at the 
 next Court of Sessions, the refusal of his re- 
 quest by the magistrate will be error. 
 People V. Berberrich, 20 Barb. 224. 
 
 34. Omission to prosecute. A person ac- 
 cused of felony may make the omission to 
 prosecute a good claim for bail, if the omis- 
 sion is oppressive ; as when the prosecuting 
 officer, or committing magistrate, permits a 
 term of a court in which the prisoner could 
 have been tried, to pass without commenc- 
 ing the trial. State v. Abbott, R. M. Charlt. 
 214. In South Carolina, a prisoner accused 
 of forgery will lie admitted to bail at the 
 second court, if no indictment has been 
 found against him. State v. Buych, 2 Bay, 
 563. In Massachusetts, where, upon indict- 
 ment for burglary, the prosecuting attorney 
 did not deem it safe to go to trial upon the 
 evidence he had, the prisoner was bound in 
 his own recognizance to appear for trial at 
 the next term. Com. v. Phillips, 16 Mass. 
 423. 
 
 35. After conviction. The prisoner might 
 be admitted to bail after conviction at com- 
 
 mon law. Davis v. State, 6 How. Miss. 399; 
 State V. Hill, 3 Brev. 89. 
 
 36. Bail is founded on the doubt which 
 may exist as to the prisoner's guilt. If his 
 guilt is beyond doubt, he ought not to be 
 bailed. But the prisoner may be admitted 
 to bail, even after conviction and sentence, 
 when it appears that he was improperly con- 
 victed, or there are serious doubts as to his 
 guilt. People v. Lohman, 2 Barb. 450. Un- 
 der section 19 of the statute of New York, 
 relative to habeas corpus, a person, after con- 
 viction for a misdemeanor, is entitled to be 
 heard on an application to be let to bail, 
 even after the execution of judgment has 
 commenced, where a writ of error has been 
 allowed in his case, with a direction that it 
 shall operate as a stay of the execution of 
 the judgment; and it is discretionary with 
 the judge to let him to bail pending the de- 
 cision of the court on the writ of error. 
 People V. Folmsbee, 60 Barb. 480, 
 
 37. In North Carolina, after convicrion 
 for passing counterfeit money, it was held 
 that the prisoner was not entitled to be ad- 
 mitted to bail, as a matter of right; but that 
 it was in the discretion of the court before 
 which the appeal was taken. State v. 
 Rutherford, 12 Hawks, 458. 
 
 38. In Mississippi, where the punishment 
 is only fine and imprisonment, the court will 
 admit the prisoner to bail after conviction 
 when the circumstances of the case justify 
 it. But the power will be exercised with 
 great caution, and only in minor offenses. 
 Davis v. State, 6 How. Miss. 339. 
 
 39. In South Carolina, although in minor 
 offenses, it is usual to admit to bail, after 
 conviction, where motions for new trial or 
 in arrest of judgment are made, yet it wiil 
 not be done after conviction of an infamous 
 crime. State v. Connor, 2 Bay, 34. 
 
 40. Upon allowance of writ of error. 
 Whether a prisoner in confinement in pursu- 
 ance of a final judgment and sentence can 
 be admitted to bail after an allowance of a 
 writ of error, when there is no direction 
 therein that the same shall operate as a stay 
 of proceedings — query. Dempsey v. People, 
 5 Parker, 85. 
 
 41. Appeal from decision. Though the
 
 BAIL AND EECOGNIZANCE. 
 
 63 
 
 Proof Required to Admit to Bail. 
 
 Form and Requisites of Recognizance. 
 
 decision of a committing magistrate or courts 
 in relation to admitting to bail, is final as to 
 other magistrates or courts of co-ordinate 
 or concurrent jurisdiction, yet it may be re- 
 viewed on appeal. People v. Cunningham, 
 3 Parker, 531. Where a police justice by 
 whom the prisoner Avas committed, and also 
 the court of General Sessions before whom 
 the prisoner was triable, refused bail, and 
 afterward a judge of the Supreme Court 
 sitting at chambers, admitted to bail, the 
 latter decision was reversed by the general 
 term of the Supreme Court, on the ground 
 that the question was res acljudicata when 
 brought before the single judge. lb. But 
 when bail is refused on the ground that it 
 is not sufficient, a new application may be 
 made for a discharge on offering other bail. 
 lb. 
 
 3. Proof required to admit to bail. 
 
 42. In general. The maxim of law 
 that every one is presumed innocent until 
 he is proved guilty, does not apply to the 
 question of admitting a person accused of 
 crime to bail. People v. Goodwin, 1 
 Wheeler's Crim. Cas. 434. 
 
 43. In Ohio, if the evidence produced on 
 the hearing of the application to admit to 
 bail be such that it would not sustain a 
 verdict of guilty, on a motion for a new 
 trial the court will admit to bail. State v. 
 Summons, 19 Ohio, 139. 
 
 44. A person indicted for murder, can- 
 not be admitted to bail on ex parte testi- 
 mony. State V. Dew, 1 Taylor, 142. 
 
 45. Testimony at inquest. On a ques- 
 tion of bail before indictment, on a charge 
 of murder, the court on habeas corpus may 
 look into the examination had by the cor- 
 oner by whom the prisoner was committed, 
 to ascertain whether a crime has been per- 
 petrated, and if so the strength of the proofs 
 that support it. People v. Beigler, 3 Parker, 
 316. But when the indictment has been 
 found, the inquest of the coroner, and the 
 depositions before the magistrate, cannot 
 be regarded on an application to admit to 
 bail. People v. Dixon, 4 lb. 654. 
 
 46. Affidavits or oral testimony. Upon 
 an application to be let to bail the prisoner 
 
 is not restricted to the record, but extraneous 
 facts may be introduced in evidence. Peo- 
 ple V. Cole, 6 Parker, 695. The affidavits of 
 jurors are admissible to prove the disagree- 
 ment of the jui-y on a former trial. lb. 
 
 47. On an application to be admitted to 
 bail after indictment for a capital offense, 
 affidavits or oral testimony to repel the pre- 
 sumption of guilt arising from the indict- 
 ment can only be received under special 
 and extraordinary circumstances, such as: — 
 the existence at the time the indictment was 
 found of great popular excitement witb 
 reference to the prisoner; proof that the 
 person charged to have been murdered ia 
 still alive; the admission of the public pros- 
 ecutor that the evidence will not warrant a 
 conviction ; where there has been a trial and 
 the jury have disagreed, or where after ver- 
 dict, a new trial has been granted for insuflS- 
 ciency of the evidence; and where the trial 
 of the prisoner has been unreasonably de- 
 layed. People V. Tinder, 19 Cal. 539. 
 
 4. Form and requisites of recogni- 
 zance. 
 
 48. At common law. A recognizance at 
 common law was an obligation entered into 
 before some court of record or magistrate, 
 to do a certain thing, as to keep the peace, 
 or to appear and answer to a criminal charge. 
 It was not signed by the party. The cog- 
 nizer acknowledged that he was indebted to 
 the cognizee, in a certain sum, to be levied of 
 his goods and chattels, lands and tenements, 
 if he should make default in performing the 
 condition. In other respects it was in form 
 like a penal bond. It was deemed of more 
 solemnity and of greater legal affect than 
 another bond. It was allowed a priority in 
 point of payment, and the lands of the cog- 
 nizer were bound from the time it was 
 recorded. Shattuck v. People, 4 Scam. 477, 
 per Tr^at, J. 
 
 49. How taksn. All recognizances in 
 cases of crime, should be taken to the State. 
 Com. V. Porter, 1 A. K. Marsh. 44. 
 
 50. Date. The recognizance may bear 
 date of the day on which the prisoner is 
 recognized to appear. State v. Bradley, 1 
 Blackf 83.
 
 G4 
 
 BAIL AND EECOGNIZANCE. 
 
 Form and Requisites of Recognizance. 
 
 51. Commencement. A recognizance is 
 sulHcient which commences as follow'S: " Be 
 it remembered that on, &c., came A. B., &c., 
 before me, J, P., a justice of the peace in 
 and for the county, &c., who aclvnowledged 
 themselves, &c.'' Howie v. State, 1 Ala. 113. 
 
 52. General requisites. No particular 
 form is required to render a recognizance 
 valid, provided it contain the essential 
 requisites of such an instrument. Dean v. 
 State.. 2 Sm. c% Marsh. 200. But oral evi- 
 dence is not admissible to give effect to a 
 defective recognizance. Nicholson v. State, 
 2 Kelly, 363. And when a statute in rela- 
 tion to appeal requires that the accused 
 shall recognize to the State for his personal 
 appearance at the appellate court, the pris- 
 oner's remaining in custody is not equivalent 
 to such recognizance. Com. v. Brigham, 16 
 Pick. 10. 
 
 53. The recognizance should state the 
 ground on which it is taken, in order to 
 show that the magistrate taking it had 
 jurisdiction. State v. Smith, 2 Greenlf. 62 ; 
 Com. V. Downey, 9 Mass. 520 ; Com. v. 
 Daggett, 16 Mass. 447 ; Goodwin v. Gover- 
 nor, 1 Stew. & Port. 465 ; Nicholscm v. 
 State, 2 Kelly, 363. But see People v. 
 Kane, 4 Denio, 530 ; State v. Hamer, 2 
 Carter, 371; State v. Weaver, 18 Ala. 293. 
 The recognizance need not state that the 
 charge was made on oath. McCarty v. State, 
 1 Blackf. 338. 
 
 54. A recognizance will be insufficient 
 which only states that the prisoner was 
 charged with the offense, without stating in 
 some way that there was probable cause for 
 believing him guilty. Peojjla v. Koeber, 7 
 Hill, 39. 
 
 55. Form of a recognizance for the ap- 
 pearance of a person accused of crime, who 
 has removed the cause by certiorari, for 
 error in his conviction. People v. Vermil- 
 yea, 7 Cow. 108. 
 
 56. Dascription of offense. It has been 
 held that a recognizance need not recite the 
 offense charged, orshow the court in which it 
 was taken. State v. Rye, 9 Yerg. 386 ; Fowler 
 V. Com. 4 Monr. 128, or specify in the terms 
 of the indictment the particular act which 
 the accused conspired to do. Hall v. State, 
 
 15 Ala. 431. But when the recognizance i» 
 taken before a court of limited jurisdiction, 
 it should so far describe the crime charged, 
 as to show the case to be one, in which the 
 court, had power to take bail. People V' 
 Koeber, 7 Hill, 39. Where the recognizance 
 required the accused to appear in the Circuit 
 Court, to answer " the charge herein" with- 
 out other description of the offense, it was 
 held bad. Simpson v. Com. 1 Dana, 523. 
 
 57. The recognizance will be good, not- 
 withstanding the offense be not described 
 in the words of the statute. Hall v. State, 
 9 Ala. 827. A recognizance to answer a 
 charge of felony, is sufficiently certain. 
 Cotton V. State, 7 Texas, 547. But a re- 
 cognizance to appear and answer a charge 
 of " gaming," without describing the game 
 so as to show that it is indictable, is bad. 
 Com. V. West. 1 Dana, 165. A recognizance 
 to appear and answer to a charge of " play- 
 ing at a game of cards " is bad, simply 
 " ])laying aL a game of cards" not being 
 an indictable offense. Cotton v. State, 7 
 Texas, 547; Towsey v. State, 8 lb. 173. 
 
 58. Name. The name of the counusor if 
 signed to the recognizance, need not be 
 stated in the body of it. Cunningham v. 
 State, 14 Mo. 402. And the omission of 
 a party's name, from the body of a recogni- 
 zance, will not render it null as to him if 
 he has acknowledged it. Hall v. State, 9 
 Ala. 827. 
 
 59. Condition. A penalty and condition 
 are essential to a recognizance. Caldwell 
 V. Brindell, 1 Jones, 293. The essential 
 parts of the obligation and condition should 
 be stated in the body of the recognizance ; 
 and as close an analogy between the recogni- 
 zance to appear before the examining magis- 
 trate, and the one to appear at the court to 
 which it is returned, should be observed, as 
 possible. Dillujgham v. U. S. 2 Wash. C. 
 C. 422. 
 
 60. Words superadded to the condition of 
 a recognizance, beyond what are authorized 
 by the statute, do not invalidate the recogni- 
 zance, but it has the same effect as if they 
 had been omitted. Williford v. State, 17 
 Texas, 653; Howie v. State, 1 Ala. 113. 
 
 61. Where the statute provided that the
 
 BAIL AND EECOGNIZANCE. 
 
 (55 
 
 Form and Requisites of Recognizance. 
 
 recognizance should be made returnable to 
 the term of the next court ; a recognizance 
 conditioned for the appearance of the ac- 
 cused at a time when no court sat, was held 
 void. Butler v. State, 13 Sm. & Marsh. 
 470; Com. v. Bolton, 1 Serg. & Rawle, 328 ; 
 State V. SuUivant, 3 Yerg. 281. But where 
 the accused was recognized to appear at the 
 next term of the court, to be held on the 
 first Monday in March, it was held that the 
 legal effect of the recognizance was not 
 avoided by the change in the time of holding 
 the court. Walker v. State, 6 Ala. 350. 
 
 62. In New York, when a recognizance is 
 taken by a justice of the peace, for the ap- 
 pearance of the accused to answer, it must 
 require him to appear at the next criminal 
 court having cognizance of the offense ; and 
 if it do not do so, the recognizance will be 
 void. People v. Mack, 1 Parker, 567. Such 
 a recognizance is good, notwithstanding the 
 words, " as well to the grand as to the petit 
 jury, and not depart the said court without 
 leave." People v. Willis, 5 Barb. 511. lu 
 Missouri, where, under the statute (Wagner, 
 p. 1075, § 88) authorizing a magistrate to 
 adjourn the examination of a prisoner, not 
 exceeding ten days at one time, the magis- 
 trate, at the request of the defendant, ad- 
 journed the examination nineteen days, and 
 ordered him to find bail to appear at that 
 time, it was held that as the consent of the 
 defendant could not confer jurisdiction or 
 power to make the order, the recognizance 
 was void. U. S. v. Horton's Sureties, 2 
 Dillon, 94: s. c. 1 Green's Crim. Reps. 431. 
 
 63. The condition of a recognizance which 
 does not go beyond enforcing the appearance 
 of the party accused at the proper term of 
 the court, and his submission to the process 
 and judgment of the law, is lawful, when 
 there is nothing in the statute that shows 
 that less was intended. The words, "and 
 not depart from said court without license 
 therefor,'' mean not to depart from the term 
 of the court at which the defendant was rec- 
 ognized to appear. State v. Baker, 50 
 Maine, 45. 
 
 64. Where the indictment is quashed be- 
 cause it was found l)y a grand jury sum- 
 moned by the sheriff without process, the 
 
 5 
 
 prisoner must be held to bail to appear before 
 the next court of Oyer and Terminer. Nich- 
 ols ads. State, 2 South. 539. 
 
 65. A condition in a recognizance to an- 
 swer to a charge for " resisting process," suf- 
 ficiently indicates the offense, although the 
 statute makes it consist in knowingly and 
 willfully resisting or opposing any officer in 
 the State in serving or attempting to serve or 
 execute any legal writ or process. Browder 
 V. State, 9 Ala. 58. 
 
 66- The recognizance may bind the ac- 
 cused either to appear and answer the offense 
 charged, or to appear and answer what shall 
 be objected against him. People v. Koeber, 
 7 Hill, 39; Gildersleeve v. People, 10 Barb. 
 35. In Tennessee, where the defendant was 
 required to find sureties that he would not 
 gamble for twelve months, it was held not 
 valid, but that it ouglit tohave been a re- 
 cognizance with sureties for good behavior 
 generally. Estes v. State, 2 Humph. 496. 
 
 67. Where a person being indicted for an 
 assault with an attempt to commit a rape 
 was released upon a bond in which he and 
 his sureties bound themselves that he should 
 appear and answer to the charge of rape, it 
 was held that such a condition rendered the 
 bond void. State v. Forno, 14 La. An. 450. 
 
 68. Amount. The fact that the defend- 
 ant is a man of fortune, may be considered 
 in fixing the amount of his bail. Ex parte 
 Banks, 28 Ala. 89. 
 
 69. Bail to the amount of two thousand 
 dollars on a charge of peijury, and on a 
 charge of stealing, in the sum of five hun- 
 dred dollars, is not excessive. Evans v. 
 Foster, 1 New Hamp. 374. Where a person 
 was charged with embezzling between sev- 
 enty and eighty thousand dollars, bail in the 
 sum of tweuty-five thousand dollars was 
 held not to be excessive. Ex parte Snow, 1 
 R. I. 360. 
 
 70. The sufficiency of an affidavit to be 
 admitted to bail, and the amount of bail on 
 mesne process in the District of Columbia, 
 are by the act of Congress of 1842, ch. 108, 
 to be determined by the District Court. Ex 
 im-te Taylor, 14 How. U. S. 3. 
 
 71. Number of sureties. Where the 
 prisoner was directed to give bail to the
 
 60 
 
 BAIL AND RECOGNIZANCE. 
 
 Form and Requisities of Recognizance. 
 
 Construction and Validity. 
 
 amount of four hundred dollars, with two 
 sureties for two hundred dollars each, and 
 he gave bail to the amount of four hundred 
 dollars, witii ten sureties in the sum of forty 
 dollars each, it was held insufficient, and 
 that the sureties were not bound. State v. 
 Buffum, 3 Fost. 267. 
 
 72. A recognizance taken by a magistrate 
 with a single surety is valid, notwithstanding 
 the statute requii'es two or more sureties. 
 State V. Baker, 50 Maine, 45. 
 
 73. How executed. In general, a recog- 
 nizance need not be under seal. State v. 
 Foot, 3 Mills, 123. Whether where a recog- 
 nizance which is required to be under seal 
 is signed by several, and seals set ojjposite 
 the names of some of them, the seals upon 
 the paper may not be referred to all who 
 sign it — query. Hall v. State, 9 Ala. 827. 
 
 74. When the recognizance is acknowl- 
 edged, it need not be signed. Madison v. 
 Com. 2 A. K. Marsh. 131. In Kentucky, the 
 principal and sureties need not sign a recog- 
 nizance to answer a charge of felony. Com. 
 V. Mason, 3 A. K. Marsh. 456. 
 
 75. Where an indictment for adultery or 
 fornication names the defendant Caroline T., 
 and the recognizance is signed Lucinda 
 Katharine 7"., and is conditioned for her 
 appearance at the next term of the court "to 
 answer to an indictment pending in said 
 court against her for adultery and fornica- 
 tion ;" and the recitals of the judgment nisi 
 state that it appeared to the satisfaction of 
 the court that the said Caroline T. " signed 
 her bond by the name o^ Lucinda Katharine 
 T.,"itis not a variance which is available 
 to the recognizors. Tolison v. State, 39 
 Ala. 103. 
 
 76. An infant prisoner should not join 
 with his sureties in the recognizance. 
 Semme's Case, 11 Leigh, 665. 
 
 77. A recognizance executed by the sure- 
 ties alone, conditioned for the appearance 
 of the accused to answer to a charge of 
 larceny, is valid. Minor v. State, 1 Blackf. 
 236. But a recognizance executed by a 
 surety in behalf of a person indicted, who 
 has not been served with process, and who 
 does not appear, is not binding. People v. 
 Slayton, 1 Breese, 357. 
 
 78. Where a recognizance was signed and 
 sealed by principal and sureties, and attested 
 by justices, and by them delivered to the 
 clerk with the warrant upon which it was 
 founded, it was held that it was certain to 
 a common intent that the recognizance was 
 taken before these justices. State v. Cherry, 
 Meigs, 232. 
 
 79. Where a recognizance taken before 
 the requisite authority has been signed and 
 sealed by the accused and his surety, its 
 validity is not impaired by the failure to 
 insert the name of the surety in a blank left 
 for that purpose in the body of it. Badger 
 V. State, 5 Ala. 21. 
 
 80. Where a recognizance taken by a 
 sheriff does not show by his attestation the 
 county of which he is sheriif, it is void. 
 State V. Austin, 4 Humph. 213. 
 
 81. Approval. Where two persons ap- 
 proved of the recognizance by affixing to 
 their respective signatures the letters J. P., 
 it was held that it sufficiently appeared that 
 the recognizance was entered into before 
 and approved by two justices. Shattuck v. 
 People, 4 Scam. 477. 
 
 82. Amendment. A recognizance with 
 sm'eties, entered into before a police magis- 
 trate by a person charged with assault with 
 intent to kill, may be amended even after 
 an action is brought on it. State v. Young, 
 56 Maine, 319. A recognizance to appear 
 and answer at a certain term of the court, 
 may be extended at any subsequent term if 
 an indictment be found at that term. Elli- 
 son V. State, 8 Ala. 273. 
 
 5. Construction and validity. 
 
 83. Rule of construction. The rule of 
 construction of a recognizance in a criminal 
 case is, if possible, to make it answer the 
 purpose for which it was intended, and that 
 where it contains words that are absurd and 
 repugnant they are to be rejected. McCarty 
 V. State, 1 Blackf. 338 ; State y. Wellman, 3 
 Ohio, 14. 
 
 84. A recognizance taken in the course of 
 proceedings may be valid notwithstanding 
 the proceedings are erroneous. Com. v. 
 Huffey, 6 Barr, 348. When the recogni- 
 zance is tiled of record, the presumption is
 
 BAIL AND RECOGNIZANCE. 
 
 67 
 
 Construction and Validity. 
 
 that the charge was regularly preferred and 
 investigated, and the proper decision made, 
 before it was entered into and acknowledged. 
 McCarty v. State, supra ; People v. Blank- 
 man, 17 Wend. 252. The fact that persons 
 oflFered as sureties received conveyances of 
 property from friends of the defendant to 
 enable them to qualify as bail, is not an ob- 
 jection to them. People v. Ingersoll, 14 
 Abb. Pr. N. S. 28; s. c. 1 Green's Crim. 
 Reps. 635. 
 
 85. SuflBiciency of complaint. A recog- 
 ni-zance taken upon a complaint before a 
 magistrate, is not bad because the complaint 
 contains two counts with a different oflFense 
 set forth in each. State v. Fowler, 38 New 
 Ilamp. 184. 
 
 86. Taken by unauthorized person. An 
 instrument purporting to be a recognizance 
 taken by a person not authorized by law to 
 admit to bail in criminal cases, is a contract 
 between the sureties and the State. Den- 
 nard v. State, 2 Kelly, 137. 
 
 87. Sufficiency of recital. It was argued 
 that the magistrate had no authority to re- 
 quire the prisoner to enter into a recog- 
 nizance, because it did not appear that he 
 found that " there was probable cause to 
 charge the accused," as required by the 
 statute. The recital in the recognizance 
 was, that he found that "there was good 
 reason and probable cause to believe said L. 
 is guilty." Z^eM sufficient. State v. Baker, 
 50 Maine, 45. 
 
 88. Entered into by several. Where the 
 parties acknowledge themselves bound in a 
 given sum, to be levied severally and in- 
 dividually on their respective goods, it is a 
 joint and several recognizance, and not the 
 several recognizances of each. Ellison v. 
 State, 8 Ala. 273. 
 
 89. Where several of the same name bind 
 themselves by a recognizance, it will not be 
 void for ambiguity if from the whole in- 
 strument they can be sufficiently identified. 
 State V. Cherry, Meigs, 232. 
 
 90. A person may be admitted to bail on 
 Sunday. State v. Wyatt, 6 La. An. 701. But 
 a recognizance entered into on Sunday, to 
 prosecute an appeal in a criminal case, is 
 void. State v. Suhur. 33 Maine, 539. 
 
 91. A recognizance taken after the issuing 
 of a mittimus for the commitment of the 
 prisoner, and giving him in charge of an 
 officer who is taking him to jail, is void. 
 State V. Young, 56 Maine, 219. 
 
 92. Place to appear. Although a recog- 
 nizance does not specify the court house of 
 the county as the place at which the pris- 
 oner is to appear for examination, yet that 
 place is to be intended, when the statute 
 points out that as the only place where the 
 examination shall be had. Tyler v. Green- 
 law, 5 Rand. 711. 
 
 93. A recognizance requiring the accused 
 to appear at the next Court of Sessions to be 
 held at the court house, in the city of H. , 
 to be tried by a jury on two indictments for 
 forgery, means the next Court of Sessions to 
 be held in the city of H., and not the next 
 Court of Sessions to be there held at which 
 a jury is summoned. People v. Derby, 1 
 Parker, 392. 
 
 94. Force and effect. A recognizance to 
 appear and answer binds the accused not 
 only to appear at the time to which it is re- 
 turnable, but to continue to appear until 
 acquitted or discharged; or if tried and 
 found guilty, until the sentence of the court 
 is passed upon him, unless allowed to depart 
 sooner. Dennard v. State, 2 Kelly, 137; 
 People V. McCoy, 39 Barb. 73. And the 
 accused is not to depart until discharged, 
 although no indictment be found against 
 him, or although he be tried and found not 
 guilty. State v. Stout, 6 Halst. 124. 
 
 95. The binding force of a recognizance 
 does not depend upon the fact that the 
 court before which the accused is required 
 to appear has jurisdiction of the offense 
 charged, but upon the duty and power of 
 the magistrate to examine and admit the 
 accused to bail. State v. Edney, 4 Dev. &, 
 Batt. 378. 
 
 96. The prisoner has a right to an exami- 
 nation before he can be compelled to enter 
 into a recognizance; but if he waive an 
 examination, a recognizance entered into 
 without it is valid. Champlain v. People, 
 2 Comst. 82. 
 
 97. Where upon a complaint to a mag- 
 istrate who has concurrent jurisdiction to
 
 68 
 
 BAIL AND RECOGNIZANCE. 
 
 Return of Recognizance, 
 
 Discharge of Bail. 
 
 try it with the Court of Common Pleas, the 
 magistrate decides that the accused shall rec- 
 ognize for his appearance at that court, it 
 is not a bar to an indictment for the same 
 offense. Com. v. Harris, 8 Gray, 470. 
 
 6. Return of recognizance. 
 
 98. How to be made. Recognizances in 
 criminal eases must be made returnable be- 
 fore the court, and not before a judge at 
 chambers. Corlies v. Waddell, 1 Barb. 355. 
 Where a recognizance is returnable at the 
 next court of Oyer and Terminer, the fair in- 
 terpretation is, that the court of Oyer and 
 Terminer of the county where Uie indictment 
 was found was intended. People v. McCoy, 
 39 Barb. 73. 
 
 99. What to be returned. In Illinois, 
 the recognizance of the accused and of the 
 witnesses on the part of the prosecution, are 
 all the proceedings before the magistrate 
 that need be transmitted to the court. Shat- 
 tuck V. People, 4 Scam. 477. 
 
 100. To be filed. Under the statute of 
 New York, which requires that whenever a 
 prisoner shall be let to bail by an officer out 
 of court, the oiEcer shall immediately cause 
 the recognizance taken by him to be filed 
 with the clerk of the county in which the 
 party bailed was imprisoned, the court can 
 take no action upon the recognizance until 
 it is filed. In a suit upon a recognizance, it 
 must appear that the recognizance was filed 
 in or made a record of the court in which it 
 is returnable ; and it is a good defense that 
 the recognizance was taken on an illegal 
 arrest. People v. Shaver, 4 Parker, 45. 
 
 101. Right of sureties. A recognizance 
 cannot be respited from one court to another 
 in opposition to the remonstrance and ex- 
 press dissent of the sureties, if they have the 
 accused in court when the motion is made. 
 People V. Clary, 17 Wend. 374. 
 
 7. Discharge op bail. 
 
 102. In general. Bail maybe discharged 
 by the death of the principal, or by the con- 
 viction and imprisonment of the principal. 
 Canby v. Griffin, 3 Marring. 333; People v. 
 Bartlett, 3 Hill, 570. And when the defend- 
 
 ant is acquitted, his recognizance is ipso 
 facto discharged without any further entry. 
 Mills V. McCoy, 4 Cow. 406. 
 
 103. Failure to prosecute. A person ac- 
 cused of crime, and under recognizance, is 
 not entitled as of course to a discharge, al- 
 though no indictment be found. Fitch v. 
 State, 2 ISTott & McCord, 558 ; Champlain v. 
 People, 3 Corast. 83. And the entry of a 
 7ioUe prosequi does not entitle the accused to 
 discharge from custody, nor his bail to dis- 
 charge. State V. Haskett, 3 Hill, S. C. 95. 
 But where a person has been bound over to 
 keep the peace, and no indictment is found 
 or continuance had, such failure operates as 
 a discharge. Goodwin v. Governor, 1 Stew. 
 & Port. 4G5. And where a prisoner entered 
 into a recognizance to appear at the next 
 term, and not at the succeeding session, it 
 was held that he was entitled to be dis- 
 charged at the end of the term. Keef haver 
 V. Com. 3 Penn. 340. 
 
 104. A prisoner who is recognized to appear 
 on the first day of the next court, must 
 appear at the first court actually held, and a 
 failure to hold the court at the usual time, 
 will not discharge him. Com. v. Cayton, 
 2 Dana, 138. 
 
 105. Where upon an accusation of bas- 
 tardy, the defendant appeared by attorney, 
 and prevailed upon the court erroneously to 
 quash the recognizance, it was held that it 
 did not do away with the recognizance ; but 
 the defendant was allowed a reasonable time 
 to appear in discharge of it. Com. v. 
 Thompson, 3 Litt. 384. 
 
 106. By appearance of defendant. 
 Where the recognizance requires the per- 
 sonal appearance of the defendant in court 
 on the first day of the term to answer a 
 charge of felony, it is not enough that he 
 barely appear before the court on the first 
 day, nor w'ill anything avail to discharge 
 the recognizance but the surrender of him- 
 self into custody to answer the felony 
 charged. Starr v. Com. 7 Dana, 243. 
 
 107. In New Jersey where a prisoner who 
 had entered into a recognizance to appear at 
 the Oyer and Terminer made default, but 
 appeared at a subsequent court of Quarter 
 Sessions, and was tried and acquitted, his
 
 BAIL AND EECOGNIZANCE. 
 
 09 
 
 Discharge of Bail. 
 
 Forfeiture of Recognizance. 
 
 bail was discharged on payment of costs. 
 State V. Saunders, 3 Halst. 177. 
 
 108. When the recognizance is forfeited 
 by the failure of the accused to appear, and 
 he appears at the succeeding term, the court, 
 for good cause shown by the defendant for 
 his absence, may discharge the recognizance. 
 U. S. V. Feely, 1 Brock. 255. 
 
 109. Unlawfiil arrest. After the pris- 
 oner has given bail for his appearance at 
 court, the magistrate has no authority, on 
 the ground that his bail is insufficient, to 
 cause him to be re-arrested for the same 
 offense. Such irregular re-arrest will not 
 therefore discharge his bail. Ingram v. 
 State, 27 Ala. 17. 
 
 110. The arrest by a i)rivate individual of 
 one under recognizance to appear and an- 
 swer, without authority in writing, being 
 unlawful, does not discharge the recogni- 
 zance. People V. Moore, 2 Douglas, 1. 
 
 111. Arrest on other charge. The sub- 
 sequent arrest of the accused on a different 
 charge, or his delivery (after escaping from 
 his bail) by the authorities of another State 
 on the requisition of the governor, when the 
 demand does not seem to be founded on the 
 same charge, does not discharge his bail; 
 their remedy in such case being by applic- 
 ation for habeas corpus. Ingram v. State, 27 
 Ala. 17. 
 
 112. Surrender of defendant. The sur- 
 render on demand, of the accused by the 
 governor of the State to which he has es- 
 caped, to the authorities of the State where 
 the crime was committed, and in which he 
 was admitted to bail, discharges his bail. 
 State V. Allen, 2 Humph. 258. 
 
 113. Although the Circuit Court of the 
 United States cannot issue a habeas corpus in 
 order to surrender a principal in discharge 
 of his bail, yet when the principal is in con- 
 finement under the process of a State court, 
 it will, in its discretion, respite the recog- 
 nizance. U. S. V. French, 1 Gall. 1. 
 
 114. Special bail may arrest his principal 
 anywhere and at any time, to surrender him 
 in discharge of the bail. The bail may 
 make the arrest himself, or may delegate 
 the power to anotlier or others, in writing. 
 Either the bail or his deputy may call others 
 
 to his aid in making the arrest, but such 
 aid must be rendered in presence of the per- 
 son authorized to make the arrest. State v. 
 Mahon, 3 Harring. 568, per Booth, C. J. 
 
 115. Where the accused has neglected to 
 comply with his recognizance, and it has 
 been forfeited of record, the surety cannot, 
 as a matter of right, discharge himself from 
 liability by surrendering the principal, 
 though the court may receive a surrender 
 and remit the penalty in whole or in part. 
 Com. V. Johnson, 3 Cush. 454. 
 
 116. When the sureties surrender their 
 principal, it releases them from liability on 
 the recognizance, but does not discharge the 
 principal. Lorance v. State, 1 Carter, 359. 
 
 117. After the default of the principal has 
 been recorded, his sureties may be dis- 
 charged upon showing to the satisfaction of 
 the court, by affidavits, that the prisoner 
 was not able to appear at the proper court 
 by reason of illness. Com. v. Craig, 6 Rand. 
 731. 
 
 8. Forfeiture of recognizance. 
 
 118. "When to be. The recognizance 
 must be forfeited before motion to quash. 
 State V. Holloway, 5 Ark. 433. 
 
 119. Calling defendant. Before the de- 
 fault of the accused is entered, it must be 
 clearly jjroved that he was called and 
 warned, and neglected to appear. Dilling- 
 ham V. U. S. 3 Wash. C. 0. 422 ; Park v. 
 State, 4 Ga. 329 ; State v. Grigsby, 3 Yerg. 
 280 ; White v. State, 5 lb. 183. He may be 
 called on any day during tlie court, and it 
 is not necessary to authorize a call on a sub- 
 sequent day that notice should be given to 
 him or his sureties. People v. Blankman, 
 17 Wend. 252. But notwithstanding the 
 recognizance is continued by statute from 
 term to term, a forfeiture cannot be taken 
 at a subsequent term, except on notice. 
 Moss V. State, 6 How. Miss. 298. 
 
 120. In Kentucky, where a person enters 
 into a recognizance to the State, it is not 
 necessary to the taking of his default that 
 he be called. But it is his duty to appear 
 and have his appearance recorded as a dis- 
 charge of the recognizance; and the State is
 
 70 
 
 BAIL AND RECOGNIZANCE. 
 
 Forfeiture of Recognizance. 
 
 not bound to prove that he did not appear. 
 Leeper v. Com. Litt. Sel. Cas. 102. 
 
 121. Time to appear. Where the condi- 
 tion of a recognizance is not for the ap- 
 pearance of the accused on any particular 
 day, he has the whole term to enter his 
 appearance. Griffin v. Com. Litt. Sel. Cas. 
 31. 
 
 122. Where the accused is recognized to 
 appear on the first day of the term, his 
 appearance on a subsequent day of the term 
 will not save his recognizance. Shore v. 
 State, 6 Mo. 640. But if he appear during 
 the term, his sureties may be discharged. 
 Adair v. State, 1 Blackf. 202. 
 
 123. A recognizance for the appearance of 
 the accused on a certain day, is not forfeited 
 by his neglect to appear at a subsequent 
 day, to -which the court was changed by a 
 law passed after the taking of the recogni- 
 zance, the law not providing that recogni- 
 zances should be returned and parties appear 
 on that day. State v. Melton, Busbee, N. 0. 
 42G. 
 
 124. A prisoner was recognized to appear 
 at the " April criminal term." The next 
 succeeding term of the criminal court was 
 in May, and not April. In June there was a 
 common law court, when he was called 
 and failed to answer. Held^ that there was 
 no forfeiture of the recognizance. Thurston 
 it al. V. Com. 3 Dana, 224. 
 
 125. Where a recognizance was entered 
 into in January, and at a Court of Sessions 
 held in June following the accused was 
 defaulted, and his recognizance declared 
 forfeited and ordered to be prosecuted, and 
 it appeared that a regular term of the Court 
 of Sessions had been held in March of the 
 same year, though no jury trial had then 
 been had, it was held that there had been no 
 breach of the recognizance. People v. 
 Derby, 1 Parker, 392. 
 
 126. Neglecting to appear. The fact 
 that the defendant is imprisoned on another 
 charge in a neighboring State will not 
 excuse his non-appearance in obedience to 
 his recognizance. Tailor v. Taintor, 16 
 Wallace, 366; s. c. 2 Green's Crim. Reps. 
 143. And the same is true as to the defend- 
 ant's illness ; but it will excuse the sureties 
 
 from a surrender of him at the subsequent 
 term. State v. Edwards, 4 Humph. 226. 
 
 127. A person indicted for perjury neg- 
 lected to appear for trial because he could 
 not obtain certain testimony. On motion to 
 forfeit his recognizance it was ordered that 
 the motion be granted, unless within thirty 
 days he gave a new recognizance to appear 
 at the next court. People agt. Winchell, 7 
 Cow. 160. 
 
 128. Where the accused, who has entered 
 into a recognizance to appear to answer to 
 an indictment, appears and is discharged by 
 judgment of court, and the judgment is 
 afterward reversed, and the prosecution 
 resumed, his neglecting to appear will not 
 forfeit the recognizance. State v. Murphey, 
 10 Gill & Johns. 365. 
 
 129. Where, upon an accusation of assault 
 with intent to commit a rape, the prisoner 
 was bound over for trial before the Superior 
 Court in a bond, the condition of which was 
 that " the prisoner should appear before said 
 court and abide final judgment on said 
 complaint," it was held that the neglect of 
 the accused to appear and answer to an 
 information filed against him for the offense 
 charged in the complaint was not a forfeit- 
 ure of the bond. Kingsbury agt. Clark, 1 
 Conn. 406. 
 
 130. Where an undertaking of bail stip- 
 ulates that the principal shall appear at the 
 then next term of the Circuit Court, and 
 from term to term thereafter, until dis- 
 charged by law, " to answer an indictment 
 pending in said court against him," but 
 does not describe or identify the indictment, 
 the prosecution may (Code of Alabama, 
 § 3679) show '• the particular case to which 
 the undertaking is applicable,'' on the fail- 
 ure of the principal to appear. Yasser v. 
 State, 32 Ala. 586. 
 
 131. Failure to camply with judgment. 
 Where the recognizance requires the accused 
 not only to appear, but not to depart with- 
 out leave of the court, and to abide the order 
 and judgment thereof, if he fail to comply 
 with the judgment against him, the recog- 
 nizance will be forfeited. State v. Whitson, 
 8 Blackf. 178. 
 
 132. Neglecting to keep the peace.^
 
 BAIL AND RECOGNIZANCE.— BAERETRY. 
 
 71 
 
 Forfeiture of Recognizance. 
 
 What is. 
 
 Where a person recognized to keep the 
 peace is guilty of acts of violence out of the 
 State, it is no breach of liis recognizance. 
 Key V. Com. 3 Bibb, 495. 
 
 133. Entry. Where the clerk neglected 
 to record the forfeiture of a recognizance, it 
 may be entered nunc pro tunc. Ehodes v. 
 Com. 3 Harris, 272. And see McFarlan v. 
 People, 13 111. 9. 
 
 134. A recognizance required the appear- 
 ance of W. H. G., and the indictment was 
 found against H. G., and a forfeiture of the 
 recognizance entered for his non-appear- 
 ance. Held., that this did not show any 
 breach of the obligation. Hopkins v. Wal- 
 ter, 11 111. 542. 
 
 135. When two forfeitures of a recogni- 
 zance are entered at different terms of the 
 same court, the second entry may be re- 
 garded as suqjlusage. State v. Pepper, 8 
 Mo. 249. 
 
 136. Eflfect. A judgment on a recogni- 
 zance for a failure to appear is not a bar to 
 another prosecution for the same offense. 
 Com. V. Thompson, 3 Lift. 284. 
 
 137. Remission. In Pennsylvania, a re- 
 cognizance, after it is forfeited, may be 
 remitted by the governor. Com. v. Dennis- 
 ton, 9 Watts, 142. 
 
 See Bastardy, 6. 
 
 Barratry. 
 
 1. Meaning of. Barratry consists in the 
 willful misconduct of the master or mari- 
 ners, done for some unlawful or fraudulent 
 purpose, contrary to their duty to the own- 
 ers of the vessel — as the criminal delay of 
 the voyage for an unlawful purpose. Roscow 
 v. Corson, 8 Taunt. G84 ; or the willful de- 
 viation by the master in fraud of the owners. 
 Vallejo V. Wheeler, Cowp. 143; or the 
 stealing from the cargo by the seamen. 
 Stone V. National Ins. Co. 19 Pick. 34; or 
 dropping anchor and going ashore for pri- 
 vate emolument. Ross v. Hunter, 4 Term 
 li. 33, And where the master or mariners 
 of a neutral vessel resist the search of a 
 belligerent, it is barratry. Brown v. Union 
 Ins. Co. 5 Day, 1. 
 
 2. Negligence and intoxication. Bar- 
 ratry cannot be committed by negligence, 
 unless the negligence be so gross, as to 
 amount to evidence of fraud. Patapsco Ins. 
 Co. V. Coulter, 3 Pet. 222, 234 ; Wigin v. 
 Amory, 14 Mass. 1 ; Cronsillat v. Ball, 4 
 Dall. 294. But the offense cannot be ex- 
 cused or palliated by intoxication. Lawton 
 v. Sun Mut. Ins. Co. 2 Cush. 500. 
 
 BaiTctriK 
 
 1. What is. A barretor is a common 
 mover, exciter or maintainer of suits or 
 quarrels, either in courts of justice or the 
 country. Com. v. Davis, 11 Pick. 432. 
 Whether three acts are sufficient to consti- 
 tute the perpetrator of them a common 
 barretor— 5Mery. Com. v. McCuUock, 15 
 Mass. 227. They could only be such upon 
 proof of a malicious design to harass and 
 oppress. lb. 
 
 2. Justice of the peace. An indictment 
 for barretry may be sustained against a jus- 
 tice of the jjeace for promoting litigation in 
 order to obtain lees, although the prosecu- 
 tion excited by him may not have been 
 groundless. And in order to show guilty 
 motive, evidence may be given to prove that 
 the justice exacted illegal fees as a condition 
 of compounding prosecutions. State v. 
 Chitty, 1 Bail. 379. 
 
 3. Indictment. The indictment must con- 
 tain the words " common barretor." It may 
 charge the defendant generally as " a com- 
 mon barretor." Com. v. Davis, 11 Pick. 
 432. The acts of misconduct need not be 
 set forth in the indictment ; but the prosecu- 
 tor must, before the trial, give the defend- 
 ant a note of the particular acts which he 
 intends to prove ; and if he omits to do so, 
 the court will not suffer hi:n to proceed in 
 the trial. lb. 
 
 4. Bill of particulars. In a prosecution 
 for barretry, the bill of particulars concerns 
 the proof and mode of trial only, and not 
 the indictment. It is no part of the record, 
 and it is not subject to demurrer, or a matter 
 of technical nicety; but is simply to give 
 notice and guard against surprise on the
 
 72 
 
 BASTARDY 
 
 The Complaint. 
 
 trial. Com. v. Davis, 11 Pick. 432; State v. 
 C'hitty, 1 Bail. 379. 
 
 5. Punishment. The punishment for bar- 
 retry, is by line and imprisonment; and 
 ■R-here the accused is an attorney, his name 
 -will be stricken from the rolls. State v. 
 Chitt}', siq)ra. 
 
 fiastarbi). 
 
 1. The complaint. 
 
 2. Warrant. 
 
 3. Examination. 
 
 4. iNDICTilENT. 
 
 5. Evidence. 
 
 6. Security. 
 
 7. Settlement of prosecution. 
 
 8. Concealing death of bastard child. 
 
 1. The complaint. 
 
 1. By whom made. In Kentucky, under 
 the statute of 1795, the sole power of com- 
 mencing the proceedings belongs to the 
 mother. Burghen v. Straughen, 7 J. J. 
 Marsh. 583. The statute of that State in 
 relation to bastardy, applies to single women 
 only. Sword v. Nestor, 3 Dana, 453. A 
 free woman of color may institute a com- 
 plaint and obtain a warrant against the 
 father of her bastard child. Williams v, 
 Blincoe, 5 Litt. 171. The courts have juris- 
 diction although the child was born out of 
 the State. Taner v. Allen, Litt. Sel. Cas. 25. 
 
 2. In New Hampshire, the complaint may 
 be made by a married woman, and the hus- 
 band need not be joined. Parker v. Way, 
 15 New Hamp. 45. In North Carolina, a 
 man may be charged with the maintenance 
 of a bastard child begotten upon a married, 
 as well as upon a single woman. State v. 
 Pettaway, 3 Hawks, 623 ; State v. Allison, 
 Phil. N. C. 346. 
 
 3. In Alabama, the complaint can only be 
 made by an unmarried woman. Judge v. 
 Kerr, 17 Ala. 328. 
 
 4. In Indiana, any unmarried female resid- 
 ing in the State may complain before a jus- 
 tice of the peace against the father of her 
 bastard child, without reference to the place 
 
 where the child was born. Cooper v. State, 
 4 Blackf. 316. The prosecution must be 
 brought in the name of the State. State v. 
 Bradley. 1 Blackf. 83 ; Woodburk v. Wil- 
 liams, lb. 110 ; Dickinson v. Gray, 2 lb. 
 239. 
 
 5. In Maine and Massachusetts, wlien the 
 female marries after the child is born, the 
 husband must unite with her in the prosecu- 
 tion. Kenniston v. Rowe, 16 Maine, 38; 
 Wilbur v. Crane, 13 Pick. 284. 
 
 6. Nature of the proceedings. In Massa- 
 chusetts and Maryland, the proceedings, 
 properly speaking, are criminal. Wilbur v. 
 Crane, 13 Pick. 284 ; Cummings v. Hogdon, 
 13 Mete. 246; Hyde v. Chapin, 2 Cush. 77; 
 Oldham v. State, 5 Gill, 90; Root v. State, 
 10 Gill & Johns. 374! In Maine, the pro- 
 ceedings are not local. Dennett v. Knee- 
 land, 6 Maine, 460; and they may be 
 commenced after the birth of the child. 
 Kenniston v. Rowe, 16 Maine, 38. The 
 fact that the accused is an infant, is no 
 defense. McCall v. Parker, 13 Mete. 372. 
 
 7. Requisites. In Ohio, the complaint 
 must show on its face that the mother of 
 the child is a single woman. Devinney v. 
 State, Wright, 564. 
 
 8. In New Hampshire, where the com- 
 plaint was not under oath, but on the 13th 
 of January, the woman swore that on the 
 15th of the previous May, the child was be- 
 gotten, it was held that the time was charged 
 with sufficient certainty. Marston v. Jen- 
 ness, 12 New Hamp. 137. 
 
 9. In Indiana, the affidavit of the com- 
 plainant need not show that she is a resident 
 of the county, or that the child was born 
 
 j there, or that it is alive. State v. Allen, 4 
 I Blackf. 269; Beeman v. State, 5 lb. 165. 
 [ And under a recent statute, the woman is 
 not requii'ed to be a resident of the State. 
 i State V. Gray, 8 Blackf. 374. 
 
 10. In Massachusetts, the complaint need 
 not be in writing. Smith v. Hayden, G 
 Cush. 111. In Vermont, the complaint must 
 
 \ be in writing, and be signed and sworn to. 
 I Graves v. Adams, 8 Vt. 130. But the com- 
 ! plainant need not swear that she is a single 
 j woman. Robie v. McNiece, 7 lb. 419. Al- 
 I though the neglect of the complainant to
 
 BASTARDY 
 
 73 
 
 The Complaint. 
 
 Warrant. 
 
 Examination. 
 
 Indictment. 
 
 sign the complaint, if objected to at the 
 proper time, may be ground for quashing 
 the proceedings, yet it will be cured by 
 verdict. Eamo v. Wilsoc, 34 lb. 517. The 
 complaint will be good, notwithstanding it 
 alleges that the proceedings are under a stat- 
 ute which has been repealed. Blood v. 
 3Ierrill, 17 lb. 598. 
 
 11. In North Carolina, the complaint of 
 the woman need not be signed by her. 
 State V. Thompson, 4 Ired. 484. "Where her 
 examination was not signed by justices, but 
 the warrant issued by them was on the same 
 paper, it was held that this was a sufficient 
 authentication of the complaint, though it 
 would have been more proper if the com- 
 plaint had been signed by the woman and 
 attested by the justices. lb. When one of 
 the justices omits to sign the examination, 
 the court to which the proceedings are re- 
 turned, may permit the justice then to sign 
 it. State V. Thomas, 5 Ired. 366. The ex- 
 amination of the woman being made by 
 statute prima facie evidence, the defendant 
 can only introduce evidence to show his in- 
 nocence. If he wishes to object to the 
 woman as a witness, he must do so by a mo- 
 tion to quash the order of filiation as being 
 founded on incompetent evidence. State v. 
 Patton, 5 Ired. 180. The examination of 
 the complainant before the justices, must 
 have been had within three yeai's from the 
 birth of the child. State v. Ledbetter, 4 
 Ired. 242. 
 
 2. "Warrant. 
 
 12. How issued. In New York, the war- 
 rant issues upon the complaint of the over- 
 seers of the poor, or either of them. Wal- 
 worth V. McCullough, 10 Johns. 93. 
 
 13. Averment in. The warrant must state 
 truly the time of the child's birth. But if 
 the time of the birth be stated incorrectly, 
 an acquittal will not bar a subsequent pro- 
 ceeding. Burnett v. Cora. 4 Monr. 106. 
 
 14. How far evidence. The warrant is 
 evidence of the arrest of the accused, and 
 that he was regularly taken before the mag- 
 istrate. Walker v. State, 5 Ga. 491. 
 
 15. Objection to. After the defendant 
 lias been brought before the magistrate, and 
 
 bound by a recognizance to appear at court 
 and answer the charge, it is too late to object 
 to the warrant. Walker v. Com. 3 A. K. 
 Marsh, 355; Schooler v. Com. Litt. Sel. 
 Cas. 88. 
 
 3. Examination. 
 
 16. By whom had. In Massachusetts, 
 the magistrate to whom the complaint is 
 made and who issues the warrant, can alone 
 take the examination of the defendant, and 
 the warrant cannot be returned before 
 another magistrate. Fisher v. Shattuck, 17 
 Pick. 253. 
 
 17. In Connecticut, one justice may enter- 
 tain the complaint and issue the warrant, 
 and another hear the case and bind over the 
 accused. Hopkins v. Plainfield, 7 Conn. 
 286. 
 
 18. In "Vermont, where the parties are non- 
 residents, and the child was begotten and 
 born out of the State, the proceedings will 
 be dismissed. Graham v. Monsergh, 33 Vt. 
 543. 
 
 19. Defendant need not he arraigned. 
 It is not a good objection to the proceedings 
 that the defendant was not arraigned and 
 asked whether he was guilty or not guilty. 
 Smith V. Hayden, 6 Cush. 111. 
 
 20. "When barred. A decision in favor 
 of the defendant, is a bar to a subsequent 
 proceeding against him for the same matter. 
 Thayer v. Overseers of the Poor, 5 Hill, 
 443 ; Davis v. State, 6 Blackf. 494. 
 
 4. Indictment. 
 
 21. Necessary averments. In Georgia, 
 an indictment for bastardy is sufficient which 
 charges that the defendant is the father of 
 the child and refuses to give security for its 
 maintenance and education. Walker v. 
 State, 5 Ga. 491. Locke v. State, 3 Kelly, 
 534; without alleging that the mother is a 
 single woman. Smith v. State, 38 Ga. 19. 
 In Pennsylvania, the indictment must state 
 the sex of the child. Com. v. Pintard, 1 
 Browne, 59 ; and in Maryland, the residence 
 of the mother and child. Root v. State, 10 
 Gill & Johns. 374. 
 
 22. In South Carolina, in an indictment 
 under the statute of 1795, it need not be al-
 
 74 
 
 BASTARDY 
 
 Indictment. 
 
 Evidence. 
 
 leged that tlie defendant refused to give the 
 security required. State v. Adams, 1 Brev. 
 279. The indictment must aver that the 
 mother of the child is a white woman. 
 State V. Clements, 1 Speer, 48. Where it 
 only charged that the child was the issue of 
 a single woman, the judgment was arrested. 
 State V. Clarke, 2 Brev. 386. Under the stat- 
 ute of 1839, two indictments will lie against 
 the putative father of two bastard children 
 born at one birth; but the indictments and 
 recognizances must describe each child by 
 name, complexion, hair and sex, or in some 
 other way identify them. State v. Derrick, 
 1 McMuUan, 338. The indictment need not 
 charge that the child is likely to become a 
 ])ul)lic burden, and that the accused re- 
 fuses to give security for its support. State 
 V. McDonald, 2 McCord, 299. 
 
 5. Evidence. J^ 
 
 23. Testimony of prosecutrix. In Maine 
 and Massachusetts, the woman may be a 
 witness if she has complied with the statute 
 and been constant in her accusation. The 
 fact that she had before charged another 
 person with being the father, under oath, 
 and in the same form in which she does the 
 defendant, will not exclude her, but only go 
 to her credibility. Burgess v. Bosworth, 23 
 Maine, 735 ; Bradford v. Paul, 18 lb. 30 ; Max- 
 well V. Hardy, 8 Pick. 560. She will not be 
 permitted to testify to any fact which is 
 equally within the knowledge of other dis- 
 interested persons. Drowne v. Stimpson, 2 
 Mass. 441. It must be proved by other 
 testimouy than that of the woman, that she 
 charged the defendant in the time of her 
 travail, and remained constant in her accu- 
 sation. Drowne v. Stimpson, 3 Mass. 441 : 
 Com. V. Cole, 5 lb. 517; Dennett v. Knee- 
 land, 6 Maine, 460. 
 
 24. In Maine, the complainant, to be a 
 competent witness, is not required to make 
 her complaint to a justice previous to the 
 birth of the child. Sweet v. Stubbs, 33 
 Maine, 481. The burden of showing the in- 
 constancy of the woman in her accusation 
 is on the defendant. Murphy v. Glidden, 
 34 lb. 196. 
 
 25. In Connecticut, the complainant must 
 
 have charged the defendant with being the 
 father of her child during her travail. War- 
 ner V. Willey, 2 Root, 490; Hitchcock v. 
 Grant, 1 lb. 107. But where the town pros- 
 ecutes the father, this is unnecessary. Davis 
 r. Salisbui-y, 1 Day, 278. If a witness intro- 
 duced by the defendant testifies that the 
 complainant in conversation with him stated 
 that the defendant was not the father of the 
 child, she is a competent witness to contra- 
 dict this testimony. Judson v. Blanchard, 
 4 Conn. 557. If the woman die, her dei^o- 
 sition taken ex 'parte before the prosecution 
 was commenced cannot be given in evi- 
 dence. McDonald v. Hobby, 1 Root, 154. 
 
 26. In Ohio, the woman must be present 
 and testify on the trial, unless there is a con- 
 fession in open court. Baxter v. Columbia 
 Township, 16 Ohio, 56. 
 
 27. In New Hampshire, the woman can 
 only be a witness to prove the criminal con- 
 nection, non-access being shown by other 
 evidence. Parker v. Way, 15 New Hamp. 
 45. It is not a good objection to a witness, 
 that he is the father of the woman. Marston 
 V. Jenness, 12 lb. 137. 
 
 28. In New York, justices of the peace 
 may commit the mother of an illegitimate 
 child to jail for refusing to discover the 
 father. Scott v. Ely, 4 Wend. 555. 
 
 29. The cross-examination of the prose- 
 cutrix as to the circumstances under which 
 the defendant had connection with her must 
 be limited to a period of time in which it is 
 probable the child in question was begotten. 
 Barnett v. State, 10 Ark. 530. Where it is 
 proved that the woman made contradictory 
 statements, she may introduce evidence to 
 sustain her general character for veracity. 
 Sweet V. Sherman, 21 Vt. 23. 
 
 30. Birth of child. In Alabama, the 
 record need not show that the child was born 
 alive and is still living. Kawich v. Davis, 
 4 Ala. 328. In Tennessee the record must 
 show that the child was born in the county 
 in which the proceedings are had. Edmonds 
 V. State, 5 Humph. 94. 
 
 31. Non-access. When the female is a 
 married woman, non-access or impotence of 
 the husband must be proved. Cora. v. 
 Shepherd, 6 Bum. 283.
 
 BASTARDY. 
 
 75 
 
 Evidence. 
 
 Security. 
 
 32. A child born in wedlock a day after 
 marriage, is presumed to be the child of the 
 husband. State v. Herman, 13 Ired. 502. 
 Evidence to show the resemblance of the 
 child to the reputed father or the absence of 
 it, is not admissible. Kenniston v. Rowe, 16 
 Maine, 38. 
 
 33. Admissions. The admissions of the 
 defendant that he was the father of tbe 
 child, and his promise to marry the mother, 
 are competent evidence to corroborate the 
 complainant. Woodward v. Shaw, 18 Maine, 
 304. 
 
 34. Impeachnieiit of prosecutrix. The 
 complainant may be impeached, by disprov- 
 ing what she swore to on the preliminary 
 examination. Holmes v. State, 1 Iowa, 150. 
 
 35. Intercourse of prosecutrix with 
 other men. Tlie defendant may prove that 
 about nine months before the birth of the 
 child, the woman had criminal intercourse 
 with other men ; but not, if the defendant 
 admit that he also had criminal intercourse 
 with her about the same time. Fall agst. 
 Overseers of tlie Poor, 3 Munf. 495. And 
 the woman may be questioned as to her in- 
 timacy with other men about the time she 
 charges the defendant. Ginn v. Com. 5 
 Lilt, 801; Short v. State, 4 Harring. 568; 
 Sword V. Nestor, 3 Dana, 453 ; State v. Coat- 
 ney, 8 Yerg. 210; contra^ Com. v. Moore, 3 
 Pick. 194; Low v. Mitchell, 18 Maine, 372. 
 See State v. Pettaway, 3 Haw'ks, 623. 
 
 36. Efforts to produce an abortion. Evi- 
 dence tiiat the mother of the child tried to 
 procure an abortion is not admissible ; nor 
 that another man, who had not been made 
 a witness, endeavored to do so. Sweet v. 
 Sherman, 23 Vt. 23. 
 
 37. Character of defendant. In New 
 Jersey, on the hearing of an appeal to the 
 sessions, the defendant may show his former 
 good character. Dally v. Overseers of Wood- 
 bridge, 1 Zabr. 491. 
 
 38. What proof sufficient to convict. 
 In Illinois, a prosecution for bastardy being 
 in the nature of a civil proceeding, a pre- 
 ponderance of proof is sufficient to sustain 
 a conviction. Where it is proved that the 
 woman gave birth to a child at a certain 
 time, it will be presumed that the child was 
 
 born alive, and is still living. Mann v. 
 People, 35 111. 467 ; Maloney v. People, 38 
 lb. 62 ; Allison v. People, 45 lb. 37 ; People 
 V. Christman, 66 lb. 162. But in Alabama, 
 it was held erroneous to charge the jury that 
 if the prosecution produced a preponderance 
 of evidence, they might find the defendant 
 guilty. Satterwhite v. State, 28 Ala. 65. 
 
 6. Security. 
 
 39. Nature and effect. In Massachusetts, 
 under the statute of 1785, ch. 66, the security 
 must be a bond, and not a recognizance. 
 Merrill v. Prince, 7 Mass. 396 ; Johnson v. 
 Randall, lb. 340. In Maine, there must be 
 a bond with sureties to appear and abide 
 by the order of the court, and to give a new 
 bond for the performance of such order. 
 Mariner v. Dyer, 2 Greenlf. 165 ; Taylor v. 
 Hughes, 3 Dj. 433. 
 
 40. The bond required by the statute of 
 New York, in a case of bastardy, is intended 
 to secure the appearance and presence of the 
 person charged not only at the adjourned 
 day, but his continued appearance and at- 
 tendance until the examination and subse- 
 quent proceedings are finally closed. Where 
 the accused, after appearing at the place of 
 examination, absents himself therefrom, it 
 amounts to a breach of the bond, which is 
 not cured by his return the next morning 
 and oSer to submit himself to imprisonment 
 ujjon notice of an order of filiation. Peojjle' 
 V. Jayne, 27 Barb. 58. 
 
 41. When the condition of the bond is 
 that the defendant shall appear and not de- 
 part until discharged by the court, the sure- 
 ties are bound to take care that he remains 
 during the term to answer any charge 
 other than the one on which the prosecution 
 is founded. But if the defendant appear 
 and answer, a default at the next term will 
 not be a breach. People v. Green, 5 Hill, 
 647. 
 
 42. A recognizance requiring the putative 
 father of a bastard child to a{)pear at the 
 sessions and abide such order as shall be 
 made for the relief of the town in which the 
 child was born, remains in force, althougli 
 after the time of entering into the recogni- 
 zance the distinction between the town and
 
 iG 
 
 BASTARDY. 
 
 Security. Settlement of Prosecution. 
 
 Concealing Death of Bastard Child. 
 
 county poor is abolished, and the child there- 
 upon becomes a county charge. People v. 
 Haddock, 12 Wend. 475. 
 
 43. In Georgia, it is the duty of the mag- 
 istrate to require the defendant to give se- 
 curity for the maintenance and education of 
 the child; and if he refuses or fails to do so, 
 to recognize him to appear at the next Supe- 
 rior Court to answer the charge. Walker v. 
 State, 5 Ga. 491. 
 
 44. In Kentucky, under the statute giving 
 to the magistrate authority to bind the de- 
 fendant in a recognizance to appear at the 
 next county court, it w^ill be error to bind 
 him to abide by and perform the order of 
 the county court. Young v. Com. 2 A. K. 
 Marsh. fjS. 
 
 45. A bond is bad which, in addition to 
 the provisions required by law, contains 
 others imposing further conditions on the 
 obligor. People v. Meighan, 1 Hill, 298. 
 
 46. Date. The recognizance may be dated 
 as of the day on which the defendant is rec- 
 ognized to appear. State v. Bradley, 1 
 Black f. 83. See Bail and recognizance. 
 
 7. Settlement of prosecution. 
 
 47. When allowed. As bastardy is only 
 a misdemeanor, it may be settled by the 
 parties. Coleman v. Frum, 3 Scam. 378. 
 
 48. In New Hampshire, although the 
 form of the proceedings is criminal, the 
 parties may, if they choose, settle the prose- 
 cution. But the town may come in and 
 l^rosecute. Parker v. Way, 15 New Hamp. 
 45. 
 
 49. In Vermont, the mother of the child 
 may compromise with the defendant three 
 months after the arrest, and before the over- 
 seers of the town take the control and man- 
 agement of the prosecution. Hurd v. 
 Seeker, 12 Vt. 364. 
 
 50. When not allowed. In Kentucky, 
 though the mother of a bastard child is not 
 obliged to commence proceedings against 
 the putative father, yet, whenever at h^r 
 instance, they have been commenced, she 
 cannot, by any agreement between her and 
 the defendant, stop the proceedings. Com. 
 V. Turner, 4 Dana, 511. 
 
 51. Payment of fees and expenses. Al- 
 though the defendant offers to pay what the 
 woman deems satisfactory, he will not be 
 entitled to his discharge until the fees and 
 expenses of the officer are paid. Pearl v. 
 Eawlin, 5 Day, 244. In New York, if the 
 defendant refuse to pay the amount certi- 
 fied for the costs, the justices may issue a 
 warrant for his commitment, though he has 
 executed a bond. People v. Stowell, 2 
 Denio, 127. In Massachusetts, if the defend- 
 ant does not comply with the order requir- 
 ing him to support the child, he may be 
 committed to jail until he does so. Wood- 
 cock V. Walker, 14 Mass. 386. 
 
 52. Marriage of prosecutrix. The mar- 
 riage of the mother of the child, subsequent 
 to complaint, will not abate the prosecution. 
 Austin V. Pickett, 9 Ala. 102. 
 
 53. Defendant taking poor debtor's 
 oath. In Maine, the discharge of the ac- 
 cused on taking the poor debtor's oath, will 
 not prevent his body from being taken on 
 execution issued upon a judgment recovered 
 on the bond. McLaughlin v. Whitten, 32 
 Maine, 21. 
 
 54. Pardon. If after conviction, the ac- 
 cused is pardoned, the court may, notwith- 
 standing, make an order for the maintenance 
 of the child. Com. v. Duncan, 4 Serg. & 
 Rawle, 449. 
 
 8. Concealing death of bastard child. 
 
 55. Child must have been born alive. 
 
 The offense consists in concealing the death 
 of a being upon whom the crime of murder 
 could have been committed. Therefore, if 
 the child be born dead, its concealment is 
 not a crime. State v. Joiner, 4 Hawks, 550, 
 In South Carolina, when it was proved that 
 the mother concealed her illegitimate child 
 after its death, but there was also some evi- 
 dence that the child was still-born, she was 
 acquitted. State v. Love, 1 Bay, 167. 
 
 56. In Maine, on the trial of an indict- 
 ment under the statute (R. S. ch. 124, § 7), 
 which provides that " if any woman is will- 
 ingly delivered in secret of the issue of her 
 body, which would be a bastard if born 
 alive, and conceals the death thereof, so that 
 it is not known whether it was born dead
 
 BIGAMY. 
 
 77 
 
 Concealing Death of Bastard Child. Who may Commit. 
 
 When Committed. 
 
 or alive, and was murdered, she shall be 
 punished," &c., it was proved that the pris- 
 oner was delivered in secret of such issue, 
 still-boru, and concealed the same by throw- 
 ing it into a vault, where it was discovered 
 the same day and examined by inquest, 
 when it appeared that the child had been 
 dead several days before the birth. Held 
 that the prisoner was entitled to an acquit- 
 tal. State V. Kirby, 57 Maine, 30. 
 
 57. Indictment. The indictment must 
 allege the death of the child. Douglass v. 
 Com. 8 Watts, 538. It need not state the 
 manner in which the defendant endeavored 
 to conceal the death of the child. The fol- 
 lowing averment was held sufficient, that 
 " the child having died on the day and year, 
 &c., the mother did endeavor privately to 
 conceal the death of said child." Boyles v. 
 Com. 2 Serg. & Rawle, 40. 
 
 58. Evidence. The prosecution must 
 prove the birth, death, and concealment of 
 the death. Com. v. Clark, 3 Ashm. 105. 
 And that the defendant willfully and mali- 
 ciously destroyed the child. Pennsylvania 
 V. McKee, Addis. 1. 
 
 See Nuisance. 
 
 1. Who mat commit. 
 
 2. When committed. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 1, Who MAY commit. 
 
 1. Nephew. In South Carolina, it was 
 held that a nephew might lawfully marry 
 his aunt, so that if he married again while 
 she was alive, it was bigamy. State v. Bare- 
 foot, 2 Rich. 209. 
 
 2. Emancipated slave. If parties were 
 married according to the usages and cus- 
 toms of slaves, and after their emancipation 
 continued to live together as husband and 
 wife, it was a legal assent to and ratifica- 
 
 tion of the marriage, and the marrying- 
 another while the first marriage existed 
 would be bigamy. McReynolds v. State, 5 
 Cold. Tenn. 18. ^ 
 
 3. Infant. In Ohio, the marriage of a 
 male under the age of eighteen, with a 
 female under fourteen, does not make the 
 parties liable for bigamy by contracting sub- 
 sequent marriage while the first husband or 
 wife is living, unless the first marriage was 
 followed by cohabitation after arriving at 
 those ages respectively. Shafher v. State, 
 20 Ohio, 1. 
 
 4. In Michigan, under the statute, when 
 a person of full age marries another under 
 the age of legal consent, and they separate 
 before the minor reaches lawful age, and 
 do not cohabit afterward, or when the minor 
 reftises consent on attaining lawful age, such 
 marriage is void, and the parties may marry 
 again without being amenable to the charge 
 of bigamy. People v. Slack, 15 Mich. 193. 
 
 2. When committed. 
 
 5. In case of divorce. In Massachusetts, 
 after a husband has been divorced from his. 
 wife on account of adultery, if he marry 
 again he is not liable for adultery. In such 
 case he should be indicted under the statute 
 for polygamy, and the second marriage, 
 together with all the facts constituting the 
 oifense, should be set forth in the indict- 
 ment. Com. v. Putnam, 1 Pick. 136. But 
 if the second marriage take place in an- 
 other State, and it is lawfully contracted 
 there, he is not liable, though he cohabit 
 with his second wife in Massachusetts. Put- 
 nam V. Putnam, 8 Pick. 433. 
 
 6. Where a man having been lawfully 
 married to his first wife in Massachusetts 
 and divorced from her for his adultery, 
 afterward while still a resident of Massa- 
 chusetts marries again in another State, and 
 cohabits with her in Massachusetts, the first 
 wife being still alive, he is not guilty of 
 polygamy under the statute (Gen. Stats, of 
 Mass. ch. 1G5, § 4) unless the second wife 
 was a resident of Massachusetts, and the 
 parties went into the other State to evade 
 the law. Com. v. Lane, 113 Mass. 458. 
 
 7. In New York, it is not a defense to an
 
 78 
 
 BIGAMY. 
 
 When Committed. 
 
 Indictment. 
 
 indictment for bigamy, that after the second 
 marriage the first was dissolved by the 
 decree of a competent court, for some caixse 
 other than the adultery of the defendant. 
 But otherwise if the decree was obtained 
 before the second marriage. Baker v. Peo- 
 ple, 2 Hill, 325. 
 
 8. A decree of divorce obtained in Arkan- 
 sas, by a citizen of Alabama, would be void, 
 and would constitute no defense to a prose- 
 cution in Alabama for polygamy if the 
 decree was procured by fraud, or if the 
 defendant went to Arkansas merely for the 
 purpose of obtaining a divorce, and with 
 the intention of remaining no longer than 
 was necessary to accomplish that purpose. 
 Thompson v. State, 28 Ala. 12. 
 
 9. In Indiana, it was held that the court 
 ought, if requested, on a trial for bigamy, to 
 charge the jury that if they believed from 
 the evidence that the defendant had been 
 informed that his wife had been divorced, 
 and that he had used due care and made 
 due inquiry to ascertain the truth, and had, 
 considering all the circumstances, reason to 
 believe, and did believe at the time of his 
 second marriage, that his former wife had 
 been divorced from him, they should find 
 him not guilty. Squire v. State, 46 Ind. 
 459 ; s. c. 3 Green's Crim. Reps. 725. 
 
 10. In case of absence. In Massachu- 
 setts, the statute (R. S. cb. 130) does not 
 make the legality of a second marriage 
 whilst the former husband or wife is in fact 
 living, depend upon ignorance of such ab- 
 sent party's being alive, or upon an honest 
 belief of such person's death. Accordingly, 
 where a husband suddenly left his wife say- 
 ing that he would return immediately, and 
 was absent three or four years, and she 
 married again, it was held that she was 
 guilty of bigamy, notwithstanding she had 
 made inquiry after her husband, and did not 
 know that he was alive, but honestly sup- 
 posed that he was dead. Com. v. Mash, 7 
 Mete. 472. 
 
 11. In North Carolina, bigamy does not 
 apply to any person whose husband or wife 
 shall continually remain beyond sea for 
 seven years together, nor to any person 
 whose husband or wife shall absent him or 
 
 herself in any other manner for seven years 
 together, such person not knowing his or 
 her husband or wife to be alive within the 
 time. State v. Patterson, 2 Ired. 346. 
 
 12. Place of marriage. In New York, 
 bigamy cannot be punished as an offense 
 unless the second marriage was within the 
 State. People v. Mosher, 2 Parker, 195. 
 
 3. Indictment. 
 
 13. Immaterial averments. An indict- 
 ment for bigamy need not state the place 
 where the first marriage took place. State 
 V. Bray, 13 Ired. 289; by whom it was 
 solemnized, or the maiden name of the first 
 wife. Hutchins v. State, 28 Ind. 34; or 
 contain the words " with force and arms." 
 State V. Kean, 10 New Hamp. 347. 
 
 14. An" indictment for bigamy which 
 charges that the wife was alive at the second 
 marriage, need not allege that the first mar- 
 riage then subsisted. State v. Norman, 2 
 Dev. 222. 
 
 15. An indictment for bigamy is suffi 
 cient, although it does not negative the ex- 
 ceptions referred to in the statute defining 
 the offense. The averment and the proof to 
 justify a second marriage in such case are 
 to come from the defendant. Fleming v. 
 People, 27 N. Y. 329. 
 
 16. Where tried. An indictment for 
 polygamy was found, and the offense alleged 
 to have been committed in the county of 
 K. The defendant pleaded in abatement 
 to the jurisdiction of the court, that at the 
 finding of the indictment he resided in B., 
 in the county of Y., and was apprehended 
 in said town. Held that the plea was bad, 
 the statute (R. S. of Maine, ch. 424, § 4) 
 providing that "the indictment for such 
 offense may be found and tried in the 
 county where the offender resides, or where 
 he is apprehended," being permissive and 
 not mandatory. State v. Sweetsir, 53 Maine, 
 438. 
 
 17. In New York, a person was indicted, 
 tried and convicted of bigamy in 0. county. 
 It appearing that the offense was not com- 
 mitted in O. county nor the prisoner appre- 
 hended there, but that the second marriage 
 took place in Y. county, and that the
 
 BIGAMY. 
 
 70 
 
 Evidence. 
 
 prisoner was apprehended in that county, 
 the conviction was reversed and the prisoner 
 discharged. Collins v. People, 4 N. Y. 
 Supm. N. S. 77; 8 lb. 610. 
 
 4. Evidence. w 
 
 18. Must be proof of marriage. If par- 
 ties competent to contract, in the presence 
 of witnesses, agree to be husband and wife, 
 and afterward cohabit and recognize each 
 other as such, it is a sufficient marriage to 
 sustain an indictment for bigamy in the 
 event of one of the parties having before 
 that time married another who is still living. 
 Hayes v. People, 25 N. Y. 390. 
 
 19. Marriage may be entered into in any 
 manner which clearly evinces the intention of 
 the parties. It was proved that the prisoner 
 introduced to the complainant a person 
 whom he represented to be a minister, and 
 who" conducted a marriage ceremony be- 
 tween them as a minister. There was no 
 proof, however, that he was in fact a clergy- 
 man, or authorized by law to certify a mar- 
 riage. The ceremony was followed by 
 cohabitation. Held that the proof of mar- 
 riage was suiEcient. Hayes v. People, 5 
 Parker, 325 ; s. c. 25 N. Y. 390. 
 
 20. In Ohio, on a trial for bigamy, the 
 consent of parties to become husband and 
 wife, followed by cohabitation as such, is 
 sufficient proof of the second marriage to 
 authorize a conviction. Carmichael v. State, 
 13 Ohio, N. S. 553. 
 
 21. Marriage to avoid imprisonment is not 
 void when the inducement to the marriage 
 was not the fear of imprisonment, but arose 
 from the arrest and prosecution of the party 
 for bastardy. Williams v. State, 44 Ala. 42. 
 
 22. Where on a prosecution for bigamy 
 the first marriage is charged to have been 
 celebrated in another State, a marriage in 
 fact must be proved according to the law of 
 that State, and it will not be presumed that 
 such law is like our own. People v. Lam- 
 bert, 5 Mich. 849. 
 
 23. On the trial of an indictment for 
 polygamy, evidence of the former marriage 
 of the defendant in England may be proved 
 by the general repute there, in connection 
 with other evidence. Com. v. Johnson, 10 
 
 Allen, 196. In such case, the fact that the 
 defendant's wife " has been continually re- 
 maining beyond sea for the last year, at her 
 usual place of abode (he having deserted 
 her and come to this country), is no de- 
 fense, lb. 
 
 24. Oral proof of the official character of 
 the person before whom the marriage was 
 solemnized is prima facie evidence of his 
 authority. Case of Damon, 6 Maine, 148. 
 But where a marriage to be valid must be 
 entered into as a civil contract before^ a 
 magistrate, it was held erroneous for the 
 court to charge the jury that if they were 
 satisfied of the performance of the religious 
 ceremony, and that the priest who officiated 
 was liable to severe penalties for performing 
 it unless the civil marriage had taken place, 
 they would be authorized to infer that the 
 latter had been previously performed ac- 
 cording to law. Weinberg v. State, 25 
 Wis. 370. 
 
 25. Where an information for bigamy 
 charges that the first marriage took place in 
 Brooklyn, and it is proved that it occurred 
 in the city of New York, the variance is not 
 material unless the defendant was thereby 
 misled. People v. Calder, 30 Mich. 85. 
 
 26. License and certificate. In Illinois, 
 the marriage may be proved by the license 
 and certificate, or by such other evidence as 
 is competent to prove a marriage in other 
 cases. Jackson v. People, 2 Scam. 231. In 
 Virginia, parol proof of a license of mar- 
 riage may be given, although it be in the 
 power of the prosecution to produce the 
 license; and the certificate of marriage is 
 competent evidence against the prisoner, 
 although it does not show on its face that 
 the person whose name is subscribed to it 
 was a person authorized to perform the mar- 
 riage ceremony. Moore's Case, 9 Leigh, 639. 
 And see Squire v. State, 4G Ind. 439; s. c. 2 
 Green's Crim. Reps. 725. 
 
 27. Where, on a prosecution for bigamy, 
 a paper puporting to be the certificate of the 
 first marriage bore no date, and neither de- 
 clared where the marriage took place nor 
 showed where the clergyman resided, and it 
 appeared to have been made after the 
 prisoner was arrested, it was held not ad- 
 
 V
 
 80 
 
 BIGAMY. 
 
 Evidence. 
 
 A 
 
 missible for any purpose. People v. Lambert, 
 5 Mich. 349. 
 
 28. To make a marriage certificate signed 
 by a justice of the peace in another State 
 evidence of the marriage on a trial for 
 bigamy, such person must be proved to have 
 been a justice, and to have been authorized 
 to solemnize marriages, and that his signa- 
 ture is genuine. The testimony of a witness 
 that he wrote a letter on the subject of said 
 marriage to the address of the person whose 
 name was signed to the certificate, and 
 received a reply thereto, which is in the 
 handwriting of the certificate and signature, 
 is not legal evidence that the certificate was 
 signed by the person which it purports. 
 State V. Horn, 43 Vt. 20. 
 
 29. The transcript of a record or registry 
 of the marriage of a person in a foreign 
 
 / country, in the absence of any proof that 
 ' the transcript and its authentications were 
 made by the authority of, or in conformity 
 with the laws of such country, is not prima 
 facie evidence of the fact and legality of the 
 marriage. Stanglein v. State, 17 Oliio, N. 
 ^ S. 453. 
 
 30. On a trial for bigamy, in order to 
 prove the first marriage, a document was 
 jjroduced purporting to be a copy of an 
 entry in the marriage register in the office 
 of the superintendent registrar of the dis- 
 trict of Mohill, IVeland, and was signed by 
 W., in his official capacity of such registrar. 
 But it did not appear that the laws of 
 Ireland required the registration of mar- 
 riages, or that W. was the superintendent 
 registrar at the time the certificate was given, 
 if there was such record, or that his sig- 
 nature was genuine if he was such an officer. 
 Held^ that its admission in evidence was er- 
 ror. State v. Dooris, 40 Conn. 145 ; s. c. 2 
 Green's Crim. Reps. 492. 
 
 31. Testimony of persons present at 
 ceremony. The marriage may be proved by 
 a person who w'as present at the ceremony. 
 Warner v. Com. 2 Va. Cas. 95; State v. 
 Kean, 10 New Hamp. 347; State v.Williams, 
 20 Iowa, 98. Proof that the parties went 
 together to a church; that the officiating 
 minister, in the presence of spectators, 
 performed the marriage ceremony, and that 
 
 the parties apjieared to consider themselves 
 married, is presumptive evidence that the 
 ceremony was regular and legal. People v. 
 Calder, 30 Mich. 85. 
 
 32. Wife as witness. In a prosecution 
 for bigamy, the lawful wife is not a compe- 
 tent witness against her husband. Williams 
 V. State, 44 Ala. 42. But it is otherwise as 
 to the woman with whom he committed the 
 oflense. State v. McDavid, 15 La. An. 403 ; 
 State V. Patterson, 2 Ired. 346. 
 
 33. The prosecution may inquire of the 
 prosecutrix as to the place and manner of 
 her living immediately after her alleged 
 marriage to the prisoner, in corroboration of 
 her testimony as to tho actual marriage. 
 Hayes v. People, 25 N. Y. 390. ^ 
 
 34. Confession of defendant. On a trial / 
 for bigamy the first marriage may be proved / 
 by cohabitation and the confessions of the S 
 prisoner without the production of the V 
 record or the testimony of a witness who i 
 
 was present at the ceremony. Langtry v. 
 State, 30 Ala. 536 ; State v. Abbey, 29 Vt. 
 60 ; Finney v. State, 3 Head, 544 ; Wolver- 
 ton V. State, 16 Ohio, 173 ; Com. v. Murtagh, 
 1 Ashm. 272 ; Warner v. Com. 2 Va. Cas. 95 ; 
 O'Neale v. Com. 17 Gratt. 582; State v. 
 Seals, 16 Ind. 352 ; Squire v. State, 46 lb. 
 459 ; s. c. 2 Green's Crim. Reps. 725 ; State 
 V. Britton, 4 McCord, 256 ; State v. Hilton, 
 3 Rich. 434 ; Stanglein v. State, 17 Ohio, N. 
 S. 453. 
 
 35. Where, on a trial for bigamy, the 
 accused claimed that the marriage ceremony 
 was a mock one, it was held that a letter 
 written by him to the woman, in which he 
 represented the contrary, was admissible 
 against bim. State v. Horn, ^3 Vt. 20. 
 
 36. In New York, the confessions of the 
 defendant, though corroborated by proof of 
 cohabitation and reputation, are not suffi- 
 cient to show the first marriage, proof of 
 actual marriage, either by the record or by 
 the evidence of an eye-witness, being neces- 
 sary, Goghagan v. People, 1 Parker, 378. 
 And the same seems to be the case in Michi- 
 gan and Minnesota. People v. Lambert, 5 
 Mich. 349 ; State v. Armstrong, 4 Minn. 335 ;^ 
 State V. Johnson, 12 lb. 476. 
 
 37. Proof that first wife was living.
 
 BIGAMY.— BILL OF EXCEPTIONS. 
 
 81 
 
 Evidence. 
 
 Nature and Office. 
 
 The fact that the first wife was living at the 
 time of the second marriage, may be proved 
 by circumstantial evidence. Gorman v. State, 
 23 Texas, 646. On a trial for bigamy there 
 was no direct evidence that the first wife of 
 the defendant was alive at the time of the 
 second marriage, though it was established 
 by the admissions of the defendant that she 
 was living two years previous thereto. Held, 
 that the presumption of the continuance of 
 life was neutralized by the presumption of 
 the innocence of the defendant. Squire v. 
 State, 46 Ind. 459 ; s. c. 2 Green's Grim. 
 Reps. 725. 
 
 38. Testimony for defense. If on the 
 
 trial of an indictment for polygamy the 
 
 defense is a previous divorce, the defendant 
 
 must prove it. Com. v. Boyer, 7 Allen, 306. 
 
 . 39. The prosecution need not show that 
 
 j the first wife was not absent for five succes- 
 
 i sive years without being known to the 
 
 ^ defendant within that time to be living, nor 
 
 j prove that at the time of the second mar- 
 
 jriage the defendant did not come within any 
 
 ' of the other exceptions mentioned in the 
 
 statute. Fleming v. People, 27 N. Y. 329. 
 
 Sill of (exceptions. 
 
 1. Nature and office. 
 
 2. What it shoui,d contain. 
 
 3. Settlement. 
 
 4. Effect. 
 
 1. Xatcre and office. 
 
 1. Meaning. An exception is a formal 
 protest against the ruling of the court upon 
 a question of law, and a bill of exceptions 
 is a written statement, settled and signed by 
 the judge of what the ruling was, the facts 
 in view of which it was made, and the pro- 
 test of counsel. People v. Torres, 38 Cal. 
 141. An alleged error in the charge to the 
 jury will not be noticed unless the party 
 objecting excepts, and by a bill of excep- 
 tions places the objectionable charge on the 
 record. Wash v. State, 14 Sm. & Marsh. 
 120; Com. v. Kneehind, 20 Pick. 206. 
 
 2. In New York. Bills of exceptions in 
 criminal cases wen.' unknown to the common 
 
 6 
 
 law. Their office is to bring up for review 
 questions of law made and decided on the 
 trial. The statute of Nev/ York whicli 
 gives the right limits it to exceptions taken 
 on the trial of the main issue, and does not 
 extend to such as are taken on the trial of 
 preliminary or collateral questions. Wyn- 
 hamer v. People, 20 Barb. 537 ; People v. 
 Gardiner, 6 Parker, 143. 
 
 3. In New York, before exceptions were 
 given by statute, it was the practice of the; 
 inferior courts to suspend sentence after 
 conviction to ask the advice of the Supreme 
 Court in respect to difiicult or important 
 questions of law which had arisen on the 
 trial. Applications of this kind are still 
 sometimes made and entertained. People 
 V. Bruno, 6 Parker, 657. But since the 
 Revised Statutes, the defendant is allowed 
 to make a bill of exceptions, as in civil 
 cases, and to have the exceptions examined 
 upon a writ of error, and the former practice 
 to suspend judgment until the advice of the 
 Supreme Court could be obtained, has for 
 the most part fallen into disuse. People v. 
 Cummings, 3 Parker, 343. 
 
 4. "When it will lie. Where, upon a 
 challenge for favor, the court errs in admit- 
 ting or rejecting evidence, or in instructing 
 the triers upon questions of law, a bill of 
 exceptions will lie. People v. Bodine, 1 
 Denio, 281. 
 
 5. An exception will lie to the admission 
 or exclusion of evidence ; to the granting or 
 refusing a nonsuit ; to charging, or refusing 
 to charge the jury on a specific proposition ; 
 or in deciding any question on the trial 
 going to the merits. But that which has 
 reference to the manner of conducting the 
 trial; to the forms of the questions asked, 
 and to the range allowed counsel in their ar- 
 guments, are matters of discretion, and not 
 subject to exception. People v. Finnegan, 
 1 Parker, 147 : People v. Stockham, lb. 424 ; 
 Saffbrd v. People, lb. 474. 
 
 6. Although the judge neglects to give 
 the instruction which counsel, in addressing 
 the jury, claimed, it is not a grouud for ex- 
 ceptions, unless the judge was requested to 
 give such instructions. State v. Straw, 38 
 Maine, 554.
 
 82 
 
 BILL OF EXCEPTIONS. 
 
 Nature and Office. 
 
 What it should Contain. 
 
 Settlement. 
 
 7. It is not cause for exception that the 
 court charged the jury that if any of them 
 clift'ered in their views of the evidence, from 
 the majority of their fellows, they ought to 
 distrust the correctness of their own judg- 
 ments, and be led to examine the facts of the 
 case for the purpose of correcting their 
 opinions. Com. v. Tuey, 8 Cush. 1. 
 
 8. When the judge, in his charge to the 
 jury, expresses an opinion as to the efi'ect of 
 the evidence, leaving the jury to decide the 
 question, it is not good ground of exception ; 
 otherwise, if the language which is the sub- 
 ject of exception, amounts to an instruction 
 as to the law applicable to the evidence in 
 the case. Peoijle v. Quin, 1 Parker, 340. 
 
 9. "Waiver. When three being indicted, 
 ask for separate trials, whether by so doing 
 they do not waive tlie riglit of exception to 
 the indictment, on the ground that it was not 
 legally found — query. Com. v. Chauncey, 
 2 Ashm. 90. 
 
 10. Where no bill of exceptions is sent up 
 with the record of a case, the judgment be- 
 low is affirmed, as of course, there appearing 
 no error in the record. State v. Orrell, Bus- 
 bee, N. C. 217. 
 
 2. What it should contain. 
 
 11. Must set out the evidence. The 
 party excepting to the refusal of the court 
 to admit evidence, should, in order to avail 
 himself of the error, state what he expected 
 or believed the witness would testify, and 
 let the bill of exceptions show it, in order 
 that the appellate court may see that the evi- 
 dence was material. Tipper v. Com. 1 Mete. 
 Ky. 6. 
 
 12. Assignments of error that the court 
 peiTnitted improper questions to be answer- 
 ed, will not be considered, unless the record 
 shows the answers given, or that they prej- 
 udiced the defendant. Jhons v. People, 
 25 Mich. 499. 
 
 13. Where the defendant was tried for a 
 libel, and the bill of exceptions did not re- 
 cite the evidence, it was held that the court 
 must presume that the evidence sustained 
 the verdict, and that there was no variance. 
 Melton v. State, 3 Humph. 389. 
 
 14. A bill of exceptions, after setting out 
 
 the evidence, stated that " here the evidence 
 closed." Held, that this was a sufficient al- 
 legation that the bill of exceptions contained 
 all the testimony heard at the trial. Yates 
 V. State, 10 Yerg. 549. 
 
 15. Exceptions to charge of court. When 
 instructions are excepted to as erroneous, 
 no part of the testimony need be stated to 
 authorize the ajjpellate court to revise the 
 case upon the bill of exceptions. Sharp v. 
 State. 15 Ala. 749. 
 
 16. A mere general exception to the charge 
 of the court, without specifying any grounds 
 of error, or asking for a particular charge, is 
 not well taken. People v. Smith, 57 Barb. 
 46. A bill of exceptions, instead of contain- 
 ing the testimony or objections made, rul- 
 ings of the court, or any exceptions, stated 
 that all these things appeared by the depo- 
 sitions, documentary evidence, and other 
 papers on file, which were to be annexed and 
 form part of the bill. Held, that the judge 
 was not bound to examine the files in search 
 of documents, or to sign a bill in such a 
 shape. State v. Noggle, 16 Wis. 333. 
 
 17. Where a bill of exceptions shows that 
 evidence was excluded in the court below 
 on objection, but does not state the ground, 
 either of the oijjection or decision, any ob- 
 jection which might have been available 
 during the trial, may be raised on the argu- 
 ment. Ward V. People, 3 Hill, 395. 
 
 18. When to be disregarded. Excep- 
 tions at the trial, and exceptions to the rul- 
 ings upon a motion in arrest, are incompati- 
 ble. Both must be dismissed, or one be 
 withdrawn or waived. If either of the ex- 
 ceptions are deemed to have been withdrawn, 
 it is reasonable to consider that those taken 
 first in order of time, are the ones with- 
 drawn. State V. Wing. 32 Maine, 581. 
 
 19. Where an exce])tion is so obscure that 
 the court cannot readily perceive the exact 
 point of the objection, it will be disregarded. 
 Carnal v. People, 1 Parker, 272. 
 
 3. Settlement. 
 
 20. By whom made. In New York, the 
 judges who preside at the trial must settle 
 the bill of exceptions, and no other judges 
 or officers can do so. Wood v. People, 3
 
 BILL OF EXCEPTIONS.— BLASPHEMY 
 
 83 
 
 Effect. 
 
 What Constitutes. 
 
 N. Y. Supm. N. S. 500. And it must be set- 
 tled by the court that tries the indictment, 
 as a court, and not merely by the presiding 
 judge. Where the bill was settled after the 
 adjournment of the court by the circuit 
 judge alone, in the absence of the justices of 
 sessions, and was afterward presented to and 
 signed by them, the Supreme Court, on mo- 
 tion of the district attorney, ordered it to be 
 struck from the record. Birge v. People, 5 
 Parker, 9. 
 
 4. Effect. 
 
 21 . What brought up. Where a bill of 
 exceptions is allowed, the facts embraced in 
 it become a part of the record ; and a writ 
 of error brings up the entire record, and er- 
 ror may be assigned on any part of it. State 
 \. Jones. 5 Ala. 666. 
 
 22. What entertained. When exceptions 
 are alone taken, special findings of the jury 
 cannot be considered, but only the ques- 
 tions presented by the exceptions. State v. 
 Hinckley, 38 Maine, 21. 
 
 23. When a general objection is made to 
 evidence, it must be understood to be taken 
 to its competency, and not to the form of the 
 question, or other incidental matter which, 
 if stated at the trial, might have been ob- 
 viated. State V. Flanders, 38 New Ilamp. 324. 
 
 24. Presumption in favor of court below. 
 It will be presumed that the court below de- 
 cided correctly, unless the contrary appears 
 from the facts and proceedings preserved in 
 the bill of exceptions. Ingram v. State, 7 
 Mo. 293. 
 
 25. When an exception represents a mat- 
 ter differently from the statement made up 
 by the judge, it will be disregarded, and the 
 statement taken to be true. State v. Lang- 
 ford, Busbce, N. C. 436. 
 
 26. Where the bill of exceptions does not 
 disclose what the evidence was in relation to 
 which the charge was given to which excep- 
 
 ; tion is taken, the exception will be over- 
 I ruled, if the instruction could have been 
 correct in any supposal)le state of the evi- 
 dence. State V. IIoi)kins, 5 R. I. 53. 
 \ 27. When there is no proof of venue. 
 When till! bill of exceptions purports to set 
 out all the evidence, and ddcs not show that 
 
 the venue was proved, and an exception was 
 reserved to the conviction and sentence, 
 though no instruction was given or asked in 
 reference to the proof of venue, the judg- 
 ment will be reversed. Frank v. State, 40 
 Ala. 9. 
 
 For decisions having some relation to the 
 same subject, see Appeal; Indictment; 
 Tkial ; Writ of ereor. 
 
 Bill of |pavticular0» 
 
 In discretion of court. Whether a 
 bill of particulars or specification of facts 
 will be ordered, is a question in the discre- 
 tion of the court in which the cause is pend- 
 ing. Com. v. Giles, 1 Gray, 466 ; Com. v. 
 Wood, 4 lb. 11. 
 
 i3!a5pl)cmi). 
 
 1. What constitutes. Blasphemy at com- 
 mon law, is profanation of the general prin- 
 ciples of religion and morality. It may be 
 committed by such utterances in a scoffing 
 and railing manner, out of a reproachful dis- 
 position in the speaker, and as it were, with 
 passion against the Almighty, rather than 
 with any purpose of propagating the irrev- 
 erent opinion. Com. v. Kneeland, Thatch. 
 Crim. Cas. 346 ; People v. Ruggles, 8 Johns. 
 290 ; State v. Chandler, 2 Harriug. 553. 
 
 2. To constitute the offense in Massachu- 
 setts, under the statute, there must be a 
 willful denial of God, and of his creation and 
 government, with an intent to impair and 
 destroy the reverence due to him. Com. v. 
 Kneeland, 20 Pick. 206. In Pennsylvania, 
 it is an indictable offense to maliciously vil- 
 ify the christian religion. Updegrai^h v. 
 Com. 11 Serg. & Rawle, 394. 
 
 3. In Delaware, where the jury found 
 that the defendant had proclaimed pulilicly 
 and maliciously, with intent to vilify the 
 christian religion, and to blaspheme God, that 
 " the Virgin Mary was a whore, and Jesus 
 Christ was a bastard," it was held that the 
 offense was blasphemy, and the court refused 
 to arrest the judgment. State v. Chandler,
 
 84 
 
 BOARDING YESSEL.— BREACH OF THE PEACE. 
 
 Act Constitutional. 
 
 By Improper Language. 
 
 4. Indictment. In Pennsylvania, an in- 
 dictment for blasphemy, under the statute, 
 must charge that the words were spoken 
 profanely; and the words must be set out. 
 Updcg-raph v. Com. supra. 
 
 5. Evidence. A person cannot be con- 
 victed of blasphemy on his own confession, 
 made out of court. It must be proved that 
 the oifensive words were actually uttered. 
 People V. Porter, 2 Parker, 14. 
 
 BoarMng bcsscL 
 
 1. Act constitutional. The 62d section 
 of the act of Congress of June 7th, 1872 
 (17 U. S. Stat, at Large, 276), making it an 
 indictable offense, punishable by a penalty 
 and imprisonment, to go on board a vessel 
 about to arrive at the place of her destina- 
 tion, before her actual arrival, and before 
 she is completely moored, without permis- 
 sion of the master, is valid. U. S. v. Ader- 
 son, 10 Blatchf. 226; s. c. 1 Green's Crim, 
 Reps. 423. 
 
 2. Foreign vessels. The act was de- 
 signed to protect foreign vessels as well as 
 vessels of the United States. lb. 
 
 3. What constitutes the offense. A per- 
 son by climbing from a boat upon the rail 
 of the ship, in the act of entering the ship, 
 without permission, renders himself liable to 
 punishment. lb. 
 
 4. The offense is committed, by boarding, 
 in the bay of New York, without permis- 
 sion, an inward bound vessel, laden with 
 cargo, to be lauded at a pier in the city of 
 New York, before the arrival of the vessel at 
 such pier, although the vessel when boarded, 
 was temporarily at anchor in the bay. lb. 
 
 5. Evidence for prosecution. The pros- 
 ecution need not prove that the prisoner was 
 not in the United States service, or was not 
 duly authorized by law to go on board of 
 the vessel. lb. 
 
 6. Proof that the master of the ship was 
 not on board of the vessel, and that the mate 
 then in command, gave no permission to the 
 defendant to board the vessel, and caused 
 his arrest on the spot, is sufficient to sup- 
 port a conviction, in the absence of any evi- 
 
 dence showing a permission by the master, 
 lb. 
 
 7. Defense- Proof that the prisoner was 
 a runner employed by a person licensed to 
 keep a sailor's boarding house under the- 
 statute of New York, is not a defense. lb. 
 
 CrcacI) nf tl)c ^Dcacc. 
 
 1. By improper language. If a person 
 in his own dwelling-house, is in the habit of 
 using loud and violent language, consisting 
 of opprobrious epithets, and exclamations, in 
 such a manner as to attract crowds of persons 
 passing and living in the neighborhood he 
 may be convicted of being a common railer 
 and brawler and a disturber of the peace, al- 
 though he was betrayed into these violent 
 expressions in the heat of altercations sud- 
 denly arising. Com. v. Foley, 99 Mass. 497. 
 
 2. By assaulting another. In Connecti- 
 cut, to constitute a violation of the statute 
 providing the punishment of any person wha 
 shall disturb, or break the peace by tumul- 
 tuous and offensive carriage, threatening, 
 traducing, quarreling with, challenging, 
 assaulting and beating any other person, 
 there need not have been such conduct on 
 the part of the defendant as amounted to 
 an assault and battery at common law. State 
 V. Farrall, 29 Conn. 72. 
 
 3. By rapid driving. It is an indictable 
 offense, and a breach of the peace at common 
 law, to drive a carriage through a crowded 
 street of a city, at such a high rate of speed 
 as to endanger the safety of people passing ; 
 and where the driver of such carriage is 
 carrying the U. S. mail, he may be arrested, 
 notwithstanding the act of Congress pro- 
 hibiting the stoppage of the mail. U. S. v. 
 Hart, 3 Wheeler's Crim. Cas. 304. 
 
 4. By forcible entry. If a person having 
 a possessoiy title to land, enters by force, 
 and throws out a person who has a naked 
 possession only, he may be indicted for a 
 breach of the peace, but is not liable in 
 trespass to the ousted person ; and on the 
 trial of the indictment, the title to the land 
 does not come in question. Higgins v. State, 
 7 Ind. 549.
 
 BRIBERY.— BURGLARY. 
 
 85 
 
 Power of Congress to Punish. 
 
 What Constitutes. 
 
 As to sureties of the peace, see Bail and 
 
 KECOGNIZANCE. 
 
 Bribcnj. 
 
 1. Power of Congress to punish. Bribery 
 is included in the 8th section of the 1st 
 article of the Constitution of the United 
 States, giving Congress power to create, 
 define, and punish crimes and offenses. U. S. 
 V. Worrall, 3 Dallas, 384. 
 
 2. Venue. Writing and mailing a letter 
 offering a bribe in one State, directed to a 
 person in another State, is an offense com- 
 pleted in the State where the post office is 
 situated. U. S. v. Worrall, supra. 
 
 3. Bribery at election. To constitute 
 bribery at an election, it must appear that 
 the offense was actually carried into exe- 
 cution by an election held, and the corrupt 
 vote then given; and this cannot be in- 
 tended, but must be distinctly charged. 
 Newell V. Com. 2 Wash. 88. 
 
 4. In Pennsylvania, the bribing of a voter 
 by a person running for the office of sheriff, 
 is not an infamous crime, within the meaning 
 of the State constitution disqualifying him 
 on conviction, from holding office. Com. 
 V. Shaver, 3 Watts & Serg. 338. 
 
 5. An agreement between A. and B. that 
 A. will vote for C. as commissioner of the 
 revenue, in consideration that B. will vote 
 for D. as clerk, and the voting of A. and B. 
 pursuant thereto, is not an offense within 
 the statute of Virginia against buying and 
 selling offices. Com. v, Callaghan, 2 Va. 
 Cas. 4C0. 
 
 6. Bribing officer. In Alabama, to con- 
 stitute the offense of bribing a legislative 
 or judicial officer, it must appear that the 
 cause or proceeding was pending before the 
 -officer at the time; or that it was afterward 
 instituted before the officer, or so instituted 
 that in the ordinary course of proceeding it 
 would come before him. Barcflold v. State, 
 14 Ala. 603. 
 
 7. It is not a defense to an indictment 
 for bribing a United States officer, that the 
 prisoner was brought within the jurisdiction 
 of the court under an extradition treaty on 
 
 another charge, and that the offense of 
 bribery is not within the treaty. U. S. v. 
 Caldwell, 8 Blatch. 131. 
 
 8. Offering bribe. A person may be in- 
 dicted for offering to bribe, though the 
 bribe be not taken. State v. Ellis, 4 Vroom, 
 102. 
 
 9. Indictment. An indictment for bribery 
 at an election need not allege that the 
 persons voted for were candidates. Com. 
 V. Stephenson, 3 Mete. Ky. 226. 
 
 10. An indictment alleged that the de- 
 fendant knowingly offered to give O. a 
 bribe to vote, the said O. being then and 
 there under twenty-one years of age. HeW. 
 sufficient, as including in the ciiarge, that 
 the defendant knew that O. was under age 
 when he offered him the bribe. U. S. v. 
 O'Neill, 2 Sawyer, 481. 
 
 11. A person was indicted for attempting 
 to bribe a deputy sheriff, with money to 
 induce him to sum mo u such persons on the 
 jury, as the defendant should name. Held.^ 
 an offense at common law, and that it was 
 not necessary to allege in the indictment, 
 that the defendant offered any specific sum 
 of money, or other thing, to the deputy 
 sheriff. Com. v. Chapman, 1 Va. Cas. 138. 
 
 Suvglanj. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Verdict. 
 
 1. What constitutes. 
 
 1. Meaning. Burglary is the breaking 
 and entering of a dwelling-house, in the 
 night with intent to commit a felony. State 
 V. Wilson, Coxe, 441; Com. v. Newell, 7 
 Mass. 247. 
 
 2. The breaking. To constitute burglary, 
 there must be a breaking, removing, or 
 putting aside of some part of the dwelling- 
 house which is relied on as a security against 
 intrusion. A door or window left open is 
 no such security. But if the door or window 
 be shut, it need not be locked, bolted, or
 
 86 
 
 BUEGLARY 
 
 What Constitutes. 
 
 nailed; a latch to the door, or the weight 
 of the window being sufficient. State v. 
 Boon, 13 Ired. 244 ; State v. Reid, 20 Iowa, 
 413; Lyons v. People, 68 111. 271; Com. v. 
 Strupney, 105 Mass. 588. But see People 
 V. Bush, 3 Parker, 553. 
 
 3. The outer door being open, entering 
 and unlatching, or unlocking a chamber 
 door is burglary. .State v. Wilson, Coxe, 
 439. Otherwise, if all the doors are open, 
 and a thief enter, though he afterward 
 break open a chest or cupboard. lb. A 
 person who entered a railroad depot through 
 an open outer door, and then broke and en- 
 tered an inner door, wiis held guilty of 
 breaking and entering the depot. State v. 
 Scripture, 43 New Hamp. 485. 
 
 4. The raising of a window sash which 
 was down and closed, and which was the 
 only fastening to the window, and the entry 
 of the party through the same into tlie 
 house, is such a breaking as constitutes bur- 
 glary. Frank v. State, 39 Miss. 705. 
 
 5. Where an entry into a building is ef- 
 fected through a hanging window over a 
 shop door, designed for light and ventilation, 
 kept down by its own weight so iirmly as to 
 be opened only by the use of force, and so 
 situated that a ladder, or something of the 
 kind, is necessary to reach it, it is a sufficient 
 breaking to constitute burglary. Dennis v. 
 People, 27 Mich. 151 ; s. c. 8 Green's Crim. 
 Reps. 565. 
 
 6. An area or excavation, in front of a 
 cellar window, covered and protected by 
 an iron grating is to be deemed a part of the 
 cellar, and the raising of the grating is a 
 breaking and entering within the statute of 
 Michigan (Comp. L. § 5766) against bur- 
 glary. People v. Nolan, 33 Mich. 339. 
 
 7. Where it was proved that the prisoner 
 entered a dwelling-laouse by an open window 
 in the day time, passed through the house, 
 unlocked the front door and went out about 
 noon, it was held that his offense was not 
 burglary in the second degree under the 
 statute of New York (3 R. S. 5th ed. p. 
 947, § 13). People v. Arnold, 6 Parker, 
 638. 
 
 8. In Massachusetts, the removal of a 
 plank which is loose, and not attached to the 
 
 freehold, in a partition wall of a building, is 
 is not a breaking in within the statute. 
 Com. V. Trimmer, 1 Mass. 476. 
 
 9. Entering by getting down a chimney, is 
 a breaking. It makes no difference whether 
 the door is barred and bolted, or the window 
 secured or not, provided the house is se- 
 cured in the ordinary way, so that by the 
 carelessness of the owner, in leaving the 
 door or window open, the trespasser be not 
 tempted to enter. Com. v. Stephenson, 8 
 Pick. 354 ; State v. Willis, 7 Jones, 190. 
 
 10. Where on a trial for burglary it was 
 proved that the defendant about four o'clock 
 in the morning had raised the window of a 
 dwelling-house, and stood outside hokling 
 it up with his hand, the fingers of which 
 were inside the house, and his elbows rest- 
 ing on the window sill, when being discov- 
 ered, he drojiped the window and fled, it 
 was held sufficient to sustain a conviction. 
 France v. State, 43 Texas, 376. 
 
 11. Forcing open shutters and thrusting 
 the hand within them, thei'e being no entry 
 of the house, will not constitute burglary. 
 State V. McCall, 4 Ala. 643. Where on a 
 trial for burglary, the evidence did not show 
 whether certain blinds were so closed as to 
 require a breaking to enter, it was held in- 
 sufficient to sustain a conviction. Williams 
 v. State, 53 Ga. 580. 
 
 12. When it was proved that the prisoner 
 had proposed to a servant a lilan for rob- 
 bing his employer's office by night, that the 
 servant told his employer, and that the lat- 
 ter acting under the instructions of the 
 police, gave the servant the keys of his office, 
 that the servant and the prisoner went to- 
 gether to the office, when the servant opened 
 the door with the key, and they both entered 
 through the door, and were arrested in the 
 house, it was held that there could not be a 
 conviction of burglary. Allen v. State, 40 
 Ala. 334. 
 
 13. On a trial for burglary, the evidence 
 showed that the proprietor of the building 
 was apprised of the intended crime, that 
 armed men were placed in the building, and 
 that the proprietor was close at hand watch- 
 ing when the entrance was effected. Ileld 
 that the liability of the defendants was not
 
 BUEGLARY. 
 
 87 
 
 What Constitutes. 
 
 thereby changed. Thompson v. State, 18 
 Ind. 386. 
 
 14. Constructive breaking. The prisoner, 
 by artifice and fraud, procured the door of 
 a dwelling to be opened, and immediately en- 
 tered and robbed the house. Held burglary. 
 State V. Johnson, Phil. N. C. 188. 
 
 15. Where three persons, between ten and 
 eleven o'clock at night, obtained an entrance 
 into a store by arousing the owner from 
 sleep, and requesting to be let in, and after 
 they had entered called for meat, and as the 
 owner of the store was in the act of getting 
 it, knocked him down and robbed the store, 
 it was held a sufficient breaking to consti- 
 tute burglary. State v. Mordecai, 68 N. C. 
 207. 
 
 16. To amount to a constructive breaking, 
 so as to constiti;te burglary, by enticing the 
 owner out of his house by fraud and circum- 
 vention, and thus inducing him to open his 
 door, the entry of the trespasser must be 
 immediate, or so soon that the owner, or his 
 family, cannot refasten the door. State v. 
 Henry, 9 Ired. 403. 
 
 17. Where the owner was decoyed to a 
 distance from his house, leaving it unfast- 
 ened, and his family did not fasten it after 
 he went out, and the trespasser, at the 
 expiration of about fifteen minutes, entered 
 the house through the unfastened door, 
 with intent to commit a felony, it was held 
 not burglary. lb. Ruffin, C. J., dissenting. 
 
 18. Where two combine to commit a bur- 
 glary, and one breaks into the house and 
 obtains the property while the other waits 
 outside, both are guilty of breaking and 
 entering. People v. Boujet, 2 Parker, 11. 
 
 19. Where an essential part of the plan of 
 a burglary was that one of the parties 
 should entice the owner a mile away from 
 the building, and keep him there while the 
 burglary was efl'ected, it was held that the 
 one so doing, was constructively present at 
 the burglary, and might be indicted as a 
 principal. Breese v. State, 12 Ohio, N. S. 
 146. 
 
 20. Time of breaking. In Georgia, bur- 
 glary may be committed in the day as 
 well as night. State v. Thompson, K. M. 
 Charlt. 80. And in Maine, the offense may 
 
 be committed irrespective of light or dark- 
 ness. State V. Newbergin, 25 Maine, 500. 
 
 21. On the trial of an indictment against 
 an accessory before the fact, to the breaking 
 and entering a bank building in the night, 
 and stealing from the vault of the bank, it 
 is immaterial that part of the work was 
 done in the day time, or that the forcing 
 open of the vault and stealing its contents 
 was postponed until daylight ; nor is it nec- 
 essary to prove that the defendant knew or 
 supposed that the offense was to be com- 
 mitted in the night. Com. v. Glover, 111 
 Mass. 395. 
 
 22. Must be a felonious intent. The in- 
 tent to commit a felony is a material part of 
 the crime of burglary, and must be alleged 
 in the indictment. Wood v. State, 46 Ga. 
 323. The jury were instructed that if they 
 believed that the defendant entered a certain 
 warehouse in the night time and took there- 
 from sundry goods and chattels, he was 
 guilty of burglaij. Held error, no allusion 
 being made in the instruction to the feloni- 
 ous intent of the entry and the character of 
 it. People V. Jenkins, 16 Cal. 431. 
 
 23. When on the trial of an indictment 
 for breaking and entering a dwelling in the 
 night with intent to commit larceny, it is 
 proved that the defendant was at the time 
 in such a state of intoxication that he en- 
 tered without any intent to commit the 
 crime, he cannot be convicted. State v. 
 Bell, 29 Iowa, 316. 
 
 24. A person who is lawfully in a house, 
 or has the right to enter, as the guest of an 
 inn, cannot be convicted of entering in the 
 night time with intent to steal. State v, 
 Moore, 12 New Hamp. 42. . 
 
 25. A joint tenant cannot be guilty of 
 burglary in imlocking the door of the joint 
 tenement and taking therefrom the goods 
 of his roommate. Clarke v. Com. 25 Gratt 
 908. 
 
 26. Under an indictment for breaking and 
 entering a smokehouse and stealing meat, 
 the charatcter of the intent will not be 
 changed by the fact that the prisoner pre- 
 viously went into the smokehouse on the 
 business of the mistress of the house, and 
 while there, dropped the meat between the 
 
 t-
 
 88 
 
 BURGLAEY. 
 
 What Constitutes. 
 
 ceiling, so tliat it could be taken out by pry- 
 ing up one of the -ueather boards; nor will 
 it change the cliaracter of the breaking and 
 entering so as to make the offense a mere 
 larceny instead of burglary. Fisher v. State, 
 43 Ala. 17. 
 
 27. Intent when not an ingredient of 
 offense. In Ohio, under the statute punish- 
 ing the breaking and entering a mansion 
 house in the night season, in which any per- 
 son shall reside or dwell^ and committing, or 
 attempting to commit, any personal violence 
 or aluse^ the intent with which the party 
 enters forms no ingredient of the offense. 
 The sole question is, did the defendant com- 
 mit, or attempt to commit, any personal 
 abuse or violence. Forsythe v. State, 6 
 Ham. 20. 
 
 28. To break and enter a dwelling-house 
 with intent to commit adultery, is not 
 burglary in Vermont. State v. Cooper, 16 
 Vt. 551. In Massachusetts, it is not a felony 
 to break and enter a dwelling-house with in- 
 tent to cut off an ear of a person. Com. v. 
 Xewell, 7 Mas^. 245. 
 
 29. The building. Every dwelling-house 
 is a habitation in which burglary may be 
 committed, and also all out-houses attached 
 to the dwelling, and intended for the com- 
 fort and convenience of the family. Armour 
 V. State, 3 Humph. 379; but not a store, in 
 which no member of the family slept, though 
 witliiu thirty feet of it, and within a com- 
 mon inclosure. lb. 
 
 30. It is not burglary to break the door of 
 a store within three feet of the dwelling- 
 house, and inclosed in the same yard, when 
 the store is not essential to the hou.se as a 
 dwelling. State v. Langford, 1 Dev. 253. 
 And breaking open, in the night, a store 
 twenty feet from a dwelling-house, but not 
 connected with it by any fence or inclosure, 
 is not burglary. People v. Parker, 4 Johns. 
 424. 
 
 31. A storehouse in which the owner 
 occasionally slept, two hundred yards from 
 his dweUing-house, in which he generally 
 slept, with his family, is not a dwelling- 
 house, the breaking and entering of which 
 constitutes burglary. State v. Jenkins, 5 
 Jones, 430. Approved, State v. Outlaw, 72 
 
 N. C. 598. But burglary maybe committed 
 by breaking and entering a storehouse 
 twenty-four yards from the dwelling-house 
 and separated therefrom by a fence, if the 
 owner or his servants occasionally sleep 
 there. State v. Wilson, 1 Hayw. 242. 
 Where a clerk had for four years occupied a 
 storehouse as his regular sleeping apartment, 
 for the sole purpose of protecting it, it was 
 held a dwelling-house in which burglary 
 might be committed. State v. Outlaw, 72 
 K C. 598. 
 
 32. Where a person was charged with 
 breaking and entering, in the night, "a 
 certain house, not then occupied as a dwell- 
 ing-house," and stealing therein goods and 
 chattels, it was held to be only larceny. 
 Wilde V. Com. 2 Mete. 408. But it has been 
 held burglary to break and enter a house in 
 a city where the prosecutor intended to live 
 when he came back from the country, to 
 which he had moved his furniture on going 
 to the country, although his family had 
 never slept in it ; but it had only been used 
 Ijy them occasionally as a stopping place. 
 Corn. V. Brown, 3 Rawle, 207. 
 
 33. A two-story house of which the front 
 on the first floor was used by the owner as a 
 storehouse, and the back room (containing 
 a few boxes of goods, and communicating 
 with the front by a door in the 2iartition) as 
 a sleeping room, wiiile his clerks took their 
 meals at a hotel, but slept in the rooms on 
 the second floor. Held, a dwelling-house, 
 both within the common-law definition of 
 burglary, and under sections 3308-9 of the 
 Code of Alabama. Ex parte Vincent, 26 
 Ala. 145. And see State v. Mordecai, 68 N. 
 C. 207. 
 
 34. Burglary may be committed by break- 
 ing and entering rooms in a tenement house 
 which is occupied separately by several 
 families, each having distinct apartments 
 opening into a common hall and thus com- 
 municating with the street. Mason v. Peo- 
 ple, 26 N. Y. 200. But apartments leased 
 and occupied separately from other tene- 
 ments in the same building, with a separate 
 outside entrance, the lessee having his 
 residence in another part of the city, are not 
 '• adjoining to or occupied with a dwelling-
 
 EUKGLAEY. 
 
 89 
 
 What Constitutes. 
 
 Indictment. 
 
 house " within the statute of Michigan 
 against burglary (Comp. L. § 5766). Peo- 
 ple V. Nolan, 22 Mich. 229. 
 
 35. In North Carolina, a smokehouse 
 ■which opened into the yard of a dwelling- 
 house was deemed a part of the dwelling, 
 the breaking and entering of which con- 
 stituted burglary. State v. Whit, 4 Jones, 
 349. And in Alabama, under an indictment 
 for burglary, a smokehouse, the front part 
 and door of which were in the yard of the 
 dwelling-house, although the rear was not, 
 was held to be within the curtilage, and that 
 the breaking and entering the rear of such 
 a building constituted the offense, if the 
 breach enabled the prisoner to take out 
 meat with his hands. Fisher v. State, 43 
 Ala. 17. 
 
 36. In Connecticut, the cabin of a vessel 
 is a "shop," and a barn not connected with 
 the mansion-house, is an "out-house," with- 
 in the statute punishing burglary. State v. 
 Carrier, 5 Day, 131; State v. Brooks, 4 
 Conn. 446. See also, Eex v. Humphrey, 1 
 Root, 63. But otherwise as to a district 
 school-house. State v. Bailey, 10 Conn. 
 144. 
 
 2. Indictment. 
 
 37. Manner of breaking. In Missouri, 
 an indictment for house breaking under the 
 statute, must allege the manner of the 
 breaking, in order to show the exact offense 
 intended to be charged. Connor v. State, 
 14 Mo. 561. In New Hampshire, it was 
 held that the offense of entering a house in 
 the night, without breaking, was included 
 in an indictment for breaking and entering. 
 State V. Moore, 1 2 New Ilamp. 42. 
 
 38. Description of premises. It is suffi- 
 cient to describe the house in the indict- 
 ment by the word "mansion." Com. agst. 
 Pennock, 3 Serg. & Rawle, 199. 
 
 39. An indictment for burglary charged 
 that the crime was committed in the dwell- 
 ing-house of W. He occupied two apart- 
 ments in the house, and there were several 
 rooms tenanted by other persons. The outer 
 or hall door was common to all the occu- 
 pants. Held that the rooms occupied by 
 W. were properly described in the indict- 
 
 ment as his dwelling-house. People v. Bush, 
 3 Parker, 552. 
 
 40. An indictment for bui'glary chaiged 
 the prisoner with having broken and entered 
 "the storehouse building of the Gulf Brew- 
 ery, in which said storehouse building, 
 goods, chattels, personal property, beer, ale, 
 and other valuable things were kept for use, 
 sale and deposit, with intent," &c. .Ufjon 
 the trial, the "Gulf Brewery" was proved 
 to be a corporation, and the premises broken 
 into, consisted of one or more rooms in the 
 basement of a court-house, which for several 
 years had been occupied by the " Gulf 
 Brewery "for storing beer, and which was 
 separated from the other rooms in the base- 
 ment by partition walls with doors which 
 were kept locked, the keys remaining in the 
 jjossession of the agents of the corporation. 
 The alleged burglary consisted in breaking 
 the door leading into these apartments, the 
 prisoner having gained access to the base- 
 ment through an open window into a hall 
 occujjied for public purposes. Held, that 
 the apartments of the Gulf Brewery were 
 properly described to convict the defendant 
 of burglary in the third degree. People 
 V. McCloskey, 5 Parker, 57. 
 
 41. An indictment charged that the de- 
 fendants broke and entered " a certain 
 building called a bank, being the bank of 
 the New Hampshire Savings Bank, in Con- 
 cord." The building was owned by the 
 Merrimack County Bank. There were two 
 entrances to the building in which the Sav- 
 ings Bank was kept, one leading to the 
 rooms occupied by the Merrimack County 
 Bank, the other to the rooms of the Savings 
 Bank and other parts of the building. All 
 the rooms except those occupied by the 
 Merrimack County Bank as their banking 
 rooms, were leased and occupied by tenants. 
 The part occupied by the Merrimack County 
 Bank was separated from the rest of the 
 building by a partition, and had no connec- 
 tion with the other parts. The Savings 
 Bank had exclusive possession of their 
 rooms lor their bank. Held that the place 
 of the alleged offense was properly described 
 in the indictment. State v. Rand, 33 New 
 Ilamp. 216.
 
 00 
 
 BURGLAEY. 
 
 Indictment. 
 
 > 
 
 42. Where tliere -were two statutes, one 
 punishing the offense of breaking in the 
 night into an office adjoining a dwelling- 
 house, and another, that of l)reaking in the 
 night into an office not adjoining a dwell- 
 ing-honse, the punishment of both being 
 similar, it was held not necessary to allege 
 whether the office was adjoining^, or not, to 
 the dwelling house. Lamed v. Com. 12 
 Mete. 240. 
 
 43. An indictment for burglary which de- 
 scribed the premises as " the warehouse of 
 W. M., at Scioto county," was held sufficient. 
 Spencer v. State, 11 Ohio, 401. 
 
 44. Ownership of building. In Massachu- 
 setts, an indictment for breaking and enter- 
 ing the building of another, which did not 
 allege the ownership of the building, was 
 held fatally defective. Com. v. Perris, 108 
 Mass. 1. In Iowa, an indictment under the 
 statute (Revision, § 4235), for breaking and 
 entering a building in which valuable things 
 are kept for use, must set out the owner of 
 the building, if known, or if not known, it 
 must be so stated. State v. Morrisey, 22 
 Iowa, 158. 
 
 45. An indictment for burglary may lay 
 the ownership of the house in a married 
 woman who lives apart from her husband, 
 and has the occupancy and control of it. 
 Butcher v. State, 18 Ohio, 708. Describing 
 the building entered as "the property of 
 the estate of Mrs. L.," is sufficient, though 
 it should appear that Mrs. L. was dead 
 before the alleged time of the commission of 
 the offense. Anderson v. State, 48 Ala. G65 ; 
 s. c. 2 Green's Crim. Reps. G20. 
 
 46. In an indictment for entering a room 
 with intent to commit larceny, the owner- 
 ship of the room may be alleged to be in a 
 person who hires the room from the lessee 
 of the building. People v. St. Clair, 38 Cal. 
 137. Where the building alleged to have 
 been entered, was described as the shop of 
 William S. Amigh, it was held no variance 
 that the shop was occupied in the business 
 of one Winters, that Amigh was his agent, 
 hired and paid for the shop and had it 
 under his charge. People v. Smith, 1 Par- 
 ker, 329. 
 
 47. In Massachusetts, where a shop is 
 
 occupied by tenants in common, an indict- 
 ment under the statute (R. S. cli. 133, § 11), 
 for breaking and entering it in the night 
 time and stealing therein, may describe it 
 as the proiDcrty of either. Com. v. Thomp- 
 son. 9 Gray, 108. 
 
 48. Where two railroad companies jointly 
 had the exclusive possession and control of 
 a depot under a lease from the owner, it 
 was held that an indictment for breaking 
 and entering the depot, properly described 
 it as belonging to such companies. State 
 v. Scripture, 42 New Hamp. 485. 
 
 49. Where the house is occupied by a 
 servant, clerk or employee, who has no 
 estate therein as lessee or tenant at will or 
 at suffrance, an indictment for burglary 
 should charge it to be the house of the 
 owner. State v. Outlaw, 72 N. C. 598. 
 
 50. Where an indictment for burglary 
 charges that the defendants broke and 
 entered "the City Hall of the city of 
 Charlestown," it was held that this was a 
 sufficient averment of ownership in the 
 city. Com. v. Williams, 2 Cush. 582. 
 
 51. An indictment for burglary need not 
 allege that any one was in the house at the 
 time of the alleged breaking. The State v. 
 Reid, 20 Iowa, 413. 
 
 52. Time of breaking. It is sufficient to 
 allege, generally, that the burglary was 
 committed in the night ; and if a particular 
 hour is named, it need not be proved. 
 People V. Burgess, 35 Cal. 115; State v. 
 Robinson, G Vroom (35 N. J.) 71. 
 
 53. An indictment for burglary is suffi- 
 cient which charges that the offense was 
 committed on a specified day, "about the 
 hour of twelve, in the night of th^ same 
 day." State v. Seymour, 3G Maine, 225. 
 
 54. In Massachusetts, the averment that 
 the breaking and entering were in the night 
 is deemed equivalent to an allegation that 
 the offense was committed between one hour 
 after sun-setting on one day, and one hour 
 before sun-rising on the next day. Com. v. 
 Williams, 2 Cush. 582. 
 
 55. In New York, an indictment for 
 burglary in the third degree need not charge 
 that the offense was committed in the day- 
 •time. Butler v. People, 4 Denio, 68.
 
 BUEGLAKr. 
 
 91 
 
 Indictment. 
 
 56. In Connecticut, an information for 
 burglary wliicli eliargecl that the prisoner 
 " feloniously and burglariously " broke and 
 entered, without stating that the acts were 
 done in the night, or at what hour they were 
 done, after a verdict of guilty and judgment 
 was held fatally defective. Lewis v. State, 
 16 Conn. 32. And see Mark's Case, 4 Leigh, 
 658. 
 
 57. Must aver intent. An indictment 
 for burglary must charge a felonious intent. 
 State V. Eaton, 3 Harring. 554 ; Bell v. 
 State, 48 Ala. 684 ; otherwise, as to an in- 
 dictment for breaking and entering a house 
 in the day time. Davis v. State, 3 Cold. 
 Tenn. 77. 
 
 58. It is not enough in an indictment for 
 burglary to allege an intention to commit a 
 felony, but the particular offense must be 
 stated, and the facts set forth. Wilburn v. 
 State, 41 Texas, 237 ; State v. Lockhart, 24 
 Ga. 420. It is otherwise in New York under 
 the Revised Statutes. Mason v. People, 26 
 N. Y. 200, Emott, J., contra. 
 
 59. An indictment for breaking and enter- 
 ing a dwelling-house in the night, and steal- 
 ing, need not charge an intent to steal. Jones 
 v. State, 11 New Hamp. 269 ; Com. v. Brown, 
 3 Rawle, 207. 
 
 60. An indictment which alleges that A. 
 and B. had " in their possession " on a certain 
 day burglars' tools sufficiently charges a 
 joint possession ; and an indictment which 
 alleges an intent to use such tools need not 
 describe the buildings intended to be en- 
 tered; or the property intended to be taken, 
 or mention the name of the owner. Com. 
 V. Tivnon, 8 Gray, 375. 
 
 61. An indictment forbreal^ing and enter- 
 ing a dwelling-house with intent to commit 
 a rape need not allege an intent " then and 
 there^'' nor need the crime of rape be fully 
 and technically set forth. Com. v. Doherty, 
 10 Cush. 52. 
 
 j^ 62. Averment of larceny. The charge 
 of larceny is not essential to constitute 
 burglary, the mere intent to commit larceny 
 being sufficient. If therefore, the allegation 
 of larceny is wholly defective, there will still 
 remain sufficient to sustain a conviction. 
 
 Larned v. Com. 13 Mete. 240 ; State v. Ayer, 
 3 Fost. 301. 
 
 63. Burglary and larceny committed in 
 the night may be included in the same in- 
 dictment. State V. Colter, 6 R. L l!)S; 
 Breese v. State, 13 Ohio, N. S. 146; Shep- 
 herd V. State, 42 Texas, 501 ; Davis v. State, 
 3 Cold. Tenn. 77; State v. Ah Sam, 7 Nev. 
 127. And the prisoner may be acquitted of 
 burglary, and convicted of the la/ceny ; but 
 a general verdict of guilty, will cover both 
 offenses. State v. Brady, 14 Vt. 353. 
 
 64. An indictment charging that the de- 
 fendant broke and entered the dwelling- 
 house of one i^erson with intent to steal his 
 goods, and having so entered, stealing and 
 carrying away the goods of another person, 
 is not bad for duplicity. State v. Brady, 
 swpra. 
 
 65. Judgment will not be arrested after a 
 general verdict of guilty under an indict- 
 ment for breaking and entering a building 
 and stealing therein, if the indictment prop- 
 erly allege the larceny of a single article. 
 State V. Bartlett, 55 Maine, 200. 
 
 66. An indictment for burglary with intent 
 to steal goods and chattels, need not describe 
 the goods. Spencer v. State, 13 Ohio, 4C1 ; 
 Josslyn V. Com. 6 Mete. 236 ; or state the 
 value of the things intended to be stolen. 
 Hunter v. State, 29 Ind. 80 ; Wicks v. State, 
 44 Ala. 398. Contra^ as to the averment of 
 value, People v. Murray, 8 Cal. 519. 
 
 67. An indictment for entering a dwelling- 
 house with intent to steal, may charge in 
 different counts the ownership of the goods 
 to be in different persons. People v. Thomp- 
 son, 28 Cal. 214. 
 
 68. An indictment for breaking and enter- 
 ing a shop, and stealing therein certain 
 property of A. and B., need not allege that 
 A. and B. were partners ; and proof that they 
 were in fact partners, and that the property 
 stolen l)clouged to the firm, will not consti- 
 tute a variance. Com. v. O'Brien, 12 Allen, 
 183. 
 
 69. Place of trial. In New York, burg- 
 laries may be tried out of their proper coun- 
 tie.>! in certain special cases, that is where 
 the goods burglariously taken are carried 
 into another county l)y the offenders; but
 
 92 
 
 BURGLARY. 
 
 Evidence. 
 
 this is by positive law, and not because tbe 
 burglary was actually committed in the 
 county wiiere the indictment is found, or in 
 judgment of law is considered to have been 
 cdmmitted there. The fact must therefore 
 be set out which brings the case within the 
 statute. But in the case of an indictment 
 for a simple larceny found in a couuty into 
 which the thief has carried the property 
 stolen in another county, the law adjudges 
 that the offense was in truth committed 
 there, and hence there is no occasion for a 
 statement in the pleading of what occurred 
 in the other county. Haskins v. People, 10 
 N. Y. 344. 
 
 3. Evidence. ^ 
 
 70. The breaking. To authorize a con- 
 viction for burglary, it must be proved that 
 the doors were shut. State v. Wilson, Coxe, 
 439. Evidence of merely such an entrance 
 as would enable the party injured to main- 
 tain trespass will not be sufficient, nor proof 
 of an entrance obtained by stratagem, with- 
 out an actual breaking or its equivalent. 
 State V. Newbergin, 25 Maine, 500. In. 
 Ohio, proof of the constructive breaking or 
 a jail is sufficient to sustain a conviction for 
 a forcible breaking and entering. Dutcher 
 V. State, 18 Ohio, 308. Proof of breaking 
 out of a house will not sustain an indictment 
 for breaking, entering and stealing. State 
 V. McPherson, 70 N. C. 239; s. c. 2 Green's 
 Crim. Reps. 737. 
 
 71. Time and place. On the trial of an 
 indictment for burglary, the prosecution 
 was peinnitted to prove, against the objec- 
 tion of- the defendant, that the offense was 
 committed at a time and place admitted to 
 be other than, and distinct from, those 
 mentioned or intended to be charged in the 
 indictment. Eeld error. People v. Barnes, 
 48 Cal. 551. It is not material to prove 
 whether or not there was sufficient light to 
 distinguish a man's face. Thomas v. State, 
 5 How. Miss. 20. 
 
 72. Under a statute making it a crime to 
 break and enter a shop with a felonious in- 
 tent, a person may be convicted for breaking 
 and entering a store. State v. Smith, 5 La. 
 An. 340. 
 
 73. An indictment for. burglary and lar- 
 ceny " in a certain building, to wit, the shop 
 of J. D.," is supported by proof that the 
 building in which the complainant had his 
 shop contained also several other rooms 
 occupied by tenants. Com. v. Bowden, 14 
 Gray, 103. 
 
 74. An indictment for burglary charged 
 the breaking into and entering a store in 
 which goods were kept for use, sale and 
 deposit. The proof showed a breaking and 
 entering into an inner room of a building, 
 which room was not a store but a mere 
 business office of the board of underwriters. 
 Held that the variance was fatal. People v. 
 Marks, 4 Parker, 153. 
 
 75. The intent. Under an indictment for 
 burglary, it need not be proved that goods 
 were actually stolen. It is sufficient if the 
 offense was committed with that intention. 
 Olive V. Com. 5 Bush, 376. The larceny, if 
 proved, is sufficient evidence of the intent. 
 State V. Moore, 12 New Hamp. 42. 
 
 } "O'B. The offense of burglary is complete by 
 the breaking and entering with intent to 
 steaL'^ The actual larceny, although when it 
 can be proved the most conclusive evidence 
 that the breaking and entering was to steal, 
 need not be charged in the indictment, and 
 when charged the proof of it is not neces- 
 sarily the only proof of the intent. ' But 
 there must be proof of some fact or circum- 
 stance, act or declaration of the prisoner, in 
 addition to the proof of the mere breaking 
 and entering, from which the jury can find 
 the intentTj People v. Marks, 4 Parker, 153. 
 In New Hampshire, where an actual stealing- 
 was charged in an indictment for burglary, 
 it was held that proof of an intent to steal 
 was not sufficient. Jones v. State, 11 New 
 Hamp. 269. 
 
 77. The intent with which the defendant 
 entered may be proved by circumstances 
 tending to show that a felony was com- 
 mitted in a store adjoining. Osborne v. 
 People, 2 Parker, 583. 
 
 78. On the trial of an indictment for 
 breaking and entering a dwelling-house 
 with intent to commit a rape, the effects of 
 the alleged violence upon the person of the 
 
 -f;
 
 BURGLARY. 
 
 93 
 
 Evidence. 
 
 female may be proved. Com. v. Doberty, 
 10 Cush. 53. 
 
 79. The premises. To sustain an in- 
 dictment for burglary in a dwelling-house, 
 it must be proved that some one lived in 
 the bouse. Fuller v. State, 48 Ala. 273. 
 
 80. In burglary, the tenure by whicli the 
 occupier holds the premises is imma- 
 terial. An indictment alleged the owner- 
 ship of a storehouse broken into to be 
 in A. and B. It was proved to have 
 been the property of A., but that he and 
 B. carried on mercantile business in it, 
 and owned the goods kept therein for sale. 
 The court charged that if A. and B. were 
 doing business in the house at the time it 
 would be a sufficient ownership. Held cor- 
 rect. White V. State, 49 Ala. 344. 
 
 81. On the trial of an indictment for 
 breaking and entering in the night time the 
 building of J. F., " the said building being 
 then and there occupied by said J. F. as a 
 dwelling-house," it was proved that J. F. 
 left the house and deserted his family two 
 weeks before the alleged burglary. Held 
 no variance. Com. v. Dailey, 110 Mass. 
 503. 
 
 82. On the trial of an indictment for 
 burglary in breaking and entering a store- 
 house, parol evidence of possession under a 
 written lease is sufficient without the pro- 
 duction of the lease. Houston v. State, 38 
 Ga. 1G5. 
 
 33. Presumptions. Where it was proved 
 that the door had been forced open, it was 
 held that the jury might infer that it had 
 been previously shut. Com. v. Merrill, 
 Thach. Crim. Cas. 1. On a trial for burg- 
 lary alleged to have been committed in the 
 apartments of one of several tenants who oc- 
 cupied the same building, the wife of the 
 complainant testified that she had latched 
 the door when she left the room, about 
 fifteen minutes before siie returned and dis- 
 covered the accused ; that the hall door was 
 also latched when she saw it about ten 
 minutes previous, and that both doors were 
 generally kept closed. Held^ that this evi- 
 dence was properly admitted. People v. 
 Bush, 3 Parker, 552. 
 
 84. It is not a presumption of law that a 
 
 felonious breaking into a dwelling-house 
 was committed in the night rather than the 
 day. State v. Whit, 4 Jones, 349. On the 
 trial of an information for burglary, the 
 judge charged the jury as a matter of law, 
 that, " when a building is left secure at 
 night, and found early in the morning 
 broken open, the presumption is that it was 
 broken open in the night, and that this pre- 
 sumption obtains, though not so strongly, if 
 the hour of discovery be so late as half past 
 seven o'clock in the morning of the loth of 
 April." Held error, the question as to the 
 time of the breaking and entering being one 
 of fact for the jury. State v. Leaden, 35 
 Conn. 515. 
 
 85. Identification by voice alone of a per- 
 son charged with burglary, whose voice had 
 been joreviously heard by the witnesses but 
 once, may be sufficient. Com. v. Williams, 
 105 Mass. 62. 
 
 86. On the trial of an indictment for 
 burglary, evidence that the defendant was 
 seen in the neighborhood on the day preced- 
 ing the night of the robbery ; that he made 
 inquires about purchasing tobacco in a man- 
 ner which showed that they were mere pre- 
 texts ; that he apparently had some connec- 
 tion with two other strangers, is com23etent, 
 in connection with the testimony of the 
 owner of the house entered, that the de- 
 fendant was there the same day, and that 
 there were two engaged in committing the 
 oflfense, although the defendant admitted 
 that he was at the house that afternoon- 
 Com. V. Williams, supra. 
 
 87. Under an indictment charging that 
 the defendant broke and entered a shop and 
 stole certain articles therefrom, at the same 
 time jointly with his brother, it is proper to 
 show that the two brothers occupied rooms 
 at their father's house at the same time; that 
 some of the stolen articles were found in the 
 house, part of them in the room occupied by 
 the brother, and part mingled with the de- 
 fendant's property, and that some of the 
 property was found in the defendant's room 
 at another place. Com. v. Parmenter, 101 
 Mass. 211. 
 
 88. Evidence upon the question of guilty 
 or not guilty of a burglary charged, is com-
 
 94 
 
 BUKGLAKY. 
 
 Evidence. 
 
 potent to prove the attempt to commit it. 
 People V. Lixwtou, 56 Barb. 126. 
 
 89. Possession of burglars' tools. On 
 the trial of an indictment for burglary, 
 burglarious tools found in the possession of 
 the defendant soon after the commission of 
 the offense, may be given in evidence when 
 they constitute a link in the chain of cir- 
 cumstances which tend to connect the 
 defendant with the particular burglary 
 charged. People v. Winters, 29 Cal. 658. 
 Evidence that such tools were found in a 
 trunk belonging to the defendant eight days 
 after the crime was committed, held proper. 
 State V. Dubois, 49 Mo. 573. 
 
 90. Proof that burglarious implements 
 found at the place of the burglary were 
 made for T., held competent to show the 
 guUt of the prisoner, the prosecution having 
 given other evidence connecting the prisoner 
 with T. in the commission of the crime. 
 Clark V. People, 5 N. Y. Supm. N. S. 33. 
 
 91. The following was held sufficient evi- 
 dence of an attempt to commit a burglary : 
 The prisoner, having rccounoitered the 
 premises, agreed with tlie witness that 
 about one o'clock that night they would 
 commit a burglary by entering a certain 
 store; in pursuance of such design and 
 agreement, at about the hour of one they 
 went to the store through the alley in its 
 rear; the prisoner carried, or caused to be 
 carried there, a set of burglar's tools to aid 
 them in committing the burglary; when 
 they arrived, the prisoner suggested that 
 none of the tools were strong enough to en- 
 able them to force an entrance; they then 
 concluded to enter a blacksmith's shop close 
 by, in order to get a crowbar, or some other 
 tool with which to break into the store, and 
 before they entered the shop an alarm was 
 given and they were intercepted and pre- 
 vented from executing their intended pur- 
 pose. People V. Lawton, 56 Barb. 126. 
 
 92. Possession of stolen property. On 
 the trial of an indictment for burglary and 
 larceny, it is not erroneous for the court to 
 charge the jury that the finding of the stolen 
 property shortly after it was taken, is pre- 
 sumptive evidence of the guilt of the person 
 in whose possession it was found, it being 
 
 competent, under the indictment, to convict 
 the prisoner either of simple larceny or of 
 burglary and larceny. It is not erroneous for 
 the court in such case to refuse to charge that 
 the finding of the property in the possession 
 of the defendant unaccompanied by any sus- 
 picious circumstances, was no evidence that 
 she committed the burglary ; it being some 
 evidence of that f?ct even if not prima facie 
 of her guilt of the burglaiy. Jones v. Peo- 
 ple, 6 Parker, 126 ; Davis v. People, 1 lb. 4^7. 
 
 93. Other offense. On a trial for burglary, 
 it is not competent to prove that the defend- 
 ant committed a burglary in the same house 
 on a former occasion. Lightfoot v. People, 
 16 Mich. 507, Graves, J., dissenting. 
 
 94. On the trial of an indictment for 
 breaking and entering the City Hall of 
 Charlestown, the prosecution ofi'ered evi- 
 dence to prove that the ward of a certain 
 key found in the prisoner's possession was 
 made and fitted by him to open the door of 
 the Lancaster Bank building. Held, that 
 such evidence was improper. Com. v. Wil- 
 son, 2 Cush. 590. 
 
 95. On a trial for burglary in breaking 
 open a barn and stealing goods therefrom, 
 the evidence showed that the goods were 
 discovered five days subsequent to the burg- 
 lary on the prisoner's boat. Held, error to 
 allow the prosecution to prove that ether 
 goods were found on the prisoner's boat 
 which had been stolen from another person 
 two or three weeks previous to the trans- 
 action in question. Hall v. People, 6 Parker, 
 671. 
 
 96. On a trial for burglary, other criminal 
 acts than those charged may be proved to 
 show guilty knowledge, establish identity, 
 make out the res gestce, or complete the 
 chain of circumstantial evidence. Mason v. 
 State, 42 Ala. 532. But evidence of other 
 distinct burglaries committed by the de- 
 fendant is 2^rima facie irrelevant, and when 
 the record does not show any ground for the 
 admission of such evidence, the court will 
 not examine the record of another case 
 between the same parties to show that no 
 error was committed. Mason v. State, 43 
 Ala. 532.
 
 BURGLARY.— CEMETERY.— CERTIORAKI. 
 
 95 
 
 Verdict. 
 
 Desecration of. 
 
 When it will Lie. 
 
 4. Verdict. 
 
 97. Form. On a trial for burglary, the 
 following verdict, " We, the jury, find the 
 accused guilty of burglary, and find that 
 the offense was committed since the first day 
 of June, 18G6, by agreement of counsel," is 
 sufficient. Mountain -v. State, 40 Ala. 344. 
 Byrd, J., dissenting. 
 
 98. The prisoner may be found guilty of 
 an attempt to commit the burglary charged 
 in the indictment. People v. Lawton, 56 
 Barb. 136. 
 
 J8d. In case of larceny. Under an in- 
 i/^lictmcnt charging a breaking, entering, and 
 stealing, the defendant may be acquitted of 
 the burglary and found guilty of the larceny. 
 Clarke v. Com. 25 Graft. 908; State v. 
 Crocker, 3 Harring. 559 ; People v. Snyder, 
 2 Parker, 23 ; State v. Brandon, 7 Kansas, 
 106 ; State v. Warner, 14 Ind. 572. 
 ^_^^»^0. In Maine, the prosecuting attorney 
 may enter a nolle prosequi as to the breaking 
 and entering, and leave the defendant to be 
 punished for the larceny only. Anon. 31 
 Maine, 592, 
 
 101. In Alr.bama, under the statute (Rev. 
 Code, § 3695), under an indictment charging 
 that the defendant broke and entered a 
 building with intent to steal, and feloniously 
 took and carried away personal property, 
 there may be a conviction of either burglary 
 or larceny, or of both. But in the latter 
 case the defendant can be sentenced to only 
 one punishment. Bell v. State, 48 Ala. 684. 
 
 102. Where the breaking and entering and 
 stealing are charged in distinct counts as 
 separate offenses, committed at different 
 times, the defendant may be convicted on 
 both, and a judgment rendered on both. 
 Joslyn V. Com. 6 Mete. 236. An indictment 
 contained two counts, the first of which 
 alleged that the defendant broke and en- 
 tered a house with intent to steal, and stole 
 therefrom certain goods. The second count 
 charged a simple larceny of the same goods. 
 Held, that the first count was for house- 
 breaking, and not larceny, and that the jury 
 might find the defendant guilty on each 
 count, and fix a several ])unishment for each 
 offense. Speers v. Com. 17 Graft. 570. See 
 Vaujhaa v. Com. lb. 576. 
 
 Carnjing Couccalci) 
 
 See Concealed weapons. 
 
 Ccmctcn). 
 
 1. Desecration of. On the trial of an 
 indictment for wrongfully desecrating and 
 disfiguring a public burying ground, it is 
 competent to prove that a particular tract 
 of land is such, by showing its use and 
 occupation for that purpose by others than 
 the owners of the soil, and if it has once 
 acquired that character it does not cease to 
 have it by mere disuse. Com. v. Wellington, 
 7 Allen, 299. 
 
 2. Under an indictment for wrongfully 
 desecrating and disfiguring a public burying 
 ground particularly described by metes and 
 bounds, the whole description must be 
 proved exactly as set forth. It is, therefore 
 erroneous to charge the jury that the de- 
 fendant may be convicted if it is shown 
 that a part of the land described in the 
 indictment as a burying ground has been so 
 used, and that the acts were done by him in 
 that part. Com. v. Wellington, supra. 
 
 3. Removal of dead bodies. A statute 
 which empowers boards of health " to make 
 all regulations which they judge necessary 
 concerning burial grounds and interments 
 within their respective limits " is not re- 
 stricted in its operation to acts done within 
 burial grounds, but includes the removal of 
 dead bodies. Com. v. Goodrich, 13 Allen. 
 546. 
 
 See Disinterring the dead. 
 
 Certiorari. 
 
 1. When it will lie. 
 
 2. Form. 
 
 3. Service. 
 
 4. Return. 
 
 5. Judgment. 
 
 1. When it will lie. 
 1. Basis of appbcation. An application
 
 90 
 
 CEETIORARI. 
 
 When it will Lie. 
 
 Form. 
 
 for a writ of certiorari is based upon the 
 irregularity of the proceedings in the cause 
 apparent upon the record and documents 
 properly before the court upon a return of 
 the same to the magistrate. Stratton v. 
 Com. 10 Mete. 217. 
 
 2. "When proper. A certiorari is the 
 proper writ, where a statute creating an in- 
 ferior criminal court has provided no meaug 
 to review its judgment. John v. State, 1 
 Ala. 95. It will lie to all inferior jurisdic- 
 tions, the proceedings of which cannot be 
 corrected by writ of error, to remove their 
 proceedings into the Superior Court. Bob 
 V. State, 2 Yerg. 176. When a removal of 
 the case is essential to the due administra- 
 tion of justice, an allowance of the writ 
 will be granted to the defendant as of 
 course. Com. v. McGinnis, 2 Whart. 117; 
 Com. V. Profit, 4 Binn. 428 ; Com. v. Lyon, 
 4 Dall. 303 ; People v. Ptunkel, 6 Johns. 334. 
 
 3. "When demandable. Where a person 
 entitled to an appeal is denied such right, 
 or deprived of it by fraud, or accident, or 
 inability to comply with the requirements of 
 the law, he is entitled to have the whole case 
 brought ujj by certiorari. State v. Bill, 13 
 Ired. 373. 
 
 4. Under the statute of New York. The 
 office of a writ of certiorari after trial and 
 before judgment, under the New York Re- 
 vised Statutes, is to bring up the indictment, 
 the proceedings on the trial, and any bill of 
 exceptions that may have been taken ; and it 
 presents for review only the questions aris- 
 ing on the indictment and bill of exceptions. 
 People v. Reagle, GO Barb. 527; Ex jmrte 
 Vermilyea, G Cow. 555. A certiorari to 
 remove an indictment from the Oyer and 
 Terminer to the Supreme Court, may issue 
 at the instance of the counsel for the prose- 
 cution. People V. Baker, 3 Parker, 181. 
 
 5. Where there has been a conviction in 
 the Oyer and Terminer, and sentence is 
 stayed, the proceedings may be removed to 
 the Supreme Court by certiorari. But when 
 there is a conviction and judgment, the pro- 
 ceedings can only be so removed by writ of 
 error ; and when the irregularity is of such 
 a nature that it cannot be properly embraced 
 in the return to the writ of error, but the I 
 
 same has become part of the proceedings, a 
 certiorari may also issue to bring up such 
 proceedings. Where the irregularity com- 
 plained of has not been introduced into the 
 record or proceedings, so as to constitute it 
 a proper subject to be returned to the writ 
 of error or certiorari, affidavits may be read 
 upon the argument after the writ of error 
 has been returned, but not before, to correct 
 an error arising out of an irregularity preju- 
 dicial to the rights of the prisoner, when he 
 has no other legal mode of redress. Willis 
 V. People, 5 Parker, G21. 
 
 6. In New York, where after the prisoners 
 had been sentenced in the Court of Special 
 Sessions, counsel desired the court to note 
 an appeal to the Court of General Sessions 
 for a rehearing, and it was objected that 
 after such appeal, the court erred in commit- 
 ting the prisoners to the penitentiary, it was 
 held that the action of the court could not 
 be reviewed by certiorari. The remedy in 
 such case, would be to offer the Special Ses- 
 sions bail for trial at the General Sessions, 
 and if this were refused, to procure the 
 release of the prisoner pending the new 
 trial, upon habeas corpus issued for the pur- 
 pose of fixing and taking such bail. Gill v. 
 People, 5 N. Y. Supm. N. S. 308. 
 
 2. Form. 
 
 7. In general. A certiorari for the re- 
 moval of an indictment against four, will not 
 remove an indictment which charges only 
 three. Com. v. Franklin, 4 Dallas, 316. 
 
 8. It is proper to insert a special clause 
 in a certiorari, directing it to operate as a 
 supersedeas, and also to direct a special writ 
 of supersedeas to the sheriflf to delay execu- 
 tion until the case is heard and determined. 
 John V. State, 1 Ala. 95. 
 
 9. A common-law certiorari to remove a 
 summary conviction had before a magis- 
 trate, is not confined to questions touching 
 the jurisdiction of the subordinate tribunal 
 and the regularity of its proceedings, but 
 also brings up the question whether there 
 was any evidence to warrant the conviction. 
 Mullius V. People, 24 N. Y. 399. 
 
 10. In special cases. For the form of a 
 certiorari to bring up the proceedings from
 
 CEKTIORAET. 
 
 Service. 
 
 Return. 
 
 Judgment. 
 
 a Court of Special Sessions, and for a form 
 of the return thereto, see People v. Benja- 
 min, 2 Parker, 201. For the form of such a 
 writ to remove a decision on habeas corjms 
 and the return to the same, see People v. 
 Cavanagh, lb. GoO. 
 
 3. Service. 
 
 11. Upon whom made. The certiorari may 
 be served bj' delivering it to the clerk of 
 the court below, during vacation, who may 
 return it immediately, notwithstanding it 
 be directed to the court. Lambert v. Peo- 
 ple, 7 Cow. 103. It should be directed to 
 the court, and not to the clerk. The ap- 
 pellate court will not grant a rule upon the 
 clerk of the court below, to return. Such 
 rule should be directed to the court below, 
 who should order their clerk to return, if he 
 refuse. lb. 
 
 4. Return. 
 
 12. Order for. An order that " the trial 
 of the jirosecution shall be removed," &c., 
 is sufficient, without directing that "a copy 
 of the record of the said cause be re- 
 moved," &c. State V. Shepherd, 8 Ired. 
 195. 
 
 13. Contents of. When the certiorari is to 
 bring up a record to be given in evideuce, or 
 for other collateral purpose, the tenor only 
 of the record is to be called for and certi- 
 fied ; but it is otherwise where the court 
 above is to take further proceedings. The 
 indictment presented by the grand jury 
 does not come up with the certiorari, but 
 the record only which contains the whole 
 proceedings. State v. gibbous, 1 South. 40. 
 
 14. In sending up a transcript of record 
 in obedience to a certiorari, the transcript 
 need not be affixed to the writ of certiorari, 
 if enough appears to show the court that it 
 is in fact the proper transcript. State v. 
 Carroll, 5 Ired. 139. 
 
 15. In New York, where judgment is 
 stayed by a certificate, the statute requires 
 the district attorney to remove the indict- 
 ment and bill of exceptions by certiorari 
 from the Oyer and Terminer into the Su- 
 preme Court, and the clerk is required to 
 return thereto a triinscript of the indict- 
 
 7 
 
 ment, bill of exceptions, and the certificate 
 staying judgment. Hill agst. People, 10 N. 
 T. 4G3. 
 
 16. Where the trial is before a magistraf.e 
 witliout a jury, a certiorari may require the 
 return of the evidence for the consideration 
 of the superior tribunal, though it is other- 
 wise where there has been a trial by jury. 
 Barringer agst. People, 14 N. Y. 593. 
 
 17. In New York, the magistrate to whom 
 a certiorari is issued to remove proceedings 
 had before him, under the statute respecting 
 disorderly persons, must set out in his re- 
 turn all the proceedings before him. Ben- 
 nac V. People, 4 Barb. 164. 
 
 18. Correction of. The statute of New 
 York, prescribing the contents of the return 
 to be made by the clerk in criminal cases, 
 and declaring that the court shall proceed 
 upon that return, and render judgment upon 
 the record before them, does not limit the 
 general power of the court to correct and 
 redress all errors, and for that purpose, to 
 bring before it such proceedings in a cause 
 not fully presented in the record made up 
 in the court below, as may be important to 
 enable it to do so. That portion of the 
 return which is additional to the formal 
 record of judgment and bill of exceptions, 
 if it describes facts which might be as- 
 signed for error, is entitled to like consid- 
 eration, and to have the same effect as if 
 returned by certiorari. Cancemi v. People, 
 18 N. Y. 128. 
 
 19. In New Jersey, when an indictment 
 has been removed, the court will allow a 
 rule to return the record to the court below 
 for the purpose of amending the caption. 
 State V. Jones, 4 Halst. 2. The record is 
 not sent with the writ, but the tenor only. 
 Nicholls V. State, 2 South. 542. Form of 
 record to be returned. lb. 74(5. 
 
 20. Cannot be refused. The court to 
 which the certiorari is directed has no 
 power to refuse to return the indictment. 
 State V. Hunt, Coxe, 287. 
 
 5. Judgment. 
 
 21. By what court rendered. In New 
 York, Vi^here an indictment is taken into the 
 Supreme Court by certiorari, and tried at
 
 98 
 
 CERTIOKAEL— COMMITMEA^T. 
 
 Judgment. 
 
 Jurisdiction of Court. 
 
 the circuit, it is competeut and proper for 
 the Supreme Court at general term, to pro- 
 nounce judgment. Cancemi v. People, 16 
 N. Y. 501. 
 
 22. Ground of. In Xew York, upon a 
 certiorari to a court of Special Sessions, the 
 Supreme Court cannot reverse the con- 
 viction on the ground that the verdict is 
 against the weight of evidence. But it may 
 look into any other errors in the proceedings 
 and judgment which appear on the face of 
 the return. Pulling v. People, 8 Barb. 384. 
 
 Cl)allcugc. 
 
 See Dueling; Trial. 
 
 £!]cat. 
 
 See False prktensss. 
 
 Commitment. 
 
 1. Jurisdiction of court. Where delay in 
 issuing a warrant of commitment was occa- 
 sioned by the bond and other proceedings 
 on the part of the relator to appeal from the 
 judgment, and the cause was not removed 
 by him from the Special Sessions, it was held 
 that the latter did not lose jurisdiction to 
 issue the warrant, by lapse of time. People 
 V. Kawson, 61 Barb. 619; s. p. People v. 
 Yates Gen. Sess. 5 Wend. 110. 
 
 2. In New York, a justice of the peace, on 
 an examination upon a comi^laint made be- 
 fore him in a criminal case, has not power to 
 commit a person to jail for refusing to be 
 sworn as a witness. People v. Webster, 3 
 Parker, 503. 
 
 3. Where a magistrate after an exami- 
 nation has decided that the person com- 
 plained against shall give security to keep 
 the peace, it is his duty to commit the ac- 
 cused if he refuses to do so; and he may is- 
 sue his warrant of commitment on the fol- 
 lowing day, although he has in the mean 
 time allowed the accused to go at large. 
 Gano V. Hall, 5 Parker, Gol ; 42 N. Y. 67. 
 
 4. Form and. requisites of the warrant. 
 The warrant of commitment should run in 
 the name of the State, and specify the offense 
 with which tiie defendant is charged, or of 
 which he has been convicted. Ex 2)iirte'Ro\\%, 
 5 Ark. 104. But when a bench warrant and 
 warrant of commitment are issued after in- 
 dictment, it is only necessary for them to 
 recite the presentment, and the crime gene- 
 rally. Brady v. Davis, 9 Ga. 73. 
 
 5. When a court in session orders a com- 
 mitment, the minute is sufficient authority 
 to the officer. No v.'rit is necessary. State 
 V. Heathman, Wiight, 690. 
 
 6 Where a mittimus was irregular so far 
 as it required the prisoner to pay a specified 
 sum as costs, but was regular iuothei- re- 
 spects, it was held that the clause relating 
 to costs might be rejected as surplusage. 
 State V. James, 37 Conn. 855 ; approving 
 matter of Sweatman, 1 Cow. 144. 
 
 7. Where two justices of the peace signed 
 a mittimus, and added the initials J. P., it 
 was held that the process was sufficient to 
 authorize an officer to hold the defendant, 
 State V. Manly, 1 Overt. 428. 
 
 8. In New York, no seal is necessary to 
 a warrant of commitment ; the statute only 
 providing that it shall be under the hand of 
 the magistrate. People v. Rawsou, 61 Barb. 
 619; Gano v. People, 5 Parker, 651; 42 N. 
 Y. 67. 
 
 9. A commitment is irregular in not show- 
 ing on its face that the justice had deter- 
 mined tliat there was probable cause to be- 
 lieve the prisoner guilty of the oiiensc with 
 which he stood charged. People v. Rhoner, 
 4 Parker, 166. * 
 
 10. Where on a charge of larceny the mag- 
 istrate temporarily commits the accused for 
 further examination, the commitment need 
 not state whether it is grand or petit larceny, 
 or what articles are alleged to have been 
 stolen. People v. Nash, 5 Parker, 473. 
 
 11. A commitment issued upon a con- 
 viction before a New York court of Special 
 Sessions was objected to on the ground that 
 it did not set forth that the defendants when 
 brought before the magistrate requested to 
 be tried before a court of Special Sessions, 
 or that having been required by the mag-
 
 COMMITMENT.— COMMOI^ DRUNKAED.— COMPLAINT. 99 
 
 Form and Requisites of the Warrant. 
 
 Who is. 
 
 Venue. 
 
 istrate to give bail, they omitted lor twenty- 
 four hours to do so, or whether they de- 
 manded a jury. Held that such statements 
 in the commitment were unnecessary. People 
 V. Moore, 3 Parker, 465. 
 
 12. A warrant of commitment for petit 
 larceny directing the officer to convey and 
 deliver the prisoner to the keeper of the 
 prison, and directing the keeper to safely 
 keep the prisoner until the expiration of six 
 months, and until he should pay the fine, is 
 in proper form. People v. Rawson, 61 Barb. 
 619. 
 
 13. A commitment which directs the jailer 
 to keep the prisoner " until discharged by 
 due order of law," is too general. The com- 
 mitment should be more specific, so as to 
 leave nothing to the jailer's judgment or 
 discretion as to when or under what circum- 
 stances the prisoner is entitled to his dis- 
 charge. But such a defect is not a ground 
 for a writ of certiorari. Kenney v. State, 5 
 R. I. 385. 
 
 Commoit Drunkavb. 
 
 1. "Who is. An habitual drunkard is one 
 who is in the habit of getting drunk, or who 
 is commonly or frequently so, although he 
 may not be constantly in that condition. 
 Where it was proved that A. used liquor to 
 excess on certain occasions, and a witness 
 said he had seen him the worse for liquor 
 several times, and another witness testified 
 that A. was a dissipated man, it was held 
 that the evidence tended to show that A. 
 was an habitual drunkard. State v. Pratt, 
 ■n Vt. 32:3. 
 
 2. Complaint. A complaint for being a 
 common drunkard which alleges that the 
 defendant at B., " on divers days and times, 
 not less than three times, within six months 
 last past, was drunk by the voluntary use of 
 intoxicating liquor, and so, on the day of 
 making the complaint, was a common 
 drunkard," is argumentative and insufficient. 
 Com. V. Whitney, 5 Gray, 85. But it need 
 not be shown that the defendant was drunk 
 in such a way as to disturb the public peace. 
 Co:n. V. Coniey, 1 Allen, 0. 
 
 3. Evidence. A person may be convicted 
 of being a common drunkard without proof 
 that he is constantly intoxicated, or even 
 that his drunkenness is of daily occurrence; 
 the word "common" in this connection im- 
 porting frequency. Com. v. McNamee, 113 
 Mass. 285. 
 
 4. Where it was charged that the de- 
 fendant was a common drunkard on the 1st 
 of Januaiy, " having been at divers days and 
 times since said 1st day of Januarjf drunk 
 and intoxicated," it was held that the evi- 
 dence must be confined to acts done on a 
 single day. Com. v. Foley, 99 Mass. 499. 
 See Intoxication as a defense. 
 
 Complaint 
 
 1. Venue. AVhen the county sufficiently 
 appears in the body of a complaint, the want 
 of venue in the margin, is not material. 
 Com. V. Quin, 5 Gray, 478. 
 
 2. Allegation of time. A complaint for 
 a violation of the law prohibiting the sale 
 of intoxicating liquor, which charges that 
 the sale was made on a certain day and 
 month, and at divers other times, without 
 stating the year, is insufficient ; and the 
 allegation of a former conviction without 
 stating the time of such conviction, is also 
 defective. State v. Kennedy, 36 Vt. 563. 
 
 3. A complaint to a magistrate who has 
 authority on a trial thereof to pass sentence 
 on the defendant, which alleges that the 
 offense was committed on " the third day of 
 June instant," without mentioning the year, 
 is insufficient, although it is recited at the 
 foot of the complaint, that it was "received 
 and sworn to on the 4th day of June, A. D. 
 1855." Com. V. Hutton, 5 Gray, 89. Where 
 the year of the commission of an ofi'ense is 
 stated in an indictment or complaint in 
 figures, without the letters "A. D." it will be 
 sufficient. Com. v. McLoon, lb. 91 ; Com. v. 
 Doran, 14 lb. 37 ; contra, Com. v. Sullivan, 
 lb. 07. 
 
 4. A complaint which alleges that the 
 defendant on Saturday, the 2d of August, 
 1856, permitted certain persons to play at 
 billiards " after the hour of six o'clock in
 
 100 
 
 COMPLAINT. 
 
 Necessary Averments. 
 
 Waiver of Objection. 
 
 the afternoon on Saturday, the 2d of August, 
 aforesaid," is sufficiently definite as to time. 
 Com. V. Crawford, 9 Gray, 128. 
 
 5. Necessary averments. Every person 
 is presumed to have a christian name until 
 the contrary is made to appear by proper 
 averment. "Where a complaint for assault 
 and batteiy only contained the initials of the 
 defendant's christian name, and did not 
 allege that he had no christian name or that 
 it was unknown, it was held that the com- 
 plaint was fatally defective, and that the ob- 
 jection could be raised by motion to quash. 
 Gardner v. State, 4 Ind. G32. Same held as 
 to indictment for forgery. Zellers v. State, 
 7 Ind. 659. 
 
 6. A complaint for disobeying an order of a 
 health officer, should either allege specifical- 
 ly the acts which the defendant neglected to 
 do, or at least that he did not comply with 
 the order. A general allegation of disobe- 
 dience is not sufficient; but it is otherwise 
 as to the averment that the order was "sub- 
 stantially as follows." The allegation that 
 the defendant " did disobey a lawful order 
 of the health officer of said city after the 
 same had been duly served upon him," is an 
 assumption and not an ucerment of the fact 
 of service, and therefore insufficient. And 
 where the complaint did not allege that the 
 city had imposed any penalty for the neglect 
 complained of, or that it had passed any 
 ordinance on the subject, it was held defect- 
 ive on that ground. State v. Soragan, 40 
 Vt. 450. 
 
 7. A complaint under a statute concern- 
 ing willful and malicious injuries to personal 
 property is bad which alleges the malicious 
 destruction of cabbages, in not showing that 
 the cabbages were personal property. Com. 
 V. Dougherty, 6 Gray, 349. 
 
 8. When the complaint misrecites the act 
 alleged to have been violated, it is fatally 
 defective. Com. v. Unknown, G Gray, 489. 
 But a complaint which charges an assault 
 upon two persons, is not for that reason bad. 
 Keuney v. State, 5 R. I. 385. 
 
 9. Conclusion. Where a complaint for 
 disobeying the order of a health officer con- 
 cluded " contrary to the form, force and 
 
 effect of the ordinance of said city," it was 
 held that it should have concluded against 
 the statute and the peace and dignity of the 
 State. State v. Soragan, 40 Vt. 450. 
 
 10. Execution. Under a statute (R. S. of 
 of Mass. ch. 135, § 2), requiring the magis- 
 trate to reduce the complaint to writing 
 " and cause the same to be subscribed by the 
 complainant," the signature must be at the 
 foot of the complaint. Com. v. Barhight, 9 
 Gray, 113. 
 
 11. Where a comjjlaint is made before a 
 justice of the peace by the complainant 
 personally, and the usual oath taken by the 
 justice to the complaint, which is signed 
 by the complainant by affixing his mark, 
 there need not be an attesting witness 
 to the mark. Com, v. Sullivan, 14 Gray, 
 97. 
 
 12. The certificate of the clerk of a police 
 court,tbat the complaint addressed to the jus- 
 tice was "received and sworn to," sufficiently 
 shows, in the absence of any evidence to the 
 contrary, that it was received and sworn to 
 before the court when in session. Com. v. 
 Calhaue, 110 Mass. 498. 
 
 13. Amendment. In New Hampshire a 
 complaint before a police court, which alleges 
 that the defendant broke and entered a 
 dwelling-house and committed an assault 
 and battery upon the owner, cannot be 
 amended by striking out the averment as to 
 the breaking and entering, so as to leave 
 it a complaint for simple assault and battery. 
 State V. Runnals, 49 New Hamp. 498. 
 
 14. Waiver of objection. The complaint 
 before the committing magistrate for assault 
 and battery was against Cahew; but the de- 
 fendant, whose name was Cahill, appeared 
 and answered without objection. Held, that 
 an exception taken on the trial, was prop- 
 erly overruled. State v. Thompson, 20 New 
 Hamp. 350. 
 
 15. In Vermont, the objection that a 
 memorandum of the witness is not subjoined 
 to a grand juror's comjDlaint, is in the na- 
 ture of a dilatory plea, and must be made at 
 the earliest possible time, otherwise it will 
 be deemed waived. State v. Norton, 45 Vt, 
 258.
 
 CONCEALED WEAPONS.— CONSPIRACY. 
 
 101 
 
 What are. 
 
 What Constitutes. 
 
 Couccalc& lU cap 0110, 
 
 1. What are. An instrument may be 
 deadly or not deadly, according to the mode 
 of using it, or the subject on which it is 
 used. Whether or not it is deadl^^ is in 
 general to be determined by the court. An 
 oaken staflF, nearly three feet long, an inch 
 
 .and a half in diameter at one end, and two 
 inches at the other, may be a deadly weapon. 
 State V. West, 6 Jones, 505. But when a 
 gun or pistol is used simjily as an instrument 
 to strike with, it is for the jury to determine 
 whether or not it is a deadly weapon. Shadle 
 V. State, 34 Texas, 572. A pistol that has no 
 lock, and can only be fired by the use of a 
 match, or in some other such way, is not a 
 pistol within the statute of Alabama prohib- 
 iting the carrying of concealed weapons. 
 Evins V. State, 4G Ala. 88. 
 
 2. A person who, in the room of another 
 in which there are several persons, has con- 
 cealed in his vest pocket a pistol is guilty of 
 a violation of the statute of Alabama against 
 carrying concealed weapons. Owen v. State, 
 31 Ala. 387. But in Tennessee, a person 
 who being armed with concealed deadly 
 weapons, assails another in a public meeting 
 with violent and opprobrious language, is 
 ,not liable to indictment. State v. Taylor, 3 
 Sneed, 6G2. 
 
 3. Complaint. In Massachusetts, a com- 
 plaint under the statute (Gen. Stats, ch. 164, 
 § 10), prescribing a penalty in case a person 
 had in his possession a dangerous weapon 
 when arrested by an officer, must show that 
 the defendant was lawfully arrested by 
 the oflScer. Com. v. O'Connor, 7 Allen, 583 ; 
 Com. V. Doherty, 103 Mass. 443. 
 
 4. Indictment. An indictment for un- 
 lawfully exhibiting a pistol, need not allege 
 that the pistol was loaded. Gamblin v. 
 State, 45 Miss. 058. 
 
 5. Evidence. Under an indictment al- 
 leging that the defendant carried " concealed 
 deadly weapons, to wit, a bowie knife and 
 also a dagger," it is sufficient to prove that 
 he carried either. Com. v. Howard, 3 Mete. 
 Ky. 407. "■ 
 
 6. A person having in his drawer a pistol 
 belonging to another, and being asked by a 
 
 minor to lend it to him, replied: " It is not 
 mine, but belongs to another m.an. I have 
 nothing to do with it. You can take it if 
 you choose. It was left hereby Mr, C, who 
 will come back in four or five days, and it 
 should be here when he returns and calls 
 for it." The minor then took the pistol. 
 Held that this was a violation of the statute 
 of Alabama (Session Acts of 1855, 1856, p. 
 17), making it a misdemeanor, " to sell, 
 give, or lend" deadly weapons to a minor. 
 Coleman v. State, 32 Ala. 581. 
 
 7. Construction and constitutionality 
 of statutes. For meaning of the word 
 " traveling," in statute of Alabama (R. C. 
 3555), making it lawful to carry about the 
 person a concealed pistol, see Lockett v. 
 State, 47 Ala. 42; s. c. 1 Green's Crim. Reps. 
 461. As to the constitutionality of the 
 statute of Tennessee of June 11th, 1870, 
 against carrying concealed weapons, see 
 Andrews v. State, 3 Heisk. 165 ; s. c. 1 
 Green's Crhn. Reps. 466. 
 
 Couspiranj. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Trial. 
 
 4. Evidence. 
 
 5. Verdict and judgment. 
 
 1. What constitutes. 
 
 1. Definition. A conspiracy is a combina- 
 tion of two or more persons, by concerted 
 action, to accomplish some criminal or un- 
 lawful purpose, or to accomplish some pur- 
 pose not in itself criminal or unlawful, by 
 criminal or unlawful means. State v. May- 
 berry, 48 Maine, 218; Com. v. Hunt, 4 
 Mete. Ill ; State V. Burnham, 15 New Hamp, 
 396; State v. Bartlett, 30 Maine, 132; State 
 V. Hewetts, 31 lb. 396. 
 
 2. Conspiracy, at common law, is a con- 
 federacy of two or more persons wrongfully 
 to prejudice another in his property, person, 
 or character, or to injure public trade, or to 
 aftect public health, or to violate public 
 policy, to obstruct public justice, or to do
 
 102 
 
 CONSPIRACY 
 
 What Constitutes. 
 
 any act in itself illegal. Johnson v. State, 
 2 Dutch. 313, per Haines, J. 
 
 3. Gist of. The gist of conspiracy is the 
 fraudulent and corrupt combination. There 
 must be either an intent that injury shall 
 result from the combination, or the object 
 must be to benefit the conspirators to the 
 injury of the public, or the oppression of 
 individuals. Com. v. Kidgeway, 2 Ashm. 
 247. 
 
 4. New party. Wlien a new party, with 
 a knowledge of the facts, agrees to the plans 
 of the conspirators, and comes in and assists 
 in carrying them out, he is from that moment 
 a fellow conspirator, although the parties 
 were not previously acquainted. People v. 
 Mather, 4 Wend. 229. 
 
 5. Need not be overt act. The conspir- 
 ing to commit an indictal)le oflFense is a 
 crime. Com. v. Putnam, 29 Penn. St. 296 ; 
 and the offense is in general complete, when 
 the conspiracy is formed, witliout any overt 
 act. State V. Rickey, 4 Halst. 293; People 
 V. Mather, supra ; Alderman v. People, 4 
 Mich. 414; State v. Ripley, 31 Maine, 386; 
 Hazen v. Com. 23 Penn. St. 355 ; Isaacs 
 V. State, 48 Miss. 234. But in New Jersey, 
 it seems that to constitute the offense, under 
 the statute, some act must be done in execu- 
 tion of the design agreed upon, to complete 
 the oflFense. State v. Norton, 3 Zabr. 33. 
 
 6. Design must be calculated to injure. 
 Although there may have been an intention 
 to defraud some one of his property, yet if 
 the means employed could not possibly 
 have that efi"ect, the oflFense of conspiracy 
 is not complete. March v. People, 7 Barb. 
 391. An indictment for conspiracy cannot 
 be maintained against several persons who 
 combine to obtain money from a bank, by 
 drawing their checks on a bank in which 
 they have no funds. State v. Rickey, 4 
 Halst. 293. 
 
 7. Where the indictment charged the 
 defendants with having conspired to injure 
 the character of R. S. by obtaining a divorce 
 on the ground of adultery, and tiiat in order 
 to carry out their design, they falsely re- 
 presented that the divorce was sought on 
 other and different grounds, and thereby 
 induced her to make no defense to the action, 
 
 it was held that as there was no crime in- 
 volved in the accusation, the defendants 
 were entitled to acquittal. State v. Stevens, 
 30 Iowa, 391. 
 
 8. In general, an indictment will not lie 
 for conspiring to commit a civil trespass 
 upon property. State v. Straw, 42 New 
 Hamp. 393. 
 
 9. At common law. A conspiracy to 
 seduce a female is a crime at common law. 
 Smitli V. People, 25 111. 17. And the same 
 is true of a confederacy to aid a female 
 infant to escape from her father's control, 
 with a view to marry her against his will. 
 Mifiln V. Com. 5 Watts & Serg. 461. A 
 conspiracy to seduce and carry oflF a female 
 over sixteen years of age, is an indictable 
 offense in Virginia, though the seduction 
 and abduction be not so. Anderson t. 
 Com. 5 Rand. 027. 
 
 10. A conspiracy to defraud a bank, and 
 thereby impair the securities for the circula- 
 tion held by the public, is indictable at 
 common law. State v. Norton, 3 Zabr. 
 33. Where an indictment charged first, 
 an executed conspiracy falsely, &c., by 
 wrongful and indirect means, to cheat de- 
 fraud, &c., the Bank of the United States; 
 and secondly, a conspiracy (as before) one 
 of the defendants being president of the 
 office of discount of the bank, and another 
 the cashier of the office, and another a 
 director of the bank ; it was held tliat it 
 charged in each count a conspiracy at 
 common law. State v. Buchanan, 5 Har. & 
 J. 317. 
 
 11. A conspiracy to obtain goods by false 
 pretenses, is indictable at cammon law. 
 Johnson v. People, 22 111. 314. Where 
 goods are obtained on credit by a person 
 who is insolvent, in the usual course of his 
 business, without disclosing his insolvency, 
 and without any reasonable expectation of 
 being able to pay for them, it is not neces- 
 sarily such an unlawful act as to be the 
 subject of a conspiracy ; though it is other- 
 wise in the case ©f a purchase made with 
 no expectation whatever of payment. Com. 
 V. Eastman, 1 Cush. 189. 
 
 12. It is a conspiracy at common law for 
 jounieymen bootmakers to combine to com-
 
 CONSPIRACY. 
 
 103 
 
 What Constitutes. 
 
 'pel by force of numbers and discipline, and 
 by fines and penalties, other jovirneymen to 
 join their society, and masters to employ 
 none but members. Com v. Hunt, Thach. 
 Crim. Cas. 609. Where journeymen shoe- 
 makers combined, and fixed the price of 
 making boots, and agreed that if a journey- 
 man should make such boots for any less. 
 he should pay a penalty of ten dollars, and 
 if any master shoemalier employed a journey- 
 man who had violated their rules, that they 
 would refuse to work for him, and would 
 quit his employment, and carried out such 
 agreement by leaving the employment of a 
 master workman, in whose service a journey- 
 man had violated their rules, and thereby 
 compelled the master shoemaker to dis- 
 charge such journeyman from his emjiloy, it 
 was held, that the parties thus conspiring, 
 were guilty of a misdemeanor. People v. 
 Fisher, 14 Wend. 9. 
 
 13. In New Jersey, the common-law offense 
 of conspiracy is not abolished by the statute 
 defining conspiracy in certain cases. State 
 V. Norton, 3 Zabr. 33. 
 
 14. Acts constituting. Many acts which, 
 if committed by an individual, are not 
 criminal, are indictable when committed in 
 pursuance of a conspiracy between two or 
 more persons; and an indictment may be 
 sustained whenever there is a conspiracy to 
 effect a lawful purpose, by unlawful means. 
 State V. Rowley, 12 Conn 101, A conspiracy 
 may be criminal, although the object be to 
 get lawful possession of land. State v. 
 Shooter, 8 Rich. 72. 
 
 15. A " corner," whether it be to affect 
 the price of articles of commerce, or the 
 price of stocks, when accomplished by con- 
 federation to raise or depress prices, and 
 operate on the markets, is a conspiracy. 
 Every association is criminal, the object of 
 which is to raise or depress the price of 
 labor beyond what it would bring if left to 
 itself. To fix a standard of prices among 
 men in the same employment, as a fee bill, 
 may become criminal when the parties resort 
 to coercion. If the means be unlawful, the 
 
 -combination is indictal)le. Morris Run Coal 
 Co. V. Barclay Coal Co. 68 Penn. St. 173; 
 People V. Melvin, 2 Wheeler's Crim. Cas. 263. 
 
 16. Where several combined to compel 
 their employer to discharge certain of their 
 fellow-workmen by threatening to quit hia 
 employment unless he did so, it was held 
 that they were liable to indictment for con- 
 spiracy. State V. Donaldson, 3 Vroom (33 
 N.J.) 151. 
 
 17. Where the defendants contriving to 
 procure the election of certain persons as 
 directors of an insurance company, and 
 thereby to cause themselves to be employed 
 in the service of the company, fraudulently 
 conspired to induce persons to appear at the 
 annual meeting of the company and vote for 
 directors, by issuing to such persons fraudu- 
 lent policies ©f insurance which were to be 
 held and treated to be nullities for every 
 purpose but that of authorizing the holders 
 to vote, it was held that the means were 
 fraudulent, immoral, and illegal. State v. 
 Burnham, 15 New Hamp. 396. 
 
 18. A combination to injure others by 
 perverting, obstructing, or defeating the 
 course of public justice, by suppression, 
 or fabrication of evidence, is indictable. 
 State V. Dewitt, 3 Hill, S. C. 283. 
 
 19. The officer, the prosecutor, and all 
 other persons concerned, may be indicted 
 for a conspiracy to procure criminal process 
 for improper purposes; and if it appear 
 that the officer who executed the process 
 was engaged in the conspiracy, the writ 
 will afford him no protection. Slomer v. 
 People, 25 111. 70. 
 
 20. The charge of a conspiracy to cheat a 
 municipal corporation imports an indictable 
 offense. State v. Young, 8 Vroom (36 N. 
 J.) 184. 
 
 21. In New Jersey, the erasure of an in- 
 dorsement on a promissory note with intent 
 to defraud, is a misdemeanor, and a con- 
 spiracy to do it, indictable under the statute. 
 State V. Norton, 3 Zubr. 33. 
 
 22. To conspire " to injure the property " 
 of an individual by destroying it, or lessen- 
 ing its value, is indictable under the statute 
 of Maine. State v. Ripley, 31 Maine (1 
 Red.) 386. 
 
 23. Where A., who owned wood worth 
 two hundred dollars, and B., who owned 
 lumber worth one hundred dollars, conspir-
 
 104 
 
 CONSPIKACY. 
 
 What Constitutes. 
 
 Indictment. 
 
 ing to cheat and defraud C. and D., agreed 
 that B. should applj' to C. and persuade him 
 to purchase in his own name for B. A.'s 
 •wood for $1,500, and that B. should then 
 refuse to take the wood of C. or pay him 
 for it, that A. should in like manner apply 
 to D. and get him to buy in his own name 
 for A. B.'s lumber for |1,200, and that A. 
 should then refuse to take the lumber of D., 
 or pay him for it, and in' pursuance of such 
 conspiracy, A. and B. persuaded C. and D. 
 to make such purchases, A. and B., pretend- 
 ing that they wanted to be owners of such 
 wood and lumber, and promising to take 
 the same of C. and D. and pay them the 
 prices which they were to pay, and C. and 
 D. gave to A. and B. their promissory notes 
 for the purchase money, and A., and B. then 
 declined to take the wood and lumber of C. 
 and D. or to indemnify them, and by means 
 of such combination and false pretenses, A. 
 and B. got possession of such notes from C. 
 and D., it was held that these acts con- 
 stituted an oflfense within the statute of Con- 
 necticut (of 1835. Lit. 21, § 114). State v. 
 Kowley, 13 Conn. 101. 
 
 24. All equally liable. Where several 
 conspire to do an unlawful act, all are liable 
 for the acts cf each if done in the prosecu- 
 tion of their common purpose. State v. 
 Wilson, 30 Conn. 500 ; Tompkins v. State, 
 17 Ga. 356; Eeid v. State, 20 lb. 681; State 
 V. Nash, 7 Iowa, 347 ; State v. Shelledy, 8 
 lb. 477; State v. Myers, 19 lb. 517; Green 
 v. State, 13 Mo. 382. Therefore, where on 
 a trial for murder the evidence tended to 
 show that the homicide was committed by 
 some person with whom the prisoner acted 
 in concert, it was held not to be erroneous 
 for the court to refuse to charge that there 
 was no evidence in the case that would 
 authorize a conviction. Carrington v. Peo- 
 ple, 6 Parker, 336. 
 
 25. On the trial of an indictment for rob- 
 bery, it appeared that the prisoner, being 
 confined in jail, got out of his cell, broke 
 the locks off of the doors of the others, who, 
 as soon as the jailer made his appearance, 
 set upon, bound, blindfolded and robbed 
 him. Held thut all were equally guilty, 
 although it was not proved alBrmatively 
 
 that the prisoner personally took part in 
 the robbery. Ferguson v. State, 32 Ga. 
 658. 
 
 26. Act must have relation to common 
 object. If the act have no connection with 
 the common object, the party committing it 
 is alone responsible for its consequences. 
 Where, therefore, A. and B.,by prearrange- 
 ment, attack C. and kill him, and D., not 
 being privy to their common design, joins 
 in the fight, D. is not guilty of murder. lu 
 such cases, the character of the act is to be 
 determined by the juiy, and a charge which 
 excludes it from their consideration is er- 
 roneous. Frank v. State, 27 Ala. 37. 
 
 27. When merged in the offense. A 
 conspiracy to commit a felony-, when exe- 
 cuted, is merged in the felony. Com. v. 
 Blackburn, 1 Duvall, 4; but not a con- 
 spiracy to commit a misdemeanor. People 
 V. Richards, 1 Mann. Micii. 216; State v. 
 Murray, 3 Shep. 100 ; People v. Mather, 4 
 Wend. 229. But see Com. v. Kingsbury, 5 
 Mass. 106; Com. v. O'Brien, 12 Cush. 84; 
 Lambert v. People, 9 Cow. 577; State v. 
 Murphy, 4 Ala. 765. 
 
 28. When there is a conspiracy to commit 
 a higher offense, and the offense is actually 
 committed, the conspiracy is merged; but 
 not when both are of the same grade, as a 
 conspiracy to cheat, and actual cheating 
 by false pretenses. State v. Mayberry, 48 
 Maine, 218. 
 
 29. Conspiracy to hinder an officer in the 
 discharge of his duty is not merged in the 
 offense of impeding the officer. State v. 
 Noyes, 25 Vt. 415. 
 
 2. Indictjient. 
 
 30. Parties. An indictment charging 
 that the defendant conspired with divers 
 persons to the jurors unknown is good, 
 although the conspu'ators were known to 
 the jury and their names might have been 
 given. People v. Mather, 4 Wend. 229. 
 
 31. Description of offense. An indict- 
 ment for a conspiracy to commit an ofl'ense 
 for which there is no name at common law, 
 must describe the offense with as much pre- 
 cision as though the indictment was laid for
 
 CONSPIRACY 
 
 105 
 
 Indictment. 
 
 the offense instead of the conspiracy. Hart- 
 man V. Com. 5 Barr, 60. 
 
 32. An indictment for conspiracy is suffi- 
 cient which avers that the accused with 
 another person conspired unlawfully and 
 maliciously to procure L. to be arrested for 
 the offense of larceny, well knowing he was 
 not guilty of said offense. Elkin v. People, 
 28 N. Y. 177. 
 
 33. When it is alleged that the defend- 
 ants conspired falsely to charge another 
 with crime, it is not necessary to aver the 
 innocence of the prosecutor, or in terms that 
 he was falsely charged. Johnson v. State, 2 
 Dutch. 313; nor that the defendants pro- 
 cured or intended to procure an indictment 
 or other legal process. Com. v. Tibbetts, 2 
 Mass. 536. 
 
 34. Averment of means employed. An 
 indictment for conspiracy must allege that 
 the defendants conspired to do an illegal 
 act by illegal means. State v. Harris, 38 
 Iowa, 242. When the conspiracy was to 
 effect a criminal or unlawful purpose, the 
 indictment must state the purpose fully and 
 clearly ; and if the purpose be not in itself 
 unlawful, the criminal or unlawful means to 
 be used must be stated. Com. v. Hunt, 4 
 Mete. 111. 
 
 35. In an indictment for conspiracy at 
 common law, to do an act which if com- 
 mitted would be a well known offense, no 
 further description than the name of the 
 crime is necessary, and the means by which 
 it was to be accomplished need not be 
 stated. People v. Mather, 4 Wend. 229; 
 State V. llipley, 31 Maine, 386; Com. v. 
 Eastman, 1 Cush. 189; People v. Richards, 
 1 Mann. Mich, 216; Hazen v. Com. 23 Penn. 
 St. 3o5 ; State v. Straw, 42 New Hamp. 303. 
 But if it is charged that the defendants con- 
 spired for a purpose not necessarily criminid, 
 and where the offense must therefore consist 
 in the means designed to be used, the means 
 must be distinctly set out in the indictment. 
 State V. Rol)erts, 34 Maine, 320; State v. 
 Hewitt, 31 II). 396 ; State v. Bartlett, 30 lb. 
 132; State v. Buniham, 15 New Hamp. 396; 
 
 ' State V. Noyes, 25 Vt. 415; State v. Norton, 
 3 Zabr. 33. 
 
 36. An indictment for conspiracy which 
 
 alleges that the defendant conspired " to 
 cheat and defraud," is not sufficient, that 
 not being an offense at common law. It 
 must be shown that the combination was to 
 cheat and defraud in some of the modes 
 made criminal by statute. Alderman v. 
 People, 4 Mich. 414; People v. Eckford, 7 
 Cow. 103; Lambert v. People, 9 lb. 577; 
 March v. People, 7 Barb. 391; Com. v. 
 Shedd, 7 Cush. 514 ; State v. Jones, 13 Iowa, 
 269; State v. Potter, 28 lb. 554; State v. 
 Stevens, 30 lb. 391; State v. Parker, 43 
 New Hamp. 83. 
 
 37. Where an indictment charges a con- 
 spiracy to cheat, the conspiracy is the gist 
 of the offense, and the cheating but aggra- 
 vation. Com. V. Davis, 9 Mass. 415. But 
 the means proposed to be used must be 
 stated in such detail as to show a conspiracy 
 to effect the intended purpose. Com. v. 
 Wallace, 16 Gray, 221; contra, People v. 
 Scholtz, 2 Wheeler's Crim. Cas. 617 ; State 
 V. Young, 8 Vroom (36 N. J.) 184. The 
 indictment should set out an offense com- 
 plete in itself, without the aid of any aver- 
 ment of illegal acts done in pursuance of 
 the agreement. An illegal combination, im- 
 perfectly and insufficiently charged, will 
 not be aided by averments of overt acts 
 done in pursuance of it. Where the indict- 
 ment stated the object or purpose of the 
 conspiracy to be the obtaining and acquir- 
 ing, by the defendants, from certain persons 
 named, large quantities of goods belonging 
 to such persons, "by divers false pretenses 
 and subtle means and devices to cheat and 
 defraud them thereof," and "then to ab- 
 scond out of the State with said property," 
 it was held insufficient on demurrer. State 
 V. Keach, 40 Vt. 113. 
 
 38. A conspiracy to defraud, under the 
 statute of Michigan, need not have been by 
 means of a token, writii g or similar device; 
 and it may be by acts without spoken 
 words. An information was held sufficient 
 which charged the defendant with having 
 conspired with a person unknown, " by 
 divers false pretenses, subtle means and 
 devices to obtain and acquire to themselves, 
 of and from J. W., a sum of money, to wit, 
 the sum of ten dollars of the moneys of said
 
 lOG 
 
 CONSPIRACY 
 
 Indictment. 
 
 J. W., and to cheat and defraud him, the 
 said J. W., thereof." People v. Clark, 10 
 Mich. 310. 
 
 39. An indictment charged that the de- 
 fendants conspired to cheat and defraud P., 
 and that to accomplish that object they 
 made certain representations which were set 
 out, and averred that those representations 
 were false and fraudulent, and well known 
 by the defendants so to be, and that 
 they were made for the purpose of cheating 
 and defrauding P. Held that it charged a 
 conspiracy. State v. Mayberry, 48 Maine, 
 218. 
 
 40. An indictment is sutRcieut which 
 charges a conspiracy to cheat and defraud 
 the complainant of his money, by the fraud- 
 ulent sale to him, of property, for a much 
 larger sum than it was worth, and that the 
 defendants, in pursuance of such conspiracy, 
 falsely and fraudulently made to him cer- 
 tain representations known to them to be 
 false, and thereby cheated and defrauded 
 him. State v. Parker, 43 New Hamp. 83. 
 
 41. Where an indictment charged a con- 
 spiracy to defraud by means of false pre- 
 tenses, and false, unlawful and unauthorized 
 writings, in the form and similitude of bank 
 notes, that were worthless, but which pur- 
 ported to be promissory notes, and to have 
 been signed, &c., and stated that the overt 
 act consisted in passing a note purporting 
 to be a bank note, and to have been signed, 
 &c., it was held sufficient. Collins v. Com. 
 3 Serg. & Rawle, 220. 
 
 42. An indictment charged that the de- 
 fendant intending unlawfully, by indirect 
 means, to cheat and defraud a certain incor- 
 porate company and divers other persons 
 unknown, of their effects, fraudulently and 
 unlawfully conspired, injuriously and un- 
 justly, by wrongful and indirect means, to 
 cheat and defraud the company and un- 
 known persons, of their effects ; and in pur- 
 suance thereof, did, by undue, indirect and 
 unlawful means, unlawfully cheat and de- 
 fraud the company and unknown persons of 
 divers effects. Held (the court being equally 
 divided) insufficient. Lambert v. People, 
 9 Cow. 578. 
 
 43. Where an indictment for consj^iracy 
 
 to defraud creditors charged that goods of 
 unknown quality and quantity were removed 
 and secreted by the prisoner, it was held 
 that the indictment was insufficient in not 
 stating the circumstances of removal and 
 secretion, and in not giving the names of 
 the persons intended to be defrauded. 
 Hartman v. Com. 5 Barr, 60. 
 
 44. An indictment alleging a conspiracy 
 by the defendants to j^rocure an overiusur- 
 ance on their stock in trade, does not charge 
 a criminal offense. And where the false 
 pretenses by which money was to be ob- 
 tained from the insurance companies wei-e 
 not set out, it was held that the charge of 
 a conspiracy " to obtain money by means of 
 false pretenses of a loss thereafterward to 
 happen," was too general. Com. v. Prius, 9 
 Gray, 127. 
 
 45. An indictment is good which charges 
 a conspiracy falsely and fraudulently to 
 seduce an unmarried female, by procuring 
 the consent of herself and parents to her 
 marriage with one of the conspirators, and 
 in pursuance of such conspiracy producing 
 a forged license, assuring them of its genu- 
 ineness, falsely and fraudulently represent- 
 ing another of the conspirators to be author- 
 ized to perform the marriage ceremony, and 
 who did so, in consequence of all which the 
 daughter and her father and mother were 
 deceived, and she cohal)ited with her pre- 
 tended husband. State v. Muqjhy, 4 Ala. 
 765. 
 
 46. An indictment for a consjiiracy to de- 
 stroy a warrant and recognizance for the 
 appearance of the defendant to answer a 
 criminal charge, with intent thereby to im- 
 pede the due administration of justice, must 
 aver that the warrant issued and the recog- 
 nizance was acknowledged, and also set 
 forth the warrant and recognizance. State 
 V. Enloe, 4 Dev. & Batt. 373. 
 
 47. An indictment for conspiracy to de. 
 feat the enforcement of the prohibitory 
 liquor law, with money and other unlawful 
 means, must allege in what manner the 
 money was designed to be employed, and 
 specify particularly the "other unlawful 
 means." State v. Potter, 28 Iowa, 554. See 
 State V. Stevens. lb. 391.
 
 CONSPIRACY. 
 
 107 
 
 Indictment. 
 
 Trial. 
 
 Evidence. 
 
 48. An indictment for conspiracy, which 
 does not set out facts snfBcient to constitute 
 the offense, cannot be made good by quali- 
 fying epithets. Where, therefore, the in- 
 dictment alleged that the defendants, being 
 journeymen bootmakers, unlawfully confed- 
 erated and formed themselves into a club, 
 and agreed together not to work for any 
 master bootmaker or other persons who 
 should employ any journeyman or other 
 workman who should not be a member of 
 said, club, after notice given to such master 
 or other person to discharge such workman, 
 it was held defective in not charging any 
 unlawful design or means. Coni. v. Hunt, 
 4 Mete. 111. 
 
 49. The same is true of an indictment 
 which alleged that the defendants, being 
 journeymen bootmakers, unlawfully con- 
 spired, confederated and agreed together 
 not to work for one who should employ any 
 workman not being a member of a certain 
 club, or who should break any of their by- 
 
 ' laws, unless such person should pay to said 
 club such sums as should be agreed upon as 
 a penalty for the breach of such by laws, 
 and by means of said conspiracy did compel 
 B., a master cordwainer, to dismiss from his 
 employ D., a journeyman bootmaker, be- 
 cause D. would not pay the said club tlie 
 penalty. lb. 
 
 50. The same is true of an indictment 
 which alleged that the defendants, intend- 
 ing unlawfully and by indirect means to 
 impoverish A., a journeyman bootmaker, 
 and prevent his following his trade, con- 
 spired, by wrongful and indirect means, to 
 impoverish him, and to deprive and prevent 
 him from following his trade, and from 
 getting his livelihood, and in pursuance of 
 said conspiracy did unlawfully, &c., i)revent 
 him from following his trade, and did 
 greatly impoverish him. Il>. 
 
 51. The same was held of an indictment 
 which alleged that the defendants, intend- 
 ing to injure B. and divers others, all being 
 nrustor bootmakers, employing journeymen, 
 unlawfully conspired and agreed by indirect 
 means to jirejudice and impoverish B. and 
 divers others, all of whom were master cord- 
 wainers, and employing journeymen, and to 
 
 prevent them from employing any journey- 
 men who should not, after notice, become 
 members of a certain club, or who should 
 break or violate any of the by-laws of said 
 club, or refuse or neglect to pay any sum of 
 money demanded from them by said club as 
 a penalty for such breach of said by-laws. 
 lb. 
 
 52. Matters of inducement need not 
 be set out with the particularity which is 
 requisite in reference to material allegations. 
 It is sufficient to allege in the indictment 
 that . the defendants unlawfully conspired, 
 combined, confederated, and agreed to- 
 gether to cheat and defraud one P., "by 
 then and there inducing and procuring said 
 P. to surrender " certain notes. State v. 
 Mayberry, 48 Maine, 218. 
 
 53. An indictment which alleges that the 
 defendants feloniously conspired to rob and 
 steal, is not bad for duplicity. State v. 
 Sterling, 34 Iowa, 443; s. c. 1 Green's Crim.. 
 Reps. 569. 
 
 3. Tki-'O.. 
 
 54. Place. The conspiracy may be tried 
 in the county where the overt act was com- 
 mitted. Com. V. Gillespie, 7 Serg. & Rawle, 
 478. If the agreement be made in one 
 county and the conspirators go into another 
 county to carry out their plans, and there 
 commit an overt act, they may be punished 
 in the latter county, without any proof of 
 an express renewal of the agreement. People 
 v. Mather, 4 Wend. 229. 
 
 55. Mode. A conspiracy being a joint 
 offense, the court cannot grant a separate 
 trial. Com. v. Mason, 2 Ashm. 31; contra, 
 State V. Buchanan, 5 Har. & J. 500. Where 
 three were indicted for conspiracy, and one 
 of them died before trial, and another was 
 acquitted, it was held that the survivor 
 might be tried and convicted. People v. 
 Olcott, 2 Johns. Cas. 301. But where two 
 only were charged with a conspiracy, the 
 acquittal of one was held to be an acquittal 
 of both. State v. Tom, 2 Dcv. 569. 
 
 4. PjVidrnck. 
 
 56. Must sustain charge. A variance in 
 the name of the county in an indictment for
 
 108 
 
 CONSPIRACY 
 
 Evidence. 
 
 a conspiracy against the United States is not 
 material when the act cliarged and proved is 
 witliin the Jurisdiction of the court. U. S. 
 V. Smith, 2 Bond, 323. 
 
 57. To sustain an indictment against an 
 attorney and client for entering into a con- 
 spiracy to resist an officer in the discharge 
 of his duty, it is not necessary to prove 
 actual violence. It is sufficient to show 
 threats and acts in their nature calculated to 
 terrify a prudent and reasonable officer, 
 although he was not thereby prevented from 
 executing his process. U. S. v. Smith, 1 
 Dillon, C. C. 212. 
 
 58. An indictment alleging a conspiracy 
 to cheat and defraud citizens at large, or 
 particular persons, out of their land entries, 
 is not sustained by evidence that the de- 
 fendants conspired " to make entries in the 
 land office before it was opened, or before it 
 was declared to be opened, or after it was 
 opened, for the purpose of appropriating 
 the lands to their own use, and excluding 
 others." State v. Trammell, 2 Ired. 379. 
 
 59. An indictment for a conspiracy to 
 ■defraud B. is not supported by evidence that 
 the defendants conspired to defraud the 
 public generally, or any, individually, whom 
 they might meet and be able to defraud- 
 Com. V. Harley, 7 Mete. 506. 
 
 60. "Where an indictment alleged that A., 
 B. and C. conspired to accuse D. of a 
 telonious assault upon a female with intent 
 to ravish and carnally know her, and it was 
 jn'oved that the defendants conspired to 
 accuse D. of having seduced and committed 
 adultery with such female, it was held that 
 the variance was fatal. State v. Hadley, 54 
 New Hamp. 224. 
 
 61. Overt acts. On the trial of an in- 
 dictment for conspiracy, acts may be given 
 in evidence to show the combination, but 
 for any other purpose they need not be 
 charged or proved. State v. Eipley, 31 
 Maine, 38G. Evidence of an overt act by 
 one, in pursuance of a conspiracy, is suffi- 
 cient to convict all. Collins v. Com. 3 Serg. 
 & Rawle, 220. 
 
 62. On the trial of an indictment for a 
 conspiracy in inveigling a young girl from 
 her mother's house and reciting the marriage 
 
 ceremony between her and one of the de- 
 fendants, a subsequent forcible carrying her 
 off, and threats after she had been released 
 on a habeas cmyus, were held admissible in 
 evidence. Resp. v. Hevice, 2 Yeates, 114. 
 
 63. Consummation of design. If con- 
 spirators carry out, or attempt to carry out 
 the object of the conspiracy, that fact may 
 be alleged in aggravation, and given in evi- 
 dence to prove the conspiracy. State v. 
 May berry, 48 Maine, 218. 
 
 64. Proof of other acts. Evidence is ad- 
 missible of other acts on the part of the 
 defendants, of collusion with other persons 
 to show the quo animo of the defendants in 
 relation to the offense charged. People v. 
 Bleeker, 2 Wheeler's Grim. Cas. 256. But in 
 an indictment for a conspiracy to prosecute 
 an innocent person, evidence is not admis- 
 sible to show that the defendants prosecuted 
 other persons who Avere guilty. State v. 
 Walker, 32 Maine, 195. 
 
 65. Acts and declarations of confed- 
 erate. After the fact of a conspiracy has 
 been found by the court, the acts and dec- 
 larations of a party's confederates, done and 
 said in pursuance of the common purpose, 
 are proper for the consideration of the jury. 
 Com. V. Brown, 14 Gray, 419; although not 
 done or said in his presence, or aftenvard 
 reported to him. Sands v. Com. 21 Gratt. 
 87; Johnson v. State, 29 Ala. 62; State v. 
 Simmons, 4 Strobh. 266. 
 
 66. To make the acts and declarations of 
 an alleged confederate competent evidence 
 against tiie accused, it must be proved 
 prima facie, or such evidence given as to 
 make the question one proper for the deter- 
 mination of the jury, that the accused had 
 conspired with the confederate to commit 
 the offense. Ormsby v. People, 53 K Y. 
 472. But the rule requiring ^jri»;a facie 
 proof of a conspiracy to be iirstmade, before 
 the acts and declarations of one of the con- 
 spirators are admissible in evidence against 
 the others, is not inflexible. Such acts and 
 declarations are sometimes admitted for the 
 sake -of convenience before sufficient proof is 
 given of the conspiracy; but it is only al- 
 lowed under particular and urgent circum- 
 stances. State V. Ross, 29 Mo. 32 ; State v.
 
 CONSPIRACY. 
 
 109 
 
 Evidence. 
 
 Verdict and Judgment. 
 
 Daubert, 42 lb. 239 ; People v. Brothcrton, 
 47 Cal. 388; s. c. 3 Green's Grim. Eeps.444. 
 
 67. Where several are acting with a com- 
 mon purpose and design, although there 
 may have been no previous combination or 
 confederacy to commit the particular of- 
 fense, yet the acts and declarations of each, 
 from the commencement to the consumma- 
 tion of the offense, are evidence against the 
 others. Kelley v. People, 55 N. Y. 565. 
 
 68. Where several persons conspired in 
 the city of New York, to commit a larceny 
 in Connecticut, and to carry the stolen prop- 
 erty back to New York, and there divide it, 
 it was held that the acts and declarations of 
 such of them as went to Connecticut, after 
 they had stolen the property, and were hid- 
 ing and trying to remove it out of the State, 
 were admissible against all. State v. Grady, 
 34 Conn. 118. 
 
 69. Where a witness swore that the pris- 
 oner, in the presence of the witness and A., 
 said that B. had offered the prisoner money 
 if he would kill W., that the prisoner told 
 B. he would give him an answer another day ; 
 that the prisoner offered the witness a part 
 of the money if he would kill W., that A. 
 proposed a mode of doing it, that the wit- 
 ness declined, and the prisoner said he was 
 joking, and the murder was committed 
 a few days afterward, it was held that 
 there was sufficient proof of the conspiracy 
 of the prisoner and A. to make the declara- 
 tions of A. admissible against the prisoner. 
 Com. V. Crowinshield, 10 Pick. 497. 
 
 70. On a trial for grand larceny, it ap- 
 peared that the accused went to a store, in 
 company with two other women, and looked 
 at clieap woolen shawls, while the other two 
 examined valuable India shawls; tliat one 
 of the latter took a shawl, concealed it, and 
 the two immediately left ; that they were 
 followed out of the store and stopped, and 
 one of them — not the one who took the 
 shawl — went hurriedly back into the store, 
 and whispered to the accused; and that the 
 accused was then asked if she knew the 
 other two, and she said she did, that she 
 came into the store with them. Held^ that 
 the foregoing was not prima facie evidence 
 of a conspiracy between the three, and that 
 
 the acts and declarations of the two women, 
 after they left the store, were not admissible. 
 Held, further, that it was error in the judge 
 to refuse to charge, as requested, that the 
 failure of the prisoner to introduce pi'oof 
 was not to be considered by the jury, it not 
 appearing that the accused had it in her 
 power to produce evidence controverting or 
 explaining the testimony produced against 
 her. Ormsby v. People, 53 N. Y. 473. 
 
 71. Where the declarations of a co-conspi- 
 rator are merely a narrative of a past occur- 
 rence, they cannot be received as evidence of 
 such occurrence. To be admissible, they must 
 be concomitant with the principal act, and 
 connected with it, so as to constitute a part of 
 the res gestae. Patton v. State, 6 Ohio, N. S. 
 476; State v. Dean, 13 Ired. 63; State v. 
 Thibeau, 30 Vt. 100; People v. Davis, 56 
 N. Y. 95. And the declaration of one of the 
 conspirators, as to what he himself intended 
 to do, not in furtherance of the common de- 
 sign, is not admissible against the others. 
 Fouts V. State, 7 Ohio, N. S. 471. 
 
 72. On a trial for conspiracy, the exami- 
 nation of one of the defendants taken sep- 
 arate and apart from the others, is not ad- 
 missible in evidence to prove the charge laid 
 in the indictment. People v. Bleeker, 2 
 Wheeler's Crim. Cas. 356. 
 
 73. Circumstances. A conspiracy may 
 be proved by circumstantial evidence; and 
 parties performing disconnected overt acts, 
 all contributing to the same result, may be 
 shown to be conspirators and confederates. 
 Kelly V. People, 55 N. Y. 585; State v. 
 Sterling, 34 Iowa, 443 ; s. c. 1 Green's Crim. 
 Reps. 569. 
 
 74. But on a trial for conspiracy among 
 journeymen bootmakers, evidence is not ad- 
 missible as to the price of fiour at the for- 
 mation of the society, to show that the ob- 
 ject of the defendants, in forming their so- 
 ciety, was to raise the price of wages pro- 
 portionally to the price of flour and other 
 necessaries. Com. v. Hunt, Thach. Crim. 
 Cas. 009. 
 
 5. Verdict and .judgment. 
 
 75. Form. Under an indictment against 
 two for a conspiracy to cheat, the judgment
 
 110 
 
 CONSPIRACY.— CONTEMPT. 
 
 Verdict and Judgment. 
 
 Power of Courts to Punish. 
 
 should be against each severally, and not 
 against them jointly. March v. People, 7 
 Barb. 301. 
 
 76. Variant from charge. Where A. 
 and B. were indicted for a conspiracy to de- 
 fraud C, and the jury found that there was 
 an agreement between A. and B. to obtain 
 money from C, but with an intention to re- 
 turn it to hiai, it was held not to be a ver- 
 dict upon which any judgment could be 
 given. People v. Olcott, 2 Johns. Cas. 301. 
 
 Contcinpt. 
 
 1. Power of courts to punish. The 
 
 power to punish for contempt is inherent in 
 all courts. The moment the courts of the 
 United States were called into existence, and 
 invested with jurisdiction over any subject, 
 they became possessed of this power. But 
 the power is limited and defined by act of 
 Congress of March 2d, 1831 (4 Stats, at 
 Large, 487). Ex parte Robinson, 19 Wall. 
 505 ; s. c. 2 Green's Crim. Reps. 135. 
 
 2. The 17th section of the judiciary act of 
 1789 declares that the courts of the United 
 States shall have power to punish contempts 
 of their authority in any cause or hearing be- 
 fore them, by fine or imprisonment, in their 
 discretion. The enactment is a limitation 
 upon the manner in which the power shall 
 be exercised, and must be held to be a nega- 
 tion of all other modes of punishment. lb. 
 
 3. Courts have power at common law to 
 punish, as for contempt, libelous publica- 
 tions relative to their proceedings, tending 
 to impair public confidence and respect in 
 them. State v. Morrill, 16 Ark. 384. 
 
 4. What constitutes. The employment 
 of abusive and impertinent language toward 
 the court in a petition signed by the party, 
 and tiled with the clerk, is a ground for an 
 attachment to show cause for contempt. 
 State V. Keene, 6 La. 375 ; State v. Red- 
 mond, 9 lb. 319. 
 
 5. Where, after the judges had vacated 
 the bench for a recess, the defendant ap- 
 proached the chief justice and used toward 
 him abusive and vituperative language, and, 
 at the same time made a violent assault upon 
 
 his person, it was held a contempt of court 
 for which the defendant was liable to fine 
 and imprisonment. State v. Garland, 25 
 La. An. 532. 
 
 6. Proposing to a juror to signal from the 
 window of the jury-room how the jury stand 
 with regard to their verdict constitutes a 
 contempt of court. State v. Doty, 3 Vroom 
 (32 N. J.) 403. 
 
 7. A defendant who participates in a 
 rescue, and escapes from the custody of the 
 sheriff is guilty of contempt of court, and 
 may be indicted therefor. The sheriifs re- 
 turn is conclusive evidence of the escape. 
 State V. Bergen, 1 Dutch. 209. 
 
 8. An attorney who writes and publishes 
 a stricture on the opinion of the court in 
 order to prejudice a cause which is pending 
 in such court, is guilty of contempt, for which 
 he may be stricken from the roll of attorneys ; 
 and he can only be restored by a revocation 
 of the sentence. Matter of Darby, 3 Wheel- 
 er's Crim. Cas. 1. 
 
 9. The examination of a witness before a 
 grand jury is a proceeding upon an indict- 
 ment, within 2 N. Y. R. S. p. 534, <5 1, p. 735, 
 punishing as a contempt the refusal of a 
 witness to answer a proper question. People 
 V. Hackley, 24 N. Y. 74. 
 
 10. The proceeding. A proceeding for 
 contempt is in tiie nature of a criminal pros- 
 ecution. Tlie proceeding for a constructive 
 contempt must be commenced either by a 
 rule to show cause, or by attachment, ujion 
 affidavit making the charge ; and the accused 
 has the right to be heard by himself or coun- 
 sel. Whittem v. State, 36 Ind. 196. See 
 McConnell v. State, 46 lb. 298; s. c. 2 
 Green's Crim. Reps. 723. 
 
 11. Where a contempt is committed in the 
 presence of the court, the ofl"ending party 
 may be ordered into custody without war- 
 rant. But a record of the offense and of the 
 arrest should immediately be made. If the 
 contempt be committed out of the presence 
 of the court, the offender may be brought 
 before it by attachment. An attachment 
 may issue in the first instance, or an order 
 may be made for the respondent to appear 
 and show cause why an attachment should 
 not issue uyainst liim. In the service of the
 
 CONTEMPT.— CONTINUANCE. 
 
 Ill 
 
 Review of Judgment. 
 
 In Behalf of Prosecution. In Behalf of Defendant. 
 
 attachment, the otficer may generally take 
 bail or a bond for the appearance of the 
 respondent. When the attachment is issued 
 to enforce an appearance or answer, or for 
 not paying costs, or not obeying an order or 
 decree, the officer must bring the respondent 
 into court. When issued to enforce an ap- 
 pearance or answer, it should specify the 
 suit, and the object of the process ; but when 
 issued for disobeying an injunction, this is 
 unnecessary. A proceeding for contempt is 
 a distinct and independent matter, requiring 
 distinct notices, and is regarded as of a 
 criminal nature. State v. Mathews, 37 New 
 Hanip. 4.50. 
 
 12. The respondent may submit the mat- 
 ter to the court upon affidavit, or may de- 
 mand of the prosecutor to file interrogatories. 
 The usual course, when the alleged miscon- 
 duct is denied, is for the court to allow the 
 prosecutor to file interrogatories. The inter- 
 rogatories may be amended, and the respon- 
 dent may examine witnesses. If the accused 
 does not appear, or if he appears and makes 
 no denial, the court will at once make a de- 
 cision and award punishment. lb. 
 
 13. Wliere the relator and the grand jury 
 being i)reseut in open court, it is stated on 
 the part of the latter, that the relator has 
 declined to answer a question before them, 
 and he thereupon does not deny but justifies 
 his refusal, and reiterates the same, the con- 
 tempt is in the immediate view and presence 
 of the court, and an affidavit is not necessary 
 to a commitment. People v. Hackley, 24 N. 
 Y. 74. 
 
 14. Review of judgment. The judgment 
 of a magistrate punishing for contempt can 
 only be reviewed on Imheas corpus so far as 
 to see whether he had jurisdiction. State v. 
 Towle, 42 Xew llamp. o40. 
 
 Continuance. 
 
 1. In beualf of rnosECUTiON. 
 
 2. In beh.\lf of defendant. 
 
 1. In behalf of prosecution. 
 
 1. Ground for. When tlie injured party 
 is to be used as a witness by the prosecution, 
 
 and there is a civil action pending for the 
 same oUense, the court will continue the 
 criminal case. Com. v. Elliott, 2 Mass. 372. 
 
 2. Affidavit. The trial will not be con- 
 tinued in order that the prosecutor may issue 
 a capias against a witness, who has been 
 summoned and refused to attend, unless the 
 prosecutor makes an affidavit, that in his 
 opinion he cannot safely proceed to trial 
 without the witness. U. S. v. Frink, 4 Day, 
 471. 
 
 3. When it will operate as an acquittal. 
 In Virginia, where an indictment for felony 
 was continued at the first term of the court 
 for the want of time to try it, and at the 
 second term on the motion of the prisoner, 
 upon the ground of the absence of a material 
 witness for him, and at each of the three 
 succeeding terms for want of time to try it, 
 it was held that he was entitled to be for- 
 ever discharged. Green's Case. 1 Rob. 731. 
 But see State v. Patterson, 1 McCord, 177. 
 
 4. Where the prisoner was not present at 
 the postponement of the trial, it was held 
 that although he ought to have been present 
 and had a right to be, yet the postponement 
 in his absence was a mere irregularity which 
 could not be reached by habeas corpus. 
 People V. Rulofi", 5 Parker, 77. 
 
 2. In behalf of defendant. 
 
 5. In general, discretionary with, court. 
 The prisoner cannot demand the postpone- 
 ment of his trial as a right. The court will 
 not give the same credence to the affidavit 
 of a person indicted for felony that it would 
 to the affidavit of a party to a civil action. 
 The disposition of the motion raises no 
 question of law, unless the record shows 
 that the court decided as a question of law 
 that a postponement could not be granted ; 
 or that the court decided that a witness was 
 material and that his absence was cause for 
 a postponement, and then compelled the 
 prisoner to jjroceed forthwith to trial. 
 People V. Hoitou, 4 Parker, 222, referring to 
 People V. Vermilyea, 7 Cow. 869. 
 
 6. The statute of New York (3 R. S. 303, 
 .5th ed)., which provides that Courts of Ses- 
 sions shall send all indictments not triable 
 therein, to the next Court of Oyer and Term-
 
 112 
 
 CONTINUANCE. 
 
 In Behalf of Defendant. 
 
 jner, there to be determined according to 
 law, and that the said courts may also by an 
 order to be entered in their minutes, send all 
 indictments for offenses triable before them 
 which shall not have been heard and de- 
 termined to the next Court of Oyer aiid 
 Terminer to be there determined according 
 to law, does not require that the prisoner 
 shall be tried during the next session of the 
 court or not at all, but leaves the control of 
 the calendar with the presiding judge, who 
 may if he choose postpone the trial. Real v. 
 People, So Barb. 5ol. 
 
 7. Decision may be reviewed on error. 
 It must be a most arbitrary and oppressive 
 exercise of power on the part of the court 
 in refusing a con.tinuance, to justify a court 
 of error to interfere. Sealy v. State, 1 Kelly, 
 213; but it will do so, were the refusal of a 
 continuance has worked a manifest injury. 
 McDaniel v. State, 8 Smed. & Marsh. 401 ; 
 contra^ Lindsay v. State. 15 Ala. 43 ; State 
 V. Duncan, 6 Ired. 243. And see Green v. 
 State, 13 Mo. 382. 
 
 8. The prosecution having entered a nolle 
 'prosequi., the defendant entered into a recog- 
 nizance with sureties for his appearance on 
 the first day of the next term of the court, 
 and from day to day thereafter, to answer 
 to any indictment that might be preferred 
 against him, and was then released from 
 custody. The same day, the judge direct- 
 ed a special grand jury to bes ummoned 
 caused the defendant to be arrested, and on 
 the finding of another indictment, tried the 
 defendant against his objection, refusing a 
 continuance. Held not a ground for reversing 
 a judgment of conviction. Blemer v. People, 
 76 111. 2G5. 
 
 9. In California, decisions on application 
 for continuances are reviewable on appeal. 
 People V. Diaz, 6 Cal. 248. In Georgia, un- 
 less the prisoner expressly waives an objec- 
 tion to the legality of an adjournment, with 
 a view to a trial which is to bind him, he 
 may take advantage of it, even after verdict. 
 Hove V. State, 39 Ga. 718. 
 
 10. What defendant required to show. 
 To entitle a party to a postponement of the 
 trial, on the ground that witnesses are absent, 
 three things must be shown : 1st. That the' 
 
 witnesses are material. 2d. That the party 
 api^lyiag has been guilty of no neglect. 3d. 
 That there is reasonable expectation of his 
 being able to procure their attendance at the 
 time to which he asks to have the trial put 
 ofi". Hyde v. State, 16 Texas, 445. 
 
 11. The absence of a witness who lives 
 beyond the jurisdiction of the court is not 
 a ground for a continuance. Com. v. Mil- 
 lard, 1 Mass. 6 ; State v. Fyles, 1 Const. 334 ; 
 Allen V. State, 10 Ga. 85. A person being 
 indicted for felony, made aflidavit that he 
 had four material witnesses who were absent 
 and resident in other States, but did not 
 name them, or state that he tried to procure 
 their attendance, or that he had expected to 
 be able to do so. Held that it was not a proper 
 case for a continuance. Hurd's Case, 5 
 Leigh, 715. And see Com. v. Gross, 1 Ashm. 
 281. 
 
 12. It is not a ground for a continuance, 
 that the witness summoned to prove a par- 
 ticular fact is not present, unless it is shown 
 that the fact cannot be proved by any other 
 person whose attendance can be procured. 
 Freleigh v. State, 8 Mo. 606. 
 
 13. When the jjrisoner moves to postpone 
 the trial, the strict rule requires that he shall 
 make a full disclosure of the names of his 
 witnesses and of the facts he expects to 
 prove by them. But the court ought to 
 grant reasonable opportunity to correct and_^ 
 amplify the affidavits before a decision, ^ 
 People V. Horton, 4 Parker, 222. 
 
 14. The court may require that the affi- 
 davit of an absent witness, setting forth 
 what he will testify, shall be produced as 
 the ground for a continuance, notwithstand- 
 ing the prisoner shows diligence. Mendum 
 V. Com. 6 Rand. 704. 
 
 15. The trial will usually be postponed on 
 account of the absence of the defendant's 
 witnesses, on a general affidavit, unless it is 
 apparent that the application for postpone- 
 ment is merely for delay, in which case the 
 affidavit must state the nature of the de- \ 
 fense to be sustained by the absent witnesses, ^ 
 in order that the court may judge of their 
 materiality. People v. Wilson, 3 Parker, 
 199. Where it appeared that no person ex- 
 cept the prisoner and the deceased was at
 
 CONTINUANCE. 
 
 113 
 
 In Behalf of Defendant. 
 
 the scene of an alleged murder, and there 
 was no pretense of an alibi, it was held 
 proper for the court to refuse a postpone- 
 ment, unless the prisoner disclosed tlie na- 
 ture of the defense which he intended to 
 establish by the testimony of the absent 
 witnesses. lb. 
 
 16. Where an affidavit for a continuance 
 in a prosecution for horse stealing, on ac- 
 count of the absence of a witness by whom 
 the defendant expected to prove that he 
 " did not steal the horse," but " traded " for 
 him, did not state any of the attending cir- 
 cumstances, or show from whom or when 
 and where the defendant purchased, it was 
 held insufficient. Cockburn v. State, 32 
 Texas, 359. 
 
 17. The admitting by consent, of an affi- 
 davit for a continuance, on the ground of 
 the absence of a material witness, is an ad- 
 mission of the facts which the affidavit con- 
 tains, as to what the absent witness will 
 testify. Willis v. People, 1 Scam. 399. 
 
 18. "When defendant entitled to con- 
 tinuance. In South Carolina, on the trial 
 of an indictment for a misdemeanor, the de- 
 fendant has a right to a continuance until 
 the next term after the indictment is found. 
 State V. Frazer, 3 Bay, 56, 
 
 19. Where the prisoner was committed so 
 short a time before the court that he could 
 not obtain his witnesses, it was held that 
 he was entitled to a continuance. State v. 
 Lewis, 1 Bay, 1. 
 
 20. Illness of counsel, where there is but 
 one, or the leading counsel, where there are 
 more than one, is ground for a continuance, 
 Avherc the sickness is so sudden that another 
 counsel cannot do the case justice. Allen v. 
 State, 10 Ga. 85. 
 
 21. Where it appeared that B. had been 
 subpojnaed, but was unable to attend on 
 account of illness, and that his attendance 
 could be procured at the next term of the 
 court, and that the affidavit was not made 
 for delay, it was held that a motion for a 
 continuance should have been granted. 
 Gross V. State, 2 Carter, 135. 
 
 22. During a trial for murder, before the 
 defense had closed, a material witness for 
 the defendant, \\ ho had been subpoenaed, was 
 
 8 
 
 taken so sick as not to be able to attend. It 
 was thereupon agreed, that if the witness 
 was able to testify at any time before the 
 case was submitted to the jury, he should 
 be allowed to do so, and if he was not able, 
 the defendant should have a right to move 
 for the postponement of the trial. When 
 the rebutting evidence on the part of the 
 State was closed the defendant moved the 
 court to postpone the trial for eight days, 
 and in support of such motion, ffied affi- 
 davits showing the materiality of the wit- 
 ness, and that his sudden and serious illness 
 prevented his attendance. The court hav- 
 ing refused to put oflf the trial, it was held 
 error. Jenks v. State, 39 Ind. 1. See Cut- J_ 
 ler, V. State, 42 Ind. 244. ~ 
 
 23. Where an indictment for having in 
 possession counterfeit bank notes, was found 
 on the first day of the term, and on the 
 second day, the defendant being arraigned, 
 moved for a continuance on an affidavit 
 made by him, stating that he could not 
 safely proceed to trial for the want of the 
 evidence of A. and B. who resided in another 
 State ; that he could prove by them and 
 each of them, that he was an honest and 
 upright man ; how he came by the posses- 
 sion of the counterfeit money; that he had 
 no knowledge that the money was counter- 
 feit until he was arrested; that he did 
 not know of any other witness within the 
 jm'isdiction of the court, by whom he could 
 prove the same facts ; that he could obtain 
 their testimony by the next term, and that 
 the affidavit was not made for delay — it was 
 held that the court erred in refusing to 
 grant the continuance. Spcnce v. State, 8 
 Blackf. 281. 
 
 24. Where a continuance was granted on 
 the application of the prosecution to the 
 next regular term of the court, and after- 
 ward it appearing that a material witness on 
 behalf of the State was in the last stnges of 
 consumption, the case was moved for trial 
 at an adjourned term of the court, when the 
 prisoner's counsel asked for a continuance, 
 on the ground that material witnesses for 
 the prisoner were absent, which application 
 the court refused, it was held that it was 
 error to bring on the case before the term to
 
 114 
 
 CONTINUANCE.— COEPORATIOK 
 
 In Behalf of Defendant. 
 
 Right under Charter. 
 
 "which it was at first continued, and that the 
 denial of the motion on the part of the 
 pri.«oner to continue the case was also error. 
 McKay v. State, 12 Mo. 492. 
 
 25. Absence of witnesses to character. 
 Trials are not usually put off on account of 
 the al)sence of witnesses to character, but 
 where an admission from the public pros- 
 ecutor of the previous good character of the 
 accused is necessary to, preveut a postpone- 
 ment, the admission must be unqualified. 
 People V. Wilson, 3 Parker, 199. 
 
 26. The aflfidavit of a prisoner who is a 
 stranger, that at the next term of the court 
 he can prove good character by witnesses 
 from another State ; that he can show that 
 the property charged to be stolen belongs to 
 another person than the one stated to be the 
 owner in the indictment, and that he can 
 also show an alihi., which he cannot now 
 prove because of his recent arrest, is suffi- 
 cient ground for a continuance. Bledsoe v. 
 Com. 6 Rand. 673. 
 
 27. Admission of absent testimony. 
 Where the prisoner is entitled to a contin- 
 uance on account of the absence of material 
 witnesses, he cannot be compelled to go to 
 trial upon the admission of the prosecution 
 that the witnesses, if present, would testify 
 as claimed. The admission must be of the 
 truth of the proposed testimony. State v. 
 Brette, 6 La. An. 652. 
 
 28. Imposition of terms. The failure of 
 the defendant to obtain compulsory process 
 for his witnesses, is not such negligence as 
 will deprive him of the right to a contin- 
 uance, but it will authorize the court to 
 impose terms in granting the motion. Allen 
 V. State, 10 Ga. 85. 
 
 Coninction. 
 
 See Summary conviction; Verdict. 
 
 Coroner's Jnqucst. 
 
 1. Nature. At common law, a coroner 
 holding an inquest super vuum corporis is 
 in the performance of functions judicial in 
 
 their character. People v. Deviue, 44 Cul. 
 452 ; s. c. 2 Green's Crim. Reps. 405. 
 
 2. Second inquest. After inquisition 
 found, a second coroner's inquest cannot be 
 held until the first has been vacated and a 
 new inquiry ordered by the court. People 
 V. Budge, 4 Parker, 319. 
 
 Corporation. 
 
 1. Sight under charter. Where a com- 
 pany has complied with the conditions of 
 their charter by the payment of large sums 
 of money, it is not competent for the Legis- 
 lature, without any change of circumstances, 
 under its authority to amend the charter, to 
 pass a law requiring the company to do acts 
 from which, by the terms of the charter, 
 they had been exempted. Com. v. Essex 
 Co. 13 Gray, 239. 
 
 2. Forfeiture of franchises. On an in- 
 formation filed against a railroad company, 
 it appeared that their road had been used 
 for the transportation of freight so as to 
 meet the public demands; that the respond- 
 ents had been ready to carry any passengers 
 and draw any passenger cars for a reasonable 
 compensation ; that none had been offered 
 which they had not transported; that there 
 was not sufiicient business to pay the 
 expenses of running regular passenger trains; 
 that the want of such business had been 
 caused by establishing, under authority of 
 the Legislature, a competing line ; and that 
 for these reasons the respondents discon- 
 tinued the running of regular trains, and 
 gave public notice thereof. Held., that such 
 discontinuance was not a breach of public 
 duty involving the forfeiture of the fran- 
 chises of the company. . Com. v. Fitchburg 
 R. R. Co. 12 Gray, 180. 
 
 3. Indictment. A corporation is amen- 
 able to indictment for a misfeasance. Com. 
 V. Proprs. of New Bedford Bridge, 2 Gray, 
 339. 
 
 4. Judgment. When a corporation, after 
 due notice, fails to appear to answer to an 
 indictment, judgment by default may bo 
 rendered against it. Boston, itc, R. R. v. 
 State, 32 New Kamp. 215.
 
 DEAD BODY.— DISINTERRING THE DEAD. 
 
 115 
 
 Leaving Unburied. 
 
 Judgment on Demurrer. 
 
 At Common Law. 
 
 Scab Sobii, 
 
 Leaving unburied. It is indictable to 
 throw a dead body into a river without the 
 rites of christian burial. Kanavan's Case, 1 
 Maine, 226. 
 
 See Cemetery ; Disinterring the dead. 
 
 JJcaMij lllcapous. 
 
 See CoNCEAIiED WEAPONS. 
 
 iUcmuvrcn 
 
 1. Judgment on. The rule that judgment 
 on demurrer must be given against the party 
 who commits the first substantial error in 
 pleading, is applicable to criminal as well as 
 to civil actions. People v. Krummer, 4 
 Parker, 217. 
 
 2. When an indictment is adjudged good 
 on demurrer, the prisoner may except. If 
 his exceptions are sustained, judgment will 
 be rendered in his favor. If the exceptions 
 are overruled, or if no exceptions are taken, 
 judgment will be rendered for the State, 
 unless at the time of demurring, the prisoner 
 has, M'ith the consent of the prosecution, 
 reserved the right to plead anew. State v. 
 Dresser, .54 Maine, 569. 
 
 3. Admission by. Where a demurrer to 
 a plea of former conviction was sustained, it 
 was held that if the defendant desired to 
 answer further, he should have claimed the 
 right when he filed his demurrer, or have 
 obtained leave to plead double at the begin- 
 ning, and that as he had not done either, 
 his right must be deemed waived. State v. 
 Inness, 53 Maine, 536. 
 
 4. Ln Vermont, to an indictment under the 
 statute (Gen. Stats, eh. 113, §31), for "re- 
 moving and carrying away one saw-mill saw, 
 •which was then and there a part of the 
 machinery of a certain water saw-mill," «&c., 
 the defendant demurred, on the ground that 
 the saw was not " a part of the machinery." 
 Held^ that the offense was admitted by the 
 
 Icmurrer. State v. Avery, 44 Vt. 639. 
 
 IDbiutcrriugi tl)c Ocab. 
 
 1. At common law. It was a crime at 
 common law to dig up and remove a corpse. 
 Com. V. Cooley, 10 Pick. 37. 
 
 2. "What constitutes. The crime of dis- 
 interring the dead consists in the removal of 
 a dead body without the consent of such 
 deceased person obtained in his or her life 
 time, or of the near relatives of the deceased 
 since his or her death. Tate v. State, 6 
 Blackf. 110. 
 
 3. In Massachusetts, the removal of a 
 dead body is not an offense within the 
 statute (of 1830, ch. 57), unless done with 
 the intent to use it or dispose of it for the 
 purpose of dissection. Com. v. Slack, 19 
 Pick. 304. 
 
 4. To constitute the oifeuse of disinter- 
 ring a dead body, it is not necessary th.it all 
 engaged should be actually present, pro- 
 vided that they are near enough to render 
 assistance should it be needed. Tate v. 
 State, 6 Blackf. 110. 
 
 5. Indictment. An indictment for remov- 
 ing a dead body, need not state to whom 
 the burying ground belonged. Com. v. 
 Cooley, 10 Pick. 37; or allege that it was 
 the body of a human being; and an allega- 
 tion of the name sufficiently indicates the 
 sex. Where the place of burial is described 
 as " a grave yard in the town of B., O. 
 County,'' the particular grave yard need not 
 be designated. People v. Graves, 5 Parker, 
 134. A count in an indictment, which 
 charged the removal from its grave of a cer- 
 tain other deceased child of said Burke, 
 " that yet had no name given to it, " without 
 the consent, &c., was held good. Tate v. 
 State, 6 Blackf. 110. 
 
 6. Evidence. On tiie trial of an indict- 
 ment for feloniously removing a dead body 
 from the grave, a charge of the court to the 
 jury, that "it would be just as good to 
 identify a foot or a hand as the whole per- 
 son," is not erroneous. People v. Graves, 5 
 Parker, 134. 
 
 ?Di0ori)crln fjousc. 
 
 8ie Nuisance.
 
 IIG 
 
 DISOEDEKLY PEKSON.— DUELING. 
 
 Proof of Marriage. 
 
 Sending Challenge. 
 
 Qisovicrhj |)crson. 
 
 1. Proof of marriage. On a complaint 
 against a man as a disorderly person for 
 neglecting to support liis -wife, proof that 
 the parties had for many years lived to- 
 gether as husband and wife, is competent 
 evidence of marriage. People v. McCor- 
 mack, 4 Parker, 9. 
 
 2. Defense. On a charge against one of 
 being a disorderly person, in that he neg- 
 lected to support his wife and child, the de- 
 fendant proved in defense, that there was 
 depending in the courts, an action for di- 
 vorce, brought by him against his wife, and 
 that while it was depending, there was an 
 order made in the Supreme Court by which 
 he was required to pay her alimony during 
 the pendency of the action ; that a deter- 
 mination had been had in said action, which 
 determination had been reversed ; that the 
 case was now in the Court of Appeals, and 
 that after its removal there, the application 
 had been renewed for the original allowance 
 of alimony, and an order made granting $50 
 as a gross sum and for expenses of the 
 action, which sum he had paid to her attor- 
 ney. Held, that the conviction of the de- 
 fendant should be affirmed with costs. 
 People V. Mitchell, 2 N. Y. Supm. N. S. 
 172. 
 
 3. Security. In New York, where on the 
 return of the warrant, it appears that the 
 defendant was a disorderly person, the jus- 
 tice may require sufficient sureties for good 
 behavior for one year, in default of which 
 he may be committed. The justice has no 
 power to organize a Court of Special Ses- 
 sions, require the defendant to plead, and 
 after trial, sentence him to pay a fine or be 
 imprisoned. People v, Carroll, 3 Parker, 
 
 ro 
 / o. 
 
 4. Appeal. Where one is brought before 
 a New York police justice, as a disorderly 
 person, under the statute of 1866 (N. Y. 
 Sess. Laws of 1860, ch. 508, p. 1007), for 
 abandoning his wife, and ordered to pay a 
 sum weekly for her support, the Supreme 
 Court will not review the proceedings on 
 certiorari, any appeal from, or amendment 
 to, such an order, belonging exclusively to 
 
 the Court of Sessions, which may be com- 
 pelled by mandamus to entertain the case. 
 Matter of Hook, 55 Barb. 257. 
 
 Disturbing Ucligious 
 iilccting* 
 
 See Eeligiotjs meeting. 
 
 IDnmkcnuc50. 
 
 See Common drunkard ; Intoxication as 
 
 A DEFENSE. 
 
 Dueling. 
 
 1. Sending challenge. On an indictment 
 for carrying a challenge to a duel, in the 
 county of Suffolk, Massachusetts, it was 
 proved that the duel was fought in Rhode 
 Island. Ildd that sending the challenge 
 was an offense within the statute of Massa- 
 chusetts. Com. V. Boott, Thach. Crim. Cas> 
 390. 
 
 2. Where a challenge was delivered in 
 South Carolina, to fight a duel in Georgia, 
 it was held a violation of the statute of the 
 former State, and indictable there. State v. 
 Taylor, 3 Brev. 243. See State v. Taylor, 
 1 Const. R. 106. 
 
 3. Any agreement to fight with loaded 
 pistols, and actually fighting in pursuance of 
 the same, constitutes a duel under the stat- 
 ute of South Carolina, without reference to 
 the time when the agreement was made. 
 Herriott ads. State, 1 McMullan, 126. 
 
 4. In South Carolina, the proper construc- 
 tion of the words in the statute of 1812, 
 ' ' If any person resident in or being a citi- 
 zen of this State, shall send, give, or accept 
 a challenge to fight a duel within this 
 State," is, "if any person," «fcc., "shall 
 within this State send or give, or accept," 
 &c. Cunningham v. State, 2 Speers, 246. 
 And such act is constitutional. State v. 
 Dupont, 2 McCord, 334. So likewise, is the 
 act of New York, of 1816 (Sess. 40, ch. 1). 
 Barker v. People, 3 Cow. 686.
 
 DCELING.— DUEESS. 
 
 117 
 
 Form of Challenge. 
 
 What is. 
 
 5. In Alabama, since the statute of 1819, 
 the mere sending of a challenge to fight a 
 duel is not indictable, unless a combat takes 
 place. Smith v. State, 1 Stewart, 506. 
 
 6. In North Carolina, a challenge to fight 
 a duel out of the State is indictable. State 
 V. Farrier, 1 Hawks, 487. 
 
 7. Form of challenge. No particular 
 form of words is necessary to constitute 
 a challenge to fight a duel. Whether it 
 amounts to such, is a question for the jury. 
 Ives V. State, 13 Ala. 276. In South Caro- 
 lina, under the statute of 1813, a challenge to 
 fight a duel, may be given verbally. State 
 V. Strickland, 3 Nott & McCord, 181. 
 
 8. Indictment. An indictment for sending 
 a challenge, need not set out a copy of the 
 challenge. State v. Farrier, 1 Hawks, 487 ; 
 Brown v. Com. 3 Va. Cas. 516. 
 
 9. An indictment for challenging another 
 to fight a duel, need not aver that the par- 
 ties were citizens of the State, or that the 
 paper charged to have been meant by the 
 defendant as a challenge, was so under- 
 stood by the parties. Moody v. Com. 4 
 Mete. Ky. 1. 
 
 10. The place where a proposed duel is to 
 be fought need not be alleged in the indict- 
 ment. Ivey V. State, 13 Ala. 276. 
 
 11. An indictment for sending a challenge 
 to fight a duel, in which the time was stated 
 in the alternative, and which did not con- 
 clude " against the peace and dignity of the 
 United States," was held bad. L\ S. v. 
 Chittenden, Hemp. 61. 
 
 12. An indictment which charges that the 
 defendant "did fight a duel with pistols, " 
 will be bad on demurrer at common law- 
 Lambert's Case, 9 Leigh, G03. 
 
 13. In South Carolina, an indictment 
 against a person for carrying a challenge 
 need not charge that the challenger was a 
 citizen or resident of the State. Cunning- 
 ham v. State, 2 Speers, 346. 
 
 ; 14. In Virginia, an indictment for aiding 
 
 I and abetting in fighting a duel must allege 
 that a duel was fought. Dudley's Case, 6 
 Leigh, 613. 
 
 15. Evidence. On the trial of an indict- 
 ment for sending a challenge to fight a duel, 
 ithe prosecution may prove that a written 
 
 challenge was sent, without producing the 
 challenge. Com. v. Hooper, ThacL. Crim. 
 Cas. 400. 
 
 16. On the trial of an indictment for 
 carrying a challenge to fight a duel, it must 
 be proved that the ofi"ense was committed 
 within the State, or within the jurisdiction 
 of the court. Gordon v. State, 4 Mo. 375. 
 
 17. Upon the trial of an indictment against 
 a second for " giving, sending and deliver- 
 ing a challenge " to fight a duel, proof of a 
 custom which requu-ed a second to deliver a 
 challenge was held inadmissible. So like- 
 wise is evidence that the defendant was a 
 friend of the principal in a previous diffi- 
 culty with another person. Com. v. Boott, 
 supra. 
 
 18. The declarations of the second in a 
 duel are admissible in evidence against the 
 principal. State v. Dupont, 3 McCord, 334. 
 And so likevvise, the declarations of the 
 principal are admissible against the second 
 on the trial of the latter. Com. v. Boott, 
 supra. 
 
 19. A. in a letter to B. employed language 
 supposed to amount to a challenge to fight a 
 duel, and by a postscript referred B. to C. 
 (the bearer of the letter) to leani whether 
 any further arrangements were necessary. 
 Held that B. might testify to the conversa- 
 tion between C. and himself. State v. Tay- 
 lor, 1 Const. K. 106. 
 
 20. The intent and meaning of the sup- 
 posed challenge may be shown upon the 
 trial, by proof written or oral. Com. v. 
 Pope, 3 Dana, 418; Com. v. Hart, 6 J. J. 
 Marsh. 619; Herriott v. State, 1 McMuUan, 
 136. 
 
 ![)urc5s. 
 
 1. What is. An arrest for improper pur- 
 poses without a just cause, or for a just cause 
 but without lawful authority, or for a just 
 cause and under lawful authority for unlaw- 
 ful purposes, constitutes a duress. Strong v. 
 Crannis, 20 Barb. 122. 
 
 2. How determined. The question of 
 duress is to be left to the jury upon the
 
 118 
 
 DUKESS.— EAVESDROPPING.— EMBEZZLEMENT. 
 
 Excuse for Illegal Act. 
 
 What Constitutes. 
 
 whole evidence bearing upon it, and not to 
 be determined as matter of law, either upon 
 the "whole or certain excepted portions of 
 the evidence. State v. Learned, 41 Yt. 585. 
 3. Excuse for illegal act. An illegal 
 act cannot be justified by an order from 
 superior authority, no matter how high the 
 source from which it emanates. But such 
 order may go in extenuation of it. State v. 
 Sparks, 27 Texas, 627. 
 
 What constitutes. The offense was held 
 to have been committed by one who clan- 
 destinely approached near to the room occu- 
 pied by the grand jury, while they were 
 engaged in the discharge of their duties, for 
 the purpose of overhearing what was said 
 and done. State v. Pennington, 3 Head, 
 Tenn. 299. Eavesdropping was indictable 
 at common law. State v. Williams, 2 Tenn. 
 108. 
 
 (£mbn;lcmc!it 
 
 1 . What constitutes. 
 
 2. Indictment. 
 
 3. Jtjkisdiction. 
 
 4. Evidence. 
 
 5. Verdict. 
 
 1. What constitutes. 
 
 1. Need not have been demand. It may 
 
 be embezzlement, altliough there has been no 
 demand of the property alleged to have been 
 embezzled, or denial of its receipt, or false 
 account given of it, or false statement or 
 false entry concerning it, or a refusal to ac- 
 count for it. Com. v. Tuckerman, 10 Gray, 
 173. 
 
 2. The fiduciary relation essential in em- 
 bezzlement is sufficiently expressed by the 
 averment that the property was delivered to 
 the defendant upon the trust and confidence 
 that he would return it to the owner on de- 
 mand. A fraudulent conversion to the de- 
 fendant's own use would be embezzlement, 
 whether demand were made or not, and 
 therefore such demand need neither be 
 
 averred or proved. Com. v. Hussey, 111 
 Mass. 432. But it is otherwise in Illinois, 
 under the statute of March 4th, 1869, for the 
 protection of consignors of goods. Wright 
 V. People, 61 111. 382; s. c. 2 Green's Crim. 
 Reps. 558. 
 
 3. Defendant mingling funds with his 
 own. A person having received a note for 
 the purpose of causing it to be discounted 
 for another at a bank, sent it to the cashier 
 with other notes of his own to be discounted 
 on his private account, and procured the 
 proceeds to be jjassed to his own credit. 
 Held that he was guilty of embezzlement as 
 soon as the note was delivered to the cashier 
 to be thus misused, and that the subsequent 
 payment of a part of the money on the 
 other's account, did not purge the previous 
 criminal act. Com. v. Butterick, 100 Mass. 1. 
 
 4. Where the treasurer of a railroad com- 
 pany deposits in a bank, to his own credit as 
 treasurer, money of the company, and after- 
 wards in that capacity draws his own check 
 upon the bank therefor, and receives the 
 amount of it in bills, which he fraudulently 
 converts to his own use, it is embezzlement, 
 although when he drew the money from the 
 bank he did not intend to appropriate it, 
 and although when lie converted it, he 
 intended to make it good, and had the 
 means to do it. Com. v. Tuckerman, 10 
 Gray, 173. See Com. v. Mason, 105 Mass. 
 163. 
 
 5. On the trial of an indictment for em- 
 bezzlement it was proved that J. L., being in 
 need of money, made his two notes and 
 delivered them to the defendant to sell on 
 commission and pay over the proceeds to a 
 brother of J. L. ; the defendant at the same 
 time giving to J. L. as receipts, the defend- 
 ant's own notes which were deposited by J. 
 L. with his brother, to be surrendered to the 
 defendant when he should deliver the pro- 
 ceeds of J. L.'s notes pursuant to agreement. 
 Held that if the defendant was employed 
 merely to sell the notes, receive the pro- 
 ceeds, and pay over the same to the brother of 
 J. L., without any authority to mingle them 
 with his own funds, a fi*audulent conversion 
 of them would constitute embezzlement. 
 Com. V. Foster, 107 Mass. 221.
 
 EMBEZZLEMENT. 
 
 119 
 
 What Constitutes. 
 
 6. Misappropriation of property. Where 
 bonds were pledged to the defendant by the 
 maker of a cote, to secure the defendant as 
 indorser, which note the maker paid at ma- 
 turity, it was held that after such payment 
 the defendant still held the bonds in his 
 custody upon the further trust to restore 
 them on demand, and that by fraudulently 
 misappropriating therq he was guilty of 
 embezzlement. Com. v. Butterick, 100 
 Mass. 1. 
 
 7. An agent who appropriates money left 
 with him by his principal for the purchase 
 of land is guilty of embezzlenient, although 
 the title to the land is in litigation, and 
 whether the contract of purchase can be 
 completed depends upon the event of the 
 suit. State v. Healy, 48 Mo. 531. 
 
 8. Whether one who holds the property 
 of another as collateral security can be con- 
 victed of embezzlement for pledging it to 
 secure his own debt, before the debt is due 
 to secure which it has been given — query. 
 Com. V. Butterick, 100 Mass. 1. 
 
 9. Fraudulent conversion of property. 
 A. engaged the defendant to transport 
 thirty-four tons of pig iron in bars from Al- 
 bany to Buffalo. On the passage the defend- 
 ant, with the help of one of his men, removed 
 from the boat one hundred bars of the iron, 
 and took the remainder to Bufl'alo. Held 
 that this constituted embezzlement, and that 
 the acquittal of the defendant of larceny did 
 not bar his subsequent trial and conviction 
 for the first named offense. People v. Nich- 
 ols, 3 Parker, 579. 
 
 10. An agreement was entered into be- 
 tween A. and B., by wiiich B. undertook, in 
 consideration of $5, to be paid him by A., to 
 trade a watch, the property of A., for a 
 wagon. The watch being delivered to B., 
 he did not make the trade, but converted 
 the watch to his own use. llclil that he was 
 guilty of embezzlement. State v. Foster, 37 
 Iowa, 404. 
 
 11. In Iowa, under the statute (§ 4237), 
 a bond, bank note, bill of exchange, or other 
 l)ill, order or certificate, may be the subject of 
 larceny or embezzlement. Therefore where 
 the private secretary of the governor, who 
 bad the custody of a UnUed States treasury 
 
 draft, drawn in fnvor of the State and payable 
 to the order of the goveraor, feloniously con- 
 verted it to his own use, it was held that he 
 was guilty of embezzlement, although the 
 governor had not indorsed the draft, and 
 the amount could not be recovered from the 
 government. State v. Orwig, 24 Iowa, 103. 
 
 12. Where money delivered by a bank to 
 a servant on the master's check is apropri- 
 ated by the servant to his own use, it is em 
 bezzlement and not larceny. Com. v. King, 
 9 Cush. 284. 
 
 13. Where a bar-keeper in an inn,'intrusted 
 to carry letters to and from the post office, 
 fi'audulently converted to his own use a letter 
 inclosing money, given to him to carry, it 
 was held that he was guilty of embezzle- 
 ment. People V. Dalton, 15 Wend. 581. 
 
 14. In New York, an indictment for em- 
 bezzlement will lie against a clerk or serv- 
 ant for converting to his own use the money, 
 goods, &c., of his master or employer, as 
 well as for thus converting the money, 
 goods, «fec., of any other person which shall 
 iiave come into his possession, or be under 
 his care, by virtue of his employment. 
 People V. Hennessy, 15 Wend. 147. 
 
 15. A clerk may be convicted of embezzle- 
 ment of a bill of exchange under the statute 
 of Alabama (Code, § 3143), on proof that he 
 fraudulently disposed of the bill, which he 
 had obtained by virtue of his employment, 
 although it first came to the possession of 
 his employer. Lowenthal v. State, 33 Ala. 
 589. 
 
 16. One who is employed by a post com- 
 missary to superintend a bakery, and whose 
 duty it is to receive all the flour sent to the 
 bakery by the commissary, and have it made 
 into bread, and deliver the bread on the 
 order of the commissary, may be indicted for 
 embezzlement, as the agent of the commis- 
 sary. Iliuderer v. State, 38 Ala. 415. 
 
 17. Acts which do not amount to the 
 offense. ^VlK're a party receiving money, 
 has a right to mix it with his own, being 
 accountable for a balance, an indictment for 
 embezzlement will not lie upon a misappro- 
 priation. Where therefore a person was in- 
 dicted for embezzling a balance due from 
 him to an insurance company, for whom he
 
 120 
 
 EMBEZZLEMENT. 
 
 What Constitutes. 
 
 Indictment. 
 
 had received for premiums various sums at 
 various times from different individuals, a 
 part of -wliicb lie bad paid over, and the 
 appropriation of no specific money by bim 
 was shown, it was held that bis conviction 
 could not be sustained. People v. Howe, 2 
 K Y. Supm. N. S. 383. 
 
 18. Where a woman allowed a man to take 
 bank bills for the purpose of counting them 
 in her presence, and taking therefrom a small 
 sum which she consented to lend bim, and 
 instead of returning any portion, be walked 
 away with the whole, it was held that he 
 was not guilty of embezzlement. Com. v. 
 O'JIalley, 97 Mass. 584. 
 
 19. Where on the trial of an indictment 
 against the treasurer of a bank, for fraudu- 
 lently taking and secreting moneys with in- 
 tent to appropriate the same to his own use, 
 the evidence tended to show that the de- 
 fendant took the money from a depositor 
 without any fraudulent intent to convert it 
 to his own use, and entered it properly in the 
 books of the bank, and that iive days after- 
 ward he altered the entries in the books in 
 order to conceal the fact that he had received 
 this sum, thereby to cover up some previous 
 deficit occasioned by former dishonest and 
 fraudulent acts, it was held that a verdict of 
 guilty was erroneous. Com. v. Shepard, 1 
 Allen, 575. 
 
 20. Where the clerk of a mercantile firm, 
 whose duty it was to receive, safely keep 
 and disburse the moneys of the firm, being 
 about to leave, took from the money in bis 
 hands the amount due him for his salary, 
 without the knowledge or consent of the 
 firm, and charged the same to himself on 
 their books, it was held that he was not 
 guilty of embezzlement. Ross v. Innis, 35 
 111. 487. 
 
 21. The conversion, by a mechanic, of ma- 
 terials received by him at his shop, is not 
 embezzlement within the statute of Massa- 
 chusetts (R. S. ch. 136, § 29). Com, v. 
 Young, 9 Gray, 5. 
 
 22. Who not deemed servant or agent. 
 In New York, where a constable was em- 
 ployed to collect certain demands without 
 suit, if the debtors would pay, and other- 
 wise to sue them before a justice of the 
 
 peace, it was held that he was not a serv- 
 ant of the creditor within the meaning of 
 the statute concerning embezzlement. Peo- 
 ple v. Allen, 5 Denio, 70. 
 
 23. The relation between the superintend- 
 ent and keeper of a county poorhouse, is of 
 a public nature, and the latter is not, when 
 acting as the keeper of the poorhouse, the 
 servant or agent of a private person within 
 the New York statute of embezzlement (3 
 R. S. G78, § 59). Neither is he the agent or 
 servant of an incorporated company within 
 such statute. Coats v. People, 22 N. Y. 245. 
 
 24. In Massachusetts, a person emj^loyed 
 to collect bills for the proprietor of a news- 
 paper office, who appropriates the money he 
 collects, is not an agent or servant, with- 
 in the statute (R. S. ch. 126, § 29) 
 against embezzlement. Com. v. Libby, 11 
 Mete. 6 k 
 
 25. Where an auctioneer received money 
 on the sale of his employer's goods, and did 
 not pay it over, but misapplied it, it was 
 held that he was not an agent or servant 
 within the meaning of the statute of Massa- 
 chusetts (R. S. ch. 126, § 29), whether he re- 
 ceived the goods for sale in the usual mode, 
 or on an agreement to pay a certain sum 
 therefor within a specified time after the 
 sale. Com. v. Stearns, 2 Mete. 343. 
 
 2. Indictment. 
 
 26. Averment of relation of defendant 
 to party injured. In, New York, an indict- 
 ment for embezzlement under the statute (2 
 R. S. 678, § 59), must charge that the de- 
 fendant was a clerk or servant of some per- 
 son (or an officer or agent of a corpora- 
 tion), and that the property embezzled came 
 to his possession, or under his care, by vir- 
 tue of such employment. People v. Allen, 
 5 Denio, 76. 
 
 27. But an indictment for having felo- 
 niously recevied goods which had been em- 
 bezzled, knowing them to have been em- 
 bezzled, need not charge that the person 
 who embezzled the goods was the clerk or 
 servant of the owner of them. People v. 
 Stein, 1 Parker, 303. 
 
 23. An indictment which alleged that the 
 defendant had collected and received a cor-
 
 EMBEZZLEMENT. 
 
 121 
 
 Indictment. 
 
 tain sum of money, in the capacity of an 
 attorney at law for and in behalf of A., and 
 in the name of A., was held bad in not 
 showing that the relation of attorney and 
 client existed between A. and the defendant. 
 People V. Tryon, 4 Mich. CG5. 
 
 29. Description of property. An indict- 
 ment which does not allege the object for 
 which the defendant was intrusted with the 
 property, or describe the property, is fatally 
 defective. Com. v. Smart, 6 Gray, 15. This 
 was held of an indictment against an officer, 
 
 . for the embezzlement of money paid to him 
 as fines, which failed to state the character 
 or kind of the fines, and to charge a fraudu- 
 lent intent. Peacock v. State, 36 Texas, 647. 
 
 30. An indictment for embezzlement is 
 sufficient which describes the property em- 
 bezzled with as much particularity as is re- 
 quired in an indictment for larceny. Com. 
 V. Concannon, 5 Allen, 502; People v. Cox, 
 40 Cal. 275. 
 
 31. An indictment for embezzling coin 
 need not specify the denomination of the 
 several pieces; and if it do, evidence of the 
 embezzlement of coin of equal aggregate 
 value will be sufiicient without proving the 
 denomination. Riley v. State, 32 Texas, 763. 
 
 32. An indictment for embezzlement 
 which describes the property " as certain 
 books, letter-files, knives, bank shares, 
 slates, and sealing-wax, to about the value 
 of forty dollars," is sufiicient under the 
 statute of Alabama. Mayo v. State, 30 Ala. 32. 
 
 33. An ipdictment wliich alleges the lar- 
 ceny or embezzlement of printed sheets, is 
 not sustained by proof that they were de- 
 livered to the defendant by the owner to 
 be bound, and that after he had folded and 
 trimmed them, he embezzled and fraudu- 
 lently converted them to his own use. The 
 indictment should have charged a larceny or 
 embezzlement of books. Com. v. Merrifield, 
 4 Mete. 468. 
 
 34. A count for embezzlement may charge 
 the embezzling of several different articles, 
 some of them greater and some less than 
 $25 in value. Coats v. People, 4 Parker, 
 662. 
 
 35. An information against a county treas- 
 uier for embezzling public funds in the 
 
 county treasury, need not specify the kind of 
 funds embezzled. State v. Smith, 13 Kan- 
 sas, 274 ; Same v. Graham, lb. 299. 
 
 36. An indictment under the act of Con- 
 gress of March 3d, 1825, for embezzling a 
 letter containing a bank note, need not state 
 what office the defendant held, nor set out 
 the bank note. U. S. v. Clark, Crabbe, 584. 
 
 37. An indictment which charges the em- 
 bezzlement of "a lot of lumber," "a cer- 
 tain lot of furniture, " and "certain tools," 
 is bad for uncertainty. State v. Edson, 10 
 La. An. 229. 
 
 38. An indictment is not demurrable as 
 being vague and indefinite, which charges 
 the defendant vnth having received a cer- 
 tain amount of money to be applied for the 
 use or benefit of the bailor, and that on a 
 certain day, he fraudulently converted a 
 specific portion thereof to his own use, with- 
 out the consent of the owner and to his in- 
 jury. But it is not competent for the pros- 
 ecution to prove that the accused had 
 reported to the bailor special payments as 
 having been made to particular persons in 
 the performance of his duty as bailee, and 
 that such pjiyments were not in fact made 
 to the amounts so reported, or that there 
 were no such persons as those to whom the 
 payments were reported to have been made. 
 Hoyt V. State, 50 Ga. 313. 
 
 39. Averment of ownership. Money 
 intrusted to an express company for trans- 
 portation may be described in an indict- 
 ment for the embezzlement of it to be the 
 property of the company. Riley v. State, 
 32 Texas, 763. 
 
 40. An indictment for the embezzlement 
 of bank bills intrusted by a soldier who was 
 a minor, to the defendant, to be carried to 
 the minor's father, may aver the ownership 
 of the bills to be in the father. Com. v. 
 Norton, 11 Allen, 110. 
 
 41. Where an indictment for embezzle- 
 ment properly alleges the ownership at the 
 date of the delivery of the property to the 
 defendant, and it is averred that the em- 
 bezzlement occurred while the trust con- 
 tinued on which the property was received, 
 there need not be an averment that the title 
 to the property continued in the party who
 
 122 
 
 EMBEZZLEMENT. 
 
 Indictment. 
 
 Jurisdiction. 
 
 Evidence. 
 
 intrusted it to the defendant down to the 
 time 'A'hen tlie enibezzleuicnt was com- 
 mitted. Com. V. Bntterick, 100 Mass. 1. 
 
 42. It is not a good objection to an indict- 
 ment for embezzlement and larceny of pro- 
 visions belonging to a county poorhouse that 
 they are laid in the indictment as the prop- 
 erty of the superintendent of the poor of 
 the county. Coats v. People, 4 Parker, 6G3. 
 
 43. An indictment against a public officer 
 for fraudulently embezzling and converting 
 to his own use moneys under his control by 
 virtue of his office, need not allege that the 
 money was the property of another, or 
 whose money it was. State v. Walton, 62 
 Maine. 100; s. c. 2 Green's Crim. Reps. 465. 
 
 44. Charging distinct acts. The indict- 
 ment may contain counts for both embezzle- 
 ment and larceny. Coats v. People, 4 Parker, 
 663. 
 
 45. An indictment for embezzlement 
 charged the defendant 1st, with embezzling 
 the sum of three hundred and sixty dollars 
 and fifty cents, the 19th of November, 1801 ; 
 2d, with embezzling the sum of six hundred 
 and thirty-two dollars and twenty -five cents, 
 January 1st, 1862. Held on demurrer, by- 
 Norton, J., that it was bad in charging two 
 distinct offenses. Doubted by the rest of 
 the court. People v. Bailey, 23 Cal. 577. 
 
 46. An indictment which alleges that the 
 defendant having received as tax collector 
 a certain sum for licenses due the State, and a 
 certain other sum for licenses due the county, 
 amounting in the whole to a sum specified, 
 embezzled said last mentioned sum, the prop- 
 erty of said State and county, does not 
 charge two distinct offenses. People v. De 
 La Guerra, 31 Cal. 416. 
 
 3. Jurisdiction. 
 
 47. Of state courts. The fact that when 
 an ofiicer of a national bank embezzles the 
 funds of the bank, he is liable to punishment 
 under the act of Congress of 1864, ch. 106, 
 § 55, does not exclude the jurisdiction of the 
 State courts over the same offense. Com. 
 v. Barry, 116 Mass. 1. 
 
 48. Notwithstanding the act of Congress 
 which provides that if any teller or other 
 oflBcer of the bank shall embezzle the prop- 
 
 erty of the bank, he shall be punished 
 by fine and imprisonment, it is competent for 
 the legislature of a State to pass a law aflect- 
 ing the business of the bank with its citizens, 
 or protect the bank or its customers in the 
 conduct of that business by a penalty. 
 Where, therefore, a teller of a national bank 
 in Connecticut stole a package of bonds 
 which had been left in the bank on special 
 deposit by one of its customers, it was held 
 that under the statute of the State (Gen. 
 Stats, tit, 13, § 191) in relation to embezzle- 
 ment by the officers of a bank, the courts of 
 the State had jurisdiction of the oftense. 
 State V. Tuller, 84 Conn. 280. 
 
 49. In Maine, under the statute (R. S. ch. 
 156, § 7), where a person to whom property 
 is intrusted, to be carried for hire and de- 
 livered in another State, before such delivery 
 fraudulently converts the same to his own 
 use, he is liable whether the act of conver- 
 sion be in Maine or in the other State. 
 State V. Haskell, 33 Maine, 127. 
 
 1/ 
 
 4. Evidence. 
 
 50. Delivery of property. An indict- 
 ment which alleges that property embezzled 
 was possessed by B., and by him delivered 
 to the defendant, is supported by proof that 
 it was delivered by B. to some one acting 
 for the defendant. State v. Hinckley, 38 
 Maine, 21. 
 
 51. Must show fraud. A person cannot 
 be convicted of embezzlement upon proof 
 that he received money for the purpose of 
 paying a note, and did not pay the same, 
 unless it is further proved that being the 
 agent of another, and having received the 
 money as such, he failed to pay the same in 
 consequence of some fraudulent use or con- 
 version of the money. State v. Snell, 9 R. 
 I. 113; s. c. 1 Green's Crim. Reps. 533. 
 
 52. On the trial of. an indictment for 
 embezzling a mortgage, the following in- 
 struction was held proper: That to make 
 out the charge against the defendant, 
 it must be proved that he feloniously and 
 fraudulently conTerted to his own use the 
 mortgage, and that it belonged to the com- 
 plainant ; that if the mortgage was a mere 
 cheat on the complainant's part, and ob-
 
 EMBEZZLEMENT.— ESCAPE. 
 
 123 
 
 Evidence. 
 
 Verdict. 
 
 Indictment. 
 
 At Common La^v. 
 
 tained by fraud, the defendant might law- 
 fully take it into his possession wherever he 
 could find it; but if it came into the com- 
 plainant's hands upon a valuable considera- 
 tion actually paid by him, though he was 
 not entitled to the whole amount nominally 
 due, and the defendant received it upon the 
 trust that he was to give it to the complain- 
 ant, and instead of doing so appropriated 
 it to his own use, he might be found guilty. 
 Com. V. Concancon, 5 Allen, 503. See U. S. 
 V. Taiutor, 11 Blatch. 374; s. c. 2 Green's 
 Crim. Reps. 241. 
 
 53. Need not be proof of separate acts. 
 On the trial of an indictment for embezzling 
 United States bonds, it is not necessary to 
 show that the several bonds were misappro- 
 priated by separate acts, or at different times, 
 in order to justify a conviction on each of 
 the counts in which the bonds are sepa- 
 rately described. In this respect, the law of 
 larceny and embezzlement is alike. Com. v. 
 Butterick, 100 Mass. 1. 
 
 54. Presujnptions. Evidence of other 
 acts of embezzlement by the defendant than 
 that charged in the indictment is admissible 
 on the qaestion of guilty intent. Com. v. 
 Shepard, 1 Allen, 575 ; Com. v. Tuckerman, 
 10 Gray, 173. 
 
 55. The agent of an express company, to 
 whom money was intrusted to be delivered 
 by him to consignees, stated that the money 
 was stolen from him on the way. Held that 
 in the absence of any reasonable account 
 given by him of the occurrence, he might be 
 convicted of embezzlement. Riley v. State, 
 32 Texas, 763. 
 
 56. Employer as witness. On a trial for 
 embezzlement alleged to have been com- 
 mitted by a servant or agent, the employer 
 is a competent witness to show that he did 
 not authorize the accused to do the acts 
 complained of, and that the accused has not 
 accounted to him for the property. Coats 
 v. People, 4 Parker, 602. 
 
 5. Verdict. 
 
 57. Against several. Where several are 
 charged witii feloniously receiving em- 
 bezzled goods, knowing them to have been 
 embezzled, all who are proved to have been 
 
 confederates in the transaction may be 
 found guilty, though the receiving was at 
 different times and places, and though all 
 were not present. People v. Stein, 1 Parker, 
 202. 
 
 58. Effect. Where an indictment con- 
 tains counts for embezzlement and larceny, 
 and the prisoner is tried for both oifenses, 
 finding the prisoner guilty of embezzlement 
 is equivalent to a verdict of not guilty of 
 the larceny charged. Guenther v. People,^ 
 24 N. Y. 100. 
 
 59. For other offense. Under an indict- 
 ment for embezzlement, there cannot be a 
 conviction of a breach of trust. State v. 
 Reonnals, 14 La. An. 278. 
 
 <!:mbraccru. 
 
 At common law. There is no such crime 
 at common law as an attempt to commit 
 embracery. State v. Sales, 2 Nev. 268. 
 
 Enlistment. 
 
 Indictment. In Vermont, an indictment 
 for a violation of the statute (R. S. ch. 
 119, § 29) in relation to the enlistment of 
 men within the State for military service 
 without the State, alleged that the defend- 
 ant, "of Fairfax, in the county of," &c., 
 ''on," &c., " at Fairfax," &c., "without due 
 authority from this State or the United 
 States, did enlist," &c., "one Edward Or- 
 ton, of Fairfax aforesaid, a person in this 
 State," &c. Held that it was alleged with 
 sufficient certainty that the person enlisted 
 was in the State at the time of enlistment. 
 State V. Cook, 38 Vt. 437. 
 
 ^Crror. 
 
 See Writ of error. 
 
 1. At common law. A person who es-
 
 124 
 
 ESCAPE. 
 
 What is. 
 
 What does not Amount to Aiding. 
 
 capes from lawful custody, though he use 
 no force or violence, is amenable to punish- 
 ment at common law. Com. v. Farrell, 5 
 Allen, 130. 
 
 2. What is. If a sheriff discharges the 
 duties of his oflBce so negligently that in 
 consequence of such negligence, a prisoner 
 leaves the jail and walks out into the sur- 
 rounding town, even for a few minutes only, 
 this constitutes an escape, though it be 
 proved that the prisoner actually returned. 
 Nail V. State, 34 Ala. 263. 
 
 3. It is no justification for breaking pris- 
 on to effect an escape that the commitment 
 was irregular. State v. Murray, 15 Maine, 
 100. 
 
 4. Where a person confined in jail went 
 by direction of the jailer to market for the 
 jail, cooked food for the prisoners in the 
 kitchen of the dwelling-house attached to 
 the jail, went to the adjacent barn and 
 there fed and milked the cow, and thence, 
 without the knowledge of the jailer, ran 
 away and left the State, it was held that the 
 conduct of the jailer did not excuse the 
 escape. VAlej v. State, 16 Conn. 47. 
 
 5. Who not liable. An indictment for a 
 negligent escape cannot be sustained against 
 a mere servant of the officer upon whom the 
 law imposes the obligation of safe custody. 
 State V. Errickson, 3 Vroom (32 K J.) 421. 
 
 6. In Massachusetts, the statute (R. S. ch. 
 143, § 21) punishing persons who forcibly 
 break prison with intent to escape, or by 
 force or violence attempt to escape there- 
 from, although no escape be efl'ected, does 
 not refer to persons who are held in custody 
 for trial or for not obtaining bail for appear- 
 ance, but only to those who are sentenced 
 to a term of imprisonment as a punishment. 
 Com. V. Homer, 5 Mete. 555. See Com. v. 
 Briggs, lb. 559. 
 
 7. Aiding. Informality in the complaint 
 and in the sentence as orally announced, but 
 under which no commitment has taken 
 place, is no justification for aiding the pris- 
 oner to escape from the custody of the offi- 
 cer. Com. v. Morihan, 4 Allen, 585. 
 
 8. On the trial of an indictment for aid- 
 ing the prisoner to escape when held under 
 a warrant, it is no defense that the prisoner 
 
 was not in fact guilty of the offense with 
 which he was charged. State v. Bates, 23 
 Iowa, 96. 
 
 9. Any assistance given to one known to 
 be a felon, in order to hinder his apprehen- 
 sion, trial or punishment, or aiding him to 
 escape, will make a person an accessory 
 after the fact. But merely suffering the 
 felon to escape, or agreeing for money not 
 to prosecute him, or failing to make known 
 the felony, will not make the party an ac- 
 cessory after the fact. Wren v. Com. 26 
 Graft. 952. 
 
 10. Until the oflense has been consum- 
 mated, any aid or assistance rendered to a 
 party in order to enable him to escape, will 
 not make the person affording such assist- 
 ance guilty as an accessory after the fact. 
 Harrol v. State, 89 Miss. 702. 
 
 11. What does not amount to aiding. 
 It is not a violation of the statute of Arkan- 
 sas (R. S. ch. 44, § 7), which forbids the 
 conveying to any person lawfully impris- 
 oned, any instrument, arms or other thing 
 calculated to aid his escape, for a person to 
 convey to a prisoner a written communica- 
 tion informing him that he has a friend and 
 can be released from confinement. Hughes 
 V. State, 1 Eng. 1^2. 
 
 12. When the prisoner is out on bail, the 
 finding of a verdict of guilty does not ipso 
 fact-) place him in the custody of the sheriff; 
 and therefore one who aids his escape is 
 not liable to prosecution. Redman v. State, 
 28 Ind. 205. 
 
 13. When a person charged with crime 
 is out on bail, and his sureties, with his 
 consent, surrender him to the sherifi', taking 
 the latter's receipt therefor, the sheriff, if he 
 have no copy of the recognizance, has not 
 lawful custody of him, and a person who 
 assists him to escape is not guilty of felony. 
 State V. Beebe, 13 Kansas, 589. 
 
 14. Indictment. An indictment which 
 charges an intent to break open the jail to 
 libei'ate A., confined therein, to effect his 
 escape, sufficiently alleges an intent to aid 
 his escape. State v. Abbott, 16 New Hamp. 
 507. 
 
 15. An indictment which alleges that the 
 defendant " willfully and negligently " per-
 
 ESCAPE.— ESTRAY. 
 
 125 
 
 Evidence. 
 
 Taking up. 
 
 nutted an escape, is bad for duplicity. State 
 V. Dorsett, 21 Texas, 656. 
 
 16. It is not a good objection to an in- 
 dictment for an escape that the defendant, 
 who was not regularly appointed and qual- 
 ified as a constable, but had assumed to act 
 as such, was charged therein with negli- 
 gence as a lawful constable. State v. May- 
 berry, 3 Strobh. 144. x^ 
 
 V7. Evidence. Under an indictment 
 against a sheriflf for negligent escape, a con- 
 viction may be had on proof of a voluntary 
 escape. Nail v. State, 34 Ala. 262. Doubt- 
 ed in Kavauaugh v. State, 41 Ala. 399. 
 
 18. On the trial for an escape from the 
 penitentiary, the original conviction and 
 sentence to the prison may be proved by a 
 transcript of the judgment without the in- 
 dictment, it appearing from the record that 
 the prisoner was sentenced for the crime al- 
 leged in the indictment for the escape. 
 Sandford v. State, 6 Eng. 328. 
 
 19. Where an indictment for escape al- 
 leges that the prisoner was convicted of lar- 
 ceny, sentenced to the penitentiary and es- 
 caped therefrom, the fact that he was the 
 same person that had been convicted of 
 larceny is material, and by pleading not 
 guilty he does not admit it. But circum- 
 stantial evidence of identity will be suffi- 
 cient. State V. ]\rurphy, 5 Eng. 74. 
 
 20. In Massachusetts, under an indictment 
 for an escape from the house of correction, 
 the whole yard of the house, though divided 
 by a public street against which it is fenced, 
 is deemed to be adjoining or appurtenant, 
 within the statute (Gen. Stats, ch. 178, §§ 6, 
 7j. Com. V. Curley, 101 Mass. 24. 
 
 21. Effect on rights of defendant. Where 
 a person an trial for felony escapes as the 
 jury are in the act of bringing in their ver- 
 dict, the jury should be discharged, and the 
 prisoner when re-arrested be put on trial be- 
 fore another jury. Andrews v. State, 2 
 Sneed, 550. 
 
 22. Legal proceedings will not be allowed 
 to be taken in behalf of a prisoner when he 
 is no longer in custody or out on bail, but 
 has fled from the custody of the law. People 
 V. Genet, 59 N. Y. 80. So far as the de- 
 fendant has any right to be heard after con- 
 
 viction, he must be deemed to have waived 
 it by escaping from custody and failing to 
 appear and prosecute his exceptions in per- 
 son. Com. V. Andrews, 97 Mass. 543. 
 
 23. Where it appears that the defendant 
 since his conviction has escaped, the court 
 will direct that so much of the order award- 
 ing the writ of error as operates as a super- 
 sedeas to the judgment be discharged, and 
 that the writ of error be dismissed, unless by 
 a certain day, the defendant is in custody. 
 Sherman v. Com. 14 Graft. 677. 
 
 24. Although where a prisoner after con- 
 viction escapes and remains a fugitive he can- 
 not require at the hands of the courts any pro- 
 ceedings in his favor, or insist upon any steps 
 adverse to the prosecution, yet he cannot be 
 deprived of the benefit of proceedings al- 
 ready taken before his escape. Sharkey v. 
 People, 3 N. Y. Supm. N. S. 739; 8 lb. 300. 
 
 25. A convict may be returned to the State 
 prison from which he has escaped, after the 
 expiration of the time for which he was im- 
 prisoned, upon information or suggestion 
 and trial, as to his identity and escape, in 
 the court which sentenced him. In New 
 York, a Court of Sessions has jurisdiction of 
 such a case. Haggerty v. People, 6 Lans. 
 347. A person having been convicted of 
 robbery, and sentenced to the State prison, 
 escaped therefrom, and after the expiration 
 of the time for which he was sentenced, com- 
 mitted a burglary. The court in which he 
 was tried and convicted for the robbery 
 directed his return to the State prison for a 
 time equal to the remainder of his term un- 
 served, and he was then put upon trial for 
 the burglary, convicted and sentenced there- 
 for, the second term to commence at the ex- 
 piration of the first. Held proper. lb. 
 
 <£5trai3. 
 
 1. Taking up. It is an indictable offense 
 to take up and use an estray without first 
 having complied with the requirements of 
 the law in relation thereto. State v. Armon- 
 trout, 21 Texas, 472. 
 
 2. Indictment. An indictment for taking 
 up and using an estray, need not state the
 
 12G 
 
 ESTEAY.— EVIDENCE. 
 
 Indictment. 
 
 In General. 
 
 age, color, sex, oi* brand of the animal. 
 State V. Christ, 33 Texas, 99. 
 
 3. An indictment for taking up and using 
 an estray belonging to A. B. is good, the 
 fact that the owner of the animal had been 
 discovered and was known when the indict- 
 ment was found, being no proof that it was 
 not an estray when taken up. State v. 
 Fletcher, 35 Texas, 740. And an animal 
 may be an estray although the owner is 
 known, provided the animal was a great 
 distance out of its usual range. State v. 
 Apel, 14 lb. 431. 
 
 ^uibcucc. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 lo. 
 
 16. 
 17. 
 
 In gexeral. 
 
 Amouxt of proof required to convi ct. 
 
 Burden of proof. 
 
 Documentary EvroENCE. 
 
 Written instrujients how proved. 
 
 Proof of testimony given on former 
 
 trial. 
 Admissions and declarations. 
 Confessions. 
 
 Privileged communications. 
 Character. 
 
 Presumptive evidence. 
 Proof of other offense. 
 Testimony op accomplice. 
 Testimony op experts. 
 Opinions of witnesses who abe not 
 
 experts. 
 Proof op alibi. 
 Evidence to discredit or sustain 
 
 witness. 
 
 1. In general. 
 
 1. When material must be received. 
 Although evidence which it is probable may 
 be ruled out should not, if possible, be heard 
 by or be discussed before the jury, Carter 
 V. State, 37 Texas, 362 ; yet competent evi- 
 dence cannot be rejected on the ground that 
 it is inconclusive, or of little weight. Marx 
 V. People, 63 Barb. 618. 
 
 2. The law does not favor estoppels ; and 
 a party cannot be precluded from giving 
 evidence touching matters directly or collat- 
 erally involved in the issue, unless it appear 
 
 with certainty that such matters have been 
 determined against him by competent judi- 
 cial authority. People v. Frank, 28 Cal. 
 507. 
 
 3. Must be derived from facts proved. 
 Circumstantial evidence consists in rea- 
 soning from facts which are known or 
 proved, to establish such as are conjectured 
 to exist. But the process is fatally defect- 
 ive, if the circumstances themselves from 
 which it is sought to deduce the conclusion, 
 depend upon conjecture. People v. Ken- 
 nedy, 33 N. Y. 141. 
 
 4. The evidence cannot be helped out by 
 the jury, by taking notice from their own 
 knowledge, that as early as nine o'clock of 
 the night, the part of the street where the 
 offense was committed, was more likely to 
 be deserted than any other part of the city; 
 and where the judge so charged, it was held 
 error. Lenaban v. Peojjle, 5 N. Y. Supm. 
 N. S. 265. 
 
 5. Where motive is material, it cannot be 
 imagined; but the facts from which it may 
 be inferred must be proved. People v. 
 Bennett, 49 N. Y. 137. 
 
 6. Eleven of the jurors who sat on the 
 trial of a complaint for selling intoxicating 
 liquors in violation of law, had tried other 
 similar cases at the same term, in which law 
 books and the constitution of the State had 
 had been read and commented on by coun- 
 sel without objection. The court charged 
 them " that they had the right to bring to 
 their aid all the information they had de- 
 rived from any sources equally open to the 
 observation of all, but that any particular 
 information which had been communicated 
 to portions of the jury from sources equally 
 open to the use of all, they could not em- 
 ploy as evidence in the case ; that they were 
 to decide the case according to the evidence 
 introduced into it, and not on evidence of 
 the law or facts introduced in other cases; 
 that the instruction of the court was the 
 only evidence of the law in the case, and 
 they were bound so to consider it. Held- 
 proper. Com. v. Lawrence, 9 Gray, 133. 
 
 7. On a trial for passing a counterfeit 
 bank bill, a witness testified without objec- 
 tion, that after the prisoner and his com-
 
 EVIDENCE. 
 
 127 
 
 In General. 
 
 panion had been taken to the station house, 
 a boy brought in a roll of counterfeit bills 
 which he said the prisoner's companion had 
 thrown down in the street after their ^rrest 
 Held that although the hearsay evidence of 
 the boy was given without objection, yet the 
 admission of the colmterfeit bills in evi- 
 dence was error. Cantor v. Peo2:)le, 5 
 Parker, 217. 
 
 8. Must be responsive to the issue. 
 Where irrelevant testimony itui^lculated to 
 mislead or prejudice the minds of the jury, 
 it is error to receive it. State v. Arnold, 13 
 Ired. 184. On a trial for murder, the prose- 
 cution having offered the reputed wife of 
 the defendant as a witness, and proved a 
 marriage in fact, proposed to introduce evi- 
 dence to show that the marriage was void, 
 so as to make the alleged wife a competent 
 wntness against the defendant — Held that 
 as the marriage was not in issue, and the 
 pleadings did not give the defendant notice 
 that such a question was to be tried, the 
 evidence was not admissible. Dixon v. Peo- 
 ple, 18 Mich. 84. 
 
 9. On an indictment against A. for the 
 willful burning of the barn of P., evidence 
 was given implicating S. To show malice 
 on the part of S. toward P., the latter had 
 been asked by the prosecution whether 
 some time before the fire, S. had instituted 
 a criminal prosecution against him, from 
 which he was discharged. Having an- 
 swered in the affirmative, an offer by the 
 
 Held proper. Com. v. Vaughan, 9 Cush. 
 594. 
 
 10. On a joint indictment against two, 
 proof that the offense was committed sever- 
 ally will not sustain a conviction of either 
 or both. Johnson v. State, 44 Ala. 414. 
 And where the circumstances proved, impli- 
 cate two persons equally, but who are in no 
 way connected in committing the crime, 
 neither can be convicted. Kirby v. State, 3 
 Humph. 289. And see Stephens v. State, 
 14 Ohio, 386. 
 
 11. Name of defendant. It may be 
 proved on the trial, that the prisoner was 
 knoAvn by tke name mentioned in the in- 
 
 dictment, and also by another name, notwith- 
 standing the indictment does not allege that 
 he w^as known by both names. Johnson v. 
 State, 46 Ga. 269. 
 
 12. Whether a person is as well known by 
 one name as another, is a question of repu- 
 tation, custom, and usage, and not to be 
 determined by records, or limited to names 
 used in the person's presence. Com. v. Gale, 
 11 Gray, 320. The defendant being indicted 
 for larceny, pleaded misnomer in abatement. 
 Issue was joined on the replication that he 
 was known as well by the name in the 
 indictment as by that in the plea. The 
 judge after stating to the jury the question 
 for them to decide, gave them the fol- 
 lowing illustration: "If a stranger should 
 go where the defendant is known and in- 
 quire for his house, would those of whom 
 he inquired, recognize the man inquired for 
 as well by one name as the other? " Held 
 proper. State v. Dresser, 54 Maine. 569. 
 
 13. Upon the issue raised by a plea in 
 abatement as to whether the defendant was 
 indicted by the right name, the fact that to 
 a former indictment by the same name 
 she answered upon her arraignment, and 
 pleaded not guilty, is proper for the consid- 
 eration of the jury. State v. Homer, 40 
 Maine, 438. 
 
 14. If a person is in the habit of using 
 initials for his christian name, and is in- 
 dicted by these initials, the fact whether he 
 is so known may be put in issue; and if the 
 
 defense to show that such prosecution was . . , • ^ , ■ -. i_ 
 
 . J , , ,, ' . , »._ issue IS proved against aim, he may be con 
 
 founded on probable cause, was reiected. . , V,^. „, , ,„ ., o-n 
 
 ' . „ --^ victed. Diggs V. State, 49 Ala. 311. 
 
 15. Name of person injured. Where it is 
 alleged in the indictment that the name of 
 the person injured is unknown to the grand 
 jury, the proof must correspond to the alle-j 
 gation; and if there be no proof on the 
 subject, the defendant cannot be convicted. 
 Stone V. State, 30 Ind. 115. But see State 
 V. Wilson, 30 Conn. 500. 
 
 16. An indictment charged the prisoner 
 with defrauding John J. Robinson. The evi- 
 dence was that the name was spelt Robison. J 
 The court charged the jury that it was for 
 them to determine whether the names had 
 the same sound, and if the sound was not
 
 128 
 
 EVIDENCE. 
 
 In General. 
 
 the same it would be their duty to acquit. 
 Jkld correct. People v. Cooke, 6 Parker, 31. 
 
 17. Where an indictment alleged the name 
 of the deceased to be Louis Boudet, or 
 JBoredet, while his real name was proved to 
 be Louis Burdct, and to be sometimes pro- 
 nounced as if spelt Bouredet, it was held 
 that if his real name was the same in sound 
 as if written Boudet or Boredet, or so nearly 
 the same that the difference would be 
 scarcely perceptible, the variance was im- 
 material. Aaron v. State, 37 Ala. 103. 
 
 18. An indictment for murder charged that 
 deadly and mortal brui&es were inflicted on 
 Augustine^ and that " of the said mortaj 
 bruises and wounds the said Augustina 
 died." Held, not bad after verdict. Coin. 
 V. Desmartean, 16 Gray, 1. 
 
 19. An indictment for an assault with a 
 deadly weapon charged the name of the per- 
 son assaulted as '■'■ Mary Banner.'''' On the 
 trial it was proved that her name was 
 *■' Bannahery Held.^ that the variance was 
 immaterial. Gahan v. People, 58 111. 160; 
 s. c. 1 Green's Crim. Reps. 704. 
 
 20. Middle letter of name. The middle 
 I letter has been held no part of the name. 
 
 Therefore, where the indictment charged 
 that a robbery was committed on I. R. R., 
 and it was proved that it was committed on 
 I. B. R., it was held that there was no vari- 
 ance. Miller ^. People, 39 111. 457. But 
 an indictment which charged the defendant 
 as O. Alonzo Rockwell was held not sus- 
 tained by proof that the defendant usually 
 signed his name O. A. Rockwell, and was 
 generally called O. A. Rock^vell, that some 
 of his relatives called him Alonzo, and that 
 O. A. were the initials of his name. Rock- 
 well V. State, 13 Ohio, N. S. 427. 
 
 21. Proof of identity of prisoner. When 
 the identity of the prisoner is an important 
 inquiry, it is competent to show the ac- 
 quaintance and familiarity of the witness 
 with him, and the witness may be asked 
 where the acquaintance was, and what was 
 his own business. State v. Bartlett, 55 
 Maine, 200. 
 
 J 22. The question as to what is idemsonans 
 'is for the jury, and not the court. Taylor 
 
 V. Com. 20 Gratt. 825. The defendant has 
 a right to submit to the jury as a question 
 of fact whether the name proved is idem 
 sonans with that laid in the indictment, and 
 by omitting to do so he waives all claim to 
 insist on the objection. Com. v. Gill, 14 
 Gray, 400. 
 
 23. The court instructed the jui-y thus: 
 "If Geo. W. Bell is the name of the de- 
 fendant, his wife is correctly named and 
 described when called Mrs. Geo. W. Bell." 
 Held error, in deciding what was the name 
 of the defendant's wife as matter of law, 
 instead of leaving it to be determined by the 
 jury. Bell v. State, 25 Texas, 574. 
 
 24. Immaterial averments need not be 
 proved. Although the general rule is that 
 all descriptive averments in an indictment i 
 must be proved as laid, yet when an aver- 
 ment may be omitted without afiecting the 
 charge against the prisoner, and. without 
 detriment to the indictment, it may be dis- 
 regarded in evidence. Where an indictment 
 for perjury committed in testifying in an 
 action in favor of J. B. against the trustees 
 of the " Colebrook " Academy, subsequently 
 emj)loyed the words " Colebath Academy 
 aforesaid, " it was held that the word Cole- 
 hutli might be rejected as surplusage. State 
 V. Bailey, 31 New Hamp. 521. 
 
 25. Where an indictment charged the de- 
 fendant with willfully and falsely marking 
 sixty sacks of flour with a certain brand, 
 
 with intent to defraud S. and W., and that 
 
 he then sold and delivered them to S. and 
 W., it was held sutiicient to prove that the 
 defendant falsely marked such sacks, or any 
 of them, with intent to defraud, and that 
 the prosecution need not prove that the same 
 were sold and delivered to S. and W. State 
 V. Burge, 7 Iowa, 255. 
 
 26. Timjg not mat erial. It is not neces- 
 sary to prove the precise day on which the 
 crime was committed. Com. v. Dacey, 107 
 Mass. 206. The evidence may extend back 
 to any period previous to the finding of the 
 indictment within the statutory limits for 
 prosecuting the ofiense. McBryde v. State, 
 34 Ga. 202. Whether in the computation 
 of time, the day on which an act is done is 
 to be included or excluded, will depend 
 
 "y
 
 EVIDENCE. 
 
 129 
 
 In General. 
 
 Amount of Proof Required to Convict. 
 
 upon the circumstances. State v. Asbury, 
 26 Texas, 82. 
 
 27. Place. It is erroneous to instruct the 
 jury that they may find the defendant guilty 
 without proof that the offense was com- 
 mitted iu the county in which the indict- 
 ment was found, and within the time pre- 
 scribed by the statute of limitations. Hughes 
 V. State, 35 Ala. 351 ; Green v. State, 41 lb. 
 419. Where the evidence on a trial for 
 grand larceny conduced to show that the 
 ofi'ense was committed at a drinking saloon, 
 but there was nothing in the record which 
 tended to prove that the saloon was in the 
 county, it was held that there must be a 
 new trial. People v. Parks, 44 Cal. 105 ; s. 
 c. 2 Green's Crim. Reps. 398. 
 
 2. Amount of proof required to convict. 
 
 28. Must satisfy the jury beyond a 
 reasonable doubt. The legal test of the 
 sufficiency of evidence to authorize a con- 
 viction is not that it excludes every possi- 
 bility that another person, and not the ac- 
 cused, may have committed the crime, but 
 its adequacy to satisfy the understanding 
 and conscience of a jury, and to exclude 
 from their minds all reasonable doubt of 
 the guilt of the accused. Murphy v. People, 
 6 N. Y. Supm. N. S. 369 ; Chisholm v. State, 
 45 Ala. 66. But it ought not only to be 
 consistent with the prisoner's guilt, but in- 
 consistent with any other rational con- 
 clusion. Stephens v. People, 4 Parker, 896; 
 19 N. Y. 549 ; People v. Bennett, 49 N. Y. 
 137; Williams v. State, 41 Texas, 209: 
 Barnes v. State, lb. 342 ; Carter v. State, 46 
 Ga. 637; Algheri v. State, 25 Miss. 584; 
 Sumner v. State, 5 Blackf. 579 ; People v. 
 Murray, 41 Cal. 66 ; U. S. v. Douglass, 2 
 Blatchf. 207. 
 
 29. The following instruction was held 
 erroneous: In order to convict, "the jury 
 should be satisfied as reasonable men, so 
 that they would be willing to act upon it as 
 in matters of great importance to them- 
 selves ;" the rule requiring that they should 
 be satisfied to the extent they would be in 
 matters of the highest concern and impor- 
 tance. State V. Dineen, 10 Minn. 407 ; B. p. 
 
 9 
 
 State V. Shettleworth, 18 lb. 208 ; Bradley 
 V. State, 31 Ind. 492. 
 
 30. To warrant a conviction upon proof 
 of circumstances which are inconclusive, 
 they must be so multiplied as to increase 
 the probability to an indefinite extent be- 
 yond mere calculation. But before the ap- 
 pellate court can determine that the court 
 below erred in refusing a charge which as- 
 serted the principle generally, the record 
 must show that the evidence was confined 
 to facts entu-ely inconclusive. The correct 
 rule is not whether the circumstances proved 
 produce as full conviction as the positive 
 testimony of a single credible witness, but 
 whether they produce moral conviction to^ 
 the exclusion of every reasonable doubt. 
 Mickle V. State, 27 Ala. 20. Where there is 
 prima facie proof of the defendant's guilt, 
 and no rebutting testimony, it is not er- 
 roneous to refuse to charge the jury that 
 the testimony offered by the prosecution is 
 not conclusive evidence of guilt. Swallow 
 V. State, 22 Ala. 20. 
 
 31. Meaning of reasonable doubt. Proof 
 "beyond a reasonable doubt "' is not beyond 
 all possible or imaginary doubt, but such 
 proof as precludes every reasonable hypo- 
 thesis except that which it tends to support. 
 It is proof "to a moral certainty,'' as dis- 
 tinguished from an absolute certainty. Com. 
 V. Costley, 118 Mass. l,per Gray, Ch. J. The 
 following instruction was held proper"} ''By <; 
 reasonable doubt, is ordinarily meant such a I 
 one as would govern or control you in your ' 
 business transactions or the usual pursuits of 
 life. "7 State v. Millain, 3 Nev. 409. 
 
 32. The following instruction was held 
 proper : '' Jurors have sometimes said after 
 the acquittal of a prisoner, that they were 
 satisfied of his guilt, and had no doubt of j 
 it, but did not think there was sufficient 
 evidence to warrant a conviction. This is 
 wrong; for if a juror goes into the trial of 
 
 a case with his mind unprejudiced, and 
 knowing nothing of the facts, and becomes 
 satisfied without doubt from the testimony- 
 offered, that the prisoner is guilty, there can 
 be no reasonable doubt in his mind." State 
 V. James, 37 Conn. 355. 
 
 33. Positive negation equal to affirma-
 
 130 
 
 EVIDENCE. 
 
 Amount of Proof Required to Convict. Burden of Proof. Documentary Evidence. 
 
 tion. Wliere a trustworthy witness swcais 
 positively that the defendant did not strike 
 the blow, it is not negative evidence, but 
 entitled to equal weight with the testimony 
 of a witness who swears that he did do so. 
 Coughlin V. People, 18 111. 266. 
 
 34. Testimony partly false. It is not 
 an inlk'xible rule, that when a witne-s has 
 sworn falsely, his testimony is to be dis- 
 regarded except in those particulars in 
 which it is corroborated. Com. v. Billings, 
 97 Mass. 405; State v. Williams, 2 Jones, 
 257; State v. Smith, 8 lb. 133; State v. 
 Brantly, 63 N. C. 518. . But in Tennessee, 
 it has been held that where evidence pro- 
 posed contains an admixture of illegal 
 matter, the court may disallow the whole. 
 Harman v. State, 3 Head, 243; and in Ohio, 
 that where a witness is proved to have 
 committed perjury, his evidence must be 
 wholly rejected. Stofler v. State, 15 Ohio, 
 N. S. 47. 
 
 3. Burden o? proof. 
 35. On prosecution. Where the court 
 charged the jury, that when the prosecution 
 had made out o, 2)Tima facie case, the burden 
 of proof was on the defendant to restore 
 him to that presumption of innocence in 
 which he was at the commencement of the 
 trial, it was held that the instruction was 
 erroneous, that the jury should have been 
 told that the burden was on the common- 
 wealth to establish the guilt of the defend- 
 ant, and that he was to be presumed in 
 nocent, unless the whole evidence in the 
 case satisfied them of his guilt. Com. v. 
 Kimball, 24 Pick. 366. See Ogletree v. State, 
 28 Ala. 693. 
 
 36. When an indictment charges that the 
 y defendant kept a ferry without license, the 
 
 burden of proof is on the prosecution to 
 show that the defendant had no license. 
 Territory v. Reyburn, McCahon's Kansas, 
 134; contra. Wheat v. State, 6 Mo. 455. 
 
 37. On tb.e defense. When the matter 
 of defense is wholly disconnected from the 
 body of the crime charged, the burden of 
 proof rests upon the accused. State v. 
 Murphy, 33 Ind. 270 ; and where the subject- 
 matter of a negative averment relates to the 
 
 defendant personally, or is peculiarly within 
 his knowledge, the averment will be taken 
 as true, unless disproved by him. State v. 
 McGlynn, 34 New Hamp. 432. 
 
 38. Whsre it is proved that there was a 
 conspiracy to commit murder, and that one 
 of the conspirators was in a situation in 
 which he might have given aid to the 
 perpetrator of the homicide, the burden is 
 on him to rebut the presumption by showing 
 that he was there for a different purpose. 
 Com. V. Kuapp, 9 Pick. 496. 
 
 39. Where a miller, who had received 
 barilla to grind, was charged with fraudu- 
 lently retaining part of it, and returning 
 a mixture of barilla and plaster of paris, 
 it was held that the prosecution was not 
 bound to produce the cartman who carried 
 the barilla to and from the mill, to prove 
 that it was not adulterated in the trana- 
 portation, although there was only circum- 
 stantial evidence, that is was adulterated 
 by the miller. Com. v. James, 1 Pick. 375. 
 
 40. A person is presumed to intend the 
 ordinary consequences of his acts, and the 
 burden to rebut the presumption, rests upon 
 the person charged with crime. People v. 
 Orcutt, 1 Parker, 253. But an instruction 
 that if the jury find certain facts, they will 
 be justified in finding the defendant guilty, 
 as " the law presumes that he intended the 
 natural and probable consequences of his 
 own act, unless he should rebut such pre- 
 sumption by eviaence sufficient to satisfy 
 the jury," is erroneous. The jury should 
 have been instructed to find the defendant 
 guilty, if satisfied by the evidence of the 
 criminal intent, as well as of the other facts, 
 and not otherwise. Madden v. State, 1 
 Kansas, 340. 
 
 4. Documentary evidence. 
 41. When record must be produced. To 
 prove the previous conviction of a witness, 
 the record of conviction must be produced. 
 People V. Reinhart, 39 Cal. 449 ; People v. ^ 
 Melvane, lb. 614; People v. McDonald, lb. 
 697. A witness may refuse to answer when 
 asked whether he had at the term of the 
 court then in session pleaded guilty to a 
 ciime, the record being the best evidence.
 
 EVIDENCE. 
 
 131 
 
 Documentary Evidence. 
 
 Johnson v. State, 48 Ga. 116. But the de- 
 nial of a motion for delay in order to obtain 
 such record, is not ground of exception. 
 .State V. Damery, 48 Maine, 337. 
 
 42. The prisoner has the right to insist 
 that the conviction of a "witness of a peni- 
 tentiaiy offense, if proved, be shown by the 
 
 (record of conviction. The witness cannot 
 be asked whether he has been convicted and 
 sentenced to the penitentiary, although he 
 does not object. Even on cross-examin- 
 ation, the conviction of the witness cannot 
 be proved by the admission and consent of 
 the witness, if tlie prisoner object. Matter 
 of Real, 55 Barb. 186. 
 
 43. Where a witness admits without ex- 
 •ception on the part of his counsel that he 
 has been in the penitentiary, asking him 
 how long he was tliere does not involve the 
 
 J -question of his conviction, which can be 
 proved only by the judgment record. Real 
 V. People, 55 Barb. 551 ; s. c. 42 K Y. 270. 
 
 44. Copy of record. A certified copy of 
 the complaint from the record of proceed- 
 ings in the police court, is competent to 
 contradict the testimony of the complainant 
 on the trial of the indictment. Com. v. 
 Goddard, 2 Allen, 148. 
 
 45. Proof of record. Whether an instru- 
 ment offered is a record or not, is always 
 open to inquiry. And if words have been 
 struck out of a record so as to render it 
 erroneous, witnesses may be examined to 
 show that such words were improperly 
 struck out ; but not to falsify the record by 
 showing that an alteration whereby the 
 record was made correct, was improperly 
 made. Schirmerv. People, 33 III. 276. 
 
 46. For the purpose of proving the rec- 
 ord of a conviction in another State, the 
 
 ' seal of the court must be affixed to the rec- 
 ord with the certificate of the clerk, and not 
 the certificate of the judge merely. ' Kirsch- 
 ner v. State, 9 Wis. 140. For proof of rec- 
 ord sent up on appeal from police court, see 
 Com. V. Barry, 115 Mass. 146 ; s. c. 2 Green's 
 Crim. Reps. 285. 
 
 47. Proof of indictment. It is improper 
 to ask a witness on cross-examination if he 
 has been indicted for perjury. The indict- 
 
 ment or a certified copy of it, should be pro- 
 duced. Peck V. Yorks, 47 Barb. 131. 
 
 48. Entries. Entries made in the usual 
 course of business upon the books of a third 
 person, by those whose duty it was to make 
 them, and who testify that they were correct 
 when made, but that they have now forgot- 
 ten the transaction, are admissible in evi- 
 dence, although the entries were first written 
 by the party making them on a slate during 
 the day, and copied by him into the books 
 at night. State v. Shiuborn, 46 New Hamp. 
 497. 
 
 49. Where a witness to a transaction has 
 made a memorandum at the time of the 
 facts for the purpose of preserving the mem- 
 ory of them, and can, at any subsequent 
 period, swear that he made the entry at the • 
 time, for that purpose, and that he knows 
 from the memorandum that the fact existed, 
 it will be good evidence, although the wit- 
 ness does not retain a distinct recollection 
 of the facts themselves. State v. Rawls, 3 
 Nott & McCord, 381. 
 
 50. Books of science. Medical books are 
 not admissible in evidence, either to sustain 
 or contradict the opinion of a witness. 
 Davis V. State, 38 Md. 15; Com. v. Sturti- 
 vaut, 117 Mass. 123. In Wisconsin and Mas- 
 sachusetts, the extent to which books may 
 be read to the jury is discretionary with the 
 court. Luning v. State, 1 Chand. 178; 
 Com. V. Austin, 7 Gray, 51. 
 
 51. In Rhode Island, it has beenlield that 
 books of science are not admissible, notwith- 
 standing the counsel for the prisoner dis- 
 missed a witness under the belief that such 
 a book might be read to contradict him. 
 Neither does the fact that a witness read 
 passages in such a book to which on cross- 
 examination he was referred, and in relation 
 to which he answered questions, render the 
 book admissible. iState v. O'Brien, 7 R. I. 
 330. 
 
 52. In Illinois, where the prosecution was 
 permitted, against the objection of the 
 prisoner, to read to the jury extracts from 
 medical works, which had not been intro- 
 duced in evidence or proved to be authority, 
 and also to read to the jury the testimony of 
 a professor of chemistry given in a case tried
 
 132 
 
 EVIDENCE. 
 
 Documentary Evidence. 
 
 Written Instruments how Proved. 
 
 in anotlier State, it was held error. Yoe v. 
 People, id 111. 410. 
 
 53. Map. It is in the discretion of the 
 court to allow a witness to use a map to 
 point out to the jury the location of an 
 alleged way. Com. v. HoUiston, 107 Mass. 
 233? 
 
 54. Advertisements. On a trial for mur- 
 der, a witness for the prosecution on cross- 
 examination identified certain advertise- 
 ments in a newspaper as his, and it was held 
 that they might be read to the jury in order 
 to affect his credit, but that the newspapers 
 could not be put in evidence. Com. v. 
 Ilersey, 3 Allen, 173. 
 
 55. Letters. Press or machine copies of 
 letters, purporting to have been written by the 
 defendant, are admissible in evidence in con- 
 nection with proof of due effort on the part 
 of the prosecution to produce the original 
 letters ; and it is not ground for a new trial 
 that experts were allowed to testify to the 
 handwriting of the originals, instead of the 
 copies. Com. v. Jeffries, 7 Allen, 548. 
 
 56. The prosecution cannot give in evi- 
 dence an anonymous letter, written by a 
 stranger, though a witness for the prosecu- 
 tion had spoken of the letter, on the direct 
 examination, and had been cross-examined 
 as to the circumstances under which it was 
 received by the prisoner's counsel, its con- 
 tents not having been disclosed on such 
 examination. People v. Costello, 1 Denio, 83. 
 
 57. Papers of insolvent. To render the 
 papers of an insolvent debtor, which are 
 produced by his assignee, admissible in evi- 
 dence as coming from the possession of the 
 insolvent, it must be shown that the assignee 
 received them from the messenger, and that 
 the latter took possession of them under his 
 warrant. Com. v. Eastman, 1 Cush. 189. 
 
 58. Depositions. Depositions cannot in 
 general be used against the prisoner; nor 
 in his favor, unless by his consent. Domin- 
 ges V. State, 7 Smed. & Marsh. 475. But 
 
 I where the prisoner previous to his being ac- 
 cused, in his examination on oath, charged 
 another with the commission of the offense, 
 it was held that his examination might be 
 given in evidence against him on the trial. 
 State V. Broughton, 7 Ired. 96. 
 
 59. Whei'e on a trial before a court of 
 SiJecial Sessions, the prisoner's counsel 
 agreed that a deposition might be read in 
 evidence, provided time was given him to 
 procure testimony in order to show that the 
 witness was incompetent, and several days' 
 adjournment were accordingly allowed, it 
 was held that the court having afterward 
 heard such testimony and decided in favor 
 of the witness's competency, the prisoner was 
 not entitled to have the deposition excluded. 
 Bebee v. People, 5 Hill, 33. 
 
 60. The provision of the statute of Maine 
 (R. S. ch. 107, § 20), that the court may ex- 
 ercise a discretion in admitting or rejecting 
 a deposition taken out of the State, is not 
 restrictive; but the court may admit the 
 deposition notwithstanding an omission of 
 some things in the certificate deemed essen- 
 tial in depositions taken in the State. State 
 V. Kimball, 50 Maine, 409. 
 
 61. The affidavit of a witness, sworn to 
 before a magistrate, may be read at the trial, 
 either to support or contradict his testimony. 
 State V. Lazarus, 1 Mills, 13. The same is 
 true of the depositions of a witness given 
 before a coroner's jury, and certified and re- 
 turned by the coroner to the District Court, 
 as required by law, introduced for the pur- 
 pose of contradicting the witness. People 
 V. Devine, 44 Cal. 453 ; s. c. 2 Green's Crim. 
 Reps. 405. But a memorandum of the testi- 
 mony of the witnesses examined before a 
 coroner's jury taken by a person who was 
 present, is not competent evidence. State v. 
 McElmurray, 3 Strobh. 33. 
 
 62. Writing partly legal and partly- 
 illegal. When a writing contains both 
 legal and illegal evidence, the court are not 
 required to expunge that which is illegal ; 
 but only to point out to the jury the illegal 
 testimony, and designate it in such a way 
 that they can identify it. Johnson v. State, 
 17 Ala. 618. 
 
 5. Written instrtjments how proved. 
 
 63. In general. A writing must be 
 proved by the original, if in the possession 
 or control of the party. If lost or destroyed, 
 or in the possession of the opposite party 
 who refuses to produce it, an examined copy
 
 EVIDENCE. 
 
 133 
 
 Written Instruments how Proved. 
 
 is the next best evidence. If there is no 
 such copy, the contents may be proved by 
 parol. U. S. V. Britton, 2 Mason, 464. 
 
 64. Where upon a trial for murder what 
 purjjorted to be a recognizance was intro- 
 duced for the purpose of showing an in- 
 ducement to commit the crime, but there 
 was no proof of its execution except the 
 instrument itself and the testimony of an 
 agent of the governors of the almshouse 
 that the accused had made payments upon 
 it, and it did not appear to haye been 
 filed, it was held that the proof of its execu- 
 tion was insufficient to make it admissible 
 in evidence. People v. Williams, 3 Parker, 
 84. 
 
 65. Proof of handwriting by witness 
 who has seen party write. To prove 
 handwriting, a witness must have seen the 
 person write, or have corresponded with 
 him. West v. State, 2 Zabr. 213. [A witness 
 may testify his belief of the handwriting of 
 a party from having seen him write his sig- 
 nature only once ^ and if his impression is 
 indistinct, his memory may be revived by 
 inspecting a writing which he knows to be 
 genuine. McNak v. Com. 26 Penn. St. 388. 
 
 66. Where a witness acquired a knowl- 
 edge of the prisoner's handwriting by seeing 
 his signature at different times to from eight 
 to twelve chattel mortgages, which the 
 prisoner recognized as instruments he had 
 executed, it was held that the witness was 
 competent to express an opinion as to 
 whether a paper shown to him in court was 
 in the handwriting of the same person. 
 Donoghoe v. People, 6 Parker, 120. 
 
 67. Proof of handwriting by compar- 
 ison. In the case of deeds or papers so old 
 that no living witness can be produced, the 
 handwriting may be proved by comparison 
 with papers whose genuineness is acknowl- 
 edged. West V. State, 2 Zabr. 213. 
 
 68. .Where a writing is proved to be gen- 
 uine, comparisons may be made between it 
 and the writing in dispute, by witnesses, 
 who may give their opinions founded on 
 such comparisons, all of which is to be sub- 
 mitted to the jury."; State v. Hastings, 53 
 New Hamp. 452; s. c. 2 Green's Crim. Reps. 
 334; State v. Clark, 54 New Hamp. 456; 
 
 contra^ in New York, People v. Spooner, 1 
 Denio, 343. 
 
 69. An expert in handwriting may testify 
 whether, in his opinion, anonymous letters 
 in a disguised hand, and calculated to di- 
 vert suspicion from the prisoner, are in his 
 handwriting, and may give the reason for 
 such opinion. But where an expert testified 
 that, in his opinion, certain anonymous let- 
 ters, in a disguised hand, were in the pris- 
 oner's handwriting, and that some portion 
 of them could not have been made with a 
 pen, it was held that he could not be asked 
 whether those marks were made with a pe- 
 culiar instrument found in the defendant's 
 possession. Com. v. Webster, 5 Cush. 295. 
 
 70. On a trial for grand larceny, experts, 
 who had no previous knowledge of the hand- 
 writing of the accused, were shown disputed 
 papers, and also certain other writings 
 which had been proved on the trial to be in 
 his handwriting, and they were permitted 
 to testify that, upon comparison of the dis- 
 puted with the i^roved writing, they be- 
 lieved that both were written by the same 
 person. Calkins v. State, 14 Ohio, N. S, 222. 
 
 71. On a trial for burglary, it was held 
 competent for an expert to testify that a sig- 
 nature he had seen on a leaf of a hotel regis- 
 ter before it had been torn therefrom and 
 destroyed, was written by the same person 
 who wrote certain other signatures which 
 were admitted to be those of the prisoner. 
 State V. Shinborn, 46 New Hamp. 497. 
 
 72. Persons skilled in handwriting are 
 competent to testify, although they never 
 saw the person write. Hess v. State, 5 Ohio, 5. 
 
 73. The skill of an expert in handwriting 
 cannot be tested by placing before him ir- 
 relevant papers, in order to contradict his | 
 testimony as to the handwriting contained 
 in them. U. S. v. Chamberlain, 12 Blatch. 
 390. When handwriting is to be proved by 
 comparison, the standard employed must be 
 original writing, and must first be proved. 
 Impressions of writings taken by a press, 
 and duplicates made by a copying-machine, 
 are not originals for this purpose. Com. v. 
 Eastman, 1 Cush. 189. 
 
 74. The genuineness of handwriting can- 
 not be proved or disproved, by allowing the
 
 134 
 
 EVIDENCE. 
 
 Written Instruments how Proved. 
 
 jury to compare it with the handwriting of 
 the party proved or admitted to be genuine. 
 Jumpertz v. People, 21 111. 375. 
 
 75. Proof of standard of comparison, 
 how determined. Upon tlie question 
 whether a given writing is sufficiently 
 proved to have been written by the defend- 
 ant to allow of its being submitted to the 
 jury as a standard of comparison, the judge 
 at the trial must pass in the first instance ; 
 and, so far as his decision is a question of 
 fact merely, it will be final. Com. v. Coe, 
 115 Mass. 481 ; s. c. 2 Green's Crim. Reps. 
 292. Vv'hen the court has adjudged the 
 papers genuine, it is the duty of the jury, 
 before making comparison of a disputed 
 writing with them, to examine the testimony 
 respecting their genuineness, and decide 
 whether their genuineness is established be- 
 yond a reasonable doubt. It is incumbent 
 on the court to determine whether the wit- 
 nesses possess sufficient skill to entitle them 
 to pass upon handwriting as experts. If the 
 court decides that they do, they may com- 
 pare the contested papers with the genuine, 
 and give their ojoinion as to whether they 
 were written by the same hand. It is for 
 the jury to determine what weight shall be 
 given to such evidence, and the prisoner is 
 entitled to the benefit of any reasonable 
 doubt. State v. Ward, 39 Vt. 225. 
 
 76. Proof of alterations. The officer of 
 a bank, whose business it has been for many 
 years to examine papers with the view of 
 detecting alterations, erasures and counter- 
 feit signatures, inay be asked his opinion as 
 to whether alterations or erasures had been 
 made in a certain paper. Pate v. People, 3 
 Gilman, 644. 
 
 77. Proof of contents of writing. Proof 
 of the contents of papers in the possession 
 of the adverse party is admissible after 
 notice to produce the originals. State v. 
 Kimbrough, 2 Dev. 431 ; contra^ State v. 
 Wisdom, 8 Port. 511. 
 
 78. Parol evidence of the testimony before 
 \ the coroner's inquest, which was reduced to 
 
 writing by him, cannot be received. State 
 V. Zellers, 2 Ha!st. 220. 
 
 79. The contents of a letter written by 
 the defendant cannot be proved by the 
 
 prosecution unless it is shown that the let- 
 ter is destroyed or in the possession of the- 
 defendant. Com. v. Thompson, Thach. 
 Crim. Cas. 28. 
 
 80. When the magistrate before whom, 
 one is accused of crime is required by the 
 statute to reduce the testimony to writing, 
 parol evidence of what a deceased witness | 
 swore on such examination is not admissible 
 until the absence of the written evidence is 
 accounted for. Davis v. State, 17 Ala. 415. 
 
 81. On the examination of the prisoner, 
 only so much of the testimony was reduced 
 to writing as the committing magistrate 
 deemed material, the accused being present 
 and cross-examining the witness. The wit- 
 ness died, and the minutes of the examina- 
 tion being lost, it was held that the magis- 
 trate could not prove the substance of the 
 testimony thus reduced to writing without 
 also proving what was omitted. Sharp v. 
 State, 15 Ala. 749. 
 
 82. Where on a trial for rape, a witness 
 testified that the prosecutor, who was deaf 
 and dumb, had, more than a year after the 
 commission of the alleged offense, given to 
 her in writing the substance of what she 
 had now testified, and that such witness did 
 not know where the writing was, it was 
 held that the proof was insuflficient to dis- 
 pense with the production of the writing. 
 State V. De Wolf, 8 Conn. 93. 
 
 83. It will be presumed that a confession 
 made before a magis*rate was reduced to 
 writing; but it must be shown that the de- 
 fendant signed it, or admitted it to be cor- 
 rect, in order to . exclude parol proof in 
 relation to it. State v. Eaton, 3 Barring. 
 554. 
 
 84. Parol evidence may be given of the 
 contents of a writing, without accounting 
 for its absence, if the object is not to prove 
 such facts as the writing would show if 
 produced, but only a collateral matter, as 
 its identity with or diversity from another 
 writing. West v. State, 2 Zabr. 212. 
 
 85. The rule that a party shall have pre- 
 vious notice to produce a written instru- 
 ment in his possession, before the contents 
 can be proved as evidence in the case, does 
 not apply where from the nature of the
 
 EVIDENCE. 
 
 135 
 
 Written Instruments how Proved. 
 
 Admissions and Declarations. 
 
 prosecution the party must know that he is 
 charged with the possession of the instru- 
 ment. Where, therefore, the defendants 
 were charged in an indictment, a copy of 
 which was furnished them, with the fraud- 
 ulent possession oi certain papers, it was 
 held that they were not entitled to further 
 notice to produce the jDapei's. State v. May- 
 berry, 48 Maine, 218. 
 
 86. The existence and acts of a corpora- 
 tion in another State may be proved by 
 parol. Com. v. Read, Thach. Crim. Cas. 
 180. 
 
 87. Words written on the tag of ft valise, 
 which serve to identify it, may be proved 
 orally witliout the production of the tag or 
 showing its loss. Com. v. Morrell, 99 Mass. 
 543. 
 
 \y 
 
 6. Proof op testimony given on former 
 
 TRIAL. 
 
 f88. Waiver by defendant. The accused 
 may waive his constitutional right to be 
 confronted by the witnesses against him; 
 and testimony taken down on a former trial, 
 based upon the same facts, may be read as 
 evidence. State v. Poison, 29 Iowa, 133. 
 89. Testimony before grand jury. A 
 grand juror may be compelled to testify as 
 ' to what was given in evidence by a witness 
 before the grand jury. State v. Broughton, 
 7 Ired. 96. And it is competent for the de- 
 fense to prove, by a person who was present, 
 that a witness for tlie prosecution testified 
 differently before the grand jury. Little v. 
 Com. 25 Graft. 921. But it is not proper, 
 in order to assist the recollection of a wit- 
 ness, to ask him to recur to his recollection 
 of his testimony before the grand jury. 
 Com. V, Phelps, 11 Gray, 73. 
 y 90. Testimony of deceased witness. The 
 6 testimony of a deceased witness, given upon 
 \ I a former trial, may be j)roved upon a subse- 
 
 Iquent trial of the same case between the 
 same parties by a person who was present 
 and heard it. People v. Murphy, 45 Cal. 
 137; Greenwood v. State, 35 Texas, 587; 
 Pope V. State, 22 Ark. 373; State v. Cook, 
 23 La. An. 347; Kean v. Com. 10 Bush, iSiO; 
 Pound V. State, 43 Ga. 88. 
 
 91. Evidence of what a deceased witness 
 
 testified on a preliminary examination before 
 a magistrate relative to the same charge for 
 which the accused is on trial, is admissible. 
 State V. Hooker, 17 Vt. 058 ; Brown v. Com. 
 73 Peun. St. 331 ; Barnett v. People, 54 111. 
 335 ; and it is thus admissible notwithstand- 
 ing the examination was not reduced to 
 writing. Davis v. State, 17 Ala. 354. 
 
 92. Where the testimony of a witness i 
 since deceased is proved by a person who 
 was present at the trial and heard it, he I 
 must state the substance of the testimony I 
 as the witness gave it, and not merely what \ 
 he conceives to be the substance of it. He l 
 may re'"resh his memory from notes taken a t \ 
 the time, or from a newspaper printed by J 
 him containing the evidence as taken down I 
 by himself. U. S. v. Wood, 3 Wash. C. C. / 
 440 ; Kendrick v. State, 10 Humph. 479. ' 
 
 93. Testimony of living witness. Where 
 on the trial of an indictment for assault and 
 battery the defendant pleaded a former con- 
 viction for the same offense, and oflered in 
 evidence the record of conviction, and to 
 show that the offense was the same, pro- 
 duced a person to prove what a witness on 
 the former trial swore to, it was held proper, 
 although the latter witness was still living 
 and within the State. State v. Smith, 11 
 Ired. 33. 
 
 7. Admissions and declarations. 
 
 94. Of party injured. The declarations 
 of a party injured, when no one is present, 
 are not in general evidence to show the 
 manner in which the injury occurred, how- 
 ever nearly contemporaneous with the occur- 
 rence. It is therefore not competent to 
 prove that a person robbed, when first dis- 
 covered, stated that he had been robbed by 
 the prisoner, nor upon the question of the 
 corpus delicti, to show that he asked the per- 
 sons who found him if they had seen the 
 accused. State v. Davidson, 30 Vt. 377. 
 
 95. But statements made by a sick person^ 
 to a physician as to the nature, symptoms 
 and effects of his illness, are admissible as 
 original evidence. Johnson v. State, 17 i 
 Ala. 018. -^ 
 
 96. Of accused in general. What the 
 prisoner said at any time after the commis-
 
 136 
 
 EVIDENCE. 
 
 Admissions and Declarations. 
 
 siou of the oftVnse is competent against him 
 as admissions, and these admissions can be 
 proved by himself or any other person who 
 knew them. Fralich v. People, G5 Barb. 
 \ 48. An admission of a fact made at the 
 trial in open court may be properly con- 
 sidered by the jury. People v. Garcia, 25 
 Cal. 531. 
 
 97. Where it becomes necessary to prove 
 a corrupt intent, the previous acts and 
 declarations of the prisoner are admissible 
 in evidence in connection with the res gestae. 
 Tuttle V. People, 36 K Y. 431. And 
 threats made by the defendant against the 
 parties engaged in the prosecution are ad- 
 missible in evidence to show the character 
 of the defense. State v. Rorabacher, 19 
 Iowa, 154. 
 
 98. Distinction as to time. There is a 
 distinction between a declaration or state- 
 ment made before, and one made after the 
 accused was conscious of being charged with 
 or suspected of the crime. If before, it is 
 admissible in all cases, whether made under 
 oath or without oath, ujaon a judicial pro- 
 ceeding or otherwise. But if made after- 
 ward, the law becomes at once cautious and 
 besitating. The inquiry then is, was it 
 voluntary ? For unless entirely voluntaiy it 
 is held not to be admissible. People agst. 
 McMahon, 15 N. Y. 384, per Selden, J.; 
 Phillips V. People, 57 Barb. 353 ; 42 N. Y. 
 200. See Teachout v. People, 41 N. Y. 7. 
 
 99. Must be confined to subject of in- 
 quiry. In giving evidence of oral state- 
 ments and declarations, the proof is to be 
 confined to what was said concerning the 
 subject of inquiry; but the whole of what 
 "was said is to be received. Com. v. Keyes, 
 11 Gray, 323. Yet the jury are not bound 
 to give equal credit to all parts of the state- 
 ment. State V. Mahon, 32 Vt 241. See 
 People V. Davis, 56 N. Y. 95 ; Real v. Peo- 
 ple, 55 Barb. 551 ; 42 N. Y. 270. 
 
 100. Declarations of, a party as to his 
 state of health, to be admissible in evidence, 
 must be confined to his condition at the 
 moment of speaking, and cannot be extended 
 to past matters. Hunt v. People, 3 Parker, 
 669. 
 
 101. Must be made understandingly. 
 
 The declaration of a child too young to tes- 
 tify, is not admissible in evidence. Smith v. 
 State, 41 Texas, 353. And the same is true J.-^ 
 of words spoken by the accused, while / 
 asleep. People v. Robinson, 19 Cal. 40. 
 
 102. By husband or wife. Where a hus- 
 band and wife are jointly indicted for mur- 
 der, and the wife tried separately, his declara- 
 tions cannot be given in evidence against 
 her. Kingen v. State, 50 Ind. 557. 
 
 103. Declarations of the prisoner's wife 
 made in his absence, are not admissible in 
 evidence against him. People v. Simonds, . 
 19 Cal. 275. 
 
 104. Conversations. A conversation can 
 only be evidence against the accused when 
 it took place not merely in his bodily pres- 
 ence, but in his hearing and understanding. 
 A declaration made in the presence of one 
 unconscious from sleep or stupor, is not ad- 
 missible against him. Lanergan v. People, 
 39 N. Y. 39 ; s. c. 6 Parker, 209 ; Com. v. 
 Harwood, 4 Gray, 41. 
 
 105. Where the prosecution proves a con- 
 versation with the defendant, it cannot also 
 give in evidence a writing which was read 
 by the defendant during the interview, but 
 which formed no part of the conversation. 
 Cook V. State, 4 Zabr. 843. 
 
 106. Conversations are to be received with 
 great caution. But when the witness hears s. 
 the whole conversation, although he may 
 not remember all of it, his evidence for that 
 reason, is not to be excluded. Kelsoe v. 
 State, 47 Ala. 573. The prisoner is entitled 
 to proof of the entire conversation. But it 
 does not follow that it must be taken as true, 
 although there may be no other evidence in 
 the case incompatible wdth it. Corbett v. 
 State, 31 Ala. 329. 
 
 107. The prisoner and the deceased having 
 had a ditficulty the evening before the homi- 
 cide, the prisoner threatened that between 
 the setting of the sun on that evening and 
 its rising on the next day, he would kill the 
 deceased. The next morning, the sun hav- 
 ing just risen, the prisoner armed with a gun, 
 was on the road that led to the house of the 
 deceased, and immediately before he shot the 
 deceased, had a conversation with a witness 
 who was examined upon the trial. Held that
 
 EV1T3ENCE. 
 
 137 
 
 Admissions and Declarations. 
 
 the door was open for tlie admission of the 
 entire conversation, and that it was error to 
 exclude it. McLean v. State, 16 Ala. 672. 
 
 108. On the trial of an indictment for 
 adultery, a witness for the prosecution testi- 
 fied that the defendant was her step-father, 
 that he and her mother had lived together 
 as husband and wife for several years, and 
 that he had had children by her who took 
 his name. On cross-examination, she testified 
 that she supposed or had understood that her 
 mother had been divorced from the witness's 
 father, but did not know whether or not 
 he was still living, or whether any marriage 
 had ever taken place between her mother 
 and the defendant ; that the first time she 
 ever saw the defendant was when he and her 
 mother first met in Montreal. Held that the 
 defense had a right to ask the witness what 
 was said on that occasion. Com. v. Belgard, 
 5 Gray, 95. 
 
 109. A conversation between the prisoner 
 and his accomplice before the committing 
 magistrate, in which the accomplice threat- 
 ened to kill the prisoner, if he made any 
 disclosures, and the prisoner replied that he 
 would not do so, may be given in evidence 
 against the prisoner; and a subsequent con- 
 versation between them while confined in 
 the same room together, in which each 
 accused the other of having been the cause 
 of their detection, is also admissible. Scott 
 V. State, 30 Ala. 503. 
 
 110. Where a conversation had with the 
 opposite party has been proved, the party 
 wiiose conversation has been proved cannot, 
 on cross-examination, show by the witness 
 a subsequent conversation between the party 
 cross-examining and the witness, two or three 
 hours after the first conversation, tliough such 
 second conversation related to the same sub- 
 ject as the first, and was in explanation of it. 
 People v. Green, 1 Parker, 11. 
 
 111. Declarations of defendant in his 
 own behalf. As a general rule, the declara- 
 tions of the prisoner in his own behalf, are 
 not admissible in evidence. State v.Iiildreth, 
 9 Ired. 440; U. S. v. Imsand, 1 Woods, 581. 
 To be admissil)le, they must have occurred 
 within the period covered l)y the criminat- 
 ing evidence, or tend in some way to explain 
 
 some fact or circumstance introduced by the 
 prosecution, or to impair or destroy the force 
 of evidence against him. Chaney v. State, 
 31 Ala. 342 ; Birdsong v. State, 47 lb. 68 ; 
 s. c. 1 Green's Grim. Reps. 729. 
 
 112. On the trial of an indictment for 
 burglary, witnesses in order to establish an 
 alibi had testified to the fact that the de- 
 fendant on the night in question was at a 
 ball ; had certified their recollection by the 
 circumstances of talking and drinking with 
 him ; had fixed the time, from its being a 
 ball succeeding the excursion of a target 
 company, in the evening, and that the de- 
 fendant was not present at the excursion, al- 
 though expected. Held that the fact that 
 the declarations of the defendant to these 
 witnesses at the ball, to show their means of 
 knowledge and recollection as to his being 
 at the ball and the occasion, were ruled out, 
 afforded no ground of exception. Com. v. 
 Williams, 105 Mass. 62. 
 
 113. A woman was charged in separate 
 complaints with larceny of napkins from the 
 shop of A. and of other goods from the shop 
 of B. The evidence showed that the de- 
 fendant went with another woman into the 
 two shops successively; that in the second 
 shop the other woman requested the defend- 
 ant to hold her shawl, which she claimed 
 she took without knowing that it contained 
 anything; and that while she was holding it, 
 the napkins dropped out, and the defendant 
 picked them up and carried them to the 
 counter, and spoke to one of the clerks about 
 them. Held that proof of the defendant's 
 conversation with the clerk, and of her ac- 
 companying gesture to point out the other 
 woman, were admissible to explain the de- 
 fendant's possession. Com. v. Rowe, 105 
 Mass. 590. 
 
 114. Where a deputy sheriff indicted as 
 an accessory before the fact to a burglary, 
 was charged with being intentionally un- 
 faithful in the discharge of his duty, and 
 with having conducted himself in a manner 
 calculated to screen the burglars from arrest, 
 it was held that he might prove conversa- 
 tions between him and another officer as to 
 the best means of securing their conviction, 
 and also inquiries instituted and information
 
 138 
 
 EVIDENCE. 
 
 Admissions and Declarations. 
 
 obtuinc'd by birn while in pursuit of the 
 burglars. Com. v. Robinson, 1 Gray, 555. 
 
 115. A letter -written for the prisoner by 
 the witness while they were in jail together 
 is not admissible in evidence for the accused. 
 either as original testimony of its contents, 
 or for the purpose of impeaching the wit- 
 witness. Campbell v. State, 23 Ala. 44. 
 
 116. Where on the trial of an indictment 
 for receiving and having stolen property, 
 one of the defendant's witnesses swore that 
 lie saw samples of the property in the store 
 of the defendants, the latter cannot show 
 by the "witness what was said by one of 
 them then present, "as to what the prop- 
 erty was doing there." Wills v. People, 3 
 Parker, 473. 
 
 117. Where the defendant gives in evi- 
 dence a statement made to him, he cannot 
 prove his reply, although the prosecution 
 has cross-examined the witness as to such 
 statement. Cook v. State, 4 Zabr. 843. 
 
 118. Where a witness for the people is 
 asked on cross-examination if the defendant 
 did not say a certain thing to him or in his 
 hearing on a certain occasion, and the wit- 
 ness answers in the negative, the defend- 
 ant cannot prove by another witness that 
 he, the defendant, did make such remark at 
 the time and place in question. Wills v. 
 People, 3 Parker, 473. 
 
 119. The declarations of the prisoner can- 
 not be proved for the purpose of drawing 
 out the reply of the witness to whom they 
 were made, unless they form a part of a con- 
 versation put in evidence by the prosecu- 
 tion. Campbell v. State, 23 Ala. 44. 
 
 120. Although where the declarations of 
 the prisoner are proved, the jury ought to 
 take the whole into consideration, yet they 
 may reject those in his favor, and believe 
 those against him. Green v. State, 13 AIo. 
 382; Blackburn v. State, 23 Ohio St. 146; 
 B. c. 2 Green's Crim. Eeps. 534. Therefore 
 it is erroneous to instruct the jury that what 
 %vas said by the prisoner in his own behalf 
 must be taken as true, if what he said 
 against himself in the same conversation is 
 taken as true. People v. Graham, 21 Cal. 
 261. 
 
 121. In Michigan, although the statement 
 of the prisoner under the statute is not evi- 
 dence in the ordinary acceptation of that 
 term, because not made under oath, yet the 
 jury have a right to give it such credit, in 
 whole or in part, as they think it deserves. 
 Maher v. People, 10 Mich. 213. 
 
 122. Declarations of codefendant. The 
 declarations of a codefendant not on trial, 
 made in the absence of the defendant on 
 trial, are not admissible in evidence against 
 the latter, unless made during the pendency 
 of the criminal enterprise, and in further- 
 ance of its objects. People v. Moore, 45 
 Cal. 19 ; Com. v. Ingraham, 7 Gray, 46 ; Com. 
 V. Eberle, 3 Serg. & Rawle, 9 ; State v. Pike, 
 51 New Hamp. 105. 
 
 123. The confessions or declarations of an 
 accomplice, made when the parties were in 
 the act of committing an oifense, or on the 
 way to commit, are admissible in evidence 
 against all concerned. Hunter's Case, 7 
 Gratt. 641. 
 
 124. Any act or declaration of one of 
 several conspirators, in reference to the com- 
 mon purpose, may be proved against the 
 others. State v. Soper, 16 Maine, 293; Ma- 
 loue V. State, 8 Ga. 408. 
 
 125. A. and B., being jointly indicted for 
 grand larceny, and A. tried separately, it 
 was held that a letter written by B. to a per- 
 son whom he called C, advising him to run 
 away, was admissible in evidence, it having 
 been proved that A. and B. committed the 
 larceny. State v. Barton, 19 Mo. 227. 
 
 126. The declarations of cod ef end ants, af- 
 ter the commission of the ofl'ense, are ad- 
 missible in evidence against the defendant, 
 not as proof of the facts admitted in such 
 declarations, but as tending to show that 
 previous confessions of the defendant were 
 true. State v. Knight, 19 Iowa, 94. 
 
 127. On the trial of B., under a joint in- 
 dictment against A. and B., it became ma- 
 terial, in order to establish the guilt of B., 
 to prove certain conduct of A. on the day of 
 the alleged oftense. A. having been made a 
 witness, it was held that statements made by 
 him before the alleged offense was commit- 
 ted, relating the circumstances of his con- 
 duct, and showing that it occurred on a
 
 EVIDENCPl 
 
 130 
 
 Admissions and Declarations. 
 
 prior day, were admissible in evidence. 
 State V. Cruise, 19 Iowa, 312. 
 
 128. When an accessory is tried before the 
 principal, the acts and conduct of the latter, 
 immediately following the commission of 
 the oflFense, are admissible to prove the 
 guilt of the principal. State v. Rand, 33 
 New Hamp. 216. 
 
 129. When the declarations of one of two 
 defendants are of such a character that they 
 cannot be stated without implicating both, 
 they may, notwithstanding, be received. 
 But the court must instruct the jury that 
 they are evidence only against the party by 
 whom they are made. Kelsoe v. State, 47 
 Ala. 573. 
 
 130. Declaration of third parson. On 
 the trial of an indictment for a riotous as- 
 sault upon an officer while serving a legal 
 precept on A., who was charged with be- 
 ing a fugitive from another State, it was held 
 that the defendants could not introduce 
 evidence that B., who claimed the custody 
 of A., had declared that the officer knew 
 B. had stated that A. had not committed 
 larceny, and that the charge was made 
 merely for the purpose of getting him into 
 custody, so that he could the more easily be 
 carried home. Com. v. Tracy, 5 Mete. 536. 
 
 131. Tacit admission of defendant. Ad- 
 missions and confessions may be implied 
 from the acquiescence of the defendant in 
 the statements of others made in his presence, 
 when the circumstances are such as afford 
 him an opportunity to act or speak, and 
 would naturally call for some action or 
 reply from a person similarly situated ; and 
 it makes no difference that the statements 
 which call for a reply are made by a party 
 who is incompetent to testify. People v. 
 McCrea, 32 Cal. 98 ; State v. Reed, 62 Maine, 
 129; s. c. 2 Green's Crim. Reps. 468. 
 
 132. Where a slave told his master, in 
 the presence of the prisoner, that the latter 
 wanted the slave to go off with liim, for 
 which the master was at the time threatening 
 to arrest the prisoner, under circumstances 
 which justified the suspicion of his guilt, and 
 to which he made no reply, it was held ad- 
 missible against him as an implied admis- 
 
 sion of the truth of the charge. Martin 
 V. State, 39 Ala. 523. 
 
 133. A slave being called before a num- 
 ber of persons, among whom were his master 
 and mistress, in order to have his shoes com- 
 pared with certain tracks supposed to have 
 been made by a person who had committed 
 a crime ; several of the company exclaimed, 
 when it appeared that his shoes and the tracks 
 corresponded, that they were the shoes that 
 made the tracks. Held that this exclama- 
 tion, with the fact that the slave made no 
 reply to it, was not admissible against him 
 as an implied admission. Bob v. State, 32 
 A.la. 560. 
 
 134. A declaration proved to have been 
 made in the presence of the prisoner will be 
 presumed to have been made in his hearing. 
 And an act of a third person done in the 
 presence of the prisoner, is equally admissi- 
 ble as a declaration made in his presence. 
 Hochrieter v. People, 2 N. Y. Ct. of Appeals, 
 Decis. 363; s. c. 1 Keyes, 66. 
 
 135. Where declarations are made in the 
 presence of a person who is partially intox- 
 icated, and not contradicted by him, it is 
 for the jury to say whether he was too much 
 intoxicated to understand the statement 
 when made. State v. Perkins, 3 Hawks, 
 377. 
 
 136. Where on the trial of an indictment 
 for being a common seller of spirituous 
 liquors, a declaration made by a person in 
 the defendant's employ, in the defendant's 
 presence, was proved, and the jury were in- 
 structed that they were not to regard it 
 unless they were satisfied the defendant 
 heard it, it was held that as the jury might 
 infer that if he did hear it, his silence was 
 without reference to the accompanying cir- 
 cumstances to be deemed a tacit acquies- 
 cence on his purt, the defendant was entitled 
 to a new trial. Com. v. llarvey, 1 Gray, 487. 
 
 137. Conduct of the defendant relative to 
 the charge against him, tending to show an 
 admission of guilt, is competent evidence; as 
 where one of his bail, having suggested to him 
 that he might risk a liability on his bond 
 for six months longer, and possibly compro- 
 mise it if necessary, he replied, " Do as you 
 see lit." Huggins v. State, 41 Ala. 393.
 
 140 
 
 EVIDENCE. 
 
 Admissions and Declarations. 
 
 Confessions. 
 
 138. Telegram. Telegraphic messages 
 in the handwriting of the defendant are 
 competent as admissions by him ; it being 
 proved by the telegraph operator that such 
 messages ^vere received at the office and 
 duly transmitted over the wires, directed to 
 the parties to whom they were addressed by 
 the defendant. Com. v. Jeffries, 7 Allen, 
 548. 
 
 139. Admissible although improperly 
 obtained. A circumstance tending to show 
 fiuilt may be proved, although it was 
 brought to light by a declaration not ad- 
 missible in itself, as having been obtained by 
 improper influence. Where therefore, on a 
 trial for murder, it aj)peared that the pris- 
 oner had stated that her hand was burned 
 in extinguishing fire on the deceased, it was 
 held proper to show that at the coroner's 
 inquest she carried her hand wrapped up in 
 a handkerchief, that she was made to un- 
 wrap and show her hand, and that upon 
 examination, it showed no indication of a 
 burn. State V. Garrett, 71 JST. C. 85; s. c. 2 
 Green's Crim. Reps. 751. 
 
 140. It is not competent to prove declara- 
 tions of the defendant by a written memo- 
 randum made by the witness at the time, 
 Avhich he states to be correct. They must 
 be proved by the witness himself. People v. 
 Elyea, 14 Cal. 144. 
 
 141. Order of proof. It is competent for 
 the court to permit the district attorney to 
 show that a certain letter written by the 
 prisoner was a voluntary statement, before 
 permitting the prisoner to attempt to prove 
 the contrary: the letter not being read to 
 jury until the prisoner has introduced his 
 evidence respecting it. Gardiner v. People, 
 6 Parker, 155. The admissions and decla- 
 rations of the prisoner may be proved with- 
 out first showing that no promise or threat 
 was held out to induce him to make them. 
 Dixon V. State, 13 Fla. 636; s. c. 1 Green's 
 Crim. Reps. 687. 
 
 142. Evidence in rebuttal. Where on a 
 trial for causing death by effecting an abor- 
 tion, a witness for the accused testified with- 
 out objection on the part of the prosecution 
 to a conversation she had with the deceased 
 a day or two before her death, during which 
 
 the deceased informed the witness that her 
 illness was caused by a miscarriage, and that 
 the miscarriage had been brought on by 
 natural causes. Held, that although such 
 evidence was imj^roper, yet as it was not ob- 
 jected to, the prosecution might prove that 
 the deceased was not in her right mind when 
 she made such declarations. Hunt v. Peo- 
 ple, 3 Parker, 569. 
 
 143. On a trial for murder, the prosecution 
 introduced a letter in evidence alleged to 
 have been written by the prisoner to a fellow 
 convict, but which was intercepted. The 
 keeper of the prison was then called by the 
 prosecution, and testified to a conversation 
 with the prisoner, in which the latter said he 
 had done all the communicating he wanted 
 to. This witness also gave evidence fi-om 
 which it might be inferred that other com- 
 munications than by writing between the 
 prisoner and other convicts were possible. 
 Eeld^ that the court erred in sustaining an 
 objection to an oQ'er to show by the prisoner 
 that he had held no communication in any 
 way with any one in the shop where he 
 worked and where the homicide was com- 
 mitted from the day of its occurrence. 
 Donohue v. People, 56 N. T. 208. 
 
 144. Do not bind prosecution. The prose- 
 cution by jH'oving the declarations of the 
 prisoner is not bound or concluded by them, 
 but they are taken in connection with all 
 the other evidence. Lowenberg v. People, 
 5 Parker, 414; 27 K Y. 386, 
 
 For dying declarations, see Homicide. 
 
 !> 
 
 8. Confessions. 
 
 145. Capacity to make. Where a servant 
 girl between the age of twelve and thirteen 
 years, who was shrewd, sensible and artful, 
 was accused of arson, it was held that if she 
 had such mental capacity as rendered her 
 amenable to the law, she had sufficient to 
 make a confession of her guilt. State v. 
 Bostick, 4 Harring. 563. 
 
 146. Manner of. Where a person ar- 
 rested for having in his possession an altered 
 bank bill with intent to pass the same, made 
 confession of his guilt, partly in English and 
 partly in German, to an officer who em- 
 ployed no promises or threats, it was held
 
 EVIDENCE. 
 
 141 
 
 Confessions. 
 
 that the confessions were admissible in evi- 
 dence, although the prisoner when he made 
 them was very much frightened, and the 
 officer did not understand what was said in 
 German. People v. Thorns, 3 Parker, 
 25G. 
 
 147. On a trial for murder, a witness was 
 permitted to testify to a confession of guilt 
 made to him by the prisoner in a conver- 
 sation which the witness carried on with him 
 through the soil pipes of the jail, and that 
 he knew the prisoner from his voice. Held 
 proper. Browm v. Com. 76 Penn. St. 319. 
 
 148. Subject of. A confession or declara- 
 tion to be admissible need not be minute or 
 explicit in its reference to the subject-mat- 
 ter, or define the time, place or person with 
 whom the transaction occurred ; and it may 
 apply to other occurrences beside the one un- 
 der investigation. Where on the trial of an 
 indictment for sodomy, the defendant was 
 proved to have declared a week after the 
 alleged crime that he "had done it with 
 other boys," it was held competent for the 
 jury to determine whether or not this decla- 
 ration referred to the offense in question. 
 Com. V. Snow, 111 Mass. 411. 
 
 149. A confession that the accused had 
 assisted to get another man's son out of jail 
 who would aid him in escaping, together 
 with the fact that this man had gone to the 
 jail where the accused was confined, is ad- 
 missible in evidence against him. Campbell 
 V. State, 23 Ala. 44. 
 
 150. Where an accomplice under a promise 
 from the prosecution that he shall not be 
 tried, makes a confession and then refuses to 
 testify, his confession will be admissible in 
 evidence against him. Com. v. Knapp, 10 
 Pick. 478. 
 
 151. On a trial for concealing a horse 
 thief, the prosecution cannot prove the con- 
 fessions of the alleged thief in the presence 
 of the defendant, that a horse had been 
 stolen. Morrison v. State, 5 Ohio, 438. 
 
 152. General grounds of admission or 
 exclusion. Before tiie confessions of the 
 prisoner can be admitted in evidence, the 
 court must be satisfied, upon taking into 
 consideration the prisoner's age, condition, 
 situation and character, and the attendant 
 
 circumstances, that they were made volun- 
 tarily. Miller v. State, 40 Ala. 54. Confes- 
 sions are excluded only when made under 
 circumstances that may tend to produce 
 doubt as to their truth, arising from the 
 operation of hope or fear in the mind of the 
 prisoner. When made under the efibct of 
 threats, or the sanction of an oath without 
 the proper caution being given that he need 
 not answer, and that what he says may be 
 used against him, and some other circum- 
 stances, the admissions are excluded. But 
 where the admissions are purely voluntary 
 they are to be submitted to the jury. 
 O'Brien v. People, 48 Barb. 274 ; 36 N. Y. 
 276 ; State v. Grant, 22 Maine, 171 ; Peter v. 
 State, 4 Smed. & Marsh. 31. 
 
 153. By witness. A sworn statement 
 made by the prisoner upon his examination 
 as a witness, before he was accused of the \ 
 crime, is admissible in evidence against him. 
 State V. Baignew, 5 Rich. 391. Therefore, 
 where on the trial of a husband for the 
 murder of his wife, it appeared that the pris- 
 oner had been a witness before the coroner's 
 jury the evening after the death, and that 
 he had not then been accused of the crime ; 
 it was held that his testimony was admissible 
 in evidence against him. People v. Hend- 
 rickson, 1 Parker, 406; 10 N. Y. 13. 
 
 154. In New York, it has been held that 
 although a person may be suspected of the 
 crime, yet that his testimony in other respects 
 freely and voluntarily given before the cor- 
 oner, may be used against him on his trial, 
 on a charge of such crime subsequently made. 
 Teachout v. People, 41 N. Y. 7, Grover and 
 Lott, JJ., dissenting. But where it appeared 
 on a trial for murder, that the prisoner was a 
 witness after his arrest, before the coroner's 
 jury, but his arrest was not known to the 
 coroner at that time, it was held not compe- 
 tent to prove what the accused testified be- 
 fore the coroner's jury. People v. McMahon, 
 15 N. Y. 384. 
 
 155. And in North Carolina, where a 
 woman accused of murder, confessed her 
 guilt in response to a question put to her by 
 the foreman of the coroner's jury, without 
 any previous advice as to her legal rights, 
 and the probable consequences of her guilt,
 
 142 
 
 EVIDENCE. 
 
 Confessions. 
 
 \ 
 
 it was lieki that tlie confession was not ad- 
 missible in evidence against her. State v. 
 Mathews, 66 N. C. 106. And in California, 
 wliere a person accused of grand larceny 
 confessed his guilt to the examining mag- 
 istrate in answer to questions put to him 
 after being sworn, it was held that the con- 
 fession was not admissible in evidence 
 against him. People v. Gibbons, 49 Cal. 
 557 ; s. c. 1 Green's dim. Reps. 593. See also, 
 U. S. V. Proscott, 3 Dillon, 405 ; s. c. 1 Green's 
 Crim. Reps. 439. 
 
 156. By person under arrest. The cir- 
 cumstance that the party making a confes- 
 sion was at the time under arrest, though 
 proper to be taken into consideration, is not 
 of itself sufEcient to exclude the evidence. 
 Ilartung v. People, 4 Parker, 319; People v. 
 Rogers, 18 N. Y. 9; Com. v. Hosier, 4 Barr, 
 2G4; Stephen v. State, 11 Ga. 235; State v. 
 Jefferson, 6 Ircd. 305 ; People v. Rodundo, 
 44 Cal. 538; s. c. 3 Green's Crim. Reps. 411. 
 But it seems that in Louisiana, when the 
 arrest is made by private persons, a confes- 
 sion by the prisoner to them, is not admis- 
 sible in evidence against him. State v. George, 
 15 La. An. 145. 
 
 157. By intoxicated person. It is not 
 good ground of objection to confessions ol 
 guilt, that the defendant was intoxicated, 
 that he was excited and scattering in his con- 
 versation, and that no one who heard him 
 could repeat all he said. Eskridge v. State, 
 25 Ala. 50. But confessions made by a 
 person so much under the influence of liquor 
 as net to understand what he is confessing 
 are to be disregarded; and the defendant 
 may show that the facts did not take place 
 as alleged. Com. v. Howe, 9 Gray, 110. 
 
 158. In Virginia, a member of the jailer's 
 family holding no ofBce, and having no con 
 nection with the prisoner further than to 
 attend about the jail and in the absence of 
 the jailer to have control of it and carry the 
 key.s, is not a person having authority within 
 the meaning of the rule excluding a confes- 
 sion obtained through his influence. Shiiflet 
 v. Com. 14 Gratt. 653. 
 
 159. Given by prisoner cf his own 
 accord. A pcr.-on arrested for murder, but 
 not informed of the charge against him, said 
 
 to a fellow prisoner, " If you will not tell on 
 me, I will tell you something." The other 
 said he would not tell, but if he did, it 
 would make no difference as one criminal 
 could not be a witness against another. The 
 first speaker then said, "I want to know 
 what to do." The other answered, "If I 
 knew the circumstances, I could tell you 
 what to do." Held that the confession which 
 was thereupon made, was admissible in evi- 
 dence. State V. Mitchell, Phil. N. C. 447. 
 
 160. Obtained by artifice. The confession 
 will be admissible, even where it has been 
 obtained by a deception practiced on the 
 prisoner. Rutherford v. Com. 2 Mete. 387 ; 
 State V. Jones, 54 Mo. 478 ; s. c. 3 Green's 
 Crim. Reps. 603; State v. Staley, 14 Minn. I 
 105. Where a person arrested for murder, ' 
 was falsely told by the officer who had him 
 in charge, that his alleged accomplice had 
 informed against him and would testify to 
 his guilt, it was held that a confession which 
 he thereupon made to the officer, was admis- 
 sible in evidence against him. Price v. Slate, 
 18 Ohio, N. S. 418. 
 
 161. In answer to question. The mere 
 fact that a confession is made in answer to 
 a question which assumes the prisoner's 
 guilt, does not for that reason render the 
 confession inadmissible. Miller v. State, 40 
 Aln. 54; People v. AVentz, 37 N. Y. 303; 
 State V. Staley, supra. 
 
 162. The officer who committed the pris- 
 oner on a charge of murder, asked him 
 whether if it were to be done over again, he 
 would do it ? To which he replied, " Yes 
 Siree Bob." It was held that both question 
 and answer, were admissible, as well as the 
 fact that in making the reply, the prisoner's 
 manner was short, Carrol v. State, 23 
 Ala. 28. 
 
 163. Where on the trial of an indictment 
 for stealing a cow it was proved that an offi- 
 cer on the night of the arrest went to tha 
 defendant's house with a warrant against 
 him for stealing another cow, and after 
 searching the house said to him (alluding to 
 the other cow), " Where did you get that 
 cow ? We've got you this time. We have 
 traced it round unt 1 we are satisfied you've 
 got the cow." Subsequently on the same 
 
 1
 
 EVIDENCE. 
 
 143 
 
 Confessions. 
 
 evening the ofSc:er had a conversation with 
 the defendant about both cows. Held that 
 his confession then made, was admissible in 
 evidence. Com. v. Whittemore, 11 Gray, 
 201. 
 
 164. On tlie trial of u slave for murder, 
 the confessions of the accused made to a free 
 white citizen were held admissible in evi- 
 dence, notwithstanding slaves wefe com- 
 pelled to answer any question a white man 
 might put to them. Jim v. State, 15 Ga. 
 5J55. Where a slave made a confession while 
 being taken to jail in chains on a charge of 
 murder, in reply to the question '' what he 
 had against the deceased to induce him to 
 strike him," there being no promises or 
 threats, it was held that the confession was 
 admissible in evidence against him. Austin 
 v. State, 14 Ark. 555. 
 
 165. In Massachusetts, where a negro boy 
 thirteen or fourteen years of age was ar- 
 rested by two police officers on suspicion of 
 murder, stripped and searched, locked up 
 in a station house, aud at ten o'clock at 
 night taken from his cell and questioned 
 until midnight without being warned of his 
 right to refuse to answer, or afforded an 
 opportunity to consult with counsel or 
 friends, it was held that in the absence of 
 proof of threats or promises other than 
 might be inferred from the above, the state- 
 ments made by the boy were admissible in 
 evidence. Com. v. Cuflee, 103 Mass. 285. 
 
 166. Knowledge ordinarily acquired in 
 consequence of a search warrant is admissi- 
 ble in evidence at common law, notwith- 
 standing one of the objects of the search 
 was to obtain evidence, even if the search 
 warrant was illegally issued. State v. Flynn, 
 36 New Ham p. 64. 
 
 167. Obtained by promise of advantage. 
 A slave being in prison on a charge of assault 
 with intent to kill, was induced to make a 
 confession by an implied promise that his 
 master would prevent his being hung. Held 
 that the fact that he was kept in prison, and 
 that his confession was usod against him on 
 his trial, did not render a subsequent reiter- 
 ation of the confession admissible in evi- 
 dence against him on the second trial. Bob 
 v. State, 32 Ala. 560. 
 
 168. The prosecutor testified that the 
 prisoner being taken to his residence by a 
 policeman, told them that he had broken 
 into the house by lifting the door from its 
 hinges, and that he had taken property from 
 the house. Another policeman testified that 
 finding on the prisoner when he arrested 
 him articles supposed to have been stolen, 
 he promised him that he should be released if 
 he would tell where he got the property, and 
 that the prisoner agreeing to do so, was 
 sent to the prosecutor's house, for that pur- 
 pose. The court excluded the prisoner's con- 
 fessions, but admitted proof of his acts in 
 connection therewith. ^eM proper. Moun- 
 tain V. State, 40 Ala. 344. 
 
 169. Where the day before a confession 
 was made to an officer, the officer told the 
 prisoner that he could make him no prom- 
 ises, but if he made any disclosures that 
 would be of any benefit to the government 
 the officer would use his influence to have it 
 go in his favor, the confession was held not 
 admissible in evidence. Com. v. Taylor, 5 
 Gush, 505. And see Barnes v. State, 38 
 Texas, 356 ; s. c. 1 Green's Crim. Reps. 648. 
 
 170. Officers told a person who was ac- 
 cused of grand larceny that all they wanted 
 was to recover the goods, and if he would 
 tell them where they were, so that they 
 could get them, it would end the matter and 
 nothing further would be done. The de- 
 fendant then told what he knew about the 
 larceny, and where the stolen articles were. 
 Held that his confession was not admissible 
 in evidence against him. State v. Hagan, 
 54 Mo. 192. 
 
 171. The prosecutor said to a negro boy 
 eighteen years of age, who was arrested on 
 a charge of burglary : " You are veiy young 
 to be in such a difficulty as this; there must 
 have been some one with you who was older, 
 and I, if in your place, would tell who it 
 was; it is not right for you to suffer the 
 whole penalty aud let some one who is 
 guiltier go free; it may go lighter with 
 you." And the man with whom the pris- 
 oner previously lived said to him : " Tom, 
 this is mighty bad ; they have got the dead 
 wood on you, and you will be convicted;" 
 and at the same time said something to him
 
 144 
 
 EVIDENCE. 
 
 Confessions. 
 
 about "owning up;" also, that lie could 
 have nothing to do with one who had acted 
 so badly, and if the prisoner luid anything 
 to say as to his assisting nim in the difficulty, 
 to do so. Held that the confessions thus 
 obtained were inadmissible. Newman v. 
 State. 49 Ala. 9. 
 
 172. Promise of collateral benefit. It is 
 not necessary to render a confession admis- 
 sible that it should be the prisoner's own 
 spontaneous act. Where no hope or favor 
 
 \ in respect to the criminal charge is held out, 
 it will be competent though obtained by a 
 promise of some collateral benefit, Staie v. 
 Wentworth, 37 New Hanip. 196 ; Rutherford 
 V. Com. 2 Mete. Ky. 387. 
 
 173. Urged to make. It is not a suffi- 
 cient objection to a confession that the 
 prisoner was urged to make a statement 
 with no promise of favor or intimidation. 
 "Where after the arrest of a person on a 
 charge of murder he was asked where he 
 was the day before, and told to give an ac- 
 count of himself through the day, and to 
 tell it quick, it was held that his statement 
 was properly admitted. State v. Howard, 
 17 New Hamp. 171. 
 
 174. Justifiable inducements. Saying to 
 a prisoner that it would be better for him to 
 confess, or words to that effect ; or that if 
 he was guilty it could not put him in a 
 worse condition, and he had better tell the 
 truth, will not exclude his confession. State 
 V. Nelson, 8 La. An. 497; Fouts v. State, 8 
 Ohio, N. S. 98; contra, Phillips v. People, 
 57 Barb. 353; State v. York, 37 New 
 Hamp. 175. See Hawkins v. State, 7 Mo. 
 190. 
 
 175. The officer who had charge of the 
 prisoner, a slave, said to him, " If you did 
 it, you had better confess ; it would be best 
 for you to tell the truth ; truth is always the 
 best policy ; but if you did not kill him, we 
 don't want you to say so." Held, that the 
 prisoner's confessions, subsequently made to 
 the constable in the same conversation, were 
 admissible in evidence. Aaron v. State, 87 
 Ala. 106. And the same was held where a 
 friend of the defendant advised him to con- 
 fess that he was guilty, and that it would be 
 better for him, in view of the fact that the 
 
 sheriff" and his jjosse then held him in their 
 power and further resistance must be useless. 
 Young V. Com. 8 Bush, 366; s. c. 1 Green's 
 Cr. Keps. 710. 
 
 176. On the trial of an indictment for 
 stealing three twenty dollar gold pieces, the 
 property of L., it was proved that an officer 
 in company with L. met the defendant, and 
 told him that he had a warrant for his arrest 
 for stealing L.'s money; that the defendant 
 denied it; that L. then said to him there 
 was no use in denying it, that he had found 
 where the defendant had passed two of the 
 twenty dollar gold pieces, and could prove 
 it; and that the officer then told the defend- I 
 ant that jfhe had better just own up to ^\ 
 Held, that the confession was admissible in 
 evidence. State v. Freeman, 13 Ind, 100. 
 
 177. On the trial of the treasurer of a rail- 
 road comjDany for embezzling the funds of 
 the company, one R., who was a surety upon 
 his official bond, and stockholder in the 
 company, testified that he told the defend- 
 ant " he had better go to the directors and 
 make a clean breast of it;" " that it would 
 
 _^e for his interest to go and confess all." 
 (wi tness " said nothing in terms of a prose^ 
 cution ;" that he told the defendant "to 
 commit no violence on himself, nor run 
 away ; that the disgrace was in doing wrong, 
 not in suffering punishment for it ; he had 
 better stay and meet the punishment." And 
 that witness " advised the defendant as a 
 friend and son." Held, that the confessions 
 were admissible. Com. v. Tuckerman, 10 
 Gray, 173. 
 
 178. When the prisoner was first arrested 
 on a charge of murder, one of the two con- 
 stables who had him in custody, said to him, 
 " Come, Jack, you might as well out with 
 it." The magistrate interposed, and warned 
 him not to confess. Some hours afterward 
 the prisoner confessed to B., who had no 
 authority over him, but with whom, and in 
 whose buggy, he was riding to jail, the two 
 constables being near, but not within hear- 
 ing. Held, that the confession to B. was 
 admissible. State v. Vaigneur, 5 Rich. 391. 
 
 179. A person being arrested by H. and S., 
 who were officers, in the evening on suspi- 
 cion of larceny, H. said to him out of the
 
 EVIDENCE. 
 
 145 
 
 Confessions, 
 
 hearing of S., that it would be better for 
 him to own up and make a clean breast of 
 it to S. The same evening S. asked the 
 defendant if he knew anything about the 
 stolen property, to which he replied that he 
 did not ; and the same question was put and 
 the same answer received by S. the next 
 morning. Later in the day, however, S. 
 found the property, and told the defendant 
 so. Held^ that certain statements which were 
 then made to S. by the defendant, respect- 
 ing the stolen property, tending to show that 
 the defendant stole it, were admissible in 
 evidence. Com. v. Crocker, 108 Mass. 464. 
 
 180. The prisoners being in custody before 
 the coroner's jury, were told by several of 
 the jury that their statements were contra- 
 dictory, and that if they were guilty of the 
 homicide they had better tell the truth and 
 confess. The following day they made a 
 confession to a person who was not present 
 at the inquest. Held, that the confessions 
 were admissible in evidence. Lynes v. State. 
 36 Miss. 617. 
 
 181. A jDerson in jail on a charge of larce- 
 ny, was visited by the prosecutor, who told 
 him that it was better in all cases for the 
 guilty party to confess. The prisoner then 
 said he supposed he should have to stay 
 there, whether he confessed or not. The 
 prosecutor replied that he supposed he would, 
 that in his opinion it would make no diflEer- 
 ence as to legal proceedings, and that it was 
 considered honorable in all eases, if a person 
 was guilty, to confess. Held, that the con- 
 fession was admissible. Com. v. Morey, 1 
 Gray, 4G1. 
 
 182. Improper inducements. The owner 
 of a hog having lost it, went into his field, 
 in company with two other white men, where 
 the defendant, a colored man in his employ, 
 was at work, and telling him that the hog 
 had been stolen, said to him, " I believe 
 you are guilty ; if you are, you had better 
 say so ; if you are not, you had better say 
 that." Thereupon the defendant confessed 
 the larceny. Held, that the confession was 
 not admissible in evidence against him. 
 State v. Whitfield, 70 N. C. 356. 
 
 183. A person having been committed by 
 a magistrate on a charge of larceny, was 
 
 10 
 
 being taken to jail by a constable, when the 
 latter said to him, " You had as well tell all 
 about it." After riding about a mile further, 
 the prisoner, without anything more being 
 said to him on the subject, confessed. Held^ 
 that the confession was not admissible in 
 evidence. Vaughan v. Com. 17 Gratt. 576. 
 
 184. On a trial for grand larceny in steal- 
 ing a horse, the prisoner was convicted 
 mainly on his confessions, which were made 
 by him after being told in the presence of 
 the officer who made the arrest, and while 
 he was in custody, that " the best he could 
 do was to own up," and that the " com- 
 plainant would not be so hard upon him if 
 he could get his horse back." It was held 
 that the confessions were improperly re- 
 ceived in evidence. Peoj)le v. Phillips, 42 
 N. Y. 200. 
 
 185. A confession made to the officer who 
 had the i^risoner in custody, immediately 
 after he had been told by the officer " that 
 he did not wish to advise him one way or 
 the other, for fear it might not suit him," 
 but that " as a general thing it was better 
 for a man who was guilty to plead guilty, for 
 he got a lighter sentence," was held made 
 under an improper inducement and inadmis- 
 sible. Com. V. Curtis, 97 Mass. 574. 
 
 186. A person having been arrested for 
 burning a factory, the officer who had him in 
 charge told him that if he knew anything 
 about the fire, either that B. had anything 
 to do with it, or set him on, the best thing 
 he could do was to own up before his trial, 
 and that if he wanted to say anything to 
 him (the officer), and would tell, he would 
 help him if he could. A few days after he 
 was imprisoned, the owner of the factory 
 said to him that "he wanted him to tell the 
 truth, just as it was ; that it would be better 
 for him ; that they had got B., and probably 
 they would both be tried that day, and that 
 it would be better to tell the truth, just as 
 it was, for if B. should get the start of him 
 it might go hard with him; that he was a 
 j^oung man, and it would be better for him 
 to tell it just as it was." Held, that the con- 
 fession was not admissible in evidence. 
 State v. AValker, 34 Vt. 206. 
 
 187. The prosecutor, who had been the
 
 140 
 
 EVIDENCE. 
 
 Confessions. 
 
 former master of the defendant, accused him 
 of stealing,' which he denied. The pros- 
 ecutor said he knew better — he knew all 
 about it, and the defendant had better own 
 up. The defendant asked whether if he 
 confessed he would be let alone, and not be 
 prosecuted. The prosecutor replied that he 
 would make no promises; that he would not 
 say whether he would let him go or not, 
 but that he might as well own up, and that 
 it would be better for him. The defendant 
 tiien said he would tell all about it. No 
 other persons were present. The prosecutor 
 then reduced the confession to writing, no 
 one else being present. The next morning 
 the defendant denied its truth, and de- 
 manded the delivery of the paper, but an 
 officer w'as called, and he was arrested. 
 Held, that the confession was not competent 
 evidence. State v. Brockman, 46 Mo. 566. 
 
 188. Made through fear. A j^erson ac- 
 cused of robbery was taken from his home 
 at midnight by a body of armed and dis- 
 guised men, conveyed to a neighboring 
 wood, and there hung by the neck to a tree ; 
 and when taken down, almost senseless, he 
 confessed that he, with others, committed 
 the robbery. • Held, that his confession was 
 not admissible in evidence. Miller v. People, 
 39 111. 457. 
 
 189. Obtained by threats. Where a per- 
 son accused of murder was taken before a 
 magistrate, and there sworn to tell the truth, 
 and told, " If you do not tell the truth I will 
 commit you," it was held that a confession 
 tlien made was inadmissible on the trial 
 against the prisoner. Com. v. Harman, 4 
 Barr, 269. 
 
 190. Where a slave accused of crime, and 
 threatened by persons armed with guns that 
 if he did not confess he would be hung, 
 confessed his guilt, and shortly afterward 
 was taken before a magistrate in the presence 
 of some of the same persons, and interro- 
 gated as to his guilt without being pre- 
 viously cautioned by the magistrate of the 
 effect of his replies, and again confessed, it 
 was held that the last confession of the ac- 
 cused was not admissible in evidence against 
 him. Peter v. State, 4 Sm. & Marsh. 31. 
 
 191. Threatening circumstances. Where 
 
 no promises are made, or threats used to ob- 
 tain confessions, they should not be excluded 
 because the circumstances surrounding the 
 defendant were threatening. But such cir- 
 cumstances are jiroper to be considered by 
 the jury in determining the credibility of the 
 confessions, and what force and effect should 
 be given to them. Rice v. State, 47 Ala. 38; 
 s. c. 1 Green's Crim. Reps. 708. 
 
 192. Where a magistrate, on the examina- 
 tion of a person accused of robbing another 
 of a w^atch the previous night, and on whom 
 the watch was found, told him that unless 
 he could account for the manner in which 
 he came by the watch, he should be obliged 
 to commit him to be tried for stealing it, it 
 was held that his subsequent confession was 
 admissible, especially as the magistrate re- 
 peatedly warned him not to commit himself 
 by any confession. State v. Cowan, 7 Ired. 
 239. 
 
 193. Where the employer of a person 
 charged with larceny told him that he would 
 be dismissed unless he settled with the 
 owner of the stolen property, but that if he 
 settled he should be retained, and the em- 
 ployer would say nothing about it to hurt 
 him, it was held that a confession afterward 
 made in the same conversation was admis- 
 sible. Com. V. Howe, 2 Allen, 153. 
 
 194. A., pursuing a person suspected of 
 theft, overtook him in the road, drew his 
 gun, and ordered him to stop, and B., who 
 was also armed with a gun, coming up, re- 
 marked that A. ought to have shot the ac- 
 cused, when A. said he should not be 
 harmed. The parties then proceeded upon 
 their return, and had gone between two and 
 three miles, when the prisoner confsssed. 
 Held, that his confession was admissible in 
 evidence. Wilson v. State, 3 Heisk. 333; 
 s. c. 1 Green's Crim. Reps. 583. 
 
 195. A slave being accused of murder was 
 told by the witness that " he might as well 
 tell all about it," for he was satisfied, and 
 '' if you belonged to me I would make yo 
 tell." The first remark was repeated several 
 times, and the second made angrily, to each 
 of which the accused replied, denying the 
 charge, but afterward he made a full dis- 
 closure of his own accord. Held, that the 
 
 u J
 
 EVIDENCE. 
 
 147 
 
 Confessions. 
 
 confession was admissible in evidence. State 
 V. Patrick, 3 Jones, 448. 
 
 196. Obtained while the prisoner is 
 tied. Confessions of guilt voluntarily made 
 by the prisoner after he was arrested, and 
 whilst his hands and feet were tied, may be 
 given in evidence against him. Franklin v. 
 State, 28 Ala. 9. 
 
 197. On a trial for murder it appeared that 
 the crime was committed in the night; that 
 the next morning the accused, being arrested 
 about a mile from the place of the homicide, 
 was told that some one had shot the de- 
 ceased, to which he replied that "she was 
 not shot, but knocked on the head;" that 
 eight or ten freedmen then tied the hands of 
 the accused and took him to where the body 
 of the deceased was; that a large and 
 
 / excited crowd gathered around him and in- 
 sisted that be should be hung, but no threats 
 or promises were made to induce a confes- 
 sion ; and that the accused then stated that 
 he and the deceased had quarreled, and 
 that she had struck him, and that he had 
 returned the blow, not intending to kill her. 
 Held^ that the admission of the confession 
 in evidence was proper. Cady v. State, 44 
 Miss. 332. 
 
 198. A person having been arrested on a 
 charge of larceny was tied by the officer for 
 
 I the purpose of securing him. Promising to 
 confess if he were untied, the officer released 
 him, when he stated that he broke into the 
 prosecutor's house, and committed the of- 
 fense charged. Held that the confession 
 was admissible in evidence. State v. Cruse, 
 74 N. C. 491. 
 
 199. Where a slave was arrested, tied and 
 left by his master in charge of a third per- 
 son, to whom he immediately afterward 
 made a confession, it was held that evidence 
 was admissible that the master had always 
 been in the habit of tying his slaves when 
 they were charged with an otTense, and 
 whipping them until they confessed, and 
 that he had often treated the prisoner in 
 the same way, on the question whether the 
 confession was induced by improper influ- 
 ence. Spencer v. State, 17 Ala. 192. 
 
 200. Admissible notwithstanding im- 
 proper influence. Where a promise of favor 
 
 is held out to a person charged with crime, 
 to induce him to confess, which he does not i 
 do, a confession made subsequently, after 
 the promise has ceased to be operative, is 
 admissible in evidence against him. People 
 V. Jim Ti, 33 Cal. 60. And although a 
 prisoner has previously made a confession 
 under improper influence, yet a subsequent 
 confession which is free from such influence 
 will be admissible in evidence against him. i 
 Maples V. State, 3 Heisk. 408; Peter v. 
 State, 4 Smed. & Marsh. 31 ; State v. Hash, 
 12 La. An. 895 ; State v. Gregory, 5 Jones, 
 315; State v. Scates, lb. 420; State v. 
 Fisher, 6 lb. 478; Thompson v. Com. 20 
 Gratt. 724. See Venable v. Com. 24 lb. G39. 
 
 201. Where a person after being arrested 
 on a charge of murder, was induced by 
 hopes of benefit, to make a confession, and 
 five hours afterward made a second confes- 
 sion to the State's attorney, after being told 
 that he must not expect any favor in conse- 
 quence of making it, and was under no obli- 
 gation to do so unless he wished, it was 
 held that the second confession was admis- 
 sible in evidence. State v. Carr, 37 Vt. 191. 
 
 202. The fact that a negro woman slave 
 on trial for an aHempt to poison, had been 
 whipped by her master the morning before 
 she made a confession to compel her to con- 
 fess, held not to make her voluntary confes- 
 sion subsequently made inadmissible. Sarah 
 V. State, 28 Ga. 576. But where a confes- 
 sion was made by a slave on the same day, 
 
 a few hours after making a confession * 
 which was improperly obtained, in the pres- 
 ence of some of the persons to whom the 
 first confession was made, it was held not 
 admissible. Simon v. State, 37 Miss. 288. 
 
 203. In Georgia, it was held on the trial 
 of a white person that the prosecution might 
 prove the confession of a negro, even when 
 extorted by punishment, not as independent 
 testimony, but to show what was said and 
 done by the accused, he being present and 
 giving his consent that the negro should 
 tell all he knew. Berry v. State, 10 Ga. 
 511. 
 
 204. Proof of facts obtained through 
 confession which is inadmissible. Where 
 a confession in itself inadmissible, leads to
 
 148 
 
 EVIDENCE. 
 
 Confessions. 
 
 the discovery of a fact, so much of such con- 
 fession as rehites to the fact may be received 
 in evidence. State v. Vaigneur, 5 Rich. 
 391 ; White v. State, 3 Heisk. 338. Thus, 
 it is competent to show that property which 
 was the subject or instrument of the crime, 
 was discovered through the confession of 
 the prisoner, although such confession was 
 improperly obtained. Jordan v. State, 32 
 Miss. 383; Belote v. State, 36 lb. 96; Mc- 
 Glotherlin v. State, 2 Cold. Tenn. 223: 
 Frederick v. State, 3 West Va. 695 ; People 
 V. Ah Ki, 20 Cal. 177; Done v. People, 5 
 Parker, 364 ; Duffy v. People, lb. 321 ; s. c. 
 26 N. Y. 588 ; Com. v. James, 99 Mass. 438. 
 
 205. Where a confession was improjDcrly 
 obtained from a female slave who was ac- 
 cused of the murder of a child, and she im- 
 mediately thereafter conducted persons to a 
 pond into which she walked and brought 
 out the body of the deceased, it was held 
 that the fact that she did so was admissible 
 in evidence against her; but that although 
 it showed that she was cognizant of the 
 homicide, it did not prove that she com- 
 mitted it or was an accomplice in it. Eliz- 
 abeth v. State, 27 Texas, 329. 
 
 206. On the trial of an indictment for 
 murder by poisoning, it is competent to 
 show that a phial containing the poison was 
 found from information derived from the 
 prisoner, although what the prisoner said 
 concerning the phial was inadmissible, for 
 tbe reason that it was elicited by improper 
 influence. Jane v. Com. 2 Mete. Ky. 30. 
 
 207. Confession of codefendant. A con- 
 fession is admissible against the person 
 making it, although it also implicates others 
 who are jointly tried with him. Fife v. 
 Com. 29 Penn. St. 429. But where two 
 persons are tried together for the same of- 
 
 . f ense, unless a previous combination, bjelween 
 them is proved, the confession of one is not 
 admissible in evidence against the other. 
 State V. Hogan, 3 La. An. 714 ; State v. 
 Havelin, 6 lb. 167.. 
 
 208. On the trial of an accessory, the 
 confessions of the principal are admissible 
 for the purpose of establishing the guilt of 
 the latter. Lynes v. State, 36 Miss. 617. 
 
 209. Where on the trial of an indictment 
 
 for larceny, a confession of the defendant is 
 proved, that shortly after the larceny he had 
 part of the stolen property and gave it tO' 
 his mother, she is a competent witness for 
 him to prove that she never received th& 
 property from her son. Com. v. Howe, 2 
 Allen, 153. 
 
 210. Admissibility of, how determined- 
 It is the province of the court to decide as 
 to the admissibility of the confession, and V 
 of the jury to estimate the degree of credit 
 due to it. Young v. Com. 8 Bush, 366 ; 
 State V. Andrew, Phil. K C. 205 ; State v. 
 Davis, 63 N. C. 578; State v. Fidment, 35 
 Iowa, 541 ; s. c. 2 Green's Crim. Reps. 632. 
 
 211. Burden of proof . Where confessions 
 have been obtained by improper influences, 
 the law presumes that subsequent con- 
 fessions were made and influenced by the 
 same hopes and fears as the first, and this 
 pi'esumption continues until it is affirma- 
 tively established by the prosecution that i 
 the influences under which the original con- 
 fession was made, had ceased to operate be- 
 fore the making of the subsequent con- 
 fession. People V. Johnson, 41 Cal. 452 ; 
 Nicholson v. State, 38 Md. 140 ; Deathridge 
 V. State, 1 Sneed, 75; Love v. State, 2^ 
 Ark. 336. 
 
 212. How proved. The prisoner is en- 
 titled to proof of the whole confession, as 
 well that which makes for, as that which 
 makes against him. Chambers v. State, 26 
 Ala. 59. In Alabama, it was held that a 
 slave's confession to his master, though vol- 
 untary, could not be given in evidence 
 against him, upon its being shown that the 
 master interrupted him, and would not let 
 him finish his statement. Williams v. State, 
 29 Ala. 532. But the defendant cannot 
 have the confession stricken out on the 
 ground that the witness stated that he did 
 not remain to hear the entire conversation. 
 Bob V. State, 33 Ala. 560. 
 
 213. The jury may believe part of the 
 prisoner's confession, and disbelieve part. 
 People V. Ruloff, 3 Parker, 401 ; Brown's 
 Case, 9 Leigh, 633; State v. Wedemeyer, 11 
 La. An. 49. But if the part of the con- 
 fession which goes in discharge of the de- 
 fendant is not disproved, the jury cannot be
 
 EVIDENCE. 
 
 149 
 
 Confessions. 
 
 allowed arbitrarily to reject it, and to go 
 upon the part only which, criminates him. 
 Crawford v. State, 4 Cold. Tenn. 190. The 
 deductions of the witness from the conver- 
 sation are not admissible. Peterson v. State, 
 47 Ga. 524. 
 
 214. A witness introduced by the prose- 
 cution to prove the defendants' confessions, 
 and who states, on re-examination, that he 
 has testified to the substance of all that each 
 of said defendants stated on that occasion, 
 but that they might have stated something 
 which he does not recollect, is competent to 
 testify to the confessions. Brister v. State, 
 26 Ala. 107. 
 
 215. It will be presumed that a confession 
 made before a magistrate was reduced to 
 writing; but it must be proved that the de- 
 fendant signed it, or admitted it to be cor- 
 rect, in order to exclude parol proof of the 
 confession. State v. Eaton, 3 Barring. 554. 
 In Maine, the confession of the prisoner, on 
 his examination before the committing mag- 
 istrate, may be proved either by the rec- 
 ord, or by oral evidence. State v. Bowe, 
 61 Maine, 171. 
 
 216. The confession referre'd to in the 
 second section of the statute of New York, 
 on which a magistrate is empowered to con- 
 vict a disorderly person, means a plea of 
 guilty, or some equivalent acknowledgment, 
 not an admission argumentatively deduced 
 by the magistrate. Bennac v. People, 4 
 Barb. 164. 
 
 217. Must be corroborated. The con- 
 fessions of a party not made in open court, 
 or on an examination before a magistrate, 
 uncorroborated, and without proof aliunde 
 that a crime has been committed, will not 
 justify_a_jmniiction. People v. Hennessey, 
 15 Wend. 147; Robinson v. State, 12 Mo. 
 592 ; State v. Scott, 39 lb. 424 ; People v. 
 Thrall, 50 Cal. 415 ; People v. Jones, 31 lb. 
 565 ; Pitts v. State, 43 Miss. 472 ; Rice v. 
 State, 47 Ala. 38 ; State v. Laliyer, 4 Minn. 
 368 ; Terr, of Mont. v. McClin, 1 Mont. 394 ; 
 s. c. 1 Green's Crim. Reps. 705 ; contra^ 
 People V. McFall, 1 Wheeler's Crim. Cas. 
 107; Stephen v. State, 11 Ga. 225; State v. 
 Cowan, 7 Ired. 239; Andersou v. State, 26 
 Ind. 89. This rule is not applicable to the 
 
 lower grades of crimes and misdemeanors. 
 State V. Gilbert, 36 Vt. 145 ; and a prisoner 
 may be convicted on his uncorroborated con-f 
 fession, provided the corpus delicti be proved. 
 State V. Guild, 5 Halst. 163. 
 
 218. Under a statute providing that " a 
 confession alone, uncorroborated by other 
 evidence, will not justify a conviction," it is . 
 sufficient if the confession be corroborated 
 by a single circumstance. Hoisenbake v. 
 State, 45 Ga. 43. 
 
 219. Weight of. An instruction which 
 states that confessions are the highest and 
 most satisfactory proof, and draws no dis- 
 tinction between confessions deliberately 
 made and such as occur in a casual conver- 
 sation, is erroneous. Brown v. State, 32 
 Miss. 433. 
 
 220. The following instruction, in relation 
 to the confession of the prisoner, was held 
 erroneous : " If what is said in his own favor 
 is not contradicted by evidence offered by 
 the prosecution, nor improbable in itself, it 
 will naturally be believed by the jury; but 
 you are not bound to give weight t© it, on 
 that account." Conover v. State, 34 Texas, 
 659. 
 
 221. Waiver of objection. It is the right > 
 of the prisoner to object to confessions, un-' 
 less the._jcircumstances under which they 
 were made be also proved. But if he does 
 not object, and the confessions go to the 
 jury without any special inquiry as to the 
 circumstances, he is not entitled to a new 
 trial. Eberhart v. State, 47 Ga. 598. 
 
 222. Reversal of decision. The decision 
 of the judge at the trial, that the confession 
 of a person accused of crime is admissible in 
 evidence, will not be reversed, excepting in 
 a case Of clear and manifest error. It is not 
 a sufficient ground for the reversal of such a 
 decision, that S. told the respondent he 
 wished him to disclose the really guilty per- 
 son, that he might be punished, with a sug- 
 gestion that if the respondent should ever 
 testify in the case, they would have to get 
 him pardoned for the offijnse for which he 
 was then confined;! but that he could not 
 promise him he should receive any benefit 
 from his confession, j State v. Squires, 48 
 New Hamp. 364.
 
 150 
 
 EVIDENCE. 
 
 Privileged Communications. 
 
 Character. 
 
 9. PRrVILEGED COMMUNICATION^. 
 
 223. Attorney and client. On principles 
 of ])ublic ])olicy, communications from a 
 client to liis attorney touching the subject- 
 matter under investigation are privileged, 
 and will not be allowed to be disclosed by 
 the attorney. Where it appeared that the 
 witness was unable to state whether the 
 admissions to which he had testified were 
 made to him as counsel of the defendant, or 
 whilst the accused was under examination 
 as a witness in his own behalf, it was held 
 the duty of the court to exclude the testi- 
 mony of its own motion. People v. Atkin- 
 son, 40 Cal. 284. But a communication 
 between attorney and client to be privileged, 
 must relate to some legal right or obligation. 
 Alderman v. People, 4 Mich. 414. See State 
 V. Hazelton, 15 La. An. 72. 
 
 224. A., B. and C, being jointly indicted 
 for a conspiracy to defraud D., and sepa- 
 rately indicted for forging the note of D., 
 held a joint conference in relation to their 
 defense, the counsel of A. and B. being pres- 
 ent. On the trial of C, B. testified in behalf 
 of the prosecution as to a question be put 
 to C. and the latter's answer. C. then 
 ealled the counsel of B. as a witness, and 
 asked him to state what answer 0. made 
 to the question. Held that what the coun- 
 sel heard at the interview between the par- 
 ties was privileged, and that the privilege 
 extended to all three of them. Cahoon v. 
 Com. 21 Graft. 822. 
 
 225. A written admission made by the 
 accused, solely with a view to compromise 
 the matter with the injured party, is not 
 admissible in evidence against him. Austine 
 V. People, 51 111. 236. 
 
 226. A communication to an attorney is 
 not privileged when the party in making it 
 sought professional advice to enable him to 
 commit a felony. People v. Blakeley, 4 
 Parker, 176. 
 
 227. The rule that communications be- 
 tween client and attorney are confidential, 
 does not apply to an accomplice who turns 
 State's evidence under the assurance that 
 his disclosures will not be used against him. 
 State v. Condry, 5 Jones, 418; Alderman v. 
 People, 4 Mich. 414. 
 
 228. Physician. At common law, the 
 information derived by physicians, in their 
 professional relations with patients, was 
 not privileged from disclosure. Tlie statute 
 of New York on the subject is not confined 
 to communications made by the patient, 
 but extends to all facts which necessarily 
 come to the knowledge of the physician 
 in a given professional case. As the 
 statute is of a remedial nature, it should 
 be construed liberally. Where a physician 
 has attended upon a person under circum- 
 stances calculated to induce the opinion that 
 his visit was of a professional nature, and 
 the visit has been so regarded and acted 
 upon by the person, the relation of physician 
 and patient contemplated by the statute 
 exists. People v. Stout, 3 Parker, 670. 
 
 229. Clergyman. Admissions made to a 
 clergyman are competent evidence, if not 
 made to him in his professional character in 
 the course of discipline enjoined by his 
 church. People V. Gates, 13 Wend. 311. 
 
 230. Husband and wife. An admission 
 by the prisoner of her guilt, made by her tO' 
 her husband, and overheard by a person in an 
 adjoining room, is not a confidential commu- 
 nication entitling the prisoner to have it 
 excluded. State v. Center, 35 Vt. 378. 
 
 231. Telegraph operator. A telegraph 
 operator is bound to testify to the contents 
 of a telegram. State v. Litchfield, 58 Maine, 
 267. 
 
 10. Character. 
 
 232. Proof of, how regarded. Evidence 
 of good character is not only of value in 
 doubtful cases, but is entitled to be consid- 
 ered when the testimony tends very strongly 
 to establish the guilt of the accused. It will 
 sometimes itself create a doubt, when without 
 it none would exist. Fields v. State, 47 
 Ala. 603 ; s. c. 1 Green's Crim. Reps. 635 ; 
 Lowenberg v. People, 5 Parker, 414 ; People 
 V. Cole, 4 lb. 35 ; Hall v. State, 40 Ala. 
 698; Jupitz v. People, 34111. 516; People v. 
 Ashe, 44 Cal. 288 ; People v. Feuwick, 45 
 lb. 287 ; People v. Kaiua, lb. 292 ; People 
 V. Lamb, 2 Keyes, 360 ; afli'g 54 Barb. 342 ; 
 Stover V. People, 56 N. Y. 315 ; State v. 
 Henry, 5 Jones, 65 ; Felix v. State, 18 Ala.
 
 EVIDENCE. 
 
 151 
 
 Character. 
 
 730 ; State v. McMurphy, 52 Mo. 251 ; s. c. 
 1 Green's Crim. Reps. (340. But it is in a case 
 of doubt, or to rebut the legal presumption 
 of guilt, arising from the possession of 
 stolen goods, that a good character has the 
 most weight. State v. Ford, 3 Strobh. 517. 
 
 233. The following instructions were held 
 erroneous: That good character was a fact 
 to be considered by the jury like every other 
 fact in the case, no matter what the other 
 testimony might be; but that when the 
 evidence was positive, leading to a convic- 
 tion logically and fairly derived, of guilt, 
 
 t the simple fact that a person possessed pre- 
 vious good character, would be of no avail ; 
 that it was only in cases of well reasoned 
 doubt arising out of all the testimony that 
 evidence of good character was available, 
 and then it would be the duty of the juiy to 
 find for the prisoner. People v. Ashe, supra. 
 
 234. The weight that ought to be given 
 to proof of good character does not depend 
 upon the grade of crime but upon the force 
 of the evidence tending to prove the charge, 
 and the motive for the crime. It is there- 
 fore erroneous to charge that in higher 
 crimes of great atrocity, good character 
 would not be of the same avail as in minor 
 oflfenses. Com. v. Webster, 5 Cush. 295 ; 
 Harrington v. State, 19 Ohio, N. S. 284 ; 
 or to charge that such evidence can only be 
 used in a doubtful case. Stewart v. State, 
 22 lb. 477; s. c. 1 Green's Crim. Reps. 527. 
 
 235. Time. Evidence of general good 
 character must have reference to a time 
 before and not after the commission of the 
 oflense, and when the defendant has intro- 
 duced evidence of bis general good char- 
 acter, the State, even on cross-examination, 
 cannot inquire into his character subse- 
 
 j quent to the time the offense was com- 
 i raitted. Brown v. State, 46 Ala. 175; cordra, 
 '^Com, V. Sackett, 22 Pick. .394. 
 ^~236. It is not competent for the defendant, 
 on a trial for murder, to prove that other 
 prisoners broke out of the jail in which he 
 was confined after he was indicted, and that 
 certain fellow prisoners tried to induce him 
 to go out, which he declined to do. Gard- 
 iner V. People, G Parker, 155. 
 237. Proof, how restricted. Evidence of 
 
 character is restricted to the trial of char- 
 acter which is in issue, and ought to bear 
 some analogy and reference to the nature of 
 the charge. Young v. Com. 6 Bush, 312; 
 McDaniel v. State, 8 Sm. & Marsh. 401 ; 
 Com. V. Worcester, 3 Pick. 462. The prose- 
 cution cannot in general enter into an exam- 
 ination of the particular acts of the accused, 
 even when the latter has called witnesses in 
 support of his general character. Smith v. 
 State, 47 Ala. 540 ; McCarty v. People, 51 
 111. 231 ; Gordon v. State, 3 Iowa, 410. 
 Therefore, on the trial of a female for the 
 murder of a man, it was held error to per- 
 mit the prosecution to prove that the char-^ 
 acter of the prisoner for chastity was ba d. \ 
 People V. Fair, 43 Cal. 137 ; s. c. 1 Green's 
 Crim. Reps. 217. But where a witness for i 
 the defendant stated that '"his character [ 
 was divided," and the attorney for the State ( 
 then asked the witness what particular acts 1 
 of the defendant's life he had heard spoken ; 
 of, and the witness related various acts 
 of petit larceny he had heard of, it was ; 
 held that the court did not err in refusing i 
 to reject the testimony. State v. Arnold, 12 ' 
 Iowa, 479. And see Com. v. Robinson, 
 Thach. Crim. Cas. 230. 
 
 238. EflFect of failing to prove. The 
 I failure of the defendant to introduce evi- 
 dence of good character cannot be con- 
 sidered by the jury as a circumstance against 
 him. Ormsby v. People, 53 N. Y. 472 ; State 
 V. Upham, 38 Maine, 261 ; State v. O'Neal, 
 7 Ired. 251 ; People v. Bodine, 1 Denio, 282. 
 But where on a trial for larceny the prosecu- 
 tion was allowed, contrary to the prisoner's 
 objection, to argue to the jury that the de- 
 fendant might have shown former good! 
 character if it- had existed, and that the( 
 prosecution was not permitted to introduce \ 
 evidence as to character unless the prisoner \ 
 first introduced it, and the court charged ( 
 the jury to the same effect, it was held not a 
 ground of exception. State v. Tozier, 49 
 Maine, 404. 
 
 239. No credit is to be given to the testi- 
 mony of a witness who has been convicted 
 of felony and afterward pardoned, unless 
 corroborated. U. S. v. Jones, 2 Wheeler's 
 Crim. Cus. 451.
 
 152 
 
 EVIDENCE. 
 
 Presumptive Evidence. 
 
 11. Presumptive evidence. 
 
 240. Capacity for crime. Capacity for 
 crime in persons above the age of seven 
 years is a question of fact. The law as- 
 sumes prima facie that persons above four- 
 teen years of age are capable of crime, but 
 subjects that assumption to the effect of 
 proof. Stale v. Learned, 41 Vt. 585. 
 
 241. General presumption as to guilt. 
 After iudietmont found, the accused is pre- 
 sumed to be guilty for most purposes, except 
 tliat of a fair and impartial trial before a 
 petit juiy. People v. Dixon, 4 Parker, 654 ; 
 State V. Mills, 2 Dev. 421.. 
 
 242. Concealment. The fact that the 
 accused partially concealed himself when an 
 attempt was made to identify him, is proper 
 for the consideration of the jury as raising a 
 presumption of guilt. Flanagin v. State, 25 
 Ark. 92. Concealment may be evidence of 
 malice, and of a premeditated design to 
 commit the deed. Lauergan v. People, 6 
 Parker, 209 ; 39 N. Y. 39. 
 
 243. Giving false account. False state- 
 ments, or the falsification of the record by 
 the defendant in relation to the crime with 
 which he stands charged, afford a presump- 
 tion of his guilt; but it is competent for 
 him to prove that he had good reason to 
 believe at the time that the statements were 
 true. U. S. V. Randall, Deady, 524. 
 
 244. Where on a trial for arson it was 
 proved that the defendant had in his posses- 
 sion bank notes similar to those stolen from 
 the house where the arson was committed, 
 and that he gave contradictory accounts of 
 the manner in which he came by them, it 
 was held not error to charge the jury that 
 these contradictions were evidence to show 
 that be did not come honestly by them. 
 State V. Gillis, 4 Dev. 606. 
 
 245. After the prosecution has proved 
 that the defendant gave a false account to 
 the oflScer who arrested him as to where he 
 was and what he did on the night of the oc- 
 currence, it is not competent for the defend- 
 ant to show that he had previously given 
 to others a true account. Com. v. Goodwin, 
 14 Gray, 55. 
 
 246. Trying to escape. The fact that 
 the defendant, after being informed of the 
 
 cause of his arrest, escaped, or attempted to 
 escape, is a circumstance which the jury 
 may consider in determining his guilt or. 
 innocence. People v. Strong, 46 Cal. 302;/ 
 Fanning v. State, 14 Mo. 386 ; State v. Wil- 
 liams, 54 lb. 170; Murrell v. State, 46 Ala. 
 89. But the presumption arising from 
 this circumstance is ordinarily inconclusive. 
 State V. Arthur, 23 Iowa, 430. 
 
 247. It may be proved that the accused 
 advised an accomijlice to break jail and 
 make his escape. People v. Rathbun, 21 
 Wend. 509. So likewise, it is competent to 
 show that the accused refused to escape 
 after being informed of the charge against * 
 him, although he was advised to do so and 
 it was in his power to do it. lb. 
 
 248. The offer of the prisoner to bribe the 
 person who has him in custody to allow him 
 to escape, and his attempts to escape, may 
 be proved, though the offer and the attempts 
 were made when he was in custody on 
 a different charge from that for which he 
 was tried, the charges for both offenses de- 
 pending on the same state of facts. Dean 
 V. Com. 4 Graft. 541. 
 
 249. Destruction of evidence. The sup- 
 pression, destruction, or concealment of evi- 
 dence by the accused, is a circumstance from i-, 
 which the jury will be justified in drawing 
 unfavorable inferences against him. Miller 
 V. People, 39 111. 457. 
 
 250. Promises and threats made by a third 
 person after indictment, to a witness for the 
 prosecution to induce him to leave the State, 
 are not admissible against the defendant, 
 unless his connection with such third person 
 is otherwise shown. But proof that the 
 witness at the time appointed for his de- ^ 
 parture with such third jjerson, passed by 
 defendant's house and saw defendant stand- 
 ing in his door — that defendant waved his 
 hand to him to pass along, which he did for 
 
 a short distance — that he saw the defendant 
 give such third person $25 for the witness, 
 and that such third person then carried the 
 witness away with the defendant's horse and 
 buggy, is competent to be weighed by the 
 jury. ]Martin v. State, 28 Ala. 71. 
 
 251. Falsehood or silence of defendant. 
 Falsehood, evasion, or silence, on the part
 
 EVIDENCE. 
 
 153 
 
 Presumptive Evidence. 
 
 of one suspected of crime, is evidence for 
 the consideration of the jury, on the ques- 
 tion of guilt. State v. Reed, 63 Maine, 129; 
 s. c. 3 Green's Crim. Reps. 468. But decla- 
 rations made in the presence and hearing of 
 the defendant are not admissible in evidence 
 against him, unless it is shown that he was 
 immediately concerned, so that his silence 
 may be fairly construed into an admission. 
 State V. Hamilton, 55 Mo. 520. 
 
 252. Statements made by a person in the 
 presence of another, implicating the latter, 
 to which he makes no reply, are admissible 
 in evidence against him on his trial for the 
 crime. Com. v. Galavan, 9 Alien, 271. But 
 one who is in confinement on a charge of 
 crime, is not bound to deny or reply to 
 statements made between a police officer and 
 another person in the prisoner's presence; 
 and the silence of the latter will warrant no 
 inference against him. Com. v. Walker, 13 
 Allen, 570. See Com. v. Kenney, 13 Mete. 
 235. 
 
 253. Where a prisoner is charged with an 
 offense, or declarations are made in his 
 presence and hearing touching or affecting 
 his guilt or innocence of an alleged crime, 
 and he remains silent when it would be 
 proper for him to speak, it is for the jury 
 to interpret such silence. McGuire v. Peo- 
 ple, 5 N. Y. Supm. N. S. 682. On a trial 
 of two jointly indicted for grand larceny, 
 it was proved that the complainant went to 
 the place where the prisoners were confined 
 and charged them with the offense, telling 
 the officers what each had done and describ- 
 ing the money stolen, to which the prisoners 
 said nothing. Upon searching one of the 
 prisoners, two parcels of money were found 
 on him, one of which answered the descrip- 
 tion given by the complainant. The other 
 parcel the prisoner asked to have kept sepa- 
 rate, saying it " was bar money." Ueld, that 
 the evidence was properly admitted as an 
 implied admission by the accused of the 
 oflfense charged. Kelley v. People, 55 N. 
 Y. 565. 
 
 254. Silence showing unusual seriousness 
 on the part of one charged as a participant, 
 at or about the time of the crime, is a cir- 
 cumstance from which guilty knowledge 
 
 may be inferred . But in itself, it is entitled to 
 little weight. Johnson v. State, 17 Ala. 618. 
 
 255. Failure to produce evidence in ex- 
 planation. Where circumstantial evidence 
 strongly tends to suiDport the charge, and it 
 is apparent that the accused is so situated 
 that he could explain it if innocent, and 
 he fails to do so, it will be presumed that 
 the proof if produced by him, instead of 
 rebutting, would tend to sustain the charge. 
 Com. V. Webster, 5 Cush. 395. But the de- 
 fendant is not required, in order to avoid a 
 l^resumption against him arising from cir- 
 cumstantial evidence, to produce as wit- 
 nesses persons who may possibly know some- 
 thing of the matter, but only to produce 
 those who are proved to have been so situ- 
 ated that they must have knowledge which, 
 if divulged, would throw light on the sub- 
 ject. People V. McWhorter, 4 Barb. 438. 
 
 256. On the trial of an indictment for sell- 
 ing spirituous liquors without a license, the 
 jury are justified in presuming that the 
 defendant had no license, from his omis- 
 sion to produce it. State v. Simons, 17 
 New Hamp. 83. 
 
 257. When a person accused of crime is 
 required to show where he was on a certain 
 day, or to show how hebecatae possessed of 
 a given sum of money, or article of personal 
 property, his omission to produce such 
 evidence is not conclusive against him, 
 though it creates a strong presumption of 
 his guilt. It is a question for the jury. It 
 is therefore error in the court to instruct 
 them that it is conclusive. Gordon v. Peo- 
 ple, 33 N. Y. 501. 
 
 258. It is not improper for the judge in 
 charging the jury on a trial for murder to 
 remark that the prisoner, if he was present 
 at the homicide, had not been sworn, and 
 that a single witness had related the inci- 
 dents of the killing; or that the prisoner 
 was not entitled to the benefit of the most 
 innocent and merciful construction of his 
 motives. RulofF v. People, 5 Lans. 361. 
 
 259. On a trial for arson, the only direct 
 evidence of the prisoner's guilt was given 
 by his accomplice, G., who testified that on 
 the night of the arson he and his confed- 
 erates were at the house of W.,that they went
 
 154 
 
 EVIDENCE. 
 
 Presumptive Evidence. 
 
 to bed there at an early hour, that they 
 afterward got up, committed the crime, and 
 then returned to bed in the same house. 
 Tlie accused produced no evidence to show 
 that he was not at tlie house of W. on that 
 night. Tlie judge instructed the jury that 
 they might take this omission into consider- 
 ation as a circumstance which corroborated 
 the evidence of G. Held not error. People 
 V. Doyle, 31 N. Y. 578. 
 
 260. Where the son of the defendant was 
 in his employ, and could probably have ex- 
 l)laiued some of the facts bearing against 
 him, if susceptible of explanation, it was 
 held that the omission of the defendant to 
 make his son a witness was a proper subject 
 of comment by counsel, and to be considered 
 by the jury. Com. v. Clark, 14 Gray, 367. 
 
 261. Neglect to make special defense. 
 Where the court refused to charge that 
 "the fact that defendant has offered no 
 evidence is in no way to be taken as an ad- 
 mission of guilt," but charged them that 
 " all circumstances against the prisoner with- 
 in his power to explain, which he refuses to 
 do, are to be taken and weighed by the jury 
 as circumstances against the prisoner," it 
 was held error. State v. Carr, 25 La. An. 
 407. 
 
 262. Where the court charged that the 
 fact that the prisoner had neglected or failed 
 to introduce evidence as to his previous 
 good character was an element in the case 
 which the jury had the right to take into 
 consideration in determining his guilt or 
 innocence, it was held error for which he 
 was entitled to a new trial. Donoghoe v. 
 People, 6 Parker, 130. 
 
 263. Where the judge told the jury that 
 " nothing was to be presumed against the 
 defendant herself for not testifying in her 
 own behalf; but that the failure of a de- 
 fendant to produce evidence which it was 
 in his power to produce, to meet the evi- 
 dence adduced by the prosecution, was a 
 competent and proper matter for them to 
 weigh in considering the question of his 
 guilt,'' it was held error. Com. v. Harlow, 
 110 Mass. 411. 
 
 264. The counsel for the prosecution com- 
 mented to the jury adversely to the defend- 
 
 ant upon the fact that the defendant did 
 not interpose the defense of an aliM before 
 the examining magistrate, to which the 
 defendant's counsel objected. The court in 
 overruling the oVyection remarked that " it 
 was the duty of a defendant, when he had a 
 good defense in the nature of an alibi^ to \ 
 interpose the defense at the earliest moment 
 possible, and that a defendant should offer 
 his defense of' an aliM before the examining 
 magistrate, with the view to saving himself 
 anxiety and trouble, and the people the 
 great expense of a trial." Held that as the 
 foregoing was said by the court in the 
 presence of the jury, it was to be regarded 
 as addressed to them, and that it was error. 
 Sullivan v. People, 31 Mich. 1. 
 
 265. Defendant not testifying in his 
 own behalf. No inference of guilt can be 
 drawn against the prisoner from his declin- 
 ing to avail himself of the privilege confer- 
 red upon him to testify in his own behalf. 
 People V. Tyler, 36 Cal. 522; People v. 
 Anderson, 39 lb. 703 ; contra, State v. 
 Bartlett, 55 Maine, 200 ; State v. Laurence, 
 57 lb. 574; State v. Cleaves, 59 lb. 298. In 
 Vermont, where the court, when requested, 
 did not prevent the prosecuting counsel 
 from arguing to the jury that the omission 
 of the prisoner to testify was evidence 
 against him, it was held that it was such 
 error and irregularity as to require a new 
 trial. State v. Cameron, 40 Vt. 555. In 
 Michigan, it was held error in the court to 
 permit counsel to argue to the jury that the 
 omission by a husband to call his wife as a 
 witness, the statute making her competent to 
 testify, was a circumstance tending to prove 
 his guilt. Knowles v. People, 15 Mich. 408. 
 
 266. Where the prisoner, when testifying 
 as a witness in his own favor, fails to give 
 any explanation of a material fact or circum- 
 stance, the same presumption arises from his 
 failure that would arise from a failure to 
 give the explanation by another witness if 
 in his power so to give it. Stover v. Peo- 
 ple, 50 N. Y. 315. 
 
 267. Conduct of defendant. The con- 
 duct, demeanor, and expressions of the ac- 
 cused, at or about the time of the offense 
 with which he is charged, are for the con-
 
 EVIDENCE. 
 
 15n 
 
 Presumptive Evidence. 
 
 sideration of the jury. Blount v. State, 49 
 Ala. 381 ; Tyner v. State, 5 Humph. 383. 
 
 268. When the marriage of the parties 
 has been shown, evidence is admissible of 
 the ■v^'ife's acts in the usual course of domes- 
 tic affairs at the place where they cohabit, to 
 show that the tenement so occupied is kept 
 by the husband. Com. v. Hurley, 14 Gray, 
 411. 
 
 269. Condition of clothes. Whenever 
 evidence of the condition of clothes or 
 other personal property is competent, their 
 condition may be described by witnesses 
 without producing the articles. The corre- 
 spondence between boots and foot-prints is 
 a matter to which any person who lias seen 
 both may testify. Com. v. Pope, 103 Mass. 
 440. 
 
 270. On the trial of an indictment for 
 procuring another to burn a meeting house 
 by means of kerosene oil, which was fur- 
 nished by the prisoner, it was held compe- 
 tent to prove that there were stains of 
 kerosene oil on the shirt of the accomplice 
 when he set the fire. State v. Kingsbury, 
 58 Maine, 338. 
 
 271. Motive. Where it is proved that a 
 crime has been committed, and the circura- 
 
 l stances point to the accused, facts tending 
 to show a motive, though remote, are admis- 
 sible. Baalam v. State, 17 Ala. 451. 
 
 272. Proof of a previous personal difB- 
 1- culty between the accused and the com- 
 plainant is proper for the consideration of 
 the jury on the question of motive. Breen 
 V. People, 4 Parker, 380. 
 
 273. On a trial for an attempt to murder 
 by poison, evidence was given that a crim- 
 inal intimacy had for some time prior to the 
 attempt existed between the prisoner and 
 the wife of the subject of the alleged 
 attempt, and that she was sought to be used 
 by the prisoner as an instrument in the 
 attempt. Held competent as bearing upon 
 the means and opportunity to commit the 
 offense and upon the question of motive. 
 Templeton v. People, 27 Mich. 501. 
 
 274. On a trial for murder it is not com- 
 petent to prove in order to show that the 
 act was committed under tlie influence of 
 an "insane frenzy," that tlie prisoner was 
 
 informed of the infidelity of his wife some 
 time previous to the alleged murder. San- 
 chez V. People, 4 Parker, 535 ; 23 N. Y. 147. 
 
 275. Guilty knowledge and intent. 
 Where the ch-iracter of an act depends 
 upon the intention with which it was done, 
 the ignorance of the person doing it may 
 be considered on the question of his guilt. 
 State V. Sparks, 27 Texas, 705. 
 
 276. An unanswered letter found in the 
 pocket of the accused when he was arrested 
 is not admissible in evidence against him. 
 People V. Green, 1 Parker, 11. 
 
 277. The conversion of property is a cir- 
 cumstance which, in connection with other 
 facts, the jury may consider to determine 
 the intent with which the possession was 
 obtained. Long v. State, 1 Swan, 287. 
 
 278. Evidence that some of the property 
 which the defendant was accused of having 
 obtained by means of threats, from A., was 
 afterward found concealed in the house of 
 the defendant, was held to be admissible as 
 tending to show guilty knowledge and in- 
 tent. State V. Bruce, 30 Maine, 72. 
 
 279. Proof that a grocer sold liquor, and 
 that it was drunk on the premises, is pre- 
 sumptive evidence that it was with his 
 consent. Casey v. State, 6 Miss. 646. 
 
 ?80. On a trial for stealing a slave, it was 
 held that the prosecution might give in 
 evidence a memorandum of the names of 
 the owners of slaves, with whopi the de- 
 fendant was proved to have been in com- 
 munication, written in pencil and found in 
 the pocket book of the defendant, and 
 taken from him, although it was not shown 
 to be in his handwriting. Whaley v. State, 
 11 Ga. 133. 
 
 281. Where a shot discharged at one 
 injuries another, who is at the time known 
 to be in such a position that his injury may 
 be reasonably apprehended as a probable 
 consequence of the act, the law holds the/ 
 intent to have embraced the victim ; and 
 the principle is the same where one is pur- 
 posely shot, under the mistaken belief that 
 he is a different person. Callahan v. State, 
 31 Ohio, N. S. 306. 
 
 282. Malice. Malice in law, is the doing 
 of an act wrongful in itself without just
 
 156 
 
 EVIDENCE. 
 
 Presumptive Evidence. 
 
 cause or excuse. It is presumed from an 
 assault with an instrument likely to produce 
 death, in the absence of proof to the con- 
 trary. State v. Declvlotts, 19 Iowa, 447. 
 
 283. Malice aforethought may be implied 
 from circumstances. Intent to maim or dis- 
 figure, may likewise be presumed from cir- 
 cumstances; and it is not necessary to prove 
 antecedent grudges, threatenings, or an 
 express design. State v. Irwin, 1 Hayw. 
 130. 
 
 284. Marriage. Evidence that parties 
 cohabited together as husband and wife, is 
 competent to i:)rove their marriage, excepting 
 in indictments for bigamy and the like, 
 where the marriage is the foundation of the 
 crime to be punished. People v. Anderson, 
 26 Cal. 129. 
 
 285. Prima facie, the fact of a marriage 
 celebrated according to the forms of a 
 religious denomination, embraces the assent 
 of the married parties to take each other as 
 husband and wife ; and it is incumbent on 
 the party disputing the marriage to negative 
 such assent. Fleming v. People, 27 N. Y. 
 329. 
 
 286. Coercion of wife. A wife will be 
 presumed to have acted under the coercion 
 of her husband in committing an offense, 
 when he was at the time near enough for 
 her to be under his immediate influence and 
 control, though not in the same room. C9m. 
 V. Munsey, 112 Mass. 287. But if she formed 
 the intent to commit the crime, and actually 
 commenced it in his absence and without 
 his knowledge, the fact that he afterward 
 arrived and aided in completing it, would 
 not create the presumption that she acted 
 under his compulsion. The question of 
 compuhion is to be determined by the jury. 
 Quinlan v. People, 6 Parker, 9. 
 
 287. Independent facts. When indejiend- 
 ent facts and circumstances are relied upon 
 to identify the accused, and taken together, 
 are regarded as a sufficient basis for a pre- 
 sumption of his guilt beyond a reasonable 
 doubt, each essential independent fact in 
 the chain or series of facts relied upon to 
 establish the main fact, must also be estab- 
 lished beyond a reasonable doubt. People 
 v. Phipps, 39 Cal. 326. 
 
 288- General presumptions. Where the 
 defendant's neighbors testified, that for a 
 considerable period a large number of per- 
 sons had been in the habit of going to his 
 house, many more than went to the houses 
 of other persons in the same neighborhood, 
 and many more than the business in which 
 he was ostensibly engaged required, that 
 many of those persons came from other 
 towns, and many called there at unusual 
 hours and under suspicious circumstances, 
 it was held that there was presumptive 
 evidence that the defendant's house was a 
 place of public resort. State v. Pratt, 84 
 Vt. 323. 
 
 289. On a trial for depositing scurrilous 
 postal cards in the mail, the cards given in 
 evidence, showed mistakes in spelling. Held 
 proper to prove other writings of the de- 
 fendant which contained similar errors, in 
 order to connect him with the cards; and 
 that an expert might point out to the jury, 
 peculiarities in such writings corresponding 
 with those in the cards. U. S. v. Chamber- 
 lain, 12 Blatch. 390. 
 
 290. Where the prisoner voluntarily wrote, 
 swore to, and delivered to the district 
 attorney a letter, with the intention of clear- 
 ing himself by charging the murder it was 
 alleged he had perpetrated upon one M., 
 it was held that the letter was admissible 
 in evidence against the prisoner on his trial, 
 whether he composed it, or only adopted it 
 after it was composed and written by a 
 fellow prisoner. Gardiner v. People, 6 
 Parker, 155. 
 
 291. On the trial of an information for 
 uttering a forged power of attorney, two 
 letters were given in evidence, proved to be 
 in the handwriting of the defendant; one 
 addressed to a witness in the case, seeking 
 to impress him with the defendant's version 
 of the facts, urging him to help the defend- 
 ant, and to speak to the jurymen ; the second 
 letter was addressed to another person, 
 asking him to labor with the jurymen, and 
 to promise them that they should be well 
 paid. Held competent. People v. Marion, 
 29 Mich. 31. 
 
 292. When the prosecution seeks to draw 
 a certain inference from a sriven state of
 
 EVIDENCE. 
 
 157 
 
 Presumptive Evidence. 
 
 Proof of Other Offense. 
 
 facts, it is incumbent on them t© show that 
 such inference is necessary and unavoidable 
 from the facts proved. U. S. v. Furlong, 
 2 Bis. 97; s. c. 1 Green's Crim. Reps. 440. 
 Proof that a person had in his ijossession 
 and owned a memorandum book does not 
 authorize the inference that he can write 
 and did write what was contained in the 
 book, as a basis for comparison of handwrit- 
 ing to prove the forgery by him of another 
 instrument. Van Sickle v. People, 29 Mich. 
 61. 
 
 293. On a trial for murder, photographs of 
 alleged accomplices, taken after their death 
 by drowning, may be shown to witnesses in 
 corroboration of other evidence identifying 
 their bodies. Ruloff v. People, 45 N. Y. 
 213. 
 
 294. Where an inquiry into the conditi6n 
 of a person's health is material, any account 
 given by such person relative to health is 
 evidence of complaints and symptoms, but 
 not to charge any other person as to the 
 cause of those sufferings; nor is such an 
 account evidence of the truth of what has 
 been declared. People v. Williams, 3 Parker, 
 84, per Clarke, J. 
 
 295. The power of a street lamp to emit 
 rays of light and diffuse them, four months 
 after a homicide, is not competent evidence 
 of its power in that respect at the time of 
 the killing, without showing that all the 
 conditions affecting its power were the same 
 on both occasions. Yates v. People, 33 N. 
 Y. 500. 
 
 296. On the trial of an indictment against 
 an overseer of highways, the fact that he 
 accepted his appointment may be proved by 
 parol evidence that he acted as such over- 
 seer. State V. Stroope, 20 Ark. 202. 
 
 297. Presumption of bias from relation- 
 ship. The mother of the prisoner having 
 been called to prove an alibi, the court 
 charged the jury that the law regarded with 
 suspicion the testimony of near relations 
 when testifying for each other. Held not 
 erroneous. State v. Nash, 8 Ired. 35. 
 
 298. Non-existence of facts on the rec- 
 ord. As the proceedings of a court are only 
 known by its records, if the facts insisted 
 on by the defendant for arresting the judg- 
 
 ment do not appear on the records of the 
 court, the presumption is that they do not 
 exist, especially after the lapse of three 
 years. Davis v. McDonald, 42 Ga. 205. 
 
 299. Rebuttal. Where in commencing a 
 criminal prosecution, the circumstances are 
 calculated to excite doubts as to the truth 
 of the charge, and to create an impression 
 unfavorable to the principal witness, the 
 prosecutor may show any circumstance 
 which will have a tendency to rebut these 
 presumptions. People v. Lohman, 2 Barb. 
 216 ; 1 K Y. 379. 
 
 12. Proop op other offense. 
 
 300. Not in general admissible. Evi- 
 dence of the prisoner's guilty participation 
 in the commission of a crime wholly dis- 
 connected from that for which he is put 
 upon his trial, is not as a general rule ad- 
 missible. Shaffner v. Com. 72 Penn. St. 60; 
 s. c. 2 Green's Crim. Reps. 504 ; Dunn agst. 
 State, 2 Ark. 229 ; State v. Shuford, 69 N. 
 C. 486; s. c. 1 Green's Crim. Reps. 247; 
 People V. Jones, 31 Cal. 565; 32 lb. 80; 
 Watts V. State, 5 West Va. 532; s. c. 2 
 Green's Crim. Reps. 676. Whether a person 
 on a trial for felony can consent to the ad- 
 mission of evidence of a distinct felony 
 committed by him at another time — query. 
 People V. King, 1 Wheeler's Crim. Cas. 33. 
 
 301. On the trial of an indictment for the 
 larceny of bank bills, alleged to have been 
 committed on the 16th of December, the 
 prosecution after proving the commission of 
 the offense on that day, Avere allowed to 
 prove that the parties being together on the 
 following day, the defendant enticed the 
 prosecuting witness into an alley, and there 
 knocked him down, beat and roljlied him of 
 additional money. Held error. Bonsall v. 
 State, 35 Ind. 460. 
 
 302. On a trial for murder, the prosecution 
 gave in evidence the minutes of the grand 
 jury showing that an indictment had been 
 ordered by that body against the accused 
 upon the complaint of the deceased for 
 blackmailing, without proof tending to 
 show that the prisoner had any knowledge 
 of such action by the grand jury. Held 
 error, the evidence having no tendency to
 
 158 
 
 EVIDENCE. 
 
 Proof of Other Offense. 
 
 Testimony of Accomplice. 
 
 show a motive, and its only effect being to 
 prove that the accused had committed an- 
 other crime. Stokes v. People, 53 N, Y. 
 164. 
 
 303. An accomplice cannot be permitted 
 to testify that the prisoner proposed to him 
 to join him in committing other crimes, or 
 that the prisoner in the same conversation 
 said that he was going to commit other 
 crimes. Kinchelow v. State, 5 Humph. 9. 
 
 304. May be received when it tends to 
 prove the crime charged. If the evidence 
 has a direct tendency to prove the particular 
 crime charged, it is admissible, although it 
 also tends to prove the commission of an- 
 other separate and distinct offense. State 
 V. Harrold, 38 Mo. 496; State v. Braun- 
 schweig, lb. 587; State v. Daubert, 43 lb. 
 243. 
 
 305. The plaintiff in error was indicted 
 and tried for forging a check upon a bank, 
 purporting to be drawn by C. & Co. The 
 teller was asked on the trial, whether the 
 said firm kept an account at that bank, to 
 which he replied that it did not. The check 
 was shown to the witness, and he was then 
 asked if he ever saw the check before, and 
 if it was presented to him at the bank. The 
 witness said it was his impression that it was 
 presented to him. He was then inquired of 
 whether C. & S., the payees of the check, 
 had an account at the said bank at the date 
 of the check, and the witness replied in the 
 negative. It was urged in the argument 
 that the evidence of the teller had a tendency 
 to prove a different offense from that charged, 
 viz. : obtaining goods by false pretenses. 
 Held., that the attempt to obtain the prop- 
 erty of C. & S., by this forged check, was, 
 in a minor sense, the crime of false pretenses ; 
 that if the evidence tended to prove the 
 minor offense, it was because the greater 
 crime included the lesser; and that the fact 
 that neither the persons purporting to be the 
 drawers, nor the indorsers of the check had 
 
 ' any account with the bank, was a part of the 
 history of the check, and so became con- 
 nected with the alleged crime. Watson v. 
 People, 64 Barb. 130. 
 
 306. Is admissible on the question of 
 motive and intent. Separate and distinct 
 
 felonies may be proved for the purpose of 
 establishing the existence of a motive to 
 commit the crime in question, even though 
 an indictment is then pending against the 
 prisoner for such other felonies. People v. 
 Wood, 3 Parker, 681 ; People v. Stout, 4 lb. 
 71 ; lb. 133 ; Baker v. State, 4 Ark. 56 : Yar- 
 borough V. State, 41 Ala. 405 ; Defrese v. 
 State, 3 Heisk. 53; s. c. 1 Green's Crim. 
 Reps. 356. Therefore, on the trial of an in- 
 dictment for stabbing with intent to mur- 
 der, it is competent to show that the de- 
 fendant attempted to poison the person 
 stabbed. State v. Patza, 3 La. An. 513. 
 
 307. Offense different from that before 
 grand jury. It is competent to show that 
 the offense of which the defendant was con- 
 victed is a different offense from that which 
 was proved before the grand jury who found 
 the indictment. Spratt v. State, 8 Mo. 347. 
 
 13. Testimony of accomplice. 
 
 308. When admissible. The acts of an 
 accomplice are not evidence against the ac- 
 cused, unless they constitute a part of the 
 res gestce, and occur during the pendency of 
 the criminal enterprise, and in furtherance 
 of its objects. Although the fiiglit of a per- 
 son suspected of crime is a circumstance to 
 be weighed by the jury, as tending to prove 
 a consciousness of guilt, yet the flight of one 
 of several conspirators is not admissible in 
 evidence as a circumstance tending to prove 
 the guilt of all. People v. Stanley, 47 Cal. 
 118. See People v. Collins, 48 lb. 377. 
 
 309. Need not be corroborated. A con- • 
 viction may be had upon the uncorroborated 
 testimony of an accomplice. People v. Cos- 
 tello, 1 Denio, 85; Wixson v. People, 5 
 Parker, 119; People v. Cook, lb. 351; 
 People V. Haynes, 55 Barb. 450; People v. 
 Lawton, 56 lb. 136 ; People v. Dyle, 31 
 N. Y. 578; People v. Jenness, 5 Mich. 305; 
 Gray v. People, 36 111. 344 ; State v. Wal- 
 cott, 31 Conn. 373 ; Dawley v. State, 4 Ind. 
 128 ; Stocking v. State, 7 lb. 336 ; contra, 
 People v. Reeder, 1 Wheeler's Crim. Cas. 
 418; Upton V. State, 5 Iowa, 465 ; State v. 
 Pepper, 11 lb. 347; People v. Ames, 39 Cal. 
 403; People y. Melvane, lb. 614; Lopez v. 
 State, 34 Texas, 133. But evidence from
 
 EVIDENCE. 
 
 159 
 
 Testimony of Accomplice. 
 
 such a source should be received with great 
 caution. Coats v. People, 4 Parker, 662 ; 
 State V. Walcott, 21 Conn. 272 ; State v. 
 Stebbins, 29 lb. 463. In Louisiana, although 
 the testimony of an accomplice requires 
 some confirmation (State v. Cook, 20 La. An. 
 145), yet the jury may convict on his testi- 
 mony alone. State v. Prudhomrae, 25 lb. 
 522. In Georgia, the rule that the defend- 
 ant cannot be convicted upon the testimony 
 of an accomplice alone, does not hold in the 
 case of a misdemeanor. Parsons v. State, 
 43 Ga. 197 ; Crisson v. State, 51 lb. 597. In 
 Alabama and Kansas, to convict on the tes- 
 timony of an accomplice, it need not be cor- 
 roborated in every material part. Mont- 
 gomery V. State, 40 Ala. 684 ; Craft v. State, 
 3 Kansas, 450. 
 
 310. Ought in general to be corrobo- 
 rated. As a general rule, in felonies, the 
 jury ought not to convict on the uncorrobo- 
 rated evidence of an accomplice ; and even 
 in misdemeanors, unless the accomplice is 
 corroborated, or there are such circum- 
 stances in the case as to relieve him from sus- 
 picion, it is safer to reject his testimony. 
 U. S. V. Harries, 2 Bond, 311 ; U. S. v. 
 Smith, lb. 333 ; People v. Haynes, 55 Barb. 
 450. It is the duty of the court so to ad- 
 vise the jury. Flanagin v. State, 25 Ark. 
 92 ; Ray v. State, 1 Iowa (Greene), 316 ; Al- 
 len v. State, 10 Ohio, N. S. 287. In Iowa, 
 under the statute (Revision, § 4102), a con- 
 viction cannot be had upon the testimony of 
 an accomplice, unless he be corroborated by 
 such other evidence as shall tend to connect 
 the defendant with the commission of the of- 
 fense. State v. Moran, 34 Iowa, 453 ; s. c. 1 
 Green's Crim. Reps. 749. 
 
 311. The following instruction was held 
 correct: That it was competent for the jury 
 to convict on the testimony of an accom- 
 plice alone ; but that it was unsafe to rely 
 on such evidence without confirmation. That 
 the corroborating evidence must relate to 
 some portion of the testimony material to 
 the issue, and connect the defendant with 
 the offense charged. Com. v. Brooks, 9 
 Gray, 299 ; Com. v. Price, 10 lb. 472. 
 
 312. In California an accomplice must be 
 corroborated by evidence, which of itself. 
 
 and without the aid of the testimony of the 
 accomplice, tends in some degree to connect 
 the defendant with the commission of the 
 ofl'ense. People v. Thompson, 50 Cal. 480. 
 It is otherwise as to a feigned accomplice. 
 People V. Farrell, 30 lb. 316. 
 
 313. Where counsel for the prosecution 
 assume, and claim, that a witness is an ac- 
 complice, an instruction of the court that if 
 the jury believe that the witness was not an 
 accomplice, his testimony need not be cor- 
 roborated, is erroneous. Com. v. Desmond, 
 5 Gray, 80. 
 
 314. Where an accomplice and his wife 
 are witnesses against the accused, it is not 
 error in the judge to instruct the jury that 
 in determining the credibility of the testi- 
 mony of the husband, they may take into 
 consideration that of the wife. Haskins v. 
 People, 16 N. Y. 344. 
 
 315. What deemed a corroboration. The 
 statement of the prisoner to the officer who 
 arrested him on a charge of robbeiy, that 
 the accomplice had nothing to do with the 
 robbery, is a sufHcient corroboration of the 
 testimony of the accomplice ; since it war- 
 rants the inference that the prisoner knew 
 who were engaged in committing the offense, 
 and that this knowledge was derived from 
 his own participation in it. Com. v. O'Brien, 
 12 Allen, 183. See Com. v. Elliott, 110 
 Mass. 104; s. c. 2 Green's Crim. Reps. 261. 
 
 316. Where part is false. The defend- 
 ant was convicted of larceny on the testimo- 
 ny of M., who swore that he and the defend- 
 ant committed the crime. It being shown 
 that M. had made contradictory statements, 
 the defendant asked the court to charge the 
 jury that if tiie witness had, in anything ma- 
 terial, sworn willfully and knowingly to 
 anything false, his whole testimony must be 
 disregarded. The court refused to so charge, 
 but charged in substance that any such false- 
 hood would seriously affect all of the wit- 
 ness's testimony, and that no credit should 
 be given to any fact dependent upon his 
 statements alone ; but that where corrobo- 
 rated it might receive such credit as the jury 
 thought it deserved. Held, that there was 
 no error. Knowles v. People, 15 Mich. 408. 
 
 317. Who not an accomplice. A detect-
 
 160 
 
 EYIDEKCE. 
 
 Testimony of Accomplice. 
 
 Testimony of Experts. 
 
 ive who acts without any felonious intent, 
 but solely with the view of discovering the 
 perpetrators of crime, is not an accomplice. 
 State V. McKean, 36 Iowa, 343; s. c. 2 
 Green's Crim. Reps. 635. So,likewise, a per- 
 son who has no knowledge of a larceny until 
 after its commission, and who buys the stolen 
 goods by direction of an officer, with funds 
 supplied by the officer, in order to detect 
 the thief, is not an accomplice whose testi- 
 mony needs corroboration. People v. Bar- 
 ric, 49 Cal. 342. 
 
 318. Where a witness swore that he was 
 present while the defendants played a num- 
 ber of games with cards; that at the request 
 of one of them, who did not know much 
 about the game, he sat behind him, and 
 from time to time told him how to play ; 
 that he took a card once or twice from the 
 hand of said player and threw it down on 
 the table for him, and once, during the mo- 
 mentary absence of said player, played one 
 of his cards for him ; and that he was also 
 engaged in reading a part of the time— it 
 was held proper for the court to refuse to 
 instruct the jury that the witness was an ac- 
 complice, and that a conviction could not 
 be had on his uncorroborated testimony. 
 Smith V. State, 37 Ala. 472. 
 
 14. Testimony of experts. K 
 
 319. In general. Professional witnesses 
 can only give their opinion on questions of 
 skill or science. People v. Bodine, 1 Denio, 
 282 ; Woodin v. People, 1 Parker, 464 ; Cook 
 V. State, 4 Zabr. 843. But their opinions as 
 experts not derived from their own observa- 
 
 j tion and experience, but from books, are 
 admissible in evidence. State v. Terrell, 
 12 Rich. 321; State v. Wood, 53 New 
 Hamp. 484. Their opinion is not conclu- 
 sive, but is to be weighed by the jury as 
 other evidence. State v. Bailey, 4 La. An. 
 376. 
 
 320. A medical or other professional wit- 
 ness cannot be allowed to give opinions out- 
 side of his art or profession. Where, there- 
 fore, a physician on the trial of an indict- 
 ment against a father for having carnal 
 knowledge of his daughter, was permitted 
 to express to the jury his opinion that the 
 
 child had gonorrhcea, based upon the fact 
 that he found that disease upon the father, 
 it was held error. Moore v. State, 17 Ohio, 
 K S. 515. 
 
 321. Must be based on facts. An expert 
 cannot be permitted to give a mere 023inion 
 not based on facts. The facts on which 
 the opinion is l)ased, must either be stated 
 by other witnesses or by the expert him- 
 self, if they passed under his own obser- 
 vation. And the opinion must be found- 
 ed upon a knowledge of causes and their 
 effects so uniform in their connection as to 
 amount to the establishment of a new fact, 
 relation, or connection which would other- 
 wise remain unproved. Cooper v. State, 23 
 Texas, 331, per Bell, J. 
 
 322. An expert who has heard the whole 
 evidence, cannot give his opinion as to the 
 effect of such evidence. Luniug v. State, 1 
 Wis. 178. If the expert has been present in 
 court, and has heard all the evidence, and 
 there is no dispute about the facts, he may 
 be asked his opinion. Cjut when the facts 
 are disputed, the question should be stated 
 hypothetical! jC^ State v. Klinger, 46 Mo. 
 224. An expei-t who has heard only a 
 portion of the evidence, cannot testify to an 
 opinion based on such portion. State v. 
 Medlicott, 9 Kansas, 257; s. c. 1 Green's 
 Crim. Reps. 227. 
 
 323. As to cause of death. An expert 
 after having made a post mortem examina- 
 tion of the body of a female, may give his 
 opinion that she had been pregnant, and 
 as to the cause of her death. State v. 
 Smith, 32 Maine, 369. 
 
 324. On a trial for murder, it appeared 
 that the body of the deceased was found in 
 the sink or bin of his mill with six wounds 
 on his head. Held that a medical expert, 
 who had heard a medical witness describe 
 the wounds, and had also heard several 
 witnesses describe the construction and 
 condition of the sink, was competent to 
 give his opinion as to whether such wounds 
 were likely to have been occasioned by 
 accidentally fiilliug into the sink, although 
 he did not hear the whole cross-examination 
 of the physician who described the wounds. 
 Davis V, State, 38 Md. 15.
 
 EVIDEXCE. 
 
 101 
 
 Testimony of Experts. 
 
 325. As to instrument. The form and 
 appearance of the wounds upon the deceased 
 having been ascertained by an expert, it is 
 proper to ask him whether, in his opinion, 
 an instnimeut shown him could have pro- 
 duced the wounds ; also, whether a wound 
 in the neck of the deceased could have been 
 inflicted by her own right hand. State v. 
 Knight, 43 Maine, 1 1 ; State v. Porter, 34 
 Iowa, 131 ; s. c. 1 Green's Crim. Keps. 241. 
 
 326. On a trial for murder, the following 
 question to a medical witness who had ex- 
 amined the wounds on the head of the de- 
 ceased, and the sink or bin in which the 
 body was found, and also a crowbar and 
 adze, which were found at the same place, 
 was held proper: "State to the jury what 
 kind of an instrument could in your opinion, 
 have inflicted the wounds found on the 
 head of the deceased." Davis v. State, 38 
 Md. l.j. 
 
 327.'V)u a trial for murder, the form, 
 nature, extent, depth, length, width, and 
 direction of the fotal wound having been 
 proved/ and its precise location on the head, 
 with a general statement of the amount of 
 force requisite, and the probable shape of 
 the instrument, a surgeon is no more com- 
 petent to give an opinion as to the position 
 of the body when struck, than any other 
 person. But where the only question of 
 fact was as to wlio was the perpetrator, it 
 was held tiiat the admission of such an 
 opinion furnished no ground for a new trial. 
 Kennedy v. People, 39 N. Y. 245. 
 
 328. On the trial of an indictment for 
 burning certain buildings, witnesses who 
 were skilled in woodwork were called, who 
 had examined a block contained in a box 
 alleged to have been used for incendiary 
 purposes, and liad compared it with a stick 
 found in the defendant's shop, and were 
 allowed to state their opinion, that these 
 pieces were originally parts of the same 
 stick. Held proper. Com. v. Choate, 105 
 Mass. 451. 
 
 329. On the question of insanity. Facts 
 or opinions on the subject of insanity, 
 whether stated in the language of the court 
 or counsel in a former case, or cited from 
 the works of legal or medical writers, can- 
 
 11 
 
 not be laid before the jui-y except by the 
 testimony under oath of persons skilled in 
 such matters. Com. v. Wilson, 1 Gray, 
 337. 
 
 330. Although medical men are permitted 
 to give their opinion in cases of alleged 
 insanity, yet they should not be allowed to 
 express such opinion, except on all the testi- 
 mony. Where medical witnesses who had 
 heard only a portion of the evidence, and 
 had had no previous acquaintance with the 
 prisoner, were permitted not only to give 
 opinions in relation to the condition of his 
 mind, but also to testify to their belief that 
 he was sane, it was held error. People agst. 
 Lake, 12 N. Y. 358 ; s. c. 1 Parker, 495. 
 
 331. If a physician visits a person, and 
 from examination or observation becomes 
 acquainted with his mental condition, he 
 may state to the jury his opinion sis to the 
 sanity or insanity of the person when he 
 thus observed or examined him ; and it may \ 
 be shown by the witness that the faiher of 
 such person was insane. State v. Felter, 
 25 Iowa, 67. 
 
 332. A medical witness conversant with 
 insanity, who never saw the prisoner before 
 the trial, but who was present during the 
 whole trial, and heard the evidence, may be S 
 asked his opinion as to the state of the 
 prisoner's mind at the time of the commis- 
 sion of the alleged crime. State v. Windsor, 
 
 5 Harring. 512. Held otherwise in New 
 York, but that the witness might be asked 
 whether such and such appearances, were 
 symptoms of insanity, and whether such a 
 fact, if it exist (and which has been sworn 
 to), is, or is not, an indication of insanity. 
 People agst. Lake, 12 iS". Y. 358; s. c. 1 
 Parker, 495. 
 
 333. A medical witness examined as an\ 
 expert, was asked the following question: | 
 "Would not the manner in which the act / 
 was done, tiie circumstances of the case, the . 
 absence or presence of apparent motive, and 
 the wliole details of the transaction, be con- ' 
 sidered by scientific men in determining the] 
 question of sanity or insanity ? " Held 
 proper. State v. Reddick, 7 Kansas, 143. 
 
 334. On a question of insanity, an expert 
 may be asked his opinion as to a hypothe-
 
 162 
 
 EVIDENCE. 
 
 Testimony of Experts. 
 
 tical statement of facts, and also as to what 
 are the symptoms of insanity. But the jury 
 are to determine whether such facts exist, or 
 such symptoms are proved. Lake v. People, 
 1 Parker, 495 ; People v. Thurston, 2 lb. 
 '$97" The following question to a medical 
 witness was held incompetent, for the reason 
 that it practically put the witness in the 
 place of the jury : " From the facts and cir 
 cumstances stated by previous witnesses, 
 relating to the homicide, and from the de- 
 fendant's conduct on the trial, is it your 
 opinion that the prisoner was sane or insane 
 . when he committed the act?" State v. 
 Felter, 25 Iowa, 67. 
 
 335. On a trial for murder, there was evi- 
 dence tending to show that the piisoner 
 before and at the time of the act was 
 laboring under an insane delusion. C , a 
 physician, tcstitied that the facts relied 
 upon by the defense indicated that the pris- 
 oner was of unsound mind. The judge, in 
 his charge, told the jury that he placed no 
 reliance whatever upon Doctor C.'s testi- 
 mony except what was due to the testimony 
 of a sensible and honest gentleman, and 
 that he had equal respect for the opinions 
 of the jury, who were quite as competent, 
 perhaps, to pass upon the testimony as ex- 
 perts as was Doctor C. Exception being 
 taken to these remarks, the judge responded 
 thus : " There is no more reliance to be 
 placed upon it than upon the testimony of 
 ^ any other person in this case. 1 1 regard you, 
 gentlemen of the jury, as equally skilled and 
 and as able to decide from the evidence 
 whether or not the prisoner was insane as 
 Doctor C.J Held error. Templeton v. Peo- 
 ple, 6 N. Y. Supm. N. S. 81. 
 
 336. On a trial for murder, a witness 
 testified that he had examined the prisoner 
 two days after the homicide, and that in his 
 opinion he was then deranged, and that he 
 thought delirmra tremens was the cause. 
 Held that the defendant had a right to 
 pursue the inquiry, and to have the opinion 
 of the witness whether the state of mind in 
 which he found the prisoner had existed at 
 the date of the homicide, but that as the 
 court had merely excluded the question in 
 the form in which it was put, and allowed 
 
 the witness to state how long in his opinion 
 the prisoner had been in a state of delirium 
 tremens, there was no error. People v. Mc- 
 Cann, 3 Parker, 273; s. c. 1(5 N. Y. 58. 
 
 337. The counsel for the defendant asked 
 the same witness what, in his opinion, the 
 facts stated on the trial, supposing themi to 
 be true, showed as to the defendant's mind 
 on the night of the homicide. The question 
 being objected to, was excluded. But the 
 court decided that the witness inight be 
 asked his opinion upon a hypothetical 
 case corresponding to the testimony, or by 
 reading him the testimony and asking for 
 his opinion, on the supposition that those 
 facts were true. Held that as the question 
 excluded by the court and those allowed 
 were in substance the same, there was no 
 error. H). per Harris, J. ^ 
 
 338. The proper mode of examining such 
 a witness is, first to inquire of him as to the 
 particular symptoms of insanity, asking 
 whether all or any and which of the circum- 
 stances spoken of by the witnesses upon the 
 trial are to be regarded as such symptoms, 
 and then to inquire of him whether any and 
 what combination of these circumstances 
 would, in his opinion, amount to proof of 
 insanity. lb. ' 
 
 339. May be interrogated to test their 
 skill. After melical witnesses have given 
 their opinions on the direct examination, 
 the counsel for the prisoner may put in- 
 quiries to them tending to test their skill 
 and capacity and the correctness of their 
 conclusions, and they may be asked hypo- 
 thetical questions predicable of the facts 
 proved or that may be fairly claimed to have 
 been proved. People agst. Lake, 13 N. Y. 
 358. 
 
 340. Interpreter. A person who is deaf 
 and dumb may testify by signs through an 
 interpreter, though, it appear that such per- 
 son can read and communicate ideas imper- 
 fectly by writing. State v. De Wolf, 8 Conn. 
 93. 
 
 341. Where an interpreter is employed, 
 and there is a dispute as to the meaning of 
 a word in the fort igu language, the court 
 should require the interpreter to give the 
 primary meaning of all words used in con-
 
 EVIDENCE. 
 
 163 
 
 Opinions of Witnesses who are not Experts. 
 
 nection with the word in dispute ; and the 
 a,ccused is entitled to introduce evidence as to 
 the meaning of the word. Schnier v. People, 
 23 111. 17. 
 
 15. Opinions op witnesses who are not 
 
 EXPERTS. 
 
 342. Indistinct recollection. Where the 
 impression of a witness, as to a past fact, 
 means a remembrance so faint that it cannot 
 be characterized as an undoubting recollec- 
 tion, it is evidence, however indistinct the 
 recollection may be. State v. Flanders, 38 
 New Hamp. 324. 
 
 343. As to defendant's guilt. A witness 
 cannot be permitted to express his opinion 
 of the defendant's guilt. Cameron v. State, 
 14 Ala. 546. And after a witness has testi- 
 fied to facts tending to prove the guilt of 
 the defendant, it is not competent for the 
 latter to show what opinion the witness ex- 
 pressed upon the merits of the case. Com. 
 v. Mooney, 110 Mass. 99. 
 
 344. On questions of common knowledge. 
 It is competent for a witness to give his 
 opinion as a conclusion of fact to which his 
 judgment, observation and common knowl- 
 edge has led him in regard to a subject- 
 matter which requires no special learning or 
 experiment, but which is within the knowl- 
 edge of men in general. It was, therefore, 
 held that a witness who was familiar with 
 blood, and had examined with a lens a 
 blood stain upon a coat when it was fresh, 
 might testify that the appearance then indi- 
 cated the direction from which it came, al- 
 though he had never experimented with 
 blood or other fluid in this respect ; the 
 witness having previously testified to its ap- 
 pearance at the time he examined it, and to 
 the fact that, at the time of the trial, it was 
 not in the same condition. Also held in 
 relation to shoes which were taken from 
 the defendant's house soon after the homi- 
 cide, and which, it was claimed, fitted tracks 
 supposed to have been made by the murderer, 
 that a witness might testify that the shoes 
 appeared as if they had been recently 
 washed. Com. v. Sturtivant, 117 Mass. 122. 
 
 345. Where a witness has testified that he 
 heard the sound of a carriage, he may be 
 
 asked from what direction the sound seemed 
 to come, or frpm what point the carriage 
 seemed to start. State v. Shinborn, 46 New 
 Hamp. 497. 
 
 346. A witness may give his opinion as to 
 the time of day when an event occurred, and 
 as to the length of time which elapsed be- 
 tween the occurring of two events. Camp- 
 bell V. State, 23 Ala. 44. 
 
 347. One who has been a money broker in 
 the city of B. for twelve years, buying and 
 selling bank bills, is competent to show that 
 the bills purporting to be issued by a cer- 
 tain bank are not current, and have no 
 market value in B. But his opinion is not 
 admissible in evidence to prove that there is 
 no such bank, or if there is, that its bills are 
 worthless eveiywhere. People v. Chandler, 
 4 Parker, 231. 
 
 348. As to age of person. The mere 
 opinion of a witness as to the age of a per- 
 son from his appearance, unaccompanied by \ 
 the facts on which the opinion is based, is 
 not competent evidence. Morse v. State, 6 
 Conn, 9. 
 
 349. On the question of health. The 
 difiierence between health and any sickness 
 whatever in a neighborhood is not to be re- 
 garded as open only to medical knowledge, 
 and the contradiction of medical testimony 
 on the subject, is a contradiction of common 
 facts and not of science, not requiring the 
 testimony of an expert. Evans v. People, 
 12 Mich. 27. 
 
 350. But a witness who is not an expert 
 is not competent to express an opinion as to 
 the particular kind of fits with which a per- 
 son is afflicted. McLean v. State, 16 Ala. 
 672. 
 
 351. As to declarations of the defend- 
 ant. It is erroneous to permit a witness to 
 give his '' understanding " of the meaning 
 of declarations made to him by the prisoner, 
 unless the witness is an interpreter or ex- 
 pert. Dixon V. State, 13 Fla. 636. Evi- 
 dence on a trial for murder that the prisoner 
 made threats of violence against a person 
 without naming him, but that, in the opin- 
 ion of the witness, tlic prisoner alluded to 
 the defendant, is not competent. Johnson 
 V. Com. 9 Bush, 224.
 
 164 
 
 EVIDENCE. 
 
 Opinions of Witnesses who are not Experts. 
 
 352. On a trial for murder, the prosecu- 
 tion proved by a witness tbat he heard cries 
 at the house where the prisoner and bis wife 
 (the deceased) lived, on the Saturday night 
 2)recediug her death. The witness was then 
 
 I asked what those cries indicated ; to which 
 he answered (uucTer objection), tbat it 
 seemed to him she cried for belp. Held er- 
 ror; it being for the witness to describe the 
 cries, and the jury to draw their own infer- 
 ences. Messner v. People, 45 N.Y. 1 ; Peck- 
 ham, J., dissenting. 
 
 353. As to defendant's intention. On 
 the trial of an indictment for an assault with 
 intent to do great bodily harm, the prosecu- 
 tor was asked, on cross-examination, whether 
 
 j he believed at the time the shot was fired, 
 that the defendant intended to shoot him. 
 Held that the answer to this question was 
 properly excluded, it not appearing that the 
 pwitness had any better means of judging as 
 to the defendant's intention than the jury7 
 State V. Garvey, 11 Minn. 154. 
 
 354. Speculation or conjecture. On the 
 trial of an indictment for seduction under 
 promise of marriage, the district attorney 
 asked the prosecutrix, "Were you induced 
 
 g to have the connection on the second of July 
 * by the promise of marriage ; and would you 
 have consented to it, in the absence of a 
 promise ? " Held that the latter part of the 
 question was improper, as it called for a 
 mere speculation, and substituted the prose- 
 cutrix in the place of the jury. Cook v. Peo- 
 ple, 2 N. Y. Supm. K S. 404. 
 
 355. On a trial for an assault with an in- 
 tent to kill, the evidence on the part of the 
 prisoner tended to show repeated acts of vio- 
 lence against him by the complainant, and 
 threats against his life. The prisoner, in tes- 
 tifying, described a motion of the complain- 
 ant's hand during the collision between 
 
 ) them, from which he thought the latter de- 
 sig-ned to take a pistol from his pocket, and 
 in reference to that circumstance, the judge 
 asked : " Can you explain to me this thing ? 
 While C, who was able to whip you, kept 
 picking at you for amusement, why should 
 he have put his band in liis pocket after giv- 
 ing you three terrific blows in the face ? 
 What was the occasion of drawing a pistol ? 
 
 I don't see why a man whipping you every- 
 day, you should suspect he would draw a 
 pistol." Held that as the question called 
 upon the prisoner to furnish the reason or ! 
 motive for the complainant's act, its admis- 'i 
 sion was error. Evers v. People, 6 N. Y. \ 
 Supm. N. S. 81. 
 
 356. On the question of sanity. The 
 opinion of non-professional witnesses as to 
 the mental condition of the prisoner at the 
 time of the occurrence, is not admissible. 
 State V. Pike, 49 New Hamp. 399; State v. 
 Archer, 54 lb. 465. And it is not competent 
 to ask the witness whether he had discov- 
 ered, while the prisoner was in jail, that he 
 was a man of very weak mind. Gardiner v. 
 People, 6 Parker, 155. But delirium tre-' 
 mens may be proved by a non professional 
 witness. Real v. People, 55 Barb. 551. 
 
 357. In Massachusetts, witnesses who are 
 not experts are not permitted to state their i 
 opinion as so a person's sanity, even if they 
 first state the fa cts and circumstances on 
 which it is founded. Com. v. Wilson, 1 Gray, 
 337; Com. v. Fairbanks, 3 Allen, 511. It is 
 otherwise, in Georgia and Tennessee. Choice 
 V. State, 31 Ga. 424 ; Dove v. State, 3 Heisk. 
 348 ; s. c. 1 Green's Crim. Reps. 760. In Mis- 
 souri, witnesses who are not experts, may 
 state whether they deem the prisoner to be 
 insane, accompanied with the facts existing 
 within their own knowledge and observa;^ 
 tion. But it can only be done in connection 
 with their statements of the particular con- 
 duct and expressions which form the basis 
 of their judgment. State v. Klinger, 46 Mo. 
 224. And see Powell v. State, 24 Ala. 21. 
 
 358. In New York, a layman when exam- 
 ined as to facts within his own knowledge, 
 bearing on the question of sanity, may be 
 permitted to characterize the acts to which 
 he testifies as rational or irrational, and may 
 testify to the impression produced by what 
 he witnessed. But he is not competent to 
 express an opinion on the general question 
 whether the mind of the individual be sound 
 or unsound. O'Brien v. People, 36 N. Y. 
 276 ; affi'g 48 Barb. 274. 
 
 359. As to intoxication of defendant, i 
 A witness may be asked whether from the ^ 
 prisoner's conduct and deportment, and other
 
 EVIDENCE. 
 
 165 
 
 Proof of Alibi. 
 
 /: 
 
 facts connected with them, he was (in the 
 judgment of the witness), to any considera- 
 ble extent under the influence of intoxicat- 
 ing liquor. People agst. Eastwood, 14 N. Y. 
 5C2. 
 
 16. Proof op alibi. 
 
 360. Nature of. A charge that the law 
 regards evidence to prove an alil:>i among 
 the weakest and most unsatisfactory of all 
 kinds of evidence, is erroneous. An alibi is 
 ii fact, and its existence is established by the 
 same evidence as any other fact. Williams 
 v. State, 47 Ala. 659. 
 
 381. Burden of proof. On the trial of 
 an indictment for burning certain buildings, 
 the jury were instructed that if the defend- 
 ant sought to establish an alibi, the burden 
 of proof was on him ; but that the burden 
 was upon, the prosecution to establish the 
 alleged fact that the defendant was present 
 at the fire, and if on the entire evidence the 
 juiy had a reasonable doubt on that point, 
 they should acquit him. Held not a ground 
 of exception. Com. v. Choate, 105 Mass. 
 451. 
 
 362. "What required to establish. An 
 alibi need not be proved beyond a reasona- 
 ble doubt. Chappel v. State, 7 Cold. Tenn. 
 92. Therefore the terms "possible" and 
 " impossible " in the instruction of the court 
 with reference to the proof of it, are too 
 strong. Snell v. State, 50 Ind. 516. Where 
 on a trial for larceny, the defense being an 
 alibi, the judge charged the jury in sub- 
 stance that "it must have been impossible for 
 the defendant to have been at L. at the 
 times indicated by the evidence offered by 
 him and also to have been present at the 
 time and place of the larceny in order to 
 make the defense available." Held error; 
 the term " impossible'''' being too strong, and 
 an improbability being all that was required. 
 Adams v. State, 42 Ind. 373. Same held 
 on a trial for murder. West v. State, 48 lb. 
 483. 
 
 363. It is erroneous to charge the juiy 
 that if the defendant seeks to prove an alibi, 
 he must do it by evidence which outweighs 
 that given for tlie State tending to fix his 
 presence at the time and place of the crime; 
 
 for the reason that if the defendant produces 
 evidence which raises a reasonable doubt of 
 the truth of the charge against him he must 
 be acquitted; and the rule is the same, 
 where the defense set up is an alibi. French 
 V. State, 12 Ind. 670 ; Miller v. People, 39 
 111. 457 ; Adam? v. State, 42 Ind. 373 ; 8. c. 
 3 Green's Crim. Reps. 686. But see Briceland 
 V. Com. 74 Penn. St. 463 ; s. c. 2 Green's 
 Crim. Reps. 523. 
 
 364. It is erroneous to charge the jury on 
 a trial for murder that " the defense of alibi 
 does not belong to the doctrine of doubts 
 which entitles the defendant to be acquitted ; 
 but when it is successfully established by the 
 evidence, it entitles the defendant to an ac- 
 quittal upon the higher ground of innocence 
 established." If the jury have a reasonable 
 doubt as to whether the defendant was at 
 the scene of the homicide when it took place 
 they should acquit him. Binns v. State, 46 
 Ind. 311. 
 
 365. On a trial for robbery, the defense to 
 which was an alibi, the evidence tended to 
 show that when the crime was committed, 
 the prisoner, who was a lad, was at his 
 mother's house in bed. The judge charged 
 the jury that it was for them to determine 
 whether they believed the witnesses who 
 had testified to the alibi; that it was singu- 
 lar that a boy like the prisoner should be in 
 bed in July, from seven to half past eleven 
 in the morning, unless he was sick or there 
 was some other special reason, and that the 
 circumstance that neither his mother nor 
 any of his family had been called to show 
 that he was sick or to explain the fact of 
 his thus being in bed might or " would prob- 
 ably turn the scales." Held, that the fore- 
 going language of the judge afforded no 
 ground for a new trial. MoGrory v. People, 
 48 Barb. 466. 
 
 366. Proof need not be exact as to time. 
 Where the court, after informing the jury 
 that to sustain the alibi identity of the time of 
 theoifense with the presence of the defendant 
 at another place was essential, told them, in 
 eflect, that to give the defense it) highest 
 character, the required identity must be 
 made to appear by some definite and certain 
 standard of time or time-piece, and that uu-
 
 166 
 
 EVIDENCE. 
 
 Proof of Alibi. 
 
 Evidence to Discredit or Sustain Witness. 
 
 less it was so ascertained, the defense would 
 be greatly weakened, it was held error; 
 such a discrimination between artificial 
 means of keeping time, and other modes of 
 ])roving the fact relied on, being calculated 
 to mislead. Young v. Com. 8 Bush, 366 ; 
 s. c. 1 Green's Crim. Reps. 306. 
 
 367. It is proper to instruct the jury that 
 where the exact time of the commission of 
 the offense is not shown, but it is shown to 
 liave been committed during a night, or 
 ])art of a night, the evidence of the alibi 
 ought to cover the whole of such time. 
 West V. State, 48 Ind. ,483. If, however, 
 the evidence touching an alibi is sufficient 
 to raise a reasonable doubt of the defend- 
 ant's guilt in the minds of the jury, it should 
 be considered, although the alibi does not 
 cover the whole time during w'hich the 
 crime was committed. Kaufman v. State, 
 49 lb. 248. 
 
 368. Evidence to disprove. "Where the 
 ■|)risoner has undertaken to prove an alibi, it 
 is competent for the prosecution in reply to 
 disprove it, even by evidence of the same 
 character as that which had been put in at 
 an earlier stage of the trial. Com. v. Moul- 
 ton, 4 Gray, 39. 
 
 369. Where the defendant stated that he 
 was at the residence of a certain person, and 
 transacted business with him there on the 
 evening the offense was committed, it was 
 held competent to prove that unsuccessful 
 efforts were made the next day to get any 
 information as to the existence of such per- 
 son by inquiring at the place named. State 
 V. Wentworth, 37 New Hamp. 19G. 
 
 370. Effect of failure to prove. Al- 
 though the fact that an alibi was fabricated, 
 would be a strong circumstance against the 
 defendant, yet the mere unsuccessful attempt 
 to establish an alibi, is entitled to no greater 
 weight against the prisoner than the failure 
 to prove any other important item of de- 
 fense. State V. Collins, 20 Iowa, 85 ; Miller 
 V. People, 39 111.457; Toler v. State, 16 
 Ohio, N. S. 583 ; White v. State, 31 Ind. 
 262. 
 
 371. On a trial for larceny the court 
 charged the jury that when the State had 
 made out a pi'ima facie case, and the pris- 
 
 oner attempted to set up an alibi, the bur- 
 den of proof was shifted, and if the de- 
 fense failed to establish the aliJ)i to the 
 satisfaction of the jury, they must find the 
 prisoner guilty. Held, erroneous; the de- 
 fendant being entitled to have the whole 
 case left to the jury on both sides. State v. 
 Josey, 64 K C. 56. 
 
 17. Evidence to discredit or sxjstaik 
 
 WITNESS. 
 
 372. Improper conduct of witness. Im- 
 proper conduct of a witness in the suppres- 
 sion or alteration of his testimony, cannot 
 take his testimony from the jury. Such 
 conduct goes to his credit, and that rests 
 with the jury. State v. Roe, 12 Vt. 93. 
 
 373. Facts collateral to issue. When 
 facts elicited on cross-examination are collat- 
 eral to the issue, they cannot be contra- 
 dicted by the party calling them out. State 
 V. Hofiinan, 46 Vt. 176 ; People v. McGinnis, 
 1 Parker, 387. 
 
 374. Vv'here on a trial for producing am 
 abortion the prisoner on his cross-examina- 
 tion, testified that he did not know N. W.^ 
 a young woman present in court then pointed 
 out to him, that hs had never seen her, and 
 never procured an abortion upon her, and 
 N. W. afterwards testified against an objec- 
 tion of the prisoner, that he did procure an 
 abortion upon her two years previous, it 
 was held error. Rosenzweig v. People, 6 
 6 Lans. 462 ; s. c. 63 Barb. 634. 
 
 375. This rule does not exclude testimony 
 contradicting the witness as to facts imme- 
 diately connected with the subject of the 
 inquiry. The feelings of the witness and 
 the motives and temper governing or influ- 
 encing him in the particular transaction are 
 proper subjects of inquiry and not collateral. 
 Where, on a trial for grand larceny, the com- 
 plainant on cross-examination denied that 
 he had offered to withhold evidence, if the 
 prisoner would refund to him a part of the 
 money he had lost, it was held that he could 
 not be contradicted by another witness, it 
 having no tetxdency to prove or disprove the 
 issue, or to shoV the feeling entertained by 
 the complainant toward the prisoner. Na- 
 tion V. People, 6 Picker, 258.
 
 EVIDENCE. 
 
 1G7 
 
 Evidence to Discredit or Sustain Witness. 
 
 376. Tlie rule under consideration, is ap- 
 plicable to the examiuation of a prisoner 
 when he avails himself of his privilege to 
 become a vpitness. On the cross-examina- 
 tion of the accused, who was a witness in 
 his own behalf, he testified that he had not 
 been convicted of burglary before the al- 
 leged oflfense was committed. This question 
 was then put to him: "I ask you again, 
 specifically, were you not, on April 35th, 
 1850, arraigned at the bar of this court, 
 charged with the crime of burglary ? Did 
 you not confess your guilt, and were you not 
 sentenced to three years in the State prison 
 for that offense ? " To which a negative 
 answer was given. The prosecution after- 
 ward proved by the record of the court that 
 a person by the name of the defendant was 
 convicted of felony at the time specified. 
 Held^ that this evidence was inadmissible, 
 even in connection with testimony aliunde 
 that the prisoner was the person named in 
 the record. It was impossible to say that 
 the prisoner was not prejudiced by it; or 
 that the rejection of the evidence offered to 
 show the identity of the prisoner as the per- 
 son named in the record cured the error. 
 Marx V. People, 63 Barb. 618. 
 
 377. It is not collateral to the issue to in- 
 quire into the motives of a witness in giving 
 his testimony; and a party who examines 
 him in regard to them is not bound by his 
 answers, but may contradict him. People 
 V. Austin, 1 Parker, 154. 
 
 378. Party contradicting his own wit- 
 ness. Although a party is not permitted to 
 assert or present evidence showing one state 
 of facts to be proved, and afterward to as- 
 sert or prove to the court that his prior 
 evidence is untrue, or not to be relied on ; 
 yet where a witness has given evidence 
 against the side calling him, and tlie court 
 
 fhas good reason to apprehend that the wit- 
 ness is mistaken, or has willfully falsified, 
 the party producing him will be allowed to 
 give evidence explaining or even contradict- 
 
 __ing him. People v. Skeelian, 49 Barb. 217. 
 
 379. In Kentucky, under the statute, where 
 a witness testifies to a fact prejudicial to the 
 party calling him, the latter may be allowed 
 to show that such fact does not exist, by 
 
 proving that the witness had made state- 
 ments to others inconsistent with his present 
 testimony ; but not when tlie witness fails to 
 prove facts supposed to be beneficial to the 
 party. Champ v. Com. 2 Mete. Ky. 17. 
 
 380. Although a party is not bound by the 
 facts testified to by his own witness, but 
 may prove them to be otherwise, yet he 
 canuot go into proof merely to discredit his 
 witness. Where, on a trial for perjury, the 
 accused called a daughter of the prosecutor 
 to prove a material fact, but she swore to the 
 contrary, it was held that he could not prove 
 by a witness that, shortly -before the trial, 
 the daughter asserted the alleged fact to the 
 witness. Com. v. Starkweather, 10 Cush. 
 59. 
 
 381. Failure to testify before magis- 
 trate. No iufereuce prejudicial to the 
 veracity of witnesses can be drawn from the 
 fact that they did not testify before the 
 committing magistrate. Brock v. State, 26 
 Ala. 104. 
 
 382. Discrediting written statement. 
 The testimony of a witness taken in writing 
 by a magistrate may be used to show con- 
 tradictory statements made by him. State 
 V. McLeod, 1 Hawks, 344. But not for any 
 other purpose. Oliver v. State, 5 How. 14; 
 Com. V. Harmon, 4 Barr, 269. 
 
 383. Where a witness's attention has been 
 called to his testimony before the coroner, 
 which was reduced to writing, read to and 
 subscribed by the witness, it is admissible 
 for the purpose of discrediting his testimony 
 on the trial. Stephens v. People, 19 N. Y. 
 549 ; affi'g s. c. 4 Parker, 396. 
 
 384. In discrediting a witness by reading 
 his deposition taken before the examining 
 magistrate, his attention need not be called 
 to the deposition, unless he is cross-exam- 
 ined in relation to it. In the latter case, the 
 entire deposition must be read to the jury in 
 his hearing. If asked if he has made a cer- 
 tain statement in a written instrument, the 
 writing must be produced. Lightfoot v. 
 People, 16 Mich. 507; Gaffney v. People, 50 
 N. y. 410. 
 
 385. A slight difference in the proof as to 
 the time between the affidavit before the 
 magistrate and the testimony on the trial.
 
 168 
 
 EVIDENCE. 
 
 Evidence to Discredit or Sustain Witness. 
 
 the witness bcin<,' an ignorant person, is not 
 sufficient to impeach her evidence. State v. 
 McElmurray, 3 Strobli. 33. 
 
 386. Where the testimony of a witaess on 
 a former trial was mainly founded on a 
 written memorandiira, since lost, which he 
 swore he made in his own handwriting, it 
 was held, on a subsequent trial of the same 
 case, that the defendant might show that the 
 memorandum was not in the handwriting of 
 the witness. Com. v. Hunt, 4 Gray, 421. 
 
 387. A diagram drawn in accordance with 
 the testimony of the witness may be submit- 
 ted to the jury, without having been first 
 shown to the witness whose testimony it con- 
 tradicts. Bishop V. State, 9 Ga. 121. 
 
 388. "Where the prosecuting attorney made 
 a statement material to the issue, in an aflS- 
 davit, upon the authority of A., a witness, 
 who was present, and A. afterward testified 
 diflerently, it was held that the contradiction 
 might be shown for the purpose of discred- 
 iting A. State V. McQueen, 1 Jones, 177. 
 
 389. Contradictory acts and declara- 
 tions. Where a witness has testified to 
 material facts, any acts or declarations of 
 his which appear to be inconsistent with 
 such testimony, are competent by way of 
 contradiction. On the trial of an indict- 
 ment for an assault and battery on 8., he 
 was a witness, and denied that he had com- 
 mitted a prior assault, on the same day, on 
 the defendant. Held that a record of convic- 
 tion of S. for an assault ujDon the defendant 
 was admissible to impeach the credibility of 
 S. Com. V. Lincoln, 110 Mass. 410. 
 
 390. On a trial for procuring K. to burn a 
 meeting-house, the wife of the prisoner liav- 
 ing testified that nothing was said or done 
 by her husband to induce K. to commit the 
 act, it was held that it was proper to prove 
 that when she was told that K. had made a 
 confession, and stated that her husband 
 hired him to burn the house, she replied : 
 " Well, he would never have done it if it 
 had not been for others ; others are more to 
 blame than he is." State v. Kingsbury, 
 58 Maine, 238. 
 
 391. The credit of r. witness may be im- 
 peached by proof tliat he has made state- 
 ments material to tlie issue out of court ©n 
 
 the same subject, contrary to what he swears 
 at the trial, provided the witness has l>een 
 previously cross-examined as to such state- 
 ments, and his attention not only called to 
 the particulars of the conversation, but asked 
 as to the time, place, and person involved in 
 the supposed contradiction. Brown v. State, 
 24 Ark. 620; State v. Hamilton, 32 Iowa, 
 572; State v. Foye, 53 Mo. 336. 
 
 392. On the trial of an indictment for rape, 
 the defense oflered to prove that two of the 
 witnesses for the prosecution had made 
 statements contradicting their testimony. 
 This evidence was objected to, as " improper, 
 immaterial, and hearsay." But it was not 
 objected that the attention of the witnesses 
 had not been first called to these statements. 
 The evidence being ruled out, it was held 
 error. Haight v. People, 50 K Y. 392. 
 
 393. Where on a trial for larceny the pros- 
 ecutor testified on cross-examination that 
 he might have said to E. that he did not 
 think that the accused would do anything 
 wrong but wanted to climb too high, but 
 that he did not recollect it, and did not 
 know that he said so, and the prisoner's 
 counsel having called E. as a witness asked 
 him if the prosecutor had ever said so to 
 him, which question was excluded, it was 
 held that as it was not objected to on the 
 ground that it was not suflaciently precise 
 as to time and place, it was proper and its 
 exclusion error. People v. Jackson, 3 Parker, 
 590. 
 
 394. Where a witness swears that another 
 witness testified differently on a previous 
 trial of the same case, it is not competent to 
 introduce the bill of exceptions taken in the 
 former trial, to prove that the witness had 
 contradicted himself. State v. Birney, 35 
 Maine, 105. 
 
 395. A witness cannot be discredited by 
 proof of particular acts not directly involved 
 in the issue on trial ; much less by an opinion 
 as to their general character or tendency. 
 Stephens v. The People, 19 N. Y. 549; afii'g 
 s. c. 4 Parker, 396 ; Hamilton v. People, 29 
 Mich. 173. 
 
 396. Impeacliment of character. In Cal- 
 ifornia, the inquiry into the character of a 
 witness for the purpose of impeaching his
 
 EVIDENCE. 
 
 109 
 
 Evidence to Discredit or Sustain Witness. 
 
 testim onVj^ i s confined to bis reputation for 
 triiW'llud veracity, and does not extend to 
 the moral standing of the witness in the 
 estimation of society. People v. Yslas, 27 
 Cal. 630, Currey, J., dissenting. In North 
 Carolina and Missouri, the inquiry may ex- 
 tend to the general moral character of the 
 witness. State v. Dove, 10 Ired. 469; State 
 V. Hamilton, 55 Mo. 530 ; State v. Breeden, 
 58 lb. 507. 
 
 397. Testimony to impeach the character 
 of a witness for truth, is not confined to the 
 character of the witness prior to the prose- 
 cution, but extends to the time of the 
 examination of the witness. State v. How- 
 ard, 9 New Hamp. 485. 
 
 398. Proof of the reputation of a witness 
 for truth and veracity, a year and a half 
 previous to the trial, is not too remote in 
 point of time. Com. v. Billings, 97 Mass. 
 405. And evidence of the bad reputation 
 of a witness for veracity four years pre- 
 viously, the impeaching witness having been 
 absent from the State during the inter- 
 vening time, is admissible. Keator v. People, 
 32 Mich. 484. 
 
 399. "Where a record of conviction for 
 petit larceny is ofi"ered in evidence, for the 
 pui-pose of discrediting a witness, it is not 
 good ground for rejecting such evidence 
 that the transaction occurred more than 
 twenty-five years before, though in itself 
 entitled to but little weight. Lake v. People, 
 1 Parker, 495 ; affiYl 12 N. Y. 358. 
 
 400. In Connecticut, the record of con- 
 viction of a witness as a common prostitute 
 is not admissible in evidence to impeach the 
 witness. State v. Randolph, 24 Conn. 363. 
 In Maine, under the statute (R. S. ch. 82, 
 § 94), the record of a previous conviction of 
 a criminal offense is admissible to affect the 
 credibility of the prisoner, although his 
 conviction may not have been for an in- 
 famous crime. State v. Watson, 63 Maine, 
 128. 
 
 401. It cannot 1)e affirmed as a legal prop- 
 osition, that a witness is not successfully 
 impeached unless the impeaching witnesses 
 testify that from the general reputation of 
 such witness, they would not believe him 
 under oath. People v. Tyler, 35 Cal. 563. 
 
 402. It is erroneous to charge the jury 
 that "if the general character of a Avitness 
 for truth is impeached, they are bound to 
 disregard the whole of his testimony." 
 Shar|) V. The State, IG Ohio, N. S. 218. 
 
 403. Prejudice of witness against pris- 
 oner. Although it is improper to ask a 
 witness if he is not prejudiced agaitst the 
 prisoner, yet he may be interrogated as to 
 any particular acts or expressions in refer- 
 ence to the prisonei" from which the jury 
 may infer unfriendly feeling or prejudice. 
 Cornelius v. State, 7 Eng. 782. 
 
 404. Where the defense was perruitted, 
 without objection, to ask a witness if he was 
 not prejudiced against the prisoner, and he 
 answered that he was, it was held error for 
 the court, against the objection of the de- 
 fense, to draw from the witness a statement 
 of the reasons why he was so prejudiced; 
 and the witness having given reasons which 
 were injurious to the prisoner, it was held 
 that the error was not cured by the court 
 telling the jury to disregard them. lb. 
 
 405. It is competent for the prisoner, in 
 order to show the bias of S., a witness for 
 the prosecution, to prove that before the 
 indictment or any comjolaint made, he had 
 instituted an action against S., that S. was 
 instrumental in obtaining the indictment 
 after the commencement of the action ; and 
 that subsequent to the finding of the indict- 
 ment, S. proposed to the prisoner to do all 
 she could to stop the proceedings if he 
 would withdraw his action. Com. v. Byron, 
 14 Gray, 31. 
 
 406. On the trial of an indictment for a 
 nuisance in maintaining a dam, it was held 
 that the court erred in not permitting the 
 defendant to ask a witness for the people, 
 on cross-examination, whether there was not 
 an agreement between him and others who 
 had sued the defendant for flowing their 
 land, to get the defendant indicted, and in 
 that way procure a removal of the dam ; the 
 proposed evidence tending to show the- in- 
 terest of the witness in the public prosecu- 
 tion. C'rippcu V. People, 8 Mich. 117. 
 
 407. Testimony to sustain witness. A 
 corroboration, to be of any avail, should be
 
 170 
 
 EVIDENCE. 
 
 Evidence to Discredit or Sustain Witness. 
 
 as to some matter material to the issue. To 
 prove that a witness has told the truth as to 
 immaterial matters, has no tendency to con- 
 firm his testimony involving the guilt of tlie 
 party on trial. Frazer v. People, 54 Barb. 
 306.* 
 
 408. Conversations of third persons with 
 the witness, not to prove the truth of the 
 facts stated to the witness, but merely to 
 show what it was that called the attention 
 of the witness to a fact stated by her, or 
 that fixed tlie fact in her recollection, are 
 competent evidence. State v. Fox, 1 Dutch. 
 56G. 
 
 409. As a general rule, it is not compe- 
 tent, in support of the testimony of a wit- 
 ness, for the party calling him to prove that 
 he has made declarations out of court cor- 
 responding with his testimony. The excep- 
 tions to this rule stated. People v. Finne- 
 gan, 1 Parker, 147. And see State v. Dove, 
 10 Ired. 419. 
 
 410. Where the defendant ijroves that a 
 witness for the prosecution, at a previous 
 time, gave under oath a different account 
 of the same transaction, it is not competent 
 for the prosecution to show that the witness 
 made earlier statements, not under oath, in 
 the absence of the prisoner, in corroboration 
 of his present testimony. Com. v. Jenkins, 
 10 Gray, 485, 
 
 411. If the witness be charged with the 
 design to misrepresent on account of his 
 changed relation to the parties or the cause, 
 evidence of like statements before such 
 change of relation may be admitted. So if 
 it is attempted to be shown that the evidence 
 is a recent fabrication, or when long silence 
 concerning an injury is construed against 
 the ir jured party, it is proper to show that 
 the witness made similar statements soon 
 after the transaction in question. State v. 
 Vincent, 24 Iowa, 570. 
 
 412. Proof of good character of witness. 
 Any inquiries by one party as to the general 
 reputation for truth and veracity of a wit- 
 ness introduced by the other party, are to 
 be considered as an impeachment of the 
 general character of the witness, so far as to 
 open that subject to the introduction of evi- 
 
 dence to sustain his good character. Com. 
 V. Ingraham, 7 Gray, 46 ; Burrill v. State, 
 18 Texas, 713. 
 
 413. In California, under the Code (§§ 
 2051, 2053), when it has been proved that 
 a witness called by the prosecution has been 
 convicted of felony, the prosecution may 
 introduce evidence to show that the reputa- 
 tion of the witness for truth and integrity is 
 good in the community where he lives. 
 People V. Amanacus, 50 Cal. 233. 
 
 414. In Connecticut, where on a trial for 
 an attempt to commit rape, the prosecutrix 
 was deaf and dumb, and she offered evi- 
 dence to show that her general character for 
 truth was good, it was held that such evi- 
 dence was proper, although no impeachment 
 of her character had been attempted. State 
 V. De Wolf, 8 Conn. 93. 
 
 415. Where a material witness for the 
 prisoner, on cross-examination, acknowl- 
 edged that he had been complained of, and 
 bound over upon a charge of passing count- 
 erfeit money, it was held that the prisoner 
 was called on to give evidence of the wit- 
 ness's good character for truth. Carter v. 
 People, 2 Hill, 817. 
 
 416. A person called to sustain the char- 
 acter of a witness, who testifies that he has 
 known the witness for a number of years, 
 and that he is acquainted with his associ- 
 ates, but not with his general character for 
 truth and veracity, may testify that he 
 would believe him on oath. People v. 
 Davis, 21 Wend. 309. And it is competent^ 
 for him to testify that he has never heard / 
 the character of the witness called in ques-/ 
 tion. Lemons v. State, 4 West Va. 755 ; 
 s. c. 1 Green's Crim. Reps. 667. But a per- 
 son is not competent to testify as to the 
 general character of a witness simply be- 
 cause he has known him several years. 
 State V. Speight, 69 N. C. 72 ; s. c. 1 Green's 
 Crim. Eeps. 363. The credibility of a 
 witness sought to be impeached, is exclu- 
 sively a question for the jury. Whitten v. 
 State, 47 Ga. 297; s. c. 1 Green's Crim. 
 Reps. 579. 
 
 For evidence in special cases, see the titles 
 of the different offenses.
 
 EXAMINATION OF PARTY ARRESTED.— EXTORTION. 171 
 
 Proceedings on. 
 
 What Constitutes. 
 
 toaminaticn of Partij 
 
 Proceedings on. A person cannot be 
 removed from one district to another for 
 examination. He is first to be taken before 
 the proper officer in the district where he is 
 arrested, who is to examine as to the crime 
 alleged. If thjre is not probable cause of 
 his guilt, he is to be discharged. If there 
 be found reasonable cause for holding the 
 accused to answer, he is entitled, upon ten- 
 dering sufficient bail, to his discharge from 
 arrest. Only on a failure to give bail in a 
 bailable case, can he be committed ; and an 
 order may then be made to remove him to 
 the district in which the trial is to be had. 
 U. S. V. Shepard, 1 Abb. 431. 
 
 <6iTcptiou0. 
 
 See Bill of exceptions. 
 
 (Bjepcrts. 
 
 See Evidence. 
 
 ifijctortion. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 1. What constitutes. 
 
 1. Meaning of. Extortion at common 
 law is the taking, by color of office, money 
 or other thing of value that is not due, be- 
 fore it is due, or more than is due. Com. 
 V. Wheatley, 6 Cow. G61 ; Williams v. 
 State, 2 Sneed, 160; Com. v. Mitchell. 3 
 Bush, 25; Com. v. Bagley, 7 Pick. 246; 
 Ming V. Truett, 1 Mont. 322. 
 
 2. When committed. Where a defend- 
 ant appeared before a justice on a summons 
 returnable at 10 A. M., and waited till about 
 12 o'clock, when the justice told him that 
 he (the justice) must tax the plaintiff with 
 
 the costs, whereupon the defendant went 
 away; but the justice afterward adjourned 
 the cause to another day, and gave judgment 
 with three or four dollars costs; and the 
 defendant afterward paid to the justice the 
 amount for which the suit was brought; 
 and the justice exacted the cpsts, which the 
 defendant refused to pay in full, but paid 
 the justice 12i cents; it was held that this 
 was extortion in the justice, for which he 
 might be indicted and punished. People v. 
 Wheatley, 6 Cow. 681. 
 
 3. In Indiana, where a county treasurer 
 exacted and received from a taxpayer a fee 
 as for a distress and sale of his goods for 
 taxes, when none had actually been made, 
 it was held that he was guilty of extortion. 
 State v. Burton, 3 lud. 93. 
 
 4. In Massachusetts, the receiving of a ne- 
 gotiable promissory note by an officer for 
 fees not due, will not sustain an indictment 
 for extortion under the statute. Com. v. 
 Carey, 2 Mass. 523; Com. v. Pease, 16 lb. 
 91 ; Com. v. Dennie, Thach. Crim. Cas. 
 165. 
 
 5. Must be a corrupt intent. In Penn- 
 sylvania, a justice of the peace who took 
 larger fees than the law allow'ed, was held 
 not guilty of extortion, unless he did it with 
 the intention of oppressing. Resp. v. Ham- 
 mond, 1 Yeates, 71. 
 
 6. In Alabama, an officer cannot be con- 
 victed of extortion (Code, § 3225), unless he 
 designedly made charges for services which 
 he knew had not been rendered, or for which 
 he knew that no fees, or fees other than 
 those charged were allowed ; and the fact 
 that, in making out a bill of costs, the whole 
 amount of costs charged is less than the full 
 amount which he was entitled to charge, 
 although some illegal items are included, is 
 a strong circumstance to show the absence 
 of the corrupt intent w'hich the law was de- 
 signed to punish. Cleaveland v. State, 34 
 Ala. 254. 
 
 7. Voluntary payment. Vv'here on a 
 trial for extortion, it appeared that the 
 property of the debtor, sold on execution, 
 was sufficient to pay the officer's fees, but 
 that they were paid by the creditor; it was 
 
 ! held that as such fees were a charge to the
 
 172 
 
 EXTOETION.— FALSE IMPEISONMENT. 
 
 What Constitutes. 
 
 Indictment. 
 
 Evidence. 
 
 What is. 
 
 delitor, and the payment by the creditor was 
 therefore volnntary,the officer was not guilty 
 of the offense charged. Com. v. Dunnie, 
 Tharli. Ciim. Cas. 1(15. 
 
 8. Unconstitutionality of statutes. The 
 exaction from a broker, of fees or duties on 
 sales of imported merchandise, by the acts 
 
 .of New York of 1846 and 1866, is repugnant 
 to that provision of the Constitution of the 
 United States, which authorizes Congress 
 '"to regulate commerce with foreign nations 
 and among the several States, and with the 
 Indian tribes."' People v. Mo ring, 3 N. Y. 
 Ct. of Appeals Decis. 539 ;. affi'g 47 Barb. 
 M2 ; s. c. 3 Keyes, 374. 
 
 2. Indictjcent. 
 
 9. What to contain. An indictment for 
 extortion should state what was clone, and 
 "what was received beyond the lawful fees. 
 Halsey v. State, 1 South. 323. Where an in- 
 dictment charged that the defendant, as 
 constable, traveled four miles to serve an 
 execution, for which travel he was entitled 
 as mileage to sixteen cents, that corruptly, 
 &c., he extorted thirty-two cents for such 
 mileage, w^hereas, but sixteen cents were due, 
 it was held sufficient. Emory v. State, 6 
 Blackf. 107. But see State v. Stotts, 5 lb. 
 460, where it was held that the indictment 
 need not allege what the defendant ex- 
 torted. 
 
 10. Where the indictment charges a con- 
 stable with having collected more than was 
 due on an execution, it must set out the re- 
 cital in the execution showing the judgment 
 on which the execution issued, and state 
 the names of both parties to the execution. 
 Leary v. State, 6 Blackf. 403. 
 
 11. An indictment for extortion, may 
 charge that the money was extorted from the 
 county. State v. Moore, 1 Smith, 316. 
 
 3. EviDE>fCE. 
 
 12. Existence and delivery of writ. 
 Where an officer is on trial for extortion 
 in receiving fees in the service of a writ, 
 evidence must first be given of the existence 
 of the writ and its delivery to the officer. 
 Leary v. State, 6 Blackf. 403. 
 
 13. Time. Where upon the trial of a 
 
 deputy sheriflf for extortion in receiving fees 
 in the service of a writ and execution, the 
 indictment charged that the writ bore date 
 the 20tli day of a certain month, and it was 
 proved that the wait was dated the 10th day 
 of the same month, it was held that the vari- 
 ance was fatal. Com. v. Devine, Tiiach. 
 Crim. Cas. 165. 
 
 14. Amount. Where an indictment for 
 extortion charged a constable with having 
 collected more than was due on an execu- 
 tion for $69, and the execution proved 
 was for $110.43, it was held that the vari- 
 ance was material. Leary v. State, 6 Blackf. 
 403. 
 
 15. Officer's return. The rule that the 
 return of an officer cannot be impe&ched in 
 a collateral proceeding, and that no aver- 
 ment can be made against it, has no applica- 
 tion to the trial of an indictment against 
 an officer for extortion; but in such case the 
 return may be shown to be false. Williams 
 V. State, 2 Sneed, 160. 
 
 See Threatening to accuse of crime. 
 
 CMtrabitiou. 
 
 See Fugitives from justice. 
 
 fa\5C 3mpn0onmcnt 
 
 1. What is. To stop and prevent a per- 
 son, by threats, from proceeding on a public 
 highway, is false imprisonment and an as- 
 sault. Bloomer v. State, 3 Sneed, 66. 
 
 2. Where a father, without a pretense of 
 reasonable cause, confined his blind and 
 helpless son in a cold and damp cellar in 
 midwinter, without fire, during several days, 
 assigning as a reason therefor, that the boy 
 was covered with vermin, it was held that 
 the father was rightly convicted of false im- 
 prisonment. Fletclier v. People, 52 111, 395. 
 But it has been held that to fasten a seaman 
 to the deck with an iron chain, who has been 
 away from the ship for two nights without 
 leave, in order to prevent his escape, is not 
 unlawful. U. S. v. Turner, 3 Wheeler's 
 Crim. Cas. 615.
 
 FALSE IMPRISONMENT.— FALSE PRETENSES. 
 
 17;$ 
 
 Indictment. 
 
 What Constitutes. 
 
 3. Indictment. An indictment for false 
 imprisonment must cliarge tliat the deten- 
 tion was without lawful authority; and the 
 omission of such an averment is not cured 
 by the conclusion " contrary to the form of 
 the statute in such case made and provided." 
 Redfield v. State, 24 Texas, 133. See Barber 
 V. State, 13 Fla. 675; s. c. 1 Green's Crim. 
 Reps. 733. 
 
 fabc |3vctcu5C0. 
 
 1. What constitutes. 
 
 2. Affidavit for arrest. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 1. What constitutes. 
 
 1. Must be calculated to deceive. A 
 
 cheat to be indictable at common law, must 
 affect the public, be calculated to defraud 
 individuals, and which ordinary care and 
 caution cannot guard against ; as the use of 
 false weights and measures, and defrauding 
 another by false tokens. People v. Stone, 9 
 Wend. 182 ; People v. Gates, 13 lb. 811 ; Peo- 
 ple v. Herrick, lb. 87; People v. Johnson, 12 
 Johns. 291. To constitute a false pretense, the 
 false representation must be by words writ- 
 ten or spoken ; and they must be such that 
 if true, they would naturally and according 
 to the usual operation of motives upon the 
 human mind, guided by prudence, produce 
 the alleged results. People v. Conger, 1 
 Whedcr's Crim. Cas. 448; Stats v. Delyon, 
 1 Bay, 353; People v. Williams, 4 Hill, 1; 
 State V. Simpson, 3 Hawks, G20; State v. 
 Evers, 49 Mo. 542. Therefore, it was held 
 on demurrer, that an indictment for obtain- 
 ing a watch from a person upon the false rep- 
 resentation that the defendant was a con- 
 stable, and had a warrant against such per- 
 son for rape, and that he would settle the 
 same if the j^erson would give the defendant 
 the watch, could not be maintained. Peo- 
 ple V. Stetson, 4 Barb. 151. 
 
 2. Defendants bought goods from the 
 prosecutor's clerk, and gave in payment an 
 instrument purporting to be a five dollar 
 bill, of the Bank of Tallahassee, the blanks 
 
 of which were filled up, except those oppo- 
 site the words cashier and president, where 
 there was an illegible scrawl, which, on 
 casual inspection, might have been mistaken 
 for the names of the officers. Defendants 
 knew before they passed the instrument that 
 it was counterfeit. Held, cheating by a false 
 token at common law. State v. Stroll, 1 
 Rich. 244. In another case, where it was 
 proved that A. owed B., and that the de- 
 fendant, who had once been B.'s agent for 
 collecting bills, but whose authority had 
 then been revoked, though without notice 
 to A., presented a bill of B.'s to A., and on 
 receiving payment from him gave a valid 
 discharge on behalf of B., and then fraud- 
 ulently misapplied the money to his own 
 use, it was held sufficient to sustain the in- 
 dictment. Com. V. Call, 21 Pick. 509. 
 
 3. On a trial for obtaining money by false 
 pretenses it was proved that R. was about 
 eighteen years of age, and unable to obtain 
 his bounty money without having a guard- 
 ian appointed ; that the prisoner had falsely 
 represented himself to be a captain in the 
 Sixth New York Cavalry, in which R. en- 
 listed ; that the prisoner showed R. a roll of 
 money, and said that it was the latter's 
 bounty money ; that the prisoner paid him 
 $50, and asked him to let the prisoner keep 
 the rest of it for him for a few days, when 
 he would pay it to him ; that R. at this time 
 executed an assignment of his $300 bounty 
 to tbe prisoner; that the prisoner did not in 
 fact receive the bounty money until the next 
 day, and that he then obtained it through 
 the aid of the said assignment. He^d, that 
 the statement that the prisoner was a captain 
 in the Sixth New York Cavalry was a 
 material fact which would be likely to in- 
 fluence a person of ordinary prudence. Held, 
 further, that it was not erroneous for the 
 court to charge the jury that if at the time 
 R. executed the assignment the prisoner had 
 in his possession the amount of money 
 mentioned in the indictment, and it was 
 considered by both parties to belong to R., 
 and the defendant would have paid it over 
 to R. except for the consent of R. that he 
 might retain it, that v/as just as much an 
 obtaining of the $250 as if he had paid it
 
 174 
 
 FALSE PRETENSES. 
 
 What Constitutes. 
 
 over to R. and received it back. People v. 
 Cooke, 6 Parker. 31. 
 
 4. Where party defrauded has means 
 of information. A false affirmation made 
 to a party who has the same means of knowl- 
 edo^e as the person who makes it as to 
 whether the affirmation is true or false can- 
 not be the basis of an indictment for obtain- 
 ing money under false pretenses. Com. v. 
 Norton, 11 Allen, 366. Where a person who 
 had from time to time deposited money in 
 and drawn checks upon a bank in a fictitious 
 name, and had finally, with a fraudulent in- 
 tent, drawn a check when he had no funds 
 on deposit, and presented it himself, and 
 the bank paid it, though without regard to 
 the credit of the name, it was held not false 
 pretenses. Com. v. Drew, 19 Pick. 179. 
 
 5. Mere falsehood is not. At common 
 law an indictment cannot be maintained for 
 "a naked lie," or simple false affirmation; 
 State V. Mills, 17 Maine, 211 ; nor for an in- 
 tention to cheat. Com. v. Morse, 8 Mass. 
 138 ; Com. v. Warren, 6 lb. 73. 
 
 6. Where an indictment alleged that A., 
 who held a promissory note against B., 
 which was due, called for payment, and 
 with intent to defraud B. falsely represented 
 that the note had been lost or burned, where- 
 by the latter was induced to pay it, it was 
 held not a false pretense, and that it would 
 not have been if A., after obtaining payment 
 of the note, negotiated it for value without 
 notice of its having been paid, provided 
 there was no averment that A. intended 
 negotiating it when he made the representa- 
 tion. People V. Thomas, 3 Hill, 169. 
 
 7. A. having a judgment against B., the 
 latter went to A. and said he would settle it 
 by paying money in part, and giving a note 
 for the residue, upon which A. drew a 
 receipt in full in discharge of the judgment, 
 and B. obtained possession of the receipt 
 without paying the money or giving the 
 note. Held, only a false assertion, and that 
 an indictment could not be maintained. 
 People V. Babcock, 7 Johns. 200. 
 
 8. Where an indictment alleged that the 
 defendant obtained A.'s signature to a deed 
 of land by falsely representing that B., who 
 held a bond and mortgage against A., was 
 
 about to foreclose the mortgage, and that 
 B. had so told the defendant, it was held 
 that the pretenses set forth were not suf- 
 ficient to warrant a conviction. People v. 
 Williams, 4 Hill, 1. 
 
 9. A deed by a wife conveying real estate 
 belonging to her in her own right was ex- 
 ecuted by her with her husband, at the 
 solicitation of the latter, under the pretense 
 that it was a deed of land belonging to him, 
 but not acknowledged by the wife. Held, 
 not such an instrument as was intended in 
 the statute. People v. Galloway, 17 Wend. 
 540. 
 
 10. An indictment charged that J. held a 
 note against the defendant, on which there 
 was an unpaid balance of $32.64; that the 
 defendant falsely represented that he owned 
 certain tobacco of a particular description 
 and quality, and that J., believing these 
 false pretenses and representations, was 
 thereby induced to give the defendant credit 
 on said note for said sum of money, and to 
 surrender the note to him, when, in truth, 
 the tobacco was not of the quality and de- 
 scription represented, but was of no value, 
 which the defendant knew. Held, not false 
 pretenses within the meaning of the statute. 
 Com. V. Haughey, 3 Mete. Ky. 323. 
 
 11. Must have been part of inducement. 
 To sustain an indictment for false pretenses, 
 the pretense alleged to be false must have 
 formed some part of the inducement to the 
 doing of the act, and been made for the pur- 
 pose of prevailing upon the party injured to 
 part with his property, or to do the act. Both 
 the inducement and the fraudulent purpose 
 are facts to be proved, and are not to be pre- 
 sumed. Where a person procures the aid of 
 an agent, or broker, to assist him in making 
 sale of his property, real or personal, and is 
 willing and proposes to such agent to sell 
 at a given price, but at the suggestion of the 
 agent consents to ask a higher price, and to 
 give the difference between the two prices to 
 the agent, in case the higher price can be 
 obtained, neither the principal nor the agent 
 can be convicted of obtaining money, or the 
 signature of the purchaser to obligations, 
 by false pretenses in regard to the price, even 
 though they had pretended that the higher
 
 FALSE PRETENSES. 
 
 175 
 
 What Constitutes. 
 
 price was the true and only price, and that 
 they would refuse to sell for auj'thing less. 
 Scott V. People, 62 Barb. 63, Mullin, P. J., 
 dismnting. 
 
 12. But if the jury believe, from the evi- 
 dence, that the pretenses pioved to have 
 been false and fraudulent were a part of the 
 moving causes which induced the owner to 
 part with his property, and that the defend- 
 ant would not have got the goods had not 
 the false pretenses been superadded to state- 
 ments which may have been true, or to 
 other circumstances having a partial in- 
 fluence upon the mind of the owner, they 
 will be justified in finding the defendant 
 guilty. People v. Haynes, 14 Wend. 546 ; 
 State V. Thacher, 35 N. J. 445; s. c. 1 
 Green's Crim. Re2)s. 563. 
 
 13. Must relate to past event. The es- 
 sence of the ofl'ense of oljtaining money or 
 property by false pretenses, is that the false 
 pretense should be of a past event, or of a 
 fact having a present existence, and not of 
 something to happen in the future. State 
 V. Evers, 49 Mo. 543 ; Dillingham v. State, 
 5 Ohio, N. S. 380; Johnson v. State, 41 
 Texas, 65. The following instruction was 
 therefore held bad: That the defendant, 
 with intent to cheat and defraud, falsely 
 represented to A. that B. was indebted to 
 defendant, and if A. would lend defendant 
 five dollars, B. would, on demand, repay it ; 
 and A., believing from such representations 
 that B. was so indebted, and would repay 
 him, loaned to the defendant five dollars; 
 and that in truth and in fact the representa- 
 tions so made were false and fraudulent. 
 State v. Magee, 11 Ind. 154. 
 
 14. The ofiense charged consisted in a 
 false representation made by the prisoner to 
 one H., that he could give him employment, 
 and pay him fifty dollars a month for his 
 services, H. depositing $100 as security for 
 the faithful performance of the contract. 
 Held not indictable at common law, or un- 
 der the statute of New York. Ranney v. 
 People, 33 N. Y. 413. 
 
 15. But in Massachusetts, where the pro- 
 prietor of an intelligence office agreed to 
 procure a place for an applicant in considera- 
 tion of two dollars paid in advance, and 
 
 falsely stated that he had a situation in 
 view, and the money was accordingly paid, 
 he was held guilty of obtaining money by 
 false pretenses. Com. v. Parker, Thach. 
 Crim. Cas. 124. 
 
 16. The defendant represented to the 
 prosecutor that if he would let him have 
 $30, he would go and work it out with him. 
 The prosecutor let him have the money, and 
 the prisoner refused to comply with his con- 
 tract. Held, that an indictment for being a 
 common cheat and swindler could not be 
 sustained. Ryan v. State, 45 Ga. 138. 
 
 17. Where it was charged that the defend- 
 ant promised that he would assign to A. a 
 certain note which he had before that time, 
 for a valuable consideration, passed to him, 
 and that by means of this false pretense he 
 obtained the note with intent to cheat and 
 defraud A., and then failed to assign or re- 
 turn tlie note to him, it was held not a false 
 pretense within the meaning of the statute 
 of Arkansas (Dig. 345, art. 8), because the 
 promise was an agreement to do a future 
 act. McKenzie v. State, 6 Eng. 594. 
 
 18. Where the false ])retenses charged re- 
 lated to the payment of the proceeds of a 
 cow and calf when sold, the procurance of 
 another house for the party injured, and her 
 removal thereto, free of expense, it was held 
 that the indictment was insufficient, Glackan 
 V. Com. 3 Mete. Ky. 333. 
 
 19. Property must have passed. To con- 
 stitute the obtaining of money or goods un- 
 der false pretenses, the owner must have in- 
 tended to part with the right of property. 
 If the legal possession remains in the owner, 
 it will be larceny; but if a right of property 
 passes, the offense is the obtaining of goods 
 under false pretenses. State v. Vickery, 10 
 Texas, 336. 
 
 20. Where a jierson obtained possession 
 of a promissory note by pretending that he 
 wished to look at it, and then carried it 
 away, and refused to give it back to the 
 holder, it was held that this was merely a 
 private fraud, and not indictable. People 
 V. Miller, 14 Johns. 370. 
 
 21. A false representation inducing a per- 
 son to pay a debt previously due from him is
 
 17G 
 
 FALSE PEETENSES. 
 
 What Constitutes. 
 
 not an obtaining of property by false pre- 
 tenses. People V. Thomas, 3 Hill, 169. 
 
 22. An indictment cannot be maintained 
 for obtaining money by false pretenses where 
 the money is parted with as a charitable 
 gift. People V. Clough, 17 Wend. 351. 
 
 23. It is not a cheating by false pretenses 
 to obtain from a minor his note, which at 
 the time of the prosecution is not due or 
 paid. Com. v. Lancaster, Thach. Crim. Cas. 
 428. 
 
 24. Where the defendants conspired to 
 cheat and defraud P., by obtaining from him 
 valuable papers by means of an altered deed, 
 which alteration was not material, though 
 they at the time supposed it was, it was held 
 that they were not entitled to acquittal on 
 the ground that they failed to accomplish 
 their object. State v.Mayberry, 48 Maine, 218. 
 
 25. But where after delivei'y, the seller on 
 receiving information making hiih suspi- 
 cious of the solvency of the buyer, said that 
 he would reclaim tlie goods, and the buyer 
 then made false representations as to his 
 ability to pay for the goods, by means of 
 which the seller abandoned his intention to 
 reclaim them, it was held that the sale being 
 complete before the representations were 
 made, the accused could not be convicted. 
 People v. Haynes, 14 Wend. 546. 
 
 26. The property must have been parted 
 with for an honest purpose. If the person 
 injured, in parting with his property was 
 himself guilty of a crime, he will not be 
 protected. People v. Stetson, 4 Barb. 151. 
 The design of the law against obtaining 
 money under false pi'etenses is to protect 
 those who for some honest purpose are in- 
 duced upon false and fraudulent representa- 
 tions to give credit or part with their prop- 
 erty to another, and not to protect those 
 who for unworthy or, illegal purposes part 
 with their goods. Where, therefore, the 
 indictment alleged that the prisoner, intend- 
 ing to cheat and defraud one M., mduced 
 him, by falsely and fraudulently pretending 
 that he had a warrant against him, to de- 
 liver to the prisoner a gold watch and 
 diamond ring, it was held that a conviction 
 could not be sustained. McCord v. People, 
 46 N. Y. 470. 
 
 27. But it is no defense to an indictment 
 for obtaining goods by false pretenses that 
 the party defrauded made false representa- 
 tions to tlie defendant as to the goods, or 
 that the goods were of less value than 
 charged in the indictment. Com. v. Mer- 
 rill, 8 Cush. 571. 
 
 28. Intention to restore property. Where 
 money is obtained from another by false pre- 
 tenses, neither the intention or ability to 
 repay it will deprive the false and fraudu- 
 lent act of its criminality. Com. v. Coe, 115 
 Mass. 481 ; s. r. 2 Green's Crim. Reps. 292 ; 
 State V. Thacher, 35 N. J. 445 ; s. c. 1 Green's 
 Crim. Reps. 562. 
 
 29. To take from their place of deposit 
 the bonds of a depositor, and send them out 
 of the State to be used as collateral security 
 for the defendant's own debt is a fraudulent 
 conversion, and the intention to restore the 
 bonds, and the agreement of the party who 
 received them not to sell or dispose of them, 
 does not do away with the criminal nature 
 of the transaction. Com. v. Tenney, 97 
 Mass. 50. 
 
 30. False statement as to ownership of 
 property. An indictment may be main- 
 tained for obtaining goods by false pretenses 
 when a party represents that he is the 
 owner of property which does not belong to 
 him, and thus fraudulently induces the 
 owner to sell the goods to him on credit. 
 People V. Kendall, 25 Wend. 399. Proof 
 that the defendant obtained from another 
 three tubs of butter, by falsely pretending 
 that he was a grocer and resided at a partic- 
 ular place, was held sufficient to sustain an 
 indictment for obtaining property by false 
 pretenses. People v. Dalton, 2 Wlieeler's 
 Crim. Cas. 181. 
 
 31. Where, upon an exchange of goods, 
 one of the parties falsely and fraudulently 
 pretends that the property which he is part- 
 ing with belongs to him, and is unencum- 
 bered, and also warrants it against encum- 
 brances, an indictment may be sustained 
 against him where the false pretenses and 
 not the warranty were the inducement in 
 making the exchange. State v. Dorr, 33 
 Maine (3 Red.) 498. 
 
 32. False statement as to situation or
 
 FALSE PRETENSES. 
 
 177 
 
 What Constitutes. 
 
 occurrence. It is a false pretense where a 
 party has obtained goods by falsely repre- 
 senting himself to be in a situation in ■which 
 he was not, or by falsely representing any 
 occurrence that had not happened, to which 
 persons of ordinary caution might give 
 credit, McCorkle v. State, 1 Cold. Tenn. 
 333. 
 
 33. Swearing falsely to the loss by fire of 
 goods which have been insured, and thereby 
 getting the value of them from the insurance 
 company, is obtaining money by false pre- 
 tenses. People V. Byrd, 1 Wheeler's Crim. 
 Cas. 242. 
 
 34. In purchase or sale of goods. A 
 conspiracy to cheat and defraud another of 
 goods, by obtaining the same on credit by 
 falsely pretending that the party intended to 
 take them to his store and sell them in the 
 ordinary course of retail trade, is indictable 
 as a conspiracy to obtain the goods by false 
 pretenses under the statute of Massachu- 
 setts (Gen, Stats, ch. IGl, § 64, and Stat, of 
 1863, ch. 248, § 2), Com, v. Walker, 108 
 Mass. 309. 
 
 35. An indictment was sustained against 
 a baker employed by the army of the United 
 States for a cheat in baking 219 barrels of 
 bread and marking them as weighing 88 lbs. 
 each, whereas they only weighed 68 lbs. 
 Resp. v. Powell, 1 Dall. 47. 
 
 36. An indictment charged that the de- 
 fendant, in an exchange of horses with one 
 S., knowingly, designedly and falsely pre- 
 tended that his (defendant's) horse was 
 sound, when in fact it was not; that S. be- 
 lieved said false pretense, and was thereby 
 deceived and induced to exchange and de- 
 liver his horse to the defendant, and was 
 thus defrauded. Held a false pretense with- 
 in the statute of Maine (R. S. ch. 126, § 1). 
 State V. Stanley, 64 Maine, 157. 
 
 37. A person sold to another several bar- 
 rels of turpentine, representing that " they 
 were all right, just as good at the bottom 
 as they were at the top." The barrels were 
 afterward found to contain only a small 
 quantity of turpentine on the top of each, 
 the remainder being chips and dirt. Held 
 a cheating by false tokens. State v. Jones, 
 70 N. C. 75. ' 
 
 12 
 
 38. In payment of money. The defend- 
 ant, knowing that it was not genuine, passed 
 a bill or paper having the appearance of 
 having been long used, and printed in the 
 ordinary form of a bank bill, but not signed 
 by any one as president or cashier. The 
 jury found him guilty of swindling, and the 
 verdict was sustained. State v. Grooms, 5 
 Strobh, 158, 
 
 39. Where spurious coin is not a repre- 
 sentation of genuine coin, but an imitation 
 of it only on one side, it is not a counterfeit, 
 but a false pretense to obtain money or 
 property fraudulently, Roberts v. State, 2 
 Head, 501, 
 
 40. Obtaining note. Inducing an illiter- 
 ate jjerson, by false representations, to sign 
 a note for a different amount from that 
 agreed on, is indictable as a cheat. Hill v. 
 State, 1 Yerg, 76, 
 
 41. An indictment will lie for obtaining a 
 note or contract of suretyship by false pre- 
 tenses. State V. Thatcher, 6 Vroom (35 N, 
 J,) 445 ; s, c, 1 Green's Crim. Reps, 562. 
 
 42. Between creditor and debtor. Where, 
 by means of false representations, a creditor 
 makes his debtor believe that the debtor 
 will receive a new and valuable considera- 
 tion, and induces the debtor to part with 
 money therefor (the creditor, at the time he 
 takes the money, intending not to give the 
 new consideration, and accordingly never 
 giving it, but ajiplying the money to the 
 payment of the old debt), he is guilty of 
 obtaining property by false pretenses. Peo- 
 ple V, Smith, 5 Parker, 490, Sutherland, J., 
 dissenting. 
 
 43. A false representation made by a 
 debtor to his creditor, that the debtor is 
 insolvent, whereby the creditor is induced 
 to part with his claim at a sacriiice, is ob- 
 taining property by false pretenses, and in- 
 dictable. State V. Tomlin, 5 Dutch. 13, 
 
 44. On the trial of an indictment, under 
 the statute of New HamiDshire, for fraudu- 
 lently mortgaging personal property to pre- 
 vent it from being taken on mesne process, 
 the defendant may be convicted if heftilsely 
 described the debt or obligation in the 
 mortgage, and made the mortgage for the 
 purpose of preventing the mortgaged prop-
 
 178 
 
 FALSE PEETENSES. 
 
 What Constitutes. 
 
 city from being taken for his debts, although, 
 in so doing, he acted under the advice of 
 legal counsel. State v. Marsh, 36 New Hamp. 
 196. 
 
 45. Under the statute of New York. In 
 New York, to constitute the obtaining of 
 goods by folse pretenses, it is not necessary 
 that there should be any false token, or that 
 the false pretenses should be such as that 
 ordinary care and common prudence were 
 insufficient to guard against. The offense 
 may be committed by intentionally and 
 fraudulently prevailing upon the owner to 
 part with his goods, or other things of 
 value, either by falsehood or by the offend- 
 er's assuming a false character, or by repre- 
 senting himself to be in a situation which 
 he knows he does not occupy. People v. 
 Haynes, 14 Wend. 546; 11 lb. 557. 
 
 46. In New York, to constitute obtaining 
 property by false pretenses, two things are 
 necessary, viz. : a false representation as to 
 an existing fact, and a reliance upon the 
 representation as true. A. agreed to sell 
 to B. one hundred shares of stock, to be 
 delivered and paid for, the next day; be- 
 fore transferring the stock, A. sent for B.'s 
 check, and received for answer that B. had 
 sent his check to be certified, and would 
 send it to A. in ten or fifteen minutes ; and 
 A. thereupon transferred the stock to B. 
 Held that, as A.'s reliance was on the promise 
 and not upon the representation that the 
 check had been sent to be certified, the case 
 was not within the statute. People v.Tomp- 
 kins, 1 Parker, 324. 
 
 47. The offense of obtaining property by 
 false pretenses is complete within the stat- 
 ute of New York, when one is induced to 
 put his signature to a written instrument, 
 or to part with his property by a false pre- 
 tense or representation as to an existing fact, 
 willfully and designedly made for the pur- 
 pose of obtaining such signature or prop- 
 erty with the intent to cheat or defraud 
 him ; and it is not necessary that the pre- 
 tense should be such that ordinary care and 
 circumspection could not have prevented 
 it, or that it should be accompanied by 
 any "artful contrivance." It is sufiicient 
 if it be such that, if true, it would naturally 
 
 and according to the motives which influ- 
 ence the honest mind, lead to the result. It 
 is not essential to the offense under the stat- 
 ute, that actual loss or injury should be sus- 
 tained. Neither is it material where the 
 pretenses were made. The obtaining the 
 signature or property by means of them, 
 with intent to cheat or defraud, completes 
 the crime and determines the place of trial. 
 People V. Sully, 5 Parker, 142 ; People v. 
 Stone, 9 Wend. 182. 
 
 48. In New York, to constitute the ob- 
 taining of the signature of a person to a writ- 
 ten instrument by false pretenses, within the 
 statute, the iustrument must be such as to 
 work prejudice to the property of the per- 
 son affixing the signature, or of some other 
 person. People v. Galloway, 17 Wend. 540. 
 A writing in the form of a bond, without 
 signature, is not a false writing within the 
 statute of New York. People v. Gates, 13 
 Wend. 311. 
 
 49. Buying or receiving and storing for 
 hire, by false weights or measures, is a mis- 
 demeanor at common law, and in New York, 
 being now a felony by statute, the misde- 
 meanor is merged in the felony. People v. 
 Fish, 4 Parker, 206. 
 
 50. To render a party making a sale liable 
 under the statute of New York (Laws of 
 1862, 1863), entitled "an act to prevent and 
 punish the use of false stamps, labels, or 
 trade-marks," the sale must have been made 
 with intent to defraud some person or per- 
 sons, or some body corporate. Low v. Hall, 
 47 N. Y. 104. 
 
 51. Under the statute of Massachusetts. 
 A false pretense under the statute of Massa- 
 chusetts, is a representation of some fact or 
 circumstance calculated to mislead, which is 
 not true, with a fraudulent intent. Com. v. 
 Drew, 19 Pick. 179. Where the defendant 
 took an assumed name, and delivered spu- 
 rious quarter lottery tickets to another for 
 sale on commission, declaring that he had 
 in a bank the genuine corresponding whole 
 tickets, and thereby obtained money, it was 
 held to be false pretenses within the statute 
 of 1815, ch. 136. Com. v. Wilgus, 4 Pick. 
 177. 
 
 52. In Massachusetts, the statute against
 
 FALSE PRETENSES. 
 
 179 
 
 What Constitutes. 
 
 obtaining money by false pretenses (Gen. 
 Stats. cL. 161, § 54), includes cases where the 
 money is parted with as a charitable dona- 
 tion. Com. T. Whitcomb, 107 Mass. 48G. 
 
 53. In Pennsylvania. A false statement 
 as to the possession of money, on the credit 
 of which goods are obtained, is a false pre- 
 tense within the Pennsylvania act of 1812. 
 Com. V. Burdick, 2 Barr, 163. 
 
 54. A conspiracy to cheat by offering to 
 sell forged foreign bank notes, is indictable 
 in Pennsylvania. Twitchell v. Com. 9 Barr, 
 211. And see Rhoads v. Com. 15 Penn. St. 
 272. Cheating with false dice is an indict- 
 able offense in that State. Resp. v. Teischer, 
 1 Dall. 335. 
 
 55. Obtaining a receipt in discharge of a 
 debt which was paid with the worthless 
 note of a broken bank, is not the obtaining 
 money, personal property, or other valuable 
 thing, by false tokens or false pretenses, 
 ■within the statute of Pennsylvania (of 1842, 
 § 21). Moore v. Com. 8 Barr, 260. 
 
 56. In Ohio and Michigan. In Michi- 
 gan, jjrocuring by falsehood the indorse- 
 ment of a promissory note is not a false 
 pretense within the statute, unless done with 
 the intent to defraud ; and in such case, the 
 intent being the gist of the offense, must be 
 shown beyond a reasonable doubt. People 
 V. Getchell, 6 Mich. 498. Whether procur- 
 ing, by false pretenses, the signature of a 
 part5' to a negotiable promissory note, which 
 he is ultimately compelled to pay, is an of- 
 fense within the statute of Ohio — query. Dil- 
 lingham y. State, 5 Ohio, N. S. 280. 
 
 57. In Iowa. In Iowa, under the statute 
 (Rev. § 4394), an indictment for cheating by 
 false pretenses may be maintained, although 
 no false tokens were used, and the acts im- 
 puted to the defendant were of private and 
 not public concern. State v. Reidel, 26 
 Iowa, 430. 
 
 58. The obtaining of an indorsement or 
 credit upon a promi-sory note, is not an ob- 
 taining of property, money, or goods by 
 false pretenses, within the meaning of the 
 statute of Iowa.- State v. Moore, 15 Iowa, 
 412. 
 
 59. In North Carolina. In North Caro- 
 lina, a fraud on an individual, without false 
 
 token or any deceitful practice affecting the 
 community at large, and without conspiracy, 
 is not indictable. State v. Justice, 2 Dev. 
 199. 
 
 60. In South Carolina. In South Caro- 
 lina, obtaining horses from an ignorant 
 countryman by threats of a criminal prose- 
 cution for horse stealing, and by threatening 
 his life, constitutes the offense of swindling 
 under the act of 1791. State v. Vaughan, 1 
 Bay, 282. 
 
 61. Selling a promissory note which the 
 party selling knew had been paid, but which 
 he represented to the purchaser to be still 
 due according to its face, is not an indict- 
 able offense in South Carolina. Middleton 
 V. State, Dudley, 275. 
 
 62. Under acts of Congress. To sustain 
 an indictment under the act of Congress of 
 March 3d, 1823, § 1 (3 U. S. Stat, at Large, 
 771), for presenting a false paper in support 
 of a claim against the United States, it is 
 not necessary that the claim should be in 
 favor of the person who presents the false 
 paper. U. S. v. Kohnstamm, 5 Blatchf. 222. 
 
 63. A person who, while engaged in a re- 
 tail trade, purchases large quantities of 
 goods ostensibly in his regular business, but 
 sends them away and sells them at whole- 
 sale at a sacrifice, is guilty of a false pre- 
 tense under the 44th section of the bankrupt 
 act. U. S. V. Frank, 2 Biss. 263. 
 
 64. To bailee or agent. The defendant 
 may be convicted, although the money be- 
 longed to another, and was in the custody 
 of the prosecutor as bailee. Britt v. State, 
 9 Humph. 31. 
 
 65. A false pretense to an agent who 
 communicates it to his principal, who is 
 induced by it to act in the matter, is a false 
 pretense to the principal. And the same is 
 true as to obtaining money by false pretenses 
 from an agent, who pays it by direction of 
 his principal. Com. v. Call, 21 Pick. 59. 
 
 68. By one of several. When false pre- 
 tenses are made by one of several, pursuant 
 to an agreement made between them, all are 
 liable. Cowan v. People, 14 111. 348. 
 
 67. When completed. The offense of 
 cheating by false pretences is completed, 
 when the false pretenses are successfully
 
 180 
 
 FALSE PRETENSES. 
 
 Affidavit for Arrest. 
 
 Indictment. 
 
 employed, and the money or property ob- 
 tained, although the fraud was contrived in 
 another place. People v. Adams, 3 Denio, 
 190. A single false pretense is sufficient. 
 State V. Dunlap, 24 Maine, 77 ; and it is not 
 essential that actual loss has been sustained. 
 State Y. Pryor, 80 lud. 350. 
 
 2. Affidavit for arrest. 
 
 68. What to contain. An affidavit for 
 the arrest of a person for fraudulently ob- 
 taining goods, must set out all the facts, 
 and they must be averred positively. And 
 •where any of the facts relied upon are derived 
 from information, they may be so stated ; 
 but the sources and nature ©f the information 
 must be stated, and good reasons given, for 
 not making a positive statement. Whitlock 
 V. Roth, 10 Barb. 78. 
 
 3. Indictment. 
 
 69. Must charge means. An indictment 
 for false pretenses cannot be predicated upon 
 mere matters of opinion ; and it must allege 
 that the money or property was obtained by 
 means of the false representations. State v. 
 Webb, 26 Iowa, 263; State v. Orvis, 13 Ind. 
 569. 
 
 70. Where in an indictment for obtaining 
 property by false pretenses, there was no 
 direct averment that the pretenses had any 
 influence upon the mind of the prosecutor, 
 it was held that although it would have 
 been more in accordance with the rules of 
 pleading, to have inserted such an allegation, 
 yet as it was alleged that by the false 
 pretenses the prisoner obtained the property 
 it was held that the indictment was sufficient. 
 Clark V. People, 2 Lans. 329 ; disapproving 
 State V. Philbrick, 31 Maine, 401. 
 
 71. By sale or exchange of property. 
 Where money or other property is obtained 
 by a sale or exchange effected by means of 
 false pretenses, such sale or exchange ought 
 to be set forth in the indictment, and the 
 false pretenses should be alleged to have 
 been made with a view to effect such sale 
 or exchange, and that by reason thereof the 
 party was induced to buy or exchange. 
 State V. Bonnell, 46 Mo. 395 ; referring to 
 Com. V. Strain, 10 Mete. 521. 
 
 72. An indictment charged that the de- 
 fendant presented to one N. certain checks, 
 and represented to him that they wei'e good, 
 and of nearly par value, by means of which 
 pretense he obtained from N. a set of 
 harness. Jleld, bad in not alleging that the 
 checks were delivered to N. or received by 
 him in payment for the haniess. Johnson 
 V, State, 11 Ind. 481. 
 
 73. An indictment for obtaining money 
 by falsely representing a promissory note to 
 be a draft, must state how the instrument 
 was defective. State v. Dyer, 41 Texas, 
 520. 
 
 74. An indictment for obtaining by false 
 pretenses, a bank check in exchange for a 
 note is insufficient, which fails to allege that 
 the defendant delivered the note to the 
 complainant, and that he received the same, 
 and that the defendant by said false repre- 
 sentations induced the complainant to re- 
 ceive it, and that the latter then and there 
 delivered the check to the defendant. Com. 
 V. Goddard, 4 Allen, 312. 
 
 75. An indictment for a conspiracy to 
 cheat, by offering to sell forged foreign 
 bank notes of a denomination the circula- 
 tion of which was forbidden by law, charged 
 that the defendants in pursuance of their 
 conspiracy did ' ' offer to sell, pass, utter 
 and jDublish to," &c. Held sufficient. 
 Twitchell v. Com. 8 Barr, 260. 
 
 76. Where an indictment charged that 
 the defendant falsely pretended that a 
 certain certificate of shares of stock was 
 genuine, and good as security for a loan of 
 money which F. was induced to make to 
 him thereon ; and the certificate, which was 
 set forth, stated that F. was the owner of 
 the stock, it was held that as the certificate, 
 although previously made in the name of 
 the lender, would not become his in fact 
 until the loan was perfected and the certifi- 
 cate delivered to him, the indictment 
 sufficiently showed in what manner F. was 
 defrauded. As the indorsements on the 
 certificate form no part of it, they need not 
 be set out. Com. v. Coe, 115 Mass. 481; 
 s. c. 2 Green's Crim. Reps. 292. 
 
 77. Where an indictment charged that 
 the defendant, by false pretenses, intended
 
 FALSE PRETENSES. 
 
 181 
 
 Indictment. 
 
 to cheat and defraud G., and proposed an 
 exchange of bis mare for the horse of G., 
 without alleging that such an exchange took 
 place, or that the false pretenses were made 
 with a view or design to effect such ex- 
 change, it was held insufficient. State v. 
 Philbrick, 31 Maine, 401. 
 
 78. In Connecticut, an information which 
 alleged that A., of, &c., contriving and in- 
 tending by false pretenses to cheat and 
 defraud B. of his goods, to wit, of one pair 
 of oxen of the value of, «&c., falsely repre- 
 sented to B. that he, the said A., owned a 
 farm, and was worth money enough to pay 
 for twenty such yokes of cattle, was held 
 sufficient as a false pretense within the stat- 
 ute, although it was not expressly charged 
 that credit was given to the representation, 
 but only that the oxen were thereby ob- 
 tained. State V. Penley, 27 Conn. 587. 
 
 79. An indictment for fraud, alleging that 
 the goods were "sold to divers persons," 
 was held bad for uncertainty. State v. 
 Woodson, 5 Humph. 55. 
 
 80. By removing and concealing prop- 
 erty. Where an indictment alleged both 
 that the defendant removed and concealed, 
 and aided and abetted in removing and 
 concealing mortgaged property, with the 
 fraudulent intent to place the same beyond 
 the control of the mortgagee, it was held 
 that as under the statute (Gen. Stats, of 
 Mass. ch. 161, § 61) the offense was but a 
 misdemeanor, the averment of aiding and 
 abetting was surplusage. Com. v. Wallace, 
 108 Mass. 12. 
 
 81. In obtaining signature. It is suffi- 
 cient, in an indictment for obtaining the 
 signature of a person to a written instru- 
 ment by false pretenses, to show that the 
 instrument on its face is one calculated to 
 prejudice the person who has signed it, 
 though void, on account of the fraud. 
 People V. Crissie, 4 Denio, 525. 
 
 82. An indictment for obtaining by false 
 pretenses, the signature of a person to a 
 deed of land, must charge that the prosecu- 
 tor owned, or had some interest in the land 
 described in the deed, or that the deed con- 
 tained covenants making him liable to an 
 
 action ; and the deed must be set out. Dord 
 V. People, 9 Barb. 671. ; 
 
 83. An indictment for obtaining the sig- 
 nature of a person to a mortgage by false 
 pretenses, must aver a delivery. Fentou v. 
 People, 4 Hill, 126. 
 
 84. An indictment for obtaining a signa- 
 ture to a note by false pretenses, charged 
 that the pretenses were made .to induce K. 
 to become the security of L. on a six hun- 
 dred dollar note, but that instead of going 
 security he became a principal, and made a 
 note for six hundred dollars payable to L. 
 Held., that the indictment was bad for am- 
 biguity and uncertainty. State v. Locke, 
 35 Ind. 419. 
 
 85. Charging bankrupt. It is not suffi- 
 cient in an indictment under section 44 of 
 the bankrupt act, for fraudulently obtaining 
 goods on credit, to aver that proceedings in 
 bankruptcy were duly commenced. It must 
 be pleaded and proved that a petition in 
 bankruptcy was presented to the court by a 
 certain creditor, naming him,- and the 
 amount of the debt of such petitioning 
 creditor, the alleged cause of bankruptcy, 
 and the adjudication of bankruptcy. It 
 must appear affirmatively that the creditor 
 had a right under the law to commence 
 and prosecute proceedings in bankruptcy, 
 and the amount of his debt must appear. 
 It must appear that the bankrupt obtained 
 goods within three months of the bankrupt- 
 cy by means of a representation which he 
 knew to be false, and that he was carrying 
 on business and dealing in the ordinary 
 course of trade. A description of the goods 
 obtained of the defendant as " a large quan- 
 tity of boots and shoes," is bad for uncer- 
 tainty. U. S. V. Prescott, 2 Bis. 325. 
 
 86. Must set out the pretenses. The 
 indictment must state what the false pre- 
 tenses were; and. they must be proved as 
 laid. Glackan v. Com. 3 Mete. Ky. 282 ; 
 Cowan V. People, 14 111. 348; Com. v. Frey, 
 50 Penn. St. 245. It is not sufficient to 
 charge the false pretenses in general terms ; 
 but they must be stated specifically and with 
 certainty. Burrows v. State, 7 Eng. 65. 
 Whore the false pretenses consist of lan- 
 guage employed by the defendant, it is suf-
 
 182 
 
 FALSE PRETENSES. 
 
 Indictment. 
 
 ficient to set it out in the indictment as it 
 was uttered, without undertaking to explain 
 its meaning. State v. Call, 48 New Hamp. 
 126. 
 
 87. An indictment is sufficient ^Yllich al- 
 leges that the defendant falsely pretended 
 that a certain metallic medal was a current 
 gold coin called an eagle, of the value of 
 ten dollars, and thereljy induced A. to re- 
 ceive the same as such, and to give in ex- 
 change therefor sundry current bank bills 
 and silver coin, amounting together to the 
 sum of nine dollars and seventy cents. 
 Com. V. Nason, 9 Gray, 125. 
 
 88. In Massachusetts, an indictment under 
 the statute (R. S. ch. 126, § 32) was held 
 insufficient, which charged that the defend- 
 ant, intending to cheat and defraud B. of his 
 money and property, designedly and know- 
 ingly falsely pretended to him, that a 
 watch which the defendant had, was a gold 
 watch, by means whereof the defendant did 
 designedly and knowingly obtain from B. 
 $35, with intent to cheat and defraud him of 
 the same, whereas, in fact, the watch was 
 not a gold watch, and the defendant knew 
 it was not. Com. v. Strain, 10 Mete. 521. 
 
 89. In Massachusetts, an indictment under 
 the foregoing statute was held good which 
 charged that G. designedly and unlawfully 
 pretended 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, pur- 
 porting to be a ten dollar bill of the Globe 
 Bank in the city of New York, was a 
 genuine bill and of the value of ten dollars, 
 by means of which false pretenses, said G. 
 illegally obtained from said N. forty pounds 
 of cheese, of the value of four dollars, and 
 bank bills and silver coins, of the value of 
 six dollars, with intent to cheat and defraud, 
 whereas tlie said A. did not wish to pur- 
 chase cheese of N., and had not sent G. to 
 him for that purpose, and the said jsaper 
 was not a genuine bill of the Globe Bank in 
 the city of New York, and was not of the 
 value of ten dollars, but was worthless. Com. 
 V. Hulbert, 13 Mete. 446. 
 
 90. An indictment which alleges that A., 
 B. and C, intending to cheat and defraud, 
 conspired to get into their possession certain 
 
 goods of a specified value, under color and 
 pretense of a purchase of the same upon the 
 credit of C. from such parties as could there- 
 after be induced by C. to part with goods, 
 under the false and fraudulent pretense 
 thereafter to be made to such parties by C. 
 that C. intended to take such goods to his 
 retail store for the purpose of selling them 
 in the usual and ordinary course of retail 
 trade, is sufficient as an indictment for a 
 conspiracy to obtain goods by false pre- 
 tenses within the statute of Massachusetts 
 (Gen, Stats, ch. 161, § 64, and Stat, of 1863, 
 ch. 248, § 2). Com. v. Walker, 108 Mass. 309. 
 
 91. In Massachusetts, an indictment for 
 obtaining money by false pretenses, which 
 charged that the false pretenses were prac- 
 ticed upon one, and his money obtained 
 with intent to defraud another, was held to 
 be good. Com. v. Call, 21 Pick. 515. 
 
 92. An indictment, which alleges that the 
 defendants falsely represented that sheep 
 which they ofiered to sell were free from 
 disease, and that the lameness which ajGfect- 
 ed some of them was caused by an accident- 
 al injury, by means of which the defendants 
 obtained money on the sale of said sheep, 
 and negativing the facts re^ireseuted, is 
 sufficient, under the statute of New York 
 against cheating by false pretenses. People 
 V. Crissie, 4 Denio, 525. 
 
 93. An indictment for obtaining goods 
 under false pretenses set out in substance 
 that the prisoner, with intent feloniously to 
 cheat and defraud one Stork, did knowingly 
 &c. represent to him that a certain instru- 
 ment in writing for the payment of monej'', 
 commonly called a bank check, which he 
 then and there delivered to him, purporting 
 to have been drawn by one Smith upon the 
 Ocean Bank of the city of New York, dated 
 &c., for the sum of $140, was a good and 
 genuine check, and that he, the prisoner, 
 had money on deposit in said bank, and said 
 check would be paid on presentation. Ileld 
 good. Smith v. People, 47 N. Y. 303. What 
 an indictment for obtaining goods under 
 false pretenses should contain. Lambert v. 
 People, 9 Cow. 578. 
 
 94. Although proof of a false promise will 
 not sustain an indictment for obtaining
 
 FALSE PRETENSES. 
 
 183 
 
 Indictment. 
 
 property under false pretenses, yet if the 
 pretense and promise blend together and 
 jointly act upon the defrauded person, 
 whereby he is induced to give faith to the 
 pretense, it is otherwise. The following in- 
 dictment was held sufficient: That the de- 
 fendant by false pretense, and with intent 
 to defraud H., falsely pretended to H. that 
 he had come to pay him $20 due H. from 
 the defendant, and H. believing the said 
 false pretense, and deceived thereby, was 
 induced by reason thereof to sign a receijDt 
 for said $20, which said receipt the defend- 
 ant took and carried away without the con- 
 sent of H., and did not pay H. $20 or any 
 other sum, and that the defendant did not 
 come to pay H. $20 or any other sum. State v. 
 Dowe, 27 Iowa, 273, Wright, J., dme7iting. 
 
 95. An indictment for cheating by false 
 pretenses, alleged that the defendant, to 
 induce R. to part with a note which R. held 
 against him, pawned a watch as a pledge 
 that he would do a certain thing, falsely 
 representing the watch to be worth a sum 
 exceeding its real value, and also that it was 
 the property of his wife ; but did not allege 
 that he represented he was authorized by 
 her to part with it. Held bad on demurrer. 
 State V. Estes, 46 Maine, 150. 
 
 96. In South Carolina, under the statute 
 of 1791, an indictment was held insufficient, 
 which merely alleged that the defendant, 
 falsely and fraudulently pretending tliat a 
 certain mulatto was a slave, did falsely cheat 
 and defraud one A., by selling said mulatto 
 to him for a slave, when said mulatto was 
 free. State v. Wilson, 3 Const. R. 135. 
 
 97. An indictment charging that the de- 
 fendant obtained the property of A. by 
 falsely pretending to him that his goods and 
 chattels were about to be attached, is bad 
 for the reason that it relates to a future 
 transaction. McKenzie v. State, 6 Eng. 594. 
 
 98. Averment of intent. Although an 
 indictment for obtaining money by false 
 tokens, must describe the offense as to time 
 and place, and allege every material fact, yet 
 the intent need not be averred. State v. 
 Bacon, 7 Vt. 223. 
 
 99. In an indictment for obtaining a sig- 
 nature to a written instrument by a false 
 
 pretense with intent to defraud, the fraud- 
 ulent intent is an essential element of the 
 offense, and must be distinctly charged by 
 an affirmative allegation, and not by way of 
 inference or argument merely. Com. v. 
 Dean, 110 Mass. 64. 
 
 100. Where the case made by the indict- 
 ment was, that the prosecutor having taken 
 a promissory note payable to his own order, 
 for a debt due to himself from the defendant, 
 was induced to indorse and deliver it back 
 to the defendant, and there was no aver- 
 ment that the defendant obtained the in- 
 dorsement of the prosecutor with intent 
 afterward to negotiate it on his own ac- 
 count, it was held that a conviction could 
 not be sustained. People v. Chapman, 4 
 Parker, 56. 
 
 101. In New York, an indictment for re- 
 ceiving and storing for hire by false weights 
 and measures, must charge the acts and in- 
 tents of the prisoner to have been felonious ; 
 and it must name the person defrauded, or 
 aver that he was to the jurors unknown. 
 People V. Fish, 4 Parker, 206. 
 
 102. Description of property. The in- 
 dictment need not mention all the property 
 which the defendant obtained by the false 
 pretenses. People v. Parish, 4 Denio, 153. 
 
 103. A description of property obtained 
 by false pretenses, as " a check and order 
 for the payment of money " is sufficient, 
 without setting out the check. Com. v. 
 Coe, 115 Mass. 481. 
 
 104. An indictment for obtaining money 
 by false pretenses which avers that S. deliv- 
 ered, and the defendant received, forty-six 
 dollars of the money and property of the 
 said S., is sufficient without describing the 
 money. Com. v. Lincoln, 11 Allen, 3.)3. 
 
 105. Where a statute made the offense 
 consist in the fraudulent obtaining of money, 
 goods or chattels, an indictment was held 
 insufficient, which charged the obtaining by 
 means of a counterfeit letter, one hundred 
 dollars in a note of the Bank of Virginia, 
 on the ground that a bank note was not 
 money within the meaning of the statute. 
 But an indictment was held good which al- 
 leged the obtaining from the Bank of Vir- 
 ginia, by similar means, of fifty dollars in
 
 184 
 
 FALSE PKETENSES. 
 
 
 Indictment. 
 
 money current in Virginia. Com. v. Swin- 
 uey, 1 Va. Cas. 14G, 150, Ul,7wte. 
 
 106. An indictment for tlie fraudulent re- 
 moval and concealment by the defendant 
 of his own personal property, with intent to 
 2)lace it beyond the control of the mort- 
 gagee, described the property as " a large 
 quantity of ready made clothing, the whole 
 of the value of iive hundred dollars, a large 
 quantity of dry goods, the whole of the value 
 of tive hundred dollars, a large quantity of 
 boots and shoes, the whole of the value of five 
 hundred dollars, and a large quantity of hats 
 and caps, the whole of the value of five hun- 
 dred dollars, which said personal property 
 the jurors cannot more particularly describe." 
 Held sufiicient. Com. v. Stangford, 112 Mass. 
 289. 
 
 107. As promissory notes are not public 
 tokens, an indictment for a cheat at common 
 law, by passing certain " promissory notes" 
 as and for bank notes, without charging 
 that they resembled bank notes, is insufii- 
 cient. State v. Patillo, 4 Hawks, 348. An 
 indictment which alleges in one count the 
 possession, and in another the uttering, of a 
 forged bank bill, with an intent to defraud, 
 does not charge a common-law cheat. State 
 V. Brown, 4 R. I. 528. 
 
 108. An indictment for cheating by false 
 tokens, in obtaming property by means of a 
 counterfeit coin, need not aver to what cur- 
 rency the coin counterfeited belonged ; nor 
 that the spurious coin was made like the 
 one imitated, the word " counterfeit " being 
 sufficient; nor that the property was ob- 
 tained by means of passing the false coin ; 
 nor the value of the thing obtained, or that 
 it was of any value ; nor that it was the 
 property of the iDcrson from whom it was 
 alleged to have been obtained. State v. 
 Boon, 4 Jones, 463. 
 
 109. Where an indictment charges that 
 the defendant intended to cheat the prose- 
 cutor out of twenty acres of land, the excess 
 in quantity over thirty-five acres, there 
 should be an averment that there was in 
 fact such an excess of twenty acres. State 
 V. Burrows, 11 Ired. 477. 
 
 110. An indictment for the fraudulent 
 conveyance of real estate without eriviue: 
 
 notice of an encumbrance thereon, which 
 alleges that the defendant conveyed a cer- 
 tain parcel of land in the city of Salem, 
 county of Essex, without any other terms of 
 description, is bad for uncertainty. Com. v. 
 Brown, 15 Gray, 189. 
 
 111. Averment of ownership. An in- 
 dictment for obtaining goods by false pre- 
 tenses, must contain an averment of owner- 
 ship, or give a reason for not making the 
 averment. State v. Lathrop, 15 Vt. 279 ; State 
 V. Smith, 8 Blackf. 489 ; Leobold v. State, 33 
 Ind. 484; Thomson v. People, 34 111. 60; 
 Washington v. State, 41 Texas, 583, and al- 
 lege that they were obtahied by means of the 
 false representations. Epperson v. State, 42 
 Texas, 79 ; State v. Green, 7 Wis. 676. 
 
 112. An indictment for obtaining money 
 by false pretenses, averred that K. presented 
 a forged writing as true, to S. W., Jr., rep- 
 resenting that his mother had signed it, and 
 wished him " to obtain seven dollars from 
 his employers," and give it to K., and that 
 the son believing the representations, pro- 
 cured from his employers the said sum of 
 seven dollars of the proper moneys of S. W., 
 Sr. But the indictment did not show how 
 the moneys so obtained were the property 
 of S. W., the elder. Held that the indict- 
 ment was bad and the prisoner entitled to 
 judgment. People v. Krummer, 4 Parker,217. 
 
 113. An indictment for selling property 
 conditionally mortgaged, with intent to de- 
 fraud, must allege that previous to the sale, 
 the mortgage had become absolute by the 
 happening of the condition. State v. Dev- 
 ereux, 41 Texas, 383. 
 
 114. Allegation of value. The indict- 
 ment need not charge that the property was 
 of a particular value. People v. Stetson, 4 
 Barb. 151. An indictment against A., for 
 obtaining the horse of B. by the false pre- 
 tense that the mare which he exchanged 
 therefor was his own and was unencum- 
 bered, did not charge that the mare was of 
 any value. Held not good ground for arrest 
 of judgment. State v. Dorr, 33 Maine, 498. 
 
 115. In New Hampshire, an indictment 
 for the unlawful and fraudulent sale of 
 mortgaged property contrary to the statute, 
 must allege the value of the property at the
 
 FALSE PRETENSES. 
 
 185 
 
 Indictment. 
 
 Evidence. 
 
 time of the sale. State v. Ladd, 33 New 
 Hamp. 110. 
 
 116. An indictment which charges that 
 by means of false pretenses, the defendant 
 obtained "sixty-five dollars in money," is 
 sufficiently definite and certain without an 
 additional averment of the value of the 
 money. Oliver v. State, 37 Ala. 134. 
 
 117. Ch.arging several. Where the first 
 and third counts of an indictment charged 
 false pretenses against A. and B., while the 
 second and fourth counts included also C, 
 the same felony being charged in all of the 
 courts, it was held that the indictment was 
 good, easily v. State, 33 Ind. 63. 
 
 118. Must negative truth of pretenses. 
 The indictment must negative the truth of 
 the pretenses. Tyler v. State, 3 Humph. 37. 
 But all of the pretenses charged need not 
 be negatived. It is sufficient to negative 
 such as are relied on by the prosecution. 
 People V. Strong, 9 Wend. 183; People v. 
 Gates, 13 lb. 311; Com. v. Merrill, 8 Cush. 
 571. 
 
 119. Where an indictment alleged that 
 the defendant falsely pretended to A., that 
 B., C. and D. were indebted to the defend- 
 ant in a certain amount, and that they 
 were bound to pay a certain bill of ex- 
 change, then in the defendant's possession 
 and overdue, drawn by the defendant on 
 said B., C. and D., payable to their order 
 ninety days after date, and accepted by them, 
 and which they indorsed to the defendant, 
 and obtained from said A. certain goods, 
 with intent to cheat, &c. ; whereas, in fact, 
 the said B. and C. were not then indebted 
 to the defendant, nor were said B., C. and 
 D. bound to pay said bill, it was held that 
 the first pretense was not well negatived, 
 and as to the second, that there ought to 
 have been an allegation that the defendant 
 knew that B., C. and D. were not bound to 
 pay the bill. State v. Smith, 8 Blackf. 489. 
 
 120. Where an indictment alleges that 
 the prisoner obtained the property upon 
 giving his note, which he falsely and fraud- 
 ulently represented that he was able to pay, 
 it need not aver that he did not pay the 
 note. Clark v. People, 3 Lans. 339. 
 
 121. Sufficiency of indictment question 
 
 of law. It is not error on a trial for obtain- 
 ing goods under false pretenses for the judge 
 to refuse to charge that the pretense must ap- 
 pear upon the indictment to be such as could 
 not be guarded against by an exercise of 
 common sagacity and prudence ; the suffi- 
 ciency of the indictment being a question 
 of law. Smith v. People, 47 N. Y. 303. 
 
 122. Place of trial. A. was indicted in 
 New York for obtaining money from com- 
 mission merchants in that city, by showing 
 them a fictitious receipt, signed by a for- 
 warder in Ohio, falsely acknowledging the 
 delivery to him of a quantity of produce for 
 the use of and subject to the order of the 
 firm. The defendant set up in defense, that 
 he was a citizen of Ohio, had always lived 
 there, and had never been in the State of 
 New York ; that the receipt was drawn and 
 signed in Ohio, and the ofi'ense was com- 
 mitted by the receipt being presented to the 
 firm in New York by an innocent agent of 
 the defendant. Held, that the defendant 
 was properly indicted in New York. Adams 
 V. People, 1 Comst. 173. . 
 
 K 
 
 4. Evidence. ^ 
 
 123. Burden of proof On the trial of an 
 indictment for obtaining money under false 
 pretenses, the burden of proof is on the 
 prosecution to show that the pretenses were 
 false, unless the fact lies peculiarly in the 
 knowledge of the accused ; and it must be 
 proved not only that false pretenses were 
 made with the design of obtaining the 
 money, but that the money was paid in con- 
 sequence of the false pretenses. Bowler v. 
 State, 41 Miss. 570. 
 
 124. Best evidence must be produced. 
 On the trial of an indictment for obtain- 
 ing a bank check in exchange for a note, by 
 falsely pretending that the note was genuine, 
 the testimony of a witness that he heard the 
 maker of the note say that the defendant 
 had authority to use his name upon the note, 
 and that it was signed by his authority, is 
 mere hearsay and inadmissible. Cora. v. 
 Goddard, 3 Allen, 148; s. c. 4 lb. 313; 14 
 Gray, 403. 
 
 125. On the trial of an indictment for ob- 
 taining money by false pretenses, by repre-
 
 186 
 
 FALSE PRETENSES. 
 
 Evidence. 
 
 seuting that the defendant had money in a 
 bank in another State, the certificate of pro- 
 test of the notary public who protested the 
 drafts drawn on the bank is not competent 
 evidence to show that the defendant had no 
 money in the bank. State v. Reidel, 26 
 Iowa, 430. 
 
 126. Where the question is, whether a 
 check was drawn on a bank by a person who 
 had no funds therein, and the accused waives 
 the production of the books of the bank, 
 the book-keeper of the bank is a competent 
 witness to show that at the date of the 
 transaction there were no funds in the bank 
 for the payment of the check. Smith v. 
 People, 47 N. Y. 303. 
 
 127. In New Jersey, an indictment under 
 the statute (Nix. Dig. 170, § 53) for obtain- 
 ing proi^erty by false pretenses is sustained 
 by proof of a verbal pretense made with in- 
 tent to cheat and defraud, and which in- 
 duced a person to part with his property or 
 give credit. State v. Duckworth, 3 Dutch. 
 328. 
 
 128. On the trial of an indictment for ob- 
 taining money under false pretenses, it is 
 competent for the complainant to testify 
 that he relied on the representations of the 
 prisoner. People v. Sully, 5 Parker, 142. 
 
 129. Under an indictment for swindling 
 in selling a tract of land a second time, it is 
 not necessary to prove that the second pur- 
 chaser has tested his title by action. State 
 V. Dozier, Dudley, Ga. loo. 
 
 130. All of the pretenses charged need 
 not be proved. Although when all of the 
 jiretenses charged are a substantive pax't of 
 the offense, all must be proved to be false; 
 yet it is otherwise where one or more of the 
 pretenses are sufficient jier se to constitute 
 the offense. People v. Haynes,ll Wend. 557; 
 14 lb. 546; Britt v. State, 9 New Hamp. 
 81 ; Thomas v. People, 34 N. Y. 351. 
 
 131. If the jury are satisfied of the ex- 
 istence of a conspiracy, and that a material 
 portion of the representations made in carry- 
 ing it into effect are false, they may find in 
 the absence of explanation, that the other 
 statements were made for the same purpose, 
 and were also untrue. The conduct and dec- 
 larations of the several parties, together 
 
 with proof that one of them, with the 
 prisoner, went through the same perform- 
 ance two days before, for the purpose of 
 getting money from another person, are ad- 
 missible to show the quo animo of the accused 
 in the offense charged. Bielschofsky v. Peo- 
 ple, 5 N. Y. Supm. N. S. 277. 
 
 132. Variance as to name. An indict- 
 ment charged that by means of certain false 
 and fraudulent representations made to B., a 
 member of the firm of B., K. & Co., the de- 
 fendant procured certain goods. The evi- 
 dence showed that the style of the firm was 
 B. & K. Held that the variance was fatal. 
 Mathews v. State, 33 Texas, 102. 
 
 133. An indictment charged the defendant 
 witli branding a steer, the property of Joseph 
 F. Rowley. The evidence showed that the 
 steer belonged to Napoleon B. Rowley. Held 
 that the variance was fatal. Mayes v. State, 
 33 Texas, 340. An indictment for obtaining 
 goods by false pretenses charged that the 
 defendant falsely pretended that he had an 
 order from a person in New York, whose 
 name he did not mention. The proof was 
 that the defendant stated he had an order 
 from " another party," but that he did not 
 say who the party was, or in what place he 
 resided. Held that the variance was fatal. 
 Com. V. JeflFries, 7 Allen, 548. 
 
 134. Amount represented. Although 
 sums of money, dates, «fcc., need not usually 
 be averred with accuracy, yet when they 
 constitute a part of the description of the 
 offense, they must be proved as laid. Where 
 therefore an indictment for obtaining money 
 and a signatm-e by false pretenses alleged 
 that the defendant represented that his house 
 and lot were worth $3,600, and it was proved 
 that he stated that they were worth $2,200 
 or $2,300, it was held that the variance was 
 fatal. Todd v. State, 31 Ind. 514. 
 
 135. An allegation in an indictment that 
 the prisoner pretended " that he bad in 
 Macon seven thousand dollars," is materially 
 variant from a pretense "that he had seven 
 dollars less than seven thousand in a bank 
 in Macon." O'Connor v. State, 30 Ala. 9. 
 
 136. Where the indictment charged that 
 the defendant represented that a firm, of 
 which he was a member, was then in debt
 
 FALSE PRETEI^SES. 
 
 187 
 
 Evidence. 
 
 to the amount of not more than three hun- 
 dred doUars, and the representation proved 
 was that the firm did not then owe more 
 than four hnudred dollars, it was held that 
 the variance was fatal. Com. v. Davidson, 
 1 Cush. 33. 
 
 137. But where the indictment charged 
 the obtaining by false pretenses the signa- 
 ture of a party to a promissory note, by 
 pretending that the defendant had money 
 in the hands of a third person, who was 
 absent, it was held that it was not necessary 
 to prove the amount represented to be the 
 identical sum stated in the indictment, pro- 
 vided it was sufficient to meet the payment 
 of the note which the party was induced to 
 sign. People v. Herrick, 13 Wend. 87. 
 
 138. Property represented. Where un- 
 der an indictment for obtaining goods by 
 false pretenses, which described the prop- 
 erty as " a package of money containing the 
 sum of sixty dollars in bank bills," and the 
 court charged the jury that, " if the package 
 contained anything that passed current at 
 par as money, the offense charged would be 
 sustained," it was held error. State v. Kube, 
 20 Wis. 217. 
 
 139. An indictment alleged that the de- 
 fendant falsely and knowingly presented 
 and pretended to A. that a certain writing, 
 in the form of a bank bill, was a good Ijank 
 bill for the payment of five dollars; that A., 
 believing the representation, was thereby 
 induced to deliver to the defendant certain 
 goods, and certain genuine bank bills and 
 coins, in exchange for said writing, and 
 that the defendant thereupon delivered 
 said writing to A. for five dollars, whereas 
 said writing was not a good bank bill for 
 five dollars, as the defendant then well 
 knew. Held that the indictment was not 
 proved by evidence that the writing was a 
 bill of a bank that had failed. Com. v. 
 Stone, 4 Mete. 43. 
 
 140. Where an indictment fur the fraud- 
 ulent conveyance of real estate alleged that 
 the defendant, " by a certain deed of war- 
 ranty, did make a conveyance of a certain 
 parcel of real estate," and the deed offered 
 in evidence was a conveyance of " the right, 
 title, and interest " of the grantor, subject 
 
 to a mortgage which was set out, and ex- 
 cepted from two covenants, it was held that 
 the variance was fatal. Com. v. Brown, 15 
 Gray, 189. 
 
 141. An indictment for cheating by false 
 pretenses alleged that a certificate of stock 
 was not a good, valid, and genuine writing 
 and certificate, but was false, forged, and 
 counterfeit, and of no value. The certificate 
 proved was in fact a certificate issued for 
 one share and afterward altered to one hun- 
 dred shares. Htld no variance. Com. v. 
 Coe, 115 Mass. 487. 
 
 142. An indictment for the fraudulent 
 breach of a trust alleged that the trust con- 
 sisted in safely keeping lumber for A. The 
 evidence w^as that the trust consisted in 
 sawing lumber in a mill on A.'s premises, 
 and shipping it to market. Held that the 
 variance was fatal. State v. Green, 5 Rich. 
 K S. 65. 
 
 143. Representation as to indebtedness. 
 Where an indictment charged that the de- 
 fendant represented that he was a partner 
 with another person, who had put into the 
 partnership a capital of a thousand dollars, 
 which they then had invested and employed 
 in their partnership business, and that the 
 copartners were worth property to the 
 amount of fifteen hundred dollars, and did 
 not owe more than three hundred dollars, 
 it was held that evidence of the individual 
 indebtedness of the defendant and his part- 
 ner was not admissible. Com. v. Davidson, 
 1 Cush. 33. 
 
 144. Where goods are obtained from 
 agent. An indictment alleging that the 
 defendant obtained goods of partners in 
 trade by false pretenses made to them, is 
 sustained by evidence that the defendant 
 made the false pretenses to their clerk and 
 salesman, who communicated them to one 
 of the partners, and that the goods were de- 
 livered to the defendant by reason of the 
 false pretenses. Com. v. Ilarley, 7 Mete. 4G2. 
 And see Com. v. Mooar, Thach. Crim. Cas. 
 410. 
 
 145. Proof of credit. On the trial of an 
 indictment for obtaining goods by false pre- 
 tenses, the testimony of the vendor is ad- 
 missible to show to whom he gave credit;
 
 188 
 
 FALSE PRETENSES. 
 
 Evidence. 
 
 and it may be left to the jury to determine 
 on tlie whole evidence, including the entries 
 on the books, wliether the sale was on the 
 credit of the defendant or that of the un- 
 disclosed principal. Com. v. Jeffries, 7 Al- 
 len, 548. 
 
 146. On the trial of an indictment for 
 cheating by false pretenses in obtaining a 
 loan from F., by means of a forged certifi- 
 cate of stock, the fact that the certificate 
 was offered and received as security for the 
 loan, is evidence from which the jury may 
 find that F. was thereby induced to part 
 with his money, notwithstanding the testi- 
 mony of F. that he " had every confidence 
 in " the defendant, in reply to the question 
 if he did not rather trust him than any se- 
 curity. Com. V. Coe, 115 Mass. 481. 
 
 147. Where two are jointly indicted, and 
 there is evidence that one of them, with the 
 knowledge and by the dir-ection of the other, 
 made the false pretenses charged, both may 
 be found guilty without proving that they 
 obtained the goods on their own account, 
 or derived, or expected to derive, any pecu- 
 niary benefit therefrom. Com. v. Hurley, 7 
 Mete. 462. 
 
 143. Guilty knowledge. On a trial for 
 cheating by false pretenses, in representing 
 that a forged certificate of stock was gen- 
 uine, evidence of the possession and use by 
 the defendant of other altered and false cer- 
 tificates about the same time, before or after- 
 ward, is comj^etent to show that his jDOsses- 
 sion of those for the use of which he was 
 indicted, was not accidental. Com. v. Coe, 
 115 Mass. 481 ; s.c. 2 Green's Crim. Reps. 5G2. 
 
 149. On the trial of an indictment for 
 cheating by falsely pretending that a bill of 
 an insolvent bank was good, evidence of the 
 depreciatetl value of the bills of the bank, 
 with proof that the bank has refused to pay 
 its bills, and that they are not current, is 
 competent, and it may be shown that the 
 prisoner had in his possession and passed 
 other similar bills. Com. v. Stone, 4 Mete. 
 43. 
 
 150. On the trial of an indictment for 
 concealing the goods of a debtor to prevent 
 their being taken for his debts, for the pur- 
 pose of showing that the goods concealed 
 
 were the property of the debtor, it may be 
 proved that a mortgage of the same goods 
 by the debtor to the defendant, previously 
 executed, was fraudulent, although the de- 
 fendant, in taking such mortgage, commit- 
 ted a distinct offense. State v. Johnson, 33 
 New Hamp. 441. 
 
 151. To authorize a conviction under an 
 indictment for fraudulently packing cotton, 
 the guilty knowledge of the defendant must 
 be shown in addition to the proof that it 
 was fraudulently packed at the defendant's 
 gin by his employees. State v. Pitts, 13 
 Rich. 27. 
 
 152. Guilty intent. On the trial of an 
 indictment for obtaining goods by false 
 pretenses, evidence that at the time of mak- 
 ing the alleged false representations, the de- 
 fendant was insolvent, is admissible to show 
 fraudulent intent. Com. v. Jeffries, 7 Allen, 
 548. And a conversation by him prior to 
 the making of the false pretenses charged 
 relative to the subject-matter of them, is 
 admissible for the same purpose. Com. v. 
 Castles, 9 Gray, 121. 
 
 153. On the trial of an indictment for ob- 
 taining property by false pretenses, through 
 representations made by the prisoner to C, 
 that there was no encumbrance on the land, 
 except the mortgage then sold by the pris- 
 oner to C, there being in fact a jDrior mort- 
 gage upon it, executed shortly previous, by 
 M. to L., it was held competent to prove 
 that M. told L. when he executed the mort- 
 gage to him, in presence of the prisoner, 
 that he need not be in a hurry to get his 
 mortgage recorded ; such evidence, in con- 
 nection with the conduct and acts of the 
 prisoner, being material ujDon the question 
 of intent. People v. Sully, 5 Parker, 142. 
 
 154. Where the false representations were 
 that the defendant owed but little, that he 
 was owing C. for a pair of oxen, and was 
 not owing any other large debt, that the 
 sale of his wood and bark he then owned, 
 would more than pay all he owed, and that 
 his note for $250 was good, it was held that 
 the fact that the defendant, three days after- 
 ward, mortgaged the greater part of his per- 
 sonal property, was admissible in evidence 
 as bearing on the question of the defendant's
 
 FALSE TRETENSES.— FELONY. 
 
 189 
 
 Evidence. 
 
 What is. 
 
 intent in making the representations. State 
 V. Call, 48 New Hamp. 126. 
 
 155. Where it was shown that the com- 
 plainant's money was borrowed by a confeder- 
 ate of the prisoner, to stake on a pretended 
 bet with him ; that the prisoner, claiming to 
 have won the bet, seized the money and 
 went away with it, and that his confederate 
 then gave the prosecutor a worthless bank 
 check for a large amount, which was refused 
 payment on presentation, it was held that 
 the evidence in relation to the check was 
 admissible, on the question of fraudulent in- 
 tent. Johnson v. State, 29 Ala. 62. 
 
 156. If a particular result is designed to 
 be fraudulently accomplished by making the 
 false pretense, which fails, and another 
 thing of value is obtained and accepted 
 with like intent to defraud, the law will im- 
 pute to the defendant a design, from the be- 
 ginning, to consummate the latter. Todd 
 v. State, 31 Ind. 514. 
 
 157. In Alabama, on the tiial of an in- 
 dictment for obtaining goods by false j^re- 
 tenses under the statute (Code, § 3142), the 
 fraudulent intent at the time of taking the 
 property must be proved. O'Connor v. 
 State, 30 Ala. 9. 
 
 158. It is not a defense under the statute 
 of New Hampshire for concealing the goods 
 of a debtor to prevent their being taken for 
 his debts, that the defendant, prior to the 
 commission of the offense, was summoned 
 as trustee of the debtor in a process of 
 foreign attachment which was pending at 
 the time of the concealment. State v. John- 
 son, 33 New Hamp. 441. 
 
 159. Testimony for the defense. On the 
 trial of an indictment for obtaining by false 
 2)retenses a signature to a written instrument, 
 proof by the defendant to show his ability 
 to pay must be confined to the time when 
 the signature was obtained. People v. 
 Herrick, 13 Wend. 87. 
 
 160. An indictment for obtaining goods 
 by false pretenses, cliarged that the defend- 
 ant had obtained the goods under pretense 
 of sending them to Charleston, 8. C. Held., 
 that the testimony of the j^erson usually 
 employed to cart goods for the defendant, 
 that no goods had been carried by him for 
 
 the defendant to any ship bound for that 
 port was admissible. Com. v. Hershell, 
 Thach. Crim. Cas. 70. 
 
 161. On the trial of an information for 
 obtaining a yoke of cattle under the false 
 pretense that the defendant owned a farm, 
 it was held that evidence that at the time 
 of the transaction he was in good pecuniary 
 credit and standing was not admissible. 
 State V. Penley, 27 Conn. 587. 
 
 162. To impeach witness. On the trial 
 of an indictment for obtaining a bank check 
 in exchange for a note, by falsely pretend- 
 ing that the note was genuine, the defend- 
 ant relied upon the fact that the date of the 
 check was earlier than the date of the note, 
 and that for this reason the former could not 
 have been obtained by means of the latter ; 
 and a witness had testified on her cross- 
 examination by the district attorney that 
 the first time she knew of the discrepancy 
 between the dates was at the hearing before 
 the police court. It was held competent for 
 the purpose of discrediting her testimony 
 to prove that she had knowledge of the 
 discrepancy at a much earlier period, and 
 bad participated with the defendant in 
 causing it. Com. v. Goddard, 2 Allen, 148; 
 4 lb. 312. 
 
 163. Pretense question for jury. The 
 materiality and influence of the pretense is 
 a question for the jury, unless some induc- 
 ing circumstance on the face of the indict- 
 ment shows that the pretense is immaterial. 
 Thomas v. People, 34 N. Y. 351. 
 
 164. In determining the criminality of 
 the false pretense, the jury may take into 
 consideration the ability or capacity to de- 
 tect them of the person defrauded. Cowan 
 V. People, 14 111. 348. 
 
 iTcloni). 
 
 "What is. In Indiana, a felony is an of- 
 fense punishable by confinement in the peni- 
 tentiary. State V. Smith, 8 Blackf. 489. In 
 New York and Missouri, a felony is an of- 
 fense for which the accused may be im- 
 prisoned in the State prison or penitentiary, 
 and not where he must be so imprisoned.
 
 190 
 
 FINE.— FOECIBLE ENTRY AND DETAINER. 
 
 When it will go to the State. 
 
 What Constitutes. 
 
 People V. Van Steenburgh, 1 Parker, 39; 
 Johnson v. State, 7 Mo. 183. 
 
 See the titles of the several offenses. 
 
 JTiuc. 
 
 When it will go to the State. In New 
 
 Hampshire, where one-half of a fine goes to 
 the public prosecutor, unless it appears of 
 record who the complainant is, the whole 
 penalty will go to the State. State v. Smith, 
 49 New Hamp. 155. 
 
 fixt ^nns. 
 
 Careless use of. The statute of Michi- 
 gan (Comp. L. § 7550), "to prevent the 
 careless use of fire arms," was designed to 
 punish a class of acts done carelessly ; and to 
 constitute the ofiense prohibited by the 
 statute there must have been an absence of 
 malice. People v. Chappell, 27 Mich. 486 ; 
 s. c. 2 Green's Crim. Reps. 569. 
 
 See Concealed weapons. 
 
 jri0l)cn). 
 
 1. Town no right in. The inhabitants 
 of a town have no grant of property or 
 right free from legislative control and reg- 
 ulation in the clam fishery within the limits 
 of a town, and a statute regulating the tak- 
 ing of clams from their beds is not uncon- 
 stitutional. Com. V. Bailey, 13 Allen, 541. 
 
 2. Unlawful taking of fish. Taking fish 
 by means of numerous single-baited hooks 
 and lines set in as many holes cut through 
 the ice and tended by one person is a viola- 
 tion of a statute whicli limits the mode of 
 taking fish to the " ordinary process of an- 
 gling with single bait, hook and line, or arti- 
 ficial fly." State v. Skdlfield, 63 Maine, 266. 
 
 3. Complaint. In a complaint for unlaw- 
 fully fishing in a pond, the lessees are prop- 
 erly designated as the proprietors, notwith- 
 standing the fact that other persons as- 
 sociated with them for the purpose of 
 cultivating fish, by an independent arrange- 
 
 ment among themselves, have an interest in 
 the enterprise. Stocking the pond with a 
 new species of fish, and closing the outlet 
 with a wire screen, are acts sufficient to show 
 an occupation for the purpose of artificially 
 cultivating fishes therein. Com. v. Weather- 
 head, 110 Mass. 175. 
 
 aub 
 
 JTorciblc ^ntnj 
 detainer. 
 
 1. What constitutes. 
 
 2. Proceedings. 
 
 3. Complaint. 
 
 4. Indictment. 
 
 5. Evidence. 
 
 6. Trial. 
 
 1. What constitutes. 
 
 1. Entry when deemed forcible. The 
 
 entry to be forcible, ought to be accomjia- 
 nied with some circumstances of actual vio- 
 lence or terror. These circumstances will 
 constitute an entry forcible, though no per- 
 son be on the premises at the time the entry 
 is made. People v. Field, 52 Barb. 198 ; 1 
 Lans. 222. A mere naked trespass to lands 
 or outhouses is not sufficient. People v. 
 Smith, 24 Barb. 16. 
 
 2. When a person goes on to the land of 
 another in such a way as to give those who 
 are in possession just cause to fear that he 
 will do them some bodily harm if they do 
 not yield to him, his entry will be deemed 
 forcible, no matter what is the character of 
 his demonstration. State v. Pearson, 2 New 
 Hamp. 550. 
 
 3. In Massachusetts, to constitute the of- 
 fense, there must be such a denjonstration as 
 to excite the fears of the owner and prevent 
 him from claiming or maintaining his rights. 
 Com. V. Dudley, 10 Mass. 403. In Pennsyl- " 
 vania, the possession must have been quiet, 
 peaceable, and actual, and the entry attended 
 with force and intimidation. Cora. v. Keeper 
 of Prison, 1 Ashm. 140. 
 
 4. In North Carolina, to constitute forci- 
 ble entry and detainer, there must be a show 
 of force, as with weapons, or a multitude of
 
 FORCIBLE ENTRY AND DETAINER. 
 
 191 
 
 What Constitutes. 
 
 Proceedings. 
 
 people, so as to involve a breach of the peace, 
 or directly tend to it, and be calculated to 
 intimidate. State v. Ray, 10 Ired. 39. 
 
 5. In South Carolina, to constitute forci- 
 ble entry, there must be circumstances of 
 terror. Every unlawful entry upon the pos- 
 session of another is deemed a forcible entry ; 
 but it must be an actual and not a mere con- 
 structive possession. Two persons cannot 
 be in the actual possession of the same land 
 at the same time; and whenever the unlaw- 
 ful entry of one necessarily dispossesses the 
 other, an indictment for a forcible entry will 
 lie. Although the possession may have been 
 obtained by fraud , yet if maintained by force, 
 the entry will be deemed forcible. State v. 
 Cargill, 3 Brev. 445 ; Burt v. State, 2 Const. 
 R. 489; s. c. 3 Brev. 413. 
 
 6. Where A., having possession of a build- 
 ing and shed attached, locked the door of 
 the shed, in which he had some tools, and 
 leaving a tenant in possession, went away, 
 intending to return, and afterward, the ten- 
 ant put B. into possession of the main build- 
 ing; it was held that B. was not indictable 
 for a forcible entry in breaking into the shed, 
 and assuming possession of that. State v. 
 Bridgen, 8 Ired. 84. 
 
 7. H., being the owner and in possession 
 of certain land, permitted F. to place a build- 
 ing thereon, without anything being said 
 about the time it might remain, or any agree- 
 ment to pay rent. Afterward, H. conveyed 
 the premises to A. and B., who made an ex- 
 ecutory contract with the defendant and one 
 C. for the sale and conveyance of the same 
 to them; and the latter took possession for 
 the purpose of erecting a building upon the 
 premises. C. subsequently released to the 
 defendant, who, desiring to erect stores 
 upon the lot, requested F. lo remove his 
 building, which he agreed to do, and made 
 preparations therefor, and the defendant 
 with his consent, excavated tiie earth up to 
 the building. After this F. sold the build- 
 ing to the relator by a written contract stat- 
 ing that the building should remain where 
 it was, F. to retain possession until the 
 money was paid, when it was to be surren- 
 dered to the relator. F. remained in posses- 
 sion under the relator several mouths, when 
 
 he removed his things and gave the key tO' 
 the relator, and the latter was in possession 
 of the building, occasionally unlocking and 
 entering therein, until the defendant re- 
 moved it from the premises into the street. 
 Held that there had been no forcible entry 
 in law by the defendant. People v. Field, 
 53 Barb. 198; 1 Lans. 223. 
 
 8. Detainer whan forcible. The same 
 circumstances of violence or terror that will 
 make an entry forcible, will constitute a for- 
 cible detainer. The defendant having en- 
 tered peaceably, said to the former possessor, 
 " it will not be well for you, if you ever come 
 upon the premises again by day or night." 
 It was held a question for the jury whether 
 this was a threat of personal violence, and 
 therefore a forcible detainer within the stat- 
 ute ; and a new trial was refused. Kline v. 
 Rickert, 8 Cow. 236. 
 
 9. If a man being in a house, refuse to 
 open the door to one who comes to make an 
 entry, this is not a forcible detainer. So if 
 A. be in possession of a house, or have a 
 lease of it at the will of B., and B. enters 
 into the house and commands A. to go out, 
 and leave him in possession, and A. refuses, 
 this is not a forcible detainer. Com. v. Dud- 
 ley, 10 Mass. 403. The doctrine of forcible 
 detainer has never been extended to per- 
 sonal property. State v. Marsh, 64 N. C. 
 378. 
 
 2. Proceedings. 
 
 10. Nature. The proceedings under the 
 statute of New York to prevent forcible 
 entry and detainer are of a mixed nature, 
 being in substance a civil and in form a 
 criminal prosecution. People v. Smith, 24 
 Barb. 16. In New Hampshire, although 
 the proceeding is in the form of a criminal 
 prosecution, and in certain cases a fine may 
 be imposed, yet it must be viewed in some 
 respects as a private remedy. State v. Har- 
 vey, 3 New Hamp. 65. 
 
 11. The object of the statute of New 
 York is to prevent all persons, however 
 good their title or right to premises, from 
 forcibly acquiring possession of them; and 
 having peaceably acquired possession, from 
 holding out another who at the time of such
 
 192 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 Proceedings. 
 
 entry or liokling out was in peaceable posses- 
 sion. It matters not how invalid the occu- 
 pant's right to possession may be, if he is in 
 the peaceable and quiet occupancy of prem- 
 ises that occupancy cannot be forcibly in- 
 vaded. People V. Field, 53 Barb. 198; 1 
 Lans. 222. 
 
 12. Although the main object of the New 
 York statute of forcible entry and detainer 
 is to preserve the public peace and prevent 
 parties from asserting their rights by force 
 or violence, yet by gradual additions the 
 remedy has become in effect a private as 
 well as a public one. But the form of pro- 
 ceeding and the I'ules of law which govern 
 it remain to a great degree unchanged. 
 Still, to secure conviction, there must be 
 proof of a wrong done to the public. A 
 mere trespass will not sustain the jDroceed- 
 ing. There must be an element of force, 
 violence or terror. Wood v. Phillips, 43 N. 
 Y. 152. 
 
 13. Who may maintain. In New York, 
 a party in the peaceable and actual posses- 
 sion of lands at the time of the forcible 
 entry, or in the constructive possession 
 thereof at the time of a forcible holding out, 
 is entitled to proceed under the statute of 
 forcible entry and detainer, although he is 
 neither seized of a freehold nor possessed of 
 a term for years in the premises. People v. 
 Van Nostrand, 9 Wend. 50 ; People v. Car- 
 ter, 29 Barb. 208. Actual occupancy at the 
 time of the entry is not necessary in order 
 to entitle the person injured to proceed 
 under the statute. A building was on the 
 land of the State without objection from any 
 person. One C. had the right to keep it 
 there until the State or its grantee or lessee 
 should require its removal. He did not 
 occupy or use it, but he had previously 
 been in the receipt of the rents and profits, 
 and was about to put it in order to rent it, 
 and he went into it whenever he had occa- 
 sion to do so. Held that C. was in actual 
 possession. People v. Field, 52 Barb. 198; 
 1 Lans. 222. For all purposes of the statute, 
 the person in possession of a house must be 
 deemed to be in possession of the land. lb. 
 
 14. In New Hampshire, any one who is 
 seized of land in fee for life, or possessed 
 
 thereof for a term of years, and who is with 
 strong hand and armed power turned out or 
 held out of possession, may maintain a 
 prosecution for forcible entry and detainer, 
 whether the seizin be by right or wrong, or 
 whether the term for years be legal or not. 
 State V. Pearson, 2 New Hamp. 550. 
 
 15. In Maine, the complainant holding 
 mortgages of the premises in controversy, 
 purchased at a public sale on execution 
 the respondent's equity of redemption, and 
 entered peaceably into possession. While 
 so in possession, the respondent entered and 
 expelled him by force. Held that as the 
 complainant by his purchase acquired all the 
 title of the debtor in the premises, he was 
 entitled to process of forcible entry and de- 
 tainer. Dyer v. Chick, 52 Maine, 350. 
 
 16. Proceedings for a forcible entry and 
 detainer of a church must be in the name 
 of the corporation, and not in the names of 
 the trustees. People agst. Fulton, UN. Y. 
 94. 
 
 17. A tenant at will cannot maintain forci- 
 ble entry and detainer against a stranger for 
 expelling him. Com. \. Bigelow, 8 Pick. 31. 
 
 18- Against whom they will lie. The 
 
 defendant need not be a tenant of the 
 plaintiff". It is sufficient if he is a disseizor. 
 Baker v. Cooper, 57 Maine, 388. The pro- 
 ceedings may be maintained against one 
 who was acting as agent of his wife. 
 Bailey v. Bailey, 61 lb. 361. They are not 
 applicable to the relation of mortgagor and 
 mortgagee. Reed v. Elwell, 46 lb. 270. 
 
 19. In Maine, where an execution in be- 
 half of an insolvent bank had been extended 
 on real estate, and seizin delivered to the 
 receivers, it was held that forcible entry 
 and detainer might be maintained by them 
 against the execution debtor who remained 
 in possession although the time for the re- 
 demption of the levy had not expired. 
 Baker v. Cooper, supra. 
 
 20. An indictment for forcible detainer 
 may be maintained against a third jjerson 
 who enters after judgment against a former 
 trespasser, and the sheriff who has the writ 
 of restitution may turn him out of posses- 
 sion. State V. Gilbert, 2 Bay, 355.
 
 FORCIBLE ENTRY AND DETAINER. 
 
 193 
 
 Complaint. 
 
 Indictment. 
 
 3. Complaint. 
 
 21. What to contain. A complaint for 
 forcible entry and detainer must contain 
 enough to show that the court has jurisdic- 
 tion, without a resort to parol testimony. 
 Treat v. Bent, 51 Maine, 478. The statute 
 of New York, in relation to forcible entry 
 and detainer, requires the party to disclose 
 the nature of his right to the possession — 
 how and from whom it was acquired — so 
 that it will appear that his right is valid. 
 Where the complaint alleged that the relator 
 and his grantor had been in the quiet and 
 peaceable possession of the premises for 
 many years, and for more than five years, 
 and had. a good legal right and estate to 
 said premises, and still had a legal right to 
 the possession of the same, it was held that 
 the complaint was not in compliance with 
 the statute, but that it wAs not so defective 
 as to deprive the ofiicer of jurisdiction. 
 People V. Field, 53 Barb. 198; 58 lb. 270 ; 
 s. c. i Lans. 222. 
 
 22. Verification. In New York, the veri- 
 fication of the complaint in proceedings of 
 forcible entry and detainer, in the form of 
 verification of pleadings prescribed by the 
 Code, is not sufficient. The affidavit accom- 
 panying the complaint must be positive as 
 of the knowledge of the affiant, or if any 
 facts are stated upon information they must 
 be so stated, and the source of the informa- 
 tion be given. People v. Whitney, 1 N. Y. 
 Supm. N. S. 533. 
 
 23. Objection. If the complaint is not 
 sufficiently full and specific, the defendant 
 should raise the question before the judge, 
 and may move at special term to dismiss the 
 proceedings for the defect. People v. Field, 
 53 Barb. 198; 1 Lans. 223. 
 
 24. Waiver of objection. Although pro- 
 ceedings in forcible entry and detainer being 
 derived from statute, strict compliance is re- 
 quired, yet an objection to the sufficiency of 
 the complaint maybe waived by omitting to 
 make it in proper time. People v. Field, 
 58 Barb. 270 ; 1 Lans. 223. 
 
 25. In proceedings for forcible entry and 
 detainer, the defendant objected to the veri- 
 fication of the complaint as insufficient, on 
 the first opportunity bsfore the county judge. 
 
 13 
 
 The jury was then impaneled, and the inqui- 
 sition found and signed, and the defendant 
 traversed it and brought a certiorari. Held 
 that there was no waiver of the insufficiency 
 of the affidavit. People v. Whitney, 1 
 N. Y. Supm. N. S. 533. 
 
 4. Indictment. 
 
 26. At common law. An indictment for 
 forcible entry is sufficient at common law, 
 which alleges that the defendant unlawfully, 
 and with strong hand, did break and enter 
 into a certain house of A., he, the said A., 
 being then and there in peaceable and quiet 
 possession of the same. State v. Whitfield, 
 8 Ired. 315 ; Cruser v. State, 3 Harr. 306. 
 
 27. Averment of title. In New York, an 
 indictment for a forcible entry and detainer, 
 under the statute (Sess. 11, ch. 6), must al- 
 lege a seizin or possession, and state 
 whether the estate of the relator be a free- 
 hold or a term of years, and the averment as 
 to his estate must be proved as laid. Biink- 
 erhoff v. Nelson, 13 Johns. 340 ; People v. 
 Reed, 11 Wend. 157. 
 
 28. In North Carolina, under the statute 
 (21 Jac. 1), the indictment must state the 
 kind of term from which the party is ex- 
 pelled, and the terra must be subsisting at 
 the time of the trial. State v. Butler, 1 
 Taylor, 262. 
 
 29. Description of premises. An indict- 
 ment for forcible entry and detainer should 
 describe the premises with so much certainty 
 that the sherifl" may be at no loss, upon a 
 writ of restitution, to restore the injured 
 party to the possession. Bickley v. Norris, 
 2 Brev. 352. The premises will be sufficient- 
 ly described by the term "messuage." State 
 V. Butler, supra. 
 
 30. An indictment which contained the 
 following description of the premises was 
 held sufficient : A certain close of two acres 
 of arable land, situate in S. township, in the 
 county aforesaid, being part of a large tract 
 of laud, adjoining lands of A., D. and H. 
 Dean v. Com. 3 Serg. & Rawlc, 418. 
 
 31. A forcible and unlawful entry into a 
 messuage and ten acres of land, in the peace- 
 able possession of a lessee for years, is suf- 
 ficiently charged, although from a clerical
 
 104 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 Indictment. 
 
 Evidence. 
 
 Trial, 
 
 -error the expulsion is alleged as to the mes- 
 suage only. Com. v. Rogers, 1 Serg. & 
 Raivle, 124. 
 
 32. Traverse. In New York, the trav- 
 erse to an indictment for a forcible entry and 
 detainer need not be in writing. Corless 
 V. Anthony, 4 Johns. 198. 
 
 5. Evidence. w 
 
 33. As to premises. Where, in an infor- 
 mation for a forcible entry and detainer, 
 there is a variance between the description 
 of the property as laid, and the evidence, the 
 judgment will not be sustained. Ball v. 
 State, 26 Ind. 155. 
 
 34. The steward of a school slept in a 
 house situated within the curtilage, but not 
 connected with the dwelling-house, of the 
 school, by any common roof or covering, 
 and for which lodging-rooms the steward 
 paid no rent. Held that the house occupied 
 by the steward was not in law his dwelling- 
 house, but was the dwelling-house of the 
 proprietor of the school, and that an indict- 
 ment could not be maintained against the 
 proprietor, for an entry and expulsion of the 
 steward from- such house, provided there 
 was no injury to his person or other breach 
 of the peace. State v. Curtis, 3 Dev. & Batt. 
 222. 
 
 35. Proof of possession. On the trial of 
 an indictment for a forcible entry and de- 
 tainer, the title to the premises is not in 
 issue, but the complainant is entitled to 
 recover if he shows himself to have been in 
 peaceable jjossession before tlie defendant's 
 entry. People v. Leonard. 11 Johns. 504. 
 Evidence of actual possession is sufficient to 
 sustain the avei'ment in the inquisition that 
 the complainant was possessed in fee simple. 
 People V. Van Nostraud, 9 Wend. 50. 
 
 36. Proof of entry. Under an indictment 
 at common law, for a forcible entry, it is 
 sufficient to show that the defendant entei'ed 
 with such force and violence as to exceed a 
 bare trespass. State v. Pollok, 4 Ired. 305. 
 
 37. An indictment for forcibly entering a 
 field is not sustained l>y evidence that the 
 defendant peaceably entered the field, and 
 threw stones against the house of the com- 
 plainant, adjoining the field, the complainant 
 
 at the time being in the house. State v. 
 Smith, 2 Ired. 127. 
 
 38. Injured party as witness. In Georgia, 
 on the trial of an indictment for forcible 
 entry and detainer, the injured party is a 
 competent witness. Kersh v. State, 24 Ga. 
 191. But is otherwise in North Carolina. 
 State V. Fellows, 2 Hayw. 520. 
 
 6. Teial. 
 
 39. Right of defendant on. The defend- 
 ant has a right to produce witnesses, to 
 cross-examine the complainant's witnesses, 
 and sum up the evidence. People v. Reed, 
 11 Wend. 157. 
 
 40. Inquisition. If the defendant have 
 no notice of the inquisition, the omission 
 will be fatal. State v. Stokes, Coxe, 392. 
 
 41. An inquisition for forcible entry and 
 detainer will be sufficient, although ' the 
 dates are expressed in figures. Coenhoven 
 V. State, Coxe, 258. 
 
 42. An inquisition of forcible entry and 
 detainer which purports to be taken on the 
 oaths or affirmations of certain persons, is 
 defective, unless it states that those who 
 were affirmed had conscientious scruples 
 against taking an oath. State v. Putnam, 
 Coxe, 260. 
 
 43. Under an indictment for a forcible 
 entry and detainer, the defendant may be 
 found guilty of a forcible detainer only. 
 Kline v. Rickert, 8 Cow. 226; Corless v. 
 Anthony, 4 Johns. 198. But where the jury 
 find that the defendant unlawfully, and with 
 a strong hand, detained, it cannot be implied 
 that the entry was also unlawful. State v. 
 Godsey, 13 Ired. 348. 
 
 44. Restitution. In North Carolina, in 
 forcible entry and detainer, a magistrate 
 cannot award restitution, unless the jury find 
 that the complainant had either a freehold 
 or for a term of years. State v. Anders, 8 
 Ired. 15. 
 
 4-5. In South Carolina, the statute of 8 Hen. 
 6, which authorizes justices of the peace, 
 upon inquiry, to give restitution of posses- 
 sion to tenants of any estate of freehold of 
 lands or tenements, entered ujion with force 
 or withheld by force, is in operation. State 
 V. Speirin, 1 Brev. 119.
 
 FORCIBLE TRESPASS. -FORGERY. 
 
 195 
 
 How Committed. 
 
 What Constitutes. 
 
 46. Damages. " In New York, the justice 
 cannot give to the complainant a gross sum, 
 independently of his costs, as compensation 
 for the injury sustained, but only sufficient 
 to reimburse him for his costs, and for other 
 damages arising from the wrongful entry 
 he must resort to his action of trespass. 
 Fitch V. People, IG Johns. 141. 
 
 47. Certiorari. In New York, when pro- 
 ceedings in forcible entry and detainer are 
 brought into the Supreme Court on certio- 
 rari, the court has power to examine them, 
 and to quash them if found irregular or 
 iusufficient. People v. Smith, 24 Barb. 16. 
 
 forcible <Lrc0pa50. 
 
 1. How committed. A forcible tresjSass 
 may be committed by acts which tend to a 
 breach of the peace, without the employment 
 of actual force. State v. Armfield, 5 Ired. 
 207. 
 
 2. When indictable. At common law, 
 an indictment for forcible trespass may be 
 maintained, if the facts charged amount to 
 more than a bare trespass. State v. Toliver, 
 •5 Ired. 452. 
 
 3. To render a forcible trespass the sub- 
 ject of indictment, some one must be in the 
 house, or on the premises, to cause the acts 
 complained of to amount to a breach of the 
 peace, or to have a tendency to provoke it. 
 State V. McCauless, 9 Ired. 375 ; State v. 
 Walker, 10 lb. 234 ; State v. Mills, 2 Dev. 
 420. 
 
 4. A woman with a family, being in the 
 peaceable possession of a dwelling-house and 
 its appurtenances, four persons entered the 
 door yard with hostile feelings and deport- 
 ment, indicating an intention to injure and 
 insult lier, and refused to go away when she 
 ordered them to do so. Held that they were 
 liable to an indictment for a forcible tres- 
 pass. State V. Toliver, 5 Ired. 452. 
 
 5. Indictment. An indictment for forci- 
 ble trespass must allege that it was com- 
 mitted with a strong hand, " main forU^'' 
 which implies greater force than is expressed 
 by the words " ^'^ et nrmis,'''' and the indict- 
 ment must also state who was present. 
 
 State V. Ray, 10 Ired. 89; State v. Walker, 
 10 Ired. 234. 
 
 6. An indictment for any forcible trespass 
 upon a dwelling-house, less than a violent 
 taking or withholding of the possession of 
 it, must allege that the occupier was in the 
 house or actually present. State v. Wiley, 4 
 Dev. & Batt. 192. 
 
 7. An indictment for forcible trespass 
 must charge the actual possession of the 
 prosecutor ; but an indictment which alleged, 
 his legal possession, and that the defendant 
 with strong hand took it from the prosecu- 
 tor, was held sufficient. State v. Mills, 2 
 Dev. 420. 
 
 8. When the name of the couuty is men- 
 tioned in the margin of the indictment, and 
 it is charged, that the dwelling-house against 
 which the forcible trespass is alleged to have 
 been committed was there situate, it will be 
 deemed to refer to the county mentioned in 
 the margin. State v. Armfield, 5 Ired. 207. 
 
 9. An indictment for a forcible trespass 
 in taking away goods, need not use the 
 words against his will ; it is sufficient if 
 words are used which necessarily convey 
 the same meaning. State v. Armfield, 
 siixira. 
 
 10. Evidence. An indictment charging 
 a forcible trespass in taking a slain deer, is 
 not supported by evidence of the forcible 
 taking of the skin of the deer. State v. 
 Hemphill, 3 Dev. & Batt. 109. 
 
 See Trespass. 
 
 JTorgcnj aub Counterfeiting. 
 
 1. What constittttes. 
 
 2. What may be the subject op. 
 
 3. Indictment. 
 
 4. Place op trial. 
 
 5. Evidence. 
 C; Verdict. 
 
 1. What constitutes. 
 1. Definition. Forgery is the false mak- 
 ing, or materially altering, with intent to 
 defraud, any writing which, if genuine, 
 might apparently be of legal efficacy, or 
 the foundation of a legal liability. State v.
 
 190 
 
 FORGERY AND COUNTERFEITING. 
 
 What Constitutes. 
 
 Pierce, 8 Iowa, 231 ; State v. Thompson, 19 
 lb. 399 ; State v. Jolmson, 2G lb. 407 ; Case 
 of Ames, 2 Maine, 365; Com. v. Chandler, 
 Thach. Grim. Cas. 187; Horne v. State, 5 
 Ark. 349; State v. Wooderd, 20 Iowa, 541; 
 State V. Waters, 3 Const. R. 669. And the 
 uttering of such a paper, knowing it to be 
 false, •vvith intent to defraud, is an offense of 
 the same grade. Com. v. Whiting, Thach. 
 Crim. Cas. 588 ; State v. Twitty, 2 Hawks, 
 449. When a genuine instrument is so al- 
 tered, the forgeiy may be charged as consist- 
 ing in the alteration, or the forgery of the 
 entire instrument. People v. Brotherton, 47 
 Cal. 388 ; s. c. 2 Green's Crim. Reps. 444. 
 
 2. Acts which are. The indorsing of 
 the name of another on a negotiable instru- 
 ment, without his authority, is forgery. 
 Powell V. Com. 11 Gratt. 822. And the 
 same is the case of the fraudulent alteration 
 of the date of a receipt, in order to prejudice 
 the rights of another, and enable the party 
 altering it to obtain a double credit for 
 money paid. State v. Kattleraann, 35 Mo. 105. 
 
 3. Where the book-keeper of merchants 
 makes a false entry, with intent to defraud 
 them, it is forgery at common law. Biles v. 
 Com. 32 Penn. St. 529. 
 
 4. Forgery may be committed under the 
 statute of New York, either by the false 
 making of an instrument, or by the making 
 of a material alteration, erasure, or insertion 
 in, or addition to, a true instrument, al- 
 though but in a letter or figure, or by mis- 
 applying a genuine signature, as by writing 
 over it, in whole or in part, an instrument 
 for which it was never intended. The pris- 
 oner was the agent of an insurance com- 
 pany to effect insurance on persons against 
 accidental loss of life or personal injury 
 while traveling by public conveyance, and 
 to that end to fill up the blank policy tickets 
 intrusted to him. With intent to defraud 
 his principal, he stamped the policy ticket 
 with a false date, and issued it that it might 
 be enforced as a policy upon a person who 
 he knew had been accidentally killed while 
 traveling by public conveyance. Held., thiit 
 he was guilty of forgery. People v. Gra- 
 ham, 6 Parker, 135. 
 
 5. Where a person intrusted with bank 
 
 checks, with directions to fill them up to 
 the use of certain persons, inserted in one 
 of the checks the words " cash or bearer," 
 in place of the words " order of," and drew 
 the money on it for his own use, it was held 
 that he was guilty of forgery. State v. 
 Kroeger, 47 Mo. 552. And the same was 
 held where the alteration of a written in- 
 strument consisted in tearing off a condition 
 by which the writing which was non-nego- 
 tiable, was made negotiable. State v. Strat- 
 ton, 27 Iowa, 420. 
 
 6. An indictment for forgery may be 
 maintained for making and issuing a false 
 instrument, requesting persons to whom 
 goods have been sent by the owner to de- 
 liver them to the bearer, the latter having 
 induced the owner so to send the goods by 
 falsely representing that he was directed by 
 those to whom the goods were sent, to buy 
 the same for them. And the indictment 
 mny charge that the forgery was committed 
 with intent to defraud the persons to whom 
 the goods were sent, and to whom the order 
 was directed. Hari'is v. People, 9 Barb. 664. 
 It is forgery within the statute of Tennessee 
 (Code, § 4718), to sign the name of another 
 person to an order for goods, without au- 
 thority, for the fraudulent purpose of get- 
 ting the goods on the credit of such person. 
 Hale V. State, 1 Cold. Tenn. 167; overruling 
 Walton V. State, 6 Yerg. 377. 
 
 7. Coal being consigned to A., of New- 
 York, and carried there, it was claimed by 
 another of the name of A., who lived in the 
 same city, but was not the true consignee, 
 and he, knowing this, obtained an advance 
 of money by indorsing the permit for the 
 delivery of the coal. Held^ forgery, and not 
 obtaining goods by false pretenses. People 
 v. Peacock, 6 Cow. 72. But see Graves v. 
 Am. Exch. Bank, 17 N. Y. 205, where it was 
 doubted whether it was forgery for a person 
 not the payee of a bill of exchange, but 
 bearing the same name, to indorse and trans- 
 fer it, knowing that he was not the person 
 intended as payee. 
 
 8. A person who takes base pieces of coin, 
 having the impression and appearance of 
 real coin, though of different color, and 
 brightens them so as to give them the re-
 
 FORGERY AND COUNTERFEITING. 
 
 197 
 
 What Constitutes. 
 
 semblance of real coin, and render them 
 capable of circulation, is guilty of counter- 
 feiting. Raswick v. Com. 3 Va. Cas. 356. 
 
 9. Where the grantor of land prepared the 
 draft of a deed in which he correctly de- 
 scribed the premises to be conveyed, which 
 having been examined by the grantor, the 
 grantee afterward fraudulently framed a 
 new deed, embracing in the description the 
 grantor's whole farm, and oifered it for exe- 
 cution as the deed before examined, and 
 the grantor executed and delivered the same 
 without examining it, it was held that this 
 was forgery. State v. Shurtliff, 18 Maine, 
 368. 
 
 10. The uttering. An assertion or dec- 
 laration that the forged writing is good, 
 made in the prosecution of a purpose to ob- 
 tain the money mentioned therein, consti- 
 tutes an uttering. Chahoon v. Com. 20 
 Gratt. 733; Sands v. Com. lb. 800. 
 
 11. The bringing of a suit upon forged 
 paper, as counsel, for the purjiose of recov- 
 ering the money jjurporting to be due by 
 suck paper is, in law, an uttering ; and if it 
 be done with knowledge of the forgery and 
 intent to defraud, it is an offense within 
 the statute of Virginia. Chahoon v. Com. 
 supra ; Sands v. Com. lb. 
 
 12. If a forged order be made payable to 
 the defendant, it is not necessary in order to 
 constitute an uttering that there should 
 have been a formal indorsement. A delivery 
 of the order, with the intent to defraud, is 
 sufficient, and a mere failure to comply 
 strictly with the forms of law, cannot be 
 relied on to defeat the charge of criminal 
 intent. People v. Ah Woo, 28 Cal. 205. 
 
 13. Presenting a forged draft or order for 
 money, for payment, although payment is 
 refused and tbe draft returned to the jire- 
 sentor, is an uttering and publishing within 
 the meaning of the statute of Michigan (R. 
 S. ch. 155, § 2). People v. Brigham, 3 
 Mich. 550. 
 
 14. False instrument need not have 
 been received as genuine. To constitute 
 an uttering, it is not necessary that the 
 forged instrument should have actually 
 been received as genuine by the party upon 
 whom the attempt to defraud is made. 
 
 People V. Caton, 25 Mich. 388. On the trial 
 for the forgery of a mortgage, it was proved 
 that the mortgage was put upon record, 
 that it was taken from the register's office 
 by the defendant's daughter, and that after- 
 ward, but before discovery of the forgerj', 
 and without seeing the instrument, the 
 mortgagor made payments upon it, which 
 the defendant indorsed. Held that there 
 was a sufficient uttering. Perkins v. People, 
 37 Mich. 386. Any delivery of a spurious 
 note to another, for value, for the jjurpose 
 of being passed or put into circulation as 
 money, is an uttering within the meaning of 
 the act of Congress of June 30th, 1864 (13 
 Stats, at Large, 331, § 10). U. S. v. Nelson, 
 1 Abb. 135. 
 
 15. The offense of uttering and publish- 
 ing is not complete until the false writing 
 passes into the hands or possession of some 
 person other than the wrong-doer, his agent 
 or servant. People v. Rathbun, 21 Wend. 
 509. It is no defense that the counterfeit 
 bills were passed at a gaming table. Com. 
 V. Percival, Thach. Crim. Cas. 393. 
 
 16. Fraudulent intent. To utter a count- 
 erfeit note, and offer it to a person without 
 the intention to defraud him, is not an of- 
 fense, either at common law or under the 
 statute of Massachusetts of 1804. Com. v. 
 Goodenough, Thach. Crim. Cas. 133. 
 
 17. But although the intention to defraud 
 is of the essence of the crime of forgery, yet 
 it is not essential that any person be actually 
 defrauded, or that any act be done tovrard 
 the attainment of the fi-uits of the crime, 
 other than the making of the instrument, if 
 from the circumstances of the case the jury 
 can fairly infer that it was the intention of 
 the party to utter the forged instrument. 
 Henderson v. State, 14 Texas, 503. 
 
 18. On the trial of an indictment for forg- 
 ing and uttering a deposition used by the 
 prisoner in an action for divorce brought by 
 him, the court was requested to charge that 
 if the defendant believed substantially the 
 deposition, and his object was to obtain an 
 equitable divorce, believing himself entitled 
 thereto, and his sole, object was to relieve 
 himself from the inconvenience and odium 
 of living in society separate from his wife.
 
 198 
 
 FOEGERY AND COUNTERFEITING. 
 
 What Constitutes. 
 
 What may be the Subject of. 
 
 ■without the hope of reconciliation, and did 
 not intend to defraud her of money or prop- 
 erty, or injure her character, he would not 
 be guilty of forgery, though he manufac- 
 tured the deposition and uttered the same. 
 Held properly refused. State v. Kimball, 50 
 Maine, 409. 
 
 19. May be by agent. Forgery may be 
 committed, although the act was not done, 
 either in whole or in part, by the hand of a 
 person charged, but through another, who 
 was an involuntary agent. Com. v. Hill, 11 
 Mass. 136; State v. Shurtliflf, 18 Maine, 368. 
 A person in one county may, by an innocent 
 agent in another county, utter and publish a 
 forged instrument in the latter county so as 
 to be there guilty. Bishop v. State, 30 Ala. 
 34. 
 
 20. Must be by some one in existence. 
 A person cannot be convicted under an in- 
 dictment charging an intent to defraud a 
 person or corporation having no existence. 
 State V. Givens, 5 Ala. 747 ; contra, U. S. v. 
 Turner, 7 Peters, 132; U. S. v. Mitchell, 1 
 Bald. 366. Therefore the execution and 
 delivery of a note, with intent to defraud, 
 signed in the name of a fictitious lii'm, of 
 which the defendant purports to be a mem- 
 ber, is not forgery. Com. v. Baldwin, 11 
 Gray, 197. 
 
 21. Several acts. Having in possession 
 several bank notes of different banks at one 
 time, with intent to pass them, constitutes 
 but one offense, notwithstanding the inten- 
 tion was to defraud the several banks by 
 which they were issued as well as the per- 
 son taking them. State v. Benham, 7 Conn. 
 414. 
 
 22. The act of possessing several counter- 
 feit bank bills at the same time, constitutes 
 one and the same offense. When therefore, 
 a person had been tried and acquitted for 
 having in his i^ossession one of several coun- 
 terfeit bank notes of different banks, it was 
 held that he could not be again tried for 
 having each of the other notes. People v. 
 Van Keuren, 5 Parker, 66. 
 
 23. But where five drafts were forged, 
 each for the same amount, upon the same 
 sheet of paper, at the same time, by the same 
 person, it was held that although the utter- 
 
 ing was one indivisible act, yet that the 
 forging of each draft was a distinct and 
 separate offense. Barton v. State, 23 Wis. 
 
 587. 
 
 2. What may be the sttb-ject of. 
 
 24. Must appear to be the act of an- 
 other. A writing, to be the subject of for- 
 gery, must in general be or purport to be 
 the act of another, or it must at the time be 
 the property of another ; or it must be some 
 writing under which others have acquired 
 some rights or have become liable, and 
 where these rights or liabilities are sought 
 to be affected or changed by the alteration, 
 without their consent. A person cannot 
 alter his own book account before any settle- 
 ment or adjustment of it, so as to make it 
 forgery. State v. Young, 46 New Hamp. 
 266. 
 
 25. A bill of exchange was drawn by the 
 Bank of Ireland, on the Bank of England, 
 to the order of Mrs. A. Haliday, for £43 7s. 
 6<;Z., and, after several intermediate indorse- 
 ments, was indorsed to Chas. Mcintosh & 
 Co., the possession of which was surrepti- 
 tiously obtained by Alex. Heilbonn, the 
 prisoner, a clerk for Mcintosh & Co., who 
 indorsed the bill thus: " Received for Chas. 
 Mcintosh & Co., Alex. Heilbonn, No. 9 
 Vine street. Regent street. No. 73 Alder- 
 man bury ; " whereupon the bill was paid to 
 him. Held that such indorsement did not 
 constitute forgery, though it appeared that 
 Heilbonn had no authority to indorse bills 
 of exchange, or to receive the amounts 
 thereof; and the words "Chas. Mcintosh & 
 Co." were an imitation of the handwriting 
 of a member of the firm, the rest of the in- 
 dorsement being in the usual handwriting 
 of Heilbonn. In re Heilbonn, 1 Parker, 
 429. 
 
 26. Must be calculated to injure. To 
 constitute forgery, the forged instrument 
 must be one which, if genuine, may injure 
 another; and this must appear, either from 
 the description of the instrument, or by the 
 averment of matter aliunde. Where from 
 aught that appears in the indictment, the 
 instrument was a nudum pactum, forgery
 
 FORGERY AND COUNTERFEITING. 
 
 199 
 
 What may be the Subject of. 
 
 cannot be predicated upon it. People v. 
 Tomlinsou, 35 Cal. 503. 
 
 27. An instrument which is invalid on its 
 face cannot be the subject of forgery, be- 
 cause it has no legal tendency to effect a 
 fraud. If a statute authorizes an insti'uraent 
 not known to the common law, and so pre- 
 scribes its form as to render any other form 
 null, forgery cannot be committed by mak- 
 ing it in a form not provided by statute, 
 even though it is so like the genuine as to 
 be likely to deceive most persons. Cunning- 
 ham V. People, UN. Y. Supm. N. S. 455. 
 
 28. Falsely subscribing the name of a wit- 
 ness to a bond which is not required to have 
 a subscribing witness, does not vitiate the 
 bond, and is not forgery. State v. Gherkin, 
 7 Ired. 200. 
 
 29. Where an order for the delivery of 
 goods was accepted and paid, and returned 
 to the drawer, and the date of it afterward 
 altered by him, such alteration was held not 
 to be forgery at common law, although done 
 with an intent to defraud. People v. Fitch, 
 1 Wend. 198. 
 
 30. After notice of execution, and a writ 
 of inquiiy served on the attorney, he altered 
 the figures indicating the day ajapointed for 
 executing the writ, in order to make the 
 notice irregular, and with intent to defraud. 
 Held not forgery, either under the statute of 
 New York or at common law. People v. 
 Cady, 6 Hill, 490. 
 
 31. Although an indictment for forgery 
 may be maintained for altering the words 
 and figures of a bank bill, yet it is doubt- 
 ful, if it could be, for simply altering the 
 marginal emblems or marks. State v. Waters, 
 3 Brev. 507. 
 
 32. Need not be such as that, if genuine, 
 it would be binding. It is not essential 
 that the person in whose name the instru- 
 ment forged purports to be made, should 
 have the legal capacity to make it ; nor that 
 the person to whom it is directed, should be 
 bound to act upon it if genuine, or have a 
 remedy over. The law looks only to the 
 falsity of the instrument, and the fraudu- 
 lent use of it as genuine. People v. Krum- 
 mer, 4 Parker, 217. A request to charge 
 the jury, that " no fraud in law could have 
 
 been committed upon K. at the time of the 
 alleged forgery and uttering, if she was tlic 
 lawful wife of the accused," was held right- 
 ly refused. State v. Kimball, 50 Maine, 409. 
 
 33. The following instruction was held 
 proper: That if the note was fictitious, and 
 the jorisoner knew it, and jjassed it in abso- 
 lute payment of a debt, this would be a 
 passing under the statute, although, at the 
 time of the payment, he might have agreed 
 to take it back, if it should prove not to be 
 genuine. Perdue v. State, 2 Humph. 494. 
 
 34. The ofl^ense of disposing and putting 
 away forged bank notes was held to have 
 been committed, though the person to whom 
 they were disposed was an agent for the 
 bank to detect forgeries, and applied to the 
 prisoner to purchase forged bank notes, and 
 had them delivered to him in order to dis- 
 pose of them. State v. Wilkius, 17 Vt. 151. 
 
 35. Must be likely to deceive. The jury 
 must be satisfied that the resemblance of the 
 forged to the genuine instrument is such as 
 might deceive a person exercising ordinary 
 caution. U. S. v. Morrow, 4 Wash. C. C. 
 
 i oO. 
 
 36 But a bare possibility of imposing on 
 another is sufficient to constitute forgery. 
 State V. Bennett, 19 La. An. 895. It is not 
 necessary that there should be so perfect a 
 resemblance to the genuine handwriting of 
 the party whose name is forged, as would 
 impose on persons having particular knowl- 
 edge of the handwriting of such party. Nor 
 is it necessary that the officers of the bank 
 upon which a check purports to be drawn 
 would have probably been misled and de- 
 ceived by it. Com. v. Stephenson, 11 Cush. 
 481. 
 
 37. Where there is a bank of the same 
 name in two different cities, one of which is 
 insolvent and the other good, erasing the 
 name of the city on a note of the former 
 bank, and putting in its place the name of 
 the latter city, is forgery, although the name 
 was pasted over the other name in such a 
 way that it might have been detected by 
 close inspection. State v. Robinson, 1 Ilarr. 
 507. 
 
 38. It does not constitute forgery to ob- 
 tain by false and fraudulent representations
 
 200 
 
 FORGERY AND COUNTERFEITING. 
 
 What may be the Subject of. 
 
 the consent of tlie surety to a bond to a ma- 
 terial alteration made after the latter had 
 signed the bond, although the suretj^ quali- 
 fied his consent by making it depend upon 
 the truth of the defendant's representations. 
 State V. Flanders, 38 New Hamp. 324. 
 
 39. To constitute the forgery of an order 
 for the delivery of goods within the statute 
 of Georgia, the person whose name is forged 
 need not have goods in the hands of the 
 drawee. Haskius v. State, 11 Ga. 92. 
 
 40. Must be such that it would have 
 been good if genuine. An instrument to 
 be the subject of an indictment for forgery 
 must either appear on its face to be one 
 which if true would possess some legal 
 validity, or if it do not so appear on the 
 fiice of the instrument facts must be averred 
 which will enable the court to see that if 
 it were genuine it would jDossess such valid- 
 ity. State V. Smith, 8 Yerg. 150; People 
 V. Harrison, 8 Barb. 560 ; People v. Shall, 9 
 Cow. 778; U. S. v. Mitchell, 11 Bald. 366, 
 contra. Where, therefore, an indictment for 
 the forgery of " an accountable receipt for 
 personal property, viz., an elevator ticket 
 for wheat," did not allege that the person 
 whose name was signed to the receipt was 
 an agent of the elevator company, or show 
 any connection between him and the com- 
 pany, it was held insufficient. State v. 
 Wheeler, 19 Minn. 98. 
 
 41. Forgery cannot be committed by 
 making or altering a written instrument 
 which does not on its face import any value 
 or obligation. Howell v. State, 37 Texas, 
 591. Therefore, the forgery of a writing 
 purporting to contain a promise to pay in 
 labor, without consideration, is not indicta- 
 ble. People V. Shall, 9 Cow. 778. So 
 likewise the counterfeiting of foreign coin 
 not made current by law in the United 
 States is not an indictable offense. U. S. v. 
 Gardiner, 10 Pet. 618. 
 
 42. An indictment cannot be maintained 
 for forging a certificate or acknowledgment 
 of a deed when the certificate does not state 
 that the grantor acknowledged the execu- 
 tion of the conveyance. Peoj^le v. Harrison, 
 8 Barb. 560. 
 
 43. A writing which, if genuine, has no 
 
 legal validity, but is a mere attempt to re- 
 ceive courtesies on a promise of no Ijinding 
 obligation to reciprocate them, cannot be 
 the subject of forgery. Waterman v. People, 
 67 111. 91. Therefore, a false letter of intro- 
 duction requesting the person to whom it is 
 addressed to let the bearer have money, is 
 not the subject of forgery either at common 
 law or under the statute of Virginia. 
 Foulke's Case, 2 Rob. 836. 
 
 44. Where an indictment alleged that the 
 defendant, contriving and intending to de- 
 ceive one A., and to induce him to employ 
 the defendant and to pay him large wages, 
 exhibited and delivered to the said A. a 
 certain pretended certificate of good char- 
 acter, it was held that it was not forgery. 
 Com. V. Chandler, Thach. Crim. Cas. 187. 
 
 45. A writing which states that certain 
 persons are solvent and able to pay a note, 
 to which their names appear as makers, 
 is not such a writing as may be the subject 
 of forgery under the statute of Alabama of 
 1836. State v. Givens, 5 Ala. 747. 
 
 46. Imitation of instrument having no 
 validity. Although a writing invalid on 
 its face cannot be the subject of forgery, yet 
 where the invalidity is to be made out by 
 proof of some extrinsic fact, the instrument 
 if good on its face, may be capable of eflect- 
 ing a fraud, and the pnrty making the same 
 may be punished. State v. Piet-ce, 8 Iowa, 
 231; State v. Johnson, 26 lb. 407. 
 
 47. If the imitation be calculated to im- 
 pose upon jiersons of ordinary observation, 
 and the instrument be prima facie fitted to 
 pass as a true one, it will be the subject of 
 forgery, although the imitation be of a bank 
 bill of a denomination which the bank did 
 not pass. State v. Carr, 5 New Hamp. 367 ; 
 Com. V. Smith, 7 Pick. 137. And see U. S. 
 V. Turner, 7 Pet. 132. In New Jersey, it 
 was held indictable to utter and publish a 
 forged or counterfeit bank note of another 
 State for two dollars, although the passing 
 of any bank note under five dollars was pro- 
 hibited by statute. State v. Hart, 2 Harr. 
 327. 
 
 48. A bail bond which has been altered in 
 a material part may be the subject of a for- 
 gery, notwithstanding some doubts as to the
 
 FOEGEEY AND COUNTERFEITING. 
 
 201 
 
 What may be the Subject of. 
 
 validity of the bond arising from the re- 
 citals in the condition. Com. v. Linton, 2 
 Va. Cas. 476. 
 
 49. Printed instrument. Forgery may 
 be committed by counterfeiting an insti'U- 
 ment wholly printed or engraved, and on 
 which there is no written signature jierson- 
 ally made by those to be bound. Com. v. 
 Ray, 3 Gray, 441. The statute of New 
 York against forgery includes not only 
 written instruments, but also such as are 
 engraved or j^riuted, being or purporting to 
 be the act of another, by the forging of 
 which any person " may be affecterJ, bound 
 or in any way injured in his person or prop- 
 erty." People V. Ehoner, 4 Parker, 166. 
 
 50. Instrument without address. A 
 written instrument, to be the subject of for- 
 gery under the statute of New York, need 
 not be addressed to any one. Noakes v. 
 People, 25 N. Y. 380. 
 
 51. Revenue stamp. The making of a 
 forged instrument with the criminal intent 
 is complete without the affixing of the prop- 
 er internal revenue stamp. Hortou v. State, 
 32 Texas, 79; State v. Young, 47 New 
 Hamp. 402. The defendant was indicted 
 for " uttering and publishing as true a false 
 and forged promissory note for the payment 
 of money, knowing the same to be false and 
 forged, with intent to injure and defraud." 
 Held that the prosecution might be sus- 
 tained notwithstanding the note never 
 had a revenue stamp attached to it. State 
 Y. Mott, 16 Minn. 472. But where an in- 
 dictment for forging a draft set out the 
 draft in full, and it did not appear that there 
 was any stamp on the draft, it was held on 
 motion in arrest of judgment that a convic- 
 tion could not be sustained. John v. State, 
 23 Wis. 504. 
 
 52. Writing made on Sunday. A forged 
 writing purporting to have been made on 
 Sunday may notwitlistanding be the basis of 
 a prosecution for forgery, as it is competent 
 to show that the date is false, and that the 
 writing was in fact made the day previous. 
 Van Sickle v. People, 2!) Mich. Gl. 
 
 53. Deed of land in another State. 
 Making a false deed witiiin the State of New 
 York, for lands lying in another State or 
 
 People v. Flanders, 18 
 
 territory, is forgery. 
 Johns. 163. 
 
 5i. Instrument for counterfeiting coin. 
 
 In Massachusetts, an indictment may be 
 maintained under the statute (R. S. ch. 127, 
 § 18), for knowingly having in possession an 
 instrument adapted and designed for making 
 one side only of a counterfeit coin, with 
 intent to use the same in making such coin. 
 Com. V. Kent, 6 Mete. 221. 
 
 55. Note dr order. The following instru- 
 ment: "Due J. F. one dollar on settle- 
 ment this day," is the forgery of a note 
 for the payment of money within the statute 
 of New York. People v. Finch, 5 Johns. 236. 
 But the following: "Pay to A. or bearer, 
 1500 dollars in B.'s bills or yours," is not 
 a forgery of an order for the payment of 
 money or the delivery of goods. People v. 
 Farrington, 14 Johns. 347. A false writing 
 in these words: " Mr. S. — Sir, Let the bearer 
 trade 13 dollars and 25 cents, and you will 
 oblige," was held to be the forgery of an or- 
 der for the delivery of goods. People v. 
 Shaw, 5 Johns. 236. 
 
 56. An order for the delivery of goods may 
 be the subject of forgery, if it be of such a 
 character that another person can by the use 
 of it be deprived of property, although not 
 on its face addressed to any one. People v. 
 Noakes, 5 Parker, 291. An order in the fol- 
 lowing form : " Mr. A. — Sir, deliver to my 
 son, one pair of walking shoes, and charge 
 the same to me. Yours, B.," is an order for 
 the delivery of goods within the statute of 
 Massachusetts, though B. have no goods in 
 the drawee's hands. Com. v. Fisher, 17 
 Mass. 46. 
 
 57. Counterfeiting a railway pass is forgery 
 at common law. Com. v. Ayer, 3 Cush. 150. 
 A county warrant may be the subject of 
 forgery, under the statute of Missouri. 
 State V. Fenley, 18 Mo. 445. An acceptance 
 of an order for the delivery of goods may 
 be the subject of forgery. Com. v. Ayer, 
 mqira. 
 
 58. A common receipt for money in full 
 of all demands is a discharge for money 
 within a statute prescribing the punislmient 
 for forging " an order, acquittance, or dis-
 
 202 
 
 FORGERY AND COUNTERFEITING. 
 
 What may be the Subject of. 
 
 Indictment, 
 
 charge for money or otlier property.'' Com. 
 V. Talbot, 3 Allen, IGl. 
 
 59. A forged instrumeut was as follows : 
 "Wen. 19th, Mr. Davis, pleas let the boy 
 have $6,00 dolers for me. B. W. Earl." 
 Held, an order for the payment of money 
 ■\nthin the statute of Ohio. Evans v. State, 
 8 Ohio, 196. 
 
 60. The following order was held to be 
 the subject of forgery, although it expressed 
 no consideration: " Mr. A., charge B.'s ac- 
 count to us. C. D." State v. Humphreys, 
 10 Humph. 442. 
 
 61. An order as follows; "Messrs. D. & 
 D., please to let the bearer trade ten dollars 
 out of your store and oblige, yours, &c.," 
 was held a forgery within the statute of Con- 
 necticut. State v. Cooper, 5 Conn. 260. 
 
 62. In North Carolina, to sustain an in- 
 dictment for forging an order to deliver 
 goods, there must have been a drawer, a 
 drawee who was bound to deliver the goods, 
 and a person to whom the goods were to be 
 delivered. State v. Lamb, 65 N. C. 419. 
 
 63. In South Carolina, a forged note for 
 the delivery of goods was held to be within 
 the act of 1736, although it was in the form 
 of a request, and did not pretend that the 
 person whose name was forged had a right 
 to make such an order, or that the person 
 to whom it was directed was bound to obey 
 it. State V. Holley, 1 Brev. 35. 
 
 84. In Virginia, on the trial of an indict- 
 ment for passing the counterfeit check, or 
 order of a president of a branch of the 
 United States bank, on the cashier of the 
 bank, payable to A., or order, and indorsed 
 by A. to bearer, it was held that whether or 
 not the charter of the Bank of the United 
 States was constitutional, and whether or 
 not the charter authorized the issue of such 
 checks or orders, the offense was felony 
 within the meaning of the statute (1 Rev, 
 Code, c, 154, § 4). Henilrick's case, 8 Leigh, 
 707. 
 
 65. In Illinois, under the 73d section of 
 the Criminal Code, counterfeiting the drafts 
 of canal commissioners is forgery; and so 
 likewise is (under the 77th section), the 
 passing of counterfeit checks or drafts of 
 the commissioners, with an intent to 
 
 defraud any person or body politic or 
 corporate, knowing the same to be false and 
 counterfeited. Crafts v. State, 2 Scam. 442. 
 
 66. Passing a counterfeit United States 
 treasury note as genuine, knowing it to be 
 false, is an indictable cheat at common law. 
 In re Truman, 44 Mo. 181. 
 
 67. Indorsements. In New York, the 
 uttering and publishing of a promissory note 
 with forged indorsements upon it, was held 
 forgery within the statute, although the 
 passing of the note was accompanied with 
 communications which would have exoner- 
 ated the indorsers, if the indorsements had 
 been genuine. People v. Rathbuu, 21 
 Wend. 509. 
 
 68. The forgery of an indorsement of a 
 promissory note, is within the prohibition 
 of the crimes act of Ohio. Poage v. State, 
 3 Ohio, N. S. 229. 
 
 69. An indorsement on a note, of a partial 
 payment by the maker, without signature, 
 in the presence and by the direction of the 
 payee, is a receipt, the alteration of which 
 by the payee is forgery. Kegg v. State, 10 
 Ohio, 75. 
 
 70. Erasing or obliterating a release or 
 acquittance on the back of a note or bond 
 is not forgery under the statute of North 
 Carolina. State v. Thornburgh, 6 Ired. 79. 
 And in Arkansas, it was held that erasing 
 an indorsement from a promissory note, was 
 not forgery but only a misdemeanor. State 
 v. McLean, 1 Ark. 311. 
 
 3. Indictment. 
 
 71. Must show the forgery of a valid 
 instrument. The indictment must show 
 the forgery of an instrument which appears 
 on its face naturally calculated to iiave 
 some effect, or, if it be not sufficient for 
 that purpose, extrinsic matter must be 
 averred so that the court may judicially 
 see its fraudulent tendency. Reed v. State, 
 28 Ind, 396. It is sufficient, if it ajjpears 
 on the face of the indictment, by proper 
 averments, that the instrument forged is of 
 the kind prohibited by statute, or if it can 
 be collected from the forged writing as set 
 out in the indictment. Com. v. Castles, 9
 
 FORGERY AND COUNTERFEITING, 
 
 2oa 
 
 Indictment. 
 
 Gray, 123; State v. Wheeler, 19 Min. 98; 
 s. c. 1 Green's Crim. Reps. 541. 
 
 72. An indictment for forging a judge's 
 certificate to a fee bill is good, which alleges 
 that the defendant forged the certificate and 
 " caused and procured the same to be 
 forged," and that the forged instrument 
 purported to be the certificate of " A., judge 
 of the ninth judicial circuit," without alleg- 
 ing that A. was judge of that circuit. But 
 if the indictment omit to state in what 
 county or circuit the fee bill accrued, it 
 will be fatally defective. State v. Maupin, 
 57 Mo. 205. 
 
 73. Need not allege validity of instru- 
 ment. An indictment for forgery need not 
 charge the legal validity of the instrument, 
 unless from its terms it may or may not be 
 valid. State v. Dourdon, 2 Dev. 443. 
 
 74. An indictment which charges that the 
 defendant falsely, fraudulently and felo- 
 niously forged and counterfeited a certain 
 deed, purporting to be the act of one T. K., 
 by which a right or interest in real property 
 purported to be transferred and conveyed, 
 is sufficient without alleging that the in- 
 strument was under seal. Paige v. People, 
 6 Parker, 683. 
 
 75. An indictment for transmitting forged 
 papers to the pension office, in support of a 
 claim for bounty land, need not show that 
 the papers contained all the facts necessary 
 to entitle the party to the bounty land. 
 U. S. V. Wilcox, 4 Blatch. 385. 
 
 76. Instrument need not be named. 
 The indictment need not give the instru- 
 ments forged a name, their character being 
 sufficiently shown by the copies set out. 
 U. S. V. Trout, 4 Bis. 105 ; U. S. v. Williams, 
 lb. 302. Charging that the accused falsely 
 made, forged, and counterfeited an instru- 
 ment within the statute, with intent to 
 defraud, setting forth tlie instrument in licec 
 verha is a suflicient description of the cir- 
 cumstances constituting the oftense. Rose- 
 krans v. People, 5 N. Y. Supm. N. S. 4G7. 
 
 77. Instrument should be set out. An 
 indictment lor forgery should set out the 
 instrument alleged to have been forged, if 
 in existence and under the control of the 
 jirosecutor, or state the reason for the omis- 
 
 sion. Hooper v. State, 8 Humph. 93; State 
 V. Parker, 1 Chip. 298; Coxdale v. State, 1 
 Head, 139 ; State v. Jones, 1 McMuUan, 236 ; 
 U. S. V. Britton, 2 Mason, 464; People v. 
 Kingsley, 2 Cow. 522; State v. Potts, 4 
 Halst. 26 ; State v. Bonney, 34 Maine, 223 ; 
 State V. Witham, 47 lb. 165. Where a gen- 
 uine instrument is altered, the forgery may 
 be charged as constituted by the alteration, 
 or the forgery of the entire instrument may 
 be charged. State v. Weaver, 13 Ired. 491. 
 In such case, the indictment should recite 
 the instrument in its altered state, according 
 to its tenor, in words and figures. State v. 
 Bryant, 17 New Hamp. 323. 
 
 78. Where an indictment for forgery al- 
 leges that the writing is " in the words and 
 figures following," a strict recital is neces- 
 sary. Com. V. Bailey, 1 Mass. 62; Com. v. 
 Stevens, lb. 203. AVhere the indictment, in 
 setting out the instrument, alleged that it 
 was of the "purport and efi"ect following," 
 instead of using the word " tenor," it was 
 held suflacient. State v. Johnson, 26 Iowa, 
 407. 
 
 79. An indictment for the possession of 
 forged United States treasury notes and 
 postal currency, with intent to pass them, 
 must set out exact copies of them, or state 
 some good reason for not doing so ; and the 
 number of the forged notes should be men- 
 tioned. U. S. V. Fisler, 4 Bis. 59. 
 
 80. Where an indictment for having in 
 possession counterfeit bank bills, with in- 
 tent to defraud, described them as thirteen 
 false, &c., bank bills, numbered 1566, 1559, 
 1570, purporting to have been issued by a 
 corporation duly authorized for that pur- 
 pose by the State of Illinois, to wit : Pur- 
 porting to be bank bills of the Bank of 
 Belleville, State of Illinois, each of said 
 bank bills of the denomination of two dol- 
 lars, it was held not suiRcient. State v. 
 Callendine, 8 Iowa, 288. 
 
 81. An indictment is not sufficient which 
 alleges that the defendant forged a certain 
 writing purporting to be a bond with a 
 condition thereto annexed, signed, sealed, 
 and executed by A., B. and C, and dated 
 Jan. 8th, 1853, with intent to injure and 
 defraud the said A., B. and C, and averring
 
 204 
 
 FOEGERY AND COUNTERFEITING. 
 
 Indictment. 
 
 that the bond could not be more particularly 
 described, because it was in the possession 
 ■of the defendant. State v. Briggs, 34 Vt. 
 501. 
 
 82. Foreign language. Although where 
 an instrument alleged to have been forged, 
 is written in a foreign language, it is better 
 to set out the instrument in the indictment 
 in the language in which it is written, yet it 
 is sufficient to set out a correct translation 
 of it. People v. Ah Woo, 28 Cal. 205. If 
 set out in full, a technical designation of its 
 legal character is immaterial. lb. 
 
 83. Promissory note. An indictment 
 ■charging the forgery of a promissory note 
 payable to the maker's own order, must 
 allege that the note was indorsed by the 
 maker. Com. v. Dallinger, 118 Mass. 439. 
 
 84. The indictment will be sufficient, 
 -although it does not allege that the note 
 purported to be signed by the person whose 
 name was forged, if it set forth the note, 
 giving the name of the maker as part of the 
 description. People v. Badgley, 16 Wend. 
 53. 
 
 85. Indorsements on note. An indict- 
 ment for forging a promissory note need not 
 allude to the indorsement of the note, though 
 it be forged, it being no part of the note. 
 Com. V. Ward, 2 Mass. 397 ; Buckland's Case, 
 8 Leigh, 732; Perkins v. Com. 7 Gratt. 651 ; 
 Hess V. State, 5 Ohio, 5 ; Miller v. People, 52 
 N. Y. 304. 
 
 86. An indictment which charges the 
 forgery of a person's name as an indorse- 
 ment will be good, although the simulated 
 liability be not of technical indorser. Powell 
 V. Com. 11 Gratt. 822. 
 
 87. An indictment charging that the de- 
 fendant forged an indorsement upon a 
 promissory note is good, although the writ- 
 ing became a promissory note only by 
 means of such indorsement ; the allegation 
 being taken to have reference to the charac- 
 ter of the instrument when indorsed. Com. 
 V. Dallinger, 118 Mass. 439. 
 
 88. Bond. An indictment is good which 
 charges the forging of a " a certain bond," in- 
 stead of a certain paper writing purporting 
 to be a bond. State v. Gardiner, 1 Ired. 27. 
 
 89. Deed. An indictment sufficiently 
 
 charges the uttering and publishing of a 
 forged deed by alleging that the defendant 
 caused it to be recorded in the office of the 
 clerk of the county as genuine and true. 
 And the same as to the setting up of the 
 forged instrument as genuine and true in a 
 suit in which the prisoner was plaintiff, and 
 the party intended to be defrauded was 
 defendant. Paige v. Peojole, 6 Parker, 683. 
 
 90. Mortgage. An indictment charging 
 the forgery or alteration of a mortgage, with 
 intent to defraud the mortgagor, must allege 
 that there are in fact such lands as are de- 
 scribed in the instrument, and that the 
 mortgagor had an interest or light in the 
 same. People v. Wright, 9 Wend. 193. 
 
 91. Bank bills. An indictment for utter- 
 ing a counterfeit bank bill may describe the 
 bill as a promissory note. Com. v. Carey, 
 2 Pick. 47. In Virginia, under the statute 
 of 1799, a forged bank note of another 
 State may be described as a promissory note 
 for the payment of money. Com. v. Hens- 
 ley, 2 Va. Cas. 149. 
 
 92. An indictment for passing counterfeit 
 bank notes is good which describes them as 
 " forged and counterfeit," those words being 
 synonymous, and it is proper to describe 
 them as promissory notes. Hobbs v. State, 
 9 Mo. 845 ; Brown v. Com. 8 Mass. 59. 
 
 93. An indictment for offering a counter- 
 feit bank bill need only set out the material 
 parts of the bill, and allege that the bank is 
 established at a place wnthin the United 
 States, without stating the county or State 
 within which it is situated. State v. Carr, 
 5 N. H. 367. 
 
 94. It is not a valid objection to an in- 
 dictment for forgery, that the last of the five 
 notes described is alleged to be different 
 from the others, while in its recital it cor- 
 responds with two of those previously 
 described ; the fact that it is another and 
 different bank bill, though of similar form 
 with the preceding, satisfying the terms of 
 the allegation. Com. v. Thomas, 10 Gray, 
 483. 
 
 95. An indictment for forging bank bills, 
 with intent to pass the same as true and 
 genuine, need not allege that the bills are
 
 FOEGERY AND COUNTERFEITING. 
 
 20;> 
 
 Indictment. 
 
 for the payment of money. Townsend v. 
 People, 3 Scam. 32G. 
 
 96. In Alabama, an indictment which 
 charges the forging or counterfeiting of "an 
 instrument purporting to be a bank bill for 
 fifty dollars, purporting to be issued by the 
 Georgia Railroad and Banking Company, an 
 incorporated bank of the State of Georgia," 
 is sufficient under the statute. Johnson v. 
 State, 35 Ala. 370. 
 
 97. The first count of an indictment 
 charged the defendant with having in his 
 possession counterfeit blanks in the form 
 and similitude of bank bills made for the 
 payment of money. The second count 
 charged that they were in the form and simil- 
 itude for the payment of property. Held 
 but a different description of the same 
 offense, the bills being each for the payment 
 five dollars, or its equivalent in currency; 
 and that there was nothing repugnant in 
 stating that the unfinished bills had the form 
 and similitude of those that were finished. 
 People V. Ah Sam, 41 Cal. 645. 
 
 98. In New York, an indictment for having 
 in possession a counterfeit bank note, with 
 the intention of passing it, need not set 
 forth the note, or state why it was not done. 
 Tomlinson v. People, 5 Parker, 313. The 
 contrary was held in Massachusetts, under 
 the statute of that State (ch. 120, § 2). Com. 
 v. Houghton, 8 Mass. 107. 
 
 99. In Alabama, in an indictment for the 
 forgery of a counterfeit bank bill under the 
 Code (§ 3154), it is not necessary to allege 
 that the bank bill was issued to circulate as 
 money, or to set out the bill according to its 
 tenor. Bostick v. State, 24 Ala. 266. 
 
 100. An indictment for having counter- 
 feit bank notes in possession, and for selling 
 them, need not allege that the sale was for 
 a consideration, or to the injury of any one, 
 or that the notes were indorsed. Iless v. 
 State, 5 Ohio, 5. 
 
 101. Where, in an indictment for forging 
 bank notes, the notes were attached to the 
 indictment instead of being set forth in it, 
 it was iield that the irregularity was cured 
 after verdict by the statute of jeofails. Com. 
 v. Ervin, 2 Va. Cas. 337. 
 
 102. Marginal emblems. An indictment 
 
 for uttering as true, a counterfeit bank bill, 
 need not describe the number and check 
 letter, or the words and figures in the margin. 
 Com. V. Bailey, 1 Mass. 62 ; Com. v. Stevens, 
 lb. 203 ; State v. Carr, 5 New Hamp. 367 ; 
 People V. Franklin, 3 Johns. Cas. 299; Com. 
 V. Taylor, 5 Cush. 605; State v. Flye, 2G 
 Maine, 312; Hampton v. State, 8 Ind. 336. 
 
 103. On a trial for passing a counterfeit 
 bank bill, the bill given in evidence was 
 objected to on ihe ground that it contained 
 the word "three" six times on the margin 
 at the top of the bill, and also on the same 
 bill close upon the margin, the words and 
 figures "Capital stock $100,000, secured by 
 pledge of $100,000 Pennsylvania 6 per cent, 
 bonds," which was omitted in the descrip- 
 tion of the bill in the indictment. Held 
 that there was no variance. State v. Wheeler, 
 35 Vt. 261. 
 
 104. But where an indictment for uttering^ 
 and publishing as true, with intent to de- 
 fraud, a counterfeit bank bill, omitted the 
 words " State of Maine " in the upper 
 margin of the bill, it was held that the 
 variance was fatal. Com. v. Wilson, 2 Gray, 
 70. 
 
 105. In setting out a copy of a forged 
 bank bill in an indictment, it is not im- 
 proper to include the names and place of 
 residence of the engravers as the same 
 appear upon the margin of the bill. Thomp- 
 son V. State, 9 Ohio, N. S. 354. 
 
 108. Existence of bank. Where an in- 
 dictment for forging a bank bill charges a 
 design to defraud, the existence of the bank 
 need not be alleged. Com. v. Carey, 2 Pick. 
 47. But the contrary was held in Tennessee 
 as to an indictment under the statute (of 
 1829, ch. 23), for passing counterfeit bank 
 bills, or for keeping and concealing them. 
 Fergus v. State, 6 Yerg. 345. 
 
 107. Incorporation of bank. An indict- 
 ment for uttering a counterfeit bank bill 
 must allege that the bank was incorporated 
 by law. Kennedy v. Com. 2 Mete. Ky. 36 ; 
 contra, State v. Hart, 2 Harr. 327; U. S. v. 
 Williams, 4 Bis. 302. 
 
 108. In Massachusetts, it has been held 
 that an indictment for uttering and passing 
 as true a counterfeit bank bill of the City
 
 206 
 
 FOEGERY AND COUNTERFEITING. 
 
 Indictment. 
 
 Bank must allege that it was tlie counterfeit 
 of a bill of an incorporated banking com- 
 pany of the State, and that the averment 
 that the City Bank was "a banking com- 
 pany established by said commonwealth," 
 is not sufficient. Cora. v. Simonds, 11 Gray, 
 306. 
 
 103. An indictment which alleged that 
 the defendant feloniously tendered in pay- 
 ment, to a person named, an altered bank 
 bill "of the Dayton Bank, a bank created 
 by the law of the State of Ohio, the de- 
 fendant then and there well knowing the 
 same to be altered, with the felonious in- 
 tent," etc., was held bad for uncertainty. 
 Mount V. Com. 1 Duvall, Ky. 90. 
 
 110. In California, it has been held that 
 an indictment for having in jDossession 
 counterfeit bank bills need not charge that 
 the banking house whose bills were imitated 
 was an incorporated company, unless the 
 existence of the corporation is made an 
 issue, it being equally an offense whether the 
 company be actually incorporated or not, 
 providing it is acting as a corporation, and 
 issues bank bills which are current. People 
 V. Ah Sam, 41 Cal. 645. 
 
 111. In Virginia, an indictment for pass- 
 ing a counterfeit bank bill was held suffi- 
 cient under the statute (1 Rev. Code, ch. 
 154, § 4), although it did not allege that the 
 bank was chartered, or that there was any 
 such bank, or that the note was passed " to 
 the prejudice of another's rights," or "for 
 the prisoner's own benefit, or for the benefit 
 of another." Murray's case, 5 Leigh, 730. 
 
 112. Non-existence of bank. An indict- 
 ment under a statute which punishes the 
 fraudulent passing of any note purporting 
 to be a bank note, when no such bank exists, 
 must charge : 1st. That there was no such 
 bank in existence as that by which such note 
 purports to have been issued. 2d. That the 
 defendant, at the time of the passage of 
 such pretended bank note, knew that there 
 was no such bank in existence ; and 3d. That 
 it was passed with intent to defraud the 
 person to whom it was passed. Williams v. 
 State, 9 Humph. 80. 
 
 113. Having in possession instruments 
 for counterfeiting. In Arkansas, an in- 
 
 dictment under the statute (Dig. p. 354, ch. 
 51, § 3), for the fraudulent use of an instru- 
 ment intended for the counterfeiting of coin, 
 the manner of the use must be alleged, as 
 that the defendant used it in making and 
 counterfeiting certain money (specifying it) 
 current in the State. Bell v. State, 5 Eng. 
 536. 
 
 114. In Virginia, where an indictment 
 charged that the prisoner ' ' did knowingly 
 have in his custody, without lawful author- 
 ity or excuse, one die or instrument for the 
 purpose of producing and impressing the 
 stamp and similitude of the current silver 
 coin called a half dollar," without otherwise 
 describing the die or instrument, was held 
 insufficient. Scott's case, 1 Rob. 695. 
 
 115. An indictment for knowingly having 
 in possession instruments adapted and de- 
 signed for making counterfeit coin, to wit, 
 Mexican dollars, with intent to use the 
 same, need not state that the defendant was 
 not employed in the Mint of the United 
 States. Harlan v. People, 1 Doug. 207. 
 And the offense may be charged to have 
 been committed against the sovereignty of 
 the people of the State instead of the United 
 States. lb. 
 
 116. Counterfeit coin. The indictment 
 need not allege the place of coinage, or the 
 materials of which the false coin is made. 
 Com. V. Stearns, 10 Mete. 256 ; State v. Grif- 
 fin, 18 Vt. 198. It is sufficient to describe 
 the counterfeit coin as dollars, whether they 
 be coin of the United States, or of Spain or 
 Mexico. Peck v. State, 2 Humph. 78. 
 
 117. In Arkansas, an indictment under 
 the statute against passing base or adulter- 
 ated coin, was held good, which charged 
 that the defendant passed one piece of base 
 and adulterated coin. Gabe v. State, 1 
 Eng. 519. 
 
 118. Bank check. A bank check may be 
 described as an order for money, or as a bill 
 of exchange. An indorsement on a bank 
 check, that it is good for a specified sum, 
 signed by the cashier or teller, may be de- 
 scribed as an acceptance of an order or bill. 
 State V. Morton, 27 Vt. 310. An indictment 
 for forging a check on a bank, is sufficient, 
 although the drawer of the forged check
 
 FORGERY AND COUNTERFEITmO. 
 
 207 
 
 Indictment. 
 
 was a fictitious person. Thompson v. State, 
 49 Ala. 16. 
 
 119. Order. An order for the payment 
 of money drawn by one in his own favor on 
 himself, and by himself accepted and in- 
 dorsed, may be described as a bill of ex- 
 change. Com. V. Butterick, 100 Mass. 12. 
 
 120. An indictment which describes the 
 forged instrument as a " warrant or order, " 
 is not bad as charging the oifense disjunc- 
 tively. State V. HoUey, 1 Brev. 35. The 
 words warrant and order, describing the in- 
 strument forged, are the same as warrant or 
 order. State v. Jones, 1 McMullan, 336. 
 
 121. An indictment for uttering a forged 
 order of a school district, purporting to be 
 signed by the clerk and director of the dis- 
 trict, and to be addressed to the treasurer 
 of the district, must allege that the forged 
 order purported to be the order of a corpo- 
 ration duly authorized to issue it. Snow v. 
 State, 14 Wis. 479. 
 
 122. A written instrument purporting to 
 be an order drawn by " Sister Adeline on 
 George Battiste, for nine dollars," sufiicient- 
 ly describes the instrument alleged to have 
 been forged. McGuire v. State, 37 Ala. 161. 
 An indictment alleged the forgery of a 
 writing which purported to be an order 
 drawn by one Tristram Tupper, and charged 
 that the defendant made it with the inten- 
 tion to defraud Tristram Tupper. The in- 
 dictment set out was signed T. Tupper. 
 Held that the variance was not material. 
 State V. Jones, 1 McMullan, 236. 
 
 123. County warrant. An indictment for 
 altering or forging a county warrant is suffi- 
 cient which alleges that the defendant false- 
 ly altered and forged the warrant, «fcc., in- 
 tending to defraud, setting forth the war- 
 rant, without charging, in the words of the 
 statute, that it was an instrument or writing 
 being, or purporting to be, tlie act of anoth- 
 er, whereby a pecuniary demand or obliga- 
 tion was, or purported to be, transferred, 
 created, &c., or by which rights of property 
 were, or purported to be, transferred, or in 
 any manner affected. State v. Fenly, 18 
 Mo. 445, Scott, J., dissentiiKj. 
 
 124. Power of attorney. An information 
 for uttering a forged power of attorney is 
 
 sufficient, although it only charges the for- 
 gery of the acknowledgment and cleik's 
 certificate. People v. Marion, 29 Mich. 31. 
 
 125. Party injured. An indictment for 
 passing counterfeit money, must state the 
 name of the person to whom it was passed, 
 with certainty when known, and if not 
 known, it should so state. Buckley v. State, 
 2 Greene (Iowa), 162. If the indictment 
 allege that counterfeit money was passed to 
 persons to the jury unknown, Avhen the 
 persons are known, the allegation will be 
 improper, and ground for a new trial. Much 
 less can an indictment be sustained when it 
 names the wrong person to Avhom the money 
 was passed. Rouse v. State, 4 Ga. 136. 
 
 126. An indictment which charged that a 
 written order was forged and uttered to de- 
 fraud the Meriden Cutlery Company, was 
 held sufficient, even though in fact there 
 might not be such a company ; the averment 
 being sufficiently broad to reach the indi- 
 vidual members of the concern, or its agent, 
 or the persons whose names were falsely 
 signed to the order. ISToakes v. People, 25 
 N. Y. 380; s. c. 5 Parker, 291. 
 
 127. An indictment for forgery averred 
 that the instrument forged purported to be 
 the act of another, to wit, of "The Trav- 
 eler's Insurance Company of Hartford, Con- 
 necticut," and that the intent was to defraud 
 " The Traveler's Insurance Company of Hart- 
 ford, Connecticut, which was then and there 
 a corporation duly organized," &c. Held 
 unobjectionable, the artificial person being 
 described by its corporate name, with the 
 addition of the place in which it was cre- 
 ated. People V. Graham, 6 Parker, 135. 
 
 128. Where the indictment charged the 
 defendant with forging a check, drawn in 
 the name of a copartnership firm, on the 
 president and directors of the Manhattan 
 Company, it was held that it was not neces- 
 sary to allege the names of all the partners 
 who composed the copartnership or the 
 banking company. People v. Curling, 1 
 Johns. 320. 
 
 129. An indictment for passing and utter- 
 ing as true couuterfcit coin in the similitude 
 of the coin of tlie United States, after nam- 
 ing the person whom the prisoner intended
 
 208 
 
 FORGERY AND COUNTERFEITING. 
 
 Indictment. 
 
 to defraud, need not specify the name of the 
 person to whom the coin was passed. Act 
 of Afarch 3d, 1824 (4 Stat. 121). U. S. v. Be- 
 jandio, 1 Wood C. C. 294. 
 
 130. Where the offense consists in the 
 fraudulent possession or concealment of a 
 thing, it will be sufficient to allege that the 
 party charged fraudulently possessed or con- 
 cealed such thing, without charging or 
 proving that any particular person, corpora- 
 tion, or company, was intended to be de- 
 frauded. Gabe v. State, 1 Eng. 519. 
 
 131. An indictment for forging an indorse- 
 ment on a negotiable note need not name the 
 maker of the note or state where the note 
 is payable. Cocke v. Com. 13 Gratt. 750. 
 
 132. An indictment for forging a receipt 
 need not allege that the person charged with 
 the oifense is indebted to the individual 
 against whom the recei23t is forged. Snell 
 V. State, 2 Humph. 347. 
 
 133. An indictment for passing a counter- 
 feit bank bill need not allege that the person 
 who received the bill knew that it was coun- 
 terfeit; and it is not clear that the intent to 
 defraud must exist in reference to such per- 
 son, and may not exist toward third persons. 
 Wilkinson v. State, 10 Ind. 372. 
 
 134. Averment of time. The time when 
 the coin of which a counterfeit is uttered 
 and published was current in the State, is 
 material, and must be stated in the indict- 
 ment. Nicholson v. State, 18 Ala. 529. 
 
 135. An allegation in an indictment that 
 the prisoner, on the fifteenth day of April, 
 had in his possession ten counterfeit bank 
 bills, knowing them to be counterfeit, with 
 the intention to pass the same, is not equiva- 
 lent to an averment that he had them in his 
 possession at one time. State v. Bonney, 34 
 Maine, 223. 
 
 136. Where an indictment alleged that a 
 forgery was committed by the alteration of 
 an order given by the defendant, but did 
 not state that the alteration was made after 
 it was circulated and by him, it was held in- 
 sufficient. State V. Greenlee, 1 Dev. 523. 
 
 137. Where a count in the indictment 
 charged the commission of the forgery on a 
 day after the trial, it was held good ; and 
 the same was held of a count which did not 
 
 state in what part of the instrument the 
 forged words were placed. Penn v. McKee, 
 Addis. 33. 
 
 138. Where an indictment for forgery al- 
 leges a single fact with time and place, the 
 words " then and there " subsequently used 
 as to the occurrence of another fact, refer to 
 the same point of time; and when the in- 
 dictment charges that the defendant had on 
 a day named, one forged bill, and then ut- 
 tered it, and then knew it to be forged, it is 
 equivalent to averring one act of possession, 
 and a simultaneous uttering and cfuilty 
 knowledge. Com. v. Butterick, 100 Mass. 
 12. 
 
 139. Guilty knowledge and intent. An 
 indictment for aiding to pass forged paper 
 must state that the accused knew that it was 
 forged. Anderson v. State, 7 Ohio, 250. 
 Charging that the defendant secretly kept 
 instruments for counterfeiting sufficiently 
 shows a scienter. Sutton v. State, 9 lb. 133. 
 
 140. An indictment for forgery must al- 
 lege that the false making or alteration was 
 with intent to defraud some person or body 
 corporate, and also show that the writing, 
 if genuine, would prejudice the person or 
 body corporate named. Clarke v. State, 8 
 Ohio,]Sr. S. 630 ; Com. v. Goodenough,Thach. 
 Crim. Cas. 132; Com. v. Woodbury, lb. 47; 
 State V. Odel, 3 Brev. 552 ; s. c. 2 Const. R. 
 758. But the indictment need not set out 
 all the facts and circumstances which show 
 the intent. People v. Stearns, 21 Weud. 
 409. 
 
 141. The indictment need not allege who 
 the party was that the defendant intended 
 to defraud, or the means to be used in the 
 commission of the fraud, or the object to be 
 accomplished by the same. And where the 
 forged instrument was a deposition used by 
 the prisoner on the trial of a libel for di- 
 vorce, it was held that the indictment need 
 not contain the full contents of the libel or 
 petition. State v. Kimball, 50 Maine, 409. 
 
 142. In Massachusetts, an indictment for 
 having in possession a counterfeit bank bill 
 was held insufficient under the statute (of 
 1804, ch. 120), which did not charge that 
 the defendant had the bill in his possession 
 for the purpose of rendering the same cur-
 
 FORGERY AND COUNTERFEITING. 
 
 209 
 
 Indictment. 
 
 rent as trae, or with intent to pass the same, 
 knowing it to be felse, forged and counter- 
 feit. Com. V. Ailin, Thach. Crira. Cas. 289. 
 
 143. Under a statute punishing the having 
 in possession counterfeit money "with in- 
 tent to utter or pass the same, or render the 
 same current as true," an indictment which 
 charged possession " with intent to utter and 
 pass the same," omitting the words " as 
 true," was held insuihcient. People v. 
 Stewart, 4 Mich. 65G. 
 
 144. In Tennessee, an indictment imder 
 the statute (of 1829, ch. 23, § 33) is sufficient 
 which charges that the defendant kept the 
 counterfeit bank note with a '' fraudulent " 
 intent to pass it, without alleging that it 
 was kept with a "felonious " intent. Perdue 
 V. State, 2 Humph. 494. 
 
 145. An indictment charged the forging 
 of a certificate of the tenor following: 
 " Boston, Aug. 6th, 1868. St. James Hotel, 
 Franklin Square. I hereby certify that L. 
 W. Hinds & Co. have placed in my hotel a 
 card of advertisements, as per their agree- 
 ment by contract. J. P. M. Stetson, Propri- 
 etor," with intent thereby, then and there, 
 to injure and defraud. Held^ that, as the 
 fraudulent character of the instrument was 
 not manifest on its face, it should have been 
 made to appear by averments, and that, for 
 the want thereof, judgment must be arrested. 
 Com. V. Hinds, 101 Mass. 209. 
 
 146. Where it was alleged that H. feloni- 
 ously and fraudulently forged a certain writ- 
 ing as follows : " Mr. C. : Charge H.'s account 
 to us. A. & B.," with intent to defraud said 
 A. and B., it was held that it should have 
 been charged that H. was indebted to 0. 
 State V. Humphrey, 10 Humph. 442. But 
 see ante, mb. 132. 
 
 147. Where the intent in forgery is de- 
 scribed in the statute by different terms 
 stated disjunctively, it may be described in 
 the indictment by the use of all stated con- 
 junctively. People V. Ah Woo, 28 Cal. 205. 
 
 148. An indictment for counterfeiting the 
 coin of the United States under the act of 
 Congress of 1825, §20 (4 Stats, at Large, 121), 
 need not charge an intent to pass the coin 
 as true or to defraud. U. S. v. Peters, 2 
 Abb. 494. 
 
 14 
 
 149. Descriptive averment. The words 
 " false, forged, and counterfeit," in an in- 
 dictment import that the instrument de- 
 scribed purports on its face to be, but is not 
 in fact, genuine. U. S. v. Howell, 11 Wall. 
 432. 
 
 150. Immaterial averments. The omis- 
 sion, in an indictment for forging a check, 
 of the figures denoting the number of the 
 check, and of the letter C written under 
 the signature, is not a variance. Cross v. 
 People, 47 111. 152. 
 
 151. An indictment for having in posses- 
 sion counterfeit United States treasury 
 notes with intent to pass them, need not al- 
 lege that they were made in the resemblance 
 of the genuine notes. U. S. v. Trout, 4 Bis. 
 105. 
 
 152. An indictment for forgery is not de- 
 fective in omitting the averment that the 
 instrument was stamped, where a stamp is 
 required. Cross v. People, 47 111, 152. 
 
 153. An indictment for forging a paper 
 made by an agent in the name of his prin- 
 cipal need not aver the authority of the 
 agent, or tliat it was drawn by him ; setting 
 out the check in Tioec verba with an allegation 
 that it was made with intent to defraud the 
 party whose name is signed to it, being all 
 that is necessary. Cross v. People, supra. 
 
 154. An indictment for having in posses- 
 sion instruments used in counterfeiting coin 
 need not charge that the offense was to have 
 been committed feloniously. Miller v. State, 
 2 Scam. 233; Quigley v. People, 2 lb. 
 301. 
 
 155. Where an indictment under a stat- 
 ute, that any one should be deemed guilty 
 of forgery who should falsely make, deface, 
 destroy, alter, &c., any record, deed, &c., or 
 any other instrument in writing whatever, 
 with intention to defraud any person ; 
 charged that the defendant did the act un- 
 lawfully and feloniously, omitting the word 
 falsely, it was held sufficient. State v. 
 Dark, 8 Black f 526. 
 
 156. An indictment against a justice of 
 the peace for altering a writ issued by him, 
 after service and before the return day, 
 which did not charge the offense as forgery, 
 was held bad. Com. v. Mycall, 2 Mass. 136.
 
 210 
 
 FOKGERY AND COUNTERFEITmG. 
 
 Indictment. 
 
 157. An indictment for forgery need not 
 state the names of the persons whom the 
 prisoner procured to forge the instrument, 
 or with whom he acted, and who assisted 
 in the forgery. Hufl'mau v. Com. 6 Rand. 
 685. 
 
 158. Charging several acts. Where an 
 indictment charges in the same count two 
 distinct oftenses, requiring different punish- 
 ments, as the forging of a mortgage, and 
 receipt indoi'sed thereon, the judgment will 
 be arrested. People v. Wright, 9 Wend. 
 193. 
 
 159. If the same person be guilty of mak- 
 ing a counterfeit check, and also of attempt- 
 ing to pass it, or of passing it as true or 
 genuine, with the intent to damage or 
 defraud another, he may be indicted and 
 tried for these connected and consecutive 
 acts as constituting one transaction ; or he 
 may be indicted and convicted for each 
 distinct offense. People v. Shotwell, 37 Cal. 
 394; People v. Frank, 28 lb. 507. 
 
 160. An indictment which alleges that the 
 defendant did falsely make and counterfeit 
 a certain writing, which is set forth, is not 
 bad for duplicity. State v. Hastings, 53 
 JSTew Hamp. 453. 
 
 161. An indictment for forgery which 
 charges that the defendants forged and 
 caused to be forged, and aided and assisted 
 in forging, is not bad for duplicity. State 
 V. Morton, 37 Vt. 310. 
 
 162. The forging of an instrument, and 
 the uttering and publishing it as true, 
 knowing it to be false, may be charged in 
 the same indictment. Haskins v. State, 11 
 Ga. 93 ; People v. Rynders, 13 Wend. 435. 
 
 163. It is proper for an indictment to 
 charge as one offense the having in posses- 
 sion and uttering and publishing several 
 counterfeit bank bills, and a verdict of 
 guilty may be rendered on the whole 
 charge or jaart, according to the proof But 
 when set forth in one count, it is to be 
 treated as one offense. Com. v. Thomas, 10 
 Gray, 483. 
 
 164. An indictment which alleges that 
 the defendant forged and counterfeited gold 
 and silver coin, and had in his possession 
 counterfeit coin, knowinsr the same to be 
 
 false and counterfeited, with intent to utter 
 and pass the same as true, is not bad for 
 duplicity. State v. Myers, 10 Iowa, 448. 
 
 165. Where, in an indictment for forgery, 
 the instrument alleged to have been forged 
 is set out in each of two counts, it will not 
 be presumed that each is the same instru- 
 ment without an allegation to that effect. 
 People V. Shotwell, 37 Cal. 394. 
 
 166. Insufficient or improper averments. 
 Where the indictment describes the meaning 
 of the instrument forged, a defect will not 
 be cured by reciting the instrument in ha>c 
 verba. State v. Bean, 19 Vt. 530. When the 
 indictment states in what the forgery con- 
 sisted, it must be averred truly, and be 
 proved as stated. People v. Marion, 38 
 Mich. 355 ; s. c. 3 Green's Crim. Reps. 573. 
 
 167. Where an indictment described the 
 instrument forged as "purporting to be 
 signed by the president and directors," and 
 then set it out, which it did not appear to 
 have been by order of the president and 
 directors — Held that the repugnancy was 
 fatal. State v. Shawley, 5 Hayw. 356. 
 
 168. An indictment charged the defend- 
 ant with forging a bank check. The check 
 which was set out, was not payable to bear- 
 er, or to the order of any named person. It 
 was therefore incomplete, and could not have 
 defrauded any one. Hell., on demurrer, that 
 the indictment was bad. Williams v. State, 
 51 Ga. 535. 
 
 169. An indictment averred that the pris- 
 oner feloniously did forge, &c., " a certain 
 instrument in writing commonly called a 
 certificate,- the same being a certificate of the 
 acknowledgment, by one L., of a certain 
 mortgage," setting forth the certificate. The 
 certificate, as thus set forth, purported to 
 have been made by E , commissioner of 
 deeds, but it had no venue, and there was 
 nothing on its face to show of what county 
 or city of the State K. was a commffesioner. 
 Held bad. Vincent v. People, 5 Parker, 88. 
 
 170. An indictment for uttering and pass- 
 ing as true an uncurrent and worthless bank 
 bill, "of the tenor following," set forth an 
 instrument similar to an ordinary bank bill, 
 but with no signature of any person as pres- 
 ident or cashier. It was then alleged that
 
 FOEGEKY AND COUNTERFEITING. 
 
 211 
 
 Indictment. 
 
 Place of Trial. 
 
 " a more particular description of which said 
 Lank bill the said jurors have not, and can- 
 not give." Held that the indictment veas 
 insufficient. Com. v. Chaney, 7 Allen, 537. 
 
 171. An indictment charged the forgery of 
 an order for the payment of money, of the 
 tenor following : "M., C. &C'o. Pay Binam 
 $3 75. J. L. C." Held^ that as the writing 
 did not purport to be drawn by or on any 
 person, the indictment was bad for uncer- 
 tainty. Bynam v. State, 17 Ohio, N. S. 142. 
 
 172. An indictment charged the forgery 
 of an order for the delivery of goods, of the 
 following tenor: "Dayton, Sept. 14, '60. 
 jVIessrs. Langdon & Bro. Gents. Let the 
 bearer have one of your smallest with load, 
 and charge to me. R. Chambers." Held 
 bad for uncertainty. Carberry v. State, 11 
 Ohio, N. S. 410. 
 
 173. An indictment which alleges the 
 forging of a receipt against a " book ac- 
 count," is bad for uncertainty. Had the 
 charge been forging an acquittance for 
 goods, it would have been proper. State v. 
 Dalton, 11 Ired. 379. 
 
 174. Where an indictment charged tliat 
 an instrument was forged in the name of 
 James C. Fogg, the tenor of which writing 
 obligatory is as follows, that is to say, &c., 
 and the instrument set out purported on its 
 face to be executed by Jas. G. Fogg and Jo- 
 seph G. Fogg the defendant — it was held, 
 that the charge in the indictment was bad 
 for repugnance. Fogg v. State, 9 Yerg. 
 392. 
 
 175. An indictment alleged that the note 
 forged purported to have been made by one 
 Nathaniel Durkie, and then set out the note, 
 from which it appeared that the note was 
 made by N. Durkie. Held that the repug- 
 nancy was fatal. State v. Houseal, 2 Brev. 
 219. 
 
 176. Where an indictment charged the 
 counterfeit coin to be in imitation of coin of 
 " the State of Missouri, called a Mexican 
 dollar, " it was held contradictory and re- 
 pugnant. State V. Shoemaker, 7 Mo. 177. 
 
 177. In Vermont, an allegation in an in- 
 dictment, that the coins intended to be coun- 
 terfeited, " were current silver coins of this 
 State and of the United States," not being 
 
 equivalent to the words in the statute 
 " which shall be made current by the laws 
 of this, or the United States, " it was held, 
 on demurrer, that the indictment was insuf- 
 ficient. State V. Bowman, 6 Vt. 594. 
 
 178. The averment in an indictment for 
 forging coins " which are current by law and 
 usage in this State," would, by reasonable 
 intendment, refer to the time of presenting 
 the indictment rather than to the time of 
 having in possession, and would therefore 
 be bad. unless it might be rejected as sur- 
 plusage. State V. Griffin, 18 Vt. 198. 
 
 179. Conclusion. In South Carolina, an 
 indictment for counterfeiting, which con- 
 cluded, " contrary to the statute," instead 
 of " contrary to the form of the statute," 
 was held fatally defective. State v. Toad- 
 vine, 1 Brev. 16. 
 
 4. Place of trial. 
 
 ISO. For counterfeiting U. S. coin. Al- 
 though the courts of the United States have 
 exclusive jurisdiction over the ofl^ense of 
 counterfeiting the United States coin (Rouse 
 V. State, 4 Ga. 136), yet the possession of 
 tools designed for making counterfeit coin, 
 coupled with the intent to use them for that 
 pui-pose, is an offense distinct from the act 
 of counterfeiting, and cognizable by the 
 State courts. State v. Brown, 2 Oregon, 
 221. But as to the concurrent jurisdiction 
 of the State courts, see Harlan v. People, 1 
 Doug. 207; Com. v. Fuller, 8 Mete. 313; 
 State V. Butman, 1 Brev. 32 ; Chess v. State, 
 
 1 Blatchf. 198; Hendrick's Case, 8 Leigh, 
 707. 
 
 181. Forgeries against the laws of the 
 United States must be tried in the district 
 where they are committed. U. S. v. Britton, 
 
 2 Mason, 464. 
 
 182. Where the forgery is in one coun- 
 ty and the uttering in another county. In 
 Alabama, where a forgery is committed in 
 one county, and, pursuant to a fraudulent 
 combination there between the prisoner and 
 the forger, the forged instrument is uttered 
 and published in another county, the pris- 
 oner is an accessory before the fact to the 
 offense of uttering and publishing (Code of 
 Ala. § 3526), and may be indicted in the
 
 212 
 
 FOEGERY AND COUNTERFEITING. 
 
 Evidence. 
 
 county in -which it was committed, although 
 all his acts in relation to it were done in the 
 other county. Scully v. State, 39 Ala. 240. 
 
 5. Evidence. y^ 
 
 183. Party whose name is forged may 
 be witness. On a trial for forgery, the per- 
 son whose name is alleged to have been 
 forged may be a witness to prove that fact. 
 Simons v. State, 7 Ohio, 116; Eesp. v. 
 Ross, 2 Yeates, 1 ; contra, State v. A. W. 1 
 Tyler, 260 ; State v. Whitten, 1 Hill, S. C. 
 100. 
 
 184. When the instrument alleged to have 
 been forged has been secreted by the ac- 
 cused, the person whose name is charged to 
 have been forged, and who has seen and 
 copied the instrument, may prove the in- 
 strument. Com. V. Snell, 3 Mass. 82 ; State 
 V. Phelps, 11 Vt. 116. 
 
 185. A bank check, in the name of B., was 
 passed by C. to D., who received the money 
 and sent it to C, as his agent. The check 
 was afterward discovered to be a forgery, 
 and the bank got possession of the money 
 before it reached the hands of C. On the 
 trial of an indictment for the forgery, B. 
 was held to be a competent witness to 
 prove the offense. People v. Howell, 4 
 Johns. 296. 
 
 186. A judgment having been obtained 
 before a justice of the peace, against A. and 
 his surety B., B. paid a part of the judg- 
 ment, and took the constable's receipt which 
 he fraudulently altered so as to make the 
 sum larger. Afterward, A. repaid B. 
 what appeared by the receipt to have been 
 paid by him. Held on the trial of an in- 
 dictment against B. for the forgery, A. was 
 a competent witness. State v. Bateman, 3 
 Ired. 474. 
 
 187. Proof must support charge. Where 
 a person or thing necessary to be described 
 in an indictment, is described with unneces- 
 sary particularity, all the circumstances of 
 the description must be proved. People v. 
 Marion, 28 Mich. 355 ; s. c. 2 Green's Crim. 
 Reps. 572. Where, therefore, an indictment 
 for passing counterfeit bank bills, charged 
 that the bank was " a corporation duly au- 
 thorized for that purpose by the State of 
 
 Massachusetts," it was held that the State 
 must prove the fact as alleged. State v. 
 Newland, 7 Iowa, 242. 
 
 188. An indictment for forgery, charged 
 the defendant with uttering, as trae, to L., 
 a false and forged deed of a piece of land, 
 with intent to defraud him. It was proved 
 that the deed was deposited by the defend- 
 ant with L. as an equitable mortgage to 
 secure board already had, and not the price 
 of future board, and that the defendant did 
 not board, or at the time of the deposit 
 intend to board longer with L., which the 
 latter well knew. Held that the indict- 
 ment was not sustained. , Colvin v. State, 
 11 Ind. 361. 
 
 189. An indictment for forging a railroad 
 ticket described the instrument as " purport- 
 ing to be a ticket or pass issued by," &c., 
 " whereby said corporation promise and as- 
 sure to the owner and holder thereof a 
 passage in their cars over their railroad, 
 extending," &c., and "as signifying to the 
 holder that it must be used continually after 
 once entering the cars, without stopping at 
 any of the intermediate places on the line of 
 the railroad between said," &c., "unless 
 indorsed by the conductor." The terms and 
 stipulations of the ticket proved were: 
 " good this day only, unless indorsed by the 
 conductor." Held that the variance was 
 fatal. Com. v. Ray, 3 Gray, 441. 
 
 190. In Massachusetts, where an indict- 
 ment under the statute (Gen. Stats, ch. 162, 
 § 2), alleged that the defendant uttered and 
 published as true, with intent to defraud, a 
 false, forged and counterfeit promissory 
 note, and the evidence was that he uttered 
 and published as true, a counterfeit bank 
 bill upon an incorporated banking company 
 of the State, it was held that the variance 
 was fatal. Com. v. Dole, 2 Allen, 165. 
 
 191. Where the indictment charges the 
 forging of an accountable receipt " for money 
 and other property," and the instrument 
 produced in evidence, though a receipt, is 
 not an accountable receipt, the variance 
 will be fatal. Com. v. Lawless, 101 Mass. 
 32. 
 
 192. An indictment for forging a promis- 
 sory note without a seal, will not be sup-
 
 FOKGERY AND COUNTERFEITING. 
 
 213 
 
 Evidence. 
 
 ported by evidence tending to prove that 
 defendant forged a note under seal. Hart 
 V. State. 20 Ohio, 49. 
 
 193. An indictment for the forgery of an 
 order for $48 is not supported by proof of 
 an order for $49. State v. Handy, 20 Maine, 
 81. "Where a receipt set out in an indict- 
 ment for forgery, purported to have been 
 given to extinguish an order for sixty dol- 
 lars, and the receipt offered in evidence 
 purported to extinguish an order for sixty- 
 five dollars, it was held that the variance 
 was fatal. Shirley v. State, 1 Oregon, 269. 
 
 194. To sustain an indictment for having 
 ten counterfeit bills in possession, it must be 
 proved not only that the accused had the ten 
 bills in his possession on the same day, but 
 at the same moment. Edwards v. Com. 19 
 Pick. 134. 
 
 195. Evidence of the passing in payment 
 of base metal in the likeness or similitude of 
 gold, will not support an indictment which 
 charges the passing in payment "counter- 
 feit gold coin." Rouse v. State, 4 Ga. 136. 
 
 196. Where the examining court remanded 
 the prisoner for trial for " feloniously using 
 and employing as true, for his own benefit, 
 a certain counterfeit note, well knowing the 
 same to be counterfeit," it was held that an 
 indictment for ' ' forging " the note could not 
 be sustained. Page's Case, 9 Leigh, 686. 
 
 197. An indictment for having in posses- 
 sion a counterfeit bank note for the jDuri^ose 
 of selling, bartering, or disposing of the 
 same, is not sustained by proof of having in 
 possession such note with intent to pass the 
 same to an innocent person as true and genu- 
 ine. Hutchins v. State, 13 Ohio, 198. 
 
 198. Proof of part of charge sufficient. 
 The averment in an indictment that a whole 
 instrument which is set forth, has been 
 forged, is satisfied by proof of a forgery of 
 a material part. Com. v. Butterick, 100 
 Mass. 12. 
 
 199. An indictment charged the prisoner 
 with forging and uttering as true a bank 
 check, which was set out in the indictment, 
 and purported to have been drawn on the 
 Bank of Jersey City ; and the words " certi- 
 fied by Sparks, Bank, J. C." were written 
 .across the face of it. The only writing 
 
 proved to have been forged was these words. 
 Held that the court did not err in refusing 
 to instruct the jury that, as the indictment 
 did not charge the forgery of the certificate, 
 the prisoner could not be convicted. Peo- 
 ple v. Clements, 26 N. Y. 193, Balcom, J., 
 dissenting ; s. c. 5 Parker, 337. 
 
 200. Under an indictment charging the 
 forgery of several indorsements on a prom- 
 issory note, it is not necessary to prove that 
 all of the indorsements are forgeries. Peo- 
 ple V. Rathbun, 21 Wend. 509. 
 
 201. A trifling variance not regarded. 
 Although the description set forth in an 
 indictment for uttering a forged instrument 
 must conform to the instrument given in 
 evidence, yet variances which are merely 
 literal, and leave the sound and sense in 
 substance the same, are not deemed material 
 within the rule. Butler v. State, 22 Ala. 43 ; 
 U. S. V. Hinman, 1 Bald. 292 ; Com. v. Whit- 
 man, 4 Pick. 233. 
 
 202. On the trial of an indictment for 
 forging a promissory note, it need not be 
 proved that pictures or devices were made 
 in imitation of those used in the genuine 
 note for ornament or distinction. Such 
 pictures, ornaments, and devices, though 
 they form parts of a bank plate, are no part 
 of the instrument or contract impressed by 
 it. The operative words must resemble 
 and conform to the similar parts of the gen- 
 uine instrument ; but this resemblance and 
 conformity is not exact similitude of ap- 
 pearance and position. People v. Osmer, 4 
 Parker, 242. Abbreviations in the seal 
 which do not form a complete word may 
 be disregarded. U. S. v. Mason, 12 Blatchf. 
 497. 
 
 203. An indictment for passing a forged 
 promissory note as true, purporting to be 
 made by A. payable to B. or order, is sup- 
 ported by proof of the uttering of such 
 note with the indorsement of B.'s name on 
 the back. Com. v. Adams, 7 Mete. 50. 
 
 204. In Massachusetts, an indictment un- 
 der the statute (R. S. ch. 127) charged that 
 the defendant " had in his possession a 
 piece of false and counterfeit coin, counter- 
 feited in the similitude of the good and 
 legal silver coin current in this common-
 
 214 
 
 FORGEEY AND COUNTERFEITING. 
 
 Evidence. 
 
 ■wealth, by the laws and usages thereof, 
 called a dollar, with intent to pass the same 
 as true, knowing the same to be false and 
 counterfeit." Held^ supjiorted by proof that 
 the defendant had in his possession a coin 
 counterfeited in the similitude of a Mexican 
 dollar, Tvith such intent and knowledge. 
 Com. V. Stearns, 10 Mete. 256. 
 
 205. An indictment for forgery described 
 a bank bill "of the tenor following," pur- 
 porting to be signed by C. R. Drown, 
 '• cashier," whereas the bill offered in evi- 
 dence purported to be signed by C. R. 
 Drown, " cash." Whether the variance was 
 fatal — query. In the same indictment the 
 name of the cashier was stated to be 
 Broun ; whereas, on the bank bill, it was 
 Brown. Held immaterial. Com. v. Woods, 
 10 Gray, 477. And see State v. Wheeler, 34 
 Vt. 261. 
 
 206. Where, on the trial of an indictment 
 for passing a counterfeit bank bill, there was 
 a variance as to the signature of the bill 
 between the note set out and that given in 
 evidence, and it appeared, that the came 
 was illegible, and that the discrepancy 
 arose from the attempt to make a precise 
 imitation of the name, it was held that the 
 variance was not material. Mathena v. 
 State, 20 Ark. 70. 
 
 207. Where an indictment for forgery 
 alleged that an order was drawn upon the 
 "president, directors, and. company of the 
 Bank of V.," and it was proved that the 
 order was drawn upon the "Bank of V.," 
 it was held that the variance was not mate- 
 rial. State V. Morton, 27 Vt. 310. 
 
 208. Under an indictment alleging that 
 the defendant had a counterfeit bank bill at 
 Boston, " with intent then and there to 
 utter and pass the same," it may be j^roved 
 that he had it with such an intent at a place 
 out of the State, it being immaterial where 
 the defendant intended to pass the bill. 
 Com. V. Price, 10 Gray, 472. 
 
 209. In Vermont, under a statute impos- 
 ing a penalty for having in possession any 
 mould, jiattern, die, &c., adapted or de- 
 signed for coining, it is sufficient to prove 
 that the defendant had in his possession half 
 of a mould. State v. Griffin, 18 Vt. 198. 
 
 210. Where an indictment for forgery de- 
 scribed the note according to its purport 
 and effect, and not according to its tenor, a 
 variance in the word "promised" and 
 "promise" is not material. Coin v. Par- 
 menter, 5 Pick. 279. 
 
 211. The averment in an indictment for 
 forgery, of an intent to defraud an indi- 
 vidual, is sustained by proof of an intent to 
 defraud a firm of which such individual 
 is a member. State v. Hastings, 53 New 
 Hamp. 452: Stoughton v.State, 2 Ohio, 562. 
 
 212. Where an indictment charged the 
 prisoner with having forged and counter- 
 feited a certain order for the payment of 
 money, purjjorting to be made and drawn 
 by A. and B., selectmen of the town of C, 
 it was held unnecessary to prove that those 
 men were in fact selectmen of the town. 
 State V. Flye, 26 Maine, 312. 
 
 213. Must be confined to the issue. On 
 the tiial of an indictment for forging and 
 uttering a deposition used by the accused 
 in an action for divorce brought by him, it 
 is not error in the court to refuse to allow 
 him, on cross-examination of the person 
 whose signature to the deposition is alleged 
 to be forged, to show that the facts stated 
 in the deposition are true. State v. Kimball, 
 50 Maine, 409, Kent, J., dissenting. But 
 on a trial for forging a mortgage, it was 
 held competent for the prosecution to show 
 that a deed which was given in evidence by 
 the jDrisoner, in a suit in chancery relating 
 to the mortgage, liad been altered so as to 
 make it correspond with the mortgage.. 
 Perkins v. People, 27 Mich. 386 ; s. c. 2 
 Green's Crim. Reps. 567. 
 
 214. Instrument must be produced. The 
 instrument alleged to be forged must be 
 produced, or its absence accounted for. 
 Manaway v. State, 44 Ala. 375 ; Com. v. 
 Hutchinson, 1 Mass. 7. On the trial of an. 
 information for passing counterfeit money, 
 the money must be produced in court, before 
 evidence is given of its being counterfeit. 
 State V. Osborn, 1 Root, 152; State v. 
 Bloget, lb. 534. But proof that the de- 
 fendant admitted the crime, or destroyed 
 the money, will excuse its non- production. 
 State V. Ford, 2 lb. 93.
 
 FORGERY AND COUNTERFEITING. 
 
 215 
 
 Evidence. 
 
 215. Under an indictment for passing a 
 counterfeit bank bill, to render admissible 
 evidence that the defendant had passed 
 other counterfeit bills of the same denomina- 
 tion, those bills should be produced in court, 
 or, if in the possession of the defendant, 
 he should have had notice to produce them. 
 State V. Cole, 19 Wis. 129. 
 
 216. Existence of bank. On the trial of 
 an indictment for forging a bank bill, the 
 existence of the bank need not be proved, 
 unless it is charged that the prisoner intended 
 to defraud the bank. Com. v. Smith, 6 
 Serg. & Rawle, 568 ; McCartney v. State, 3 
 Ind. 35R ; People v. Peabody, 25 Wend. 
 473. And when the indictment charges that 
 the instrument forged purported to be drawn 
 on a bank, the existence of the bank need not 
 be proved. State v. Pierce, 8 Iowa, 231. 
 
 217. On the trial of an indictment for the 
 forgery of a bank note, purporting to have 
 been issued by a certain banking association, 
 it may be proved by parol that there is 
 such an institution in existence, doing busi- 
 ness in the State, without offering in evi- 
 dence the articles of association under which 
 such bank was organized. Dennis v. People, 
 1 Parker, 469; People v. Chadwick, 2 lb. 
 163; Reed v. State, 15 Ohio, 217; State v. 
 Cleaveland, 6 Nev. 181. 
 
 218. Where on a trial for passing counter- 
 feit bank bills, the bank officers cannot be 
 produced, the next best evidence is that of 
 persons who know of the existence of the 
 bank, and the character of the bills. Com. 
 V. Riley, Thach. Crim. Cas. 67; State v. 
 Stalmaker, 2 Brev. 1. 
 
 219. On the trial of an indictment for 
 passing the counterfeit bank bills of a bank 
 in another State, the incorporation of the 
 bank may be proved by a copy of the act 
 of incorporation, duly certified, or by the 
 production of a sworn copy. Stone v. State, 
 1 Spencer, 401 ; or by the statutes in which 
 the charter is printed. Jones v. State, 5 
 Sneed, 346. 
 
 220. An indictment for having in posses- 
 sion, with intent to utter, counterfeit bank 
 bills, knowing the same to be false, which 
 alleges that the bills purported to be issued 
 by the "president, directors, and company 
 
 of" an incorporated banking company duly 
 established in another State, is supported 
 by proof that the bills were issued by an 
 association formed there under a general 
 banking act of the United States. Com. v. 
 Hall, 97 Mass. 570. See Com. v. Tenney, lb. 
 50. 
 
 221. On the trial of an indictment for 
 having in possession the false and counter- 
 feit bills of a foreign bank, with intent to 
 pass the same, the prosecution is not bound 
 to prove it to be an incorporated bank. 
 Sasser v. State, 13 Ohio, 453; People v. 
 Davis, 21 Wend. 309. 
 
 222. Name of bank. Where although 
 in an indictment for having in possession 
 counterfeit bank bills, with intent to pass 
 the same, the bills need not be described, 
 yet if it be alleged that they are the bills 
 of certain named banks, they must be proved 
 as laid. Clark v. Com. 16 B. Mon. 206. 
 
 223. Where the indictment charged the 
 counterfeiting a bill of an incorporated bank, 
 incorporated by the name of '' The President 
 and Directors of the Bank of South Carolina," 
 and the bill proved was of "The Bank of 
 South Carolina," it was held that the vari- 
 ance was fatal. State v. Waters, 3 Brev. 507. 
 
 224. President of bank. On the trial ot 
 an information for uttering and passing a 
 counterfeit bill, it was held that parol evi- 
 dence was admissible to show that the jjer- 
 son whose name appeared on such bill as 
 president was president of the bank by 
 which the same purported to be issued. 
 State V. Smith, 5 Day, 175. 
 
 225. Counterfeit bank bills. On the 
 trial of an indictment for passing counter- 
 feit money, the court may permit experts to 
 testify to the false character of the bills, with- 
 out requiring proof that there was a bank in 
 existence issuing genuine bills, of which 
 those in question might be counterfeits. 
 Jones V. State, 11 Ind. 357; U. S. v. Foye, 1 
 Curtis, 364. 
 
 226. On the trial of an indictment for 
 passing counterfeit bank bills, it is not nec- 
 essary to prove that they are counterfeit by 
 an officer of the bank. Martin's Case, 2 
 Leigh, 745. And see Foulker's Case, 2 Rob. 
 836.
 
 216 
 
 FOEGERY AND COUNTERFEITING. 
 
 Evidence. 
 
 227. Exports who never saw the officers 
 of ii bank write are competeut witnesses to 
 prove the note counterfeit. Farrington v. 
 State, 10 Ohio, 354; May v. State, 14 lb. 
 40) 1. 
 
 228. On the trial of an indictment for 
 passing counterfeit bills of a bank out of the 
 State, the testimony of a person who was 
 acquainted with the handwriting of the 
 president and cashier, though he had neyer 
 seen them write, was admitted to show that 
 their signatures were not genuine. State v. 
 Ravelin, 1 Chip. 295. 
 
 229. A person in the exchange business 
 and the teller of a bank, both of whom have 
 a knowledge of counterfeit bank bills and of 
 the genuine notes of a bank which the pri- 
 soner is charged with counterfeiting, are 
 competent to testify as experts to the char- 
 acter of the note charged to have been coun- 
 terfeited ; and the fact that they could dis- 
 cover no perceptible difference between it 
 and the genuine notes, and that their opin- 
 ion against its genuineness was based main- 
 ly upon the imperfectness and indistinctness 
 of the engraved impression on it, is no rea- 
 son for rejecting their evidence. Johnson 
 v. State, 35 Ala. 370. 
 
 230. The testimony of persons who are 
 acquainted with the signatures of the presi- 
 dent and cashier of a bank, from having 
 seen bills of the bank in circulation, is ad- 
 missible to prove that a bill which purports 
 to be a bill of the bank is a forgery. State 
 V. Carr, 5 New Hami). 367 ; Com. v. Smith, 
 € Serg. & Rawle, 568. Where a person had, 
 for several years, been in the habit of re- 
 ceiving and paying away notes of a partic- 
 ular bank, it was held that he was a com- 
 petent witness to prove the genuineness or 
 forgery of a note on that bank, though he 
 had never seen the president or cashier 
 write, and never had a letter from them. 
 State V. Chandler, 3 Hawks, 393. 
 
 231. On a trial for passing a forged bank 
 note, a person was held competent to prove 
 that the note was counterfeit, who had for 
 ten years been employed as cashier of a 
 bank, and in that capacity had received and 
 passed away a great number of the notes of 
 this bank, without ever having had one re- 
 
 turned as a counterfeit, and who testified 
 that he believed he could readily distinguish 
 between a genuine and a counterfeit note, 
 not only from the signatures, but also from 
 the paper, engraving, and general appear- 
 ance of the note. State v. Harris, 5 Ired. 
 287. 
 
 232. On a trial for altering a bank bill, 
 the bank being out of the State, forty miles 
 distant, the forgery was allowed to be 
 proved by two witnesses who had often re- 
 ceived and paid out bills purporting to be 
 made by the bank, but neither of whom had 
 ever seen the president or cashier write. 
 Com. V. Carey, 2 Pick. 47. 
 
 233. On the trial of an indictment for 
 having in possession a counterfeit bank note, 
 it is not sufficient for witnesses to swear to 
 the identity of the note, unless it has been 
 constantly in their possession, or they put a 
 private mark upon it. Com. v. Kinison, 
 4 Mass. 646. 
 
 234. Proof of handwriting in general. 
 On the trial of an information for uttering a 
 forged power of attorney, it is competent to 
 prove that both the power and the deed 
 purporting to have been executed in pursu- 
 ance of it, are in the handwriting of a con- 
 federate of the defendant. People v. Marion, 
 29 Mich. 31, 
 
 235. The methods of proving handwriting 
 are, by the testimony of those: 1st. Who 
 have seen the person write. 2d. Who have 
 received letters of such a nature as render it 
 highly probable that they were written by 
 the person. 3d. Who have inspected and 
 become familiar with authentic documents 
 which bear the signature of the person. 
 State v. Allen, 1 Hawks, 6. 
 
 236. In a trial for forgery, a paper was 
 handed to a witness with all the writing but 
 the signature concealed, and the witness 
 asked whether the signature was his. Held, 
 that the witness was not bound to answer 
 without first seeing the contents of the 
 paper. Com. v. Whitney, Thach. Crim. Cas. 
 588. 
 
 237. Comparison of hands. When a 
 writing has been proved to be genuine, a 
 comparison may be made between it and 
 the writing in dispute by witnesses who
 
 FOEGERT AND COUNTERFEITING. 
 
 217 
 
 Evidence. 
 
 may give their opinions founded on such 
 comparison, and then the writings and the 
 testimony of the witnesses respecting tlie 
 same are to be submitted to the jury. State 
 V. Hastings, 53 New Hamj). 452 ; s. c. 3 
 Green's Crim. Reps. 334. Contra^ except as 
 to ancient writings. State v. Givens, 5 Ala. 
 747. 
 
 238. In general, comparison of hands is 
 not admissible as evidence to prove or dis- 
 prove the genuineness of a signature or writ- 
 ing; but when the proof is so contradictory 
 as to leave it doubtful, such evidence may be 
 given. People v. Hewit, 2 Parker, 20. 
 
 239. On the trial of an indictment for forg- 
 ery, a writing irrelevant to the issue is not 
 admissible in evidence to enable the jury to 
 institute a comparison of handwriting by 
 juxtaposition of the two documents in order 
 to ascertain whether both were written by 
 the same person. State v. Fritz, 23 La. An. 
 55. 
 
 240. The handwriting of the supposed 
 maker or iudorser of the forged instrument 
 cannot be submitted to the jury for the pur. 
 pose of enabling them to comjoare it with 
 that of the forged instrument. Bishop v. 
 State, 30 Ala. 34. 
 
 241. Contents of writing. Where on a 
 trial for forgery it is proved that the orig- 
 inal paper is lost, or destroyed, or in the 
 hands of the defendant, or of an accomplice, 
 or a third person, evidence may be given of 
 its contents without notice to produce it. 
 Pendleton's Case, 4 Leigh, 694; U. S. v. 
 Doebler, 1 Bald. 519; McGinnis v. State, 24 
 Ind. 500 ; overruling Armitage v. State, 13 
 lb. 441, and Williams v. State, 16 lb. 461. 
 
 242. Where the instrument alleged to have 
 been forged is set out verl>atim in the in- 
 dictment, and is proved to have been mu- 
 tilated, the prosecution may introduce sec- 
 ondary evidence of the contents of the mu- 
 tilated part, after first proving the existence 
 of the writing before mutilation as set out, 
 and, in connection with such secondary evi- 
 dence, may then offer in evidence the muti- 
 lated writing. Thompson v. State, 30 Ala. 28. 
 
 243. Secondary evidence of the contents 
 of the instrument alleged to have been 
 forged, which is cJiarged in the indictment 
 
 to have been destroyed or withheld by the 
 defendants is not admissible on proof that it 
 was last seen on the trial of a habeas corpus 
 at the suit of another one of the defendants, 
 in the possession of his attorney, who is not 
 called to 'answer as to his possession. Mor- 
 ton v. State, 30 Ala. 527. 
 
 244. Name of party. Under an indict- 
 ment charging the passing of counterfeit 
 coin to a particular person, the christian 
 name of the individual must be proved as 
 laid. Where he was called Eli Clements in 
 the indictment, and there was no proof that 
 his christian name was Eli, it was held that 
 it was error to charge the jury that they 
 might infer from the testimony that his 
 name was Eli. Gabe v. State, 1 Eng. 519. 
 
 245. Where an indictment for forging a 
 promissory note, in setting out the note gave 
 the name of the maker as " Otha Carr^'' and 
 the note offered in evidence purported to 
 have been made by " OatJia Carr,'''' it was 
 held that the variance was fatal. Brown v. 
 People, 66 111. 344. 
 
 246. A bank note alleged to have been 
 forged was set out in the indictment, and the 
 name of the president of the bank stated to 
 be " Sedbetter .'''' The name in the instrument 
 ofiered in evidence was '■'■ Ledbetter.'''' Held 
 that the variance was fatal. Zellers v. State, 
 7 Ind. 659. 
 
 247. Where notes alleged to have been 
 forged, as set out in the indictment were 
 payable to '' E. Cymour or bearer," and those 
 offered in evidence were payable to '' E. Sey- 
 mour or bearer," it was held that the vari- 
 ance was fatal. Porter v. State, 15 Ind. 433 ; 
 s. c. 17 lb. 415. 
 
 248. Agent or servant. The charge of 
 attempting to pass a forged instrument will 
 be austained by proof that the attempt was 
 made through an agent. U. S. v. Morrow, 
 4 Wash. 733. 
 
 249. Under an indictment for altering an 
 order in writing for money payable to the 
 defendant, evidence that another did it, the 
 defendant knowing and assenting to it, was 
 held sufficient to warrant a conviction. Com. 
 V. Parmenter, 5 Pick. 279. 
 
 250. Where a counterfeit bank bill is 
 actually delivered to an agent or servant of
 
 218 
 
 FOEGERY AND COUNTERFEITING. 
 
 Evidence. 
 
 the person defrauded, it may be alleged and 
 proved that the uttering and passing were to 
 the former, although he had no beneficial 
 interest in the transaction, and the evidence 
 would also support an allegation of an intent 
 to defraud the principal. Com. v. Starr, 4 
 Allen, 301. 
 
 251. The agent of a company to whom a 
 forged demand against the company was 
 presented, is a competent witness to prove 
 his agency, on a trial for forgery, against the 
 person who attempted to collect the money. 
 Manaway v. State, 44 Ala. 375. 
 
 252. Declarations of party injured. 
 Where on the trial of an indictment for 
 forging the name of A. to a note and con- 
 tract, dated respectively the 16th and 17th of 
 April, it was proved that at those dates A. 
 was ill in bed, that he died on the 20th of 
 April, and that he had abandoned all hopes 
 of getting well as early as the 13th— it was 
 held that the defense might show that on 
 the 18th of the same month, A. declared that 
 he had executed the note and contract in 
 question. People v. Blakeley, 4 Parker, 
 176. 
 
 253. Acts and declarations of defendant. 
 Where two have confederated to pass coun- 
 terfeit notes, or any joint concurrent action 
 in passing them is proved, the act of one is 
 evidence against the other. U. S. v. Hin- 
 man, 1 Bald. 292. 
 
 254. On the trial of an indictment for 
 having a counterfeit bank bill with intent to 
 pass the same, knowing it to be counterfeit, 
 the previous declaration of the defendant, 
 that he was accustomed to buy and sell 
 counterfeit money and was familiar with 
 different kinds of forged notes or bills, is 
 admissible as tending to jorove guilty knowl- 
 edge ; but not a letter containing counterfeit 
 money received by him through the post 
 ofiice, which he had not opened when ar- 
 rested. Com. V. Edgerly, 10 Allen, 184. 
 
 255. On a trial for knowingly having in 
 possession an instrument adapted and de- 
 signed for coining or making counterfeit 
 coin, with intent to use it, or permit it to be 
 used for that pui-pose, it was held that the 
 defendant could not prove his declarations 
 to an artificer, at the time he employed him 
 
 to make such instrument, as to his object in 
 having it made. Com. v. Kent, 6 Mete. 
 221. 
 
 256. Presumption as to bank. On a trial 
 for counterfeiting bank bills, proof that tlie 
 bills of a bank are received by public officers 
 of the State, and that such bills are in general 
 circulation, is sufficient to raise the pre- 
 sumption that the acts required to be done 
 by the bank before its charter should take 
 effect were preformed. State v. Calvin, R. 
 M. Charlt. 151. 
 
 257. Presumption from conduct of de- 
 fendant. On the trial of an indictment for 
 having in possession with intent to utter and 
 pass counterfeit notes of the United States, 
 the fact that the prisoner when arrested 
 gave no explanation of the manner in which 
 he came by the notes, is a circumstance 
 proper for the consideration of the jury. 
 U. S. V. Kenneally, 5 Bis. 122. 
 
 258. On a trial for forgery, proof that the 
 accused employed a fabricated deposition in 
 aid of the instrument is admissible as tend- 
 ing to show his guilt. State v. Williams, 
 27 Vt. 724. 
 
 259. Where it was proved that the de- 
 fendant passed a counterfeit bank bill, and 
 that he gave different accounts as to the 
 person from whom he received it, and did 
 not attempt uj^on the trial to give any ex- 
 planation, it was held that the evidence was 
 sufficient to sustain a verdict of guilty. 
 Perdue v. State, 2 Humph. 494. 
 
 260. Where the defendant in an. indict- 
 ment for uttering and passing as true a 
 counterfeit bank bill, in order to jirocure 
 delay in his trial, on the ground of the ab- 
 sence of a material witness, made an affidavit 
 in which he attempted to account for the 
 possession of the counterfeit money, and it 
 was proved that at other times he had ac- 
 counted for its possession in a different 
 manner, it was held that the jury might 
 take his contradictory statements into con- 
 sideration as indicative of guilt. Com. v. 
 Starr, 4 Allen, 301. 
 
 261. On a trial for forging a check on a 
 bank, it was not i)roved that the accused 
 wrote or signed the check ; but there were 
 circumstances tending strongly to establish
 
 FORGEKY AND COUNTERFEITING. 
 
 21l> 
 
 Evidence. 
 
 that he fraudulently uttered it. He left 
 with an expressman a sealed envelope, di- 
 rected to C. «& S., containing the check, and 
 an order to C. & S. to deliver specified gold 
 leaf to the bearer, and to receipt the bill. 
 He also requested the expressman to deliver 
 the letter, and get from C. & S. a box -which 
 he was to carry to a hotel. And the prisoner 
 met him there, claimed and received the 
 box, and paid tbe express charges. Held, 
 that there was sufficient evidence to be sub- 
 mitted to the jury. Watson v. People, 64 
 Barb. 130. 
 
 262. Under an indictment against several 
 for forging an indorsement on a bank check, 
 it is competent to prove, as tending to show 
 concert, that the defendants agreed to pro- 
 cure money by means of forged paper from 
 banks, without reference to any particular 
 bank. State v. Morton, 27 Vt. 310. 
 
 263. Where a person draws a bill of ex- 
 change on himself, payable to his own order, 
 accepts and indorses it, the presumption is, 
 that the second indorsement was made after 
 the first. Com. v. Butterick, 100 Mass. 13. 
 
 264. Presumption from possession. The 
 possession by the prisoner, of the forged 
 note described in the indictment, with other 
 similar forged notes, and the plates, imple- 
 ments and materials for forging such notes, 
 is prima facie evidence that the prisoner is 
 a forger. Sjjencer's Case, 2 Leigh, 751; 
 State v. Britt, 3 Dev. 123; Perkins v. Com. 
 7 Gratt. 651; Com. v. Talbot, 2 Allen, 161. 
 
 265. On a trial for forging bank bills, 
 proof that the prisoner had in his possession 
 other similar bills about the same time, is 
 admissible, although other indictments are 
 pending against him for these acts. Com. 
 v. Percival, Thach. Crim. Cas. 293; Com. v. 
 Chandler, lb. 187; State v. Williams, 2 
 Rich. 418; State v. McAllister, 24 Maine, 
 139. 
 
 266. The knowingly and secretly keeping 
 instruments adapted for counterfeiting, raises 
 the presumption that they were intended to 
 be used for that purpose, which the defend- 
 ant is required to rebut. People v. Page, 
 Idaho, 114. 
 
 267. On a trial for forgery in obliterating 
 the writing of a check, and substituting 
 
 therefor other words and figures, it is com- 
 petent to prove by a witness who is not an 
 expert, that certain effects followed the ap- 
 plication of a powder in extracting ink from 
 a paper, which powder was found in the 
 possession of the defendants, and the paper 
 upon which the effect sworn to by the wit- 
 ness was produced may be shown to the 
 jury. People v. Brotherton, 47 Cal. 388 ; s. 
 c. 2 Green's Crim. Reps. 444. 
 
 268. To constitute the offense of having 
 in possession counterfeit blank and unfin- 
 ished bank bills, it is not necessary to prove 
 the intent to fill them up by showing an 
 attempt to do so; the intention being suf- 
 ficiently manifested by the circumstance of 
 possession. People v. Ah Sam, 41 Cal. 645. 
 
 269. On the trial of an indictment for 
 having counterfeit coin with intent to pass- 
 the same, and with intent to defraud F. and 
 others, the evidence tended to prove that 
 the defendant had a large amount of coun- 
 terfeit coin in his possession for the purposes 
 of sale, and that F., acting in concert with 
 the police, succeeded in purchasing of the 
 defendant counterfeit coin of the nominal 
 value of several hundred dollars. Held^ 
 sufficient to sustain a conviction. People v. 
 Farrell, 30 Cal. 316. 
 
 270. Genuine papers of the same kind as 
 the one alleged to be forged, which were 
 presented with it, and taken from the accused 
 at the same time, are admissible in evidence 
 as part of the res gestce. Manaway v. State, 
 44 Ala. 375. 
 
 271. On a trial for forgery, the prosecution, 
 after connecting the prisoner with other per- 
 sons in the transaction, may prove that 
 different parts of the machine employed in 
 the counterfeiting were found in possession 
 of such other persons. U. S. v. Craig, 4 
 W^ash. C. C. 729. 
 
 272. On the trial of a person for having 
 in his possession an altered bank bill with 
 intent to pass the same, it was held error 
 in the court to allow the prosecution to 
 prove that the wife of the prisoner, who^ 
 was arrested about the same time he was, 
 had in her possession engraved figures cut 
 from genuine bills, there being no other evi- 
 dence of any concert between the prisoner
 
 220 
 
 FORGERY AND COUNTERFEITING. 
 
 Evidence. 
 
 and his wife, or that they were mutually 
 engaged in altering bunk bills, or that 
 either of them had any knowledge of the 
 facts -which were proved against the other. 
 People V. Thomas, 3 Parker, 256, Dean, J., 
 ■contra ; affi'd 3 N. Y. Ct. of Appeals Decis. 
 571. 
 
 273. Presumption as to place. Evidence 
 that the prisoner attempted to pass a forged 
 note in a certain county is presumptive evi- 
 dence that that was the place of the forgery. 
 Bland v. People, 3 Scam. 364; Spencer's 
 Case, 3 Leigh, 751 ; Johnson v. State, 35 
 Ala. 370 ; State v. Morgan,. 2 Dev. & Batt. 
 348 ; contra^ Com. v. Parmenter, 5 Pick. 279. 
 
 274. Where a forged instrument pur- 
 ported to have been made in Charleston, 
 S. C, and it was shown that the prisoner at 
 its date was there and had the same in his 
 possession, it was held suiEcient to show 
 that it was made there. State v. Jones, 1 
 McMullan, 236. 
 
 275. Where an altered check was pro- 
 duced at Boston, and the prisoner gave no 
 explanation of the time or place of the alter- 
 ation, it was held that the presumption was 
 that the alteration was made in Massa- 
 chusetts. U. S. V. Britton, 2 Mason, 464. 
 
 276. Character. Where on the trial of 
 an indictment for having counterfeit bank 
 bills with the intent to pass them, the ac- 
 cused had not put his character in issue, it 
 was held error to admit in evidence the 
 confession of the prisoner that he had been 
 a convict in a State jDrison. People v. 
 White, 14 Wend. 111. See Ackley v. Peo- 
 ple, 9 Barb. 609. 
 
 277. Guilty knowledge and intent. To 
 sustain an indictment for having a counter- 
 feit bank note in possession, three things 
 must be proved: 1, the possession of the 
 bank bill ; 2, the knowledge of its being 
 counterfeit ; and 3, the intention to pass it 
 with a view to defraud. Harland v. People, 
 1 Doug. 207. 
 
 278. On a trial for forgery, it is not 
 error in the court to instruct the jury that 
 they will be authorized to infer an intent to 
 defraud from the character of the instru- 
 ment, if they find that it was forged. State 
 V. Kimball, 50 Maine, 409. 
 
 279. An indictment for uttering a forged 
 instrument in writing with intent to de- 
 fraud may be sustained, although it is 
 proved that the person to whom the forged 
 instrument was addressed was not ac- 
 quainted with the supposed drawer, and 
 had no account with him, nor any goods in 
 his possession belonging to him. People v. 
 Way, 10 Cal. 336. 
 
 280. On the trial of an indictment for 
 uttering counterfeit coin, guilty knowledge 
 must be proved, and the possession by the 
 prisoner of instruments for coining may be 
 shown for this purpose. Wash v. Com. 16 
 Cratt. 530; State v. Antonio, 3 Brev. 563. 
 
 281. But where on trial of an indictment 
 for having in possession counterfeit bank 
 notes with guilty intent, the prosecution 
 were allowed to prove that appliances and 
 materials for the manufacture of counterfeit 
 coin were found in the possession of the de- 
 fendant, in order to show guilty knowledge 
 and intent, it was held error, the only evi- 
 dence admissible for this purpose being the 
 possession of other counterfeits similar in 
 kind. Bluff V. State, 10 Ohio, N. S. 547. 
 
 282. Under an indictment for having in 
 possession counterfeit money with intent to 
 pass it, the possession must be proved by 
 positive evidence, but the intent may be 
 shown from circumstances. Peoj^le v. Gard- 
 ner, 1 Wheeler's Crim. Cas. 33. 
 
 283. On the trial of an indictment for 
 having in the defendant's possession a 
 counterfeit bank bill of another State, and 
 uttering and publishing the same as true, 
 the follow'ing instruction was held correct: 
 That the indictment would be supported by 
 proof that the defendant being himself ap- 
 prised that the bill was counterfeit, and 
 knowing that it was the purpose of H., 
 upon obtaining it by purchase, to utter and 
 render it current as true, had it in his pos- 
 session with intent to sell it to H., and did 
 actually sell it to him, to enable him to dis- 
 pose of it in violation of law, and partici- 
 pated with him in carrying that pui"pose in- 
 to execution. Com. v. Davis, 11 Gray, 4. 
 
 284. On the trial of an indictment for ut- 
 tering and passing as true a counterfeit 
 bank bill, evidence that the defendant had
 
 rOEGEKY AND COUNTERFEITING. 
 
 221 
 
 Evidence. 
 
 been employed in the business of printing 
 parts of genuine bank bills is admissible to 
 show knowledge on his part that the bills 
 he passed were counterfeit. And evidence 
 that" he swallowed a counterfeit bill when 
 arrested, the morning after the commission 
 of the offense alleged in the indictment, the 
 bill being similar to those passed by him, is 
 also admissible to show guilty knowledge 
 and intent. Com. v. Hall, 4 Allen, 305. 
 
 285. On a trial for having counterfeit 
 notes in possession, evidence is admissible 
 that other counterfeits were found secreted 
 in the prisoner's house, in possession of his 
 wife. Hess v. State, 5 Ohio, 5. But whether 
 on the trial of a person for passing a coun- 
 terfeit gold piece, evidence that the defend- 
 ant had in his possession and attempted to 
 secrete counterfeit bank notes, is admissible 
 on the question of guilty knowledge — query. 
 Lane v. State, 16 Ind. 14. 
 
 286. On the trial of an indictment for 
 passing a forged bank note or check, evi- 
 dence that the prisoner uttered another 
 forged note or check on the same bank 
 about the same time, is admissible to show 
 guilty knowledge. State v. Eobinson, 1 
 Harr. 507; Mount v. Com. 1 Duvall, 90; 
 Steele v. People, 45 HI. 152. 
 
 287. On the trial of an indictment for 
 having in possession with intent to pass, and 
 for passing with intent to defraud, it is com- 
 petent to prove on the question of guilty 
 knowledge, that the prisoner, on the same 
 day and at the same gambling sitting, passed 
 as genuine spurious, as distinguished from 
 counterfeit bank bills, and that, when ar- 
 rested, he had several such bills, both signed 
 and unsigned, in his possession. State v. 
 Brown, 4 R. I. 528. 
 
 288. On the trial of an indictment for pass- 
 ing a counterfeit bank note, after it had been 
 proved that the defendant passed the note, 
 it was held competent to show that he 
 passed other counterfeit notes of the same 
 kind to other persons, the day after he com- 
 mitted the offense charged. Hendrick's 
 Case, 5 Leigh, 707. To show guilty knowl- 
 edge, it may be proved that the prisoner 
 passed other counterfeit notes at different 
 times, before and subsequent. State v. Mise, 
 
 15 Mo. 153; Martin's Case, 2 Leigh, 745; 
 Com. V. Woodbury, Thach. Crim. Cas. 47; 
 Peck V. State, 2 Humph. 78; U. S. v. Doeb- 
 ler, 1 Bald. 519; State v. Van Heuten, 2 
 Penn. 672; U. S. v. Mitchell, 1 Bald. 366; 
 Powers V. State, 9 Humph. 274 ; McCartney 
 V. State, 3 Ind. 353; State v. Tuitty, 2 
 Hawks, 248; Reed v. State, 15 Ohio, 207; 
 State V. Van Houten, Penning. 2d ed. 495 ; 
 Com. V. Price, 10 Gray, 472. 
 
 289. But to. enable the prosecution to give 
 evidence of other utterings of forged notes or 
 bills subsequent to that charged in the in- 
 dictment, they must* in some way be con- 
 nected with the principal case, or the notes 
 and bills must be of the same manufacture 
 and be precisely similar. Dibble v. People, 
 4 Parker, 199; affi'd 3 N. Y. Ct. of Appeals. 
 Decis. 518. And see People v. Corbin, 5ft 
 N. Y. 363. 
 
 290. On a trial for passing a counterfeit 
 note of a particular bank, evidence of pass- 
 ing a counterfeit note of another bank at 
 another time is not admissible. U. S. v.. 
 Roudenbush, 1 Bald. 514. Therefore, on a 
 trial for forging a bank note of the bank of 
 the State of North Carolina, it was held er- 
 ror to admit evidence of an attempt by the 
 defendant, three years previous, to utter 
 forged bank notes of the Northern Bank of 
 Kentucky. Morris v. State, 8 Sm. & Marsh. 
 762. 
 
 291. On the trial of an indictment for ut- 
 tering forged notes, evidence is admissible 
 to show that the prisoner, at or near the 
 same time, uttered other similar notes, al- 
 though he admits that he passed such notes, 
 and that, if they were not genuine, he knew 
 the fact, at the same time, however, denying 
 the forgery; the prosecution having a right 
 to make out their own case, without relying 
 on an admission of the defendant. Com. v. 
 Miller, 3 Cush. 243. 
 
 292. On a prosecution for uttering a 
 forged note, evidence is admissible on the 
 question of guilty knowledge to show that 
 the defendant passed another forged note, 
 although he had been acquitted on an in- 
 dictment for uttering the hitter note, the 
 acquittal only weakening the force of this 
 evidence. State v. Houston, 1 Bailey, 300.
 
 222 
 
 FORGERY AIS'D COUNTERFEITING. 
 
 Evidence. 
 
 293. On the trial of an information against 
 A. for uttering a counterfeit bank bill, 
 knowing it to be counterfeit, it was proved 
 that A. and B. had entered into a conspiracy 
 to utter counterfeit bills similar to the bill 
 described in the information. Held that 
 on the question of guilty knowledge evi- 
 dence was admissible to prove that, at two 
 diflferent places, a day or two previous to 
 the alleged offense, and at another place 
 «oon after its commission, B. uttered other 
 counterfeit bills of the same bank, A. being 
 in company with B. immediately before and 
 after such putting off'byB., but not actu- 
 ally present with him at those times. State 
 V. Spalding, 19 Conn. 233. 
 
 294. On the trial of an indictment for 
 passing a forged note, knowing it to be 
 forged, evidence that the prisoner tried to 
 hire a person to procure for him counterfeit 
 money, that he inquired whether he had 
 brought him any, and declared that he in- 
 tended to cultivate the acquaintance of a 
 counterfeiter, and intended to remove to 
 another place, is admissible as tending to 
 prove the scienter. Finn v. Com. 5 Rand. 
 701. 
 
 295. On the trial of an indictment for 
 passing counterfeit money, evidence that 
 about the time of the alleged offense the 
 wife of the defendant sold to the witness 
 other counterfeit money belonging to the 
 defendant, in his absence, and that the 
 defendant was afterward informed of the 
 transaction and sanctioned it, is admissible 
 as tending to show knowledge on the part 
 of the defendant that the bill passed by him 
 was counterfeit. Bersch v. State, 13 Ind. 
 434. 
 
 296. The manner in which the accused 
 read the note to a person to whom he offered 
 it, may be proved to show the quo animo 
 with which the note was made and uttered. 
 Butler V. State, 22 Ala. 43. 
 
 297. Evidence that the prisoner, when 
 arrested, two or three hours after an alleged 
 attempt on his part to pass a counterfeit 
 bank note, had in his possession a large 
 amount of similar counterfeited notes, which 
 he tried to conceal from the officer, while 
 willingly exhibiting the genuine bank notes 
 
 in his possession, is admissible against him, 
 as tending to show guilty knowledge and 
 intent. Johnson v. State, 85 Ala. 370. 
 
 298. Evidence that genuine notes of the 
 bank, which the prisoner is charged with 
 counterfeiting, were at that time current, is 
 admissible against him, as bearing on the 
 question of fraudulent intent, and tending 
 to show a motive for the commission of the 
 offense. lb. 
 
 299. On the trial of an indictment for the 
 forgery of a deed, it may be proved by the 
 grantor, without notice to produce papers, 
 that the defendant had previously brought 
 to him the draft of a deed which he saw, 
 and read, but did not execute, and which 
 w\i3 different from the deed which was 
 afterwards brought to him as the same, and 
 as such executed. State v. Shurtliff, 18 
 Maine. 368. 
 
 300. Where the indictment charges the 
 intent to defraud a particular bank or per- 
 son, the intent must be proved as laid. 
 Com. V.Whitney, Thach. Crim. Gas. 588; 
 U. S. V. Moses, 4 Wash. 726 ; State v. Har- 
 rison, G9 N. C. 143 ; s. c. 1 Green's Crim. Reps. 
 537. 
 
 301. Intoxication of defendant. Intoxi- 
 cation is not a defense to an indictment for 
 passing counterfeit money if the defendant 
 was possessed of his reason, and was capa- 
 ble of knowing whether the note passed by 
 him was good or bad. U. S. v. Roudenbush, 
 1 Bald. 514. But the fact that the prisoner 
 was intoxicated when he passed a counter- 
 feit bill is a circumstance proper to be sub- 
 mitted to the jury in determining whether 
 he knew that the bill was counterfeit. Pig- 
 man V. State, 14 Ohio, 555. 
 
 302. To be considered by jury. On the 
 
 trial of an indictment for passing a forged 
 bank check, no other writing being intro- 
 duced in evidence, and the indorsement and 
 signature being proved, it was held projjer 
 to submit the check to the jury, with or 
 without the aid of experts, to determine 
 whether the whole instrument, with the in- 
 dorsement was made by one and the same 
 hand. State v. Scott, 45 Mo. 302. And see 
 State V. Five, 26 Maine, 812.
 
 FORGERY.— FORMER ACQUITTAL OR CONVICTION. 223 
 
 Verdict. 
 
 General Principles. 
 
 6. Verdict. 
 
 303. Need not negative mitigating cir- 
 cumstance. On a trial for uttering and 
 publishing as true a forged instrument, the 
 verdict need not negative the fact that the 
 defendant received the forged instrument 
 from another person, in good faith and for 
 a valuable consideration, although that fact, 
 if found by the jury, would reduce the 
 oflfense to forgery in the third degree. Scully 
 V. State, 39 Ala. 240. 
 
 304. Bad for uncertainty. An indict- 
 ment contained a count for the forgery of a 
 note, and another count for the forgery of an 
 indorsement on the note. The jury rendered 
 the following verdict : " Not guilty on the 
 first count. On the second count, viz., that 
 of uttering a negotiable note, knowing it to 
 be forged, we find the prisoner guilty. Held 
 that the verdict was bad for uncertainty. 
 Cocke V. Com. 13 Graft. 750. 
 
 /ormcr wlcquittal ox £on- 
 inctiou. 
 
 1. Genekal principles. 
 
 2. Former acquittal. 
 
 3. Former conviction. 
 
 4. Plea. 
 
 5. Evidence. 
 
 1. General principles. 
 1. Rights of prisoner. Where the ac- 
 cused has been acquitted, and his acquittal 
 has not been procured by his own fraud or 
 evil practice, he shall not again be put in 
 jeopardy by a second trial. But in case of 
 conviction, the accused is entitled to a new 
 trial, in the same manner as in civil actions. 
 State V. Brown, 16 Conn. 54 ; State v. Davis, 
 4 Blackf. 345 ; State v. Spear, G Mo. 644 ; 
 Gerard v. People, 3 Scam. 362; State v. 
 Slack, 6 Ala. 676; People v. Allen, 1 Parker, 
 445; State v. Johnson, 8 Blackf. 533; Case 
 of Serjeant, 2 City Hall Rcc. 44. A former 
 acquittal is not, however, a bar to a second 
 prosecution for the same offense, unless the 
 real merits were gone into under the first in- 
 dictment. Com. V. Curtis, Thach. Crim. Cas. 
 
 202. In Arkansas, in cases of misdemeanor 
 punishable by fine only, after trial and ac- 
 quittal, there may be a second trial for the 
 same oflense. Jones v. State, 15 Ark. 261. 
 
 2. Where persons are indicted for an 
 assault and battery committed upon A., B. 
 or C, the indictment and conviction may 
 be pleaded in bar of a second prosecution ; 
 and on the tiial of such issue it will be com- 
 petent for the defendants to show that on 
 the former trial proof of an assault upon 
 such person was given, and that it was the 
 assault for which the jury found their ver- 
 dict; and such proof will entitle the de- 
 fendants to acquittal. People v. White, 55 
 Barb. 606. 
 
 3. What required to constitute a bar. 
 A former trial is not a bar, unless the first 
 indictment was such that the prisoner might 
 have been convicted upon proof of the facts 
 set forth in the second indictment. Burns 
 V. People, 1 Parker, 182 ; Price v. State, 19 
 Ohio, 423 ; Durham v. People, 4 Scam. 172 ; 
 State V. Glasgow, Dudley, S. C. 40 ; Com. v. 
 Wade, 17 Pick. 395 ; Com. v. Roby, 12 Pick. 
 496 ; State v. Birmingham, Busbee, 120 . 
 Roberts v. State, 14 Ga. 8. Where the jury 
 could lawfully have found the defendant 
 guilty of a lesser oflense, an acquittal of a 
 higher will be a bar to an indictment for the 
 lower. State v. Standifer, 5 Porter, 523. 
 
 4. Pendency of second indictment. The 
 pendency of an indictment is not a ground 
 for a plea in abatement to another indict- 
 ment in the same court for the same cause ; 
 nor is it a ground for arresting judgment. 
 Com. V. Drew, 3 Cush. 279 ; Com. v. Mur- 
 phy, 11 lb. 472; Com. v. Berry, 5 Gray, 93. 
 
 5. Demurrer to plea to jurisdiction. On 
 a trial for murder, the prisoner jileaded in 
 bar to the jurisdiction of the court, to which 
 the prosecution demurred and the court sus- 
 tained the demurrer and ordered the pris- 
 oner to plead over to the indictment. Held 
 that there had been no trial within the pro- 
 visions of the State and national constitu- 
 tions, which protect persons from being 
 twice put in jeopardy for the same oflense. 
 Gardiner v. People, 6 Parker, 155. 
 
 6. Impanneling jury without arraign- 
 ment. Where there is no arraignment of
 
 224 
 
 FOKMER ACQUITTAL OE CONVICTION. 
 
 General Principles. 
 
 Former Acquittal. 
 
 the prisoner, nor waiver of it, the irapannel- 
 ing of a jury is a mere irregularity, and the 
 prisoner may be tried on another indictment 
 for the same offense. Bryaus v. State, 34 
 Ga. 323. 
 
 7. Where the offense is against sepa- 
 rate jurisdictions. Altliough a person can- 
 not be twice punished under the same juris- 
 diction, yet he may be, where the offense is 
 against two different jurisdictions — as for a 
 violation of the charter of a city and a penal 
 law of the State. Ambrose v. State, 6 Ind. 
 351 ; Phillips v. People, 55 111. 439. 
 
 2. Former acquittal. 
 
 8. Discharge by magistrate. In Vir- 
 ginia a discharge by an examining court 
 upon an accusation of felony, is not a bar to 
 another prosecution for the same offense, un- 
 der the statute (Code, ch. 205, § 11), unless 
 the record shows that the discharge was 
 upon the investigation of the facts. McCann 
 V. Com. 14 Gratt. 570. 
 
 9. Quashing indictment. Where an in- 
 dictment is quashed by reason of some of 
 the grand jurors who found the bill being 
 incompetent, the prisoner may be tried on 
 another indictment. Brown v. State, 5 Eng. 
 607. 
 
 10. When the indictment is so defective 
 that no judgment can be given upon it, there 
 may be a second prosecution notwithstand- 
 ing an acquittal. Canter v. People, 2 N. Y. 
 Trans. Appeals, 1. 
 
 11. The fact that permission was given to 
 the defendant to withdraw his plea of not 
 guilty and file a plea of misnomer in abate- 
 ment, and the abatement of the indictment 
 on that ground, will not bar a second prose- 
 cution for the same offense. Com. v. Farrell, 
 105 Mass. 189. 
 
 12. But where a prosecuting attorney, 
 having discovered a material omission in an 
 indictment for perjury, supplied it without 
 the leave of the court, and the case went to 
 trial on the indictment as amended, and the 
 defendant was acquitted — Held that such 
 acquittal was a bar to a subsequent indict- 
 ment for the same offense. People v. Cook, 
 10 Mich. 164. 
 
 13. Suspension of trial. A former in- 
 
 dictment for the same offense, arraignment 
 thereon, plea of not guilty, commencement 
 of the trial by calling one juror, and its sus- 
 pension against the consent of the prisoner, 
 is not a bar to a second indictment. Ferris 
 v. People, 48 Barb. 17. 
 
 14. Entry of nolle prosequi. A nolle 
 prosequi entered by the prosecution, and a 
 consequent discharge of the prisoner, is not 
 a bar to another indictment for the same of- 
 fense. Com. V. Wheeler, 2 Mass. 172; Lind- 
 say V. Com. 2 Va. Cas. 345 ; Wortham v. 
 Com. 5 Rand. 609 ; Walton v. State, 3 Sneed, 
 687. 
 
 15. But if, after the juiy have been charged 
 with the cause, a nolle prosequi is entered 
 without the consent of the defendant, and 
 the record shows no necessity for the dis- 
 charge, the defendant cannot be put on his 
 trial a second time for the same offense. 
 Mount v. State, 14 Ohio, 295 ; Reynolds v. 
 State, 3 Kelly, 53 ; U. S. v. Shoemaker, 2 Mc- 
 Lean, 114. 
 
 16. Discharge of jury. The arbitrary 
 discharge of the jury, against the consent of 
 the prisoner, without any cause, and where 
 no circumstances exist calling for the exer- 
 cise of the discretion of the court, is a bar 
 to his subsequent trial upon the same indict- 
 ment. Grant v. People, 4 Parker, 527 ; Ned 
 V. State, 7 Porter, 187 ; Com. v. Cook, 6 Serg. 
 & Rawle, 577. 
 
 17. But the discharge of the jury by the 
 court in a case of manifest necessity, such as 
 the sudden illness of a juror, the illness of 
 the prisoner, or other urgent cause, will not 
 exempt the prisoner from being again put 
 upon trial. U. S. v. Perez, 9 Wheat. 579 ; 
 U. S. V. Haskell, 4 Wash. C. C. 402 ; State v. 
 Hall, 4 Halst. 256; U. S. v. Shoemaker, 2 
 McLean, 114; Com. v. Roby, 12 Pick. 496. 
 
 18. Separation of jury. Irregularities, 
 whereby a lawful verdict is prevented, are 
 not a bar to a second trial. Consequently, 
 there may be another trial notwithstanding 
 the jury, after the cause was submitted to 
 them, separated without authority, and with- 
 out having agreed on a verdict. People v. 
 Reagle, 60 Barb. 527; contra, State v. Garri- 
 gues, 1 Hayw. 276. 
 
 19. Acquittal through error of court.
 
 FORMER ACQUITTAL OR CONVICTION. 
 
 225 
 
 Former Acquittal. 
 
 An error of the court or jury in regarding as 
 material an immaterial variance between 
 the allegations and the proof, will not ren- 
 der the acquittal less available as a bar to a 
 subsequent prosecution. People v. Hughes, 
 41 Cal. 234. 
 
 20. When a verdict of not guilty has been 
 rendered in favor of a party, under a decision 
 of the court that the indictment upon which 
 it is rendered was insufBcieut to sustain a 
 conviction, yet if that decision was wrong, 
 and in fact a conviction could have been 
 maintained under the indictment, such ver- 
 dict and judgment, when pleaded, will pro- 
 tect the party against a second conviction 
 for the same offense. Black v. State, 36 
 Ga. 447, Walker, J., dissenting. 
 
 21. Where there is no punishment. The 
 amendment of a statute reviving the original 
 law for the punishment of murder, does not 
 affect a prisoner who meanwhile had ob- 
 tained a judgment that the existing law did 
 not authorize any punishment; the effect of 
 such judgment being equivalent to acquittal. 
 Hartung v. People, 26 N. T. 167; s. c. 28 
 K Y. 400. 
 
 22. In case of variance. A discharge on 
 the ground of a variance between the indict- 
 ment and proof is not a bar to a trial and 
 conviction upon a subsequent indictment for 
 the same offense. 2 N. Y. R. S. 701, § 24; 
 Canter V. People,! N. Y. Ct. of Appeals Decis. 
 305. But where the defendant was tried 
 and acquitted under an indictment charging 
 him with forgery by the alteration of an or- 
 der drawn on the firm of J. Irwin & Co., 
 such acquittal was held a bar to a second in- 
 dictment for the same forgeiy, which de- 
 scribed the firm as "John Irwin & Co." 
 Durham v. People, 4 Scam. 172. 
 
 23. Acquittal of codefendant. The ac- 
 quittal of a codefendant is not a bar to a 
 ])rosecution against the other defendant. 
 State V. McClintock, 1 Iowa, 302. 
 
 24. Acquittal of joint ofifense. The ac- 
 quittal of several defendants charged with 
 committing an offense jointly, will not bar a 
 prosecution against each one charged with 
 part of the same offense separately commit- 
 ted by him. Com. v. MeChord, 2 Dana, 242. 
 
 25. Acquittal of part of entire transac- 
 
 15 
 
 tion. A. having stolen a horse, wagon and 
 
 harness, two indictments were found against 
 him, one for stealing the horse, and the 
 other for stealing the wagon and harness. 
 Held, that a trial and acquittal on one of the 
 indictments was a good plea in bar against 
 the other. Fisher v. Com. 1 Bush, Ky. 211, 
 28. Acquittal on some of several counts. 
 Where each count of an indictment charges 
 a distinct and substantive offense, and on 
 the trial the defendant is acquitted of the 
 charge on either count, he cannot be again 
 put in jeopardy upon that charge. Esmon 
 V. State, 1 Swan, 14 ; Campbell v. State, 9 
 Yerg. 333. 
 
 27. Where an indictment charges the same 
 offense in different ways in several counts, 
 and the defendant is acquitted upon some 
 of the counts, and convicted upon others, in 
 case of a new trial he may be tried on all 
 the counts. Lesslie v. State, 18 Ohio, N. S. 
 390. 
 
 28. After a trial upon two coimts of an in- 
 dictment, which results in a disagreement of 
 the jury, the defendant may be tried on the 
 whole indictment; and it is discretionary 
 with the prosecution whether he shall be 
 tried again on the whole, or any part of the 
 charge at the same tenn of the court. The 
 only limitation to this discretion is that the 
 counts upon which the disagreement has 
 taken place, cannot be again put to the 
 same jury. Com. v. Burke, 16 Gray, 32. 
 
 29. In case of distinct offenses. Where 
 a person at the same time, and in the same 
 transaction, commits two distinct crimes, an 
 acquittal of one will not be a bar to an in- 
 dictment for the other. State v. Standifer, 
 5 Porter, 523. Where, therefore, the pris- 
 oner was a second time indicted for the 
 same act of shooting that was charged in the 
 first indictment, but a different person was 
 alleged in the second indictment to have 
 been killed, a plea of former acquittal was 
 held bad. Vaughan v. Com. 2 Va. Cas. 
 
 At o. 
 
 30. An acquittal under an indictment 
 charging the prisoner with mixing arsenic 
 with flour, and causing it to be administered 
 to A., with intent to kill her, is not a bar to 
 a subsequent indictment, charging the pris-
 
 226 
 
 FORMER ACQUITTAL OR CONYICTIOK 
 
 Former Acquittal. 
 
 oiicr with the same act of mixing the arsenic 
 •and causing it to be administered to B., 
 -with intent to kill him. People v. Warren, 
 1 Parker, 338. 
 
 31. An acquittal of the charge of larceny 
 of certain goods is not a bar to an indict- 
 ment for the larceny of certain other goods, 
 although the last mentioned goods are of 
 such a character that the language of the 
 first indictment might describe them, there 
 l)eiDg no evidence of the identity of the 
 offenses, except the introduction of the for- 
 mer indictment. Com. v. Sutherland, 109 
 Mass. 342. 
 
 32. The defendant was tried and acquitted 
 under an indictment charging him with 
 stealing eight and a half dollars from the 
 dwelling-house of J. W., belonging to J.* 
 W. and in his possession. But the defend- 
 ant was convicted under a second indict- 
 ment charging him with stealing eight and 
 a half dollars, the property of R. P. from 
 the house of R. P., the money being in the 
 possession of J. W. Held, that as the only 
 identity in the two cases was the amount of 
 money stolen and its possession, the convic- 
 tion was proper. Morgan v. State, 34 Texas, 
 677. 
 
 33. An acquittal of the prisoner on an in- 
 dictment charging him with having stolen, 
 taken and carried away one bank note of 
 the Planters' Bank of Tennessee, payable on 
 demand at the Merchants' and Traders' Bank 
 of New Orleans, was held not a bar to a 
 second indictment, charging him with hav- 
 ing stolen, taken and carried away, one 
 bank note of the Planters' Bank of Tennes- 
 see, payable on demand at the Mechanics' 
 and Traders' Bank of New Orleans. Hite 
 V. State, 9 Yerg. 357. 
 
 34. A person was indicted for stealing a 
 sheep, the property of A., and acquitted on 
 the ground that the owner of the property 
 was unknown. He was then again indicted 
 for the same offense, the sheep being charged 
 to be the property of some one to the jurors 
 unknown. Helcl^ that the former trial was 
 not a bar to a conviction upon the second 
 indictment. State v. Revels, Busbee, 200. 
 
 35. An acquittal of a prisoner charged with 
 burning a barn, on account of the misde- 
 
 scription of the name of the owner of the 
 barn, was held not to be a bar to another 
 indictment wniha proper description. Com. 
 V. Mortimer, 2 Va. Cas. 325 ; Com. v. Wade, 
 17 Pick. 395. 
 
 36. Where a person was tried and ac- 
 quitted for embezzling cloth used in making 
 overcoats, it was held no bar to the trial of 
 a second indictment charging him with em- 
 bezzling the overcoats which were made of 
 the cloth. Com. v. Clair, 7 Allen, 525. 
 
 37. In case of larceny. The trial of an 
 indictment at common law for larceny of 
 bonds, and acquittal, is not a bar to the trial 
 of a second indictment for the felonious and 
 fraudulent conversion of the same bonds, it 
 not being alleged or proved that the defend- 
 ant was not intrusted with the custody of 
 the bonds. Com. v. Tenney, 97 Mass. 50. 
 
 38. An acquittal of larceny cannot be 
 pleaded in bar to an indictment for the same 
 offense charged as a conspiracy unlawfully 
 to obtain the goods. State v. Sias, 17 New 
 Hamp. 558. 
 
 39. Whether a person who has been tried 
 under an indictment for larceny and receiv- 
 ing stolen goods, and acquitted of the former 
 and convicted of the latter, can be tried 
 again under a subsequent indictment charg- 
 ing him with being an accessory before the 
 fact to the stealing of the same goods — query. 
 State V. Larkin, 49 New Hamp. 30. 
 
 40. An acquittal for stealing goods will 
 not bar a subsequent prosecution for obtain- 
 ing the same goods by false pretenses, al- 
 though the evidence is the same in each 
 case. Dominick v. State, 40 Ala. 680. 
 
 41. In case of forgery. An acquittal 
 under an indictment for forging and utter- 
 ing a false order was held not to be a bar to 
 a subsequent indictment for fraudulently ob- 
 taining store goods by means of such forged 
 order. Com. v. Quann, 2 Va. Cas. 89. 
 
 42. An acquittal for the forgery of a cer- 
 tiiicate of deposit of money in a bank, is 
 not a bar to a subsequent indictment for an 
 attempt to obtain money from another bank 
 by a forged letter inclosing the certificate of 
 deposit, and requesting the amount to be 
 sent to the writer of the letter. People v. 
 Ward, 15 Wend. 231. But where a person
 
 FORMER ACQUITTAL OR CONVICTION, 
 
 227 
 
 Former Acquittal. 
 
 Former Conviction. 
 
 having been tried and acquitted for having 
 in possession a counterfeit plate, pleaded 
 the acquittal in bar of second indictment 
 charging him with the possession of another 
 counterfeit plate, and it appeared that both 
 involved but a single act of possession, a 
 nolle prosequi was entered on the second in- 
 dictment. U. S. V. Miner, 11 Blatchf. 511; 
 «. c. 2 Green's Crim. Reps. 246. 
 
 43. A. was indic£ed for forging the follow- 
 ing instrument and uttering it to B. as the 
 act of B.'s mother: '' I have bought of A. 
 two frocks for $7 ; ask your employers for 
 the money and let him have it." (Signed) 
 "Mrs. B."' Held, that an acquittal was a bar 
 to an indictment aftenvard found for obtain- 
 ing the money from B. by the false pretense 
 that the instrument was true. People v. 
 Krummer, 4 Parker, 217. 
 
 44. In case of seduction. An acquittal 
 for seduction is a bar to a second indict- 
 ment for fornication growing out of the same 
 act. Dinkey v. Com. 17 Penn. St. 126. 
 
 3. Former conviction. 
 
 45. Where the proceedings were illegal. 
 A former conviction to be an available de- 
 fense to another prosecution, must have been 
 lawful. If the court had not jurisdiction, 
 or the proceedings were illegal, or the indict- 
 ment invalid, tlie conviction will be treated 
 fis a nullity. State v. Spencer, 10 Humph. 
 431 ; State v. Ray, Rice, 1 ; Com. v. Goddard, 
 13 Mass. 455; State v. Odell, 4 Blackf. 156; 
 Com. V. Peters, 12 Mete. 887; People v. 
 Barrett, 1 Johns. 66; Com. v. Roby, 12 Pick. 
 496. 
 
 46. A person convicted at a court not 
 duly authorized by law, may be lawfully 
 tried, precisely as if no such proceeding had 
 ever taken place. Dunn v. State, 2 Ark. 229 ; 
 State V. Payne, 4 Mo. 376 ; Rector v. State, 
 1 Eng. 187. 
 
 47. In Tennessee, under the statute (of 
 Jan. 11, 1848), a former trial and conviction 
 for an assault and battery before a justice of 
 the peace, was held to be a bar to a subse- 
 quent indictment for the same offense, even 
 if the act were unconstitutional. McGinnis 
 V. State, 9 Humph, 43. But if an illegal fine 
 was imposed, the defendant might be in- 
 
 dicted for the same offense. State v. Atkin- 
 son, 9 Humph. 677. 
 
 48. If a person be tried on a charge of 
 larceny, and convicted, and perform the 
 sentence, such conviction and performance 
 of the sentence, will bar an indictment for 
 the same offense, although the proceedings 
 were erroneous, and might have been set 
 aside. Com. v. Loud, 3 Mete. 328. 
 
 49. Conviction obtained by fraud. Where 
 a person having been summoned to attend 
 before the grand jury, to testify against an- 
 other for selling spirituous liquors, the day 
 before he was so to appear, went before a 
 justice of the peace, and made a complaint 
 for the same offense, upon which the defend- 
 ant pleaded guilty and was fined by the 
 justice after hearing the evidence; it was 
 held that these proceedings before the 
 justice, being a fraud, were not a bar to an 
 indictment for the same ofiense. State v. 
 Lowry, 1 Swan, 34. 
 
 50. In North Carolina, an indictment for 
 assault and battery having been found in the 
 Superior Court against the defendant, pend- 
 ing the same, and before his arrest, he caused 
 himself to be indicted for the same offense 
 in the County Court, and there voluntarily 
 submitted and was fined ; it was held that 
 the conviction in the County Court was a 
 bar to the indictment in the Superior Court. 
 State V. Casey, Busbee, 209. But in Massa- 
 chusetts, it has been held that if a person is 
 convicted for assault and battery before a 
 justice of the peace on his own confession, 
 and fined, it is no bar to an indictment for 
 the same ofiense. Com. v. Alderman, 4 Mass. 
 477. And the same in New Hampshire, 
 State V. Little, 1 New Hamp. 257 ; and Vir- 
 ginia, Com. V. Jackson, 2 Va. Cas. 501. 
 Likewise in Tennessee, State v. Colvin, 11 
 Humph. 599. But see Com. v. Dascom, 111 
 Mass. 404. 
 
 51. In Missouri, the defendant having 
 committed an assault and battery went be- 
 fore a justice and instituted proceedings 
 against himself, and was fined three dollars 
 and costs. Afterward the injured party 
 caused him to be prosecuted for the same 
 offense. Held that the former conviction 
 was not a bar, it being apjiarent that the
 
 228 
 
 FORMER ACQUITTAL OK CO^YICTION. 
 
 Former Conviction. 
 
 first prosecution was a mere sham. State v. 
 Cole, 48 Mo. 70. 
 
 52. Improper dismissal of indictment. 
 Tlie prisoner having been tried and con- 
 victed of forgery, took exceptions to the 
 charge of the judge to the jury. The mat- 
 ter was then continued, and marked "low" 
 upon the docket of that term. At the sue- 1 
 cceding term the defendant, by leave of} 
 court, withdrew his exceptions, and the at- 
 torney of the State suggesting he wouhl not 
 further prosecute the indictment, the court 
 ordered it dismissed. At a subsequent term 
 of the court the defendant was again in- 
 dicted for forgeiy, and the allegations were 
 in all respects similar to those in the former 
 indictment. Held that the plea of autefois 
 convict was good. State v. Elden, 41 Maine, 
 165. 
 
 53. Insufficient verdict. Where the ver- 
 dict is insulficient to sustain a conviction, 
 the former trial cannot be opposed in bar of 
 a second prosecution. State v. Ritchie, 3 
 La. An. 715. The prisoner having been 
 found " guilty of forging a receipt for the 
 use of H. P., under an indictment charging 
 it to have been for the use of H. B.," the 
 verdict was abandoned. Held on a second 
 indictment charging as the jury found on 
 the first, that the former discharge could 
 not be pleaded in bar. State v. Huffman, 
 Addis. 140. 
 
 54. Arrest of judgment. If after con- 
 viction the judgment is arrested, the pro- 
 ceeding set aside, and the prisoner dis- 
 charged, he cannot be considered to have 
 been legally in jeopardy, and cannot plead 
 the conviction in bar to a subsequent indict- 
 ment. Gerard v. People, 3 Scam. 363. 
 
 55. But if after a conviction on a valid 
 indictment, judgment is erroneously arrested, 
 it is a bar to a subsequent prosecution. The 
 judgment of discharge so made may, how- 
 ever, be reversed on appeal, and in that 
 case the former judgment will be enforced 
 against the prisoner. State v. Norvell, 2 
 Yerg. 24. 
 
 56. Improper reversal of judgment. 
 Where the judgment is reversed on the 
 ground alone that a wrong judgment was 
 given upon a lawful and regular trial and 
 
 conviction, the prisoner cannot constitution- 
 ally be tried again. Shepherd v. People, 2.> 
 N. Y. 406, Davies, Smith and Gould, JJ., 
 dissenting. But see Ratzky v. People, 29 
 N. Y. 124, and McKee v. People, 32 lb. 239, 
 referring to a special statute where this is 
 now permitted. 
 
 57. Where on a trial in the Court of Ses- 
 sions, the offense charged in the indictment 
 was an assault and battery with a deadly 
 weapon with intent to kill, and the jury 
 found the prisoner " guilty of the crime of 
 assault and battery with intent to kill," and 
 the judgment was reversed by the Supreme 
 Court on the ground that the verdict was 
 for simple assault and battery, it was held 
 that the latter court could neither give a 
 new judgment nor send the case back for a 
 proper judgment, but that the reversal was 
 final. O'Leary v. People, 4 Parker, 187. 
 
 58. "Where there are several indict- 
 ments. Where commissioners are liable to 
 indictment for not keeping the streets of a 
 town in repair, if two or more of the streets 
 of the town are out of repair at the same 
 time, and several indictments are found 
 therefor, a conviction on one of such indict- 
 ments is a bar to the rest. State v. Com- 
 missioners, 2 Murphy, 371. 
 
 59. Two indictments having been found 
 against a person for passing counterfeit bank , 
 bills, he demanded his trial on both, but 
 was tried only on one, convicted and sen- 
 tenced to be hanged, but was pardoned by 
 the governor, and again arrested on the 
 second indictment. Held that the prisoner 
 was entitled to his discharge. State v. Stal- 
 naker, 2 Brev. 44. 
 
 60. A conviction on one of several infor- 
 mations for having several forged bills in 
 possession is a bar to a subsequent informa- 
 tion founded on the jjossession of any part 
 of the same parcel of bills. State v. Ben- 
 ham, 7 Conn. 414. 
 
 61. Must be for same offense. A con- 
 viction or acquittal, to be a bar to another 
 prosecution, must be for the same offense. 
 Where a person was convicted for advising 
 
 1 the slave of another person to run away, it 
 was held no bar to another indictment for a 
 similar offense committed at the same time,
 
 FORMER ACQUITTAL OR CONVICTION. 
 
 229 
 
 Former Conviction. 
 
 but with reference to another slave. Smith 
 V. Com. 7 Gratt. 593. 
 
 62. Where there has been a conviction for 
 burglary, a plea of autrefois convict is a good 
 answer and defense to a subsequent indict- 
 ment committed at the same time and by 
 means of the burglary, it being all the same 
 felony, and the lesser being merged and 
 satisfied in the conviction and punishment 
 of the greater. People v. Smith, 57 Barb. 
 46 ; State v. Lewis, 2 Hawks, 98. But in 
 such case, an acquittal of the larceny will 
 not operate in bar of another trial for the 
 burglary. Copenhaveu v. State, 15 Ga. 264. 
 
 63. Where a person was convicted of 
 arson, it was held that such conviction was 
 a bar to an indictment for murder, which 
 was a consequence of the arson. State v. 
 Cooper, 1 Green, 361. 
 
 64. Where two persons are injured by the 
 same assault and battery, and the defendant 
 has been legally convicted for the assault 
 and battery committed on one of them, it 
 will be a bar to an indictment for the assault 
 and battery committed on the other. State 
 V. Damon, 2 Tyler, 387. 
 
 65. A fine for a breach of the peace is a 
 bar to a subsequent indictment against the 
 same party for an assault and battery, in 
 which the breach of the peace for which he 
 was so fined had been committed. Com. v. 
 Miller, 5 Dana, 320. 
 
 66. A conviction for an affray, is a bar to 
 a subsequent prosecution for an assault and 
 battery founded on the same transaction. 
 Fritz V. State, 40 Ind. 18. 
 
 67. A conviction upon an indictment for 
 an attempt to commit a rape is a bar to an 
 indictment for rape. State v. Shepard, 7 
 Conn. 56. 
 
 68. A conviction for a riot at a religious 
 meeting will bar an indictment for dis- 
 turbing the meeting by the same acts. State 
 V. Townsend, 2 Harring. 543. 
 
 69. A conviction for horse racing may be 
 pleaded in bar to an indictment for betting 
 on the same race. Fiddler v. State, 7 
 Humph. 508. 
 
 70. Convictionof lesser offense. Where a 
 prisoner, in committing a felony not capital, 
 at the same time intentionally commits a 
 
 capital felony, if the State thinks proper to 
 prosecute for the lesser offense, a conviction 
 thereof will operate as a bar to an indict- '^ 
 ment for the capital oflense. State v. Cooper, 
 1 Green, 362. 
 
 71. Where a person has been tried for 
 murder, and convicted of a lesser grade of 
 homicide, he cannot be again tried for the 
 higher crime. State v. Martin, 30 Wis. 216. 
 Therefore where a person having been put 
 upon his trial for murder is found guilty of 
 murder in the second degree, and a new trial 
 granted, he cannot be tried again for murder 
 in the first degree, but only .for murder in 
 the second degree. State v. Ross, 29 Mo. 
 33, Scott, J., dissenting; Clem v. State, 
 42 Ind. 420; s. c. 2 Green's Crim. Reps. 
 687. 
 
 72. The defendant having been found 
 guilty of manslaughter under an indictment 
 for murder, the verdict was on his motion 
 set aside. Held that although the prisoner 
 could not on a second trial be compelled to 
 answer to the charge of murder, yet that he 
 might be tried and convicted under the 
 same indictment of manslaughter. People 
 V. Gilmore, 4 Cal. 376; Slaughter v. State, 
 6 Humph. 410 ; State v. Desmond, 5 La. 
 An. 398; State v. Brette, 6 lb. 658. On 
 such second trial, it is proper for the court 
 to instruct the jury that if they believe 
 from the evidence that the defendant was 
 guilty of murder, that will not justify them 
 in acquitting him of manslaughter. Bar- 
 nett V. People, 54 111. 825. 
 
 73. In Ohio, where on a trial for murder, 
 the defendant is found guilty of an inferior 
 degree of homicide, the legal effect of grant- 
 ing a new trial is to set aside the whole 
 verdict, and leave the case for retrial upon 
 the same issues on which it was first tried. 
 State v. Behimer, 20 Ohio, N. S. 572. The 
 practice is the same in Kansas. State v. 
 McCord, 8 Kansas, 232; s. c. 1 Green's 
 Crim. Reps. 400. 
 
 74. Where the same act constitutes 
 distinct offenses. A person may be twice 
 punished for the same act, when the act is 
 of such a character as to constitute two 
 distinct crimes; as for keeping a drinking 
 house and tippling shop, and also for being
 
 230 
 
 FOEMER ACQUITTAL OR CONVICTION. 
 
 Former Conviction. 
 
 a common seller of intoxicating liquors, 
 although the same illegal acts contribute to 
 make up each offense. State v. Inness, 53 
 Maine, 530. In Maine, a conviction for 
 being a common seller of spirituous liquors 
 is not a defense to a complaint for a single 
 act of sale, though such act be within the 
 time embraced in the indictment. State v. 
 Maher, 35 Maine, 225 ; State v. Coombs, 32 
 lb. 529. The contrary has been held in 
 Vermont. State v. Nutt, 28 Vt. 598. In 
 Massachusetts, a person may be tried for 
 maintaining a tenement for the illegal keep- 
 ing and sale of intoxicating liquors, al- 
 though he has previously been tried and 
 convicted for keeping the liquors with 
 intent to sell them. Com. v. McShane. 110 
 Mass. 502 ; s. c. 2 Green's Crim. Reps. 279. 
 
 75. Neither a conviction nor pardon for a 
 particular offense is a bar to a trial for any 
 other distinct offense. Hawkins v. State, 1 
 Porter, 475. In South Carolina it was held 
 that a conviction for a subsequent offense 
 which was pardoned by the governor, was 
 not a bar to the prosecution of any other 
 offense not mentioned in the pardon. State 
 V. McCarty, 1 Bay, 334. 
 
 76. A conviction for assault and battery 
 will not bar a trial for an assault with inten- 
 tion to do great bodily injury. State v. Fos- 
 ter, 33 Iowa, 525. Or for an assault with a 
 deadly weapon. Severin v. People. 87 111. 
 414. And see Freeland v. People, 16 lb. 380. 
 So a conviction for assault and battery with 
 intention to murder is not a bar to an indict- 
 ment for murder. Com. v. Roby, 12 Pick. 
 496. And a conviction for assault and bat- 
 tery is not a bar to a subsequent indictment 
 for manslaughter, when the person assaulted 
 afterward dies of tlie wounds caused by the 
 blows. Burns v. People, 1 Parker, 182. 
 
 77. Where the commission of an assault 
 and battery is incidental to a riot, a convic- 
 tion for the one will not bar a prosecution 
 for the other. Wininger v. State, 13 Ind. 
 540 ; Scott V. U. S. 1 Morris, 142. But A., 
 having been convicted under an indictment 
 for an assault and battery upon B., a second 
 indictment was found against him and others 
 for riot and beating the said B. Held that 
 the former conviction was a bar to the sec- 
 
 ond indictment. Com. v. Kinney, 2 Va.. 
 Cas. 139. 
 
 78. A conviction for an afiray will bar a 
 prosecution for an assault and battery com- 
 mitted during the aflray. Fritz v. State, 40 ; 
 Ind. 18 ; s. c. 1 Green's Crim. Reps. 554. But -tt 
 where on the trial of an indictment for as- 
 sault and battery it appeared that the de- 
 fendant with others had been convicted of 
 
 an ailray, and that the assault and batteiy 
 was committed on a female while endeavor- 
 ing to rescue her son from the violence of the 
 affrayers, it was held that the conviction for 
 the affray was not a bar to the present prose- 
 cution. State V. Parish, 8 Rich. 322. 
 
 79. A fine imposed for contempt in com.- 
 mitting an assault and battery in the pres- 
 ence of the court, is not a ground for a plea 
 of former conviction to an indictment for the 
 same assault and battery. State v. Yancey,. 
 1 Car. Law Rep. 519. 
 
 80. A conviction or acquittal of larceny 
 is not a bar to a subsequent prosecution for 
 receiving, concealing, and aiding in the con- 
 cealment of the stolen goods. Foster v. 
 State, 39 Ala. 229. 
 
 81. A conviction for larceny in a building 
 cannot be pleaded in bar to a charge of burg- 
 lariously breaking and entering the build- 
 ing; the former being a distinct offense, al- 
 though the theft ensued upon the breaking. 
 Wilson V. State, 24 Conn. 57 ; People v. Mc- 
 Closkey, 5 Parker, 57. 
 
 82. A conviction upon an indictment for 
 lewd and lascivious cohabitation, is not a 
 bar to a trial for adultery. Maurice v. Com. 
 108 Mass. 433. 
 
 83. Need not be judgment. There need 
 not be a judgment in order to render the 
 prisoner's plea in bar an answer to a second 
 indictment for the same offense, the verdict 
 being sufBcient for that purjjose. Mount v.. 
 State, 14 Ohio, 295; State v. Norvell, 2 
 Yerg. 24. 
 
 84. But in Massachusetts, a verdict against 
 the defendant, on which no judgment has 
 been rendered, on the trial of an indictment 
 for a nuisance under the statute (of 1855, ch. 
 405), in maintaining a building for the un- 
 lawful sale of spirituous liquors, is not a bar 
 to the trial of an indictment for beina: a com-
 
 FORMER ACQUITTAL OR CONVICTION. 
 
 231 
 
 Former Conviction. 
 
 Plea. 
 
 Evidence. 
 
 men seller of spirituous liquors at the same 
 time and place. Com. v. Lahy, 8 Gray, 4.59. 
 
 85. Improper or insufficient verdict. 
 Where the defendant may be convicted 
 upon the indictment, of either robbery in 
 the first degree or grand larceny, but is con- 
 victed of robbery in the second degree, the 
 verdict operates as an acquittal. State v. 
 Branson, 55 Mo. 6-3; s. c. 2 Green's Crim. 
 Reps. 608 ; State v. Pitts, 57 Mo. 85. 
 
 86. Where a judgment of conviction is 
 reversed on the motion of the prisoner, he 
 may be tried again, although the ground of 
 reversal is the insufficiency of the verdict, 
 and although he has already suflered a por- 
 tion of the prescribed term of imprisonment. 
 Turner v. State, 40 Ala. 21 ; Waller v. State, 
 lb. 325; JeflFries v. State, lb. 381. 
 
 4. Plea. 
 
 87. At common law. By the common 
 
 law, the plea of autrefois convict implies 
 merely a regular trial, and verdict of guilty, 
 or a confession upon a sufficient indictment. 
 Shepherd v. People, 25 N. Y. 406. 
 
 88. What to contain. A plea of former 
 acquittal or conviction, must set out in full 
 the former indictment and conviction or ac- 
 quittal, allege the identity of the prisoner 
 and of the oifenses charged in the two in- 
 dictments, and show that the court had ju- 
 risdiction at the time of the former trial, and 
 that the merits of the charge were then in- 
 vestigated. Henry v. State, 33 Ala. 389; 
 Foster v. State, 29 lb. 229 ; Lyman v. State, 
 47 lb. 686; State v. Hodgkins, 42 New 
 Ilamp. 474 ; Crocker v. State, 47 Ga. 568; 
 Wortham v. Com. 5 Rand. 669 ; McQuoid v. 
 People, 3 Gilman, 76 ; Clem v. State, 42 Ind. 
 420 ; s. c. 2 Green's Crim. Reps. 687. 
 
 89. In considering the identity of the 
 ofienses, it must appear by the plea, that the 
 offense charged in both cases was the same 
 in law and fact. The plea will be vicious if 
 the offenses charged in the two indictments 
 be distinct in point of law, however nearly 
 they may be connected in fact. An acquittal 
 for a felony is no bar to an indictment for a 
 misdemeanor; and an acquittal for a misde- 
 meanor is no bar to an indictment for a 
 felony. Tlierefore, a plea to an indictment 
 
 for rape, that the defendant has already been 
 convicted of assault and battery for the same 
 offense, is bad. People v. Saunders, 4 
 Parker, 196. 
 
 90. Demurrer to. When the attorney for 
 the prosecution demurs to a plea of former 
 acquittal or conviction, he thereby admits 
 the existence of the record of such former 
 acquittal or conviction. Com. v. Myer?, 1 
 Va. Cas. 188. When a demurrer to a plea 
 of former conviction is sustained, the judg- 
 ment should be that the defendant answer 
 over. He may then plead a better plea of 
 former conviction, or not guilty, or both. 
 Fulkuer v. State, 3 Heisk. 33 ; s. c. 1 Green's 
 Crim. Reps. 664. 
 
 91. Trial. Where a person is detained on 
 an indictment for the murder of his wife, 
 the effect of a former trial and conviction 
 for her abduction can be considered only by 
 the court that shall try him for the murder, 
 and cannot be determined on luiheas corpus. 
 People V. Ruloff, 3 Parker, 126. 
 
 92. Where the prisoner pleads a former 
 conviction and also not guilty, he cannot be 
 tried on the last plea until the first has been 
 decided against him. Com. v. Merrill, 8" 
 Allen, 545; Com. v. Bakeman, 105 Mass. 53. 
 
 93. The issue joined upon a special plea of 
 a former trial cannot be tried by the court 
 without a jury by consent of the prisoner. 
 Grant v. People, 4 Parker, 527. 
 
 94. Although when there is a plea of 
 former conviction, and also of the general 
 issue, the trial of both at the same time is 
 irregular, yet when it is by agreement of the 
 parties, the defendant is bound by the result. 
 Com. V. Dascom, 111 Mass. 404. 
 
 5. Evidence, fr 
 
 95. Burden of proof. It is incumbent on 
 the defendant to maintain by evidence, his 
 plea of a previous conviction, and to es- 
 tablish the identity of the offense charged 
 with that of which he is convicted. Com. 
 
 V. Daley, 4 Gray, 209. A former acquittal J 
 cannot be proved under the general issue, f 
 Com. V. Chesley, 107 Mass. 223. It has 
 been held otherwise as to a former convic- 
 tion. Danneburg v. State, 20 Ind. 181 ; Lee 
 V. State, 42 lb. 152.
 
 232 FOKMER ACQUITTAL OR CONVICTIO^^— FUGITIYES. 
 
 Evidence. 
 
 From Foreign Country. 
 
 96. Judgment. A previous judgment is 
 conclusive evidence between the State and 
 the defendant of all the facts necessarily ad- 
 judicated by it, although it be founded upon 
 a plea of guilty, or of nolo contendere. State 
 V. Lang, 63 Maine, 215. 
 
 97. Oral testimony. Where the record of 
 former conviction did not clearly identify 
 the offense for which the prisoner had been 
 convicted with that with which he was aft- 
 erward charged, it was held that oral testi- 
 mony was admissible to show whether the 
 acts were identical. Duncan v. Com. 6 
 Dana, 295. And see Goudy v. State, 4 
 Blackf. 548. 
 
 98. On the trial of an indictment for sell- 
 ing spirituous liquors without a license on 
 the 10th of March and 10th of April, 18G0, 
 the defendant pleaded in bar a conviction of 
 having "violated the excise law " on the 
 16th of April, 1857, and on the 1st day of 
 April, 1860, and on divers other days be- 
 tween those times and the 9th of May, 1860. 
 The only proof in sujjport of the plea was 
 the record of the former conviction. Held, 
 that as the defendant had not shown by 
 proof aliunde that the offenses mentioned 
 in the record of conviction produced in 
 evidence were the same offenses set forth in 
 the indictment, the record was not a bar. 
 People V. Cramer, 5 Parker, 171. 
 
 i^ornicatiou. 
 
 See Adultery; Bastardy; Rape; Seduc- 
 tion. 
 
 JTraub. 
 
 See False pretenses. 
 
 i^tgitiucs from Justice. 
 
 1. From foreign country. 
 
 2. From other State. 
 
 1. From foreign country. 
 1. "Who is. A person who has been mere- 
 
 ly charged or accused before a magistrate in 
 France authorized to arrest, is not one ac- 
 cused mis en accusation within the terms of 
 the treaty of 1843, between the United 
 States and France, and he cannot be de- 
 manded by the French government nor sur- 
 rendered by that of the United States. In 
 re Metzger, 1 Barb. 248 ; 1 Parker, 108. 
 
 2. Right to demand surrender. The 
 United States have never recognized the 
 right of foreign nations to demand the sur- 
 render of fugitives from justice, independ- 
 ently of treaty stipulations. Matter of Fet- 
 ter, 3 Zabr. 311 ; Case of Ferreira Dos 
 Santos, 3 Brock. 498. 
 
 3. Extradition treaties. A treaty in fu- 
 turo is in the nature of a contract, and the 
 courts cannot regard it until legislative ac- 
 tion shall be had on the subject. In re 
 Metzger, supra. 
 
 4. Construction of extradition treaties and 
 conventions between the United States and 
 foreign governments, as touching the ques- 
 tion of the jurisdiction of the United States 
 over crimes committed in foreign countries. 
 I?i re Stupp, 13 Blatchf. 501 ; s. c. 2 Green's 
 Crim. lieps. 183. 
 
 5. Extradition treaties considered on the 
 question whether they include surrender for 
 crimes committed prior to such treaties. In 
 re Giacomo, 12 Blatchf. 391. 
 
 6. Jurisdiction in proceedings for extra- 
 dition. Authority to issue warrants for the 
 arrest of fugitives, under the tenth article 
 of the treaty between the United States and 
 Great Britain, concluded on the ninth day 
 of August, 1842, and under other treaties 
 between this government and foreign gov- 
 ernments, is conferred by act of Congress 
 (of Aug. 13th, 1848, eh. 167), upon the 
 several judges of the State courts, and upon 
 the justices of the Supreme Court and the 
 District Courts of the United States, and the 
 commissioners appointed by the courts of 
 the United States. In re Heilbonn, 1 Parker, 
 439. 
 
 7. A United States commissioner has au- 
 thority, under the act of Congress of 1848, 
 ch. 167, to entertain a complaint for the 
 extradition of a person charged with crime 
 in a foreign country, without being specially
 
 FUGITIVES FROM JUSTICE. 
 
 233 
 
 From Foreign Country, 
 
 autborized or appointed by the court to do 
 po. In re Kane, 14 How. U. S. 103, per Mc- 
 Lean, Wayne, Catron and Grier, J J. ; contra, 
 Taney, C. J., Daniel and Nelson, J J. 
 
 8. The judges and commissioners upon 
 ■whom the act of Congress of 1848, ch. 167, 
 confers jurisdiction in jDroceedings for the 
 extradition of persons charged with crime 
 in a foreign country, have authority to en- 
 tertain a complaint made for that purpose 
 by a consul of Great Britain, without a pre- 
 vious requisition by his government upon 
 the President of the United States. lb. 
 jier McLean, Wayne, Catron, and Grier, JJ. ! 
 contra, Taney, C. J., Daniel and Nelson, 
 JJ. But see Case of Ferreira Dos Santos, 
 2 Brock. 493. 
 
 9. Authority cannot be exsrcised by- 
 State. The United States government has 
 exclusive authority to regulate and control 
 the surrender of fugitives from justice from 
 foreign countries ; and therefore the statute 
 of a State providing for such surrender is 
 unconstitutional. People v. Curtis, 50 N. Y. 
 321 ; Holmes v. Jennison, 14 Pet. 540 ; Ex 
 pavte Holmes, 12 Vt. 631. 
 
 10. A fugitive from a foreign country can- 
 not be arrested by a State magistrate, on the 
 accusation of a private person, of having 
 committed murder, in order to give the 
 executive of the United States an opportu- 
 nity to surrender him. Com. v. Deacon, 10 
 Serg. & Rawle, 125. 
 
 11. What necessary to give jurisdiction. 
 Before the court can entertain jurisdiction 
 of proceedings for the apprehension and 
 committal of an alleged fugitive from jus- 
 tice, whose extradition is demanded, there 
 must have been a requisition by the foreign 
 government uj^on the government of the 
 United States, and the authority of the lat- 
 ter obtained to arrest the fugitive. Matter 
 of Farez, 7 Abb. N. S. 84. 
 
 12. Whether a United States commissioner 
 can entertain prpceedings for the arrest of a 
 fugitive from justice from a foreign country 
 for the purpose of his extradition under a 
 treaty, until a mandate has been granted by 
 the government of tlie United States — query. 
 In re Macdonnell, 11 Biatchf. 79; s. c. 1 
 Green's Crim. Reps. 151. 
 
 13. Complaint. The complaint upon 
 which a warrant of arrest is asked should 
 set forth briefly and clearly the substance of 
 the offense charged. The complaint need 
 not be drawn with the precision of an in- 
 dictment ; but it should set forth the sub- 
 stantial and material features of the indict- 
 ment. In re Henrich,5 Biatchf. 414, per Ship- 
 man, J. See In re Farez, 7 lb. 345 ; lb. 34. 
 
 14. Warrant. A warrant issued by a 
 United States commissioner for the arrest of 
 a person charged with crime, in order that 
 he may be surrendered to a foreign govern- 
 ment, is void unless it shows on its face that 
 the commissioner has jurisdiction to issue it, 
 and also that a requisition has been made by 
 the foreign government on the United States, 
 and the authority of the latter obtained to 
 make the arrest. In re Farez, 7 Biatchf. 34. 
 A general averment of the commissioner's 
 authority is sufficient. lb. 345. In describ- 
 ing the offense, the warrant may pursue the 
 language of the treaty. In re Macdonnell, 
 1 1 Biatchf. 79 ; s. c. 3 Green's Crim. Reps. 
 151. 
 
 15. The warrant continues in force after 
 the examination had before the commissioner 
 has been set aside for error. In re Farez, 7 
 Biatchf. 491 ; In re Macdonnell, 11 lb. 170 ; 
 s. c. 2 Green's Crim. Reps. 166. 
 
 16. Evidence. The evidence to detain a 
 fugitive from justice in order to surrender 
 him to a foreign government, must be such 
 as would be sufficient to commit the accused 
 for trial, if the offense had been committed 
 here. Matter of Washburn, 3 Wheeler's 
 Crim. Cas. 473. 
 
 17. In iiroceedings under the act of Con- 
 gress of 1848, ch. 167, for the extradition of 
 a person charged with a crime in Great 
 Britain, proof that the person who as justice 
 of the peace took the affidavits of the com- 
 mission of the crime, and issued the wai'rant 
 in Great Britain for the arrest of the accused, 
 was accustomed to act as justice of the 
 peace, was held to be sufficient prima facie 
 evidence of his authority to take the affi- 
 davits and issue the warrant. In re Kane, 
 14 How. U. S. 103. Per McLean, Wayne, 
 Catron, and Grier, JJ. ; contra, Taney, C. J., 
 Daniel, and Nelson, J J.
 
 234 
 
 FUGITIVES FROM JUSTICE. 
 
 From Foreign Country. 
 
 From Other State. 
 
 18. Adjournment. In extradition cases, 
 tlie commissioner while bearing the evidence 
 may adjourn the proceedings for the pro- 
 duction of further testimony. In re Mac- 
 donnell, 11 Blatchf.79; s. c. 2 Green's Crim. 
 Keps. 151. 
 
 19. Review of decision. The action of a 
 United States commissioner committing a 
 fugitive from justice for surrender under an 
 extradition treaty, may be reviewed by the 
 court on a writ of habeas corpus, and a writ 
 of certiorari ; and the court will consider 
 the evidence on which he rendered his de- 
 cision. In re Henrich, 5 Blatchf. 414. But 
 his decision will not be reversed except in a 
 case which would justify a court in granting 
 a new trial for a verdict against evidence. 
 lb. As to the power of the court to revise 
 the decision of the commissioner, see, how- 
 ever, /ft re Stupp, 12 Blatchf. 501; s. c. 2 
 Green's Crim. Reps. 182 ; In re Macdonnell, 
 11 lb. 170; s. c. 2 Green's Crim. Reps. 166. 
 
 20. The decisions of the commissioner on 
 questions of evidence, cannot be reviewed 
 on habeas corpus during the progress of the 
 preceedings before him. In re Macdonnell, 
 11 Blatchf. 79 ; s. c. 2 Green's Crim. Reps. 
 151. 
 
 21. Proceedings and i^ractice in the sur- 
 render of fugitives from justice under ex- 
 tradition treaties. In re Henrich, 5 Blatchf. 
 414 ; In re Farez, 7 lb. 345 ; Ex parte Ross, 2 
 Bond, 252. 
 
 2. From other State. 
 
 22. "Who deemed. A person may be a 
 fugitive from justice from another State, 
 who goes into such State, commits a crime 
 there, and then returns home. Kingbury's 
 Case, 106 Mass. 223. 
 
 23. U. S. Constitution. The clause of the 
 Constitution of the United States, which 
 directs the surrender of a fugitive from 
 justice upon the demand of the executive of 
 the State from which he escaped, contains 
 no grant of power, but is the mere regulation 
 of an existing right. Matter of Fetter, 3 
 Zabr. 311. 
 
 24. The provisions of the statute of Mas- 
 sachusetts (R. S. ch. 142, § 8) for the arrest 
 of persons charged with the commission of 
 
 offenses in other States, are not contrary to 
 the Constitution or laws of the United 
 States. Com. v. Tracy, 5 Mete. 536. 
 
 25. Need not have been requisition. A 
 fugitive from justice from either of the 
 States may, under the provision of the Con- 
 stitution of the United States (art. 4, sec. 2) 
 be arrested and detained for the purpose of 
 his surrender before a requisition is actually 
 made upon the executive therefor. Matter 
 of Fetter, 3 Zabr. 311; State v. Bugine, 4 
 Harring. 572. 
 
 26. A criminal fugitive from Alabama 
 may be arrested in Louisiana, or any other 
 State to which he may escape, through the 
 agency of the judicial tribunals of the latter 
 State, without the order of its governor, or 
 the demand of the governor of Alabama. 
 Morrell v. Quarks, 35 Ala. 544. 
 
 27. Arrest after letting to bail. Where 
 a requisition was made by the governor of 
 Iowa upon the governor of Massachusetts, 
 for the surrender of a fugitive fi'om justice, 
 and the governor of the latter State issued a 
 warrant for his arrest to an agent of lowa^ 
 and another warrant to a sheriff, it was l^eld 
 that an arrest by the sheriff, and a letting of 
 the fugitive to hail on habeas corpus, did not 
 affect the right of the agent to make an ar- 
 rest. Com. V. Hall, 9 Gray, 202. 
 
 28. Must be charge pending. To enable 
 a magistrate to arrest and examine an al- 
 leged fugitive from justice from another 
 State, it must be shown by a complaint in 
 writing on oath, that a crime has been com- 
 mitted, that the accused has been charged 
 in the other State with the commission of 
 such a crime, and that he has fled there- 
 from, and is found here. An affidavit from 
 which it can only be inferred that a crime 
 has been committed, is not sufficient. Mat- 
 ter of Leland, 7 Abb. N. S. 64. 
 
 29. A mere requisition by the governor of 
 one State upon the governor of another 
 State for the arrest and surrender of a per- 
 son accused of crime, without any authenti- 
 cation of the charge, is not sufficient to 
 justify such arrest and imprisonment. Mat- 
 ter of Rutter, 7 Abb. N. S. 67. But see 
 Kingsbury's Case, 106 Mass. 223. 
 
 30. In Iowa, to authorize the arrest of a
 
 FUGITIVES FROM JUSTICE.— GAMING. 
 
 235 
 
 From Other State. 
 
 What Constitutes. 
 
 fugitive from justice from another State, un- 
 der the statute (Revision, §4523), there must 
 be a charge pending against the accused in 
 such other State; and a recognizance for 
 his appearance, "when there is no charge 
 pending against him, is void. State v. Huf- 
 ford, 28 loTva, 391. It is the same in Cali- 
 foi-nia. Ex parte White, 4:0 Ca.\. iU. And 
 see Ex parte Cubreth, lb. 436. 
 
 31. Evidence required for issuing war- 
 rant. To authorize a magistrate to issue a 
 warrant for the arrest and examination of 
 an alleged fugitive of justice from another 
 State, it must be made to appear to him, by 
 a complaint in writing on oath, that a crime 
 has been committed in the foreign State, 
 that the accused has been charged in such 
 State with the commission of sucli crime, 
 and that he has fled from the State, and is 
 here. These facts are to be distinctly al- 
 leged. It is not sufficient that they may be 
 inferred from what is stated. Matter of 
 Hay ward, 1 Sandf. 701. 
 
 32. An affidavit that A. has been charged 
 In Pennsylvania, on the oath of B., with 
 felony, viz., with cheating and defrauding 
 B. and others, residents of that State, and 
 that he is a fugitive from justice from that 
 State, is not sufficient to authorize the arrest 
 of A. here, for the reason that the affidavit 
 does not show that the alleged crime was 
 committed in Pennsylvania, or that A. fled 
 from that State. lb. 
 
 33. It would be judicious in the magis- 
 trate in all such cases to require an authen- 
 ticated copy of the charge or complaint made 
 in the foreign State. lb. 
 
 34. In Indiana, to confer jurisdiction upon 
 a magistrate under the statute (R. S. 1843) 
 relative to fugitives from justice, it must be 
 proved that the person sought to be appre- 
 hended, fled from the State in which he com- 
 mitted the crime, in order to escape punish- 
 ment for it. Degant v. Michael, 2 Carter, 
 39G. 
 
 35. "Warrant. Warrants issued by the 
 governor for the arrest of fugitives from jus- 
 tice, must be under the great seal of the 
 State, and if the impression of the seal is 
 illegible, the warrant will be void. VaJlad 
 V. Sherifl", 11 Mo. 24. 
 
 36. A warrant from the governor of a State 
 commissioning an agent to bring a criminal 
 from the State to which he has fled into the 
 State having jurisdiction of the ofiense, re- 
 citing that he has made a lawful requisition 
 for the surrender of the fugitive, is prima 
 facie evidence that all legal requisites have 
 been complied with, necessary for the protec- 
 tion of the agent. The word " take " in such 
 a warrant is synonymous with "arrest." 
 Com. V. Hall, 9 Gray, 262. 
 
 37. Review. The correct mode of re- 
 viewing the decision of a State judge made 
 in such case is by appeal to the Supreme 
 Court of the State ; from there to the Court 
 of Appeals ; and thence to the Supreme Court 
 of the United States. In re Heilbonn, 1 
 Parker, 429. 
 
 38. Stay of proceedings. Where ',the 
 fugitive is remanded, the court will not 
 grant a stay of proceedings on the prosecu- 
 tion of a writ of error. Matter of Clark, 9 
 Wend. 212. 
 
 39. Proceedings and practice in the de- 
 mand and surrender of a fugitive from jus- 
 tice escaping into another State. People v. 
 Brady, 56 N. Y. 182. 
 
 40. Reward. One who asks and receives 
 from a sheriff a warrant and special author- 
 ity to arrest a fugitive from justice, and 
 who executes the warrant, and delivers the 
 accused to the sheriff, is not entitled to the 
 reward offered by the governor for the arrest 
 of such fugitive. Malpass v. Caldwell, 70 
 N. C. 130. 
 
 See Habeas corpus. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 1. What constitutes. 
 
 1. In general. A contest pursuant to a 
 bet or wager which is to be determined by 
 the result, is gaming. State v. Smith, 1 
 Meigs, 99; Bagley v. State, 1 Humph. 486. 
 
 2. To throw dice, or play at any game of 
 chance or skill, on the issue of which money
 
 230 
 
 GAMING. 
 
 What Constitutes. 
 
 or propcrtj' depends, is illegal gaming. 
 Com. V. Gourdicr, 14 Gray, 390; Com. v. 
 Taylor, lb. 26. 
 
 3. Iq New Hampshire, where the indict- 
 ment charged that the defendant kept a 
 gaming place "for money, hire, gain, and 
 reward," and the evidence showed that it 
 was customary for the party losing to pay 
 for the use of the table one shilling a game, 
 it was held tliat this was a gaming for 
 money within the statute. State v. Leigh- 
 ton, 3 Foster, 167. 
 
 4. In Illinois, though the articles played 
 for may be intrinsically valueless, yet if they 
 are understood to represent value, and are 
 such that the winner can in fact, without 
 any violation of the law, obtain value for 
 them, they are within the statute against 
 gaming. Gibbons v. People, 33 111. 443. 
 
 5. In Missouri, the keeping of a lotto 
 table, at which the game is played for 
 money, is an indictable offense. Lowry v. 
 State, 1 Mo. 722. In Arkansas, the same 
 has been held as to the game known as 
 " TcenoP Portis v. State, 27 Ark. 360 : s. c. 1 
 Green's Crim. Reps. 325. But the latter game 
 is not a lottery within the meaning of the 
 internal revenue laws. U. S. v. Hornibrook, 
 2 Dillon, 229 ; s. o. 1 Green's Crim. Reps. 328. 
 
 6. Throwing dice to determine who shall 
 pay for whisky or treats is gaming within 
 the meaning of the statute of Kentucky. 
 McDaniel v. Com. 6 Bush, Ky. 326. 
 
 7. A pack of cards is not a gambling de- 
 vice within the meaning of the statute of 
 Kansas. State v. Hardin, 1 Kansas, 474. 
 
 8. A " gift enterprise " is gaming within 
 the statute of Tennessee. Bell v. State, 5 
 Sneed, 507. And the same is true as to 
 betting on the result of a cock fight. John- 
 eon V. State, 4 lb. 614. 
 
 9. In Tennessee, the sale of j^ackages of 
 prize candy is indictable as gaming. Eu- 
 banks v. State, 3 Heisk. 488 ; s. c. 1 Green's 
 Crim. Reps. 323. 
 
 10. In Indiana, it is an indictable offense 
 to win any sum of money, however small, at 
 a game of cards. State v. Albertson, 2 
 Blackf. 251. 
 
 11. In Massachusetts, playing at bowls is 
 cinlawful vmder the statute (R. S. ch. 50, 
 
 § 17). Com. V. Stowell, 9 Mete. 572; Com. 
 V. Drew, 3 Cush. 279. 
 
 12. In New Jersey, bowling alleys con- 
 nected with hotels are unlawful, though the 
 players only risk the price of the game. 
 State V. Records, 4 Har. 554. 
 
 13. In Massachusetts, cock fighting has 
 been held unlawful, both under the statute 
 and at common law. Com. v. Tilton, 8 Mete. 
 232. 
 
 14. Playing once is gaming. The offense 
 of gaming may be committed by playing a 
 single game. Cameron v. State, 15 Ala. 383 ; 
 Swallow V. State, 20 lb. 30 ; Buck v. State, 
 1 McCook, 61. But see West v. Com. 3 J. J. 
 Marsh. 641. 
 
 15. Setting up table. The setting up of 
 a gaming table consists in providing the 
 essentials for the game, and in proposing to 
 play. There need not be a table in the 
 literal sense, or money or jiroperty staked on 
 the game ; but credit may be substituted. A 
 game must however be played, and some- 
 thing be bet. Com. v. Burns, 4 J. J. Marsh. 
 177. 
 
 16. In Virginia, where a billiard table was 
 kept for a stipulated compensation per 
 game, it was held that the owner was liable 
 to indictment, although he did not jilay on 
 it himself for money, or permit others to do 
 so. Ward's Case, 3 Leigh, 743. 
 
 17. In Kentucky, the setting uji of a 
 gaming table, at which money or any other 
 thing shall be bet, is a specific offense, and 
 the keeping of such table may, if there be 
 betting against it, be another offense, and 
 keeping a bank, and either inducing or per- 
 mitting any person to bet against it, a third 
 offense. Com. v. Burns, 4 J. J. Marsh. 177. 
 
 18. To constitute a violation of the statute 
 of Alabama (Clay's Dig. 434, § 19), against 
 keeping a billiard table in connection with 
 a house where spirituous liquors are retailed, 
 the billiard table need not be kept in the 
 same room or under the same roof where the 
 liquors are sold. It is sufficient if the one 
 is contiguous to the other and forms a part 
 of the same establishment. Smith v. State, 
 22 Ala. 54. In North Carolina, under the 
 the statute against gaming (R. S. ch. 34» 
 § 69), the place of gaming and the jolace of
 
 GAMING. 
 
 237 
 
 What Constitutes. 
 
 retailing must be the same house, or at least 
 part of the same establishment. State v. 
 Black, 9 Ired. 378. 
 
 19. Keeping gaming house. The keep- 
 ing of a common gaming house is an indict- 
 able offense at common law. People v. 
 Jackson, 3 Denio, 101 ; Vanderworker v. 
 State, 8 Eng. 700. 
 
 20. Keeping a house in which cards or dom- 
 inoes are habitually played for something to 
 eat and drink in such house, constitutes the 
 keeping of a common gaming bouse at com- 
 mon law and the law of New Hampshire. 
 Lord V. State, 16 New Hamp. 325. 
 
 21. Keeping a gaming house may be a con- 
 tinuous act, and all the time during which 
 a house is thus kept, prior to the prosecu- 
 tion for the keeping, constitutes one otfense, 
 which can be punished only in one prosecu- 
 tion. State V. Lindley, 14 Ind. 430. 
 
 22. Under the statute of Maine (ch. 35, 
 § 7), which punishes — 1st, the keeping of a 
 house, shop or other place, resorted to for 
 the purpose of gaming; and 2d, the per- 
 mitting a person to play at cards, dice, 
 billiards, or other game for money or other 
 things, in any house, shop, or place under 
 his control, a person may permit another to 
 play at such games for money, in a place 
 under his control, and yet not keep a house 
 or place resorted to for that purpose ; or he 
 may own and control a house or place re- 
 sorted to for the purpose of gaming, without 
 being the keeper of the house or place, 
 within the meaning of the statute. State 
 V. Currier, 23 Maine, 43. 
 
 23. In Massachusetts, where a person 
 rented a shed, across a passage-way be- 
 tween the shed and his store, and received 
 the rent knowing that the shed was used 
 for gaming, it was held that he occupied the 
 shed within the meaning of Stat. 1798, ch. 
 20, § 2. Com. V. Dean, 1 Pick. 387. 
 
 24. On the trial of an indictment for 
 keeping a common gaming house, the fol- 
 lowing instraction was held proper: "If 
 the jury believe from the evidence, beyond 
 a reasonable doubt, that the room in ques- 
 ti(m was a common gaming house, as 
 charged in tlie indictment, and that the 
 defendant was present, and in any way or 
 
 manner aided, or abetted, or assisted in 
 keeping, operating and running such gam- 
 ing room as charged in the indictment, then 
 the jury should find the defendant guilty, 
 although he was not the actual owner or pro- 
 prietor thereof Stevens v. People, 67 111. 587. 
 
 25. A statute forbade the keeping of a 
 room to be used or occupied for gambling, 
 or the permitting of the same to be so used 
 or occupied. The proof showed that on 
 several occasions the accused had permitted 
 property to be gambled for in his room. 
 Held, that to bring the defendant within 
 the statute, the room need not have been 
 principally used for gambling, but that it 
 was sufficient if he had occasionally permit- 
 ted gambling therein. Hutchins v. People, 
 39 N. Y. 454. 
 
 26. A tavern-keeper is a housekeeper 
 within the meaning of the statute of Mary- 
 land (Act of 1823, ch. 16, § 11), providing 
 that no housekeeper shall sell any strong 
 liquor on Sunday, or sufler any drunkenness, 
 gaming or unlawful recreations in his house. 
 State V. Pearson, 2 Md. 310. 
 
 27. In New York, it is not an indictable 
 offense to keep a room for the sale of tickets 
 in a lottery. Peojile v. Jackson, 3 Denio, 101. 
 
 28. Where a lease restricts the tenant to 
 the use of the rooms let, as sleeping apart- 
 ments, the landlord does not retain such a 
 control of them as to make it his duty to 
 prevent illegal gaming in them. Robinson 
 V. State, 24 Texas, 152. 
 
 29. Betting. In order to constitute a 
 wager, both parties must incur a risk. 
 Quarles v. State, 5 Humph. 561. A bet is a 
 wager, and the betting is complete when the 
 offer to bet is completed. The placing of 
 money on a gaming table is an offer to bet, 
 and if no objection be made by the player 
 or owner of the table or bank, it is an ac- 
 ceptance of the offer, and the offense of 
 betting is complete, although the game be 
 never finished, and the stake be neither lost 
 nor won. State v. Welch, 7 Port. 453. 
 
 30. Where a horse, worth eighty dollars, 
 was sold to the defendant for sixty-five 
 dollars, payment to be made when Gen. 
 Taylor should be elected President of the 
 United States, which was afterward paid by
 
 238 
 
 GAMING. 
 
 What Constitutes. 
 
 the defendant, it was held a wager within 
 the statute of Indiana. Parson v. State, 2 
 Carter, 499. 
 
 31. In Indiana, betting on an election is 
 an indictable offense. Parsons v. State, 2 
 Carter, 499. In Ohio, the statute against 
 gaming applies to betting on elections. 
 Veach v. Elliott, 1 McCook, 139. In Ten- 
 nessee, by the statute of 1823, ch. 35, § 2, 
 betting on an election is a misdemeanor. 
 State Y. Smith, 1 Meigs, 99. 
 
 32. In Tennessee, a race must have been 
 run, in order to make a betting on it the 
 oflense of gaming. Fiddler v. State, 7 
 Humph. 508. Therefore, an indictment al- 
 leging that the defendant bet upon a horse 
 race, does not charge any offense, the words 
 not necessarily importing that the race 
 was run. Dobbins v. State, 2 Humph. 424. 
 
 33. In Kentucky, betting is unlawful, 
 whatever may be the occasion, and the 
 money or thing staked for the bet is for- 
 feited. Vicaro v. Com. 5 Dana, 505. 
 
 34. In Missouri, imder the statute of 1845. 
 betting on any gambling device, is an in- 
 dictable offense; and each act of betting on 
 such device, though at the same sitting, is a 
 separate offense. State v. Bates, 10 Mo. 166 ; 
 Forney v. State, 13 lb. 455. 
 
 35. In Alabama, betting at billiards or 
 pool, is not an indictable offense. State v. 
 j\Ioseley,14Ala. 390; State v. Allaire, Ib.435. 
 
 36. Inciting others to bet. In Tennessee, 
 a person who incites others to play for 
 money, or who jjlays knowing that others 
 are betting, is guilty of gaming under the 
 statute, although he does not bet himself. 
 Howlet V. State, 5 Yerg. 145. In Mississippi, 
 where a person procured others to bet for 
 liim, it was held that he was equally guilty 
 as though he had bet himself. Williams v. 
 State, 12 Smed. & Marsh. 58. In Missouri, 
 allowing cards to be used where money is 
 bet, is gambling, within the statute. State 
 V. Purdom, 3 Mo. 83; and see Hinklev. Com. 
 4 Dana, 519. 
 
 37. Horse racing. To constitute a horse 
 race, there need not be a bet or wager, or a 
 distance to be run agreed upon, or judges 
 appointed to decide the race. Watson v. 
 State, 3 Ind. 123. 
 
 38. In Tennessee, under the statute (of 
 1833, ch. 10, § 2), a person is indictable for 
 running a horse race along a public road, al- 
 though no bet may have been made on the 
 race. State v. Fiddler, 7 Humph. 502. 
 
 39. In Indiana, the permitting one's horse 
 to be run in a race, and the acting as rider 
 in such race, were held to be separate 
 offenses under the statute. State v. Ness, 
 1 Carter, 64. 
 
 40. In Tennessee, turf racing is excepted 
 from the statute (of 1820, ch. 5), against 
 gaming; but not match races for short 
 distances, run at distilleries, grog shops, 
 and musters. State v. Posey, 1 Humph. 
 384. 
 
 41. As to what constitutes a race course, 
 within the meaning of the statute of Vir- 
 ginia against unlawful gaming, see Wilson's 
 Case, 9 Leigh, 648. 
 
 42. In Iowa, horse racing is not a game of 
 chance, within the meaning of the statute 
 against gambling. Harless v. U. S. 1 Morris, 
 169. 
 
 43. "What not deemed gaming. Playing 
 a game of chance without betting thereon, 
 and without any intent or purj)ose that 
 others shall do so, is not gaming within the 
 statute of Georgia. Johnson v. State, 8 Ga. 
 451. 
 
 44. In Massachusetts, the playing at bill- 
 iards, cards or dice, is only unlawful when 
 done at licensed houses, or at places opened 
 and kept for the purpose, for hire, gain, or 
 reward, as places of common resort. Com. 
 V. Coding, 3 Mete. 130. 
 
 45. In New York, it was held that playing 
 the rub, to determine which party should pay 
 for the use of a billiard table, was not gam- 
 ing. People agst. Sergeant, 8 Cow. 139. 
 
 46. As " shuffle-board " is not a game of 
 chance, but one of skill, the keeping of such 
 a table is not indictable under the statute of 
 North Carolina against gaming. State v. 
 Bishop, 8 Ired. 266. And the same is true 
 of the game of ten jsins. State v. Gupton, 
 lb. 271. 
 
 47. Offense with reference to place. Any 
 place which is temporarily made public by 
 the assemblage of people is a public place 
 within the meaninsj of the statute of Ala-
 
 GAMING. 
 
 239 
 
 What Constitutes. 
 
 bama against gaming. Campbell v. State, 
 17 Ala. 369. 
 
 48. A neighborhood road is "a public 
 place " within the statute of Alabama 
 against gaming, if the gaming take place 
 near an assemblage of persons, some of 
 whom watch the playing, and others pass 
 about. Mills v. State, 30 Ala. 86. 
 
 49. To make a separate building an ap- 
 purtenance to a tavern within the statute of 
 Virginia against gaming (1 R. C. ch. 147, 
 § 16), it must be occupied in connection 
 with the tavern for the accommodation of 
 guests. Sander's Case, 5 Leigh, 751. 
 
 50. Where, at a public muster at a tavern, 
 persons were engaged in gaming in a barn 
 two hundred yards distant from the house, 
 in a separate inclosure, though on the same 
 premises, the barn being sixty or seventy 
 yards in the rear of another barn, in which 
 liquor was sold by the tavern-keeper, it was 
 held that the first mentioned barn was a 
 public place within the meaning of the 
 statute of Virginia against unlawful gaming. 
 Tanner's case, 8 Leigh, 741. 
 
 51. In Alabama, a lawyer's office, though 
 "a public house" within the statute against 
 gaming (Code, § 3243), is not " a public 
 place." McCauley v. State, 26 Ala. 135; 
 Smith V. State, 87 lb. 472. On a trial for 
 gaming, it was proved that the playing took 
 place in the night, during the session of the 
 Circuit Court, in a lawyer's office, and by 
 permission of a person who occupied the 
 room as a sleeping apartment; that the 
 doors were locked, and the curtains drawn 
 over the windows. The court charged that 
 this was a public place. Held error. Bur- 
 dine V. State, 25 lb. 60. 
 
 52. A broker's office is a public house 
 within the statute of Alabama against 
 gaming, and where such office consists of a 
 front and back room, connected by a door, 
 and the front room is used by the broker 
 for his business, the back room is also within 
 the statute, although used and occupied as 
 a bedroom by a member of the broker's 
 family. Wilson v. State, 31 Ala. 371. 
 
 53. lu Alabama, a justice's office is a 
 " public house " within the statute against 
 jjamincr. Where the house consists of a 
 
 front and back room, which are connected 
 by an open space used as a door, and the 
 front room is occupied for a magistrate's 
 office, the back room is within the statute 
 against gaming, although only used by the 
 partners of a dissolved firm for the oc- 
 casional settlement of their accounts. Bur- 
 nett V. State, 30 Ala. 19. 
 
 54. A barber's shop is a public house 
 within the statute of Alabama against gam- 
 ing ; and where a two-storied house is oc- 
 cupied by a barber, who uses the two rooms 
 on the ground floor as his shop, the back 
 room on the second floor is also within the 
 statute, although approached only by a 
 flight of steps on the outside of the house, 
 and used by the barber only in trying ex- 
 periments in the daguerrean art. Moore v. 
 State, 30 Ala. 550 ; s. p. Cochran v. State, 
 lb. 542. 
 
 55. A building in which the business of 
 saddle and harness making is carried on is 
 a " public house " within the statute of 
 Alabama against gaming (Code, § 3243) ; 
 and where such building consists of two 
 stories, the lower of which is used by the 
 owner for the purpose of carrying on his 
 said business, a back room in the second 
 story, reached only by outside stairs, and 
 used by the owner as a bedroom for one of 
 his workmen, is also within the statute. 
 Bentley v. State, 32 Ala. 596. 
 
 56. In Alabama, a storehouse in the 
 country is a public house within the mean- 
 ing of the statute against gaming (Code, 
 § 3343), although it consists of two rooms 
 one above the other, both of which the 
 owner uses, the lower room as his store and 
 the upper room as an appendage thereto. 
 Brown v. State, 27 Ala. 47. 
 
 57. A room on the second floor of a two- 
 story house, which is approached only by 
 means of steps on the outside, and in which 
 one of the proprietors of the house sleeps, 
 the lower room being used for retailing 
 spirituous liquors, is within the statute of 
 Alabama against gaming at any storehouse 
 for retailing spirituous liquors, or house or 
 place where spirituous liquors are retailed 
 or given away. Johnson v. State, 19 Ala. 
 527.
 
 240 
 
 GAMING. 
 
 What Constitutes. 
 
 58. A room iu a warehouse for storing 
 cotton on the bank of a navigable river, 
 used by the clerk for a sleeping room as 
 ■svell as for the transaction of business, is a 
 ^' pttNic house ''^ within the statutes of Ala- 
 bama (Code, § 3243) against gaming, but 
 not a "public place." Windham v. State, 
 26 Ala. 69. 
 
 59. A storehouse in which dry goods 
 only are sold is a public house within the 
 statute of Alabama against gaming, al- 
 though tlie playing is by night with closed 
 doors and windows, and with no person 
 other than the players present. Skinner v. 
 State, 30 Ala. 524. A navigable river is 
 not a highway within the foregoing statute. 
 Glass V. State, lb. 529. 
 
 60. In Virginia, where it was proved that 
 the parties charged were in a storehouse in 
 a village late at night, after the close of 
 business, and that the door was locked, it 
 was held that it was a public place within 
 the meaning of the statute against gaming. 
 Cora. V. Feazle, 8 Graft. 585. 
 
 61. In Alabama, a country storehouse is 
 a public house within the statute against 
 gaming (Code, § 3243) when it consists of 
 two rooms under the control of the same 
 person, the front room being used as a dry 
 goods store, while the other, a shed room, 
 is attached to it, and communicates with it 
 by a door, and the presumjjtion that the 
 two rooms are an entirety is not rejielled by 
 proving that the back room was used as a 
 bedroom by one of the proprietors of the 
 store, who was an unmarried man ; that no 
 goods were kept or sold there, no accounts 
 settled there, and that witness never had 
 seen any of the customers of the store use it 
 for any purpose. Huffman v. State, 29 Ala. 
 40 ; s. c. 28 lb. 48, and 30 lb. 532. 
 
 62. A house occupied by the keeper of a 
 public toll bridge, containing two rooms 
 which communicate with each other by a 
 door, is jjrima facie an entirety, and if the 
 front room is so used as to make it a 
 " public house " within the statute of Ala- 
 bama against gaming, the back room is also 
 within the statute, though used only as a 
 bedroom by the keeper of the bridge, an 
 unmarried man. If such house is merely the 
 
 private residence of the keeper of the bridge, 
 it is not within the statute, although settle- 
 ments for toll are made therein. But if the 
 front room is used for the business of the 
 bridge, such as keeping the books, settling 
 accounts, etc., it then becomes a "public 
 house" within the meaning of the statute. 
 Arnold v. State, 29 Ala. 46. 
 
 63. In the same State, an unoccupied 
 storehouse fronting on a public street, if 
 habitually resorted to by persons for the 
 purj^ose of playing cards, is within the 
 statute against 2Dlaying cards at an out- 
 house where people resort. Swallow v. 
 State, 20 Ala. 30. 
 
 64. In Alabama, when the gaming is at a 
 "public house," or at any one of the other 
 places si^ecifically enumerated in the Code, 
 even if great secrecy be employed and but 
 few be present, it is a violation of the statute. 
 Windham v. State, 26 Ala. 69, 
 
 65. What not deemed a public place. 
 In Alabama, a doctor's office is not a public 
 place within the statute against gaming, 
 when the playing is at night, the doors 
 closed, and curtains down at the windows, 
 although the room is next to a merchant's 
 counting-room, with a door communicating 
 between them, and the person who occupies 
 it as a sleeping apartment is in the habit of 
 inviting his friends to come to his room for 
 the purpose of playing. Sherrod v. State, 
 25 Ala. 78; Clarke v. State, 12 lb. 492. 
 But held otherwise as to a steamboat. Cole- 
 man v. State, 13 lb. 602. 
 
 66. A back room used by the register in 
 chancery as a sleeping apartment, the front 
 room being his office, and communicating 
 with it by a door, is not a public place 
 within the statute of Alabama against gam- 
 ing, it being proved that the house was 
 surrounded iu the rear by a high fence; that 
 the playing occurred at night, when the 
 doors were locked and the windows closed ; 
 that the eight persons present came by in- 
 vitation of the occupier of the room, and 
 that they entered through a back door. 
 Roquemore v. State, 19 Ala. 528. 
 
 67. An apartment on the second floor of a 
 house rented and occupied by the defendant 
 as a bedroom, is not within the statute of
 
 GAMING. 
 
 241 
 
 What Constitutes. 
 
 Indictment. 
 
 Alabama against gaming (Code, § 3243), from 
 the mere fact that the lower story is used by. 
 another person for the sale of spirituous 
 liquors. Dale v. State, 27 Ala. 31. 
 
 68. The fact that the defendant, with two 
 -or three other persons, on one occasion went 
 to an outhouse and played cards, does not 
 <;onstitute such house "an outhouse where 
 people resort " within the statute of Ala- 
 bama against gaming. Cain v. State, 30 
 Ala. 534. A backhouse or im\j belonging 
 to a country schoolhouse is not, during the 
 A'acation, either a public liouse, a public 
 place, or an outhouse where people resort, 
 within the foregoing statute. McDauiel v. 
 State, 35 Ala. 390. 
 
 69. On the trial of an indictment for 
 playing cards "at a public place," it was 
 pi'oved that the defendants, five in number, 
 went into a piece of dense woods, to a deep 
 hollow, about four hundred yards from a 
 country storehouse where a large number of 
 people had assembled, and there engaged in 
 a game of cards ; that three other persons 
 joined them and took part in the game, one 
 of whom testified that when he went into 
 the woods he did not know where the de- 
 fendants were, but hunted them up; that he 
 had never known cards to be played at that 
 place before, but that during the previous 
 year, persons had played ' ' in the piece of 
 woods," fifty or one hundred yards from 
 "said hollow," Held that the playing was 
 not at a public place. Bythwood v. State, 
 20 Ala. N. S. 47. 
 
 70. A spot concealed from view by bushes 
 and briars, on land owned by a county for 
 supporting its poor, is not a public place 
 within the statute of Virginia, against gam- 
 ing. Com. v. Vandinc, 6 Gratt. 680. 
 
 71. Power and duty of grand jury. In 
 Tennessee, the statute of 1834, ch. 5, § 2, 
 makes it the duty of grand jurors to inquire 
 after all persons engaged in unlawful gam- 
 ing, and gives them power to summon before 
 them for examination, anyone who they be- 
 lieve has knowledge of the commission of 
 such oHenses. McGowan v. State, 9 Yerg. 
 184; State V. Smith, Meigs, 99;Fugatev. 
 State, 3 Humph. 397 ; State v. Parish, 8 lb. 
 80. 
 
 16 
 
 72. Construction of statutes. In Missis- 
 sippi, the statutes against gaming, being re- 
 medial and not penal, are to be construed 
 strictly. Cain v. State, 13 Smed. & Marsh. 
 450. 
 
 3. Indictment. 
 
 73. Parties. In Ohio, an indictment for 
 gaming must name the parties, or state that 
 they are unknown ; and also state whether 
 the game was for money or other valuable 
 thing. Davis v. State, 7 Ohio, 304. 
 
 74. In Indiana, an indictment of a psrson 
 for sufiering his building to be used for gam- 
 ing must state the names of the persons 
 who were allowed to gamble, or give a good 
 reason for the omission ; and the objection 
 is properly made by motion in arrest. State 
 V. Noland, 39 Ind. 212; Ball v. State, 7 
 Blackf. 242. So likewise, an indictment for 
 gaming must give the name of the person 
 with whom the defendant played, or state 
 that his name is unknown. Butler v. State, 
 5 lb. 380. In Iowa, an indictment for sufier- 
 ing gaming need not state the names of the 
 persons who played, name the sums of mon- 
 ey wagered, or describe the property lost or 
 won. Romp v. State, 3 Greene, 376. 
 
 75. In Arkansas, an indictment for bet- 
 ting at a game of cards under the statute 
 (Dig. p. 367, § 8), must state the names of the 
 persons who played the game, if known ; 
 and the proof must correspond with the al- 
 legation, and show that all the persons 
 charged were engaged in the game. Parrott 
 V. State, 5 Eng. 574. But an indictment un- 
 der the first section of the statute (Dig. p. 
 365), need not allege that the defendant bet 
 with any particular person. Drew v. State, 
 5 Eng. 83. 
 
 76. In Kansas, an indictment for keeping 
 a gambling house need not state the names 
 of the persons who were permitted to bet or 
 play; and if it be alleged that the names 
 are unknown, such an allegation is surplus- 
 age and need not be proved. Rice v. State, 
 3 Kansas, 141. 
 
 77. Persons who kee]) a common gaming 
 house may be indicted jointly or separately. 
 Com. V. Hyde, Thach. Crim. Cas. 19; Ward 
 V. State, 23 Ala. 16. In Virginia, several
 
 242 
 
 GAMING. 
 
 Indictment. 
 
 persons may be charged in the same indict- 
 ment with different violations of the statute 
 against gaming. Com. v. McGuire, 1 Va. 
 Cas. 110. 
 
 78. Name of game. An indictment charg- 
 ing that the defendant " did play at cards 
 for money," was held sufficient. Johnston 
 V. State, 7 Smed. & Marsh. 58. And the 
 same was held of an indictment which 
 charged that the defendant played " at a 
 game of cards or dice," instead of " at a 
 game with cards or dice." Cochran v. State, 
 30 Ala. 542. 
 
 79. In Kentucky, it was held that an in- 
 dictment for gaming need not give the 
 name of the game, or state how much money 
 was won or lost, nor who won or lost money. 
 Monte V. Com. 3 J. J. Marsh. 132; Com. v. 
 Crupper, 3 Dana, 466. In Indiana, it has 
 been held that although the indictment need 
 not give the name of the game, yet that it 
 ought to state whether cards, dice, &c., were 
 used, in order to identify the transaction. 
 Webster v. State, 8 Blackf. 400. See State 
 V. Dole, 3 lb. 294 : State v. Ross, 7 lb. 322. 
 
 80. In Tennessee, an indictment under the 
 statute of 1824, ch. 5, need not describe the 
 game played, nor the person with whom the 
 bet was made, nor state wiiat money or 
 amount was bet on the game. State v. Mc- 
 Bride, 8 Humph. 66 ; nor give the name of 
 any person who played. Dormer v. State, 2 
 Carter, 308. But where the indictment 
 charges the defendant with gambling for 
 "a valuable thing." the thing gambled for 
 must be described. Anthony v. State, 4 
 Humph. 83. 
 
 81. An indictment charged that A. andB. 
 played at a game with cards, without alleg- 
 ing that the played together. Held insuffi- 
 cient. Lewellin v. State, 18 Texas, 538; 
 Parker v. State, 26 lb. 206 ; State v. Roderica, 
 35 lb. 507 ; Herron v. State, 36 lb. 285. 
 
 82. Averment of the keeping, or per- 
 mitting a house to be kept for gaming. 
 In Missouri, an indictment under the stat- 
 ute (1 R. C. 1855, p. 626), for permitting a 
 gambling device to be used for the purpose 
 of gaming in the house of defendant, need 
 not aver an actual playing for money or 
 property. State v. Scaggs, 33 Mo. 92. In 
 
 Indiana, the same is true of an indictment 
 under the statute of 1838, charging that the 
 defendant kept, a room to be used and occu- 
 pied for gaming. State v. Miller, 5 Blackf, 
 502. 
 
 83. In Texas, where an indictment charged 
 the defendant with keeping a ten-pin alley 
 without having paid the license, it was held 
 that it need not be alleged that the alley 
 was kept for play, or that playing took place, 
 or was permitted therein. Needham v. 
 State, 1 Texas, 139. 
 
 84. In Arkansas, it was held that a general 
 charge that the defendant kept and main- 
 tained a common gaming house, was suffi- 
 cient, without the further allegation of what 
 was transacted there. Vanderworker v. State, 
 8 Eng. 700. 
 
 85. In New York, an indictment which 
 alleges that the defendant kept a common 
 gaming house, without stating what was 
 transacted there, is insufficient. Where it 
 was charged that the defendant kept a cer- 
 tain common gaming house in which he sold 
 and furnished tickets in lotteries unauthor- 
 ized by law, to divers persons, it was held 
 that the indictment did not state an indict- 
 able offense. People v. Jackson, 3 Denio,^ 
 101. 
 
 86. Where an indictment averred that the 
 tenement therein named was used for illegal 
 gaming, but did not charge the defendant 
 as a keeper of a "common gaming house," 
 it was held insufficient. Com. v. Stahl. 7 
 Allen, 304. 
 
 87. An indictment alleging that the de- 
 fendant kept a house in which unlawful 
 games at cards were played and permitted, 
 is bad in not charging in direct terms that 
 the gaming was permitted by the defendant. 
 Com. V. Crupper, 3 Dana, 466. 
 
 88. An indictment for gaming, charged 
 that the defendant "unlawfully kept and 
 suffered a certain building, room, and tene- 
 ment, to be used for gaming, and then and 
 there unlawfully suffered A. B. and divers 
 other persons to the grand jurors unknown, 
 to play at a certain game called billiaixls, for 
 money and other articles of value." It was 
 proved that the defendant kept a billiard 
 room in which players were charged twenty-
 
 GAMING. 
 
 243 
 
 Indictment. 
 
 five cents a game for the use of the tables, 
 the loser paying the sum thus charged. A 
 witness testified as follows : " I played one 
 game and lost it, and paid the defendant for 
 the table. Have seen the defendant in the 
 saloon frequently, and have seen his clerk 
 there. Saw games played, and the loser al- 
 ways paid the bill for the table. I could not 
 swear positively that the defendant always 
 knew the terms upon which the games were 
 played, but think he had a good opportunity 
 to know that the loser paid for the table." 
 Held, that the indictment was not bad for 
 duplicity, and that the defendant was prop- 
 erly convicted. Crawford v. State, 33 Ind. 
 304. 
 
 89. Averment of betting. An indict- 
 ment for gaming, which charges that money 
 was won and lost, is sufficient without alleg- 
 ing that it was bet. Buford v. Com. 14 B. 
 Mon. 24. 
 
 90. An indictment alleging that the de- 
 fendant did bet at a certain gaming bank 
 then and there exhibited and kept, called 
 monte, is sufficiently certain. McKissick v. 
 State, 2 Texas, 356. 
 
 91. In Arkansas, an indictment under the 
 statute (Dig. 307, § 8), need not allege the 
 amount of money bet, nor with whom de- 
 fendant bet, but it must give the names of 
 the players, if known. Moffat v. State, 6 
 Eng. 169 ; Backman v. State, 8 lb. 703. 
 
 92. An indictment for betting on an elec- 
 tion must state the object for which the 
 election bet on was held. Bellair v. State, 
 6 Blackf. 104. 
 
 93. An indictment charged that the de- 
 fendant and another person bet on the result 
 of the Presidential election, "goods, wares, 
 and merchandise, being valuable things." 
 Held bad for uncertainty. State v. Kilgore, 
 6 Humph. 44. 
 
 94. An indictment for betting on the re- 
 sult of an election need not allege that the 
 defendant bet upon the success of any par- 
 ticular candidate. State v. Crosi, 3 Humph. 
 301. 
 
 95. Time. The day named in an indict- 
 ment for gaming is not material, provided it 
 \)Q previous to the finding of the indict- 
 ment. State V. Little, 6 Blackf. 267. But 
 
 the day charged must be a time within 
 which the law authorizes a prosecution to 
 be commenced. Anthony v. State, 4 Humph. 
 83. 
 
 96. Averment of place. In Virginia, 
 where the defendants were charged with 
 playing an unlawful game at the house of 
 A., in B., in the county of C, it was held 
 that the presentment was fatally defective 
 in not alleging that the house was a public 
 house. Herd's Case, 4 Leigh, 674. And a 
 grocery where gaming is alleged to have 
 taken place must be charged to be a public 
 place, or place of public resort. Robert's 
 Case, 10 lb. 686. 
 
 97. In the same State, an indictment 
 which charged the defendant with unlawful 
 gaming at the house of A., the same being 
 a house of entertainment, was held sufficient. 
 Linkor's Case, 9 Leigh, 608. But an indict- 
 ment which omitted to allege that the place 
 where the game was played was a public 
 house was held fatally defective. Herd's 
 Case, 4 lb. 674. And see Robert's Case, 10 
 Tb. 686. 
 
 98. In an indictment for permitting cards 
 to be played at a house for retailing spirit- 
 uous liquors, the words "Occidental saloon" 
 do not describe a public house. State v. 
 Mansker, 36 Texas, 364. 
 
 99. In New Hampshire, in an indictment, 
 for keeping a gaming-house it is not neces- 
 sary to describe the house or place, or to 
 name the persons who played at it, or the 
 games played, or the amount of the stakes. 
 State V. Prescott, 33 New Hamp. 212. 
 
 100. In Alabama, an indictment which 
 charged the playing at cards in an outhouse 
 where people resorted, in a storehouse for 
 retailing spirituous liquors, and in a public 
 place, was held sufficient without stating to 
 whom the outhouse or storcliouse belonged, 
 or describing the place. State v. Atkyns, 1 
 Ala. 180. 
 
 101. In Texas, an indictment for playing- 
 cards at a public place need not allege the 
 ownership of the place. Wilson v. State, 
 5 Texas, 21. 
 
 102. An indictment for betting on a game 
 need not allege that the game was played
 
 244 
 
 GAMING. 
 
 Indictment. 
 
 Evidence. 
 
 in tlie county where the bet was made. 
 State V. Kyle, 10 Mo. 389. 
 
 103. An indictment for permitting a liorse 
 to be run in a race along a public highway 
 need not state the termini of the highway. 
 State V. Armstrong, 3 Ind. 139; State v. 
 Burgett, 1 Carter, 479. 
 
 104. Charging several acts. An indict- 
 ment is not double which states several dis- 
 tinct acts of gaming. State v. Prescott, 33 
 INew Hamp. 212. The setting up of a 
 gaming table, the keeping of such table, and 
 the inducing of a person to bet on it, when 
 done by the same person at the same time, 
 may be charged in the indictment as one 
 oflense. Hinkle v. Com. 4 Dana, 519. 
 
 105. An indictment which charged un- 
 lawful gaming by playing at cards, and bet- 
 ting on the sides and hands of those that 
 then and. there played, was held not bad for 
 duplicity. Com. v. Tiernans, 4 Gratt. 545. 
 
 106. An indictment which charges that 
 the defendant kept and suffered his house 
 to be used for gaming is not bad for du- 
 plicity. Dormer v. State, 2 Carter, 308. 
 
 107. An indictment which alleges the 
 keeping of a faro bank, and inducing per- 
 sons to play therewith for money, charges 
 but one offense. State v. Ames, 10 Mo. 743. 
 
 3. Evidence. \y 
 
 108. Bill of particulars. A person in- 
 dicted as a common gambler is not entitled 
 to a biU of particulars of the facts expected, 
 to be proved. Com. v. Moore, 2 Dana, 402. 
 
 109. Time. In Indiana, where a present- 
 ment under the statute (R. S. of 1838, 218), 
 w^as made for unlawful gaming at cards at a 
 place stated, within six months next pre- 
 ceding, and the process summoned the de- 
 fendant to answer the presentment for un- 
 lawful gaming at cards generally, it was 
 held that the process was void. Blanton v. 
 State, 5 Blackf. 560. 
 
 110. But in Alabama, where the indict- 
 ment charged that the gaming was commit- 
 ted within six months before the commence- 
 ment of the prosecution, and the jury found 
 the defendant guilty, and. that the gaming 
 took place more than six months before the 
 time laid, it was held that the variance was 
 
 not material. Cameron v. State, 15 Ala. 
 383. 
 
 111. Place. Under an indictment for 
 gaming, which alleges that the defendant 
 played cards "at a storehouse then and 
 there for retailing spirituous liquors," he 
 cannot be convicted, upon proof that the 
 playing took place "near a house formerly 
 used for retailing, but which was not then 
 so used." Logan v. State, 24 Ala. 182. 
 
 112. An indictment charged the defend- 
 ant in different counts, with playing cards 
 "at a highway," " at a house where spirit- 
 uous liquors were retailed " "at a public 
 place" and "at a public house." It was 
 proved that tlie playing was in a hollow 
 more than a hundred yards from a house 
 where spirituous liquors were retailed, and 
 where persons had been drinking; that the 
 persons playing could not be seen from the 
 grocery, nor from the public road; and that 
 there never had been any playing at that 
 place before or since. Held that the evi- 
 dence did not support the indictment. 
 Smith V. State, 23 Ala. 39. 
 
 113. An indictment for gaming alleged 
 that the defendant played cards, to wit, the 
 the game of all fours, of loo, and of whist, 
 at a public house, to wit, at the storehouse 
 of A. neld that to support the indictment, 
 it must be proved that the defendant played 
 at some one of the games mentioned therein, 
 and that if the playing was at the store- 
 house of A., in the night, after the business 
 of the day was over, the storehouse was not 
 then jrrima facie a public house, though it 
 was so when open to the public in the day 
 time. Windsor's Case, 4 Leigh, G80. And 
 see Feazle's Case, 8 Gratt. 585v 
 
 114. Where an indictment for gaming 
 charged that the offense was committed at 
 the booth of S., and it was proved to have 
 been committed at the booth of C, it was 
 held that the evidence did not support the 
 charge. Com. v. Butts, 2 Va. Cas. 18. 
 
 115. Proof that a race was run along a 
 road leading from one town to another in a 
 certain county, was held prhAa facie evi- 
 dence that the road was a public highway. 
 Watson V. State, 3 Ind. 123. 
 
 116. Proof of betting. Under an indict-
 
 GAMIXG. 
 
 245 
 
 Evidence, 
 
 ment alleging that several persons bet at a 
 faro bank, the evidence must show that all 
 the persons named were concerned in the 
 betting. Johnson v. State, 8 Eng. 684. 
 
 117. An indictment charged that the de- 
 fendant and four other persons bet together, 
 and against each other, at a game of cards, 
 and in a second _count, that the said defend- 
 ant and the said other persons bet together 
 at a game of cards. Held that the indict- 
 ment was not supported by proof that the 
 four persons named played cards, that the 
 defendant stood by and bet with one of 
 them, and that three of the players bet with 
 each other, but that the fourth player did 
 not bet. Hany v. State, 4 Eng. 193. 
 
 118. Where the indictment charged the 
 plajnng at a game of cards at a public place, 
 upon which money was bet, and it was 
 proved that property was bet, it was held 
 that the variance was material. Hall v. 
 State, 8 Texas, 171. On the other hand, 
 evidence that the defendant bet money on a 
 game of cards will not support an indict- 
 ment charging him with betting property. 
 Horton v. State, 8 Eng. 62. 
 
 119. Ah indictment for betting money 
 will not be supported by proof of the bet- 
 ting of United States treasury warrants. 
 Williams v. State, 12 Smed. & Marsh. 58. 
 
 120. An indictment which alleged that 
 the defendant unlawfully bet and played at 
 a game of cards called faro, for money, was 
 held not supported by proof that he bet 
 bank notes. Johnston v. State, 1 Mart. & 
 Yerg. 129. 
 
 121. But proof of the betting of checks 
 or counters of a faro bank which the parties 
 agree shall represent bank notes or money, 
 and for which money or bank notes are paid 
 by them, will support the charge of keeping 
 a faro table at which money or bank notes 
 are bet. Ashbuck v. Com. 7 B. Mon. 44. 
 
 122. Persons playing. An allegation in 
 an indictment, tliat the names of the persons 
 who played the game are unknown, is ma- 
 terial, and must be sustained by the proof. 
 Barkman v.* State, 8 Eng. 703. 
 
 123. An indictment charged that the de- 
 fendant by playing at cards, won from A. 
 and B. a certain article. It was proved that 
 
 the article was won by defendant and an- 
 other as partners, from A. and B. as partners. 
 Relil that the variance was fatal. Wilcox 
 V. State, 7 Blackf. 456. 
 
 124. But where an indictment charged a 
 tavern keeper with permitting the game of 
 loo to be played in his tavern by certain 
 persons named, it was held suflBcient to 
 prove that he permitted that game to be 
 played therein by other persons than those 
 named. Price's Case, 8 Leigh, 757. 
 
 125. An indictment for gaming may be 
 sustained against one, though others are 
 also charged in the indictment who were not 
 connected in gaming with him. Brown v. 
 State, 5 Yerg. 367. 
 
 126. Game played. The defendant was 
 convicted under an indictment charging him 
 with betting at a game of cards called pocre, 
 upon proof that the game on which he bet 
 was called drawn pocre^ and differed in some 
 respects from pocre. Barkman v. State, 8 
 Eng. 703. 
 
 127. Under an indictment for gaming, 
 the defendant may be convicted on proof 
 "that he and another put up money and 
 threw dice for it, three times each, the one 
 throwing the highest number taking the 
 money ; " although it appear " that the mode 
 of procedure and of throwing the dice was 
 the same as in the case of raffling for 
 property." Jones v. State, 26 Ala. 155. 
 
 128. To justify a conviction under an 
 indictment for gaming on proof that the 
 defendant played a game of euchre with 
 dominoes, the juiy must determine — 1st, 
 whether that game when played with 
 dominoes, is substantially the same as when 
 played with cards; and 2d, whether domi- 
 noes had become, at the time of the defend- 
 ant's playing, a device or substitute for cards 
 in playing euchre, or were in fact so used 
 in that particular game. Harris v. State, 31 
 Ala. 362. 
 
 123. A person cannot be convicted ob 
 proof that the defendant played euchre with 
 dominoes, where it is shown that euchre 
 with dominoes is an older game than euchre 
 with cards, and that both cards and domi- 
 noes are still in common use in playing 
 euchre, unless it appear that dominoes were
 
 246 
 
 GAMING.— GRAND JURY. 
 
 Evidence. 
 
 How Constituted. 
 
 used in that particular game as a substitute 
 for cards, althougli the players themselves 
 did not so intend. Harris v. State, 33 Ala. 
 37 o. 
 
 130. Under an indictment for keeping a 
 gaming house, it is unnecessary to prove the 
 allegations that evil disposed and vicious 
 jicrsons frequented the house, or specific acts 
 of "cursing, swearing, quarreling, and 
 drinking." Lord v. State, 16 New Hamp. 
 325. 
 
 131. In Alabama, on the trial of an indict- 
 ment for betting at a game of pool at a 
 public place, contrary to the statute (Code, 
 § 3243), the defendant may be convicted on 
 proof of his playing pool at a table reg- 
 ularly licensed for billiards ; such a license 
 not authorizing the use of the table for 
 the game of pool. Rodgors v. State, 26 
 Ala. 76. 
 
 132. An indictment for permitting a faro 
 bank to be kept and exhibited by the de- 
 fendant in his house, is not sui:)ported by 
 evidence that the house was owned by the 
 defendant, and that the faro bank was kept 
 and exhibited in it, without also showing 
 that the defendant permitted it. Harris v. 
 State, 5 Texas, 11. 
 
 133. The allegation in an indictment for 
 racing as to the kind of animal that was 
 suflfered to be run, is material, and must be 
 proved as laid. Thrasher v. State, 6 Blackf 
 460. 
 
 134. Upon the trial of an indictment 
 charging the defendant as a common gam- 
 bler, evidence that " he was and is by repu- 
 tation a common gambler," is not admis- 
 sible ; but facts must be proved. A single 
 instance of unlawful gaming, with other cir- 
 cumstances, might warrant a conviction. 
 Com. V. Hopkins, 2 Dana, 418. 
 
 135. Money won or lost. Under an in- 
 dictment for winning a certain sum of money, 
 it is sufficient to prove the winning of a 
 smaller sum. Parsons v. State, 2 Carter, 499. 
 
 136. An indictment which charges the 
 defendant with winning $5, by a wager, is 
 not supported by proof that he won a prom- 
 issory note for $o. Tate v. State, 5 Blackf 
 174.' 
 
 137. An information charmnsr the defend- 
 
 ant with having lost upon a game of cards 
 is not sustained by proof that he and another 
 person jointly lost. Jackson v. State, 4 Ind. 
 560. 
 
 138. On the trial of an indictment for 
 gaming, it was held erroneous to charge the 
 jury that it was not necessary for the prose- 
 cution to prove that the defendant either 
 won or lost of or to all the persons named 
 in the indictment, but that it was sufficient 
 to i^rove a winning or losing from or to, one 
 or more of them. Isely v. State, 8 Blackf. 
 403. 
 
 ©vanb 3uvi}. 
 
 1. How constituted. At common law a 
 grand jury may cansist of any number be- 
 tween twelve and twenty-three. State v. 
 Davis, 2 Ired. 153. 
 
 2. "Who may be grand juror. A person 
 competent to serve as a traverse juror is 
 competent to serve as a grand juror. In 
 Maine, by statute (R. S. ch. 106, § 3), cer- 
 tain persons, including all officers of the 
 United States, are exempted from serving as 
 jurors, and the statute directs that their 
 names shall not be placed on the lists. 
 Hehl that they were not disqualified. State 
 V. Quimby, 51 Maine, 395; State v. Wright, 
 53 lb. 328. 
 
 3. A grand juror, who had formed an un- 
 qualified opinion of the defendant's guilt, 
 previous to the finding of the indictment, is 
 incompetent to sit, although such opinion 
 was derived from evidence given in the 
 grand jury room in the finding of an indict- 
 ment against the defendant for the same of- 
 fense, which was quashSd. State v. Gillick, 
 7 Iowa, 287. 
 
 4. Quakers are not incompetent to serve 
 as grand jurors. Com. v. Smith, 9 Mass. 
 IO7T 
 
 5. Summoning. In Maine, grand jurors 
 by statute (R. S. ch. 135, § 10), are drawn 
 and summoned by writs of venire facias, un- 
 der seal of the court signed by the clerk. A 
 grand jury not legally constituted cannot be 
 made such by consent ; and aforti{)ri it can- 
 not become so by any omission to make ob- 
 jections. State V. Lightbody, 88 Maine, 200.
 
 GRAND JURY. 
 
 247 
 
 Proof of Organization. 
 
 Two Grand Juries. 
 
 6. The statute of New York (of 1851, p. 
 825, ch. 444), is so far directory that an 
 omission by the county judge to make the 
 specified designations respecting juries, does 
 not render his appointment of the times and 
 places for holding Courts of Sessions, without 
 such designations, irregular or invalid. It 
 is only when the order designates a term at 
 which no grand jury is required to attend, 
 that it is unlawful or irregular to draw or 
 summon one for such term. People v. 
 Cyphers, 5 Parker, 666 ; afli'd 31 N. Y. 373. 
 
 7. A grand jury having been impaneled, 
 sworn and charged, at the commencement 
 of the term, were discharged by order of the 
 court. Afterward, by another order of the 
 court, during the same term, the same per- 
 sons were reassembled and resumed the 
 duties of the grand jury for that term. 
 Held that there was no error. Wilson v. 
 State, 32 Texas, 112. 
 
 8. Where, on a trial for murder, it ap- 
 peared that the officer had neglected to 
 make a proper return to a venire which he 
 served for one of the grand jurors who 
 found the bill, it was held that being still in 
 ofiice he could amend his return after the 
 conviction of the prisoner. Com. v. Parker, 
 2 Pick. 550. 
 
 9. Proof of organization. The record 
 must afiirmatively show the organization 
 of the grand jury; and the mere indorse- 
 ment on an indictment, " A true bill, J. R. 
 Dillard, foreman of the grand jury," is not 
 suflScient. Parmer v. State, 41 Ala. 416. 
 
 10. It is not customary to insert the 
 names of the grand jurors in the record of 
 each case. Turns v. Com. 6 Mete. 225. The 
 names of the grand jurors must appear in 
 some part of the record. Mahan v. State, 
 10 Ohio, 232, But the venire facias need 
 not be spread upon the minutes of the court. 
 It is sutBcient if the record shows the return 
 of the venire and the selection of the grand 
 jury. Conner v. State, 4 Yerg. 137. The 
 record must show that the grand jury was 
 sworn. Abram v. State, 25 Miss. 589. 
 
 11. In Indiana, unless the record of the 
 board of county commissioners shows that 
 the grand jurors who found the indictment 
 were selected according to the statute, the 
 
 indictment will be quashed. State v. Con- 
 ner, 5 Blackf 325. 
 
 12. Two grand juries. Under the New 
 York code, two grand juries may sit in the 
 same county at the same time. Allen v. 
 People, 57 Barb. 338. 
 
 13. Amendment of panel. The panel of 
 the grand jury, returned by the sheriff, may 
 be amended by order of the court, or a new 
 one substituted, at any time during the day 
 on which it is returned, before the present- 
 ment of any bills of indictment. State v. 
 Rickey, 4 Halst. 293. 
 
 14. Objection to. A person accused of 
 crime may, before he is indicted, challenge 
 any one of the persons returned on the 
 grand jury. Hudson v. State, 1 Blackf. 
 317; Jones v. State, 2 lb. 475; Com. v. 
 Clark, 2 Brown, 233. 
 
 15. The objection that the grand jury has 
 not been drawn, summoned and impaneled 
 according to law, must be made by plea in 
 abatement at the court at which the indict- 
 ment is found. State v. Greenwood, 5 
 Porter, 474 ; State v. Leaben, 4 Dev. 305 ; 
 State V. Freeman, 6 Blackf. 248 ; Barney v. 
 State, 12 Smed. & Marsh. 68. It is too late to 
 raise the objection in the appellate court. 
 Bass V. State, 37 Ala. 469 ; Floyd v. State, 
 30 lb. 511. But see Ballair v. State, 6 
 Blackf. 104. 
 
 16. After an indictment has been filed 
 and accepted in court, it is too late to take 
 exception to the personal qualifications of 
 the grand jurors. Boyington v. State, 2 
 Porter, 100; Barney v. State, 17 Smed. & 
 Marsh. 68. See State v. Brown, 5 Eng. 78 ; 
 State v. Hawkins, 5 Eng. 71. 
 
 17. Irregularities in selecting and im- 
 paneling grand jurors, which do not go to 
 their incompetency, can only be objected to 
 by way of challenge. But their individual 
 incompetency may be pleaded in abatement 
 to the indictment. Huling v. State, 17 Ohio, 
 N. S. 583. 
 
 18. If any error or irregularity has oc- 
 curred in the organization of the grand 
 jury, the objection should be taken upon a 
 motion to quash the indictment, or perhaps 
 by plea. After pleading in bar to the 
 charge, it would be too late to raise the
 
 248 
 
 GEAND JUKY. 
 
 How Sworn. 
 
 Testimony Before. 
 
 question. People v. McCann, 3 Parker, 
 373, per Harris, J. ; referring to People v. 
 Robinson, 3 lb. 308; Horton v. State, 47 
 Ala. o8 ; Com. v. Chauncey, 3 Ashm. 90. 
 
 19. In Kew York, -where the prisoner in- 
 teriJOt^ed a special plea, founded upon the 
 alleged illegal organization of the grand 
 jury, after the plea of not guilty had been 
 entered and several jurors impaneled and 
 sworn, it was held that the refusal of the 
 court to entertain it was in its discretion, 
 and not the subject of exception. People v. 
 Allen, 43 N. Y. 28. 
 
 20. It may be objected to a grand juror 
 that he has formed and expressed an opinion 
 as_ to the guilt of the prisoner, or has shown 
 feelings of hostility toward him. But the 
 objection must be made before the indict- 
 ment is found. Peoi^le v. Jewett, 3 Wend. 
 314; contra^ State v. Hughes, 1 Ala. Goo; 
 State V. Clarissa, 11 Ala. 57. 
 
 21. A grand juror will not be set aside for 
 the reason that he has been the prosecutor 
 of a person accused of "a cai^ital crime, whose 
 case may probably be brought before the 
 grand jury. Case of Tucker, 8 Mass. 286. 
 
 22. How sworn. The form of ostth to 
 grand juries sliould be substantially fol- 
 lowed. The usual practice is to swear the 
 foreman tirst, and then to swear the others, 
 four at a time. Brown v. State, 5 Eng. 
 G07. 
 
 23. Where one of the grand jurors, being 
 detained, was not present when the rest of 
 the grand jurors were sworn, it was held 
 that he might be sworn afterward. Wad- 
 lin's Case, 11 Mass. 142. And see Brown v. 
 State, supra. 
 
 24. Power. In Pennsylvania, the grand 
 jirry can act upon and present oflenses of 
 public notoriety, and such as are within 
 their own knowledge, such as are given to 
 them in charge by the court, and such as 
 are sent up to them by the district attorney. 
 They cannot indict, in any other cases, with- 
 out a previous prosecution before a magis- 
 trate. McCullough V. Com. 67 Penn. St. 30. 
 
 25. Duty. It is the duty of the grand 
 jury to inquire into all offenses committed 
 in their county, whether the offenders are 
 or are not under arrest. Ward v. State, 2 
 
 Mo. 130; People v. Hyler, 2 Parker, 566; 
 State V. Jackson, 33 Maine, 40. 
 
 26. Testimony before. Witnesses before 
 a grand jury should be so sworn that, if 
 their evidence is false, they may be prose- 
 cuted for perjury. But the same nicety in 
 regard to evidence is not required as on the 
 trial. State v. Fasset, 16 Conn. 457. 
 
 27. To justify the finding of an indict- 
 ment, the testimony before the grand jury 
 must be such that, if unexplained, it would 
 sustain a conviction. People v. Hyler, 2 
 Parker, 570. 
 
 28. Disclosing testimony. A grand juror 
 may be compelled to testify, when necessary 
 for the purposes of justice, what the wit- 
 nesses before the grand jury testified to, 
 either to contradict witnesses, or otherwise. 
 State V. Wood, 53 ISTew Hamp. 484 ; s. c. 2 
 Green's Crim. Reps. 346. 
 
 29. But no evidence before the grand jury 
 can be used for the purpose of invalidating 
 the indictment. State v. Fassett, 16 Conn. 
 457. Where the defendant filed a plea in 
 abatement, that the pretended indictment 
 was not the act of the grand jury, and the 
 court allowed the foreman and six of the 
 grand jurors to testify that no indictment 
 was in fact found, and to explain how the 
 mistake occurred, it was held error. State 
 V. Oxford, 30 Texas, 428. 
 
 30. A witness is not permitted to disclose 
 evidence before a grand jury ; and a ques- 
 tion wliich may be answered in such a man- 
 ner as to make such disclosure, is improper. 
 State V. Knight, 43 Maine, 11. 
 
 31. Although a witness called by the pros- 
 ecution, and who denies his knowledge of 
 alleged facts, testifies with reluctance, and 
 manifests a disposition to conceal what he 
 knows, yet he cannot be asked on direct ex- 
 amination whether he did not swear to those 
 facts before the grand jury. Com. v. Welsh, 
 4 Gray, 535. 
 
 32. Discharge of grand jurors. At the 
 term of the court at which the indictment 
 was preferred, after the grand jury had been 
 impanneled, the court, upon the application 
 of two of the grand jurors, discharged them 
 that they might attend to their i^rivate busi- 
 ness. Held not a good objection to the
 
 GRAND JURY.— HABEAS. CORPUS. 
 
 249 
 
 Discharge of Grand Jurors. When Demandable as a Right. 
 
 Application for. 
 
 indictment. Denning v. State, 23 Ark. 
 131. 
 
 33. After the grand jury had been charged, 
 one of their number, upon his application, 
 was discharged by the court, and a substi- 
 tute ordered to be summoned from the by- 
 standers. Held that the placing of this per- 
 son on the grand jury, and his participation 
 in their deliberations, vitiated the whole 
 body. Portis v. State, 23 Miss. 578. 
 
 *%e Indictment; Trial. 
 
 1. When demandable as a right. A 
 prisoner is entitled to a writ of habeas corpus 
 as a matter of right, except when he is com- 
 mitted or detained under a final judgment. 
 If the officer to whom the writ is presented 
 for allowance decides that the prisoner is 
 not entitled to it, such decision is a proper 
 subject of review. People v. Mayer, 16 
 Barb. 362. But the inquiry cannot go be- 
 hind the sentence of a court of competent 
 jurisdiction. Johnson v. U. S. 3 McLean, 
 89. 
 
 2. When not proper remedy. Persons 
 out on bail are not entitled to a writ of 
 habeas corpus directed to their bail. Terri- 
 tory V. Cutler, McCahon's Kansas, lo2. 
 
 3. In New Jersey, it was held that a writ 
 of habeas corpus was not the proper remedy 
 for a guardian to obtain the custody of his 
 ward, where the ward was under fourteen, 
 and chose to remain with his mother. State 
 V. Cheeseman, 2 South. 445. 
 
 4. Formal defects in process cannot be 
 corrected by habeas corpus. The remedy is 
 either by motion to set the process aside, or 
 by certiorari. ]\Iiles v. Brown, 3 Barb. 37. 
 
 5. It is not the province of the writ of 
 h/ibeas corpus to review errors in the adjudi- 
 cation of an inferior tribunal, or the suffi- 
 ciency of errors before it, but only to ascer- 
 tain whether there was jurisdiction to pro- 
 nounce the sentence of commitment, and 
 whether the commitment is in due form. 
 People V. McCormack, 4 Parker, 9 ; Matter 
 of Prime, 1 Barb. 340; Stoner v. State, 4 
 Mo. 614. 
 
 6. Although the writ of habeas corpus may 
 sometimes be employed as a writ of error, 
 yet it cannot be used as a writ of quo war- 
 ranto in order to decide a question of usur- 
 pation of office. Matter of Wakker, 3 Barb. 
 162. 
 
 7. Where a person in prison under sen- 
 tence is needed for trial on another charge, 
 a habeas corpus should be issued, directed 
 to the keeper of the prison, stating the ob- 
 ject for which he is wanted, and command- 
 ing the keeper to produce him in court. 
 When the prisoner is brought into court, he 
 continues in the custody of the keeper, un- 
 til it is otherwise ordered; and, at the close 
 of the trial, the court may order that he 
 remain in such custody under the original 
 sentence. Such order, being directory and 
 not primitive, may be embodied in the sen- 
 tence and judgment. State v. Wilson, 38 
 Conn. 126. 
 
 8. A writ of habeas corimsi?, not the proper 
 remedy for a person imprisoned on a ca. sa. 
 irregularly issued ; but he should make ap- 
 plication to the court by motion and affi- 
 davit. Yates' Case, 4 Johns. 317. 
 
 9. Application for. In Alabama, an ap- 
 plication for a writ of habeas corpus must 
 be by petition, signed by the applicant, or 
 by some person in his behalf, and the peti- 
 tion must be verified to the eflFect that the 
 statements therein contained are true as to 
 the best of his knowledge, information and 
 belief. Gibson v. State, 44 Ala. 17. 
 
 10. An affidavit that the affiant is unlaw- 
 fully detained will be sufficient to entitle 
 him to a writ of Jiabeas corpus, without 
 other allegation. White v. State, 1 Smed, 
 & Marsh. 149. 
 
 11. To authorize an application for a writ 
 of habeas corpus to an officer of an adjoin- 
 ing county, under the statute of New York 
 (3 R. S. 5th ed. 883, §§ 37, 38), there must 
 be sufficient evidence that there is no officer 
 in the county where the prisoner is detained 
 who has power to grant the writ, or that 
 the officer is absent, or has refused to grant 
 it, or is incapable of acting for some cause 
 specially set forth. An affidavit which does 
 not state that there is no officer in the county 
 to grant the writ, but only that the defend-
 
 250 
 
 HABEAS CORPUS. 
 
 U. S. Supreme Court. 
 
 U. S. Circuit Court. 
 
 ant can find none, is insufficient. Tlie affi- 
 ■davit should relate to the day the applica- 
 tion is made, and not to a previous date. 
 People V. Burtnett, 5 Parker, 113. 
 
 12. Where a person detained under a writ 
 of ne exeat petitions for a writ of habeas 
 corpus^ a copy not only of the writ, but of 
 the bill upon which it is founded, and the 
 judge's order directing the writ of ne exeat 
 to issue, must accompany the petition, or a 
 sufficient excuse be shown for the omission. 
 Mr pdi-te Eoyster, 1 Eng. 28. 
 
 13. Notice of petition. Notice of the pe- 
 tition for a haheas corpus must be given to 
 the person who is interested in continuing 
 the imprisonment, although he do not re- 
 side in the county. People v. Pelham, 14 
 Wend. 48. 
 
 14. U. S. Supreme Court. Where a per- 
 son is unlawfully held under a judgment of 
 a Federal court, the Supreme Court (under 
 proceedings by haheas corpus and certiorari) 
 will examine the record, and, upon ascer- 
 taining the fact, will discharge him. Kv 
 jmrte Lange, 18 Wallace, 163; s. c. 2 Green's 
 Crim. Reps, 103. 
 
 15. The Supreme Court of the United 
 States may issue a writ of haheas corpus to 
 discharge a person who stands committed 
 by a commissioner of the U. S. Circuit as a 
 fugitive from justice in Great Britain, after 
 the Circuit Court has ordered that the writ 
 shall be dismissed and the jDrisoner re- 
 manded, l/i re Kane, 14 How. U. S. 103, 
 Curtis, J., dissenting. 
 
 16. The Supreme Court of the United 
 States has not jurisdiction of a writ of 
 haleas corpus under the seal of the Circuit 
 Court issued and tested by an associate 
 judge of the Supreme Court, returnable 
 before him at chambers, and adjourned by 
 him into the Supreme Court in bank. In re 
 Kane, suj)ra. 
 
 17. U. S. Circuit Court. The Circuit 
 Court of the United States may bring before 
 it by haheas corpus one of its deputy mar- 
 shals arrested and put in jail under State 
 process while executing a U. S. writ, and 
 inquire into the ground of his commitment, 
 and if illegal, direct his discharge. The 
 court will not only hear evidence to disprove 
 
 the truth of the affidavits upon which the 
 State authorities proceeded, but will con- 
 sider the affidavits independently of such 
 evidence; and if, in the judgment of the 
 court, they do not contain a prima facie 
 cause for arrest, will discharge the prisoner, 
 without hearing any counter evidence. In 
 general, moi'eover, the court will discharge 
 him, unless there is an oath of merits by the 
 plaintifi", or an affidavit of circumstances 
 from others to supply its place. Ex piarte 
 .Jenkins, 2 Wall. Jr. 521. 
 
 18. The act of Congress of March 2d, 1833, 
 gives relief by habeas corpus to one in State 
 custody, not only when he is held under a 
 law of the State which seeks to punish him 
 for executing a law or process of the United 
 States, but also when he is in such custody 
 under a general law of the State which aj)- 
 plies to all persons equally, where it ajipears 
 that he is justified for the act done, because 
 it was done in pursuance of a law of the 
 United States, or of the process of a United 
 States court or judge. U. S. v. Jailer of 
 Fayette County, 2 Abb. 265. 
 
 19. Jurisdiction of State court where 
 party is held by Federal authority. A 
 State court will not grant a writ of haheas 
 corpus to a person committed under an act 
 of Congress. State v. Paine, T. U. P. 
 Charlt. 142. 
 
 20. A regular demand under the act of 
 Congress and warrant of the governor, to 
 surrender a fugitive, cannot be inquired into 
 on haheas corpus. State v. Buzine, 4 Harring. 
 572. 
 
 21. Where a writ of haheas corpus issued 
 by a State court is served on a United 
 States marshal having a prisoner in custody, 
 the marshal should make known to the 
 court, by a proper return, the authority by 
 which he holds the prisoner in custody. And 
 if the State authorities should attempt to 
 control the marshal in the custody of his 
 prisoner, it would be his duty to resist it, 
 and to call to his aid aiiy force that might 
 be necessarj'. U. S. v. Booth, 21 How. U. S. 
 506. 
 
 22. A State court or judge may entertain 
 proceedings by haheas corpus where persons 
 are detained bv officials of the United States
 
 HABEAS CORPUS. 
 
 251 
 
 Where Party is Detained under State Process. 
 
 When Granted. 
 
 under claim of enlistment and desertion, or 
 other alleged authority of the government, 
 and may direct the discharge of such per- 
 sons when the detention is unlawful. Matter 
 of Reynolds, 6 Parker, 276. 
 
 23. A habeas corpxis was allowed by a New 
 York Supreme Court commissioner, directed 
 to the commander of the navy of the United 
 States on Lake Ontario, and to the general 
 commanding the troojas of the United States 
 at Sackett's Harbor, and to each and every 
 subordinate officer under said commandants, 
 or either of them, ordering them to bring 
 the body of Samuel Staoy, Jr., &c., imme- 
 diately, &c., together with the cause, &c., 
 before the commissioner, &c. The following 
 return was indorsed on the writ : " I, Morgan 
 Lewis, general of division in the army of the 
 United States, do return to the within writ, 
 that the within named Samuel Stacy, Jun'r, 
 is not in my custody." Held that the return 
 was evasive and insufficient ; that it should 
 have been that the prisoner was not in his 
 custody, possession, or power. And upon 
 its being shown by affidavits that the per- 
 son was in fact in the custody of the subor- 
 dinate officer, acting under the order of 
 General Lewis, and that the return was 
 intentionally evaded, the court directed an 
 attachment against General Lewis for con- 
 tempt. Matter of Stacy, 10 Johns. 337. 
 
 24. To deprive the State courts of juris- 
 diction on haleas corpus within State terri- 
 tory ceded to the United States, such juris- 
 diction must have been expressly surrendered 
 by the State. Matter of Carleton, 7 Cow. 
 471. 
 
 25. When the inquiry on hribeas corpus 
 involves a question of conflict between 
 State and Federal process, counsel have no 
 right to appear in defense of the State 
 process without being duly authorized to 
 do so. Ex parte Jenkins, 2 Wall. Jr. 521. 
 
 26. Where party is detained under 
 State process. In New York, the right to 
 discharge a pnsoner indicted and impris- 
 oned for an offense not cognizable by a 
 Court of Sessions, on the ground that he 
 has not been tried within the time pre- 
 scribed by law, is not confined to the Court 
 •of Oyer and Terminer, but the application 
 
 may be made to any court having jurisdic- 
 tion to issue a writ of habeas corpus. People 
 V. Jefferds, 5 Parker, 518. 
 
 27. In New York, where the chancellor 
 committed an officer of the Court of Chan- 
 cery for malpractice and contempt, and a 
 judge of the Supreme Court, in vacation, on 
 habeas corpus, discharged the prisoner, and 
 the chancellor afterward recommitted him 
 for the same cause, it was held that the 
 chancellor was not liable to the penalty 
 given by the fifth section of the habeas corpus 
 act (2 R. S. 571, §§ 59, 60, sess. 24, ch. 65). 
 Yates V. Lansing, Jr., 9 Johns. 395. 
 
 28. In Alabama, a court, under the con- 
 stitutional provision which gives it " a 
 general superintendence and control of in- 
 ferior jurisdictions," may grant a writ of 
 habeas corpus, upon the refusal of a judge of 
 the Circuit Court or chancellor. Ex parte 
 Chaney, 8 Ala. 424. 
 
 29. In Missouri, a judge of the Circuit 
 Court may, during term time or vacation, 
 issue a writ of habeas corpus, and if he im- 
 properly discharge the prisoner, the jailer or 
 other officer who has him in custody will 
 not be liable. Martin v. State, 13 Miss. 471. 
 
 30. Whether the court may, by a writ of 
 habeas corpus to the executive officer of 
 another court, take a prisoner from the cus- 
 tody of the latter — query. Sims' Case, 7 
 Cush. 285. 
 
 31. "When granted. In Georgia, where 
 prisoners had been in jail two terms, were 
 ready for trial at each term, and at the sec- 
 ond term petitioned to be brought to trial, 
 it was held that they were properly dis- 
 charged on habeas corpus. State v. Segar, 
 T. U. P. Charit. 24. 
 
 32. In New York, a writ of habeas corpus 
 ad testificandum, may be allowed to bring up 
 a prisoner charged in execution upon a ca. sa. 
 to testify in relation to his own application 
 for a discharge as an insolvent. Wattles v. 
 Marsh, 5 Cow. 176. 
 
 33. When refused. A person committed 
 upon an indictment for murder cannot be 
 discharged upon habeas corpus by proving 
 his innocence, however conclusive the proof 
 may be, l)ut must abide the event of a trial 
 by jury. Where the application to be ad-
 
 252 
 
 HABEAS CORPUS. 
 
 When Refused. 
 
 Nature and Extent of Inquiry. 
 
 mittcd to bail is made before indictment, 
 tlie inquiry as to guilt or innocence must be 
 confined to the proof on which the commit- 
 ment was ordered. People v. McLeod, 1 
 Hill, 377; People v. Ruloff, 5 Parker, 77. 
 
 34. A writ of habeas corprcs refused where 
 it appeared that the petitioner was in the 
 custody of the sheriff under a commitment 
 from the District Court, after conviction for 
 felony. Ex jxir/e Ezell, 40 Texas, 451. 
 
 35. The protection of the English haheas 
 corpus act (31 Car. II, ch. 2), against unlaw- 
 ful impeachment, extended only to the re- 
 lease of the prisoner on bail, when the of- 
 fense was bailable. Peojole v. McLeod, 1 
 Hill. 377. 
 
 36. Where the petition of a writ of Jialeas 
 corpus shows that the petitioner, if brought 
 before the court, could not be discharged, 
 the writ will not be granted. Sims' Case, 7 
 Cusii. 285. 
 
 37. The inquiry on habeas corpnis cannot 
 go behind the sentence of a court of com- 
 petent jurisdiction, Johnson v. U. S. 3 Mc- 
 Lean, 89; Ex parte Ball, 2 Gratt. 588; Peo- 
 ple V. Shea, 3 Parker, 562. 
 
 38. Form. Forms of writs of habeas cor- 
 pus and certiorari., allowance, and return. 
 People V. Tompkins, 1 Parker, 224. 
 
 39. Service. A writ of habeas corpms 
 was applied for, and issued in open court, 
 and read to the relator, who was present 
 with and had the custody of the prisoner. 
 Held., that the failure of the relator to ask 
 for the writ for the purpose of making his 
 return was an acceptance of service and 
 waiver of the delivery of the writ to him. 
 People V. Bradley, 60 111. 390. 
 
 40. Return. The material facts of the 
 return, which are not denied by the pris- 
 oner, must be taken as true. In re Da Costa, 
 1 Parker, 129. 
 
 41. Rule to appear. A rule to appear 
 upon a haheas corpus cannot l)e taken before 
 the return day, though the writ be actually 
 returned before that time. Jones agst. 
 Spicer, 6 Cow. 391. 
 
 42. Certiorari for removal. The prose- 
 cuting attorney is the proper person to ob- 
 tain a certiorari for the removal into the 
 Supreme Court of proceedings commenced 
 
 by habe'is corpus. People v. Hicks, 15 Barb. 
 153. 
 
 43. Duty of court to inquire into legal- 
 ity of detention. Where, on habeas corpixs, 
 it appears thi^t the prisoner is detained on a 
 warrant committing him for examination as 
 an alleged fugitive from justice from another 
 State, the fact that his examination is not 
 finished is no ground for the officer issuing 
 the writ to omit to inquire into the legality 
 of his detention. Matter of. Hay ward, 1 
 Sandf. 701. 
 
 44. Nature and extent of inquiry. On 
 
 habeas corpus, a court or judge before whom 
 a prisoner is brought who was arrested as a 
 fugitive from justice, by a warrant from the 
 executive of one State, on the requisition of 
 the executive of another State, the only in- 
 quiry is whether the warrant on which he 
 is arrested recites that the prisoner has been 
 demanded by the executive of the State 
 from which he is charged to have fled, and 
 that a copy of the indictment, or an affida- 
 vit charging him with having committed 
 treason, felony, or other crime, certified by 
 the executive demanding him as authentic, 
 has been presented. Matter of Clark, 9 
 Wend. 212. 
 
 45. Where, on the return to a writ of 
 habeas corpus., it appeared that the prisoner 
 was detained under a warrant issued by a 
 magistrate upon a complaint on oath, it was 
 held proper for the court to go behind the 
 warrant and inquire into the legality of the 
 imj)risonment. People v. Tompkins, 1 Par- 
 ker, 224 ; In re Heilbonn, lb. 429. 
 
 46. Upon a habeas corpus., the court will 
 not inquire into the regularity of the pro- 
 ceedings before the judge who issued the 
 warrant on which the defendant was impris- 
 oned, but only as to his colorable authority. 
 Matter of Prime, 1 Barb. 340. 
 
 47. Where a United States officer has 
 been indicted and arrested under State pro- 
 cess for riot, assault and battery, and assault 
 with intent to kill, the court, on habeas 
 corpus., will look beyond the indictment, and 
 entertain evidence going to show that the 
 alleged ofl'ense was committed in the proper 
 execution of an order, process, or decree
 
 HABEAS CORPUS. 
 
 253 
 
 Evidence for Prisoner. 
 
 Discharge of Prisoner. 
 
 of a Federal court. Ex parte Jenkins, 2 
 Wall. Jr. 521. 
 
 48. In New York, it has been held that 
 although the court will not go behind the 
 indictment, yet that on a commitment be- 
 fore indictment, the question of guilt or 
 innocence may be inquired into on the 
 return to the writ of habeas corpus^ the pro- 
 ceedings being in the nature of an appeal 
 from the decision of the committing magis- 
 trate. People V. Martin, 1 Parker, 187; 
 People V. Tompkins, lb. 224. 
 
 49. Where the return to a habeas corpus 
 states that the prisoner is detained by virtue 
 of process, the validity and existence of the 
 process are the only facts which can be in- 
 vestigated. If the warrant is sufficient on 
 its face, the prisoner cannot be discharged. 
 The sufficiency of the evidence on which it 
 issued cannot be inquired into. Benuac v. 
 People, 4 Barb. 31. 
 
 50. In Indiana, it has been held that the 
 judge who issues the writ, may, if the au- 
 thority by which the prisoner is detained 
 is defective, hear evidence as to his guilt, 
 and remand, recognize, or discharge him. 
 State V. Best, 7 Blackf. 611. 
 
 51. When evidence must be produced. 
 To authorize the remand of a prisoner held 
 on an irregular commitment, and brought 
 before the judge on habeas corpus, the testi- 
 mony must be produced on the return of the 
 writ, or at the hearing. It is too late to 
 present it on u subsequent day when the 
 judge decides to discharge the prisoner. 
 Matter of Hayward, 1 Sandf. 701 ; Matter of 
 Fetter, 3 Zabr. 311. 
 
 \/%2. Evidence for prisoner. When a 
 party imprisoned is brought before a judge 
 on a writ of habeas corpus, he may inquire 
 into the jurisdiction of the tribunal by 
 which he was committed, and if he can 
 show that such tribunal had no jurisdiction 
 to try, convict, or commit, he is entitled to 
 his discharge. People v. Rawson, 61 Barb. 
 619. 
 
 53. On a traverse to a return on a writ of 
 habeas corpus, tlie process by which the pris- 
 oner is held being regular on its face, the 
 burden of proof is on the prisoner. Matter 
 of Hayward, supra. 
 
 54. The inquiry on the traverse of tlie 
 return to a habeas corpus being summary, the 
 prisoner may show the grounds of his arrest 
 and detention by the best testimony at hand 
 or which he can procure with reasonable 
 diligence, without reference to the ordinary 
 rules of evidence. Matter of Hayward, 1 
 Sandf. 701; Matter of Fetter, 3 Zabr. 311. 
 
 55. By the return to a writ of habeas cor- 
 2ms, it appeared that the prisoner was con- 
 victed at a Court of Special Sessions, held 
 by three justices. It was alleged on behalf 
 of the prisoner, by way of a traverse of this 
 return, that the said court was in fact held 
 by two of the police justices only, one of 
 them not being in fact present when the 
 prisoner was arraigned, tried, or sentenced. 
 Held that evidence aliunde was admissible 
 to prove such allegations. People v. Diviue, 
 5 Parker, 62. 
 
 56. In a proceeding by habeas corpus in the 
 United States District Court, the petitioner 
 is a competent witness as to a question of 
 fact. Matter of Reynolds, 6 Parker, 276. 
 
 57. Evidence as to legality of deten- 
 tion. The justice who issued the warrant, 
 and the clerk of his court, may be witnesses 
 to prove on what papers the warrant issued. 
 Matter of Fetter, 3 Zabr. 311. 
 
 58. Where a person committed by a mag- 
 istrate, is brought up on habeas corpus, for 
 inquiry into the cause of detention, addi- 
 tional evidence may be submitted to the 
 judge to show that the prisoner is legally 
 detained. People v. Richardson, 4 Parker, 
 656. 
 
 59. Discharge of prisoner. Where there 
 are two grounds of detention, one good, and 
 the other bad, the court may on habeas 
 corpus, discharge the prisoner as to the void 
 cause, and remand him as to the other. Bx 
 Ijarte Badgley, 14 Wend. 472. 
 
 60. An order of a commissioner or other 
 officer, discharging a prisoner from custody 
 on habeas corpzis, is good until reversed, if 
 he have jurisdiction; otherwise the order 
 may be treated as void. Spalding v. People, 
 7 Hill, 301. 
 
 61. Effect of decision. The decision of 
 an officer having power to issue and decide 
 upon a writ of habeas corpus, upon any sub-
 
 254 
 
 HABEAS COEPUS.— HOMICIDE. 
 
 Effect of Decision 
 
 Murder. 
 
 What Constitutes. 
 
 sequent application, is conclusive between 
 the same parties when the subject-matter is 
 the same, and there are no new facts. In re 
 Da Costa, 1 Parker, 139; People v. Burtnett, 
 5 lb. 113. 
 
 82. But a prior decision under a previous 
 writ of habeas corpus, is not conclusive, 
 where the first decision cannot be reviewed 
 by writ of error. Matter of Reynolds, 6 
 Parker, 276. 
 
 63. Where a commissioner of the Supreme 
 Court has jurisdiction of the subject-matter, 
 and of the parties, his decision cannot be 
 impeached collaterally. Therefore, the dis- 
 charge of the prisoner is a protection to the 
 sheriff who had him in custody, although 
 the discharge was erroneously granted. 
 Wiles V. Brown, 3 Barb. 37. 
 
 See Peddlers. 
 
 Ijomiciic. 
 
 1. Murder. 
 
 («) What constitutes. 
 
 (b) Indictment. 
 
 (c) Evidence in general. 
 
 (d) Presumptions. 
 
 (e) Admissions and declnrations of de- 
 fendant. 
 
 if) Admissions and declarations of co- 
 defendant, 
 {g) Declarations of person l-illed. 
 (h) Dying declarations, 
 (i) Character of person killed, 
 (j) Character of defendant. 
 (k) Burden of j^roof. 
 (l) Weight and sufflciency of proof, 
 (m) Charge of court. 
 (/i) Verdict, 
 {o) Sentence. 
 
 2. Manslaughter. 
 {a) What constitutes, 
 {h) Indictment. 
 
 (c) Trial. 
 
 (d) Evidence. 
 
 (e) Verdict. 
 
 3. Justifiable homicide. 
 
 (a) la self-defense. 
 
 (h) I?i protecting property. 
 
 (c) In prevention of felony. 
 
 (d) In case of shipwrecTc. 
 {e) In ease of accident. 
 (/) Evidence. 
 
 1. Murder. 
 (a) What constitutes. 
 
 1. Definition. Murder is the killing of a 
 reasonable being, with malice aforethought 
 express or implied by law. State v. Zellers, 
 2 Halst. 220 ; U. S. v. Magill, 1 Wash. C. C. 
 463 ; Com. v. York, 9 Mete. 93 ; Com v. 
 Webster, 5 Cush. 295. The statute of Mis- 
 sissippi, in defining the ofl'ense, uses the 
 words "premeditated design," instead of 
 "malice aforethought." McDaniel v. State, 
 8 Smed. & Marsh. 401. 
 
 2. An instruction that " murder is the 
 unlawful killing of one person by another,^ 
 with malice either express or implied," is 
 erroneous. The killing should be charged 
 as having been done " unlawfully and with 
 malice aforethought." Perry v. State, 43 
 Ala. 21. 
 
 3. That part of the common-law definition 
 of murder embraced in the expression " the 
 king's peace," has reference to the state and 
 condition of the deceased; that is, as to 
 whether or not he was entitled to the pro- 
 tection of the English laws; a subject, or an 
 alien; enemy or traitor in arms; or more 
 anciently, an infidel, or guilty of praemunire. 
 State V. Dunkley, 3 Ired. 116. 
 
 4. May be in heat of passion. A homi- 
 cide may be murder, although done in the 
 heat of passion. And the same is true, 
 thougli the passion be aroused by just cause, 
 if the killing be done after sufficient time 
 has elapsed for reason to resume its sway. 
 Smith V. State, 49 Ga. 482. 
 
 5. Where a father was told in the evening, 
 that his son, a small boy, had been wantonly 
 whipped by a man whom he met the follow- 
 ing evening, and with his fist and feet beat 
 and stamped, while he was unresisting, with 
 so much violence that the man died the next 
 night, it was held murder. McWhirter's 
 Case, 3 Gratt. 584.
 
 HOMICIDE. 
 
 255. 
 
 Murder. 
 
 What Constitutes. 
 
 6. The intentional killing of another 
 without provocation, and not in sudden 
 combat, is none the less murder because the 
 oflFender was in a state of jjassion. People 
 V. Sullivan, 3 Seld. 396. 
 
 7. No -words applied by one man to an- 
 other will justify the use of a deadly weap- 
 on; nor can they be the lawful occasion of 
 that " heat" which will reduce the act of 
 killing from murder to manslaughter. U. S. 
 V. Carr, 1 Woods. 480. 
 
 8. No provocation however great, will 
 extenuate a homicide, when, from the weap- 
 on used, or the nature of the attack, an 
 intention to kill, or to do some great bodily 
 harm is manifest. State v. Cheatwood, 3 
 Hill, S. C. 459; Com. v. Webster, 5 Cush. 
 395 : People v. Austin, 1 Parker, 154 ; State 
 V. Johnson, 1 Ired. 354; Felix v. State, 18 
 Ala. 730. 
 
 9. If, after angry words, the prisoner took 
 up &n axe and approached the deceased with 
 the design to take away his life, or to do 
 him some great bodily harm, and the de- 
 ceased had sufficient reason to believe that 
 such was the intention of the prisoner, he 
 had a right to strike in self-defense, although 
 t'ae prisoner was not yet within striking 
 distance ; and such striking by the deceased 
 will not amount to a legal provocation to 
 mitigate the killing to manslaughter. State 
 V. Baker, 1 Jones, 367. 
 
 10. In North Carolina, it has been held 
 that no provocation short of a battery, or 
 assault at least, will extenuate a killing to 
 manslaughter. State v. Barfielci, 8 Ired. 
 344; State v. Tackett, 1 Hawks, 310. And 
 the same in Indiana, when the homicide has 
 been effected with a deadly weapon. Beau- 
 champ V. State, 6 Blackf. 399. 
 
 11. Moderate provocation, given by a 
 woman or child to a man of average 
 strength, even though it amounts to a 
 blow, will not reduce a homicide from 
 murder to manslaughter. Com. v. Hosier, 
 4 Barr, 364. And see State v. Merrill, 3 
 Dev. 3G9. 
 
 12. To kill an alien enemy after he has 
 laid down liis arms, and especially when he 
 is confined in prison, is murder. State v. 
 Gut, 13 Minn. 341. 
 
 13. Intoxication no defense. It is no 
 
 defense to an indictment for murder, that 
 the accused was intoxicated when he com- 
 mitted the act. People v. Robinson, 1 
 Parker, 649 ; unless his habits of drunken- 
 ness have caused an habitual madness. Hale 
 V. State, 11 Humph. 154; Pirtle v. State, 9 
 lb. 663 ; Cluck v. State, 40 Ind. 363 ; s. c. 1 
 Green's Crim. Reps. 734. But see pout, suh. 
 336. 
 
 14. Need not be enmity. To constitute 
 murder, it is not necessary that the perpe- 
 trator should have enmity toward the de- 
 ceased. It is sufficient if there be either 
 deliberate malice, or circumstances of cruel- 
 ty and malignity. Nor is it necessary that 
 the party should himself inflict the mortal 
 wound, if present aiding and abetting the 
 act. U. S. V. Ross, 1 Gallison, 634 ; State v. 
 Jarrett, 1 Ired. 76. 
 
 15. The following instruction was held not 
 unexceptionable : That the unlawful killing 
 of a human being, without express malice^ 
 and under such circumstances as would not 
 make the offense murder in the first degree, 
 and not under sudden provocation and in 
 the heat of passion, or under such circum- 
 stances as would reduce the offense to man- 
 slaughter, would be murder in the second 
 degree, and it would not be necessary that 
 the jury shall more particularly consider 
 under what circumstances malice afore- 
 thought w^ould be implied. State v. Cou- 
 ley, 39 Maine, 78. 
 
 16. May be committed by infant. Al- 
 though an infant between seven and fourteen 
 years of age, is prima facie incapable of 
 committing crime, yet if the evidence shows 
 beyond a reasonable doubt, that he under- 
 stood the nature and consequences of his 
 act, and the act indicates intelligent design 
 and malice, he may be convicted of murder. 
 Godfrey v. State, 31 Ala. 333. 
 
 17. Must be intent to kill. In general, 
 an intent to kill is essential to constitute 
 murder, except where the accused is at the 
 moment engaged in perpetrating a felony. 
 People V. Austin, 1 Parker, 154. 
 
 18. The intent to kill may be formed 
 on the instant. If there Ije sufficient 
 deliberation to form a design to take life.
 
 1256 
 
 HOMICIDE. 
 
 Murder. 
 
 What Constitutes. 
 
 and to put that design into execution by 
 destroying life, it will constitute murder, 
 whether the design be formed at the instant 
 of striking the fatal blow, or have been a 
 long time contemplated. People v. Clark, 
 3 Seld. 385; Com. v. York, 9 Mete. 93; 
 Anthony v. State, Meigs, 265 ; Shoemaker 
 V. State, 12 Ohio, 43; People v. Freel, 48 
 Cal. 436 ; O'Brien v. People, 48 Barb. 274. 
 
 19. Under the statute of New York, de- 
 claring the killing of a human being to be 
 murder when clone from a premeditated 
 design to cause the death of the person 
 killed, it was held erroneous for the court 
 to instruct the jury that it was murder if 
 the intent to kill was formed at the instant 
 of striking the fatal blow. Sullivan v. Peo- 
 ple, 1 Parker, 347. And see People v. 
 Johnson, lb. 291 ; Wilson v. People, 4 lb. 
 619. 
 
 20. But when the killing occurs with an 
 intent to effect death, however instantane- 
 ously the intent is formed prior to the com- 
 mission of the deed, the crime is murder 
 under the statutes of New York of 1860 and 
 1862. Lowenberg v. People, 5 Parker, 414; 
 Lanergan v. People, 6 lb. 209; s. c. 50 
 Barb. 266 ; Walters v. People, 6 Parker, 15. 
 
 21. Under the law of New York, as it ex- 
 isted prior to 1860, the penalty for homicide 
 committed with premeditation was death. 
 Since the act of 1862, such killing is murder 
 in the tirst degree, and the penalty is the 
 same. The word " premeditated " is used 
 in the same connection in the old and in the 
 present statute, and has the same meaning 
 and construction. ' Lanergan v. People, su- 
 pra. 
 
 22. The statute of New York has given 
 no definition of murder in the second degree, 
 except negatively, that it is not murder in 
 the first degree, nor any of the degrees of 
 manslaughter. It cannot occur when the 
 homicide was committed with premedita- 
 tion. O'Brien v. People, 48 Barb. 274, per 
 Leonard, J. 
 
 23. In Missouri, every deliberate and in- 
 tentional killing is murder in the first degree, 
 although the design to kill was formed but 
 an instant before it was executed. State v. 
 Dunn, 18 Mo. 419; State v. Jennings, 
 
 lb.; Green v. State, 13 lb. 382; State v. 
 Hays, 23 lb. 287 ; State v. Starr, 38 lb. 270 ; 
 State V. Holme, 54 lb. 153. It is the same 
 in Iowa. State v. Johnson, 8 Iowa, 525; 
 overruling Fouts v. State, 4 Greene, 500. 
 
 24. In Tennessee, to constitute murder, the 
 intention to kill need not have pre-existed 
 in the mind, but may be formed on the in- 
 stant. Lewis V. State, 3 Head, 127. And 
 in Nevada, it has been held that willful, de- 
 liberate and premeditated killing may take 
 place where the design to kill is formed at 
 the very moment of striking the fatal blow. 
 State V. Millain, 3 Nev. 409. In California, 
 the following instruction, on a trial for mur- 
 der, was held proper : " In deliberating, there 
 need be no apjireciable space of time between 
 the intention to kill and the act of killing. 
 They may be as instantaneous as successive 
 thoughts of the mind. It is only necessary 
 that the act of killing be preceded by con- 
 currence of will, deliberation and premedi- 
 tation on the jiart of the slayer; and if such 
 is the case, the killing is murder in the first 
 degree, no matter how rapidly these acts of 
 the mind may succeed each other, or how 
 quickly they may be followed by the act of 
 killing." People v. Williams, 43 Cal. 344; 
 s. c. 1 Green's Crim. Reps. 412; approving 
 People V. Nichol. 34 Cal. 211. 
 
 25. In Virginia, wdiere the prisoner as he 
 approached the deceased, and first came in 
 view of him at a short distance, there formed 
 a murderous design, and walked up quickly 
 and killed him without provocation, it was 
 held murder in the first degree. Whiteford 
 V. Com. 6 Rand. 721. 
 
 26. But in Kentucky, it has been held 
 that charging the jury that the existenceyb?- 
 an instant before the killing, of an unlawful 
 intent to take life "is sufficient to constitute 
 the legal malice required to make the killing 
 murder," is misleading and a misapj^lication 
 of the correct principle, that " it is sufficient 
 to constitute murder that it api^ear that 
 malice existed at the time of the killing, 
 without regard to the time which it had be- 
 fore existed. Donnellan v. Com. 7 Bush, 
 676. 
 
 27. In Tennessee, where the intent to kill 
 was formed upon the sudden impulse of
 
 HOMICIDE. 
 
 257 
 
 Murder. 
 
 What Constitutes. 
 
 passion, without any previous design to kill, 
 it was held murder in the second degree, 
 although the act was committed willfully 
 and maliciously. Clark v. State, 8 Humph. 
 671 ; Anthony v. State, Meigs, 265. 
 
 28. Degree of offense determined by in- 
 tent. The intention with which the act is 
 committed distinguishes murder as it exists 
 at common law and murder as it is understood 
 and defined in Pennsylvania by the statute 
 of 1794. Where the act producing death is 
 malicious, and perpetrated with an intent to 
 take life, the offense is murder in the first 
 degree; but where no such intent exists, the 
 crime is murder in the second degree. Com. 
 V. Keeper, 2 Asbm. 227 ; Com. v. Williams, 
 lb. 69. 
 
 29. In Pennsylvania, it was held that to 
 constitute murder in the first degree the 
 homicide should not only be willful, pre- 
 meditated, malicious and without legal justi- 
 fication, but the act must have been com- 
 mitted with the formed intention to take 
 life. Com. v. Murray, 2 Ashm. 41 ; Com. v. 
 Williams. lb. 69. 
 
 30. In Tennessee, the distinguishing char- 
 acteristic of murder in the first degree is the 
 existence of a fixed design on the part of the 
 assailant that the act shall result in the 
 death of the party assailed. Swan v. State, 
 4 Humph. 136; Riley v. State, 9 lb. 657. 
 When the killing is perpetrated by poison 
 or lying in wait, the fact of lying in wait 
 will be evidence of a malicious and premed- 
 itated purpose. lb. And see Dale v. State, 
 10 Yerg. 551 ; Anthony v. State, Meigs, 
 265; Copeland v. State, 7 Humph. 479; 
 Dame v. State, 2 lb. 439. But such pre- 
 meditation as to make it murder in the first 
 degree under the statute will not be inferred 
 from the employment of a deadly weapon. 
 Clark V. State, 8 Humph. 671. If the de- 
 fendant, with premeditated intent to kill 
 one person, contrary to his intention killed 
 another, it would not be murder in the first 
 degree. Bratton v. State, 10 lb. 103. 
 
 31. Murder by poisoning. To constitute 
 the act of administering poison it is not 
 necessary that there should have been a de- 
 livery of the poison to the person poisoned. 
 It is sufficient if it was taken from a place 
 
 17 
 
 where it was put by the accused for that 
 purpose. Sunipter V. State, 11 Fla. 247. 
 
 32. The criminal act of administering 
 poison is not consummated by simply pre- 
 scribing or delivering the poison; but it 
 must have been actually swallowed pursuant 
 to the direction. Where, therefore, the 
 poison is furnished in one county to a person 
 who carries it into another county and there 
 takes it and dies, the crime is committed in 
 the latter county. Robbins v. State, 8 Ohio, 
 131. 
 
 33. In riot or affray. The fact that a 
 riot w^as in progress at the time of a homi- 
 cide, does not in law distinguish the homi- 
 cide either in kind or degree. State v. Jen- 
 kins, 14 Rich. 215. 
 
 34. Where murder is committed by riot- 
 ers, an indictment charging it as the act of 
 one of them, will be sustained by evidence 
 that any other of them gave the fatal stroke, 
 or that it was given by some one of them, 
 though it does not appear by which. State 
 V. Jenkins, supra. 
 
 35. But when an innocent person is ac- 
 cidentally killed by persons engaged in sup- 
 pressing a riot, a rioter cannot be convicted 
 of murder or manslaughter therefor. Com. 
 V. Campbell, 7 Allen, 541. 
 
 36. It is no justification of a homicide re • 
 suiting from an affray which the defendant 
 commenced, that when it was committed 
 he was acting on the defensive. State v. 
 Hudson, 59 Mo. 135. 
 
 37. Where one interferes to separate per- 
 sons engaged in an affray, and gives notice 
 of his intention, and is killed by one of 
 them, it is murder. State v. Cheatwood, 2 
 Hill, S. C. 459. 
 
 38. But it is erroneous to charge that 
 if the prisoner inflicted a mortal wound, and 
 then another person having no connection 
 with him, struck the deceased a blow which 
 proved fatal, the prisoner would still be 
 guilty of murder. State v. Scates, 5 Jones, 
 420. 
 
 39. By engaging another in a fight. If 
 a i)erson go after another and engage him in 
 a fight in order to stab him, and death 
 ensues, it will be murder in the assailant, no 
 matter what provocation was then given, or
 
 258 
 
 HOMICIDE. 
 
 Murder, 
 
 What Constitutes. 
 
 how the assailant's passion rose during tlie 
 combat. State v. Lane, 4 Ired. 113, 
 
 40. Upon a quarrel, one of the parties re- 
 treated about fifty yards, apparently wishing 
 to avoid a fight. The other followed, over- 
 took, stabbed, and killed him, the latter 
 having stopped and first struck with his 
 fist. Held mui'der. State v. Howell, 9 Ired. 
 485. 
 
 41. A. being unarmed, was pursued by B. 
 to a bouse in which A. took refuge. B. 
 then tried to break down the door with an 
 axe, but not succeeding, threw the axe 
 away. The door being opened by A., B. 
 collared him, and after a tussle, killed him 
 with a deadly weapon. Held mnvSiev. State 
 V. Hargett, Go K C. 669. 
 
 42. If a person attack another with malice 
 aforethought, even though he should be 
 driven to the wall, and kill his adversary 
 there to save his own life, he will be guilty 
 of murder. State v. Hill, 4 Dev. & Batt. 
 491. 
 
 43. On a trial for murder, the evidence 
 tended to show that the prisoner had fol- 
 lowed the deceased with a deadly weapon 
 for the purpose of demanding satisfaction 
 for an insult, and to kill the deceased, or to 
 do him great bodily harm should the de- 
 mand for satisfaction be refused ; that the 
 deceased turned upon him, at the same 
 time putting his hand to his side as if to 
 draw a weapon, and that thereupon the 
 prisoner killed him by a blow with his gun. 
 Held that a verdict of guilty was proper. 
 State v. Owen, Phil. N. C. 425. 
 
 44. If a person prepares and conceals a 
 deadly weapon before entering into a fight 
 which he provokes, with the determination 
 to use it if necessary, in the fight, and he 
 kill his antagonist in the fight, it is murder. 
 Price V. State, 36 Miss. 531. 
 
 45. The prisoner having prepared a deadly 
 weapon with an intention to use it in case he 
 got into a fight with deceased, sought him 
 with the expectation of having a conflict 
 with him. Hekl, that the killing was 
 murder, although the deceased made the 
 first assault. State v. Hogue, 6 Jones, 3S1. 
 
 46. If one goes into a fight having upon 
 his person a deadly weapon, intending from 
 
 the first to use the same if necessary to en- 
 able him to overcome his antagonist, and in 
 the fight, uses the same and kills his antago- 
 nist, he is guilty of murder, notwithstanding 
 he habitually carried the weapon. Green v. 
 State, 28 Miss. 687. 
 
 47. If A., from previous resentment, on 
 meeting B., strike him with a whip, in order 
 to induce B. to draw a pistol, intending to 
 shoot B. as soon as he draws, and B. does 
 draw, and A. immediately shoots and kills 
 him, it is murder. State v. Martin, 2 Ired. 
 101. 
 
 48. In mutual combat. Where parties, 
 by mutual understanding, engage in a con- 
 flict, and death ensues to either, the slayer 
 will be guilty of murder. State v. Under- 
 wood, 57 Mo. 40. 
 
 49. When a mutual combat is entered into 
 deliberately, as in duels,and death ensues, it 
 is murder, but where it is in hot blood, the 
 the homicide is manslaughter. U. S. v. 
 Mingo, 2 Curtis C. C. 1. 
 
 50. Where a person enters a contest with 
 a dangerous weapon, and fights under an 
 unfair advantage, though mutual blows be 
 struck, it is not manslaughter, but murder. 
 State V. Hildreth, 9 Ired. 429. 
 
 51. On a trial for murder, it appeared that 
 the prisoner and the deceased after fighting 
 were separated at the request of the prisoner, 
 who was not a match for his antagonist; 
 that the prisoner, being held by a bystander, 
 drew his knife and swore that he would kill 
 the deceased ; that the prisoner broke away 
 from the person holding him and ran toward 
 the deceased, who had retreated two hun- 
 dred and twenty-five yards, and who, upon 
 being ajiprised that the prisoner was coming, 
 left the road where he was Avalking and 
 armed himself with a rail from a fence ; that 
 when the prisoner reached the place where 
 the deceased was, the latter gave back and 
 struck the former several blows on the head 
 with the rail as he rushed on, and that the 
 rail breaking some ten paces from where the 
 deceased began to give back, the prisoner 
 closed and inflicted the mortal wound. A 
 verdict of guilty having been rendered, the 
 court declined to disturb it. State v. Mc- 
 Cants, 1 Spear, 384.
 
 HOMICIDE. 
 
 250 
 
 Murder. 
 
 What Constitutes. 
 
 52. By third person interfering in 
 fight. While two persons were fighting in 
 a room the defendant rushed in, and with- 
 out any provocation inflicted on one of them 
 a fatal stab. Held murder. Conner v. State, 
 4 Yerg. 137. 
 
 53. Where a person who was not insulted 
 or threatened dismounted from his horse, 
 armed himself with a club, stood between 
 two other persons, who were about to engage 
 in a fight, and killed one of them, it was 
 held that it was murder. Johnston's Case, 5 
 Gratt. 660. 
 
 54. A. and B. were fighting with their 
 fists, when the son of A., a boy seventeen 
 years of age, came up, and taking hold of 
 B.'s coat collar behind, stabbed B. from 
 l^ehind in the right side, from which he 
 died. It-was proved that the son had for a 
 week previous to the homicide manifested 
 strong animosity toward the deceased, and 
 had repeatedly stated that on receiving any 
 provocation from him, he would kill him. It 
 was further proved that he stated after the 
 fight, and before he knew the serious char- 
 acter of the wound, that he had been 
 prompted by a desire and intent to kill on 
 account of the previous conduct of the de- 
 ceased. Held murder. Bristow v. Com. 15 
 Gratt. 634. 
 
 55. In resisting officer. When a person 
 resists an ofiicer, or those engaged in assist- 
 ing him in making a lawful arrest, in a law- 
 ful way, and slays one of the arresting 
 party, it is murder. State v. Oliver, 2 Hous- 
 ton, Del. 585. And it will be murder if, in 
 making such resistance, he accidentally kills 
 a third person. Angell v. State, 36 Texas, 
 542; s. c. 1 Green's Crim. Reps. 653. But 
 if the arrest be without lawful authority, 
 and the resistance is only such as is pro- 
 voked by, and in due proportion to the 
 assault, and the killing is without malice, it 
 is neither murder nor manslaughter. He 
 who undertakes to resist an officer after he 
 has made known his authority, does so at 
 his peril, if the authority of the officer is 
 valid. But the circumstances of such resist- 
 ance are proper to be considered on the 
 question of malice. State v. Oliver, supra. 
 
 56. Where, after the commission of a 
 
 felony, the wrong-doers flee, and within 
 three or four hours are followed by an offi- 
 cer, who overtakes them twelve miles from 
 the scene of the crime, it is an immediate 
 or fresh pursuit, and if the officer, upon 
 overtaking them, j^oints a gun at them, at 
 the same time exclaiming: "You are my 
 prisoners — surrender," they have no right to 
 fije upon him, and if they do so,^ and he is 
 killed, it is murder. People v. Pool, 27 
 Cal. 572. 
 
 57. On the trial of an indictment under 
 the act of Congress of Feb. 24, 1864, § 12 
 (13 Stats, at Large, 8), for murder in resisting 
 an enrolment, held that if an officer, while 
 engaged in his official duties, is killed by a 
 person under the influence of hostility to the 
 law, or of a violent temper, which is roused 
 by no fault of the officer, or of revenge, it is 
 not necessary to sustain a conviction to 
 show that the defendant intended to ob- 
 struct the execution of the law ; but that it 
 would be otherwise if the officer became in- 
 volved in a quarrel upon some matter hav- 
 ing no connection with his official duties. 
 U. S. v.Gleason, 1 Woolw. C. C. 75; lb. 128. 
 
 58. In misdemeanors, the voluntary killing 
 of the accused, in the effort to arrest him, 
 is murder, though he cannot be otherwise 
 overtaken. Williams v. State, 44 Ala. 41. 
 / 59. In resisting trespass. A bare tres- 
 pass against the property of another, not his 
 dwelling, does not justify the owner in using 
 a deadly weapon in its defense, and if he 
 use such weapon and kill the trespasser, it 
 will be murder, notwithstanding the killing 
 may have been necessary to prevent the 
 trespass. If the intention was not to take 
 life, but to chastise or deter the trespasser, 
 or if the killing take place in the passion or 
 heat of blood, it may be manslaughter. Com. 
 V. Drew, 4 Mass. 391 ; State v. Vance, 17 
 Iowa, 138. 
 
 60. When a person goes to anotliers house 
 in a peaceable manner, and ui^on being 
 ordered away, and not going immediately, 
 is killed by the owner, the slayer is guilty of 
 murder, although it be proved that he had 
 previously forbidden the deceased from com- 
 ing there. State v. Smith, 3 Dev. & Batt. 
 117.
 
 2G0 
 
 HOMICIDE. 
 
 Murder. 
 
 What Constitutes. 
 
 61. It is erroneous for the court to charge 
 the jury tliat " if they believed that the de- 
 ceased had taken the horse of the prisoner, 
 and was riding him off beyond the reach of 
 probable recapture, and that the prisoner 
 after repeatedly hailing him slew the tres- 
 passer with a deadly weapon, he is not 
 guilty of murder. McDaniel v. State, 8 Smed. 
 &3Iarsh. 401. 
 
 62. In case of adultery. It is only where 
 the wife has been discovered in the act of 
 adultery, that the law mitigates the killing 
 of her or her paramour, on the ground of 
 passion, unless the jDrisoner was smarting 
 under a provocation so recent and strong 
 that he could not be considered as being at 
 the time the master of his own understand- 
 ing. State V. Holme, 54 Mo. 153 ; State v. 
 John, 8 Ired. 330. 
 
 63. On the trial of an indictment for the 
 murder by a husband of his wife, it is not 
 competent for him to show that for a long 
 time previous to the homicide, he had been 
 cognizant of the adulterous conduct of his 
 wife, either in excuse, or as tending to prove 
 his insanity. Sawyer v. State, 35 Ind. 80. 
 
 64. But evidence on a trial for murder, 
 that the accused was informed of his wife's 
 adultery is admissible to show that he com- 
 mitted the crime in a state of frenzy where 
 it appears that there was so short an interval 
 between the time of committing the offense 
 and the information that there was no op- 
 portunity for the passion it would naturally 
 excite to subside. Sanchez v. People, 22 
 N. Y. 147. 
 
 65. Although where a husband kills a 
 person caught in the act of adultery with his 
 wife it is manslaughter, yet if he kill him 
 afterward because he believed that he was 
 going away with her to commit another 
 similar act, it is murder. State v. Samuel, 
 3 Jones, 74 •, State v. Neville, 6 lb. 423. 
 
 66. On a trial for murder it was shown 
 that about a year previously there had been 
 criminal intercourse between the deceased 
 and the prisoner's wife ; and at the time of 
 the homicide the prisoner finding the de- 
 ceased and his wife in conversation, attacked 
 him with a stone and knife and killed him. 
 
 Held that the prisoner was properly con- 
 victed. State V. Avery, 64 N. C. 608. 
 
 67. A husband having suspicion that his 
 wife had committed adultery with A., set B. 
 to watch them, and B. killed A. Held on 
 the trial of B. for the murder that it was not 
 competent for him to show that A. had com- 
 mitted adultery with the wife. People v. 
 Horton, 4 Mich. 67. 
 
 68. On a trial for murder, it was proved 
 that the prisoner going to his sister's house 
 at a late hour in the night heard a noise in 
 her room, and suspecting that she was in the 
 act of adultery, burst open the door of her 
 room, where he foimd his sister in her night 
 dress and the deceased with her, and that he 
 thereupon stabbed the deceased twice in the 
 back and once in the breast, inflicting upon 
 him wounds from which he died. Held that 
 there was not sufficient provocation to re- 
 duce the killing to manslaughter. Lynch 
 V. Com. 77 Penn. St. 205. 
 
 69. While committing other offense. At 
 common law, if a person kill another with 
 an axe, with malice aforethought, and with 
 an intent to rob him, upon a sudden heat, 
 but without any adequate provocation, it is 
 murder. Mitchell v. State, 8 Yerg. 514. 
 
 70. When a felony is about to be com- 
 mitted, a bystander may use such force to 
 prevent it as may be necessary ; and if while 
 so engaged, he is intentionally killed, it will 
 be murder in the slayer. Dill v. State, 25 
 Ala. 15. 
 
 71. Where a person engages in the prose- 
 cution of an unlawful design against another, 
 and uses poison to accomplish such design, 
 which, by its natural action, produces a 
 greater injury than he anticipated, he is not 
 by his ignorance of the probable extent of 
 such injury relieved from criminal respon- 
 sibility for the act. People v. Carmichael, 5 
 Mich. 10. It is no justification that the de- 
 fendant administered poison to another with 
 the intent to obtain his money by stealth, 
 and not to injure his person. People v. Ad- 
 wards, lb. 22. 
 
 72. Where a female is pregnant, and a 
 drug is administered to her for the puipose 
 of destroying the child, which results in the 
 death of the mother, it is murder in the
 
 HOMICIDE. 
 
 261 
 
 Murder. 
 
 What Constitutes. 
 
 second degree, unless the intention was to 
 take away the life of the mother as well as 
 to destroy her offspring, in which case, it is 
 murder in the first degree. Com. v. Keeper, 
 2 Ashm. 237. 
 
 73. If a person enters on another's land 
 and builds a house there, and the owner 
 goes to the premises for the purpose of 
 forcibly ejecting the intruder and tearing 
 down the house, and in the conflict that 
 ensues the intruder is killed, it is murder or 
 manslaughter according to circumstances. 
 People V. Houshell, 10 Cal. 83. 
 
 74. A custom of violating the law will 
 not exempt such violation from punishment. 
 The defendants went to a wedding without 
 invitation, were civilly treated, and in the 
 evening began a disturbance, in which a 
 person was so injured that on the third day 
 after he died. In defense it was claimed 
 that the defendants did no more than engage 
 in a frolic which was the custom of the 
 country. Held that a conviction of murder 
 in the second degree was proper. Bankus 
 V. State, 4 Ind. 114. 
 
 75. By several in prosecution of com- 
 mon design. Where a person is engaged in 
 a common illegal undertaking with another, 
 and the latter gives the blow which causes 
 death, the fonner may be guilty as a princi- 
 pal, although he did not actually assist in 
 inflicting the fatal blow. Stij)p v. State, 11 
 Ind, 63. 
 
 76. Where, on a trial for murder, the 
 evidence shows that there was a conspiracy 
 to commit the ofiiense, and that both con- 
 spirators were present aiding and abetting 
 the common design, it is immaterial by 
 which of them the fatal shot was fired. 
 People V. Woody, 45 Cal. 389. 
 
 77. Where the wife is a voluntary active 
 party with her husband in the commission 
 of a robbery, and while both are so engaged 
 he commits a murder, she is chargeable with 
 the same crime as the husband. Miller v. 
 State, 25 Wis. 384. 
 
 78. Where two are indicted for murder, 
 and the one who is charged with having 
 committed the deed is proved to have only 
 been present aiding and abetting, and the 
 other is proved to have given the mortal 
 
 blow, the indictment is supported, it being 
 in law the stroke of both. State v. Anthony, 
 1 McCord, 285. 
 
 79. Therefore, if the indictment charges 
 that A. gave the mortal blow, and that B. 
 and C. were present aiding and abetting, 
 and it is proved that B. was the person who 
 dealt the blow, and that A. and C. were 
 present aiding and abetting, it is not a ma- 
 terial variance, as the blow is adjudged in 
 law to be the stroke of every one of them. 
 Brister v. State, 26 Ala. 107. 
 
 80. Where death ensues by the act of an- 
 other in pursuit of an unlawful design, 
 without any intention to kill, it is murder 
 or manslaughter, according to the circum- 
 stances of the case. State v. Smith, 33 Maine, 
 369. 
 
 81. If several conspire to seize by robbery 
 property belonging to another, and escape 
 with it, and if necessary to kill any person 
 who shall oppose them in the execution of 
 the design, and death ensues in the prosecu- 
 tion of the common purjiose, it is murder in 
 all who are present aiding and abetting. 
 People V. Pool, 37 Cal. 573. 
 
 82. Where several conspired to seize with 
 force a vessel, and run away with her, and 
 a person opposing the design was killed, it 
 was held murder in those who were aiding 
 and abetting. U. S. v. Ross, 1 Gallis. 624. 
 
 83. I-f a number of persons combine to 
 commit an unlawful act, and death ensue 
 from anything done in the prosecution of 
 the design, it is murder in all who take part 
 in the transaction. If the design be to 
 commit a trespass, the death must occur in 
 the prosecution of the original design to 
 make it murder in all. But if the design be 
 to commit a felony, it will be murder in all, 
 although death ensue apart from the original 
 design. U. S. v. Ross, supra ; State v. Shel- 
 ledy, 8 Iowa, 477. 
 
 84. The following instruction was held 
 proper: "It is no defense to a party asso- 
 ciated with others in, and engaged in a 
 robbery, that he did not propose or intend 
 to take life in its perpetration, or that he 
 forbade his associates to kill, or that he 
 disapproved or regretted that any person 
 was thus slain by his associates. If the
 
 262 
 
 HOMICIDE. 
 
 Murder. 
 
 What Constitutes. 
 
 liomicide in question was committed by one 
 of his associates engaged in the robbery, in 
 furtherance of their common purpose to rob, 
 he is as accountable as though his own hand 
 had intentionally given the fatal blow." 
 People V. Vasquez, 49 Cal. 560. See People 
 V. Geiger, 49 Cal. 643. 
 
 85. On a trial for murder, the following 
 charge of the judge was held to be as favor- 
 able as the law would warrant: That if the 
 shot that caused the death was fired by an- 
 other hand than that of the prisoner, the 
 jury must be satisfied that there was an 
 actual and overt concert and complicity to 
 effect that precise object. Ruloff v. People, 
 45 K Y. 213. 
 
 86. The time when an illegal combination 
 and arrangement was made which resulted 
 in murder is not material, so long as it was 
 made before the actual commission of the 
 offense. lb. 
 
 87. A person who is constructively present 
 by performing his part in an unlawful and 
 felonious enterprise exjiected to result in 
 homicide — such as keeping watch at a dis- 
 tance to prevent surprise, or the like — is 
 guilty as a principal, although the murder 
 is committed by some other of the party. 
 State V. Nash, 7 Iowa, 347. 
 
 88. It is erroneous to charge the jury that 
 if the murder was perpetrated with the 
 knowledge and consent or connivance of 
 the defendant, he is guilty as a principal. 
 Clem V. State, 33 Ind. 418. There can be 
 no criminal responsibility for anything not 
 fairly within the common enterprise, and 
 which might be expected to happen if oc- 
 casion should arise for any one to do it. 
 Where therefore j^arties combine to commit 
 a crime, and some of them in trying to escape 
 perpetrate a homicide, one who did not con- 
 sent, and was not engaged in the homicide. 
 Avill not be liable. People v. Kuapp, 26 Mich. 
 106; s. 0. 1 Green's Crim. Reps. 252. 
 
 89. A., B. and C. having been jointly in- 
 dicted, A. as principal, and B. and C. as 
 aiders and abettors in the murder of D., and 
 A. tried separately and acquitted, the fol- 
 lowing instruction on the trial of B. and C. 
 was held misleading and erroneous : " If the 
 jury believe from the evidence, that A. will- 
 
 fully shot and killed the deceased without 
 premeditation, or without the intention to 
 consummate by his act the death of the de- 
 ceased, and that B. and C. were then and 
 there present aiding, abetting and assisting 
 A. to do the aforesaid act, without premedi- 
 tation or malice aforethought on their part, 
 then you will find the defendants guilty of 
 murder in the second degree." State v. 
 Phillips, 24 Mo. 475. 
 
 90. One who aids and assists another in 
 committing a homicide is a principal, and 
 may be indicted and punished, although the 
 one who inflicted the mortal wound has not 
 been taken. State v. Rochelle, 2 Brev. 338 ; 
 Beets V. State, Meigs, 106. 
 
 91. By acts regardless of life. If an un- 
 lawful act be done deliberately, and with 
 intention of doing mischief, or great bodily 
 harm, or of mischief indiscriminately, and 
 death ensue contrary to the original inten- 
 tion, it will be murder. But if the act was 
 committed heedlessly, without any mis- 
 chievous intention, it will be manslaughter 
 only ; and if death ensue from the perform- 
 ance of a lawful act, it will be murder, man- 
 slaughter, or misadventure, according to the 
 circumstances. Ann v. State, 11 Humph. 
 150; Com. v. York, 9 Mete. 93. 
 
 92. If persons in the pursuit of their law- 
 ful and common occupation see that danger 
 will probably arise to others from their acts, 
 and yet persist without giving sufficient 
 warning of the danger, and death ensues, it 
 will be murder. Lee v. State, 1 Cold. Tenn. 
 62. 
 
 93. Death resulting from the following 
 acts, has been held murder in the offender. 
 By wantonly and heedlessly throwing timber 
 into the street of a populous town ; by felo- 
 niously shooting at tame fowls with intent 
 to steal them; by wantonly permitting wild 
 beasts to go at large ; by riding an unruly 
 horse into a crowd ; by a mother exposing 
 her infant child in a garden; by overseers 
 of the poor sending an infant pauper child, 
 from one parish to the other in a contest 
 which should support it, until it died of cold 
 and starvation ; by a son wantonly' exposing 
 his sick father to the cold so that he 
 perished ; by a mother hiding her child ic'
 
 HOMICIDE. 
 
 263 
 
 Murder. 
 
 What Constitutes. 
 
 a hog pen where it is killed. Com. v. York, 
 9 Mete. 93. 
 
 94. Where the prisoner shot at another 
 on horseback, with the avowed intention to 
 cause the horse to throw him, and the ball 
 hit a third person and killed him, it was 
 murder. State v. Smith, 2 Strobh. 77. See 
 State V. Sisson, 3 Brev. 58. 
 
 95. When a person enters a house for the 
 felonious purpose of killing any one, and 
 voluntarily fires his gun in execution of that 
 design, the killing of his friend, though not 
 intended, will be murder. If in such case 
 the firing was accidental, he will be guilty 
 of manslaugliter. If without any such special 
 purpose he voluntarily and recklessly fires 
 into a crowd, and kills his friend or any 
 other person, he will be guilty of murder. 
 Golliher v. Com. 2 Duvall, Ky. 163 ; Sparks 
 V. Com. 3 Bush, Ky. 111. 
 
 96. Subdivision 2, of § 5, of the statute of 
 New York defining murder, was designed to 
 provide for that class of cases, and no others, 
 where the acts resulting in death are cal- 
 culated to put the lives of many persons in 
 jeopardy without being aimed at any one in 
 particular, and perpetrated with a full 
 consciousness of the probable consequences. 
 Drury agst. People, 10 N. Y. 120. 
 
 97. On a trial for murder in New York, it 
 appeared that the meeting of the accused 
 and the deceased was casual, without pre- 
 vious acquaintance ; that the accused, tak- 
 ing ofiense at some trifling remarks made by 
 the deceased in passing him near midnight, 
 stabbed the deceased. It was held that as 
 the killing was probably without any intent 
 to take life, but " by an act imminently dan- 
 gerous to others, and evincing a depraved 
 mind regardless of human life, although 
 without any design to efi"ect the death of 
 any particular individual," it was not within 
 the definition of murder in the second de- 
 gree, but was murder in the first degree, or 
 manslaughter in the third or fourth degree. 
 People V. Skeehan, 49 Barb. 217. 
 
 98. By cruel treatment. The legal mean- 
 ing of malice aforethought, as applied to 
 cases of homicide, applies to all cases of 
 homicide however sudden the occasion 
 when the act is done with such cruel 
 
 circumstances as show a wicked, depraved, 
 and malignant spirit. U. S. v. Cornell, 2 
 Mason, 91 ; State v. Turner, Wright, 20 ; 
 State V. Smith, 2 Strobh. 77; Anthony v. 
 State, 13 Smed. & Marsh. 263 ; Ann v. State, 
 11 Humph. 1.50. What constitutes a cruel 
 and unusual manner of killing, is to be de- 
 termined by the jury. State v. Linney, 52 
 Mo. 40 ; s. c. 1 Green's Crim. Reps. 753. 
 
 99. Where a seaman, being in a condition 
 of great debility, so that he could not safely 
 go aloft, which was known to the master, 
 and the latter nevertheless persisted with 
 brutal malignity in compelling him to do so, 
 and the seaman fell from the mast and was 
 drowned, it was held that he was guilty of 
 murder. U. S. v. Freeman, 4 Mason, 505. 
 And see State v. Hoover, 4 Dev. & Batt. 
 365, where the brutal treatment of a slave, 
 by his master, resulting in the death of the 
 slave, was held to be murder. 
 
 100. If correction given by parents, mas- 
 ters, and other persons having authority in 
 foro domestico, exceed the bounds of due 
 moderation, and death ensue, it will be 
 either murder or manslaughter, according 
 to the circumstances. Where the deceased 
 was stripped naked by his stepfather, placed 
 on his back with his feet tied, so kept every 
 day from morning until dinner, for a week, 
 and beaten day after day with a heavy 
 leather strap, a knotted cord four double, 
 and an iron ramrod, until he died, it was 
 held murder. State v. Harris, 63 N. C. 1. 
 
 101. By advising suicide. Where one 
 advises another to commit suicide, and the 
 other, in consequence of the advice, kills 
 himself, the adviser is guilty of murder as 
 principal. Com. v. Bowen, 18 Mass. 356 ; 
 s. c. 2 Wheeler's Crim. Cas. 226. 
 
 102. On the trial of an indictment for the 
 murder of a woman by poison, it was held 
 correct to charge the jury, that, if by way of 
 persuasion or agreement jointly to commit 
 suicide, the defendant induced the deceased 
 to swallow the poison, with the intent on 
 his part to destroy her life, he being present 
 at the time; and she, influenced by such 
 persuasion or agreement, swallowed the 
 poison knowing it to be deadly, and intend- 
 ing thereby, by virtue of such agreement, to
 
 264 
 
 HOMICIDE. 
 
 Murder. 
 
 What Constitutes. 
 
 destroy her own life ; or if by force in any 
 manner, he compelled her to swallow down 
 the poison, it constituted an administering 
 of poison. Blackburn v. State, 23 Ohio, N. 
 S. 146. 
 
 103. Death from unskillful treatment. 
 If a wound be inflicted, not dangerous in 
 itself, and the death which ensues was 
 caused by the erroneous treatment of it, the 
 original author will not be liable. Parsons 
 V. State, 21 Ala. 300. 
 
 104. But where a person dies from a 
 wound inflicted with a murderous intent, 
 the fact that he had no surgeon, or an un- 
 skillful one, or a nurse whose treatment may 
 have aggravated the original hurt, cannot 
 mitigate the crime of the person whose 
 malice caused the death. To do that it 
 must appear that the real cause of the death 
 was misconduct, malpractice, or ill treat- 
 ment on the part of other persons than the 
 accused. State v. Scott, 13 La. An. 274. 
 And where the wound was adequate to cause 
 death, it is no excuse to show that had 
 proper attention been given, the deceased 
 might have recovered. State v. Baker, 1 
 Jones, 267; Com. v. McPike, 3 Cush. 181 ; 
 McAllister v. State, 17 Ala. 434. Therefore, 
 on the trial of an indictment for mm'der by 
 shooting with a pistol, it was held correct 
 for the court to charge the jury that if the 
 effect of the circumstances intervening be- 
 tween the pistol wound and the death was 
 merely to prevent recovery that might oth- 
 erwise have taken place, or to aggravate 
 or hasten the effect of the pistol wound, 
 that wound might still be considered the 
 cause of the death. Com. v. Costley, 118 
 Mass. 1. 
 
 105. When death ensues from a wound 
 given in malice, but not in its nature mortal, 
 but which, being neglected or mismanaged, 
 the party dies, the accused will be held 
 guilty of the murder, unless he can make it 
 clearly appear that the maltreatment of the 
 wound, or the medicine administered to the 
 patient, or his own misconduct, and not the 
 wound itself, was the sole cause of death. 
 State V. Morphy, 33 Iowa, 270. 
 
 106. On a trial for murder by stabbing, 
 the following instruction was held proper: 
 
 That if the juiy were satisfied that the 
 wounds inflicted by the defendant were im- 
 properly and unskillfully treated by the 
 surgeons in attendance, and that such treat- 
 ment hastened or contributed to the death 
 of the deceased, the defendant was not for 
 this reason entitled to an acquittal. Com. 
 V. Hackett, 2 Allen, 136. 
 
 107. Where a wound is apparently mortal, 
 and a surgical operation is performed in a 
 proper manner, under circumstances which 
 render it necessary in the opinion of com- 
 petent surgeons, upon one who has been 
 wounded by another, and such operation is 
 itself the immediate cause of death, the 
 person who inflicted the wound will be re- 
 sponsible ; but not if the death results from 
 grossly erroneous surgical or medical treat- 
 ment. Coffman v. Com. 10 Bush, Ky. 
 495. 
 
 108. On a trial for murder, the evidence 
 left it doubtful whether the deceased came 
 to his death from the wound, or from the 
 improper treatment of it by the attending 
 surgeon in sewing it up. The prisoner's 
 counsel requested the court to charge that 
 if the wound was not mortal, and it clearly 
 appeared that the deceased came to his 
 death from the wrong traatment, and not 
 from the wound, they must acquit the 
 prisoner. This charge the court gave, with 
 this qualification, " that if the ill-treatment 
 relied on, was the sewing up of the wound, 
 the defendant would not be excused; if 
 otherwise, guilty. Held error. Parsons v. 
 State, 21 Ala. 300. Goldwaite, J., dissent- 
 ing. 
 
 109. If the death of the deceased was 
 hastened by the act of the prisoner, his 
 guilt is not extenuated because death would 
 probably have been the result of a disease, 
 with which the deceased was afflicted at the 
 time. State v. Morea, 2 Ala. 275. 
 
 110. As to what constitutes the crime of 
 murder, see Com. v. Crane, 1 Va. Cas. 10 ; 
 Resj). V. Bob, 4 Dall. 145 ; and how dis- 
 tinguished from manslaughter, see Mc- 
 Whirt's Case, 3 Gratt. 594. In Arkansas, 
 the distinction between murder and man- 
 slaughter remains as at common law. 
 Bivens v. State, 6 Eng. 455.
 
 HOMICIDE. 
 
 205 
 
 Murder. 
 
 Indictment. 
 
 (b) Indictment. 
 
 111. Venue. At common law, the prisoner 
 must be indicted in the county where the 
 offense was committed. But in the case of 
 homicide, if the wound was given in one 
 county and the death occurred in another, it 
 ■was said by some that the party could not be 
 indicted, because the offense was not com- 
 plete in either county. But the common 
 opinion was that he might be indicted 
 where the wound was given. Riley v. State, 
 9 Humph. 657. 
 
 112. In Virginia, where a person being- 
 stabbed, died of his wounds in another 
 State, it was held that the perpetrator of 
 the murder could not be tried in Virginia, 
 but might be tried for the assault in the 
 county where the wound was given. Com. 
 V. Linton, 2 Va. Cas. 205. 
 
 113. In Iowa, where a mortal blow is 
 struck in one county, and death occurs 
 therefrom in another, the offender may be 
 prosecuted and tried in the latter. Nash v. 
 State, 2 Greene, 280. 
 
 114; Averment of time. An indictment 
 for murder must specify the date of the 
 homicide, and state that it was caused by 
 the injury inflicted by the defendant. Omit- 
 ting the word " did," in charging the injury 
 will be fatal. Edmondson v. State, 41 
 Texas, 496. The words " instantly did die," 
 do not sufficiently charge time and place. 
 Lester v. State, 9 Mo. 658. 
 
 115. The allegation of time is material in 
 one respect, and that is, that the death must 
 be laid to have occurred within a year and 
 a day of the wound. State v. Shepherd, 8 
 Ired. 195. 
 
 116. An indictment charged that the 
 mortal wound was inflicted the 7th of No- 
 vember, and that the deceased languished 
 until 8th of November, on which 8th day of 
 May, the deceased died. Held, that the in- 
 sertion of May for November was a clerical 
 error which did not vitiate. Ailstuk's Case, 
 3 Graft. 650. 
 
 117. Wlierc, in case of murder, the blow 
 was given before, but the death ensued after 
 the passage of a statute, the death must be 
 made to relate back to the unlawful act 
 which occasioned it ; and the day on which 
 
 the act was committed, and not the one 
 on which the result of the act was deter- 
 mined, is the day on which the murder is 
 properly to be charged. People v. Gill, 
 Cal. 637. 
 
 118. Averment of place. An indictment 
 for murder must allege the place of the 
 death. State v. Cummings, 5 La. An. 330. 
 But the Legislatm-e may, by statute, dispense 
 with the averment that the offense was com- 
 mitted within the body of the county in 
 which the indictment was found, and require 
 that fact to be shown by the evidence. 
 Noles V. State, 24 Ala. 672. 
 
 119. Where a murder has been committed 
 in an unincorporated place, the venue is 
 well laid, if the place is described as being 
 within a certain county, and designated by 
 the name which it publicly and commonly 
 bears. The allegation that the scene of the 
 crime was " an island called Smutty Nose, a 
 place within the county of York aforesaid," 
 was held sufficient. State v. Wagner, 61 
 Maine, 178. 
 
 120. Averment of means employed. The 
 instrument or means by which the homicide 
 was committed should be distinctly set out 
 so far as known. State v. Williams, 36 
 Texas, 352. An indictment for murder 
 which does not state facts showing the man- 
 ner in which the crime may have been per- 
 petrated, is insufficient. White v. Com. 9 
 Bush, 178. But the indictment need not set 
 out the circumstances which determine the 
 degree of the offense. Davis v. State, 39 
 Md. 355; s. c. 2 Green's Crim. Reps. 381. 
 
 121. An indictment for murder which al- 
 leges that A. B. was killed " with a shot 
 gun," does not state the manner and cir- 
 cumstances attending the use of the gun 
 with sufficient certainty, and is bad on de- 
 murrer. Edwards v. State, 27 Ark. 493; 
 s. c. 1 Green's Crim. Reps. 741. 
 
 122. Where the indictment alleged that 
 the defendant, " with a certain stone which 
 he held, feloniously did cast and throw and 
 strike the deceased on the right side of the 
 head," it was held sufficient to show that 
 the defendant threw the stone and hit the 
 deceased. White v. Com. 6 Binu. 179. See 
 Turns v. Com. 6 Mete. 324.
 
 2GG 
 
 HOMICIDE. 
 
 Murder. 
 
 Indictment. 
 
 123. An indictment against H. for incit- 
 ing S. to murder K., by mistake charged 
 II. with inciting H. to commit the murder. 
 Held fatal. State v. Houston, 19 Mo. 211. 
 
 124. An indictment for murder is suffi- 
 cient, although in consequence of the omis- 
 sion of the word "with," the deed is 
 charged to have been committed by a 
 knife, instead of by the j^risoner. Shay v. 
 People, 22 N. Y. 317. 
 
 125. An indictment which charges an ac- 
 tual poisoning, need not state what partic- 
 ular poison was administered. Carter v. 
 State, 2 Carter, 617. Nor allege that the 
 substance administered was a poison. But 
 it is otherwise as to an indictment for an at- 
 tempt to poison. Anthony v. State, 29 Ala. 
 27. 
 
 126. Where a homicide is charged to have 
 been caused by a battery, it is necessary to 
 allege an assault. Lester v. State, 9 Mo. 
 658. An indictment is sufficient which 
 charges that the defendant committed, an 
 assault upon the deceased, in some way and 
 manner, and by some means, instrument and 
 weapons to the jury unknown, and that the 
 defendant did thereby willfully and mali- 
 ciously deprive him of life. Com. v. "Webster, 
 5 Cush. 295. 
 
 127. An indictment for murder may allege 
 several modes of death inconsistent with 
 each other. Smith v. Com. 31 Gratt, 809. 
 Although a person indicted for one species 
 of killing, as by poisoning, cannot be con- 
 victed by evidence of a species of death en- 
 tirely different, as by shooting, starving, or 
 strangling, yet where the indictment charges 
 in one count a homicide by beating, and in 
 another count by drowning, the prosecution 
 will not be compelled to elect between the 
 counts. State v. Johnson, 10 La. An. 456. 
 
 128. Under a statute declaring " that 
 every person who shall be convicted of hav- 
 ing administered, or of having caused and 
 procured to be administered," &c., shall be 
 punished, &c., an indictment is not bad for 
 duplicity which charges that the prisoner 
 did administer, and did cause and procure 
 to be administered, &c. La Beau v. Peojile, 
 Parker, 371 ; affi'd 34 N. Y. 223. 
 
 129. Where several are aiding and assist- 
 
 ing in the perpetration of a homicide, it is 
 not material whether it is correctly stated 
 which of them gave the fatal blow. State 
 V. Kochell, 2 Brev. 333; Young v. Com. 8 
 Bush, 366; s. c. 1 Green's Crim. Reps. 710. 
 An indictment charging in one count A. as 
 principal and B. as accessory before the fact, 
 and in another count B. as principal and A. 
 as accessory before the fact, charges one of- 
 fense, and is not repugnant. People v. Va- 
 lencia, 43 Cal. 552 ; s. c. 1 Green's Crira. Reps. 
 745. 
 
 130. An indictment for murder was held 
 good which charged the prisoners with the 
 offense by doing acts aiding and abetting 
 its perpetration in their presence. U. S. v. 
 Douglass, 2 Blatchf. 207. Where several are 
 engaged in committing a murder, all being 
 present, but one only giving the fatal blew, 
 the indictment may charge the act as done 
 by them all, or as done by one and abetted 
 by the others. Anderson v. State, 5 Ark. 
 444 ; State v, Cameron, 2 Chand. 172. 
 
 131. In Maine, an indictment for murder 
 need not allege the " manner in which, and 
 means by which," the homicide was com- 
 mitted. It is sufficient to charge that the 
 prisoner, on a day and at a place mentioned, 
 in and upon the body of A., did feloniously, 
 willfully, and of his malice aforethought, 
 make an assault, and him, the said A., did 
 then and there feloniously and of his malice 
 aforethought kill and murder. State v. 
 Verrill, 54 Maine, 408. 
 
 132. Name of deceased. "An infant 
 child, name to the grand jury unknown," is 
 a sufficient description of the deceased, in 
 an indictment for murder; and the child 
 may be described in different counts as the 
 infant child of the prisoner, and as an infant 
 child generally, not naming its father or 
 mother; and the murder may be charged in 
 different counts to have been committed by 
 different means or instruments. Tempe v. 
 State, 40 Ala. 698. 
 
 133. An indictment for murder which al- 
 leges that the deceased was a " Wyaudott 
 Indian, whose name is to the jurors un- 
 known," without stating that the deceased 
 was a human being, ia sufficient. Reed v. 
 State, 16 Ark. 499.
 
 HOMICIDE. 
 
 2G7 
 
 Murder. 
 
 Indictment. 
 
 134. An indictment for murder, after alleg- 
 ing that A. made an assault upon B.,and felo- 
 niously inflicted upon him a mortal wound, 
 l)y stabbing him with a knife, whereof B. 
 died, concluded thus : " And so the jurors, 
 upon their oaths, do say, that the said A., 
 in manner and form, and by the means afore- 
 said, feloniously, willfully, maliciously, de- 
 liberately, premeditatedly, on purpose, and 
 of his malice aforethought, did kill and 
 murder, contrary to the form of the statute, 
 and against the peace and dignity of the 
 State." Held bad in omitting to name the 
 person murdered. State v. Pemberton, 30. 
 Mo. 376. 
 
 135. Where an indictment for murder 
 stated the surname of the deceased in three 
 diflerent ways, as follows: "Giddings," 
 " Gidings," and " Gidines," it was held that 
 they were to be regarded as idem sonans. 
 State V. Lincoln, 17 Wis. 579. 
 
 136. Part of body wounded. The in- 
 dictment must state what part of the body 
 was injured ; and if it be the hand or arm, it 
 must be stated whether it is the right or 
 left. Where it was charged that the prisoner 
 struck the deceased with an axe on the left 
 side of the head and over the left temple, 
 giving to him then and there with said axe 
 over the right side of the head, and over the 
 right temple, a mortal wound, the indict- 
 ment was held bad. Dias v. State, 7 Blackf. 
 20. But an indictment for murder was held 
 sufficient which alleged that the defendant 
 shot the deceased in the head, breast, and 
 side, giving him one mortal wound of which 
 he died. Hamby v. State, 36 Texas, 533; 
 8. c. 1 Green's Grim. Reps. 650. 
 
 137. Where, in an indictment for murder 
 charging that the wound was inflicted in the 
 breast, the word breast was misspelled, it 
 was held that the defect Avas fatal. Anon. 
 Ilayw. 140. 
 
 138. In Indiana, the indictment need not 
 aver upon what part of the body of the de- 
 ceased the mortal wound was inflicted. 
 .Jones v. State, 35 Ind. 123; Whelchell v. 
 State, 33 lb. 89; Cardell v. State, 32 lb. 1. 
 In New York, an indictment alleging that a 
 mortal wound was inflicted upon the body 
 of the deceased is sufficient without show- 
 
 ing upon what part of the body the wound 
 was given. By the word body in such con- 
 nection is to be understood the trunk, in 
 distinction from the head and limbs. But 
 the particular part of the body upon which 
 the violence producing the death was in- 
 flicted is now regarded as immaterial. San- 
 chez V. People, 22 N. Y. 147 ; s. c. 4 Parker, 
 535. 
 
 139. Where an indictment for murder sets 
 out the acts of the prisoner which hasten 
 the death of the deceased, it need not aver 
 the state or condition of the body of the de- 
 ceased at the time of the assault, or the 
 causes merely natural then existing which 
 tended to make the acts of the prisoner 
 more dangerous and fatal. Com. v. Fox, 7. 
 Gray, 585. 
 
 140. Description of wound. When death 
 is occasioned by a wound, it should be stated 
 to have been mortal ; but the length, breadth,, 
 and depth of the wound need not be alleged, 
 if it appear that it contributed to the party's 
 death. And an indictment which charges 
 that the prisoner struck and gave a wound 
 of which the person died, need not allege 
 that he died " by the stroke or strokes 
 aforesaid; " nor that he " did suffer and lan- 
 guish, and languishingly did live." State 
 v. Conley, 39 Maine, 78; Dias v. State, 7 
 Blackf. 20 ; Stone v. People, 3 Scam. 326 ; 
 Alexander v. State, 3 Heisk. 475; contra, 
 State V. Owen, 1 Murphy, 152. 
 
 141. An indictment for murder which 
 charges that the defendant " did strike and 
 thrust " the deceased " in and upon the left 
 side of the belly, and also in and upon the 
 right shoulder, giving to the deceased then 
 and there, in and upon the left side of the 
 belly, and also in and upon the right shoulder, 
 one mortal wound of the breadth of three 
 inches, and of the depth of six inches, of 
 which mortal wound he then and there in- 
 stantly died," is bad, as being incor^istent 
 and repugnant. State v. Jones, 20 Mo. 58. 
 
 142. Death of party. An indictment for 
 murder must show that tlie party died of 
 the injury specially described and set forth. 
 Lutz V. Com. 29 Penn. St. 441. But an in- 
 dictment was held sufficient which alleged 
 that at a certain time and place the defend-
 
 268 
 
 HOMICIDE. 
 
 Murder. 
 
 Indictment. 
 
 ant, "without authority of law, and with 
 malice aforethought, killed A. B. by shoot- 
 ing him with a pistol, contrary to the fomi 
 of the statute," &c., without averring that 
 
 A. B. then and there died. State v. Ander- 
 son, 4 Nev. 265, Lewis, J., dissenting. And 
 an indictment for murder which charged 
 that the defendant on, &c., at, &c., did 
 feloniously, &c., shoot, kill and murder one 
 E. B., without specifically alleging that E. 
 
 B. died, was held good. People v. San- 
 ford, 43 Cal. 29 ; s. c. 1 Green's Crim. Reps. 
 682. 
 
 143. An indictment for murder is not 
 fatally defective because it charges that the 
 death was caused by four distinct assaults, 
 and does not allege that it resulted from any 
 one of them. Com. v. Stafford, 12 Cush.619. 
 
 144. When a single felonious act results 
 in the death of two persons, the offender 
 may be indicted for a single offense of mur- 
 der in slaying both, but not if the acts of 
 killing are distinct, and the intention to kill 
 one is an intention formed and existing dis- 
 tinct from and independent of the intention 
 to kill the other, Womack v. State, 7 Cold. 
 Tenn. 508. 
 
 145. The word " murder " is a term of art, 
 which cannot be supplied by any other word 
 in an indictment for murder. Dias v. State, 
 7 Blackf. 20. But see Anderson v. State, 5 
 Ark. 444. 
 
 146. Averment of intent. In Ohio, as 
 the statute makes an intent to kill an essen- 
 tial ingredient of murder, an indictment for 
 murder under the statute must contain a 
 direct averment of such intent in the de- 
 scription of the offense. Fonts v. State, 8 
 Ohio, K S. 98; Kain v. State, lb. 306. 
 And the same is true as to an intent to dam- 
 age or defraud in an indictment for forgery. 
 Drake V. State, 19 lb. 211. 
 
 147. An indictment for murder must 
 charge. that the offense was committed with 
 malice aforethought, and it is not enough to 
 allege that the mortal wound was inflicted 
 with malice aforethought. Com. v. Gibson, 
 3 Va. Cas. 70 ; and it must be stated that 
 the act was done feloniously. Fairlee v. 
 People, U Lee, 1. But see Anderson v. 
 State, 5 Ark. 44i. 
 
 148. An indictment for murder, which 
 charges that A. committed the assault, and 
 that B. and C. " feloniously were present 
 aiding, abetting and assisting said A.," is 
 sufficient without alleging that B. and C. 
 were feloniously, willfully and ot their malice 
 aforethought preseut aiding, &c. State v. 
 Rabou, 4 Rich. 260. 
 
 149. In Massachusetts, an indictment for 
 murder need not allege that the act was 
 done willfully and with malice aforethought. 
 Com. v. Chapman, 11 Cush. 422. In Wis- 
 consin, an indictment under the statute for 
 murder is sufficient which charges that the 
 act was committed " with a premeditated 
 design to effect death," omitting the words 
 "with malice aforethought." State v. Du- 
 vall, 26 Wis. 413. 
 
 150. An indictment for murder is suffi- 
 cient without the words "malice afore- 
 thought," if it contain language, which is 
 equivalent, as " willfully, maliciously, feloni- 
 ously and premeditatedly." People v. Vance, 
 21 Cal. 400. See People v. Brown, 27 lb. 
 500. But an indictment for murder charg- 
 ing that the accused " purposely and of pre- 
 meditated malice " gave the blow, omitting 
 the word " feloniously," is fatally defective. 
 Edwards v. State, 25 Ark, 444. 
 
 151. An indictment charging that the ac- 
 cused willfully, feloniously and maliciously 
 shot another with intent to murder him, is 
 sufficient without the words " with malice 
 aforethought." State v. Forney, 24 La. An. 
 191. And the same is true of an indictment 
 which charges that the accused " did then 
 and there feloniously kill, slay and murder." 
 State V. Phelps, lb. 493. 
 
 152. After conviction of murder, it is not 
 a good ground fur a motion in arrest of 
 judgment that the indictment omitted to 
 aver that the prisoner, in administering 
 poison to the deceased, did it vsdth an intent 
 to kill. Com, V. Hersey, 2 Allen, 173. 
 
 153. An indictment for murder by poison 
 need not allege that the defendant knew 
 that the drug used to produce death was a 
 deadly 23oison. Thornton v. Com. 24 Graft. 
 657. An indictment which charges that the 
 defendant feloniously, willfully and mali- 
 ciously mingled a drachm of a certain deadly
 
 HOMICIDE. 
 
 2()9 
 
 Murder. 
 
 Indictment. 
 
 Evidence in General. 
 
 poison called belladonna with the food of 
 one B., with intent then and there thereby 
 the said B. feloniously, willfully and of his 
 malice aforethought to kill, is good without 
 alleging that the defendant knew the bella- 
 donna to be a deadly poison, or that the act 
 was done knowingly, or that B. was about 
 to eat the food which contained the poison, 
 or that he intended that B. should eat it. 
 Com. V. Bearse, 108 Mass. 487. 
 
 154. Averment of premeditation. The 
 word " deliberately " in an indictment for 
 murder, means that the homicide was deter- 
 mined upon after reflection. " Premedita- 
 tedly," means planned beforehand. Craft v. 
 State, 3 Kansas, 450. The words "with 
 malice aforethought," do not embrace in 
 substance, the words "deliberate and pre- 
 meditated." Fonts y. State, 4 Greene, 500. 
 
 155. In Iowa, an indictment for murder 
 in the first degree, must allege not only that 
 that the killing was willful and premed- 
 itated, but also that it was deliberate. 
 State V. McCormick, 27 Iowa, 403 ; State v. 
 Watkins, lb. 415 ; State v. Knouse, 29 lb. 
 118. The allegation that the assault was 
 willful, deliberate and premeditated is not 
 sufficient. State v. Thompson, 31 lb. 393. 
 
 156. In New York, an indictment for 
 murder in the common-law form, may 
 charge that the offense was committed fe- 
 loniously, willfully, and of malice afore- 
 thought, instead of charging that it was 
 committed from a premeditated design to 
 effect the death of the person killed. But 
 in order to convict the prisoner of a feloni- 
 ous homicide with malice aforethought, the 
 evidence must bring the case within the 
 statutory definition of murder. People v. 
 Enoch,13 Wend. 159; Fitzgerald v. People, 
 37 N. Y. 413 ; 5 N. Y. Trans. Appeals, 
 273 ; s. c. 49 Barb. 122 ; Kennedy v. People, 
 39 N. Y. 245 ; 6 N. Y. Trans. Appeals, 19. 
 
 157. Where an indictment for murder at 
 common law, after charging that the offense 
 was committed with malice aforethought, 
 added that the act was done from a premed- 
 itated design to effect the deatli of the de- 
 ceased — Held that the latter words might 
 be rejected as surplusage. People v. White, 
 22 Wend. 107. 
 
 158. An indictment which alleges that 
 the prisoner " feloniously, willfully and of 
 his malice aforethought, did kill and mur- 
 der," charges murder by deliberate and 
 premeditated killing within the statute of 
 New Hampshire (Gen. Stat. ch. 242, § 14). 
 State V. Pike, 49 New Hamp. 399, Doe and 
 Smith, JJ., dmenting. Under such an in- 
 dictment, a A'erdict may be rendered of 
 " guilty of murder in the first degree,"^ 
 upon proof of murder and robbery. lb.; 
 approved in State v. Jones, 50 lb. 369. 
 
 159. Unnecessary averments. The omis- 
 sion of an averment in an indictment for 
 murder, that the party murdered was in the 
 peace of the commonwealth, is not a ground 
 of exception. Com. v. Murphy, 11 Cush. 
 472. Nor is it necessary that the indict- 
 ment contain a certificate signed by the 
 foreman of the grand jury that it is " a true 
 bill." Com. V. Smyth, lb. 473. 
 
 160. An indictment for murder need not 
 allege that the prisoner is a person of sound 
 memory and discretion, nor that the act was 
 unlawful, where the manner of killing is so 
 described as to show that it is unlawful. 
 Jerry v. State, 1 Blackf. 395. 
 
 181. Form of an indictment for murder, 
 with counts at common law, and under the 
 statute of New York; and form of writ of 
 error, see Lake v. People, 1 Parker, 495. 
 
 162. Plea to indictment. A plea to an 
 indictment for murder of " once in jeop- 
 ardy," without stating how or in what man- 
 ner, is bad on demurrer. Such plea should 
 set out the record of the former indictment, 
 propose to verify the same, and allege the 
 identity of the defendant. Atkins v. State, 
 16 Ark. 508. 
 
 163. Trial of plea. Where a woman 
 after conviction of murder, pleads preg- 
 nancy, the question, before she is sentenced, 
 may be submitted to a jury of matrons. 
 State V. Arden, 1 Bay, 437. 
 
 1/ 
 
 (c) Evidence in general. 
 
 164. Right of prosecution. On the trial 
 of a capital case, tiie i)rosecution are only 
 l^ound to introduce such evidence as they 
 think proper. State v. Stewart, 9 Ired. 342. 
 
 165. Person killed. Where in a case of
 
 270 
 
 HOMICIDE. 
 
 Murder. 
 
 Evidence in General. 
 
 homicide, it appears that the deceased went 
 by a name different from his or her true 
 name, the true name may be stated in the 
 indictment, and if the true name is proved 
 on the trial, there is no variance, al- 
 though it also ajjpears that the deceased 
 went by another name. So also, if the 
 name charged in the indictment is not the 
 true name, yet if it is proved that the de- 
 ceased was called among his or her acquaint- 
 ances by the name charged, it is suffi- 
 cient. Walters v. Peo^ile, 6 Parker, 15, per 
 Welles, J. 
 
 166. An indictment charged the murder 
 of H. G. Trobuck. It was proved that the 
 name of the person killed was Gilbert Tro- 
 buck. Held that the variance was fatal. 
 Timms v. State, 4 Cold. Tenn. 138. 
 
 167. But where, on the trial of an indict- 
 ment charging that the person murdered 
 William R. Morris, it was proved that W. 
 R. Morris was killed by him, it was held that 
 the proof was sufficient to support a convic- 
 tion. Mitchum v. State, 11 Ga. 615. And 
 where the deceased wrote his name Amsey 
 Mulock, but was equally well known by the 
 name of Amasa Mulock, and the latter 
 name was given in the indictment, it was 
 held that there was no misnomer. Gardiner 
 V. People, 6 Parker, 155. 
 
 168. It is error in the court on a trial for 
 murder to assume that the name of the de- 
 ceased is stated correctly in the indictment, 
 that being a question for the jury. State v. 
 Dillihunty, 18 Miss. 331 ; State v. Angel, 7 
 Ired. 27; contra^ Gardiner v. People, su- 
 pra. 
 
 169. An averment in an indictment for 
 murder, that the deceased was a Wyandott 
 Indian is material, and must be proved as 
 laid. It may be proved by reputation, and 
 the jury may find the fact from the testi- 
 mony of a witness that he heard from the 
 band of Indians to which the deceased be- 
 longed, that the latter was a Wyandott. 
 Reed v. State, 16 Ark. 499. 
 
 170. Where an indictment for murder 
 describes the deceased as a free negro, the 
 designation, though unnecessary, must be 
 proved as alleged, and proof that he was a 
 
 mulatto will not be sufficient. Felix v. 
 State, 18 Ala. 720. 
 
 171. Corpus delicti. In every case of 
 homicide the prosecution must prove the 
 corjyus delicti beyond a reasonable doubt. 
 People V. Schryver, 42 N. Y. 1 ; s. c. 46 
 Barb. 625. 
 
 172. The corpus delicti has two compo- 
 nents — death as the result, and the criminal 
 agency of another as the means; and there 
 must be direct proof of one or the other. 
 People V. Bennett, 49 N. Y. 137. 
 
 173. In order to justify a conviction for 
 murder, there must either be direct proof of 
 death, or proof of violence, or other act of 
 the defendant which is alleged to have pro- 
 duced death, sufficient to account for the 
 disappearance of the body. Ruloff v. Peo- 
 ple, 18 N. Y. 179 ; reversing s. c, 3 Parker, 
 401 ; Smith v. Com. 21 Gratt. 809. 
 
 174. It is not essential to a conviction for 
 murder that the body of the deceased should 
 be found. Where, in a case of homicide, 
 the discovery of the body is impossible, the 
 fact of death may be proved by circum- 
 stances, provided they are sufficient to estab- 
 lish the fact beyond a reasonable doubt. 
 U. S. V. Williams, 1 CliflF. 5; Stocking v. 
 State, 7 Ind. 326; State v. Williams, 7 
 Jones, 446. 
 
 175. On a trial for murder, an extrajudi- 
 cial confession with extrinsic circumstantial 
 evidence, satisfying the minds of the jury 
 beyond a reasonable doubt that the crime 
 has been committed, will warrant a convic- 
 tion, although the dead body has not been 
 found. State v. Lamb, 28 Mo. 218; but not 
 where there is no other proof of the corpus 
 delicti than the confession. State v. German, 
 54 Mo. 526. 
 
 178. In general, there can be no convic- 
 tion of murder until the body of the de- 
 ceased has been found. People v. Wilson, 
 3 Parker, 199. 
 
 177. There need not be any more direct 
 or positive proof to identify the body of a 
 murdered person than is required to prove 
 the murder, or to identify the murderer. 
 Taylor v. State, 35 Texas, 97. 
 
 178. On the trial of an indictment for 
 murder, a witness who had found the dis-
 
 HOMICIDE. 
 
 271 
 
 Murder. 
 
 Evidence in General. 
 
 •colored and mutilated body of a person 
 whom he had never before seen, was permit- 
 ted to testify that the face resembled the 
 photograph of the man alleged to have been 
 killed. Held proper. Udderzook v. Com. 
 76 Penn. St. 340. 
 
 179. Ordinarily, the question of identity 
 is one of fact, and a witness may be asked 
 ■whether he knows a particular individual, 
 and if so, whether he is the person indicated. 
 But where, on a trial for murder, it was 
 proved that a body which, if that of the de- 
 ceased, had been submerged in salt water 
 for upward of five months, and had under- 
 gone many changes, it was held for the jury 
 to determine, after hearing the statements of 
 the witness, whether the body was that of 
 the deceased. People v. Wilson, 3 Parker, 199. 
 
 180. On the trial of an indictment for 
 the murder of W. C, it was proved that a 
 human skeleton, not quite entire, of the 
 male sex, and Caucasian race, corresponding 
 in size with W. C, was found in a pond. 
 The skull had a hole on the lower posterior 
 part, and a cut or gash on the top, ap- 
 parently made with some sharp instrument, 
 which could not have been self-inflicted, and 
 was sufficient to have caused death. Held 
 competent for the prosecution to show by 
 circumstantial evidence that the skeleton 
 was that of W. C. McCulloch v. State, 48 
 Ind. 109. 
 
 181. It is not error to permit the district 
 attorney to show the witnesses, in the pres- 
 ence of the jury, articles of clothing found 
 on the dead body of a person whom it is 
 alleged the prisoner murdered, or a hat and 
 gun found near the dead body, or a watch it 
 was claimed the deceased wore the morning 
 lie disappeared, or to produce in court the 
 skull of the deceased. Gardiner v. People, 
 6 Parker, 155. 
 
 182. It is proper on a trial for murder to 
 allow a physician and surgeon to examine 
 the skull of the deceased in court, with a 
 broken gun that was found beside the dead 
 body, and explain the' fractures :n the skull 
 and the marks on it to the jury, and to show 
 how the gun-lock and sight fitted the frac- 
 tures in the skull, and to give his opinion as 
 to what would cause the fractures, lb. 
 
 133. On a trial for murder it was proved 
 that, when the remains were found, the head 
 had been severed from the body, and that it 
 was preserved by a physician in alcohol. 
 Many witnesses for the prosecution identi- 
 fied the head, the greater portion from the 
 features alone, and others from peculiar 
 marks on the teeth. The prisoner proposed 
 to prove, by two physicians and surgeons, 
 that, on account of the natural and inevita- 
 ble changes through which a human body 
 passes after death, it was not possible for 
 any one to identify the head. Held that the 
 evidence was not admissible. State v. Vin- 
 cent, 24 Iowa, 570. 
 
 184. Where, on a trial for murder, the 
 defense has introduced evidence tending to 
 show 'that the person alleged to have been 
 murdered was seen alive afterward, it was 
 held that the prosecution could not prove 
 that, about the time of the alleged murder, 
 a person so strongly resembling the deceased 
 as to have been mistaken for him by his 
 acquaintances, was seen near the place where 
 the murder was alleged to have been com- 
 mitted. Com. V. Webster, 5 Cush. 295. 
 
 185. Weapon. Where an indictment for 
 murder charges that the death was caused 
 by a particular weapon, the evidence need 
 not show that it was done by that particular 
 instrument. It will be sufficient if proved 
 to have been done by some other one, if the 
 nature of the violence, and the kind of 
 death occasioned by it, be the same. State 
 V. Smith, 33 Maine, 369; Goodman v. State,5 
 Sm. &Marsh.510; Short v. State, 7 Yerg. 513. 
 
 186. Therefore, under an indictment for 
 murder charged in one count to have been 
 committed by striking and cutting the de- 
 ceased with a hatchet, and in another count 
 by striking and cutting him with an instru- 
 ment to the jurors uuknown, it was held 
 competent for the prosecution to prove that 
 the deceased was killed with a pistol. Peo- 
 ple v. Colt, 3 Hill, 432. So, likewise, if the 
 indictment charges that the defendant gave 
 the mortal wound witli a knife or dagger, 
 and it is proved that he gave the wound 
 with a sword, staff, or bill, it is sufficient. 
 State V. Fox, 1 Dutch. 566 ; Donnelly v. 
 State, 3 lb. 463.
 
 HOMICIDE. 
 
 Murder. 
 
 Evidence in General. 
 
 187. Where, however, the indictment 
 charges the killing to have been done with 
 a particular weapon, it is not competent to 
 prove that it was done with a weapon of a 
 totally diflferent character. Witt v. State, 6 
 Cold. Tenn. 5. 
 
 188. Whether any, and what kind of in- 
 strument was used in effecting an alleged 
 murder, is a fact for the jury to find, and 
 not to be derived from the ojiinions of phy- 
 sicians. Wilson v. People, 4 Parker, 619. 
 
 189. But the question whether or not an 
 instrument with which a homicide was com- 
 mitted was a deadly weapon, is to be deter- 
 mined by the court. Com. v. Morler, 4 Barr, 
 264. 
 
 190. Mode of violence. Although an in- 
 dictment for murder must state correctly the 
 particular mode of violence by which the 
 death was produced, yet, if the death re- 
 sulted from wounds or fractures, they need 
 not be proved to have been infiicted by 
 means of the particular instrument, or on 
 the part of the body charged. State v. Jen- 
 kins, 14 Eich. 215. 
 
 191. The first count of an indictment for 
 murder charged the defendant with shoot- 
 ing the deceased, and the second count with 
 aiding and assisting another man in stabbing 
 him. Held that evidence of the aid and as- 
 sistance charged in the second count was 
 suflBcient to support the allegation of shoot- 
 ing in the first count. Hudson v. State, 1 
 Blackf. 317. 
 
 192. An indictment charged that the 
 prisoner made an assault, and with a pistol 
 charged and loaded with gunpowder and a 
 leaden bullet, fired at the deceased, and then 
 and there feloniously, and ©f his malice 
 aforethought, did strike, penetrate and 
 wound the deceased with the leaden bullet, 
 causing a mortal wound of which he died. 
 Held that the prosecutor was bound to prove 
 this ; but that it did not matter which of the 
 bullets and which of the wounds caused the 
 death. Real v. People, 55 Barb. 551 ; 42 N. 
 Y. 270. 
 
 193. An indictment alleging that the de- 
 fendant administered poison is supported 
 by evidence tending to show that he ob- 
 tained the poison and placed it in or on the 
 
 food which he knew was prepared for the 
 immediate use of the deceased. La Beau v. 
 People, 6 Parker, 371 ; 34 N. Y. 223. 
 
 194. In Tennessee, an indictment for an 
 attempt to give poison, under the statute 
 (Code, § 4626), is sustained by proof that 
 the defendant bought the poison, placed it 
 in the hands of his minor son, and advised 
 and directed him to administer it. Collins 
 V. State, 3 Heisk. 14. 
 
 195. Under an indictment charging a 
 homicide by shooting, evidence that the 
 death was caused by beating on the head 
 with a gun is inadmissible ; and an acquittal 
 on a charge of the one, will not bar an in- 
 dictment for the other. Guedel v. People, 
 43 111. 226. 
 
 196. Where an indictment for homicide 
 charged that it was committed by beating 
 and striking, and it was proved that the de- 
 ceased came to his death from iujmies occa- 
 sioned by falling on a mound of earth, the 
 court directed an acquittal. People v. Tan- 
 nan, 4 Parker, 514. 
 
 197. An indictment charged that the hus- 
 band " feloniously did make an assault " 
 upon his wife and "from out of the said 
 dwelling-house into the open air his said 
 wife, violently, feloniously and of his malice 
 aforethought, did remove, force, and there 
 leave, whereby she came to her death." It 
 was proved that after the wife had been 
 beaten, and her husband had gone to bed, 
 she left the house of her own accord, and 
 without any necessity. Held^ that the vari- 
 ance was material. State v. Presler, 3 Jones, 
 421. 
 
 198. On a trial for murder, a surgeon who 
 examined the body of the deceased, was per- 
 mitted to exhibit to the jury engraved plates 
 of the human neck, and of the bones of the 
 neck, and also a skeleton of the human neck, 
 in order to illustrate his testimony in de- 
 scribing the wounds; also a diagram to 
 illustrate the properties of the human blood 
 ascertained by chemical tests and micro- 
 scopic observations. Held proper. State v. 
 Knight, 43 Maine, 11. 
 
 199. Time and place. A homicide may 
 be proved to have been committed at any 
 time jn-evious to the finding of the indict-
 
 HOMICIDE. 
 
 273 
 
 Murder. 
 
 Evidence in General. 
 
 ment, either before or after the time alleged. 
 O'Connell v. State, 18 Texas. 343. 
 
 200. An indictment alleged that the blow 
 was given on the 27th of December, and 
 the deceased then and there instantly died; 
 and it was proved that he survived twenty 
 days. Held that the variance was not ma- 
 terial. State V. Baker, 1 Jones, 267. 
 
 201. It is too late after verdict, to object 
 that the homicide was not proved to have 
 been committed in the county alleged, or 
 that the year of the fatal injury was not 
 proved to show that death followed within 
 a year and a day. Wagner v. People, 54 
 Barb. 367 ; affi'd 4 N. Y. Ct. of App. Decis. 
 509 ; s. c. 2 Keyes, 684. 
 
 202. But in Arkansas, where, after convic- 
 tion of murder, the bill of exceptions, which 
 purported to contain all the evidence, did 
 not show that it was proved that the offense 
 was committed in the county where the in- 
 dictment was found, it was held ground for 
 reversal of the judgment. Reed v. State, 
 10 Ark. 499. 
 
 203. Opinions as to cause of death. In 
 a prosecution for homicide, the opinions of 
 medical men who are experts, are competent 
 evidence as to the instrument employed by 
 the defendant, and the nature and conse- 
 quences of the wound. State v. Morphy, 
 23 Iowa, 270; State v. Porter, 34 lb. 131. 
 
 204. On a trial for murder, it is competent 
 for a surgeon to swear which of the wounds, 
 each of which is mortal, in his opinion, 
 caused the death. Eggler v. People, 56 N. 
 Y. 642. 
 
 205. But where, on a trial for murder, a 
 medical expert has testified as to the form, 
 nature, and extent of the wounds found on 
 the body of the deceased, it is not compe- 
 tent for him to give his opinion as to the 
 probable position of the deceased when the 
 blows were inflicted, the jury being equally 
 capable of arriving at a conclusion on that 
 subject. Kennedy v. People, 6 N. Y. Trans. 
 App. 19. 
 
 206. On a trial for murder by poisoning, 
 the opinion of a witness is admissible as to 
 whether symptoms particularly specified, 
 were symptoms of arsenical poisoning, he 
 having testified in relation to the same sub- 
 
 18 
 
 ject, and the opinion referring to symptoms 
 of which evidence by other witnesses had 
 been given. Stephens v. People, 4 Parker, 
 396 ; affi'd 19 N. Y. 549. But the following 
 instruction was held proper: "Counsel for 
 the prosecution having read to the medical 
 witnesses certain symptoms from a paper 
 marked by the judge, and inquired their 
 opinion as to the cause of death in a case 
 where such symptoms existed, if the jury 
 believe that the symptoms of which the de- 
 ceased complained in her lifetime, are not in 
 all respects the symptoms stated in the 
 paper read to the physicians, then the med- 
 ical opinions are not admissible as evidence." 
 lb. 
 
 207. On a trial for murder by poisoning, 
 the following question propounded by the 
 prosecution to a professor of chemistry, was 
 held competent: "In your opinion, can a 
 physician, from a mere post mortem exam- 
 ination of the exterior surface, and the indi- 
 cations of inflammation which he discovers, 
 determine with any degree of certainty, the 
 precise period of time when such inflamma- 
 tion was caused ? " People v. Hartung, 4 
 Parker, 319, Wright, J., dissenting. 
 
 208. It is not error for the judge to per- 
 mit witnesses, who are not chemists, to tes- 
 tify that the clothes worn by the accused on 
 the night of the murder, and produced on 
 the trial, were marked with stains appar- 
 ently produced by blood, when found in the 
 possession of the prisoner at the time of his 
 arrest. People v. Gonzales, 35 N. Y. 49. 
 
 209. Opinion on question of insanity. 
 Where an expert has heard only jDart of the 
 evidence on which the defense relies to es- 
 tablish the insanity of the prisoner, it is error 
 in the court to permit him to give his opin- 
 ion on the prisoner's sanity, based on the 
 portion of the evidence so heard* by him. 
 Lake v. People, 1 Parker, 495; 12 N. Y. 358. 
 
 210. Proof of malice. Whether the crime 
 be murder or manslaughter, is not to be de. 
 cided upon any presumption arising from 
 the mere fact of killing; but the prosecution 
 must show that the killing was malicious. 
 U. S. V. Mingo, 2 Curtis C. C. 1 ; Kead v. 
 Com. 22 Graft. 924 ; s. c. 1 Green's Crim. 
 Reps. 207; contra., U. S. v. Travcrs, 2
 
 274 
 
 HOMICIDE. 
 
 Murder. 
 
 Evidence in General. 
 
 Wheeler's Crim. Cas. 490. Circumstances 
 may, however, attend a homicide which, in 
 point of law, stamp it as malicious, without 
 other evidence of malice. U. S. v. Arm- 
 strong, 2 Curtis C. C. 446 ; as in case of 
 poisoning. Shaffner v. Com. 73 Penn. St. 
 60 ; s. c. 2 Green's Crim. Reps. 504. 
 
 211. In Oregon, under the statute, malice 
 is not presumed from the mere proof of kill- 
 ing, but must be established by the prosecu- 
 tion by other evidence. Goodall v. State, 1 
 Oregon, 333. 
 
 212. Where, on a trial for murder, the cir- 
 cumstances proved tended to show malice, 
 which the defense attempted to rebut, it 
 was held that the iDrosecution might show 
 that there was express malice. Bird v. 
 State, 14 Ga. 43. 
 
 213. It is not improper for the court, on a 
 trial for murder, to charge the jury that " if 
 they believed from the evidence that the 
 prisoner had malice against the deceased on 
 the morning of the homicide, and there was 
 nothing to show that such malice had been 
 abandoned, even if the prisoner accidentally 
 met the deceased, the question of man- 
 slaughter could not arise, as the malice 
 would exclude provocation." State v. Tilly, 
 3 Ired. 424. 
 
 214. Where there is fresh i)rovocatiou be- 
 tween the antecedent malice and the homi- 
 cide, it-.must be proved that the killing was 
 upon the preconceived malice to make it 
 murder; for if there be an old feud between 
 A. and B., which is made up, and upon a 
 new and sudden quarrel A. kills B., it is not 
 murder. Clark v. State, 8 Humph. 671 ; 
 McCoy v. State, 25 Texas, 33. 
 
 215. Where a homicide grows out of a 
 personal combat, the question of cooling 
 time is one to be determined by the court. 
 But if left to the jury, and they decide it 
 correctly, the error will not be ground for a 
 new trial. State v. Moore, 69 N. C. 267 ; 
 s. c. 1 Green's Crim. Rej^s. 611. 
 
 216. Proof of premeditation. A homi- 
 cide will not be presumed to have been de- 
 liberate and premeditated, and done with 
 malice, but it must be proved that such 
 was the case. Craft v. State, 3 Kansas, 450. 
 
 217. The lying in wait does not consti- 
 
 tute a deliberate and i)remeditated purpose 
 as a conclusion of law, but is a question of 
 fact to be left to the jury. Floyd v. State, 
 3 Heisk. 342. 
 
 218. Although to establish premeditated 
 malice some affirmative evidence should be 
 introduced by the prosecution, yet the evi- 
 dence as to this may be circumstantial. State 
 V. Turner, Wright, 20. 
 
 219. Where a mortal wound is inflicted 
 with a deadly weapon in the previous pos- 
 session of the prisoner, without any, or upon 
 very slight provocation, the homicide is pri- 
 ma facie, willful, deliberate, and premedi- 
 tated, and the burden is on him to show ex- 
 tenuating circumstances. Hill v. Com. 2 
 Graft. 594. 
 
 220. In Tennessee, the fact that the pris- 
 oner used a deadly weapon does not imply 
 such premeditation as to make the homicide 
 murder in the first degree, under the statute. 
 Clark V. State, 8 Humph. 671 ; Dame v. 
 State, 2 lb. 439. 
 
 221. Where, on a trial for murder, it is 
 proved that the pui-pose of the defendant 
 was to commit robbery, and in the execution 
 of that purpose, in order to overcome the 
 resistance, and silence the outcries of his 
 victim, he made use of violence that caused 
 death, no further proof of premeditation, or 
 of willful intent to kill, is necessary. Com. 
 V. Pemberton, 118 Mass. 36. 
 
 222. Where the indictment charges that 
 the homicide was committed with a pre- 
 meditated design to effect the death of the 
 person killed, the premeditated design or 
 express malice must be proved, notwith- 
 standing it is also charged to have been 
 committed with malice aforethought. Peo- 
 ple V. White, 24 Wend. 520. 
 
 223. On a trial for murder it appeared 
 that the deceased and one S. were quarrel- 
 ing, and the prisoner interfered ; that the 
 latter struck the deceased a blow on the 
 head, which blow the deceased returned and 
 then retreated, followed by the prisoner; 
 that the prisoner secretly opened liis knife, 
 which led the deceased again to strike at 
 him, and again retreat; that the prisoner 
 then cut the deceased in his face with the 
 knife ; that the deceased continued to re-
 
 HOMICIDE. 
 
 275 
 
 Murder. 
 
 Evidence in General. 
 
 treat, and the prisoner was approaching 
 him, when K. ran in between them ; that the 
 prisoner struck at K. with the knife, who 
 jumped out of the Avay, and the prisoner 
 then followed the deceased ; that one of his 
 brothers called out to him to take care, or 
 he would be killed, and as the deceased 
 looked around the jJi'isoner struck the knife 
 into his temple with such force that, after 
 three unavailing efforts to get it out, made 
 by the prisoner, he fled. Held., that the 
 foregoing was sufficient to warrant the jury 
 in concluding that the prisoner, before 
 striking the last blow, had formed the de- 
 termination to take the life of the deceased. 
 People V. Shay, 4 Parker, 344 ; 33 N. Y. 317. 
 
 224. On a trial for murder, the prosecu- 
 tion having proved that the prisoner broke 
 open the door of the room in a house of ill- 
 fame, in which the deceased was staying, 
 dragged her out of bed, threw her upon the 
 floor and stabbed her several times with a 
 knife in difl'erent parts of her body, offered 
 to show that the prisoner, on the night be- 
 fore the morning of the homicide, at the 
 same house, wanted the deceased to go out 
 with him, which she refused to do ; that he 
 then struck her, and bit her hand, and she 
 still refused; that he then went out and 
 brought in an oflBcer, and charged her with 
 stealing his watch; that the officer took 
 both to the station-house, where they were 
 locked up all night; that the deceased re- 
 turned to the house, and went to bed, and 
 that some time after the prisoner followed 
 her to the house and committed the crime. 
 Held, that the evidence was proper for the 
 purpose of showing deliberation and malice. 
 Walters v. People, 6 Parker, 15 ; 33 N. Y. 147. 
 
 225. On a trial for murder, it was proved 
 that a .store had been burglariously entered 
 in the night, and property removed there- 
 from by the burglars, when they were con- 
 fronted by two clerks, who wjere awakened, 
 and that a fight ensued, in which one of the 
 clerks was shot by the prisoner. Held, that 
 the question whether or not the deceased 
 was unnecessarily engaged in an attempt to 
 kill, was one of fact for tiie jury. Ruloff v. 
 People, 5 Lans. 361. 
 
 228. Intoxication of accused. On a trial 
 
 for murder, the drunkenness of the accused 
 at the time of the commission of the act 
 may be proved on the question of guilty 
 intent. People v. Nichol, 34 Cal. 311; 
 People V. Williams, 43 lb. 344. 
 
 227. The intoxication of the prisoner when 
 he committed the homicide may be consid- 
 ered by the jury, with the other facts in the 
 case, to enable them to determine whether 
 the killing was done deliberately and pre- 
 meditatedly. Hall v. State, 11 Humph. 154 ; 
 State V. McCants, 1 Spear, 384; Swan v. 
 State, 4 Humph. 136; Pirtle v. State, 9 H). 
 663 ; Clark v. State, 8 lb. 671 ; People v. 
 Belencia, 21 Cal. 544; People v. King, 27 
 lb. 507. See ^^os^, tit. Intoxication as a 
 
 DEFENSE. 
 
 228. In Connecticut, under a statute mak- 
 ing murder in the first degree consist of 
 "willftil, deliberate, premeditated killing," 
 intoxication was held admissible in evidence 
 as tending to prove that the prisoner was 
 not capable of deliberation. State v. John- 
 son, 40 Conn. 136 ; s. c. 3 Green's dim. Reps. 
 487. But where murder in the second degree 
 rests upon implied malice, if an intoxicated 
 person takes the life of another without 
 provocation or justification, the jury may 
 find malice, although no malice be proved. 
 State V. Johnson, 41 lb. 584. 
 
 229. Res gestae. Everything which hap- 
 pened in the immediate presence and hearing 
 of the prisoner at the time of the homicide 
 is admissible, as tending to show his motive 
 for the act. McKee v. People, 36 X. Y. 
 113. 
 
 .230. On a trial for murder, it is proper to 
 show the acts of the prisoner during the day 
 of the homicide. Campbell v. State, 33 
 Ala. 44. 
 
 231. Any fact tending to prove the motive 
 of the prisoner in killing the deceased, or 
 the object of the deceased in going to the 
 prisoner's house, or the prisoner's knowledge 
 at the time of the killing that the accused 
 and his companions did not intend to commit 
 any felony or to do him any harm, is relevant. 
 Noles V. State, 36 Ala. 31. 
 
 232. Where two persons are murdered at 
 the same time and place, by the same person, 
 evidence as to what occurred at the murder
 
 27G 
 
 HOMICIDE. 
 
 Murder. 
 
 Evidence in General. 
 
 Presumptions. 
 
 of one is admissible on the trial for the 
 murder of the other. Brown v. Com. 76 
 Penn. St. 310. 
 
 233. On the trial of an indictment for the 
 murder of A., there was evidence tending to 
 show that B. and C. were killed at the same 
 time by the same weapon. Held that the 
 prosecution were entitled to lay before the 
 jury the whole transaction of which the 
 murder of A. was a part, and that for this 
 purpose, the testimony of a physician as to 
 the autopsy of C. was competent. Com. v. 
 Sturtivant, 117 Mass. 122. 
 
 234. On a trial for murder, it appeared 
 that A. and B. being together, the prisoners 
 attacked A. who after firing his pistol at one 
 of them fled ; that they followed him a short 
 distance, and immediately returned to where 
 B. was, whom it was charged they killed. 
 Held competent for the prosecution to show 
 the attack upon A. as a part of the res gestm. 
 Glory V. State, 8 Eng. 236. 
 
 235. On a trial for murder, evidence was 
 offered that the prisoner, on the same day the 
 deceased was killed, and shortly before the 
 killing, shot a third person. Held that the 
 evidence was competent, though it sought 
 to prove a distinct felony ; the killing of the 
 deceased appearing to be connected as parts 
 of an entire transaction. Heath's Case, 1 
 Rob. 735. 
 
 236. On a trial for murder committed dur- 
 ing a burglary, it is competent for the prose- 
 cution to prove a conspiracy between the 
 prisoner and the other persons alleged to 
 have been engaged in the burglary ; also to 
 identify his deceased confederates by means 
 of a photograph and stereoscope. Rulofi" 
 V. People, 5 Lans. 261. 
 
 237. Extenuating circumstances. On a 
 trial for murder, it is competent for the de- 
 fendant to prove that the place where the 
 homicide occurred was a house of ill-fame, 
 in order to show the intent and object of his 
 going there. Villareal v. State, 26 Texas, 
 107. 
 
 238. On a trial for aiding and abetting in the 
 murder of one of a mob who were endeavoring 
 in the night to force an entrance into the 
 house of U., which the prisoner was assist- 
 ing U. to prevent, it was held competent 
 
 for the prisoner to prove, on the question of 
 intent, that he had heard that persons had 
 been at the house shortly previous to the 
 homicide, made a disturbance, taken U. out 
 in the night, and beaten him severely. 
 Temple v. People, 4 Lans. 119. 
 
 239. On the trial of an indictment for 
 malicious shooting, it is competent for the 
 defendant to prove as tending to show the 
 motives and acts of the parties, that a son 
 of the person wounded, who was in the store 
 when his father and the defendant entered 
 it, immediately ran up stairs and returned 
 about the time of the shooting, with a 
 pistol, which he aimed and snapped at the 
 defendant ; and that the son had loaded his 
 pistol a few days before, and had then made 
 a threat to shoot the defendant, of which the 
 latter was notified. Rapp v. Com. 14 B. 
 Mon. 614. 
 
 240. On a trial for murder, the prisoner 
 offered to prove that a few minutes before 
 he made the attack upon the deceased, he 
 went to the house where he lived, and found 
 his sister crying, and asking the cause, was 
 told by her that the deceased had just been 
 there, and called her mother and herself 
 prostitutes, whereupon the prisoner went 
 directly into the lot where the deceased was, 
 and asked him why he had so done, and 
 immediately struck him with his fist. Held 
 that the evidence was proper on the question 
 whether the prisoner intended the death of 
 the deceased, and that its exclusion was 
 ground for a new trial. People v. Lewis, 3 
 N. Y. Ct. of Appeals Decis. 535. 
 
 241. On a trial for murder, evidence that 
 the prisoner's wife had been in the habit of 
 adultery with the deceased is not admissible. 
 State V. John, 8 Ired. 330. 
 
 242. Evidence that the prisoner was in 
 possession of land, and that the deceased 
 was coming to commit a trespass upon it, is 
 not admissible in justification or excuse, but 
 may be received to show the state of feeling 
 of the parties toward each other at the time 
 of the occurrence. State v. Zellers, 2 Halst. 
 220. 
 
 {d) Presumptions. 
 
 243. From homicide. It is erroneous to
 
 HOMICIDE. 
 
 277 
 
 Murder. 
 
 Presumptions. 
 
 ■charge the jury, on a trial for murder, that 
 the homicide being proved, the law implies 
 that the killing was willful, deliberate, and 
 premeditated. People v. Moody, 45 Cal. 
 389 ; 8. c. 2 Green's Crim. Reps. 420. 
 
 244. But in^ a case of homicide, where 
 there was no apparent well founded danger 
 of great bodily harm, or such provocation 
 as was calculated to excite irresistible pas- 
 sion, the law implies malice. Com. v. Drew, 
 4 Mass. 391 ; Peri v. People, 65 111. 17. 
 When a person voluntarily does an act which 
 has a direct tendency to destroy life, and 
 death ensues, the presumption is that he in- 
 tended to kill. Com. V. York, 9 Mete. 93 ; 
 Riley v. State, 9 Humph. 657 : State v. Tur- 
 ner, "Wright, 20 ; Com. v. Webster, 5 Cush. 
 295 ; Hill v. Com. 2 Gratt. 594 ; Oliver v. 
 State, 17 Ala. 587. Where deliberate malice 
 is once established, its continuance down to 
 the perpetration of the homicide will be 
 presumed, unless rebutted. State v. Johnson, 
 1 Ired. 354. 
 
 245. And the law implies malice where 
 the act causing the death of another is at- 
 tended with such circumstances as are the 
 usual concomitants of a wicked, depraved, 
 and malignant spirit. State v. Smith, 2 
 Strobh. 77; Ann v. State, 11 Humph. 150. 
 
 See 2)ost, tit. Burden of proof. 
 
 246. From possession or use of deadly 
 weapon. Where a weapon with which a 
 murder is committed is not known, it is 
 competent, for the public prosecutor to in- 
 troduce evidence to raise a presumption 
 that the wound was caused by a pistol ball, 
 and to prove for that purpose that the pris- 
 oner had pistols in his possession, and that 
 a ball proi^elled by the explosion of a per- 
 cussion cap, would be likely to cause such a 
 wound ; or to prove that the prisoner had 
 such pistols, in order to show, in connection 
 with other evidence, that the prisoner had 
 probaVily taken the ramrod from the pistol 
 and driven it into the head of the deceased. 
 Colt V. People, 1 Parker, 611. 
 
 247. Where a dangerous weapon is used 
 against an unarmed adversary, even upon 
 reasonable provocation, the killing will be 
 murder and not manslaughter, the law im- 
 plying that the intent was to kill, and not 
 
 to fight on equal footing. Holland v. State, 
 12 Fla. 117. 
 
 248. It is erroneous to charge that the use 
 of a deadly weapon not in necessary self- 
 defense, whereby death ensues, will consti- 
 tute murder. Donnellan v. Com. 7 Bush, 
 676. Or that, if homicide be committed by 
 a deadly weapon in the previous possession 
 of the accused, the law implies malice. 
 Smith V. Com. 1 Duvall, 234 ; contra, State v. 
 Lipsey, 3 Dev. 485. And the error is not 
 cured by giving a correct instruction at the 
 request of the defendant. Clem v. State, 31 
 Ind. 480 ; Bradley v. State, lb. 492. 
 
 249. Where the killing is with a dangerous 
 weapon, calculated to produce and actually 
 producing death, in the absence of proof 
 that it was accidental or upon provocation, 
 the i^resuraption is that the act was volun- 
 tary and with malice aforethought. State 
 V. Gillick, 7 Iowa, 287. 
 
 250. The following instruction was held 
 proper : " That if the homicide was commit- 
 ted in a sudden heat by the use of a deadly 
 weapon, no jn'ovocation given by mere words 
 would reduce the killing to manslaughter; 
 that the question was not whether there was 
 anger merely, but whether there was legal 
 provocation to such anger; that the use of 
 a dangerous weapon under a provocation by 
 words only, or under no provocation, was 
 always evidence of malice aforethought; that 
 to constitute malice aforethought it was only 
 necessary that there should be formed a de- 
 sign to kill, and that such design might be 
 conceived at the moment the fatal stroke was 
 given, as well as a long time before. Beau- 
 champ V. State, 6 Blackf. 299. 
 
 251. lu the absence of proof to the con- 
 trary, the law presumes an intent to kill 
 from the use of a deadly weapon. Kilpat- 
 rick V. Com. 31 Penn. St. 198. 
 
 252. In Arkansas, the fact of killing with 
 a deadly weapon has been held 2J7'i))ia facie 
 evidence that the design to kill was formed 
 at the time of committing the act. Bevins 
 V. State, 6 Eng. 455. 
 
 253. When the proof shows that the kill- 
 ing was done intentionally by the defendant 
 with a deadly weapon, the law raises a pre- 
 sumption from the use of such a weapon that 
 
 +
 
 278 
 
 HOMICIDE. 
 
 Murder. 
 
 Presumptions. 
 
 the party using it intended to kill, and that 
 the killing was malicious; and unless the 
 circumstances show that the killing was jus- 
 tifiable or excusable, the burden of proof de- 
 volves on the defendant to show a justifica- 
 tion or excuse. State v. Bertrand, 3 Oregon, 
 Gl. The defendant is only required to show 
 this by a preponderance of evidence. State 
 V. Conolly, lb. 69. 
 
 254. The law infers an intent to kill from 
 the use of a deadly weapon, notwithstanding 
 it may be lawful to carry such weapon. Head 
 V. State, 44 Miss. 731. But in Mississippi, un- 
 der the law i^ennitting a citizen to carry a 
 deadly weapon, although he may be the ag- 
 gressor in a diflSculty, the fact that he was 
 armed with a deadly weapon is no j^roof of 
 his criminality, unless he provided himself 
 with the weapon with a view to using it if 
 necessary in overcoming his adversary. Cot- 
 ton V. State, 31 Miss. 504. 
 
 255. On the trial of an indictment for 
 murder committed with a deadly weapon, 
 the prisoner may show that he came by the 
 weapon accidentally and for an innocent 
 purpose. Aaron v. State, 31 Ga. 167. 
 
 256. When a mother intentionally kills 
 her infant child, who is incapable of any re- 
 sistance, by beating it over the head with a 
 deadly weapon, the law implies malice, al- 
 though it would be otherwise if the child 
 were capable of taking the mother's life, and 
 was attempting to take it with means ade- 
 quate to the end, and she killed it to pre- 
 serve her own life. Tempe v. State, 40 Ala. 
 350. 
 
 257. On a trial for murder, the defense 
 offei'ed to show that some twenty or thirty 
 minutes before the difficulty, the deceased 
 had fired off, and reloaded, two pistols, and 
 put them in his pocket at his own house, 
 which was two or three hundred yards dis- 
 tant, and then started immediately for the 
 place of the difficulty, and that the pistols 
 were found at his side on the ground where 
 he fell after being shot by the prisoner. Held 
 that these facts were competent evidence, 
 without proof that the prisoner had knowl- 
 edge of them. Reynolds v. State, 1 Kelly, 
 223. 
 
 258. Articles found in prisoner's pos- 
 
 session. Articles found in the prisoner's 
 pockets when he was searched soon after 
 the murder, which are claimed to have been 
 shortly before in the possession of the de- 
 ceased, may be put in evidence ; also articles 
 belonging to the prisoner and in his posses- 
 sion just before the murder, w'hich were 
 found at the place where the crime was com- 
 mitted. State V. Wagner, 61 Maine, 178. 
 
 259. On a trial for murder, the fact that 
 the prisoner, whilst passing from the jail on 
 a former trial for the same offense, was found 
 in possession of a slung shot, is competent 
 evidence for the consideration of the jury on 
 the question whether he contemplated an es- 
 cape. State V. Houser, 28 Mo. 233. 
 
 260. On a trial for murder, evidence that 
 a writing found near the body of the de- 
 ceased was given to the prisoner's son for 
 the use of his father, is sufficient to render 
 the paper admissible in evidence, with in- 
 struction to the jury to disregard it unless 
 satisfied that it came from the prisoner's pos- 
 session. State v. Arthur, 2 Dev. 217. 
 
 261. Clothes which have been identified 
 as those worn by the accused at the time a 
 murder w'as committed, may be submitted 
 to the jury for inspection. People v. Gon- 
 zales, 35 N. y. 49. 
 
 262. On a trial for murder, a witness who 
 was not an expert was permitted, against the 
 objection of the prisoner, to testify that cer- 
 tain hairs which were found adhering to the 
 club with w^hich it was claimed the murder 
 was committed, appeared to his naked eye to 
 be human hairs, and another witness to tes- 
 tify to his impression that they resembled 
 human hairs. Held j^roper, and that testi- 
 mony ofiered in behalf of the prisoner in re- 
 spect to hairs seen on wood piles in the yard 
 where the homicide occurred, five months 
 subsequent thereto, was rightly rejected. 
 Com. V. Dorsey, 103 Mass. 412. 
 
 263. Where on a trial for murder by poison, 
 alleged to have been administered to the de- 
 ceased by the accused in a bowl, it was held 
 to be a question for the jury as to whether 
 or not the bowl was identified, and that 
 evidence given by a plijisician as to the con- 
 dition and contents of the bowl, and his
 
 HOMICIDE. 
 
 279 
 
 Murder. 
 
 Presumptions. 
 
 analysis of its contents, was proper. People 
 V. William*, 3 Parker, 84. 
 
 264. Feebleness of person killed. Where 
 on a trial for murder, the prisoner sets up 
 self-defense, it is competent for the prose- 
 cution to show tliat the prisoner was a large 
 and the deceased a small man. Hinch v. 
 State, 25 Ga. G99. 
 
 265. Where on a trial for murder, it is 
 proved that the prisoner at the time he com- 
 mitted the assault on the deceased, knew or 
 had reasonable cause to believe that she was 
 suffering from disease, and was in conse- 
 quence so feeble that his attack would en- 
 danger her life, or inflict on her great bodily 
 harm, or hasten her death, it will justify the 
 jury in finding implied malice and in con- 
 victing of murder. Com. v. Fox, 7 Gray, 
 585. 
 
 236. Foot-prints. Evidence that shoes 
 taken from the feet of the horse wliich the 
 prisoner rode on the morning of the murder 
 seemed to fit the tracks found near the 
 body of the deceased, is admissible. Camp- 
 bell V. State, 23 Ala. 44. 
 
 267. Spots of blood. On a trial for mur- 
 der, it is not error to refuse to instruct the 
 jury that it is the duty of the prosecution to 
 prove by scientific analysis, that the spots 
 found on the clothes and person of the 
 prisoner were in fact spots of blood. Peo- 
 ple V. Bell, 49 Cal. 485. 
 
 268. Anonymous letter. On the trial of 
 the defendant for the murder of his wife, 
 the alleged motive being a desire to marry 
 S. B. , an anonymous letter proved to be the 
 prisoner's handwriting, addressed to a per- 
 son to whom S. B. was about to be married, 
 and received by that person at the time of 
 its date, which was eleven months after the 
 murder — Held proper for the consideration 
 of the jury. Stephens v. People, 19 N. Y. 
 549; affi'g s. c. 4 Parker, 396. 
 
 269. Ill feeling between the parties. 
 On a trial for murder, evidence that the 
 prisoner was in possession of land, and that 
 the deceased was about to commit a trespass 
 upon it, is admissible to show the state of 
 feeling of the parties toward each other at 
 the time of the homicide ; and for the same 
 purpose, it may be proved that lawsuits 
 
 were pending between them. State v. Zel- 
 lers, 2 Halst. 220. 
 
 270. On the trial of a husband for the 
 murder of his wife, it is competent for the 
 prosecution to show a long course of ill 
 treatment by the husband toward the wife. 
 State V. Rash, 12 Ired. 332. 
 
 271. On a trial for the murder of his wife 
 by the accused by poisoning, it is competent 
 to prove, to show motive, that some time 
 previous to the alleged murder the wife made 
 a complaint against her husband for aban- 
 donment, and that he gave a recognizance 
 with surety, on which he had been compelled 
 to pay $2 a week for her support. People 
 V. Williams, 3 Parker, 84. 
 
 272. On a trial for murder, ill feeling 
 between the prisoner's wife and the wife of 
 the deceased cannot be proved, unless the 
 evidence shows that the prisoner knew of 
 such ill feeling. Hackett v. People, 54 Barb. 
 370. 
 
 273. If A. and B. entertain hostile feelings 
 toward each other, and A. goes away and 
 remains absent six months, and then returns, 
 and is found shortly after murdered, and the 
 circumstances point to B. as the murderer, 
 the relations of the parties when last together 
 are competent evidence. Dillon v. People, 
 8 Mich. 357. 
 
 274. On the trial of a man for the murder 
 of his wife, which took place on the 8th of 
 July, evidence was held admissible to prove 
 that the parties quarreled the previous fall, 
 as tending to show an alienation of aflection, 
 from which the jui-y might infer that the 
 same state of feeling continued until the 
 commission of the homicide. Ileld^ also, 
 that it was proper to prove that several 
 months before the fatal event, the deceased 
 had made a complaint against her husband 
 for an assault and battery, upon which he 
 was arrested and held to bail ; also, that the 
 deceased had deposited money in a savings 
 bank to her own credit, that a bank book 
 was issued in her name and left with her 
 sister, and that the defendant complained 
 that he had no money, that what money 
 there was his wife had taken and put in a 
 bank, and that she had the bank book. 
 People V. McCann, 3 Parker, 272.
 
 280 
 
 HOMICIDE. 
 
 Murder. 
 
 Presumptions. 
 
 275. Where an antecedent grudge lias been 
 proved, and there is no satisfactory evidence 
 to show tliat the wicked purpose has been 
 abandoned, it must be clearly shown that 
 the provocation was a grievous one in order 
 to warrant the jury in finding that the blow 
 ■was struck on the recent provocation and 
 not on the old grudge. Holland v. State, 
 13 Fla. 117. 
 
 276. Slight evidence is admissible to show 
 motive. On a trial for murder, it may be 
 shown that a relative of the accused had, on 
 two successive days, difficulties with de- 
 ceased, which originated about the accused ; 
 that in the first of said difficulties accused 
 was present and sided with his relative, and 
 in the second his relative and friend was 
 killed by deceased. Kelsoe v. State, 47 Ala. 
 573. 
 
 277. On a tiial for murder, evidence that 
 the prisoner, a short time before the homi- 
 cide, had set fire to the house of deceased, 
 in the night time, vpas held inadmissible. 
 State V. Merrill, 3 Dev. 269. 
 
 278. Where one of several jointly indicted 
 for murder is tried separately, it may be 
 shown that at and before the alleged mur- 
 der, an unfriendly state of feeling existed 
 between the deceased and the accused not 
 on trial. McMillan v. State, 13 Mo. 30. 
 
 279. Threat. Where there is a deliberate 
 threat, and the person against whom the 
 threat was made be afterward killed with a 
 deadly weapon by the person making the 
 threat, no mere provocation at the time of 
 committing the act will relieve it of the 
 character of a malicious killing, but it will 
 be presumed to have been in consequence of 
 the previous threat or grudge. Riggs v. 
 State, 30 Miss. 635. 
 
 280. Alienation of affection. On the trial 
 of the husband for the murder of his wife, 
 evidence of conversations between the pris- 
 oner and his wife, and between the prisoner 
 and his brother-in-law, tending to show an 
 alienation of aflection on his part, in regard 
 to his wife, is admissible on the question of 
 motive. So, likewise, the will of the wife's 
 father would be competent evidence to show 
 that the prisoner was disappointed in his 
 pecuniary expectations. People v. Hen- 
 
 drickson, 1 Parker, 406; s. c. 10 N. Y. 13, 
 Gardiner, Ch. J., and Selden, J., dissenting. 
 
 281. On the trial of a husband for the 
 murder of his wife, evidence that during the 
 year previous to the homicide, the prisoner 
 applied to a woman for permission to visit 
 her daughter, and also that the wife for some 
 time before her death was compelled by the 
 prisoner to sleep alone in his kitchen, which 
 was very open and apart from the dwelling- 
 house, was held admissible to show malice 
 and motive. Oliver v. State, 17 Ala. 587. 
 
 282. On the trial of an indictment for the 
 murder of a female with whom the prisoner 
 was living as his wife, it was held that, for 
 the purpose of repelling the presumption of 
 conjugal affection, it was competent for the 
 prosecution to prove that the prisoner's law- 
 ful wife was still living; that he had mar- 
 ried the deceased under a fictitious name ; 
 that he had deceived her by false letters and 
 papers, and that he had married again five 
 weeks subsequent to the death of the de- 
 ceased. State V. Green, 35 Conn. 203. 
 
 283. Adulterous intercourse. On the 
 trial of the husband for the murder of his 
 wife, ])roof of a criminal intimacy between 
 him and another woman, at the time of the 
 homicide, is admissible against him. Hall 
 V. State, 40 Ala. 698. 
 
 284. Where on the trial of a husband for 
 the murder of his wife, the evidence was 
 wholly circumstantial, it was held that 
 testimony to show that for some months 
 before, and down to the time of the homi- 
 cide, adulterous intercourse had existed be- 
 tween the prisoner and a certain woman, 
 was admissible to repel the presumption of 
 innocence arising from the conjugal rela- 
 tion. State V. Watkins, 9 Conn. 47. 
 
 285. W'here facts and circumstanced 
 amount to proof of another crime than that 
 charged, and there is ground to believe that 
 the crime charged grew out of it, or was in 
 any way caused by it, such facts and cir- 
 cumstances may be proved to show the quo 
 animo of the accused. Therefore, on a trial 
 for murder, continuous illicit intercourse be- 
 tween the wife of the deceased and the 
 prisoner, down to the homicide, may be
 
 HOMICIDE. 
 
 281 
 
 Murder. 
 
 Presumptions. 
 
 proved to show motive. Com. v. Ferrigan, 
 44 Perm. St. 386. 
 
 286. On the trial of a husband for the 
 murder of his wife by poison, it was proved 
 that there existed a criminal intimacy be- 
 tween the defendant and the wife of another 
 man, and that there was an insurance on the 
 life of this man, the proceeds of which, on 
 his death, the defendant tried to get. Held 
 that evidence that this man died with the 
 same symptoms as the defendant's wife, and 
 that in his last illness, he was attended by 
 the defendant, was not admissible. Schaf- 
 ner v. Com. 73 Penn. St. 60. 
 
 287. The prisoner and Mrs. L. were in- 
 dicted for the murder of the husband of 
 Mrs. L. On the separate trial of the prisoner, 
 evidence was offered by the prosecution 
 having a tendency to show an incestuous 
 connection between the prisoner and his sis- 
 ter, Mrs. L. No evidence was offered tend- 
 ing to connect this with the homicide, other 
 than as might be inferred from the fact of 
 the homicide occurring subsequent to the 
 alleged incest ; and no other evidence was 
 offered on the subject, except that it ap- 
 peared that the deceased saw at least one 
 of the acts of sleeping together by the par- 
 ties, and that he showed no anger and made 
 no objection. Held that the evidence was 
 admissible on the question of motive. Peo- 
 ple V. Stout, 4 Parker, 71. 
 
 288. On a trial for murder, it was held 
 competent on the question of motive to 
 prove that the prisoner and the deceased 
 had visited the same woman ; that immedi- 
 ately after the homicide the prisoner re- 
 ferred to the fact that he warned the de- 
 ceased to let her alone ; that she would be a 
 curse to any one, and now his words had 
 come to pass. McCue v. Com. 78 Penn. St. 
 185. 
 
 289. Outcries of person killed. The 
 outcries of a person deceased, during the 
 perpetration of the assault which results in 
 death, or upon tlie approach of the assail- 
 ant, are competent evidence on the trial of a 
 party charged with the murder of such per- 
 son upon the question of the identity of the 
 accused. The outcries of another person 
 who was murdered by the same party a few 
 
 minutes previous, during the perpetration of 
 the same burglary, but on another part of 
 the premises, are also admissible for the 
 same purpose. State v. Wagner, 61 Maine, 
 178. 
 
 290. Conduct and situation of defendant. 
 Where upon a trial for murder, the evi- 
 dence is wlioUy circumstantial, the conduct 
 and situation of the accused as affording him 
 opportunities of knowing at what time the 
 deceased left a certain place on the morning 
 of the murder where she was last seen alive ; 
 whether or not it was unusual for him to be 
 in that place at such a time, are circum- 
 stances which, though weak in themselves, 
 are not so disconnected with the main in- 
 quiry as to be inadmissible. Campbell v. 
 State, 23 Ala. 44. 
 
 291. The fact that the prisoner, after the 
 homicide, wipes the knife with which the 
 fatal wound was given, does not call for any 
 instruction from the court, but should be 
 left to the jury with the other circumstances 
 of the case. Pierson v. State, 12 Ala. 149. 
 
 292. Silence of prisoner. What the wife 
 of the prisoner said to him upon visiting 
 the scene of the homicide soon after it oc- 
 curred, and the fact that he made no reply, 
 are admissible in evidence as a part of the 
 res gestm. O'Mara v. Com. 75 Penn. St. 424. 
 
 293. Where a person charged with crime, 
 who in the course of a judicial inquii-y is at 
 liberty to speak or remain silent, does the 
 latter, his silence may be taken into con- 
 sideration by the jury in deciding upon his 
 guilt. State v. Swink, 2 Dev. & Batt. 9. 
 
 294. Appearance of defendant. On a 
 trial for murder a witness testified that he 
 called on the defendant the next morning- 
 after the homicide, and told him that the 
 police officers were inquiring for him. The 
 counsel for the prosecution asked the wit- 
 ness ho^y the defendant appeared at the 
 time, to which the witness replied, "he 
 turned white, and then laughed." Held that 
 the evidence was proper. State v. Nash, 7 
 Iowa, 347. 
 
 295. But where the prosecutor has proved 
 how the prisoner appeared the evening of 
 the day of the murder, and on the following 
 day, he will not be permitted to show that,
 
 282 
 
 HOMICIDE. 
 
 Murder. 
 
 Presumptions. 
 
 on the third day after, on being informed of 
 the murder, he seemed surprised, and ap- 
 peared astonished on being told he was 
 suspected of the murder. Campbell v. State, 
 33 Ala. 44. 
 
 296. Escape of defendant. On a trial 
 for murder it is competent to prove that the 
 prisoner, after killing the deceased, in order 
 to escape, shot down another person, and 
 tried to shoot others. Revel v. State, 26 
 Ga. 375. But evidence is not admissible in 
 defense that the prisoner's brother advised 
 him to fly after suspicions against him be- 
 gan to be entertained, and that he refused 
 to do so. Com. V. Hersey, 3 Allen, 173. 
 
 297. Handwriting of prisoner. Where 
 on the trial of an indictment for murder it 
 was proved that the prisoner had written 
 his name in the registers of three hotels in 
 as many different cities, it was held that, in 
 considering the question whether the three 
 names were written by the same person, the 
 jury might comjiare the handwritings in the 
 several registers. Crist v. State, 31 Ala. 137. 
 To render the opinion of experts admissible 
 in evidence in such cases, it must be founded 
 on a proposition which includes all the facts 
 relied upon to establish the theory claimed. 
 Lake v. People, 1 Parker, 495 ; 13 N. Y. 358. 
 
 298. Possession of money by person 
 killed. On a trial for murder, evidence is 
 admissible that the deceased had money in 
 his possession, as suggesting a motive for 
 taking his life. Whether the time of the 
 possession of money by him be, or be not, 
 too remote to render the evidence proper, 
 must depend upon the circumstances of each 
 case. Proof that he led a solitary life and 
 had gold in his possession six weeks before 
 the murder, held competent. Kennedy v. 
 People, 39 N. Y. 345. 
 
 299. Commission by defendant of other 
 offense. On a trial for murder, evidence is 
 admissible concerning a fight in which the 
 prisoner was engaged, but at which the de- 
 ceased was not present, to show a conspiracy 
 on the part of the prisoner and others 
 against the deceased and others, and to con- 
 nect the two difficulties. People v. Stone- 
 cifer, 6 Cal. 405. 
 
 300. Where a hi;sbanu was indicted for 
 
 the murder of his wife, by means of his 
 slave and two other persons as accessories, 
 and was also indicted for the murder of his 
 slave, it was held, upon the trial of the lat- 
 ter indictment, that evidence that the de- 
 fendant murdered his wife, and that the 
 other defendants were accessories before and 
 after the fact to that crime, and accessories 
 after the fact to the murder of the slave, 
 was admissible in order to show guilty 
 motive. State v. Posey, 4 Strobh. 143. 
 
 301. Suicide of person killed. The ex- 
 hibition to the jury during the recess of the 
 court, on a trial for murder, of screws and 
 hooks inserted in a door, and experiments 
 made with them in the presence of the jury, 
 on the trial, for the purpose of ascertaining 
 whether the deceased might not have com- 
 mitted suicide by hanging, should be per- 
 mitted by the court with great caution. 
 Jumpertz v. People, 31 111. 375. 
 
 302. Demeanor of deceased. On a trial 
 for murder, a witness for the prisoner gave 
 evidence, tending to show that the deceased 
 was in the habit of becoming intoxicated ; 
 and he was then asked what her demeanor 
 was when she was then in that condition. 
 Held not material ; and that if it had been, 
 the facts themselves should have been offer- 
 ed, not the conclusions of the witness. 
 Shufflin V. People, 6 N. Y. Supm. N. S. 
 215. 
 
 303. Presumptions in favor of defense. 
 Where on a trial for murder alleged to have 
 been committed after dark, it appeared that 
 the prisoner and the deceased had been on 
 friendly terms, it was held competent for the 
 prisoner to show that immediately after 
 dinner on the day the homicide was com- 
 mitted, the deceased and two other persons 
 had quarreled. Crawford v. State, 13 Ga. 
 143. 
 
 304. On a trial for murder by poisoning, 
 the following instruction was held proper: 
 "If thejuryareof opinion that the body 
 of the deceased, after being exhumed for 
 analysis, was so exposed that access could 
 be had to it by other parties than these 
 who made the post mortem and conducted 
 the analysis, under such circumstances that 
 they could have applied arsenic to it, and
 
 HOMICIDE. 
 
 283 
 
 Murder. 
 
 Presumptions. 
 
 Admissions and Declarations of Defendant. 
 
 particularly if they believe that K. B., who 
 first charged the prisoner with poisoning 
 his wife, had access to the body and tam- 
 pered with it, then so much of the analysis 
 as was made after the body was so exposed 
 and tampered with, is not competent evi- 
 dence against the prisoner." Stephens v. 
 People, 19 N. Y. 549 ; affi'g 4 Parker, 396. 
 
 305. On the trial of an indictment for 
 murder, it appeared that the homicide oc- 
 curred while the deceased was in the act of 
 injuring a mining claim. Held competent 
 for the defense to prove that the prisoner 
 was the owner, and in the lawful possession 
 of the claim at the time of the occurrence, as 
 tending to show the condition of the pris- 
 oner's mind and the character of the oifense. 
 People v. Costello, 15 Cal. 350. 
 
 306. On a trial for murder, it is not com- 
 petent to show on the part of the defense, 
 that the accused had been a deformed cripple 
 from infancy, and thereby rendered nervous 
 and sensitive to fear from external violence. 
 State V. Shoultz, 25 Mo. 128. 
 
 307. On a trial for murder, the prisoner 
 offered to prove that the son and the widow 
 of the deceased had employed counsel to 
 assist the prosecution, and had agreed to 
 pay him a fee in case of conviction. The 
 court admitted evidence of the employment 
 of the assistant counsel, but rejected the 
 testimony as to character of the fee. Held 
 proper. Beauchamp v. State, 6 Blackf. 299. 
 
 308. Where the person injured does not 
 die within a year and a day after the wound 
 is given, the presumption is that his death 
 proceeded from some other cause. State v. 
 Orrell, 1 Dev. 139. 
 
 309. Presumption from record. Where 
 the juiy, on a trial for murder, render a ver- 
 dict that the prisoner at the bar is guilty, 
 and the clerk in recording the verdict calls 
 him the prisoner at the bar, the record suf- 
 ficiently shows that the prisoner was present 
 in court when the verdict was rendered. 
 State V. Collins, 8 Ired. 407. 
 
 310. Where an indictment for murder de- 
 scribes the defendant as a freedman, biit the 
 record does not sliow whether the offense 
 was committed while the defendant was a 
 slave, or after he became free, the appellate 
 
 court will presume, when necessary to sus- 
 tain the judgment of the court below, that 
 the offense was proved to have been com- 
 mitted after the abolition of slavery. Tempe 
 V. State, 40 Ala. 350. 
 
 (e) Admissions and declarations of defendant.. 
 
 311. In general. On a trial for murder, 
 the declarations of the parties a short time 
 previous to the homicide, while going to- 
 ward the place where it occurred, showing 
 why they were going in that direction, and 
 for what purpose they were seeking the de- 
 ceased, are admissible in evidence as a part 
 of the res gestce. Garber v. State, 4 Cold. 
 Tenn. 161. 
 
 312. On a trial for murder, what the pris- 
 oner had said of the deceased, more than a 
 year before the homicide, was held admissi- 
 ble to show the relation existing between 
 the prisoner and the deceased ; also that the 
 prisoner had stated a short time before the 
 alleged murder that the deceased was jeal- 
 ous of her; also, that evidence was admissi- 
 ble to show that a few days previous to the 
 homicide the deceased, who owned the house 
 in which the prisoner was then living, had 
 agreed to rent it to another person, although 
 the prisoner was not present at the making 
 of the agreement. People v. Cunningham, 
 6 Parker, 398. 
 
 313. Where, on a trial for murder, the de- 
 fense is insanity, the subsequent, as well as 
 previous acts and declarations of the prison- ^A 
 er are admissible in evidence. McLean v. / 
 State, 16 Ala. 673. 
 
 314. On a trial for murder, it appearing 
 that a letter was found on the day on which 
 the homicide was committed, near the door 
 of the house in which the deceased was 
 killed, which purported to have been sent 
 by the prisoner, and which was proved to 
 have never been delivered to the person to 
 whom it was addressed, it was held that the 
 prosecution might show by the person wha 
 found the letter that he exhibited it to the 
 prisoner, and asked him if he knew anything 
 about it, and that the prisoner, who could 
 neither read or write, at first denied all 
 knowledge of it, but, on being questioned a 
 second time, said " that it looked like a
 
 284 
 
 HOMICIDE. 
 
 Murder. 
 
 Admissions and Declarations of Defendant. 
 
 note that was handed, to him by L. P. to 
 carry to his brother, J. P. " (mentiouing the 
 names of the person by whom the letter was 
 written, and the person to whom it was ad- 
 dressed). Mose V. State, 35 Ala. 421. 
 
 315. On a trial for murder, it was proved 
 that the deceased was last seen in company 
 with the prisoner and his wife, wliom he 
 was engaged in moving from an adjoining 
 State, and that they were seen after his dis- 
 appearance prosecuting their journey in his 
 Avagon. A person who helped arrest the 
 prisoner, and who was acquainted with him 
 and with the deceased, tiestified that the 
 prisoner's wife, at the time of the arrest, 
 " ran out of the house, and slapping her 
 husband on the shoulder, said, 'I told you 
 that. Tommy,' to which the prisoner replied, 
 ^Go off, God damn you, and hold your 
 tongue, and speak to nobody about it.' " 
 HeU, that the wife's exclamation, and the 
 prisoner's reply to her were admissible 
 against him. Liles v. State, 30 Ala. 24. 
 
 316. Conversation between prisoner and 
 deceased. Where on a trial for murder, 
 it was i^roved that the prisoner and the 
 deceased were in company several hours 
 previous and up to the homicide, it was 
 held that all that transpired and was said 
 between them during that time was admis- 
 sible in evidence as part of the res gestm. 
 People V. Potter, 5 Mich. 1. 
 
 317. Threats by defendant. On a trial 
 for murder, evidence of threats made by the 
 defendant a long time prior to the homicide 
 are admissible in evidence to show malice. 
 People V. Cronin, 34 Cal. 191. And where 
 a policeman was killed, it was held compe- 
 tent to prove that the prisoner, shortly be- 
 fore the homicide, made threats against 
 policemen generally. Dixon v. State, 13 
 Fla. G36 ; s. c. 1 Green's Grim. Reps. 687. 
 
 318. Where, on a trial for murder by 
 poisoning, it was proved that a short time 
 prior to the procuring and administration of 
 the poison the prisoner had in his possession 
 a slung-shot, which he said was going 
 through J.'s (the deceased's) head, it was 
 held that the evidence was admissible on 
 the question of intent, and that it was 
 proper to produce and identify the slung- 
 
 shot on the trial. La Beau v. People, 6 
 Parker, 371 ; 34 N. Y. 223. 
 
 319. On the trial of an indictment against 
 a married woman for the murder of her hus- 
 band, it was proved that the homicide was 
 committed the 5th of July ; that on the 30th 
 of the previous March, a suit for divorce was 
 commenced against her, by her husband, and 
 that a short time before the bringing of the 
 suit, she had declared that her husband 
 would never get a divorce, that she under- 
 stood he was to be a witness against her, but 
 that he never should live to swear against 
 her, for she would kill him first, and that she 
 would have her revenge against all the wit- 
 nesses who should testify against her in the 
 divorce suit. Held, no ground of exception. 
 Com. v. Madan, 102 Mass. 1. 
 
 320. On a trial for murder, it is competent 
 to show that the defendant within an hour 
 of the homicide, declared that " he would 
 kill somebody before twenty-four hours, 
 although he did not expressly refer to 
 the deceased. Hopkins v. Com. 50 Penn. 
 St. 9. 
 
 321. On a trial for murder, the prosecution 
 may show that threats were made by the 
 accused against the property of a third per- 
 son then in the possession of the deceased, 
 but which was found soon after the murder, 
 in the possession of the accused. Mimms v. 
 State, 16 Ohio, K S. 221. 
 
 322. Where on a trial for murder, threats 
 are proved to have been made by the accused 
 against the deceased, he may interrogate the 
 witness as to irritating language employed 
 at the same time by the deceased, which 
 provoked the threats. Threats made by the 
 deceased against the accused are not com- 
 petent evidence in his favor, unless they 
 were communicated to him previous to the 
 homicide. Atkins v. State, 16 Ark. 568; 
 Coker v. State, 20 lb. 53. But see 2MSt, sub 
 (g), contra. 
 
 323. Testimony before coroner. On a 
 trial for murder, what the accused testified 
 at the coroner's inquest, before it was as- 
 certained that a murder had been committed, 
 is admissible in evidence against him. Hen- 
 dricksou agst. People, 10 N. Y. 13, Selden
 
 HOMICIDE. 
 
 285 
 
 Murder. 
 
 Admissions and Declarations of Defendant. 
 
 and Allen, JJ., dissenting; approved in 
 Teachout v. People, 41 N. Y. 7. 
 
 324. At the time of the investigation be- 
 fore the coroner, the prisoner had not been 
 arrested, though he had been charged with 
 the murder. He was cautioned that he was 
 not obliged to testify to anything that might 
 criminate him, and made no objection to be 
 sworn. His testimony contained no confes- 
 sion, but a denial of all knowledge of the 
 homicide. Held that his testimony so given 
 by him before the coroner, was admissible 
 against him on a trial for murder. State v. 
 Gilman, 51 Maine, 206. 
 
 325. On a trial for murder, the prosecution 
 offered in evidence the deposition of the 
 defendant taken on her examination as a 
 witness before the coroner, taken before her 
 arrest, and before any charge had been made 
 against her, although she then knew that 
 she was suspected. When before the coroner 
 she was advised by her coimsel that she had 
 a right to refuse to answer in regard to any- 
 thing which tended to show her guilt. She 
 attended before the coroner under a subpoena, 
 and her deposition was in writing and signed 
 by her after it had been read over to and 
 corrected by her. Held admissible. People 
 V. McCranie, 6 Parker, 49. 
 
 326. On a trial for murder, the prosecution 
 may prove what the prisoner swore before a 
 coroner's jury, at an inquest held on the body 
 of the deceased, though it appear that he 
 and others were at the time under arrest for 
 the alleged murder, the inquiry on such in- 
 quest not having been as to the guilt of the 
 accused, but being to ascertain, if possible, 
 who was the murderer. People v. Thayer, 
 1 Parker, 595. 
 
 327. On a trial for murder, the fact that 
 the prisoner's answers before the coroner's 
 jury were taken down in writing, is no reason 
 for excluding other statements made by him 
 at other times. Com. v. Dower, 4 Allen, 
 297. 
 
 328. On a trial for murder, after proving 
 on the cross-examination of a daughter of 
 the defendant, that she had been examined 
 as a witness before the coroner, and that her 
 deposition had been read over to and signed 
 by her, the prosecution offered in evidence 
 
 her testimony so taken before the coroner to 
 contradict her. Held admissible, although 
 the witness's attention had not been previous- 
 ly called to the subject. People v. McCranie, 
 6 Parker, 49. 
 
 329. Testimony before magistrate. On 
 a trial for murder, it appeared that the father 
 of the prisoner had been arrested and exam- 
 ined before a magistrate, on a complaint 
 against him for the same murder, and that 
 on such examination, one of the accused, 
 who was also at the same time under arrest 
 for the murder, voluntarily testified on such 
 examination. Held, that his statement made 
 under oath, on such examination, was ad- 
 missible in evidence against him. Peoijlev. 
 Thayer, 1 Parker, 595. 
 
 330. Admissions in affidavit. On atrial 
 for murder, the voluntary statements of the 
 accused, made in an affidavit for a continu- 
 ance, are admissible in evidence against him. 
 Coker v. State, 20 Ark. 53. 
 
 331. Confessions. Oa a trial for murder, 
 the prisoner's confessions were held admissi- 
 ble, although made to the officer who was 
 carrying him before an examining court, and 
 who had said to him, " If you know anything 
 about the circumstances, it will be better to 
 tell the truth about it," notwithstanding 
 another officer had previously told him that 
 his supposed accomplice had been arrested 
 and shot, which statement was false, and 
 made to induce a confession. King v. State, 
 40 Ala. 314, Byrd, J., dissenting. 
 
 332. But where a surgeon visiting a pris- 
 oner accused of murder, said to her, ' ' You 
 are under suspicion of this, and had better 
 tell all you know, it would have been better 
 if you had told at first," it was held that the 
 prisoner's confession could not be given in 
 evidence. Ann v. State, 11 Humph. 150. 
 
 333. A boy of the age of twelve years and 
 five months may be found guilty of murder 
 on his confession of the crime, and executed ; 
 the capacity to commit a crime implying the 
 capacity to confess it. State v. Guild, 5 
 Halst. 163. 
 
 334. Where, on a trial for murder by 
 poisoning, it was jirovcd that the deceased 
 had all the symptoms, and might have died 
 of conjestion of the brain or stomach, and
 
 286 
 
 HOMICIDE. 
 
 Murder. 
 
 Admissions and Declarations of Defendant. 
 
 tlie same symptoms indicated poisoning by 
 the narcotic stramonium, it was held that 
 these facts, in connection with the confession 
 of the accused that he administered stra- 
 monium to the deceased, were not sufficient 
 to warrant conviction. Pitts v. State, 43 
 Miss. 472. 
 
 335. Acts and declarations of defend- 
 ant in his own behalf On a trial for mur- 
 kier, the prisoner may show what he was 
 doing when he met the deceased, and what 
 liis conduct was a short time before the afiray 
 which resulted in the killing. Stewart v. 
 State, 19 Ohio, 302. 
 
 336. A witness being asked by the pris- 
 oner's counsel, on a trial for murder, why 
 she put a particular question to the deceased 
 just before his death, replied that she did 
 so in consequence of what the prisoner had 
 told her some two hours previous. Held 
 that the prisoner could not give in evidence 
 his conversation with the witness at the time 
 referred to. McLean v. State, 16 Ala. 072. 
 
 337. On a trial for murder, the prisoner 
 cannot give in evidence his own account of 
 the affair, related immediately after the oc- 
 currence, although he and the deceased were 
 the only persons present when the homicide 
 was committed. State v. Tilly, 3 Ired. 424. 
 
 338. But a statement made by the accused, 
 a few minutes after the homicide, and near the 
 place of its occurrence, is admissible in evi- 
 dence in his behalf, as a part of the res gestcB. 
 Little V. Com. 25 Gratt. 921. 
 
 339. On a trial for murder, the prosecution 
 proved that immediately after the homicide, 
 the witness saw the prisoner at the post 
 office, where the prisoner stayed ten or fif- 
 teen minutes, and that he seemed excited, 
 and to be trying to conceal it. Held that 
 the conversation of the prisoner on that oc- 
 casion was admissible in his favor, as bear- 
 ing upon the question of his alleged excite- 
 ment or agitation of mind. Dillin v. Peo- 
 ple, 8 Mich. 357, Martin, Ch. J., contra. 
 
 340. On a trial for murder, a witness 
 swore that he was thirty or forty yards from 
 the house where the deceased was shot; that 
 upon hearing the report of the pistol, he 
 saw a person, whom he took to be the pris- 
 oner, run out, turn and run in, and imme- 
 
 diately run out again to where witness 
 stood; that when he came to witness, he 
 seemed greatly agitated and troubled, and 
 at the moment of coming up to him ex- 
 claimed that he would not have done it for 
 the world ; and that one minute would prob- 
 ably cover the time from the firing until the 
 prisoner uttered the exclamation ; two cer- 
 tainly would. Held that the exclamation 
 was admissible in evidence. Mitchum v. 
 State, 2 Ga. 615. 
 
 341. On the trial of several slaves for the 
 murder of another slave, a witness for the 
 State (one B.) testified that "■ he overtook the 
 defendants immediately after the fight, go- 
 ing towards the house of one W. ; that one 
 of them was bleeding profusely from a 
 wound on the back of his head ; that on his 
 inquiring how it happened, Frank gave him 
 a false account of the fight, and tried to con- 
 ceal the fact that any serious hurt had been 
 done to any one, and that when he got to 
 W.'s house, he went in and brought W. out 
 into the yard where the negroes were. W. 
 was afterwards introduced as a witness for 
 the defense, and the prisoners offered to 
 prove by him, that when he came oat, 
 Frank, in reply to questions asked by him, 
 made a full and fair statement of all that 
 occurred in the fight — the wounds which he 
 had inflicted upon the deceased, the manner 
 in which the fight had been brought about, 
 and the way in which he had been wounded." 
 Held that these declarations were admissible 
 for the prisoners, being a continuation of 
 the conversation commenced with B. Frank 
 V. State, 27 Ala. 37. 
 
 342. Where, on a trial for murder, it was 
 proved that the accused shot the deceased 
 as he was coming up the street toward the 
 accused's office, it was held that the ac- 
 cused's declaration to the witness, "Yonder 
 comes M. (the deceased) with his yauger," 
 was admissible in evidence, but not the state- 
 ment which followed, " He intends to shoot 
 or kill me.'' Held., also, that the declaration 
 of the accused, to a witness, before the 
 shooting, that he saw the conduct of the de- 
 ceased that morning, which conduct was 
 shown by the witness to have have been 
 violent and threatening, as he passed with
 
 HOMICIDE. 
 
 287 
 
 Murder. 
 
 Admissions and Declarations of Codefendant. 
 
 his gun, was admissible, as proving the ac- 
 cused's cause of alarm. Monroe v. State,- 5 
 Ga. 85. 
 
 343. On a trial for murder, in the course 
 of the examination of the accused as a wit- 
 ness in his own behalf, a conversation was 
 elicited tending to establish admissions by 
 him. Held that he was entitled to state the 
 exact words constituting the alleged admis- 
 sions, and also the whole conversation re- 
 lating to the subject-matter. People v. 
 Murphy, 39 Cal. 52. 
 
 344. Declaration of third person in de- 
 fendant's favor. On a trial for murder, 
 the declaration of a person who had left the 
 State, and who had as strong motives as the 
 prisoner to commit the deed, that the pris- 
 oner was not the right man, is not admissi- 
 ble. State V. Terrell, 12 Rich. 321. 
 
 (/) Admissions and declarations of code- 
 fendant. 
 
 345. Statements in relation to occur- 
 rence. Where on the trial of A. for mur- 
 der, a conspiracy to commit the crime is 
 proved to have been entered into by A. and 
 B., the declarations of B. are entitled to the 
 same weight as if made by A. People v. 
 Geiger, 49 Cal. 643. 
 
 346. On a trial for murder, the court per- 
 mitted a witness to detail statements made 
 to him by one D., in the absence of the ac- 
 cused, ten days previous to the homicide, 
 it having been first proved that the accused, 
 D., and others, were present at and partici- 
 pated in the murder. Held proper. Rice 
 v. State, 7 Ind. 332. 
 
 347. On a trial for murder, the evidence 
 tended to prove that certain moneys and 
 watches were in the possession of the de- 
 ceased ; that after the murder, part of the 
 money was found in the possession of the 
 prisoner; that the watches produced on the 
 trial belonged to the deceased ; that subse- 
 quent to the homicide, the prisoner was at 
 B.'s and in communication with him, and 
 that the watches were found concealed under 
 B.'s bam. Held that the conduct and decla- 
 rations of B., at the time and place of find- 
 ing the watches, were admissible in evi- 
 dence, to show in connection with other 
 
 proof that B. was made custodian of the 
 watches by the prisoner. Mimms v. State, 
 16 Ohio, N. S. 221. 
 
 348. Threats. On a trial for murder, 
 threats made by one of several defendants 
 who were engaged in a conspiracy a few 
 hours before the killing, in the presence and 
 hearing of the others, and also immediately 
 afterward, are admissible in evidence against 
 the others. Mask v. State, 32 Miss. 405. 
 
 349. On the separate trial of A., who was 
 jointly indicted with B. and C, for murder, 
 the threats of the latter against the deceased, 
 made when A. was not present, were held 
 admissible in evidence, it having been proved 
 that the parties were acting in concert in 
 the prosecution of a common design, and 
 that although temi^orarily separated, such 
 separation was for the purpose of j^roviding 
 weapons and making preparations to carry 
 their design into execution. Gardner v. 
 People, 3 Scam. 84. 
 
 350. Three brothers, N., .J. and W., were 
 indicted for murder, N., as accessory before 
 the fact, and J. and W. as principals. Upon 
 the trial of J. and W., it was held that the 
 prosecution, without having proved any con- 
 federacy between J. and N., might prove 
 expressions of hostility toward the deceased, 
 uttered to N., in the j^resence of J., but not 
 responded to or acquiesced in by him, as 
 testimony which in connection with the 
 relations existing between J. and N. might 
 tend to show a motive on the part of J. for 
 committing the crime. State v. Gordon, 1 
 R. I. 179. 
 
 351. It is not error on a trial for murder 
 to refuse to permit the accused to prove that 
 another person had made threats to kill the 
 deceased just before the homicide, and that 
 immediately after the homicide, such other 
 person left the country and has not since 
 been heard from. Crook ham v. State, 5 
 West Va. 510. 
 
 352. On a trial for murder, threats of 
 other persons against the deceased, or ad- 
 missions by them that they had killed him, 
 are hearsay, and inadmissible. State v. 
 Duncan, G Ired. 236. 
 
 353. Husband and wife. On a trial of 
 a wife for murder, the declarations of the
 
 288 
 
 HOMICIDE. 
 
 Murder. 
 
 Admissions of Codefendant. 
 
 Declarations of Person Killed. 
 
 husband to a tbird person, that he made 
 her commit the crime, are not competent 
 evidence in her favor. Edwards v. State, 
 27 Ark. 493. 
 
 354. But on a trial for murder, the ex- 
 clamation and acts of the wife of the pris- 
 oner at the time of the homicide, and in the 
 presence of the prisoner, tending to show 
 complicity between the prisoner and his wife 
 in the killing, are admissible in evidence 
 against him. People v. Murphy, 45 Cal. 137. 
 
 355. Under an indictment charging two, 
 one as principal in a murder, and the other 
 as present, aiding and abetting ; if they are 
 tried separately, the wife of one is a compe- 
 tent witness for the other. Wakeman v. 
 State, 4 Sneed, 425. 
 
 356. Declarations of witness. The tes- 
 timony of a witness taken down in writing 
 on a coroner's inquest, in the absence of the 
 prisoner, by the coroner, signed by the wit- 
 ness and returned to the clerk, is not admis- 
 sible in evidence against the prisoner, on a 
 trial for murder, after the death of the wit- 
 ness. State V. Campbell, 1 Rich. 124. 
 
 357. Where on a trial for murder, a wit- 
 ness on cross-examination denied that he 
 had made threats against the deceased, it 
 was held that such threats might be proved 
 for the purpose of impeaching him. Gaines 
 V. Com. 50 Penn. St. 319. 
 
 358. On the trial of an indictment for the 
 murder of one Blanchard, an accomj^lice con- 
 veyed by his testimony in chief the idea that 
 he was a reluctant and unwilling abettor in 
 the crime, charged the prisoner with the ac- 
 tual execution of the murder, and exonerated 
 himself from any further criminality than 
 going with the accused to whip or chastise 
 Blanchard. Held that the question on cross- 
 examination, " Did you not a few days before 
 the homicide state that you intended to kill 
 Blanchard ? " was proper to contradict the 
 witness and affect his credibility with the 
 jury. People v. Williams, 18 Cal. 187. 
 
 359. Record of conviction or acquittal. 
 An indictment charged A., B. and C. as 
 principals in murder, but alleged that the 
 fatal blow was given by A., and that B. and 
 C. were present aiding and abetting him. 
 The defendants being tried separately, and 
 
 A. convicted, it was held that the record of 
 Ai's conviction was not admissible in evi- 
 dence on the trial of his codefendants. 
 People V. Bearss, 10 Cal. 68 ; affi'd People v. 
 Newberry, 20 Cal, 439. And where A., B. 
 and C, being jointly indicted, A. as princi- 
 pal and B. and C. as aiders and abettors in 
 the murder of D., and A. tried first and ac- 
 quitted, it was held that the record of his 
 acquittal was not competent evidence in 
 favor of B. and C. State v. Phillips, 24 
 Mo. 475 ; State v. Ross, 29 lb. 32. 
 
 {g) Declarations of person hilled. 
 
 360. Complaint. On a trial for murder, 
 the complaint of the deceased of pain within 
 two hours after the mortal wound was in- 
 flicted is competent evidence. Livingston 
 V. Com. 14 Graft. 592. 
 
 361. Statement as to cause of injury. 
 Where a person has received a mortal 
 wound, Ms statement as to the cause of the 
 injury, made immediately afterward, is ad- 
 missible in evidence as part of the res gestce, 
 Donnelly v. State, 2 Dutch. 601. 
 
 362. But in order to render the declara- 
 tion of the deceased after he received the 
 mortal wound part of the res gestoB, it must 
 have been made recently after the injury^ 
 and before he had time to make up a story. 
 Hill V. Com. 2 Graft. 594. 
 
 363. On a trial for murder, a witness 
 testified that he heard the deceased crying 
 for help; that he called out to him to know 
 what was the matter, and that the deceased 
 replied that somebody was killing him and 
 cutting him with a knife, and that it was 
 the accused. Another witness testified that 
 he heard the deceased calling a number of 
 times ; that he asked him what was the mat- 
 ter ; that he answered that " C." (the ac- 
 cused) " has stabbed me ; he has killed me ; 
 for God's sake run for the doctor." Held 
 admissible as part of the res gestae. Crook- 
 ham V. State, 5 West Va. 510. 
 
 364. On a trial for murder, the evidence 
 tended to show that the prisoner, after 
 fatally stabbing the deceased in the night, 
 immediately ran away. Held that the ex- 
 clamation of the deceased to a person who 
 went to him a moment afterward, that the
 
 HOMICIDE. 
 
 289 
 
 Murder, 
 
 Declarations of Person Killed. 
 
 prisoner had stabbed him, was admissible as 
 a part of the res gestm. Com. v. Hackett, 2 
 Allen, 136. 
 
 365. On a trial for murder, evidence is 
 admissible that the defendant and the de- 
 ceased after the occurrence, and •while the 
 deceased believed he was gomg to die, 
 talked it over, and that the deceased said he 
 was to blame and asked the defendant to 
 forgive him. Hurd v. People, 25 Mich. 405. 
 
 366. On the trial of an indictment for 
 murder, it was proved that the deceased, 
 who was an aged woman, was found lying 
 dead near her dwelling-house, about twelve 
 o'clock of the day, with her face and head in 
 a pool of water, and that the prisoner was 
 in her employ as a hired man and the only 
 other member of her family. Held that the 
 evidence offered by the defense that the 
 deceased a year before her death had stated 
 to the witness that she was subject to fits, 
 and had several times fallen upon her face 
 when alone, was inadmissible on the ground 
 that it was mere hearsay. State v. Dart, 29 
 Conn. 153. 
 
 367. On a trial for murder by poisoning, 
 the declarations of the deceased tending to 
 throw light upon the cause of death, or 
 upon any criminal relation with the proxi- 
 mate cause, are proper and original evi- 
 dence; as that the deceased several days 
 before her fatal illness made a threat that 
 she would poison herself. Shaw v. People, 
 5 N. Y. Supm. N. S. 439. 
 
 368. Declarations of deceased as to his 
 intentions. Where on a trial for murder the 
 evidence was wholly circumstantial, it was 
 held that declarations of the deceased made 
 tlie day before his death as to the object and 
 purpose of a contemplated journey -which he 
 took, were admissible in explanation of a 
 conversation had in the presence of the ac- 
 cused, and as a part of the res gestm, Carroll 
 V. State, 3 Humph. 315. 
 
 369. Although when it is necessary to in- 
 quire into the nature of a j^articular act or 
 the intention of the actor, proof of what the 
 person said at the time of doing it is ad- 
 missible, yet to render the declaration com- 
 petent, the act with which it is connected 
 must be pertinent to the issue. Where on a 
 
 19 
 
 trial for murder it was proved that the ac- 
 cused lived apart from his wife in the city 
 of New York, and that she left home Satur- 
 day night and returned the next morning 
 ill, and continued so until she died, appar- 
 ently from poisoning, it was held that what 
 the deceased said when she went away 
 Saturday evening as to where she was going 
 was not admissible in evidence ; and where 
 such proof was given, and that she said she 
 was going with clothing for her husband, 
 it was held error. People v, Williams, 3 
 Parker, 84; s. c, 1 N. Y. Ct. of Appeals 
 Decis. 596. 
 
 370. It is not competent for the defendant 
 on a trial for murder to prove that the de- 
 ceased, before he left home, told the witness 
 that he intended to leave soon, and that 
 when he left he would never make himself 
 known or be heard from by his family. 
 State V. Vincent, 24 Iowa, 570. 
 
 371. On a trial for murder, it is not com- 
 petent to show that the day previous to the 
 homicide, the deceased, the prisoner not 
 being present, stated that he was going to 
 the place where his body was afterward 
 found, and that the prisoner was going with 
 him. Kirby v. State, 2 Yerg. 383. But on 
 the trial of an indictment for murder it was 
 held competent to prove, for the purpose of 
 identifying the dead body as being that of 
 a person who was seen the night before, that 
 he then stated that a certain horse had got 
 away from him, and upon being told that 
 the defendant had such a horse, said that 
 the defendant was the man he wished to see, 
 and thereupon went in pursuit of him. 
 Hamby v. State, 36 Texas, 523; s. c. 1 
 Green's Crim. Keps. 650. 
 
 372. On the trial of an indictment for 
 murder alleged to have been committed 
 while the deceased and the defendant were 
 traveling in company, evidence is admis- 
 sible as to what the deceased said on the 
 journey as to where they had come from, and 
 where they were going, although the decla- 
 rations were made in the defendant's ab- 
 sence. State V. Vincent, 24 Iowa, 570. 
 
 373. On the trial of an indictment for 
 murder, evidence offered tending to prove 
 that the deceased, who was the father of
 
 290 
 
 HOMICIDE. 
 
 Murder. 
 
 Declarations of Person Killed. 
 
 the defendant's wife, was and had been in 
 league with one C. to induce the defendant's 
 wife to leave him and elope with C, was 
 rejected by the court. Held that the acts, 
 sayings, and doings of the deceased of a 
 a recent date, which had come to the knowl- 
 edge of the defendant, should have been 
 admitted, as tending to show the state of 
 the defendant's mind. Cheek v. State, 35 
 Ind. 492. 
 
 374. Must, in general, have come to 
 defendant's knowledge. As a general rule, 
 on a trial for murder, a declaration made by 
 the deceased, which did not come to the 
 knowledge of the accused, is not admissible 
 in evidence in behalf of the defendant. 
 Messner v. People, 45 N. Y. 1 ; Edgar v. 
 State, 43 Ala. 45; Powell v. State, 19 lb. 
 577 ; Hoye v. State, 39 Ga. 718. 
 
 375. Therefore, declarations of the de- 
 ceased, made several hours previous to the 
 homicide, in the absence of the defendant, 
 tending to prove the defendant's presence at 
 the house of the deceased the night of the 
 murder, not being a part of the res gest(P, or 
 made in extremis, are not admissible in evi- 
 dence. People V. Carkhuflf, 24 Cal. 640. 
 
 376. A. made an affidavit before a justice 
 that B. had assaulted and wounded him, and 
 on the same day gave his deposition upon 
 the same charge before magistrates in the 
 absence of the accused. Afterward A. died. 
 On the trial of B. for the murder, it was 
 held that the affidavit and deposition could 
 not be read in evidence by the prosecution. 
 Collier v. State, 8 Eng. G76. 
 
 377. The declarations of the deceased, 
 that he had no money, made several weeks 
 before the murder, are not competent evi- 
 dence. Kennedy v. People, 39 N. Y. 245. 
 
 378. Threats of deceased. Threats made 
 by the deceased a short time before the 
 homicide, showing an angry and revengeful 
 spirit toward the prisoner, and a determina- 
 tion to do him violence, which were com- 
 municated to the prisoner before the homi- 
 cide, may be given in evidence for him. 
 Dupree v. State, 33 Ala. 380. Proof of such 
 threats made by the deceased the day prior 
 to and down to the time of the homicide is 
 
 admissible as part of the res gestm. State v. 
 Keene, 50 Mo. 357. 
 
 379. Evidence that the defendant had 
 prosecuted the deceased for embezzlement, 
 and that in consequence the deceased had 
 threatened to kill him, is admissible in con- 
 nection with other circumstances to show 
 that the defendant was in fear of his life 
 from the deceased, and that the killing was 
 in self-defense. Monroe v. State, 5 Ga. 85. 
 
 380. On a trial for murder, threats of per- 
 sonal violence made by the deceased, and 
 not communicated to the prisoner, when 
 connected with the main fact, are admissible 
 on the question as to which was the aggres- 
 sor. Burns v. State, 49 Ala. 379. 
 
 381. On the trial of an indictment for 
 murder, threats made by the deceased 
 against the accused, shortly previous to the 
 homicide, are admissible in evidence as part 
 of the res gestce, as tending to explain the 
 conduct and motives of the deceased, 
 although such threats were not communi- 
 cated to the defendant. Pitman v. State, 
 22 Ark. 354. 
 
 382. On a trial for murder committed in* 
 an affray, it it competent, for the purpose of 
 characterizing the conduct of the deceased 
 toward the accused at the time of their 
 meeting, to prove that the deceased had 
 made threats against the accused, although 
 such threats did not come to the knowledge 
 of the latter until after the homicide. Camp 
 bell V. People, 16 111. 17. 
 
 383. Where, on a trial for murder, evi- 
 dence had been given making it a question 
 for the jury, whether the case was one of 
 excusable homicide, on the ground that the 
 act was perpetrated by the accused in de- 
 fending himself against an attempt by the 
 deceased to kill or inflict some great bodily 
 injury upon him, it was held that violent 
 threats made by the deceased against the 
 accused shortly before the occurrence were 
 admissible in evidence, although such 
 threats were not communicated to him. 
 Stokes V. People, 53 N. Y. 164. 
 
 384. On a trial for murder, it is competent 
 to prove that a week before the homicide 
 the deceased threatened to kill the defend- 
 ant, which threats were not communicated 
 
 t 
 
 t
 
 HOMICIDE. 
 
 291 
 
 Murder. 
 
 Declarations of Person Killed. 
 
 to him, it being already in proof that the 
 defendant was put in fear of the deceased on 
 that occasion, and had left his place of busi- 
 ness to avoid an attack of which he was in 
 imminent peril at the time of the killing. 
 State V. Dodson, 4 Oregon, 64. 
 
 385. Where, on the trial of an indictment 
 for murder, a witness for the defendant had 
 testified that the deceased, on the night of 
 the homicide, had a bowie knife, which the 
 prosecution denied, it was held that the fact 
 that the deceased had such a knife, was 
 proper evidence to go to the jury, and that 
 the deceased made threats against the life 
 of the defendant, without reference to 
 whether the threats had or had not been 
 communicated to the defendant. Holler v. 
 State, 37 Ind. 57 ; see Cluck v. State, 40 lb. 
 263. 
 
 386. Where, on a trial for murder, the 
 question was, which of the parties assaulted 
 the other, the defendant contending that 
 the deceased was the aggressor in the fatal 
 rencounter, and had placed the defendant 
 in danger of his life, from which peril he 
 could only extricate himself by killing his 
 assailant, it was held that the declarations 
 of the deceased at the time of borrowing a 
 pistol, which was found in his possession 
 after the homicide, were admissible in evi- 
 dence as a part of the res gestae, without prov- 
 ing that the defendant had knowledge of 
 them. People v. Arnold, 15 Cal. 476; and 
 see People v. Scoggins, 37 Cal. 676. 
 
 387. Where, on a trial for murder, the de- 
 fense relied on is an insane delusion on the 
 part of the prisoner, that the deceased in- 
 tended to injure him, the declarations of the 
 deceased, though made in the prisoner's ab- 
 sence, are admissible to show his state of 
 mind toward the prisoner at that time, as 
 tending to show some ground for the pris- 
 oner's feeling toward him. Com. v. Wil- 
 ■son, 1 Gra}% 337. 
 
 388. Where, on a trial for murder, it was 
 proved that the deceased had threatened to 
 kill the accused, and that the threats were 
 communicated to the prisoner, it was held 
 competent for him to prove other threats 
 which were not communicated, as tending 
 to confirm the proof of the other threats. 
 
 and to show that the deceased intended to 
 attack the prisoner. Cornelius v. Com. 15 
 B. Mon. 539. 
 
 389. On the trial of an indictment for 
 murder in an afiray, it is not competent for 
 the defendant to prove that the deceased, 
 recently before the affray, threatened to 
 shoot him. McMillan v. State, 13 Mo. 30. 
 
 390. In case of conspiracy. When, on 
 a trial for murder, a conspiracy is proved to 
 have existed between the deceased and 
 others to co-operate in any hostile meeting 
 between the prisoner and the deceased, the 
 declarations of any of the party, with refer- 
 ence to the hostile meeting, are admissible 
 in evidence. Cornelius v. Com. 15 B.Mon.539. 
 
 391. On the trial of a keeper of a house 
 of ill-fame, for murder committed in resist- 
 ing the attempt of the deceased and others 
 to gain admittance by violence, it was held 
 competent to prove that threats had been 
 made a week previous to the assault by the 
 persons who had broken into the house, that 
 they would return some other night and 
 break in again. People v. Rector, 19 Wend. 
 569. 
 
 392. Must have been overt act. Appre- 
 hension from a previous threat, followed by 
 no overt act, will not justify a homicide. 
 Therefore, on a trial for murder, evidence of 
 what the deceased had said about the pris- 
 oner three weeks before the killing, in order 
 to show, with other facts, whether at the 
 time of the occurrence the prisoner was 
 justified in apprehending danger from the 
 deceased, is not admissible. Real v. People, 
 55 Barb. 551 ; affi'd 42 N. Y. 270. 
 
 393. However desperate and abandoned 
 the character of the deceased may have been, 
 and however numerous and violent the 
 threats he may have made, he does not for- 
 feit his claim to life, unless by some act at 
 the time of the killing, he made it appear 
 that he was about to put his threats into 
 execution. Pritchett v. State, 22 Ala. 39. 
 
 394. Previous bad treatment will not jus- 
 tify a homicide; therefore, evidence that the 
 deceased previously clubbed the prisoner 
 inhumanly when nearly insensible from in- 
 toxication, to justify the aj)prehension of 
 similar treatment at the time of the homi-
 
 292 
 
 HOMICIDE. 
 
 Murder. 
 
 Declarations of Person Killed. 
 
 Dying Declarations. 
 
 cide, is not admissible. Real v. People, 55 
 Barb. 551; 42 N. Y. 270. 
 
 395. In corroboration. Where, on a trial 
 for murder, the declarations of the deceased 
 have been proved, and an attempt has been 
 made by the defense to destroy the effect of 
 such declarations, by showing the bad char- 
 acter of the deceased, the prosecution, in 
 order to corroborate the evidence, may show 
 that the deceased made other declarations 
 to the same effect, a few moments after he 
 was wounded, though it did not appear that 
 he was then under the apprehension of im- 
 mediate death. State v. Thompson, 1 Jones, 
 274. 
 
 396. In rebuttal. Proof, on a trial for 
 murder, of the acts and declarations of the 
 deceased for several months jjrevious to the 
 homicide, for the purpose of proving that 
 she was in a cheerful and healthful mental 
 condition, and not pi'edisposed to suicide, 
 is only proper as rebutting evidence after 
 the testimony for the defense is closed. 
 Jumpertz v. Peoj^le, 21 111. 375. 
 
 397. How to be regarded by jury. 
 "Where during the quarrel immediately pre- 
 ceding the fight between the prisoner and 
 the deceased, the latter said that the former 
 had for some time been offended with him, 
 giving reasons for the assertion, but which 
 was denied at the time by the prisoner; it is 
 the duty of the court to charge the jury, 
 that the statement of the deceased is no evi- 
 dence of its truthfulness, and should only be 
 regarded by them as part of the res gestcs, 
 to show under what circumstances the fight 
 between the parties began. Haile v. State, 
 1 Swan, 248. 
 
 (h) Dying declarations. 
 
 398. General grounds of admissibility. 
 By the common law, the declarations of a 
 person mortally wounded, made under the 
 apprehension of death, are admissible in 
 evidence on a trial for murder. Woodside 
 v. State, 2 How. 655; Campbell v. State. 11 
 Ga. 353; Nelson v. State, 7 Humph. 542; 
 Smith V. State, 9 lb. 9 ; Hill v. Com. 2 Graft. 
 594 ; Moore v. State, 12 Ala. 7G4. 
 
 399. Such declarations are only admissible 
 in cases of homicide, and are restricted to 
 
 the act of killing, and the circumstances im- 
 mediately attending it, and forming part of 
 the res gestce. Leiber v. Com. 9 Bush, 11; 
 Wright V. State, 41 Texas, 246. 
 
 400. Dying declarations are only admis- 
 sible where the death of the person killed 
 is the subject of the inquiry, and the circum- 
 stances of the death are the subject of the 
 dying declarations. People v. Davis, 56 N, 
 Y. 95 ; Lambert v. State, 23 Miss. 323. 
 
 401. In case of homicide, declarations by 
 one mortally wounded, and who is conscious 
 of his condition, are admissible in evidence, 
 not only as to the perpetrator, but also as to 
 the facts that attended the transaction. 
 Campbell v. State, supra; People v. Knapp, 
 26 Mich. 112; s. c. 1 Green's Crim. Eeps. 
 252; approving Hurd v. People, 25 Mich. 
 405. 
 
 402. The declaration of a person badly 
 wounded, that the defendant had stabbed 
 her, made immediately after the transaction, 
 though with such an interval of time as to 
 permit her to go from her own room up 
 stairs, into another room, is admissible in 
 evidence after her death, as a part of the 
 res gestce. Com. v. McPike, 3 Cush. 181. 
 
 403. Dying declarations as to the previous 
 conduct of the prisoner are admissible. 
 State V. Terrell, 12 Eich. 321. But they 
 must be confined to what occurred in im- 
 mediate connection with the offense and 
 forming a part of the res gestce. State v. 
 Shelton, 2 Jones, 360. 
 
 404. Whether the statements of the de- 
 ceased as to previous diflaculties and threats 
 of the prisoner can be received — query. Dec- 
 larations that the prisoner's boys followed 
 the deceased and clubbed him, immediately 
 preceding the encounter, which was the cause 
 of his return to his house where the fatal 
 blow was struck, being a part of the res 
 gestm are admissible. But declarations that 
 the prisoner had often threatened to kill the 
 deceased, made after the deceased had relat- 
 ed the circumstances of the stabbing, and 
 entirely disconnected from it, it not appear- 
 ing that the threats were made to the de- 
 ceased or to others who told him, are not 
 admissible. Hackett v. People, 54 Barb. 
 370.
 
 HOMICIDE. 
 
 293 
 
 Murder, 
 
 Dying Declarations. 
 
 405. The prosecution has a right to prove 
 the dying declarations, notwithstanding 
 there may be other witnesses by whom the 
 same facts might be shown which are 
 sought to be established by the dying decla- 
 rations. People V. Green, 1 Parker, 11. 
 
 406. Substance of declaration suffi- 
 cient. The substance of dying declarations 
 may be proved. Ward v. State, 8 Blackf. 
 101. It is not necessary that the declarant 
 should state everything that constituted the 
 res gestm of the subject of his communication ; 
 but that his statement of any given fact 
 should be a full expression of all he intended 
 to say as to such fact. State v. Patterson, 
 45 Vt. 308. The fact that the witness lost 
 the writing containing the declarations, has 
 no bearing upon their admissilnlity, but only 
 as to the weight which ought to be accorded 
 to his recollection. lb. ; s. c. 1 Green's Crim. 
 Reps. 490. 
 
 407. Where the deceased being asked who 
 shot him, replied " the prisoner," it was held 
 that the declaration could not be excluded 
 because from weakness and exhaustion, he 
 was not able to answer another question put 
 to him immediately afterward. McLean v. 
 State, 16 Ala. 673. 
 
 408. But where it appeared that the dec- 
 larations were intended by the deceased to 
 be connected with, and qualified by other 
 statements, and that before the narrative was 
 completed it was interrupted, and left un- 
 finished, it was held that such partial decla- 
 rations were not admissible in evidence. 
 Bass' Case, 3 Leigh, 786. 
 
 409. Where dying declarations were re- 
 peated by a person who heard them to a 
 justice of the peace, by whom they were 
 reduced to writing and afterward approved 
 and sworn to by the deceased, but it ajj- 
 peared that it only contained a portion of 
 what the deceased said, and that material 
 statements made by him were designedly 
 omitted, it was held that the writing was 
 not admissible in evidence. Bronn v. State, 
 32 Miss. 433. 
 
 410. Opinions not admissible. The mere 
 expression of opinion by the deceased, made 
 when in extremis, is not admissible in evi- 
 dence. Binns v. State, 40 Ind. 311 ; Whit- 
 
 ley v. State, 38 Ga. 50 ; State v. Williams, 
 67 N. C. 13. 
 
 411. On a trial for murder by poisoning, 
 it was proved that the deceased stated that 
 the defendant and B. were the cause of all 
 her suflferings; and again in answer to an 
 inquiry of the cause, that she suspected it 
 was C. (referring to the defendant), and B. 
 Held that neither of these statements was 
 competent evidence as a dying declaration. 
 Shaw V. People, 5 N. Y. Supm. N. S. 439. 
 
 412. On a trial for murder, a witness was 
 asked whether the deceased, after he de- 
 clared he was dying, and while dying, made 
 any declaration as to how he received the 
 wounds, and by whom they were inflicted. 
 The witness answered that the deceased 
 said it " was hard to die by the hand of 
 another and leave his family." Held error 
 to admit this declaration in evidence. 
 Crookham v. State, 5 West Va. 510. 
 
 413. But on a trial for murder, it appeared 
 that the deceased was shot at night while 
 riding with a companion, who saw the flash 
 of the gun but not the defendant. The 
 deceased, about fifteen minutes before he 
 died, stated that the defendant was the man 
 who had killed him. Held admissible as a 
 dying declaration, and that it was for the 
 jury to say whether the statement was made 
 by the deceased as a fact known to him, or 
 only as his opinion. State v. Quick, 15 
 Rich. 343. 
 
 414. And where the deceased, in making 
 his dying declaration, stated that the " fatal 
 wound was given without any provocation 
 on his part," it was held not incompetent as 
 matter of opinion. Wroe v. State, 20 Ohio, 
 N. S. 460. 
 
 415. On a trial for murder, the dying 
 declarations of the deceased as to the state 
 of feeling existing between him and the 
 prisoner are not competent evidence for the 
 prosecution. Ben v. State, 37 Ala. 103. 
 
 416. Where on a trial for murder, it ap- 
 peared that the homicide occurred in the 
 night, and was committed by some unknown 
 person, it was held that the dying declara- 
 tions of the deceased that the prisoner, who 
 was one of his employer's slaves "was the 
 only slave on the place who was at enmity
 
 294 
 
 HOMICIDE. 
 
 Murder. 
 
 Dying Declarations. 
 
 with him," were not admissible in evidence 
 against the prisoner. Mose v. State, 35 Ala. 
 421. 
 
 417. On a trial for murder, dying declara- 
 tions were ofiered in evidence, and the wit- 
 ness, who testified to the precise words used, 
 was asked whether the deceased did not so 
 express himself as to convey the idea that 
 it was a mere opinion. Held that as it was 
 for the jury to judge of the import of the 
 language employed, the question was im- 
 proper. Nelms V. State, 13 Smed. & Marsh. 
 500. 
 
 418. "Who competent to make. If the 
 declarant would not have been permitted to 
 testify had he survived, either because he 
 was too young to comprehend the nature of 
 an oath, or was disqualified by infancy or 
 imbecility of mind, his dying declarations 
 are not admissible. Lambert v. State, 28 
 Miss. 323 ; State v. Williams, 67 N. C. 12. 
 "When admitted, they are to be received 
 with the same degree of credit that the tes- 
 timony of the deceased would have been if 
 examined on oath. Green v. State, 13 Mo. 
 382. 
 
 419. In New Jersey, it was held that 
 dying declarations made by a person who 
 did not believe in a God and in a future 
 state of rewards and punishments were not 
 admissible in evidence. Donnelly v. State, 
 2 Dutch. 4fi3. 
 
 420. Must have been made in the belief 
 of approaching and inevitable death. It 
 is error to admit dying declarations in evi- 
 dence, without first ascertaining that the 
 deceased was conscious of his condition 
 before making them. Montgomery v. State, 
 11 Ohio, 424; People v. Williams, 3 Parker, 
 84; Dixon v. State, 13 Fla. 636; s. c. 1 
 Green's Crim. Reps. 687. Written declara- 
 tions were held inadmissible, where there 
 was nothing to show except from the writ- 
 ing, that the deceased thought he was in 
 articulo mortis. State v. Medlicott, 9 Kan- 
 sas, 257 ; s. c. 1 Green's Crim. Reps. 227. 
 
 421. To make the statement of a deceased 
 person evidence as a dying declaration, it is 
 not necessary that when he made it he was 
 in the very act of dying. It is sufficient if 
 he was under the apprehension of approach- 
 
 ing dissolution. State v.Tilghman, Hired ► 
 513. On the trial of an indictment for man- 
 slaughter, a statement made by the deceased 
 under a sense of impending death was held 
 admissible as a dying declaration, though 
 he lived seventeen days afterward. Com. v. 
 Cooper, 5 Allen, 495. 
 
 422. Although to render dying declara- 
 tions admissible, it must appear that they 
 were made under a sense of impending 
 death, it is not necessary that they be stated 
 at the time to be so made, it is enough, if it 
 satisfactorily ap^Dcars in any mode, that 
 such was the case. Daniel v. State, 8 Smed. . 
 & Marsh. 401 ; Morgan v. State, 31 Ind. 193. 
 
 423. Where the deceased when first dis- 
 covered, after he was mortally wounded, sa'd ' 
 " Oh, my people," but nothing more, it 
 was held not sufficient to show the appre- 
 hension of immediate death. Lewis v. 
 State, 9 Smed. & Marsh. 115. And where^ 
 on a trial for manslaughter, the judge ruled 
 that if the deceased believed his end was 
 near at hand, his dying declarations were 
 admissible, although he might think there 
 was a slight chance of life, it was held error. 
 Com. V. Roberts, 108 Mass. 296. 
 
 424. On a trial for murder, a statement of 
 deceased was ofiered in evidence as his 
 dying declaration, which was taken down 
 and sworn to the day before his death, but 
 not signed by him, he being too far gone to 
 write his name. The language of the de- 
 ceased was not taken down, but only the 
 substance; and when read over to him he 
 said it was substantially correct. Upon his 
 inquiry of the attending surgeon whether 
 there was any hope, he had been told that he 
 could not recover. The deceased Avas under 
 the influence of morphine ; and to some of 
 the questions he nodded assent, and to 
 others gave answers. At times it became 
 necessary to rouse him. He was visited by 
 his spiritual adviser, and partook of the last 
 rites of the church before the declarations 
 were made, and seemed to have lost all ex- 
 pectation of recovery. Held, that although 
 the declarations were not entitled to much 
 weight, yet that they were admissible in evi- 
 dence. Murphy v. People, 37 111. 447. 
 
 425. Where the declarant said "she knew 
 
 ^ 
 
 >
 
 HOMICIDE. 
 
 205 
 
 Murder. 
 
 Dying Declarations. 
 
 <=S 
 
 she should die," liut added that "if she 
 lived to get well she would never go to C.'s 
 again," it was held that as the latter ex- 
 pression showed the hope, if not the ex- 
 pectation of recovery, her declarations were 
 not admissible. State v. Center, 35 Vt. 378. 
 c3 426. If the declaration was competent 
 when uttered, a subsequent hope of recov- 
 ery will not render it incompetent. State 
 V. Tilghraan, 11 Ired. 513; Dunn v. State, 2 
 Ark. 229. On a trial for murder it appeared 
 that the deceased made a statement relative 
 to the occurrence, on the 8th of January, 
 about two hours after he received his 
 wound?, he at the time having no expecta- 
 tion of recovery, but that he survived ten 
 days longer, during which he had some 
 hope that he might live. Held that his 
 statement was admisbible in evidence as his 
 dying declaration. Swisher v. Com. 26 
 Graft. 9G3. 
 
 427. To render dying declarations admis- 
 sible, it is not necessary to prove the exist- 
 ence of a belief of approaching dissolution 
 by any express statement of the declarant to 
 that efiect, but it may be inferred from the 
 tenor of his conversation, the nature of his 
 sufferings, and his whole demeanor. People 
 V. Williams, 3 Parker, 84 ; People v. San- 
 chez, 24 Cal. 17; Com. v. Murray, 2 Ashm. 
 41; Johnson v. State, 47 Ala. 9; Hill v. 
 Com. 2 Gratt. 594; McLean v. State, 16 
 Ala. 672. 
 
 428. Where the deceased, being mortally 
 wounded, and verj' weak from the loss of 
 blood, said that he must die, his account, in 
 a conversation of short duration, as to the 
 manner in which the conflict began and was 
 continued between him and the prisoner, 
 was helrl admissible as a dying declaration, 
 although the witness could not say whether 
 the opinion expressed by the deceased, that 
 he must die, was before or after his narra- 
 tion of the facts. State v. Peace, 1 Jones, 
 251. 
 
 (, 429. The deceased was poisoned on Sun- 
 day, and from that time until Tuesday 
 evening, when she died, was in great agony. 
 At intervals during her illness, she used 
 such language as the following: "I cannot 
 stay here; I must go; good people, I am 
 
 gone ;" and her physician considered her at 
 the point of death until she died. Tuesday 
 forenoon she asked the doctor if he could 
 help her, to which he replied that he 
 thought he could. HM, that her dying 
 declarations were admissible in evidence. 
 Oliver v. State, 17 Ala. 587. 
 
 430. On a trial for murder, the statement 
 of the deceased having been offered in evi- 
 dence as his dying declaration, it was ob- 
 jected that he told P. he did not believe the 
 wound would kill him. The father of the 
 deceased thereupon testified that he was with 
 his son about an hour after he had made the 
 remark to P. ; that deceased said that al- 
 though he had told P. he did not think he 
 would die, yet he believed he would die, 
 and believed so when he made the statement 
 to P., but was induced to tell P. he did not 
 think he would, because a man who had 
 been shot in the neighborhood, and had 
 said he would die, got well and was dis- 
 graced. Held that the statement of the de- 
 ceased was admissible in evidence. Young 
 V. Com. 6 Bush, Ky. 312. 
 
 431. On the same day the mortal wound 
 was received, an attendant told the de- 
 ceased that he thought his deposition ought 
 to be taken, as he must inevitably die before 
 morning. The deceased replied he thought 
 so to. Afterward, the deceased exclaimed, 
 " Oh Lord, I shall die soon !" His declara- 
 tions were written out, read over to him 
 twice, and signed by him. The physician, 
 the evening before, had held out to the de- 
 ceased some hope of recovery, but told him 
 his chance was small. The deceased lived 
 some ten days after making the declaration. 
 
 Held that the declarations were admissible. * 
 
 McDaniel v. State, 8 Smed. & Marsh. 401. "{ 
 
 432. Where, in a case of murder by poison- 
 ing, the deceased, on the third day of her 
 illness, said to her nurse that she expected 
 to die because she was poisoned, and after- 
 ward made a similar declaration, and at no 
 time supposed she would get well, her dec- 
 larations made after the third day of her ill- 
 ness, down to her death, on the twelfth day, 
 were received in evidence, although it did 
 not appear that eitlier of her attending phy- 
 sicians had told her she was going to die,
 
 296 
 
 HOMICIDE. 
 
 Murder. 
 
 Dying Declarations. 
 
 aud one of them bad spoken lo her en- 
 couragingly of her prospect of recovery. 
 People V. Grunzig, 1 Parker, 299. 
 
 433. Where by direction of the attending 
 physician, and in bis presence, W. told the 
 deceased the day before her death, that she 
 could not live, whereupon she asked tbe 
 physician to hear a communication she 
 wished to make, and proceeded to give an 
 account of tbe conduct of the accused dur- 
 ing her illness, tending to show that he had 
 several times during her illness administered 
 arsenic to her — it was held that such com- 
 munication was admissible as a dying decla- 
 ration. People V. Green, 1 Parker, 11. 
 
 434. Declarations of husband. The dec- 
 larations of a husband are admissible on 
 the trial of his wife for the murder. People 
 V. Green, sti2'>ra. 
 
 435. Declarations of other person killed 
 at the same time. Where another person 
 was mortally wounded by the accused at the 
 same time and place that he perpetrated the 
 killing for which he is on trial, the dying- 
 declaration of such other person is admis- 
 sible in evidence. State v. Wilson, 23 La. 
 An^-SiSB. 
 
 436. Where A., B. and C. are murdered 
 with poison by D., on the trial of D. for the 
 murder of A. the dying declarations of B. 
 are admissible in evidence. State v. Terrell, 
 12 Rich. B21. 
 
 437. But, on a trial for murder, it was 
 proved that the body of the deceased was 
 found, with marks of violence upon it, in 
 the highway, about three hundred yards 
 from his house ; that his wife was found at 
 the same time wounded and in a dying con- 
 dition, and there was evidence tending to 
 show that the house had been robbed. Held 
 that the dying declarations of the wife were 
 not admissible as evidence in behalf of the 
 prosecution. Brown v. Com. 73 Penu. St. 
 321 ; 76 lb. 319; s. c. 2 Green's Grim. Reps. 
 511. 
 
 438. Declarations of codafendant. 
 Where some of several charged with crime 
 die before trial, aud make dying declara- 
 tions, such declarations are not admissible 
 in evidence on behalf of the others. Resp. 
 V. Langcake, 1 Yeates, 415. 
 
 439. How taken. Dying declarations are 
 governed by the same rules as the testimony 
 of a witness sworn in the case, except as to 
 the manner of conducting the examination, 
 which may be by leading questions, and 
 even earnest and pressing solicitation, al- 
 though by such a course their credibility is 
 impaired. People v. Sanchez, 24 Cal. 17. 
 
 440. Where a female who was mortally 
 wounded in the head and unable to speak, 
 but who was conscious that she could not 
 survive the injury, was asked if the fatal 
 blows were dealt by C, and told, if he did, 
 to squeeze the hand of her interrogator, 
 which Avas accordingly done by her, it was 
 held admissible as a dying declaration. 
 Com. V. Casey, 11 Gush. 417. 
 
 441. On a trial for murder it appeared that 
 the deceased and the prisoner both under- 
 stood the English language. The dying 
 declaration of the deceased that the prisoner 
 shot him was proved to have been made in 
 English, in reply to a question addressed to 
 him in that language, and the answer of the 
 prisoner, given in Chinese, was sworn to 
 by a Chinaman who understood both 
 languages. Held proper. People v. Ah 
 Wee, 48 Cal. 236. 
 
 442. A statement was written by an at- 
 torney during the night on which the de- 
 ceased died, the attorney putting questions 
 to him which he made an effort to answer, 
 but could not. The sick man's friends then 
 " explained the questions to him, and made 
 the answers, to which he assented only by 
 nodding his head." The statement, consist- 
 ing of the answers thus made, was then 
 '' read over to him by the attorney, slowly 
 and distinctly, and he signified his assent 
 thereto by nodding his head." He spoke 
 but a few words afterwards, and had fre- 
 quently to be aroused, and seemed, while 
 the statement was being read to him, to be 
 in a stupor. Held that the statement was 
 not admissible as a dying declaration. Mc- 
 Hugh V. State, 31 Ala. 317. 
 
 443. It is not essential to the admissibility 
 of dying declarations, when reduced to 
 writing and signed by the deceased, that 
 there should be a subscribing witness. lb. 
 
 444. Admissibility of, how determined.
 
 HOMICIDE. 
 
 29' 
 
 Murder. 
 
 Dying Declarations. 
 
 The admissibility of dying declarations is a 
 question of law to be determined by the 
 court. People v. Anderson, 2 Wheeler's 
 Crim. Cas. 390 ; Smith v. State, 9 Humph. 9 ; 
 State V. Burns, 33 Mo. 483 ; and is subject 
 to review on writ of error. Donnelly v. 
 State, 2 Dutch. 463 ; Lambert v. State, 23 
 Miss. 323. 
 
 445. The court must decide upon the ad- 
 missibility of dying declarations; and the 
 truth of the facts put in evidence to show 
 that the declarations were made in view of 
 speedy death, is a question exclusively for 
 the court. State v. Simon, 50 Mo. 370. 
 
 446. But where dying declarations are in- 
 consistent with each other, it is the duty of 
 the jury to determine which, or whether 
 either, is entitled to credit. Moore v. State, 
 13 Ala. 764. 
 
 447. Where the offer to introduce a dying 
 declaration shows a prima facie case for its 
 admission, the evidence is received and left 
 to the jury to decide whether the deceased 
 was really in such a condition, or used such 
 expressions as that the apprehension in ques- 
 tion might be inferred. Com. v. Murray, 2 
 Ashm. 41; Com. v. Williams, lb. 69; Peo- 
 ple V. Green, 1 Parker, 11. 
 
 448. How proved. A witness may detail 
 the substance of dying declarations when 
 he is not able to give the precise language. 
 Montgomery v. State, 1 1 Ohio, 424. 
 
 449. Where on a trial for murder, the dy- 
 ing declarations of the deceased are offered 
 in evidence, it is not error to permit wit- 
 nesses to state the substance of what the de- 
 ceased said as to his apprehensions of death, 
 and to receive the same through interpreters 
 who sometimes differ in their rendition of 
 words into Eoglish. In such case, the con- 
 dition and state of mind of the deceased, 
 with all attendant circumstances are proper 
 for the consideration of the jury. Starkey 
 V. People, 17 111. 17. 
 
 450. The fact that a written memorandum 
 of the dying declaration verified by deceased 
 was read in evidence is no oI»jection to the 
 introduction of independent oral proof of 
 the same or similar dying declarations of de- 
 ceased. People v. Vernon, 35 Cal. 49. 
 
 451. Although when dying declarations 
 
 have been taken down in writing and signed 
 by the deceased, the writing itself should be 
 produced, yet if the deceased made other 
 declarations at a dift'erent time, which were 
 not reduced to writing, they may be proved 
 by parol. Collier v. State, 20 Ark. 36. 
 
 452. Where dj-ing declarations are re- 
 duced to writing and signed by the party 
 making them, the writing, if in existence, 
 must be i^roduced. If the same statements 
 were made both in writing and orally, the 
 absence of the writing must be accounted 
 for before evidence of the oral statement can 
 be given. But if the declarations were re- 
 peated at different times, and one of them 
 which was reduced to writing, covers differ- 
 ent ground from that comprised in the ver- 
 bal statements, both may be introduced. 
 State V. Tweedy, 11 Iowa, 350. 
 
 453. A copy of dying declarations, taken 
 down in writing by a magistrate, is admissi- 
 ble as secondary evidence, if the magistrate 
 swear that he cannot recollect the statement 
 of the deceased. Beets v. State, Meigs, 106. 
 
 454. How discredited. On a trial for 
 murder, it is competent to introduce evi- 
 dence of the bad moral character of the de- 
 ceased, for the purpose of discrediting his 
 dying declarations. Nesbit v. State, 43 Ga. 
 238. 
 
 455. The fact that a person was a disbe- 
 liever in a future state of rewards and pun- 
 ishments is admissible in evidence for the 
 purpose of discrediting his dying declara- 
 tions. Goodall V. State, 1 Oregon, 333. 
 
 456. On a trial for murder, the dying dec- 
 larations of the deceased having been given 
 in evidence, the defendant offered to prove 
 that the deceased, on his examination before 
 the committing magistrate, testified to facts 
 contradicting his dying declarations, and 
 had also made other contradictory declara- 
 tions. But the court refused to allow the 
 proof. Held error. People v. Lawrence, 21 
 Cal. 368. 
 
 457. Where on the trial of an indictment 
 for manslaughter, the dying declarations of 
 the deceased were admitted in evidence to 
 ))rove the identity of the prisoner with the 
 one who committed the crime, it was held 
 proper to show that the deceased was in the
 
 298 
 
 HOMICIDE. 
 
 Murder. 
 
 Character of Person Killed. 
 
 habit of mistaking persons with whom she 
 Avas well acquainted for others whom they 
 did not resemble. Com. v. Cooper, 5 Allen, 
 495. 
 
 (/) Cliarader of person I'illed. 
 
 458. Prosecution cannot show. On a trial 
 for murder, it is not competent for the prose- 
 cution to introduce evidence in the first in- 
 stance, and jUs a part of their case, to show 
 that the deceased was a quiet and peaceable 
 man. State v. Potter, 13 Kansas, 414; Ben 
 V. State, 37 Ala. 108. 
 
 459. Cannot in general be proved by 
 defense. As a general rule, evidence on a 
 trial for miu'der, that the deceased was well 
 known to be quarrelsome, vindictive, and 
 dangerous, is not admissible. But it is 
 otherwise when the character of the de- 
 
 C ceased is a part of the res gestae. Wesley v. 
 State, 37 Miss. 337. 
 
 460. Where on a trial for murder, there 
 is no proof that the deceased assaulted the 
 prisoner, evidence cannot be given that the 
 deceased was quarrelsome, vindictive and 
 brutal. People v. Lamb, 54 Barb. 342; 
 affi'd 2 Keyes, 360. 
 
 461. On a trial for murder, it is not com- 
 petent to show that the deceased was a 
 quarrelsome and dangerous man, unless there 
 is evidence which at least raises a doubt as 
 to whether the defendant acted in self-de- 
 fense ; and the defendant must have believed 
 himself in danger. Wise v. State, 2 Kansas, 
 
 \ 419; People v. Murray, 10 Cal. 309; People 
 \ V. Edwards, 41 lb. 640.^ 
 
 462. It having been proved on a trial for 
 murder that the deceased, just previous to 
 the homicide, assaulted the prisoner, it was 
 held that evidence offered by the latter that 
 the deceased was quarrelsome, vindictive and 
 cruel, was too remote to be atlmissible. 
 Com. v. Hilliard, 2 Gray, 294. See Com. v. 
 Mead, 12 lb. 167. 
 
 463. On the trial of an overseer for the 
 murder of his employer, it is not competent 
 for the defense to show the general temper 
 and deportment of the deceased towards his 
 overseers and tenants. State v. Tilly, 3 Ii'ed. 
 424. 
 
 464. On a trial for murder, proof relative 
 
 to the general character and habits of the 
 deceased as to temper and \dolence, is inad- 
 missible, unless all the evidence as to the 
 homicide is circumstantial. State v. Bar- 
 field, 8 Ired. 344. 
 
 465. When defendant may show. Where 
 it is doubtful whether the homicide was ma- 
 licious or in self-defense, the defendant may 
 prove the character of the deceased for 
 violence. Monroe v. State, 5 Ga. 85 ; State 
 v. Hicks, 27 Mo. 588 ; State v, Keene, 50 lb. 
 357 ; State v. Bryant, 55 lb. 75. 
 
 466- The character of the deceased as a 
 turbulent man, when it tends to produce in 
 the mind of the slayer a reasonable belief of 
 imminent danger, is admissible for the de- 
 fendant, and it may sometimes be looked to 
 in determining the amount of provocation. 
 Franklin v. State, 29 Ala. 14 ; Pritchett v. 
 State, 22 lb. 39 ; People v. Lamb, 54 Barb. 
 342 ; afli'd 2 Keyes, 360. 
 
 467. Although as a general rule, on a 
 trial for homicide, evidence of the character 
 and habits of the party killed, as to temper 
 and violence, is not admissible, yet when it 
 becomes necessary for the prisoner to ac- 
 count for the fact that he began a sudden 
 mutual affray with the use of a deadly 
 weapon, he may show that the deceased was 
 a powerful, violent and dangerous man. 
 State V. Floyd, 6 Jones, 392. 
 
 468. Evidence of the character and habits 
 of the person slain is proper only so far as 
 they can be sujjposed to have affected the in- 
 tention of the slayer in the fatal act, by 
 giving reasonable apprehensions of grievous 
 bodily harm. State v. Smith, 12 Kicb. 430. 
 
 469. Evidence of the general bad character 
 of the deceased as a turbulent, blood-thirsty, 
 revengeful man, is competent (although it 
 may not be sufficient to reduce the offense 
 from murder to manslaughter). Fields v. 
 State, 47 Ala. 603. 
 
 470. What may be proved. In case of 
 homicide, the character of the deceased for 
 violence, as well as his animosity toward the 
 defendant, as indicated by words and ac- 
 tions then and before, are proper matters for 
 the consideration of the jury on the question 
 of reasonable apprehension. Rippy v. State, 
 2 Head, 217. Such apprehensions may be
 
 HOMICIDE. 
 
 201> 
 
 Murder. 
 
 Character of Person Killed. Character of Defendant. 
 
 created by particular acts reasonably con- 
 nected in point of time or occasion with 
 the fatal rencounter, or by threats, as well as 
 by the habits or conduct of the deceased. 
 State V. Smith, 12 Rich. 430. 
 
 471. The rule that on a trial for murder, 
 the prisoner may give in evidence the char- 
 acter of the deceased for turbulence and 
 violence, contemplates only his general 
 character in this regard, and proof of spe- 
 cific acts is not admissible unless tiiey are so 
 connected with the homicide as to form a 
 link in the chain of circumstances. Pound 
 V. State, 43 Ga. 88 ; Eggler v. People, 56 N. 
 Y. 642. 
 
 472. The bad character of the deceased 
 cannot be proved by showing previous mis- 
 conduct or immorality, having no connec- 
 tion with the case ; as that he was an escaped 
 convict from the penitentiary of another 
 State. Dupree v. State, 33 Ala. 380. 
 
 473. The fact that the deceased went to 
 the prisoner's premises several weeks before 
 the homicide, and there sought a personal 
 difficulty with an employee of the prisoner, 
 cannot be proved for the defense. Dupree 
 V. State, supra. 
 
 474. On a trial for murder, the defense 
 offered to prove that on the evening of the 
 homicide the deceased drew his knife upon 
 a stranger, and would have cut him had he 
 not been prevented ; also, that he slapped 
 the naked knife against the cheek of another 
 man, at the same time using threatening 
 language. The defendant was not present 
 at the time, and these acts were not brought 
 to his linowledge. Held that the evidence 
 was not admissible. People v. Henderson, 
 28 Oal. 465. 
 
 (,/) Character of defendant. 
 
 475. Defendant not obliged to prove. 
 
 On a trial for murder, the evidence being 
 circumstantial, the court charged the jury 
 that fair character was important to the pris- 
 oner, and that they were to inquire why it 
 was that she had given no evidence of her 
 general character. Ueld error. Bodine v. 
 People, 1 Denio, 281. 
 
 476. When admissible. On a trial for 
 murder, the defendant may prove his char- 
 
 acter for peace and quiet to be good. To 
 that extent his character is involved in the 
 issue of not guilty. People v. Stewart, 28 
 Cal. 395 ; overruling People v. .Josephs, 7 lb. 
 120, and People v. Lombard, 17 lb. 316: 
 Dupree v. State, 33 Ala. 380. 
 
 477. Where, on a trial for homicide, the 
 evidence was wholly circumstantial, the de- 
 fense was allowed to prove that the prisoner 
 was of a mild and peaceable temper and 
 habits, for the purpose of ascertaining the 
 probable grade of the offense. Carroll v. 
 State, 3 Humph. 315. 
 
 478. By whom shown. One who is ac- 
 quainted with the prisoner's character, and 
 who has known him for eight or ten years, 
 may testify as to his character, although he 
 has lived more than twenty miles from the 
 prisoner's residence. Dupree v. State, supra. 
 
 479. Proof must be confined to offense 
 charged. Proof of the general character of 
 the prisoner is confined to the trait involved 
 in the offense charged. Therefore, on the 
 trial of a female for murder, the mere facfe 
 that the evidence as introduced in behalf of 
 the prisoner tended to show that her pros- 
 pects had been injured by reason of her 
 relations with the deceased, will not author- 
 ize the prosecution to attack her character 
 for chastity. People v. Fair, 43 Cal. 137; 
 McDaniel v. State, 8 Smed. & Marsh. 401 ; 
 Beauchamp v. State, 8 Blackf. 299. 
 
 480. On the trial of an overseer for the 
 murder of a slave, a witness fcr the prosecu- 
 tion was permitted to testify as to the pris- 
 oner's general habit as overseer in punishing 
 slaves upon the plantation. Held improper. 
 Bowling V. State, 5 Smed. & Marsh. 664. 
 
 481. On a trial for murder, the jury are not 
 at liberty to take into consideration the 
 peaceable character of the prisoner, iu mak- 
 ing up their minds as to the intention 
 which induced the commission of the offense 
 charged. His intention can only be deter- 
 mined by his acts. People v. Milgate, 5 Cal. 
 127. 
 
 482. Effect of proof of good character. 
 On a trial for murder by poisoning, the fol- 
 lowing instruction was held proper: That 
 when a prisoner is charged with the com- 
 mission of a crime, and evidence of good
 
 500 
 
 HOMICIDE. 
 
 Murder. 
 
 Character of Defendant. 
 
 Burden of Proof 
 
 character is introduced by him, which is not 
 controverted by the prosecution, sucli evi- 
 dence is not merely of value in doubtful 
 cases, but will of itself sometimes create a 
 doubt where, without it, none could exist; 
 and if good character be proved to the 
 satisfaction of the jury, it should produce 
 an acquittal, even in cases where the whole 
 evidence slightly preponderates against the 
 accused. Stephens v. Peojile, 4 Parker, 396 ; 
 affi'd 19 N. Y. 549. 
 
 483. Where, on a trial for murder, the 
 prisoner admits that he committed the 
 homicide, but claims that he did it while 
 defending himself against the deceased, who 
 was trying to rob him, and the only evi- 
 dence in the case is that the jirisoner was 
 found on a public highway, standing over 
 the dead body, with a bloody weapon in his 
 hands, the previous good character of the 
 prisoner is entitled to very great weight. 
 Davis V. State, 10 Ga. 105. 
 
 484. On a trial for murder, good character 
 shown to belong to the prisoner cannot avail 
 against clear proof of guilt, but only where 
 doubt exists as to the commission of the 
 crime and the intent. Wagner v. People, 54 
 Barb. 367 ; affi'd 4 K Y. Ct. of App. Decis. 
 509; s. c. 2 Keyes, 684. 
 
 (k) Burden of j^troof. 
 
 485. When on prisoner. As a general 
 rule, all homicide is presumed to be ma- 
 licious until the contrary is shown. State 
 V. Town, Wright, 75 ; Mitchell v. State, 5 
 Yerg. 340; McDaniel v. State, 8 Smed. & 
 Marsh. 401 ; People v. McLeod, 1 Hill, 377. 
 And every unlawful killing to be murder, 
 although the perpetrator was at the time 
 intoxicated. State v. McFall, Addis. 255. 
 But in Pennsylvania and Tennessee, this 
 presumption rises no higher than murder in 
 the second degree, until it is shown by the 
 prosecution to be murder in the first degree. 
 Com. V. Druum, 58 Peun. St. 9; Witt v. 
 State, 6 Cold. 5. 
 
 486. In Pennsylvania, the following in- 
 struction was held proper : " When once a 
 homicide is proved, and the prisoner is 
 shown to have committed the act, the 
 oflFense will amount to the crime of volun- 
 
 tary manslaughter; for every killing of a 
 human being is presumed to be unlawful. 
 The burden of proving the act excusable or 
 justifiable is on the prisoner," without add- 
 ing the qualification " unless the circum- 
 stances excusing the act arise out of the 
 evidence produced against him. Cathcart 
 V. Com. 37 Penu. St. 108. 
 
 487. In Georgia, when a homicide has been 
 proved, the law presumes malice, and the 
 burden is upon the defendant to show the 
 contrary. Hill v. State, 41 Ga. 484 ; Pound 
 V. State, 42 lb. 88. In North Carolina, the 
 fact of the homicide being established against 
 the prisoner, it is incumbent on him to show 
 matter of excuse or mitigation beyond a 
 reasonable doubt. State v. Johnson, 3 Jones, 
 266 ; State v. Willis, 63 N. C. 26. In Mis- 
 souri, a homicide is deemed malicious, unless 
 justified, excused, or palliated; and the 
 proof of justification, excuse, or palliation 
 rests ujwn the accused, unless evolved in the 
 testimony produced by the jDrosecution. 
 State V. Holme, 54 Mo. 153 ; contra^ Bower 
 V. State, 5 lb. 364. In Indiana, where a 
 person unlaAvfuUy and purposely kills an- 
 other, malice, in the absence of rebutting 
 evidence, is presumed from the act. Expxrte 
 Moore, 30 Ind. 197. 
 
 488. In California, where a homicide is 
 proved to have been committed by the ac- 
 cused, it rests upon him to show justification, 
 excuse, or circumstances of mitigation ; and 
 this not being done, the legal inference is 
 that he has committed the crime of murder. 
 People V. Gibson, 17 Cal. 283 ; subject to the 
 qualification that where the testimony on the 
 part of the prosecution leaves a doubt as to 
 the character of the homicide, the benefit of 
 the doubt is to be given to the prisoner. 
 People V. Arnold, 15 Cal. 476. 
 
 489. But held in an early case in Califor- 
 nia, that if on a trial for murder, the jury 
 should find the fact that the prisoner made 
 a felonious assault upon the deceased with 
 an unlawful weapon, inflicting a mortal 
 wound which produced instant death, and 
 that there was some evidence tending to 
 prove that such wound was given in tlie 
 heat of blood in sudden and mutual combat, 
 but that the proof of such fact did not pre-
 
 HOMICIDE. 
 
 301 
 
 Murder. 
 
 Burden of Proof. 
 
 ponderate over the proof against it, though 
 it raised some doubts in their minds, the 
 matter of extenuation would not be suffi- 
 ciently made out, and the judgment of the 
 court would be against the prisoner for the 
 higher ofiense. People v. Milgate, 5 Cal. 
 137, per Murray, C. J. 
 
 490. In Ohio, where a homicide is proved 
 to have been committed by the defendant, 
 the law devolves upon him the burden of 
 establishing a justification or excuse; but a 
 preponderance of evidence is all that is re- 
 quired for this purpose. Silvus v. State, 22 
 Ohio, jST. S. 90 ; s. c. 1 Green's Grim. Reps. 
 679 ; approved in Weaver v. State, 24 Ohio, 
 N. S. 584. It was held in an early case in 
 that State, that where circumstances of jus- 
 tification or extenuation did not arise out of 
 the proof on the part of the prosecution, 
 they must be proved by the prisoner, or he 
 would be deemed guilty of murder in the 
 second degree. State v. Turner, Wright, 20. 
 A similar rule prevails in Texas. Hamby v. 
 State, 36 Texas, 523 ; s. c. 1 Green's Crim. 
 Reps. 650. 
 
 491. In Mississippi, the following instruc- 
 tion was held correct : " Every killing is 
 presumed malicious, and amounting to mur- 
 der, until the contrary appears from the 
 circumstances of alleviation, excuse, or jus- 
 tification; and it is incumbent upon the 
 defendant to make out such circumstances 
 to the satisfaction of the jury, unless they 
 arise out of the evidence produced against 
 him." Green v. State, 28 Miss. 687 ; approv- 
 ing McDaniel v. State, 8 Smed. & Marsh. 417 ; 
 s. p. Head v. State, 44 Miss. 731. 
 
 492. In Iowa, it is error to charge the 
 jury, on a trial for murder, that if they find 
 that the defendant inflicted the blow upon 
 the deceased that caused his death, the 
 burden of proof is upon the defendant to 
 show that he did it in self-defense ; the de- 
 fendant being entitled to acquittal if tliere 
 is a reasonable doubt that his act was willful. 
 State V. Porter, 34 Iowa, 131; s. c. 1 Green's 
 Crim. Reps. 241. When the evidence relates 
 solely to the original transaction, and foniis 
 ])art of the res gestce, the defendant is not 
 driven totlie necessity of establishing matter 
 m excuse by a preponderance of evidence; 
 
 and proof of killing will not change the 
 burden where the excuse is apparent on the 
 evidence offered by the prosecutor, or arises 
 out of the circumstances attending the 
 homicide. Tweedy v. State, 5 Iowa, 433. 
 
 493. In Florida, it was held that the pre- 
 sumption of malice arises in every instance 
 of homicide, and in every charge of murder, 
 the fact of killing being first proved, the law 
 will imply that it was done with malice ; 
 and all the circumstances of accident, neces- 
 sity, or infirmity, are to be satisfactorily 
 proved by the prisoner, unless they arise out 
 of the evidence produced against him. 
 Holland v. State, 12 Fia. 117. On a trial 
 for murder, the court charged the jury that 
 " when the killing has been proved, the 
 accused must show that it was attended 
 witli circumstances of accident, necessity, or 
 infirmity, to reduce it to a lower grade of 
 crime." Held, that as the instruction did not 
 contain the qualification "unless they arise 
 out of the evidence produced against him," 
 it was erroneous. Dixon v. State, 13 Fla. 
 636 ; s. c. 1 Green's Crim. Reps. 687. But 
 the following instruction was held erro- 
 neous : " The killing being proved, even 
 though nothing else be shown, the offense is 
 murder, the burden of extenuation being 
 then thrown on the accused." Dukes v. 
 State, 14 Fla. 499 ; overruling Gladden v. 
 State, 13 lb. 623, and Dixon v. State, sujira. 
 
 494. In New York, where the judge 
 charged the jury in substance that the law 
 implied motive, and consequently the crime 
 of murder in the first degree, from the proof 
 of killing the deceased by the prisoiier, and 
 that upon this proof they should find him 
 guilty of that crime unless he had given 
 evidence satisfying them that it was man- 
 slaughter or excusable homicide, it was held 
 error; the mere proof that one has been 
 deprived of life by the act of another utterly 
 failing to show the class of homicide to 
 which the killing belongs. Stokes v. People, 
 53 N. Y. 164. 
 
 495. There being evidence tending to 
 show that a murder had been committed, 
 and that the house in which the dead body 
 was had afterward been set on fire to 
 conceal the ofiense, it being doubtful whether
 
 302 
 
 HOMICIDE. 
 
 Murder. Burden of Proof. Weight and Sufficiency of Proof. Charge of Court. 
 
 the accused was in the vicinity of the house 
 -when the fire was set, the court cliarged the 
 jury, that if the prisoner might have been 
 at the scene of tlie fire, " tlie onus was cast 
 upon her to get rid of the suspicion that 
 thus attached to her;" that she was bound 
 to show where she was at the time of the 
 fire. Held error. Bodine v. People, 1 Denio, 
 ■281. 
 
 496. Where in a trial for murder, the 
 killing and identity of the prisoner are 
 proved, it is for him to satisfy the jury 
 beyond reasonable doubt, that he apprehend- 
 ed and had reason to apprehend, that he 
 was in imminent danger of his life, or of the 
 infliction of some great personal injury. 
 Patterson v. People, 46 Barb. 625. 
 
 497. Where on a trial for murder, the 
 <Tefense is that the body found is not that of 
 the person alleged to have been murdered, 
 after frima facie identification of the dead 
 body, the burden of proof is on the prisoner 
 to show that such person is still alive. 
 State V. Vincent, 24 Iowa, 570. 
 
 498. Although on a trial for murder, it is 
 incumbent on the prosecution to prove that 
 the blows inflicted by the prisoner caused 
 the death, yet if it shown that blows were 
 given with a deadly weapon, were followed 
 by alarming symptoms, and shortly after by 
 ■death, the burden is on the prisoner to show 
 that the death resulted from some other 
 cause. U. S. v. Wiltberger, 3 Wash. C. C. 
 515. 
 
 499. Where the defense on a trial for 
 murder is, that the j^risoner was under the 
 age of presumed capacity, the burden of 
 proof is on him. If the age can be as- 
 certained by inspection, the court and jury 
 must determine it. State v. Arnold, 13 
 Ired. 184. 
 
 (Z) Weight and svfficiency of proof. 
 
 500. What required to convict. To 
 
 authorize the jury to find a jjerson guilty of 
 murder, the circumstances must not only be 
 consistent with his guilt, but must exclude 
 every other reasonable hypothesis. Phipps 
 V. State, 3 Cold. 344 ; SchuslerV. State, 2» 
 Ind. 394. 
 
 501. On a trial for murder, it was proved 
 
 that the evening before the homicide, the 
 prisoner was at a certain house, and said 
 that he was going from there to B.'s, and 
 that he came home tliat evening about eight 
 o'clock. After the evidence was closed on 
 both sides, one of the jurors, addressing the 
 public prosecutor, said, " We must have B. 
 here, and you must bring him here;" and the 
 next morning, the cause being still on trial, 
 the same juror made the same request of the 
 court. The prisoner being found guilty, 
 it was held that the non-production of B. 
 was ground for arrest of judgment. State 
 V. Watkins, 9 Conn. 47. 
 
 502. Proof that the prisoner was present, 
 aiding and abetting in a murder, will support 
 an indictment charging him as sole principal. 
 Com. V. Chapman, 11 Cush. 422. But an 
 accessory before the fact to murder cannot 
 be convicted on an indictment charging him 
 as principal. Thornton v. Com. 24 Gratt. 
 657. 
 
 503. Disadvantage of circumstantial 
 evidence. The disadvantage of circum- 
 stantial evidence is, that the jury has not 
 only to weigh the facts, but to derive con- 
 clusions from them, in doing which they 
 may be induced by prejudice or partiality, 
 or by want of due deliberation and correct 
 judgment, to make hasty and false de- 
 ductions. Com. V. Webster, 5 Cush. 295. 
 
 (???) Charge of court. 
 
 504. Duty of court. Where, on a trial 
 for murder, there is a question as to the 
 grade of the ofiense, the court should ex- 
 plain the several grades of homicide to the 
 jury, and leave it to them to determine the 
 grade of which the prisoner is guilty. Craw- 
 ford v. State, 12 Ga. 142; Davis v. State, 
 10 lb. 101. 
 
 505. Where an instruction asked for, on 
 a trial for murder, is framed in the language 
 of the statute, it is improper for the court to 
 refuse to give it. Boles v. State, 9 Smed. 
 & Marsh. 284. 
 
 506. When the evidence on a trial for 
 murder establishes provocation, it is the 
 duty of the court to declare as a matter of 
 law, whether it is sufficient to remove the 
 presumption of malice arising from the fatal
 
 HOMICIDE. 
 
 303 
 
 Murder. 
 
 Charge of Court. 
 
 Verdict. 
 
 use of a deadly weapon. But when the 
 existence and extent of the provocation are 
 to be determined by the jury, the court can 
 only charge them hypothetically in relation 
 to it. U. S. V. Armstrong, 3 Curtis C. C. 
 446. 
 
 507. Where part of an entire instruction 
 asked for would be good, and part bad, the 
 court may decline to give it. Stanton v. 
 State, 8 Eng. 317. 
 
 508. It is not error in the court to refuse 
 to charge the jury that in capital cases they 
 are the judges of the law as well as the fact. 
 Pierson v. State, 12 Ala. 149. 
 
 509. "Withdrawing question from jury. 
 On a trial for murder, the court charged the 
 jury as follows : "If you find the prisoner 
 guilty, it is for you to say from the evidence 
 whether he is guilty of murder in the first, 
 second or third degree. If you find from 
 the evidence that he is not guilty in either 
 degree, you will return a verdict of not 
 guilty." Held error, as it prevented the 
 jury from finding a verdict for manslaughter, 
 and as they did not acquit him, they were 
 compelled to find him guilty of murder. 
 Dukes V. State, 14 Fla. 499. 
 
 510. An instruction that if the deceased 
 was found dead in her bed, with her throat 
 cut, the jury would be authorized to find 
 the existence of all the legal requisites of 
 murder in the first degree is erroneous in ex- 
 cluding from their consideration the ques- 
 tion whether the death was the result of 
 suicide, or resulted from a conflict which 
 would reduce the degree of the homicide. 
 Hall V. State, 40 Ala. 698. 
 
 511. The following instruction was held 
 erroneous: ''If the jury should find from 
 the evidence that the prisoner and the de- 
 ceased armed themselves on account of their 
 quarrel, and both drew, it was quite imma- 
 terial which fired first; there was malice 
 aforethought iu each, and the slayer was 
 guilty of murder." Alford v. State, 33 Ga. 
 303. 
 
 512. It is error to charge the jury on a 
 trial for murder, that they "must infer mal 
 ico " from the killing, when there is some 
 evidence that the killing was accidental. 
 Hampton v. State, 45 Ala. 83. 
 
 513. It is error in the court to tell the 
 jury that there is an appellate court, to 
 which the prisoner can carry his case, if 
 testimony ofi^ered in his behalf had been 
 improperly rejected ; such remark being cal- 
 culated to diminish their sense of responsi- 
 bility, and at the same time to convey the 
 idea that the evidence already before them 
 was not sufficient to acquit. Monroe v. 
 State, 5 Ga. 85. 
 
 {n) Verdict. 
 
 514. May be general. Where in an in- 
 dictment for murder, but one ofifense is 
 charged, though set forth in several counts, 
 if the jury find the defendant guilty of the 
 murder as set forth in either of the counts, 
 they need not find separately on each count, 
 but may return a verdict of guilty generally. 
 Com. v. Des Martean, 16 Gray, 1. 
 
 515. But where an indictment for murder 
 in one count alleged that the killing was 
 caused by beating with a stick, and in an- 
 other count that it was caused by drowning, 
 it was doubted whether the jury could find 
 a general verdict of guilty. In such case, 
 the jury ought to specify under which count 
 they find the defendant guilty. Mary v. 
 State, 5 Mo. 71. 
 
 516. Where under an indictment charging 
 murder in one count, and manslaughter in 
 another count, the jury find the defendant 
 guilty generally, it will be presumed that 
 the verdict is for the highest ofi'ense charged. 
 Bullock v. State, 10 Ga. 46. 
 
 517. The statute of New York defining 
 murder is not a rule of pleading, but a 
 guide to the conduct of the trial and to the 
 instructions to be given to the jury. Under 
 an indictment for murder, in the common- 
 law form, which charges that the killing 
 was with malice aforethought, a general 
 verdict of guilty as charged, is a conviction 
 of murder in the first degree. Kennedy v. 
 People, 39 K Y. 245. 
 
 518. May be for less cflense than that 
 charged. In general, where the indictment 
 includes an offense of an inferior degree, the 
 jury may acquit the defendant of the higher 
 crime and convict him of the lower. State 
 V. Gaflfney, Rice, 431 ; Com. v. Gallic, 7
 
 304 
 
 HOMICIDE. 
 
 Murder. 
 
 Verdict. 
 
 Sei-g. & Rawle, 423; People v. Doe, 1 
 Manninij, 451 ; Brooks v. State, 3 Humph. 
 25; King v. State, 5 How. Miss. 730; Rey- 
 nolds V. State, 1 Kelly, 223 ; Cora. v. Herty, 
 109 Mass. 348 ; s. c. 1 Green's Crim. Reps. 
 194. A verdict finding the defendant guilty 
 of murder in the second degree is an acquit- 
 tal of the higher crime. State v. Belden, 
 33 Wis. 120 ; s. c. 2 Green's Crim. Reps. 647 ; 
 Clem V. State, 42 Ind. 420; s. c. 2 Green's 
 Crim. Reps. 687. 
 
 519. In Connecticut, under an indictment 
 for murder committed hy poison, the jury 
 may find the prisoner guilty of murder in the 
 second degree. State v. Dowd, 19 Conn. 
 388. 
 
 520. It is erroneous, on a trial for murder, 
 to charge the jury that they must find the 
 prisoner guilty of murder, or not guilty. 
 Davis V. State, 10 Ga. 108; Holden v. State, 
 5 lb. 441. 
 
 521. Under an indictment charging that 
 an assault was committed with malice afore- 
 thought, the jury may find the prisoner 
 guilty, although their finding negatives the 
 malice aforethouglit. Sharp v. State, 19 
 Ohio, 379. 
 
 522. On a trial for murder, the jury, under 
 the statute of New York (2 R. S. 725, § 27, 
 Edm. ed.), can convict of any degree of the 
 offense inferior to that charged. Where the 
 instruction restricted the jury in the event 
 of conviction to murder in the first degree 
 or manslaughter in the third degree, and 
 the judge refused to charge that they could 
 convict of murder in the first degree or 
 murder in the second degree, er of any of 
 the degrees of manslaughter, it was held 
 error unless there was no evidence of any 
 other crime than murder in the first degree 
 or manslaughter in the third degree. The 
 proper instruction would have been for the 
 judge to say to the jury that, under the in- 
 dictment, a conviction of the principal of- 
 fense, or of any less degree, was allowable, 
 and then leave it to the jury to apply the 
 facts to the definitions of the various grades 
 of the crime, and say which they thought 
 was sustained. McNevins v. People, 61 
 Barb. 307. 
 
 523. In Missouri, where the indictment 
 
 charged an intent to kill and murder, and 
 the jury found that the intent was "to 
 commit manslaughter," it was held that the 
 variance was fatal, and that the judgment 
 must be arrested. Morman v. State, 24 
 Miss. 55. 
 
 524. Must find degree. On a trial for 
 murder, a verdict of guilty must find the 
 degree of the crime. Hall v. State, 40 Ala. 
 698; and unless it does so the court cannot 
 pass sentence. Robertson v. State, 42 Ala. 
 509. 
 
 525. Under an information charging mur- 
 der in the first degree, a verdict that the 
 prisoner "is guilty as charged," without 
 specifying of what degree of homicide he is 
 foitnd guilty,will not authorize a judgment 
 for murder in the first degree. State v. 
 Reddick, 7 Kansas, 143. In such case, the 
 court should, on motion of the defendant, 
 grant a new trial. State v. Huber, 8 Kansas, 
 447. 
 
 526. Where on a trial for murder, the 
 jury being f)olled, the foreman answered 
 "guilty of murder in the first degree," 
 and each of the other jurors answered 
 simply " guilty," it was held that the ver- 
 dict was insufficient, the statute (of Md. of 
 1809, ch. 138, § 3) requiring the jury to as- 
 certain by their verdict the degree of the 
 crime. Ford v. State, 12 Md. 514. 
 
 527. On a trial for murder, the jury ren- 
 dered the following verdict : " We , the 
 jury, find the defendant not guilty in man- 
 ner and form as charged in the indictment, 
 but we do find her guilty of murder in the 
 second degree." Held that in legal effect it 
 was a verdict of guilty of murder in the sec- 
 ond degree. Freel v. State, 21 Ark. 212. 
 
 528. A verdict in tlie following words : 
 " We, the jury, find the defendant guilty of 
 murder in the first degree, and assess capital 
 punishment,'''' was altered, at the suggestion 
 of the court, so that the last clause read, 
 " and that he must suffer deaths Held good 
 in either form. Bramlett v.State, 31 Ala. 376. 
 
 629. Prisoner must be present. The 
 record must show affirmatively that the 
 prisoner was present during the trial, or it 
 will be error. Scraggs v. State, 8 Smed. & 
 Jlarsh. 722 ; State v. Collins, 8 Ired. 407.
 
 HOMICIDE. 
 
 305 
 
 Murder. 
 
 Verdict. 
 
 Sentence. 
 
 Manslaughter, What Constitutes. 
 
 530. Consent of prisoner. Where one 
 being indicted and convicted of murder, a 
 new trial was granted, and the Legislature 
 repealed the law, and passed another law 
 making the punishment as for manslaughter, 
 without any saving clause as to offenses pre- 
 viously committed, and a new indictment 
 was found for the same act of killing, and 
 the defendant, with a knowledge of all tiie 
 facts, on being arraigned pleaded "guilty," 
 and was sentenced to impi'isonment under 
 the new law — Held that as the conviction 
 appeared to have been the result of a volun- 
 tary contract on the part of the defendant, 
 the court would not disturb it. Sellers v. 
 People, 1 Gilman, 183. 
 
 531. Separation of jury. Where on a 
 trial for murder there has been an improper 
 separation of the jury during the trial, the 
 prisoner, if found guilty, is entitled to the 
 benefit of the presumjjtion that the irregu- 
 larity has been prejudicial to him, and the 
 burden is on the prosecution to show beyond 
 a reasonable doubt that the defendant has 
 sustained no injury therefrom. Monroe v. 
 State, 5 Ga. 85. 
 
 532. Amendment. Where the jury re- 
 turned the following verdict : " We find the 
 prisoner guilty of murder," and the court 
 directed the words " Samuel Yancey " to be 
 interlined after the word " prisoner," it was 
 held that although the amendment was ir- 
 regular, it did not vitiate the verdict. State 
 V. Yancey, 3 Brev. 142. 
 
 533. Acquittal. To justify a verdict of 
 not guilty on a charge of murder, the doul)t 
 must be substantial, and not a mere possi- 
 bility. Com. V. Harman, 4 Barr, 269. 
 
 (o) Sentence. 
 
 534. Interrogating prisoner. On a trial 
 for murder, the record must show that the 
 prisoner was asked if he had anything to 
 say why sentence of death should not be 
 pronounced upon him. Hamilton v. Com. 
 16 Penn. St. 129. 
 
 535. In case of escape. Where a person 
 having l»een convicted of murder and sen- 
 tenced, before the day named for his execu- 
 tion, escaped, and was afterward retaken by 
 the sheriff, and kept in custody until the 
 
 20 
 
 next term of covirt, when he was brought 
 into court, it was held proper for the court 
 to award execution against him on the for- 
 mer judgment. Bland v. State, 2 Carter,. 
 608. 
 
 536. How satisfied. The judgment of 
 death can only be satisfied by execution or 
 pardon ; and where the sentence of death 
 was not carried out in consequence of the 
 decease of the sheriff", the court assigned an- 
 other day for the execution. State v. Kit- 
 chens, 2 Hill, S. C. 612; and see Bland v. 
 State, supra. 
 
 2. Manslaughter. 
 {a) What constitutes. 
 
 537. Meaning and characteristics. Man- 
 slaughter is the unlawful killing of a human 
 being without premeditation or malice. 
 Reynolds v. State, 1 Kelly, 223 ; Beets v. 
 State, Meigs, 106 ; People v. Austin, 1 Par- 
 ker, 154 ; Com. v. Riley, Thach. Crim. Cas. 
 471 ; King v. Com. 2 Va. Cas. 78 ; Com. v. 
 Mitchell, 1 lb. 116; Pennsylvania v. Levin, 
 Addis. 279; Com. v. Biron, 4 Dall. 125; 
 Studstill V. State, 7 Ga. 2; U. S. v. Wilt- 
 berger, 3 Wash. C. C. 515; State v. Zellers, 
 2 Halst. 220; Com. v. Webster, 5 Cusli. 295. 
 
 538. Every unlawful killing from the 
 heat of passion, upon a reasonable provoca- 
 tion, without malice, is manslaughter. Clark 
 V. State, 8 Humph. 671 ; Short v. State, 7 
 Yerg. 513; Jacob v. State, 3 Humph. 493; 
 Young V. State, 11 lb. 200 ; State v. Roberts, 
 1 Hawks, 349 ; Preston v. State, 22 Miss. 
 383. 
 
 539. A killing on a sudden quarrel, to 
 avoid great bodily harm, is manslaughter. 
 State V. Roberts, 1 Hawks, 349. So, where 
 two fight on fair terras, and after an inter- 
 val, blows having been given, one of them, 
 in the heat of passion, draws a deadly 
 weapon and inflicts a fatal injury, it is man- 
 slaughter only. State v. Hildreth, 9 Ired. 
 429. 
 
 540. If A. assault another with a deadly 
 weapon, and kill him, and his intention to 
 assault him with such weapon w^as unknown 
 to B., and he supposed that A.'s object was 
 to assault and beat deceased only, and B. 
 intended to participate in the assauH and
 
 306 
 
 HOMICIDE. 
 
 Manslaughter. 
 
 What Constitutes. 
 
 battery only, and participated in no design 
 to kill, he is guilty of manslaughter only, 
 while A. is guilty of murder. Brown v. 
 State, 38 Ga. 199. 
 
 541. Where, on a trial for murder, the 
 judge having charged the jury that if the 
 prisoner "in the heat of blood upon suffi- 
 cient provocation," threw the deceased down 
 stairs, the oftense was manslaughter, but 
 afterward explained that the word " suffi- 
 cient " meant great and sudden provocation, 
 it was held that there was no ground of ex- 
 ception. State V. Murphy, 61 Maine, 56. 
 
 542. On the trial of an indictment for 
 murder, it was proved that the deceased, 
 who bad boarded in the prisoner's family, 
 went to the prisoner's room for his clothes, 
 when hard words were exchanged between 
 them; that the deceased, having got his 
 clothes, was proceeding down stairs with 
 them under his arm, when the deceased said 
 to the prisoner, " Go with all the money 
 you have got ; has'nt your wife to beg every 
 day ?" To which the prisoner replied, 
 " You go, you rascal; go." At this the de- 
 ceased turned to go up stairs again, when 
 the prisoner said, " Come back, I will fix 
 you." As the deceased advanced to the 
 door of the prisoner's room, it being open, 
 the prisoner seized a rolling pin and struck 
 the deceased three or four blows with it on 
 his head, inflicting a wound from which he 
 died the next day. Held that a conviction 
 of manslaughter was proper. Greschia v. 
 People, 53 III. 295. 
 
 543. The beating or striking of the wife 
 by her husband violently, with the open 
 hand, is unlawful, and if death results there- 
 from, he is at least guilty of manslaughter. 
 Com. V. McAfee, 108 Mass. 458. 
 
 544. It is erroneous for the court to charge 
 the jury that " if a man use a deadly 
 weapon in killing his adversary, the law im- 
 plies malice from its use, except where the 
 killing is excusable," it being tantamount to 
 charging that there is no such thing as man- 
 slaughter where a deadly weapon is used, as 
 the implied malice makes it murder if it is 
 not excusable. Miller v. State, 37 Ind. 432. 
 
 545. Malice, and an intention to kill, are 
 essential in murder, while malice is excluded 
 
 from the crime of manslaughter. The in- 
 tention to kill is also excluded from man- 
 slaughter, where the death results from an 
 unlawful act, designed to effect another ob- 
 ject; but if there arise a sudden quarrel, 
 and one under great provocation instantly 
 kill another intentionally, it is manslaughter. 
 State V. Turner, Wright, 20. 
 
 546. In New York, except by aiding one 
 to commit suicide, or by killing an unborn 
 child by an injury to the mother, to consti- 
 tute manslaughter in the first degree, it must 
 have been committed without a design to 
 effect death. People v. Clarke, 3 Seld. 385. 
 In that State, in order to bring the case 
 within the definition of manslaughter in the 
 first degree, it is necessary to show that the 
 accused was committing, or attempting to 
 commit, some other offense than that of in- 
 tentional violence upon the person killed. 
 People V. Butler, 3 Parker, 377. 
 
 547. In Ohio, although an intent to kill 
 may be an ingredient of manslaughter, yet it 
 is not a necessary ingredient. Montgomery 
 V. State, 11 Ohio, 424. 
 
 548. In Alabama, where an act amounting 
 to manslaughter is voluntarily committed, it 
 is manslaughter in the first degree, without 
 regard to the circumstances of provocation. 
 Oliver v. State, 17 Ala. 587. To constitute 
 the offense, there must be a criminal intent 
 or negligence so gross as to imply it. There- 
 fore, the refusal of the court to charge, when 
 requested by the defendant, that there must 
 be a criminal intent to justify a conviction 
 for manslaughter, is error. Hampton v. 
 State, 45 Ala. 82. 
 
 549. On the trial of an indictment for 
 manslaughter, charging the defendant with 
 assaulting the deceased with a knife, and 
 giving him a mortal wound, the record 
 of conviction for the assault and battery is a 
 conclusive answer to the plea of self-defense. 
 Com. V. Evans, 101 Mass. 25. 
 
 550. Involuntary manslaughter is where it 
 plainly appears that neither death nor any 
 bodily harm was intended, but death is ac- 
 cidentally caused by some unlawful act, or 
 any act not strictly unlawful in itself, but 
 done in an unlawful manner and without due 
 caution. Lee v. State, 1 Cold. Teuu. 62.
 
 HOMICIDE. 
 
 307 
 
 Manslaughter. 
 
 What Constitutes. 
 
 551. From sudden passion. To consti- 
 tute "heat of passion," within the statute 
 of New York defining manslaughter, it is 
 enough that the passions are heated by the 
 acts or conduct of the one upon whom the 
 assault is made, and this state may be 
 caused by words, if naturally calculated to 
 produce it. Wilson v. People, 4 Parker, 619. 
 In Maine, where the deceased created a dis- 
 turbance in the defendant's hotel, persisted 
 in attempts to enter the rooms of female 
 guests, and resisted attempts to put him 
 out, it was held proper for the court to 
 charge that if the defendant, "in the heat 
 of blood and upon sufficient provocation, 
 threw the deceased down stairs, the offense 
 w^as manslaughter." State v. Murphy, 01 
 Maine, 56 ; s. c. 2 Green's Crim. Reps. 457. 
 
 552. In case of homicide, the fact that 
 the deceased whipped the child of the ac- 
 cused would be a sufficient legal provoca- 
 tion to reduce the offense from murder to 
 manslaughter, if, in consequence of such 
 whipping, the accused was suddenly so en- 
 raged as to be incapable of cool reflection, 
 and she inflicted the mortal wound while so 
 enraged, and not in pursuance of any precon- 
 ceived design. Maria v. State, 28 Texas, 698. 
 
 553. Whether a boy who, upon being 
 w^antonly provoked, throws a stone at an- 
 other, and kills him, is guilty of man- 
 slaughter, depends upon all of the circum- 
 stances of the case. Holly v. State, 10 
 Humph. 141. 
 
 554. A. and B. had been drinking together, 
 when A. mounted his horse to ride away ; 
 whereupon B. seized the bridle, and insisted 
 that A. should go back with him and take 
 another drink. A. refused to go back, and 
 attempted to get the bridle loose from B., 
 which he was unable to do. A. got off 
 from his horse and knocked B. down with a 
 gallon jug of molasses, and struck B. twice 
 with the jug afterward, as he lay on the 
 ground apparently lifeless. Held man- 
 slaughter. State v. Ramsey, 5 Jones, 195. 
 
 555. In mutual combat. Killing in a 
 fight upon a sudden (juarrel, the chances 
 being equal, is manslaughter. State v. Mas- 
 sage, 65 N. C. 480. Where, therefore, par 
 ties go into a fight by agreement, upon 
 
 equal terms, each having and using a knife 
 upon a sudden heat of passion, and one of 
 them is killed, it is voluntary manslaughter, 
 and not murder. Gann v. State, 30 Ga. 67. 
 
 556. If two engage in a fight upon a sud- 
 den quarrel, and one kills the other with a 
 deadly weapon, it is but manslaughter; and 
 it is not material which made the first at- 
 tack. State V. Floyd, 6 Jones, 392. 
 
 557. Where a mutual combat is proved, 
 without previous malice on the part of the 
 accused, and that mutual blows were given 
 before the accused drew his knife, and that 
 he then drew it in the heat and fury of the 
 fight, and dealt a mortal wound with the 
 purpose of taking life, it is manslaughter 
 and not murder. State v. McDonnell, 32 
 Vt. 491. 
 
 558. Where two persons fight by mutual 
 consent, without previous malice, and one 
 kills the other with a deadly weapon, it is 
 at least manslaughter. If one asks the other 
 to strike him, intending to use a deadly 
 weapon, and, upon being struck by the other 
 with his fist or hand, kills him with such 
 deadly weapon, he is guilty of murder. If 
 one assail the other with insulting language 
 and blows, and the latter, without trying to 
 avoid a fight, kills the other with a deadly 
 weapon, it is manslaughter. Atkins v. State, 
 16 Ark. 568. 
 
 559. Where, on trial for murder, the de- 
 fense mainly rested upon the fact that the 
 deceased fired upon and wounded the de- 
 fendant with a shot gun, and it was proved 
 that the deceased had abandoned his as- 
 sault and was retiring, and that the defend- 
 ant was in no imminent danger when he 
 inflicted the mortal wound, it was held that 
 a verdict of manslaughter was proper. 
 Evans v. State, 33 Ga. 4. 
 
 560. A quarrel occurring between A. and 
 his wife, B. interfered, whereupon a scuflie 
 ensued between A. and B., in which A. fell 
 over a spinning wheel and hurt himself 
 badly. B. then ran out of the house, and 
 A. seized a gun, followed him to the door, 
 from which B. had retreated fifteen yards, 
 and, while B. was still retreating, shot him 
 dead. Held not murder. Com. v. Mitchell, 
 2 Wheeler's Crim. Cas. 471.
 
 508 
 
 HOMICIDE. 
 
 Manslaughter. 
 
 What Constitutes. 
 
 561. In case of mutual combat, it is not 
 important as to the character of tlie homi- 
 cide, -n-hich gave the first blow. The pre- 
 sumption in regard to all such encounters 
 upon equal terms is, that neither intended 
 to kill or do grievous bodily harm to the 
 other. The testimony of the defendant that 
 he only meant to hit the shoulder, and not 
 the head of the deceased, is competent upon 
 the qii^estion whether the blow was given in 
 the reasonable exercise of his right of self- 
 defense. Com. V. Woodward, 102 Mass. 155. 
 But if one take a deadly weapon into the 
 affray with the design of using it in the fight, 
 and especially if this be unknown to the 
 other party, it will aflford strong evidence of 
 malice. State v. McDonnell, 32 Vt. 491. 
 
 562. The following instruction, on a trial 
 for murder, was held proper: "If the de- 
 fendant sought a difficulty with the deceased 
 for the purpose of killing him, and in the 
 fight did kill him in pursuance of his mali- 
 cious intention, the jury will find the de- 
 fendant guilty of murder. But if the 
 defendant voluntarily got into the difficulty 
 or fight, not intending to kill at the time, 
 and did not decline further fighting before 
 the mortal blow was struck, and then drew 
 his knife and with it struck and killed the 
 deceased, they will find the defendant guilty 
 of manslaughter, although the cutting and 
 killing were done in order to prevent an 
 assault upon him by the deceased, or to 
 prevent the deceased from getting the ad- 
 vantage in the fight. Adams v. People, 47 
 111. 376. 
 
 563. Where, on a trial for manslaughter, 
 it appeared that the prisoner and the de- 
 ceased were fighting, and that the prisoner 
 after striking the deceased several times 
 with the hnndle of a dagger threw it down, 
 it was held that if the prisoner was not de- 
 fending himself from the loss of life or great 
 bodily harm, or just apprehension of it, and 
 the deceased fell upon the dagger in conse- 
 quence of a blow or violence inflicted by the 
 prisoner, and so received the mortal wound, 
 a verdict of guilty might be proper. People 
 V. Goodwin, 1 Wheeler's Crim. Cas. 253. 
 
 561 A. sought B, and threatened his life, 
 and after quarreling, B. struck A. with his 
 
 fist, and they then separated, and A. tried to 
 secure a stick which he could not do, and 
 again stooped to pick up another stick of a 
 dangerous character, when B. stabbed him. 
 Held manslaughter. Allen v. State, 5 Yerg. 
 453. See State v. Hildreth, 9 Ired. 429. 
 
 565. On a trial for murder, the court 
 charged the jury, that if an altercation took 
 place between the jjarties in a grocery where 
 they met, and the deceased invited the de- 
 fendant to go with him into the street and 
 settle the matter, and after gettittg-into the- 
 street, angry words were used by both, and 
 both were ready and willing to fight, and 
 they did fight, and the defendant wovmded 
 the deceased, and he died from the effect of 
 the wounds, the defendant was guilty of 
 manslaughter. Held erroneous, for the reason 
 that the defendant might have gone out for 
 an amicable settlement, and with no hostile 
 intention. CoflFman v. Com. 10 Bush, Ky. 
 495. 
 
 566. Where upon angry words on both 
 sides, between A. and B., the latter ap- 
 proached the former and struck him a violent 
 blow with his fist, and the company separated 
 them, and were taking B. away, when A. 
 within one minute advanced upon B., wha 
 extended his arm to take hold of him, and 
 A. immediately stabbed him with a knife, it 
 was held manslaughter. State v.Yarborough, 
 1 Hawks, 78. 
 
 567. In order to reduce a homicide com- 
 mitted in a second combat, by what occurred 
 at a previous one, both must be deemed as 
 one, or the first must be considered as a 
 sufficient provocation for the second. State 
 V. McCants, 1 Spear, 384. 
 
 568. If the prisoner upon encountering the 
 deceased, unexpectedly, who had confronted 
 her upon her lawful road, accepted the fight 
 when she might have avoided it, the law will 
 not presume the killing to have been upon 
 the old grudge, but upon fresh provocation, 
 and it will be manslaughter. Copeland v. 
 State, 7 Humph. 479. 
 
 569. But in case of mutual combat, in or- 
 der to reduce the offense from murder to 
 manslaughter, it must appear that the con- 
 test was waged upon equal terms, and that 
 no undue advantage was sought or taken by
 
 HOMICIDE. 
 
 309 
 
 Manslaughter. 
 
 What Constitutes. 
 
 either side ; for if such was the case, malice 
 may be inferred, and the killing amount to 
 murder. If sufficient time elajDse between 
 the quarrel and the going out to fight to en- 
 able the blood to cool and passion to sub- 
 side, the killing will be murder and not 
 manslaughter. People v. Sanchez, 24 Cal. 
 17; People v. Smith, 26 lb. 665. 
 -•^70. Where a person arranges with an ad- 
 versary, hours before a fight, that it shall take 
 place, or authorizes his friends to make such 
 arrangements for him, it is not a sudden com- 
 bat within the statute of New York, which 
 provides that homicide is excusable when 
 committed upon a sudden combat, without 
 any undue advantage being taken, and with- 
 out any dangerous weapon being used, and 
 not done in a cruel or unusual manner. Peo- 
 ple V. Tannan, 4 Parker, 514. 
 
 571. It is not proper for the court to say 
 to the jury on a trial for murder, that if the 
 defendant made an unlawful attack, or got 
 into a fight with the deceased upon a sud- 
 den heat, and slew him in the controversy, 
 he would be guilty of manslaughter, thereby 
 depriving the accused of the benefit of his 
 retreat or withdrawal from the contest, al- 
 though the aggressor in the first instance. 
 Hittner v. State, 19 Ind. 48. 
 
 572. By third person interfering in 
 fight. On a trial for murder it was proved 
 that the father of the prisoner and the de- 
 ceased were engaged in a common fist-fight, 
 no weapons being used or threatened on 
 either side, and that while a brother-in-law 
 of the prisoner was in the act of separating 
 the combatants, the prisoner, who was a lad 
 fourteen years of age, ran up and shot the 
 deceased. Held that the evidence was suffi- 
 cient to sustain a verdict of voluntary man- 
 slaughter. Irl)y v. State, 33 Ga. 496. 
 
 573. Upon provocation. The provocation 
 which should have the effect to reduce vol- 
 untary homicide to the degree of man- 
 slaughter must be sudden and great. Flan- 
 agan V. State, 46 Ala. 73. 
 
 574. To mitigate a homicide to man- 
 slaugliter, the excited and angry condition 
 of the person committing the act must have 
 been caused by some insult, provocation, or 
 injury which would naturally and instantly 
 
 produce in the minds of men, as ordinarily 
 constituted, a high degree of exasperation. 
 Preston v. State, 22 Miss. 383 ; Campbell v. 
 State, 23 Ala. 44. 
 
 575. Provocation by words only, however 
 irritating, or by contemptuous or insulting 
 actions or gestures, without an assault upon 
 the person, will not mitigate an intentional 
 homicide so as to reduce it to manslaughter. 
 Com. V. Webster, 5 Cush. 395 ; Beauchamp 
 V. State, 6 Blackf 299 ; State v. Tackett, 1 
 Hawks, 310 ; People v. Butler, 8 Cal. 435 ; 
 State V. Starr, 38 Mo. 370. And the same is 
 the case as to information communicated 
 by others, and the killing of a person be- 
 cause of it. Fralich v. People, 65 Barb. 48 ; 
 s. c. 1 Green's Crim. Reps. 714. 
 
 576. A slight assault will not always ex- 
 tenuate a homicide to manslaughter without 
 reference to the character of the weapon 
 with which the fatal wound was inflicted. 
 To have that effect, there must have been a 
 reasonable proportion between the mode of 
 resentment and the provocation. Nelson v. 
 State, 10 Humph. 518. 
 
 577. Mere threats, unaccompanied by some 
 demonstration from which the accused might 
 have reasonably inferred that the deceased 
 intended to execute them, will, not justify 
 the homicide, or reduce it from murder to 
 manslaughter. Johnson v. State, 37 Texas, 
 758; s. p. Dawson v. State, 33 lb. 431 ; over- 
 ruling Pridgen v. State, 31 lb. 430. And 
 the threat, to justify a homicide, must have 
 been to take life, and have been brought to 
 the knowledge of the slayer. Myers v. State, 
 33 Texas, 535. 
 
 578. As to what provocation is sufficient 
 to reduce the offense from murder to man- 
 slaughter, is a question of law. State v. 
 Dunn, 18 Mo. 499. 
 
 579. In resisting unlawful arrest. If a 
 person is unlawfully arrested, and in resist- 
 ing the arrest, or in attempting to escape, 
 takes the life of the one so arresting him, it 
 is manslaughter. Com. v. Carey, 13 Cush. 
 346; Com. v. McLaughlin, lb. 615. 
 
 580. If process be defective in the frame 
 of it, as if there be a mistake in the name of 
 the person on whom it is to be executed, or 
 if the name of such person or of the officer
 
 310 
 
 HOMICIDE. 
 
 Manslaughter. 
 
 What Constitutes. 
 
 be inserted witliout authority, or after the 
 issuing of the process, or if the officer exceed 
 liis authority, the killing of the officer by 
 the party would be manslaughter only. Raf- 
 ferty v. People, 69 111. 111. 
 
 581. The mere fact that an attempted ar- 
 rest is unlawful, does not necessarily reduce 
 the killing of the officer to manslaughter. 
 In such case, the party sought to be arrested 
 may use such reasonable force proportioned 
 to the injury attempted upon him, as is nec- 
 essary to eflect his escape, but no more ; and 
 he cannot do this by using, or offering to 
 use, a deadly weapon, if he has no reason to 
 apprehend a greater injury than a mere un- 
 lawful arrest. If the officer had the right to 
 make the arrest, and employed no more force 
 than was reasonably necessary for that pur- 
 pose, the killing him by the party sought 
 to be arrested would be murder, although 
 done in the heat of blood. Galvin v. State, 
 6 Cold. Tenn. 283. 
 
 582. Where a homicide is committed in 
 resisting an illegal arrest, it is manslaughter 
 in the absence of proof of express malice, 
 although a deadly weapon was used. Rob- 
 erts V. State, 14 Mo. 138; Jones v. State, lb. 
 409. 
 
 583. "When a person under color of law 
 unlawfully arrests another, and one not a 
 stranger in endeavoring to rescue him, or to 
 prevent his unlawful arrest, kills the ag- 
 gressor, it is manslaughter. Com. v. Drew, 
 4 Mass. 391. 
 
 584. In resisting trespass. If, in re- 
 sisting a trespass, the weapon and manner 
 of using it were not likely to kill, it will be 
 manslaughter. Com. v. Drew, supra. 
 
 585. By cruelty. In New York, where a 
 homicide is committed in a cruel and unu- 
 sual manner, and in the heat of passion, 
 without a design to cause death, it is man- 
 slaughter in the second degree. People v. 
 Johnson, 1 Parker, 291. 
 
 586. By killing unborn child. The will- 
 ful killing of au unborn child is not man- 
 slaughter, except as rendered so by statute ; 
 and in New York, to constitute the offense, 
 the child must have quickened. "Where 
 therefore, an indictment for causing the 
 death of an unborn child by an attempt to 
 
 produce a miscarriage did not allege that 
 the female was pregnant with a quick child, 
 and there was no evidence that the child 
 had quickened, it was held error in the 
 judge to charge the jury that an abortion in 
 any stage of pregnancy was manslaughter in 
 the second degree. Evans v. People, 49 N. 
 Y. 86. 
 
 587. Through ignorance. Although 
 where a person calling himself a physician, 
 through ignorance, causes the death of his 
 patient by grossly harsh and improper treat- 
 ment, he is not in general guilty of man- 
 slaughter (Com. V. Thompson, 3 "Wheeler's 
 Crim. Cas. 312), yet if he have so much 
 knowledge of the fatal tendency of the pre- 
 scription that it may be reasonably presumed 
 that he administered the medicine from an 
 obstinate, willful rashness, and not with an 
 honest intention and expectation of effect- 
 ing a cure, he is guilty of manslaughter at 
 least, though he might not have intended 
 any bodily harm to the patient. Rice v. 
 State, 8 Mo. 561. 
 
 588. From omission. It is not necessary 
 that the fatal result should have s^Drung 
 from an act of commission. If the defend- 
 ant omitted any act incumbent upon him, 
 from which death resulted to the deceased, 
 where there was no malice, it is man- 
 slaughter; and if there was malice, it is 
 murder. State v. Shelledy, 8 Iowa, 477 ; 
 State V. O'Brien, 3 Vroom (32 N. J.) 169. 
 
 589. Through recklessness. Where one 
 fires a gun recklessly or heedlessly, he will 
 not be excused ; and his offense will be at 
 least manslaughter, though the weapon was 
 pointed in the range of the deceased by ac- 
 cident, with no design or intention to wound 
 or kill. If the act was attended with prob- 
 able mortal consequences to the deceased, 
 or persons generally, the crime is murder or 
 manslaughter, according to the degree of de- 
 liberation. State V. Vance, 17 Iowa, 138. 
 
 590. Where laudanum was administered 
 by a female servant, without any deliberate 
 or mischievous intention, but heedlessly and 
 incautiously, to an infant, causing its death, 
 it was held manslaughter only, although 
 given to the child contrary to her master's 
 orders, and for the purpose of enabling her
 
 HOMICIDE. 
 
 311 
 
 Manslaughter. 
 
 What Constitutes. 
 
 Indictment. 
 
 to carry on illicit intercourse with a man. 
 Ann V. State, 11 Humph. 150. 
 
 591. Deaths caused by the burning of a 
 steamboat while racing, which burning re- 
 sulted from the making of excessive fires 
 for the purpose of creating an enormous 
 pressure of steam — held not to be murder, 
 but manslaughter in the first degree. Peo- 
 ple V. Sherifl' of "Westchester, 1 Parker, 659. 
 
 592. From negligence. On a trial for 
 murder, it is not erroneous for the court to 
 charge the jury that if they found that the 
 deceased consented to have sexual connec- 
 tion with the defendant H., but in conse- 
 quence of her condition he was unable to 
 effect a penetration, and she consented that 
 the defendants might use artificial means to 
 perforate the hymen, and they did so, and 
 thereby gave her a wound that caused her 
 death, though not intending it, it would be 
 manslaughter if they were guilty of such 
 carelessness and negligence as endangered 
 .her life or personal safety. State v. Center, 
 35 Vt. 378. 
 
 593. Conditions printed on the back of a 
 railroad ticket will not relieve the company 
 of their liability under a penal statute (Genl. 
 Stats, of Mass. ch. 63, § 97), for gross negli- 
 gence. Com. V. Vt. and Mass. R. R. Co. 108 
 Mass. 7. 
 
 594. Where the holder of a season ticket 
 on a railroad sells merchandise on the cars 
 upon the payment to the company of a con- 
 sideration for the pri\nlege, a portion of 
 which consideration consists in furnishing 
 water to passengers, he is a passenger and 
 not a servant, and an indictment may be 
 maintained to recover a fine for his death 
 through the negligence of the servants or 
 agents of the company. Ibid. 
 
 595. By command of superior. On the 
 trial of an indictment for manslaughter, 
 against the master and mate of a steamer, 
 for a loss of life occasioned by a collision, 
 it was proved that both of the defendants 
 were in the wheelhouse previous to and at 
 the time of the occurrence; and they moved 
 that the court direct the jury to return a 
 verdict of not guilty as to the mate, on the 
 ground that he must be presumed to have 
 acted under the orders of tlie master. Held 
 
 that the motion was properly denied, for the 
 reason that the commands of the master 
 would be no justification. State v. Sutton, 
 10 R. I. 159 ; s. c. 2 Green's Crim. Reps. 370. 
 
 (b) Indictment. 
 
 596. Nature and requisites. In New 
 
 York, an indictment for manslaughter in 
 the common-law form is good, and the 
 prisoner may be convicted of the offense in 
 any degree. People v. Butler, 3 Parker, 
 377. 
 
 597. In New Hampshire, although an in- 
 dictment against a railroad company for 
 negligently causing the death of a person, 
 is governed by the principles of the criminal 
 law, yet the proceeding in its main features 
 is a civil action for the recovery of damages. 
 State V. Manchester, &c. R. R. 52 New 
 Hamp. 528. 
 
 598. In Massachusetts, under the statute 
 providing that in case of the loss of life of a 
 passenger by the negligence of a common 
 carrier, a fine is to be recovered to the use 
 of the executor or administrator of the de- 
 ceased person, for the benefit of the widow 
 and heirs at law, the indictment must al- 
 lege that the deceased left a widow and 
 child or heirs at law (Stat, of 1840, § 80), 
 Com. V. Eastern R. R. Co. 5 Gray, 473, 
 
 599. Averment of place. An indictment 
 against a steamboat company for the loss of 
 life of a passenger through negligence, al- 
 leging that A. resided and lost his life in 
 Boston, and that B. , otherwise called B, the 
 younger of that name, of Boston, "has 
 been duly appointed and now is adminis- 
 trator of said A,," is sufficient. Com. v. 
 East Boston Ferry Co, 13 Allen, 589. 
 
 600. Where a statute imposes a fine 
 against common carriers for loss of life 
 through negligence, and gives the fine to the 
 use of the executor or administrator of the 
 person killed, for the benefit of his widow 
 and heirs, the indictment must allege that 
 administration has been taken out in the 
 State. Com. v. Sanford, 12 Gray, 174. 
 
 601. Where there are several defend- 
 ants. In an indictment against several for 
 manslaughter, in stabbing the deceased with 
 a knife, it is proper to allege the use of the
 
 312 
 
 HOMICIDE. 
 
 Manslaughter. 
 
 Indictment. 
 
 Trial. 
 
 Evidence. 
 
 knife by all who were present aiding and 
 abetting; and some of the defendants may 
 be convicted of manslaughter, and others 
 of simple assault. Com. v. Roberts, 108 
 Mass. 290. 
 
 602. Description of wound. An indict- 
 ment for manslaughter need not particularly 
 describe the wound. A statement of its 
 general nature and locality, and of the in- 
 strument or means by which it was inflicted, 
 is sufficient ; as that the death resulted from 
 one mortal wound given on the left side of 
 the head of the deceased, by a blow with a 
 whipstock. Com. v. Woodward, 102 Mass. 
 155. 
 
 603. Averment of death. Unless an in- 
 dictment for manslaughter alleges that the 
 death was caused by the act of the defend- 
 ant, it will be fatally defective. State v. 
 Wimberly, 3 McCord, 190. 
 
 604. Technical averments. The word 
 " feloniously," in an indictment for man- 
 slaughter, may be rejected as surplusage. 
 Ibid. 
 
 605. Under the act of Congress, declaring 
 that the officers and others employed on any 
 steamboat, by whose "misconduct, negli- 
 gence or inattention the life or lives of any 
 person or persons on Ijoard " shall be de- 
 stroyed, shall be deemed guilty of man- 
 slaughter, willful negligence or willful mis- 
 conduct need not be averred or proved. 
 U. S. V. Warner, 4 McLean, 463. 
 
 ((•) Trial. 
 
 606. Incase of joint indictment. Where 
 two persons are jointly indicted, and the 
 prosecution intends to put in evidence the 
 confession of one of them, they should be 
 tried separately. Com. v. James, 99 Mass. 
 438. 
 
 {d) Ei-idence. y 
 
 607. Essential to conviction. Although, 
 when a homicide is proved to have been 
 committed by the prisoner, the law, in the 
 absence of any jiroper explanation, treats the 
 crime as murder, yet manslaughter can only 
 be established by testimony. Therefore, a 
 verdict of manslaughter, without proof of 
 anv of the facts and circumstances of the 
 
 killing, is erroneous. Hague v. State, 34 
 Miss. 616. 
 
 608. Nature of act. On the trial of an 
 indictment which alleges that the killing 
 was willful, it is not necessaiy to prove that 
 allegation. When there is any evidence 
 which, if believed, will warrant the jury in 
 finding that the defendant acted under ap- 
 prehension of bodily harm, though it comes 
 from the defendant alone, and is in conflict 
 with all the other evidence in the case, he is 
 entitled to testify that he did in fact act 
 under such an apprehension. Com. v. Wood- 
 ward, 1C2 Mass. 155. But evidence tending 
 to prove the great muscular strength of the 
 deceased, and that he was in the habit of 
 seizing persons in a peculiar manner by the 
 throat, is not admissible. Com. v. Mead, 12 
 Gray, 167. 
 
 609.' Under an indictment for manslaugh- 
 ter, against the master of a steamboat, in 
 causing the loss of life by misconduct, negli- 
 gence, or inattention, the prosecution need 
 not prove willful mismanagement on the 
 part of the accused. U. S. v. Farnham, 2 
 Blatchf 528. 
 
 610. On the trial of an indictment for 
 manslaughter, committed on board of an 
 American vessel on the high seas, or in a 
 foreign port, the prosecution must prove 
 that the vessel belonged to a citizen of the 
 United States. U. S. v. Imbert, 4 Wash. 
 C. C. 702. 
 
 611. Proof of injury. An indictment for 
 manslaughter charged that the defendant 
 struck, kicked, beat, bruised and wounded 
 the deceased in and upon her head and 
 body, and threw her upon the floor. The 
 proof was that he struck her with his open 
 hand, upon her cheek, and about her temple, 
 and that she fell on the floor and did not 
 speak afterward. Held that the variance 
 was not material. Com. v. McAfee, 108 
 Mass. 458. 
 
 612. Proof of passion. Where the homi- 
 cide is claimed to have been committed in 
 the heat of passion, the proper inquiry is not 
 whether the suspension of reason continued 
 down to the moment the mortal blow was 
 given, but did the prisoner cool, or was 
 there time for a reasonable man to have
 
 HOMICIDE. 
 
 313 
 
 Manslaughter. 
 
 Evidence. 
 
 cooled, and this must depend upon all the 
 facts and circumstances. State v. McCants, 
 1 Spear, R34. The question of " cooling 
 time " is one of law, to be decided by the 
 court. State v. Moore, 69 N. C, 267 ; s. c. 1 
 Green's Crim. Reps. 611. 
 
 613. Where, in case of mutual combat, a 
 question arises whether there has been time 
 for excited passions to subside, the inquiry 
 always takes this form : Whether there was 
 suflScient time to cool ; and not whether, in 
 point of fact, the defendant remained in a 
 state of anger. Peojile v. Sullivan, 3 Seld. 396. 
 
 614. Where an assault is returned by the 
 person attacked with disproportionate vio- 
 lence, and the other, in the transport of pas- 
 sion and without malice, kills his adversary, 
 the proper inquiry is whether a sufBcient time 
 had elapsed after the violent assault upon 
 him, and before he gave the mortal wound, 
 for passion to subside and reason to resume 
 her sway. State v. Hoover, 4 Dev. & Batt. 
 365. And see Nelson v. State, 10 Humph. 
 518. 
 
 615. The following instruction was held 
 erroneous, as calculated to mislead the jury 
 relative to the proof required to mitigate 
 the offense: That if the prisoner and the 
 deceased engaged in a fight, neither having 
 a deadly weapon to be used in the conflict, 
 but in the progress of the combat, the pris- 
 oner's reason being temporarily dethroned, 
 and acting on the passion thus aroused, he 
 slew the deceased, the killing would be 
 manslaughter. Haile v. State, 1 Swan, 248. 
 And see Young v. State, 11 Humph. 200. 
 
 616. Where an indictment against a father 
 for killing his son, by striking him on the 
 head with a chisel, charged that the offense 
 was committed in the heat of passion, and 
 without the design of effecting death, it was 
 held not competent to prove that the ac- 
 cused had previously been in the habit of 
 striking his son and knocking him down, 
 the question of guilty intent not being in 
 the case. Albricht v. State, 6 Wis. 74. 
 
 617. Admissions and declarations. On 
 a trial for manslaughter committed in effect- 
 ing an aljortion, it was proved by a witness 
 that she went to the i^risoncr's place of 
 business ; that slie stated to one D,, in the 
 
 prisoner's presence, that she was going to 
 see a friend of hers who was in trouble ; 
 that D. asked her what trouble, to which 
 she replied that her friend was pregnant; 
 and that the prisoner then said that " he 
 would relieve her friend for twenty-five 
 dollars." It was further shown that the 
 witness then went to the residence of the 
 deceased, and that they immediately re- 
 turned to the prisoner, and that he thereupon 
 operated on the deceased and produced the 
 abortion. Held proper to show the conver- 
 sation on the subject, but not its details, 
 between the witness and the deceased. Hunt 
 V. People, 3 Parker, 509. 
 
 618. On the trial of a husband and wife 
 for manslaughter, persons who overheard a 
 private conversation between them in rela- 
 tion to the homicide may testify to it. Com. 
 V. Griflan, 110 Mass. 181. 
 
 619. On the trial of an indictment for 
 manslaughter, in stabbing deceased with a 
 knife, it was held that evidence that imme- 
 diately after the assault on the deceased, the 
 exclamation of a third person whom they 
 attacked that they had a knife, was hearsay 
 and inadmissible. Com. v. Roberts, 108 
 Mass. 296. 
 
 620. On the trial of an indictment for 
 manslaughter, the declarations of the de- 
 ceased, uttered several hours after the as- 
 sault was committed, are not admissible as 
 evidence in favor of the j)risouer. Com. v. 
 Densmore, 12 Allen, 535. 
 
 621. Opinion. On a trial for manslaugh- 
 ter, in attempting to destroy an unborn 
 child, a woman testified to having been sent 
 for by the defendant on the day before the 
 deceased died, to wash her and change her 
 clothes; that there were certain appearances 
 on the bed and clothing, and a peculiar 
 offensive odor diflerent from any she had 
 ever before noticed, though she had noticed 
 something like it. Ildd proper as tending 
 to show the condition of the deceased. But 
 the same witness having, without proof of a 
 minute examination of the person of the 
 deceased, or any facts on which she based 
 her opinion, or of any knowledge or expe- 
 rience which might enable her to form an 
 opinion, been allowed to answer the follow-
 
 \u 
 
 HOMICIDE. 
 
 Manslaughter. Evidence. Verdict. Justifiable Homicide. In Self-defense. 
 
 ing question : " Will you state what, in your 
 opinion, was the matter with the deceased 
 at that time ?" it was held error. People v. 
 Olmstead, 30 Mich. 431. 
 
 622. Proof of motive. On the trial of an 
 indictment for manslaughter, it appeared 
 that the prisoner was a clerk of a hotel at 
 which the deceased was a hoarder, but not 
 a lodger ; that the former, about two o'clock 
 in the morning, saw a man who proved to 
 be the deceased, in the act of getting out of 
 a window on the ground floor of the hotel ; 
 and that the prisoner fired at and mortally 
 wounded the deceased. The evidence tended 
 to show that the prisoner knew who the de- 
 ceased was when he fired at him ; that in the 
 room into which the window opened was a 
 woman ; that for the favors of this woman 
 the deceased and the prisoners were rivals; 
 and that the deceased was retiring from a 
 visit to the woman when he was shot. Held 
 that the prisoner was properly convicted. 
 People V. Walsh, 43 Cal. 447. 
 
 623. Where A. has a grudge against B., and 
 meeting accidentally and quarreling, B. at- 
 tacks A. with a deadly weapon, whereupon A. 
 shoots B., the motive cannot be referred to the 
 previous grudge. State v. Johnson, 2 Jones, 
 247; State v. Ta-Cha-Na-Tah, 64 N. C. 614. 
 
 624. Burden of proof. On a trial for 
 manslaughter, the court charged the jury 
 that if they were convinced beyond a reason- 
 able doubt that the death of the person killed 
 was occasioned by the shot fired by the 
 prisoner, then the prosecuticm had made out 
 the killing in the manner charged in the 
 indictment ; that all killing was presumed to 
 be unlawful ; and that when the fact of the 
 killing was established, it devolved on the 
 party who committed the act to justify it. 
 Held error; that the jury should have been 
 instructed in substance that ujion all the 
 evidence they must find, beyond a reasonable 
 doubt, that the crime charged was commit- 
 ted by the prisoner, in order to warrant his 
 being found guilty. State v. Patterson, 45 
 Vt. 308 ; s. c. 1 Green's Crim. Reps. 490 ; 
 approving State v. McDonnell, 32 Vt. 538. 
 
 (e) Verdict. 
 
 625. In case of proof of higher offense. 
 
 Wliere, under an indictment for manslaugh- 
 ter, it appears that the offense was murder, 
 the prisoner may, notwithstanding, be found 
 guilty of manslaughter. Com. v. McPike, 
 3 Cush. 181. 
 
 626. Is not restricted. The following 
 instruction was held erroneous: " If you 
 find the defendant guilty of manslaughter, 
 it must be of voluntary manslaughter. Your 
 verdict must find the defendant guilty of 
 murder, of voluntary manslaughter, or not 
 guilty." Holder v. State, 5 Ga. 441. 
 
 627. Effect. A verdict of guilty of man- 
 slaughter on a trial for murder, operates as 
 an acquital of every crime of a higher grade 
 of which the prisoner might have been con- 
 victed under the indictment. Reynolds v. 
 State, 1 Kelly, 222 ; Hunt v. State, 23 Ala. 
 44; People v. Knapp, 26 Mich. 112; s. c. 1 
 Green's Crim. Reps. 252. 
 
 628. A person was indicted for murder, 
 and found guilty of manslaughter, and the 
 indictment afterward quashed. The statute 
 of limitations having become a bar to an in- 
 dictment for manslaughter, it was held that 
 the prisoner must be discharged. Campbell 
 V. State, 23 Ala. 44. 
 
 3. Justifiable homicide. 
 {a) In self-defense. » . 
 
 629. Must have been overt act. To jus- 
 tify a homicide, it is not sufficient that the 
 deceased had the means at hand to effect a 
 deadly purpose, but he must have indicated, 
 by some act at the time of the killing, a 
 present intention to carry out such purpose. 
 A mere trespass would not indicate such an 
 intention. Harrison v. State, 24 Ala. 67; 
 Harris v. State, 47 Miss. 318; s. c. 1 Green's 
 Crim. Reps. 001. 
 
 630. Although A. has reasonable grounds 
 to believe, and does believe, that B. intends 
 to kill him the first time they meet, and they 
 afterward meet armed, and near enough for 
 B. to carry out his intention ; yet, if B. then 
 makes no demonstration of carrying out his 
 intention, A. will not be justified in kill- 
 ing him; and if B. makes such demonstra- 
 tion, but with means and under circum- 
 stances such as to render it obviously un- 
 necessary for A. to take his life in order to
 
 HOMICIDE. 
 
 315 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 protect himself, A. will not be justified in 
 killing him. Hinton v. State, 24 Texas, 
 454. 
 
 631. It is not enough to excuse a homicide, 
 that the defendant honestly believed that 
 his own life was in danger, or that he was in 
 danger of great bodily harm jfrom the de- 
 ceased at some future time; but he must 
 have believed that the danger was imminent 
 at the time. There must have been words 
 or overt acts at the time clearly indicative of 
 a present purpose on the part of the de- 
 ceased to take his life, or do him great 
 bodily harm. Williams v. State, 3 Heisk. 
 376; s. c. 1 Green's Crim. Eejis. 255. 
 
 632. To excuse a homicide on the ground 
 of self-defense, the danger of death or great 
 bodily harm must either be real or honestly 
 believed to be so at the time, and upon suf- 
 ficient grounds. Previous threats, or even 
 acts of hostility, however violent, will not 
 of themselves excuse the slayer; but there 
 must be words or overt acts at the time in- 
 dicative of a present purpose to do the in- 
 jury. Rippy V. State, 3 Head, 217. 
 
 633. Fear, though grounded upon the fact 
 that one lies in wait to take a party's life, or 
 upon the threats of a desj^erate and deter- 
 mined enemy, will not, in the absence of 
 actual danger at the time, justify the party 
 so endangered or threatened, in killing his 
 adversary. But when threats have been ac- 
 companied by an attempt to kill, and the 
 party in danger believes, and has the right 
 to believe, that he can escape in no other 
 way except by killing his foe, he is not 
 obliged, when he casually meets him, to fly 
 for safety, nor to await his attack. Bohan- 
 non V. Com. 8 Bush, 481. 
 
 634. On a trial for murder, it was proved 
 that the deceased had threatened to take the 
 life of the defendant, and that these threats 
 were communicated to the latter previous to 
 the killing; but it did not appear that the 
 threats were followed by any overt act. 
 Held that the mere apprehension of danger 
 was not sufficient to justify the homicide. 
 People V. Lombard, 17 Cal. 316. 
 
 635. The mere belief that a person has 
 formed a design to take my life, without 
 some positive act on his part, will not justify 
 
 me in taking his life. State v. Bradley, 6 
 La. An. 554 ; State v. Mullen, 14 lb. 570 ; 
 State V. Swift, lb. 827. But if there be an 
 actual physical attack of such a nature as 
 to afford reasonable ground to believe that 
 the design is to destroy life, or to commit a 
 felony upon the person assaulted, the killing 
 of the assailant will be justifiable homicide 
 in self-defense. State v. Chandler, 5 La. 
 An. 489. 
 
 636. To excuse a homicide on the ground 
 of self-defense, the apprehensions of the ac- 
 cused must have been excited by an actual 
 assault. Held, therefore, not error to refuse to 
 charge that "if the defendant had a reason- 
 able ground to believe, from appearances, 
 that his life was then and there in danger, 
 and killed the deceased to save his own life, 
 he is justified, although he was not then at- I 
 tacked." State v. King, 22 La. An. 454. \ 
 
 637. Must have been apparent dangefT 
 Whether a person attacked by another is 
 justified in employing, in the first instance, 
 such means of resistance as to produce death 
 will depend upon the nature of the attack 
 and the circumstances under which it was 
 committed. Young v. State, 11 Humph. 
 200. Where the prisoner did nothing more 
 than defend herself against a violent assault 
 with a hickory stick three and a half feet 
 long, and between three and four inches 
 thick, it was held that the killing was justi- 
 fiable. Copeland v. State, 7 Humph. 479. 
 But where the prisoner, upon being attacked 
 by the deceased in the street, instantly stab- 
 bed him in five places, and it was not shown 
 that when the prisoner inflicted the mortal 
 wounds he was in danger of great bodily 
 harm, or that he had a reasonable apprehen- 
 sion of such danger, it was held that the 
 homicide was not excusable. Stewart v. 
 State, 1 Ohio, N. S. 66. 
 
 638. Rule in New York. The law of 
 New York, as interpreted in Shorter v. Peo- 
 ple, 3 Comst. 193, is, that one who is with- 
 out fault himself when attacked by another 
 may kill his assailant, if the circumstances 
 are such as to furnish reasonable ground for 
 apprehending a design to take his life or to 
 do him some great personal injury, and there 
 is imminent danger that such desifrn will be 
 
 /
 
 S\Q 
 
 HOMICIDE. 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 V 
 
 accomplished, although the appearances 
 "were in fact fiilse, and there was no such 
 dedgu. Patterson v. People, 46 Barb. 625. 
 
 639. Where the evidence is offered to 
 show that the prisoner killed the deceased 
 in self-defense, and that he feared the de- 
 ceased intended to attack him, the rule is 
 that the prisoner must have liad. reasonable 
 ground for believing the deceased intended 
 to take his life or to do him bodily harm, and 
 that there was reasonable ground for suppos- 
 ing the danger imminent that such design 
 would be accomplished, although it should 
 afterward appear that no such design existed. 
 People V. Lamb, 54 Barb. 342 ; 2 Keyes, 360. 
 
 640. To justify a person in killing another 
 in self-defense, the person must have been 
 attacked, and. have reasonable ground to 
 suppose that the object of the attack was to 
 kill him or to do him great bodily harm, 
 and he should have been unable to withdraw 
 himself from this imminent danger, and 
 therefore have been compelled to kill his 
 assailant to protect himself. A man will not, 
 liowever, be responsible for a mistake in sup- 
 jjosing a deadly design which does not 
 exist. But he must be actually assailed, and 
 show reasonable ground for supposing that 
 his only resource is to kill his assailant. 
 People V. Cole, 4 Parker, 35. 
 
 641. On a trial for murder, a charge to 
 the jury that if they found that the prisoner 
 was justified in defending himself, and car- 
 ried that protection further than was neces- 
 saiy for his defense, he was guilty of man- 
 slaughter, was held erroneous, the true 
 -(Question for the jury being, whether the 
 
 -prisoner had reasonable ground to believe 
 himself in danger of great bodily harm or 
 loss of life, and not whether such danger 
 actually existed. Uhl v. People, 5 Parker, 
 410. 
 
 642. Where it was proved on the trial 
 that the accused was followed in the night 
 by an excited mob, threatening his life ; that 
 he was near sighted, and while trying to get 
 away he was seized by an officer, whom, 
 after telling to let go, and the officer's re- 
 fusal to do so, he shot and killed ; and the 
 only proof that the officer was known to be 
 such was the fact that he had on his uni- 
 
 form, it was held that the evidence was in- 
 sufficient to sustain a conviction for murder. 
 Yates V. People, 32 K Y. 500. 
 
 643. In Pennslyvania. To excuse homi- 
 cide on the ground of self-defense, it must 
 appear that the slayer has no other possible, 
 or at least probable means of escaping, and 
 that his act was one of necessity. To justify 
 the killing of an assailant, it must be done 
 under a reasonable apprehension of loss of 
 life or of great bodily harm, and the danger 
 must appear so imminent at the moment of 
 the assault as to present no alternative of 
 escaping its consequences but by resistance. 
 Then the killing may be excusable, even if 
 it turn out afterward that there was no 
 actual danger. Logue v. Com. 38 Penn. St. 
 265. If the assailant's object appears to be 
 only to commit an ordinary assault and 
 battery, it requires a great disparity of size 
 and strength on the part of the slayer, and 
 a very violent attack on the part of his as- 
 sailant, to excuse the taking of the assail- 
 ant's life with a deadly weajjon. Com. v. 
 Drum, 58 lb. 9. 
 
 644. In Missouri. To justify a homicide, 
 the defendant must have good grounds to 
 apprehend immediate danger. State v. 
 O'Connor, 31 Mo. 389. When a person ap- 
 prehends that some one is about to do him 
 great bodily harm, and there is reasonable 
 ground for believing the danger imminent, 
 he may kill his assailant, if that be necessary 
 to avoid the apprehended danger, and the 
 killing will be justifiable, although it may 
 afterward turn out that the appearances 
 were false. State v. Sloan, 47 Mo. 604; State V 
 
 V. Keane, 50 lb. 357. ^^' 
 
 645. But evidence that the deceased was a 
 dangerous, vindictive man, and had threat- 
 ened the defendant, without .proof that he 
 had so conducted as to cause a well- 
 grounded belief in the mind of the defend- 
 ant of imminent bodily danger, will not 
 excuse the homicide. State v. Harris, 59 
 Mo. 550. 
 
 646. In Kentucky. A reasonable belief 
 on the part of the defendant that the person 
 wounded or killed by him intended to do 
 him bodily harm will excuse the act on the 
 ground of self-defense. Eapp v. Com. 11 
 
 r
 
 HOMICIDE. 
 
 317 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 B. Mon. 614; Meredith v. Com. 18 lb. 49; 
 Payne v. Com. 1 Mete. Ky. 370. There 
 need not have been actual impending 
 danger. If the defendant believed, and 
 had reasonable ground to believe, that there 
 was immediate impending danger, and bad 
 no other apparent and safe means of escape, 
 he had a right to strike, although the sup- 
 posed danger may not have existed. CoiF- 
 man v. Com. 10 Bush, 495. It is the same 
 in Texas. Munden v. State, 37 Texas, 353. 
 But a sudden heat and passion produced by 
 mere words, or any similar provocation, will 
 not excuse. Wilson v. Com. 3 Bush, 105. 
 
 647. A homicide occurring in a personal 
 conflict held excusable where, although the 
 defendant had no apprehension of serious 
 injury from deceased when he agreed to 
 fight him, yet, during the fight, something 
 occurred to create a reasonable belief that 
 he was then in danger of death or great 
 bodily harm from deceased, and on account 
 of such fear stabbed and killed him. Berry 
 V. Com. 10 Bush, Ky. 15. 
 
 648. If A. has reason to apprehend, and 
 does apprehend, that B. will shoot him un- 
 less he can run away or shoot B. first, the 
 law does not require A. to run, and perhaps 
 be shot. And if A. believed that B. was 
 drawing out a pistol to shoot him, the fact 
 afterward developed that B. had then no 
 pistol, but was only maneuvering to make 
 him run, will not make A. culpable for 
 doing what he had good reason to believe 
 was necessary for the security of his life. 
 Phillips V. Com. 3 Duvall, Ky. 328 ; Smaltz 
 V. Com. 3 Bush, Ky. 32 ; Young v. Com. 6 
 lb. 312 ; Carico v. Com. 7 lb. 124. See Bo- 
 hannon v. Com. 8 lb. 481. 
 
 649. In Tennessee. Where a person who 
 is in no great danger of bodily harm, through 
 fear, alarm, or cowardice, kills another un- 
 der the impression that great bodily injury 
 is about to be inflicted upon him, he will 
 not be guilty of manslaughter, nor of murder, 
 but it will be self-defense. Grainger v. 
 State, 5 Yerg. 459. 
 
 650. In Louisiana, The court declined 
 to charge the jury that a person believing 
 his life to be assailed, and in immediate 
 danger from another, is excusable in resist- 
 
 ing and killing a third person who inter- 
 feres to disarm him forcibly, with a view to 
 bring about a fight between the other two 
 without weapons, after being warned to 
 stand off. Held that such refusal of the 
 court was proper, for the reason that the in- 
 strucrion asked made the party's justifica- 
 tion depend upon his mere belief of danger^ 
 and not upon a reasonable ground for such 
 belief, and also for the reason that it did not 
 present the case of a third person, confeder- 
 ating with the first assailant, or aiding him 
 to make a dangerous assault upon the ac- 
 cused. State V. Chopin, 10 La. An. 458. 
 
 651. In Michigan. The necessity for tak- 
 ing life, in order to excuse or justify the 
 slayer, need not arise out of actual and im- 
 minent danger, but he may act upon a belief 
 from appearances which give him reasonable 
 cause for it, that the danger is actual and 
 imminent, although it may turn out that he 
 was mistaken. Pond v. People, 8 Mich. 150 ; 
 Patten v. People, 18 lb. 314; Hurd v. Peo- 
 ple, 25 lb. 405. 
 
 652. In Minnesota. To justify a killing 
 on the ground of self-defense, it is not 
 enough that the defendant believed him- 
 self in danger, unless the facts and cir- 
 cumstances wei'e such that the jury can say 
 he had reaso'iable grounds for his belief. 
 State V. Shippey, 10 Minn. 223. 
 
 653. In Iowa. If, under the circum- 
 stances, there was no reason for the belief 
 by the defendant that his person was in 
 danger of death or great bodily harm, he 
 cannot lawfully take the life of his assailant. 
 State V. Thompson, 9 Iowa, 188. But, in 
 order to justify a homicide on the ground 
 of self-defense, it is not necessary that the 
 danger should in fact exist, but that there 
 be actual and real danger to the defendant's 
 comprehension as a reasonable man. State 
 V. Collins, 32 Iowa, 3G. 
 
 654. A party may re[)el force by force in 
 defense of his person, habitation or property, 
 against one who manifestly intends, or en- 
 deavors by violence or surprise, to commit 
 a felony on either; and if a conflict ensues, 
 and he takes life, the killing is justifiable. 
 State V. Thompson, 9 Iowa, 188; bat not if 
 the assault is not felonious, and there is no
 
 318 
 
 HOMICIDE. 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 reason for a belief on the part of the person 
 assailed that the danger is actual. State v. 
 Kennedy, 20 lb. 569. An instruction held 
 erroneous which omitted to give the defend- 
 ant the benefit of the plea of self-defense, if 
 he took his assailant's life to save himself 
 from imminent and enormous bodily injury 
 felonious in its character. State v. Benham, 
 23 lb. 154; State v. Burke, 30 lb. 331. 
 
 655. In North Carolina. One who has 
 reasonable ground to believe that there is a 
 design to destroy life, to rob, or commit a 
 felony, will be justified in killing the ofi"ender 
 to arrest such design. State v. Harris, 1 
 Jones, 190. 
 
 656. But the belief that another intends 
 to take my life will not justify my killing 
 him, unless he is making some attempt to 
 carry out his design, or is in an apparent 
 situation to do so, and thereby causes me to 
 think that he intends to do it immediately. 
 Where, therefore, the deceased having 
 threatened the prisoner's life about three 
 weeks before, sought a fight with the prisoner, 
 without weapons, in a public street, on a 
 starlight night, and the latter drew his 
 knife without notice to the deceased, and 
 inflicted upon him a mortal wound, it was 
 held murder. State v. Scott, 4 Ired. 409. 
 
 657. In Alabama. Where a person has a 
 reasonable belief of great personal injury, he 
 may protect himself from violence even at 
 the expense of his assailant's life, when 
 necessary. Holmes v. State, 23 Ala. 17. 
 But in order to justify a homicide there 
 must be, on the part of the slayer, either an 
 actual necessity to kill to prevent the com- 
 mission of a felony or great bodily harm, or 
 a reasonable belief that such necessity exists. 
 Noles V. State, 26 lb. 31 ; Taylor v. State, 
 48 lb. 180. 
 
 658. Though every citizen may resist at- 
 tempts upon his liberty by illegal restraint, 
 the resistance must not be in great dispro- 
 portion to the injury threatened. He has 
 no right to kill to prevent a trespass, unless 
 accompanied by extreme danger of bodily 
 harm, or which does not produce a reason- 
 able belief of such danger. Noles v. State, 
 supra. 
 
 659. On a trial for murder, the prisoner 
 
 asked the court to charge " that if the jury 
 were satisfied from the evidence there was a 
 reasonable belief in the prisoner's mind of 
 some great bodily harm from the deceased," 
 or " that he had reasonable ground to believe 
 that he was in clanger of great bodily harm 
 from the deceased, whether it actually ex- 
 isted or not, the killing would be excusable." 
 The court refused to give the charge, " ex- 
 cept with the qualification that, if the dan- 
 ger a^jpeared to be imminent or threatening, 
 the prisoner would be excused." Held, that 
 neither the refusal of the charge as asked, 
 nor the qualification added to it, was erro- 
 neous. Dupree v. State, 33 Ala. 380. 
 
 660. In Mississippi. The mere fear or 
 belief, however sincerely entertained by one 
 man that another designs to take his life, 
 will not excuse or justify the killing of the 
 latter by the former. Where the danger is ■ 
 neither real nor urgent, to render a homicide 
 excusable or justifiable, there must be some 
 attempt to execute the apprehended design, 
 or there must be reasonable ground for the 
 belief that such design will be executed, and 
 the danger imminent. Wesley v. State, 37 
 Miss. 337; Evans v. State, 44 lb. 762; Head 
 V. State, lb. 731. 
 
 661. In California. A person may defend / 
 himself by taking life, whether his danger -^J 
 be real or not, if the danger be apparently ■ 
 so imminent and pressing that a prudent 
 man might suppose himself in such peril as 
 
 to deem the taking of the life of his assail- 
 ant necessary for self-preservation. People 
 V. Campbell, 30 Cal. 312. In such case the 
 use of a deadly weapon by the person as- 
 sailed, superior to the weapon possessed by 
 the assailant, would not be evidence of 
 malice; and the act done in self-defense 
 would be justified, although the intent to 
 take the life of the assailant as a necessity 
 preceded the act which resulted in his death. 
 People V. Barry, 31 lb. 357. 
 
 662. In Virginia. To render a killing 
 justifiable on the ground of self-defense, the 
 act done or threatened must be of such 
 a character as to afibrd a reasonable ground 
 for believing there is a design to commit a 
 felony, or to do some serious bodily harm, 
 and danger of carrving such design into
 
 HOMICIDE. 
 
 319 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 immediate execution. Stoneman v. Com, 25 
 Gratt. 887. 
 
 663. In Illinois. Actual danger is not 
 indispensable to justify self-defense, but only 
 a reasonable and well grounded belief of 
 losing life or suffering great bodily harm. 
 Campbell v. People, 16 111. 17 ; Hopkinson 
 V. People, 18 lb. 264; Schnier v. People, 23 
 lb. 17 ; Maher v. People, 24 lb. 241 ; Adams 
 V. People, 47 lb. 376. An instruction that, 
 to justify killing in self-defense, there must 
 have been a reasonable belief in the mind of 
 the defendant of " the most serious bodily 
 harm," is erroneous; an apprehension of 
 great bodily harm being suificient. Reins 
 V. People, 30 lb. 256. 
 
 664. In "Wisconsin. To justify the kill- 
 ing of another on the ground of self-defense, 
 it is sufficient that the appearances of the 
 attack upon the defendant, made or threat- 
 ened by the deceased, were such as to give 
 the defendant reason to apprehend a design 
 to do him some great personal injury, and 
 that there was imminent danger of such de- 
 sign being accomplished. State v. Martin, 
 30 Wis. 216. 
 
 665. In Kansas. To render a homicide 
 justifiable self-defense, the prisoner must 
 have had a reasonable ground to believe 
 that the deceased intended to kill him ; and 
 there must have been some attempt to exe- 
 cute such a design ; or the deceased must 
 have been in an apparent situation to do so, 
 and thus have induced a reasonable belief 
 that he intended to do it immediately. 
 State V. Home, 9 Kansas, 119 ; s. c. 1 Green's 
 Crim. Rej^s. 718. The defendant need not 
 prove that the deceased actually had a 
 deadly weapon, but only that the defendant 
 had reason to believe that he had one. 
 State V. Potter, 13 Kansas, 414. 
 
 666. In Nevada. In order to justify 
 homicide, it must appear to the defendant's 
 comprehension as a reasonable man, that he 
 was actually in danger of his life, or of re- 
 ceiving great bodily harm, and that to avoid 
 such danger it was absolutely necessary for 
 him to take the life of the deceased. State 
 V. Ferguson, 9 Nev. 106 ; State v. Hall, lb. 
 58; State v. Stewart, lb. 120. 
 
 667. In Oregon. Where a person has 
 
 reasonable ground to believe that he is in 
 danger of being killed, or of great bodily 
 harm from another, and acting on such be- 
 lief kills the other, he is excusable; and he 
 is not required to wait until an assault was 
 actually committed. Goodall v. State, 1 
 Oregon, 333 ; State v. Conolly, 3 lb. 69. 
 
 668. Attack may be anticipated. A per- 
 son interposing the plea of self-defense need 
 not show that the danger was immediate 
 and impending at the very moment of kill- 
 ing. He may anticipate the attack of his 
 antagonist, if necessary for his own protec- 
 tion. Cotton V. State, 31 Miss. 504. 
 
 669. It is erroneous to charge the jury 
 that if death resulted from the use of a 
 deadly weapon by the defendant, though to 
 repel an attack made by the deceased upon 
 the defendant which endangered his life, or 
 which would have resulted in great bodily 
 hanii to him, the homicide, though it might 
 be reduced to manslaughter, would never- 
 theless be criminal. Kingen v. State, 45 
 Ind. 519. 
 
 670. A charge that "if the jury believe 
 from the evidence, that the defendant killed 
 the deceased by shooting him with a pistol, 
 the law presumes it was done with malice," 
 when the evidence tended to show that the 
 pistol was used in self-defense, is erroneous. 
 Martin v. State, 47 Ala. 564. 
 
 671. On a trial for murder, held that the 
 following instruction Avhich was asked and 
 refused, should have been given : " If the 
 blows which caused the death of the de- 
 ceased were given in self-defense, and other 
 blows were afterward given which were not 
 given in self-defense, not mortal, you should 
 find the defendant not guilty." Miller v. 
 State, 37 Ind. 432. 
 
 672. Defendant must not have been to 
 blame. The necessity that will justify the 
 slaying of another in self-defense, must not 
 not have been occasioned by the slayer. 
 Vaiden v. Com. 12 Gratt. 717. 
 
 673. A party who seeks and brings on a 
 difficulty cannot avail himself of the rights 
 of self-defense in order to shield himself 
 from the consequences of killing his adver- 
 sary, however imminent the danger in which 
 he may have found himself in the progress
 
 V20 
 
 HOMICIDE. 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 of the affray. State v. Underwood, 57 Mo. 
 40 ; State v. Linney, 53 lb. 40 ; s. c. 1- Green's 
 Crim. Reps. 753. 
 
 674. When it is proved on a trial for 
 murder, that the prisoner sought the de- 
 ceased -with a loaded gun, with the view of 
 provoking a difficulty, and that a difficulty 
 ensued, he cannot Avithout some proof of 
 change of conduct or action, excuse the 
 homicide on the ground that the deceased 
 fired the first shot. State v. Neeley, 20 
 Iowa, 108 ; State v. Stanley, 33 lb. 526. 
 See State v. Benham, 28 lb. 154. When, 
 however, he has wholly withdrawn from the 
 conflict, he is again remitted to his right of 
 self-defense, and may oppose force to force, 
 even to the taking of the life of his adver- 
 sary. Stofter V. State, 15 Ohio, N. S. 47. 
 
 675. A homicide, even if committed upon 
 sudden combat, is not excusable'^'lf undue 
 advantage was taken of the deceased. Peo- 
 ple V. Perdue, 49 Cal. 425. But although a 
 person goes into a fight voluntarily, yet if 
 he is driven to the wall so that he must he 
 killed or sustain great bodily harm unless 
 he kills his adversary, which hcvdoes, it is 
 excusable homicide. State v. "Ingold, 4 
 Jones, 216. i 
 
 676. Duty of defendant to retreat. An 
 afii'ayer cannot excuse a homicide on the 
 ground of self-defense, unless he quit the 
 combat before the mortal blow is given, if 
 he could safely do so, and retreated as far as 
 he might with safety, and then killed his 
 adversary to save his own life. State v. 
 Hoover, 4 Dev. & Batt. 365. 
 
 677. Before a party assaulted,; can kill his 
 adversary, he must have retre^ed as far as 
 he safely could to avoid the lissault, until 
 his further going back was ;|reveuted by 
 some impediment, or as far as i;he fierceness 
 of the assault permitted. Vaideu v. Com. 
 12 Gratt. 717. 
 
 678. Where death ensues on a sudden 
 provocation or sudd^en quarrel, in order to 
 reduce the offense to killing in self-defense, 
 the prisoner must prove, first, that before 
 the mortal blow was given, he declined fur- 
 ther combat, and had retreated as far as he 
 could with safety, and second, that he killed 
 the deceased throu":h the necessity of savins: 
 
 his own life, or to save himself from great 
 bodily harm Dock v. Com. 21 Gratt. 909. 
 
 679. Although it appear on a trial for 
 murder, that the deceased made the first 
 attack on the defendant with a deadly 
 weajjon, yet if the latter could reasonably 
 have avoided killing his adversary without 
 certain and immediate danger of his life, or 
 of great bodily injury, the homicide is not 
 excused as being in self-defense. But the 
 law does not demand of the defendant the 
 same coolness and judgment that can be 
 exercised by the jury. If he had reason to 
 believe, and did believe that he was in dan- 
 ger, it is sufficient. U. S. v. Mingo, 2 Cur- 
 tis C. C. 1. 
 
 680. A man who assails another with a 
 deadly weapon cannot kill his adversary in 
 self-defense until he has notified him by his 
 conduct that he has abandoned the contest; 
 and if the circumstances are such that he 
 cannot so notify him, it is his fault and he 
 must take the consequences. State v. Smith, 
 10 Nev. 106. 
 
 681. But as retreat may be impossible or 
 perilous, it is not always a condition which 
 must precede the right of self-defense. 
 Creek v. State, 24 Ind. 151. A person is 
 not obliged to fiee from his adversary who 
 assails him with a deadly weapon, and go to 
 the wall, before he can justify killing his 
 assailant. Tweedy v. State, 5 Iowa, 433; 
 s. c. lb. 334. If there be no other way of 
 saving his own life, he may in self-defense 
 kill his assailant, and the killing will be 
 justifiable. But when the attack is not 
 felonious, the rule of law is different. State 
 V. Thompson, 9 lb. 188. 
 
 682. Defendant not obliged to resort to 
 legal protection. The omission of a person 
 assailed to seek protection from the author- 
 ities does not deprive him of the protection 
 of the law, and he may defend himself in 
 the same manner and to the same extent as 
 if he had sought such protection. The fol- 
 lowing charge was therefore held erroneous : 
 "If the prisoner believed that his life or. 
 person was in jeopardy and peril by the 
 alleged repeated assaults made t>y the com- 
 plainant, it was his duty to have invoked 
 the aid of the authorities in saving him from
 
 HOMICIDE. 
 
 321 
 
 Justifiable Homicide. 
 
 In Self-defense. 
 
 In Protecting Property. 
 
 the infliction of any wrong, or punishing the 
 offender for a wrong committed. All that 
 the prisoner had to do was to make a com- 
 plaint before a magistrate, and the com- 
 plainant would have been forced to give 
 bonds to keep the peace to deter him from 
 the commission of any violence." Evers v. 
 People, 6 N. Y. Supm. N. S. 81. 
 
 683. Person defending another. At 
 common law, if A. is attacked by B. and in 
 urgent and immediate peril of his life, and 
 C. interposes to preserve the peace, or even 
 to aid A., and it is actually necessary to kill 
 B. to terminate the affray and save the life 
 of A., a third party will be excused for kill- 
 ing him. This principle is preserved in the 
 statute of New York. Where in such case 
 the interference is unnecessary, the offense 
 is manslaughter. People v. Cole, 4 Parker, 
 3.5. 
 
 684. Where in a mutual combat, A. 
 knocked down and beat B., and C, Avho 
 was present, supposing that the life of B. 
 was in danger, gave him a knife to defend 
 himself, and B. killed A, with the knife, it 
 was held that C. was justified. Short v. 
 State, 7 Yerg. 510. 
 
 685. Nature of inquiry. In determining 
 whether or not a homicide was justifiable, 
 the inquiry is whether there was reason- 
 able ground for the prisoner to apprehend 
 great personal injury, and not whether the 
 prisoner did in fact entertain such appre- 
 hension. People V.Austin, 1 Parker, 154; 
 People V. Doe, 1 Manning, 451 ; Young v. 
 State, 11 Humph. 200; People v. Shorter, 
 4 Barb. 460; s. c. 2 N. Y. 193; contra, 
 Grainger v. State, 5 Yerg. 459; Oliver v. 
 State, 17 Ala. 587 ; Carroll v. State, 23 lb. 28. 
 
 (b) In protecting property. 
 
 686. General rule. Although the owner 
 may lawfully resist a forcible trespass, yet 
 he cannot lawfully kill the intruder, unless 
 it is necessary to prevent a felonious de- 
 struction of property, or to defend himself 
 against loss of life or great bodily harm. 
 Carroll v. State, aupra. 
 
 687. In California, under the statute 
 (Crimes Act, §§ 29, 30;, a homicide will be 
 justified only when the entry into a habitation 
 
 21 
 
 is being made in a violent, riotous, or tumult- 
 uous manner, for the purpose of assaulting 
 or offering violence to some person therein, 
 or for the purpose of committing a felony 
 by violence or injury. A bare fear of any 
 of these offenses is not sufficient to justify 
 the killing, but it must appear that the cir- 
 cumstances were sufficient to excite the fears 
 of a reasonable man, and that the party kill- 
 ing acted under the influence of those fears. 
 People V. Walsh, 43 Cal. 447 ; s. c. 1 Green's 
 Crim. Reps. 487. 
 
 688. Defense of dwelling. The sense in 
 which a man's house has a peculiar immu- 
 nity is, that it is sacred for the protection of 
 his person and family. An assault on the 
 house can be regarded as an assault on the 
 person, only in case the purpose of such 
 assault be injury to the person of the occu- 
 pant or members of his family; and in order 
 to accomplish this, the assailant attacks the 
 house in order to reach the inmates. In this 
 view, the inmate need not flee from his 
 house in rorder to avoid injury from the 
 assailant, but may meet him at the threshold, 
 and prevent him from breaking in, by any 
 means rendered necessary by the exigency, 
 for the same reason that one may defend 
 himself from peril of life or great bodily 
 harm by means fatal to the assailant, if 
 rendered necessary by the exigency of the 
 assault. State v. Patterson, 45 Vt. 308, 
 per Barrett, J. ; s. c. 1 Green's Crim. Reps. 
 490. 
 
 689. A man is not obliged to retreat, if 
 assaulted in his dwelling, but may use such 
 means as are absolutely necessary to repel 
 the assailant from his house, or to prevent 
 his forcible entry, even to taking life. It is 
 therefore error to charge that the defendant 
 must have done everything in his power to 
 avoid the necessity of killing his assailant. 
 Bohannon v. Com. 8 Bush, 481 ; s. c. 1 
 Green's Crim. Reps. 613. He must not, 
 however, take life if he can otherwise arrest 
 or repel the assailant. Where the assault or 
 breaking is felonious, the homicide becomes 
 justifiable, and not merely excusable. Pond 
 V. People, 8 Mich. 150. See Patten v. 
 People, 18 lb. 314 ; ITurd v. People, 25 lb. 
 405.
 
 322 
 
 HOMICIDE. 
 
 Justifiable Homicide. 
 
 In Protecting Property. In Prevention of Felony. 
 
 690. The defendant was warned that the 
 deceased, the brother of the latter, and an- 
 other person, were coming to his house in 
 the night to commit violence, which they 
 did, and broke in the door and window ; 
 and while they were in the act, the prisoner, 
 then in his own house, struck the deceased 
 with the poker, from which he died the next 
 day. Held justil5able homicide. Brown v. 
 People, 39 111. 407. 
 
 691. On a trial for murder it appeared 
 that the defendant, returning to his house 
 about eleven o'clock at night, found it 
 fastened against him by another man ; that 
 after asking several times to have the door 
 opened, he beat it down with an axe, and 
 encountered the deceased, who had an axe 
 handle in his hand, with which he struck 
 the defendant on the head ; and that the 
 defendant then struck the deceased on the 
 head with the axe, of which he died about 
 two mouths afterwards. Held excusal)le 
 homicide. De Forest v. State, 21 Ind. 28. 
 
 692. On a trial for a homicide which was 
 committed by the defendant in his own 
 house, the court charged that if the jury 
 found that the deceased was lawfully in the 
 house, and had not been ordered to leave 
 previous to the affray, that the afl'ray was 
 wholly personal between the defendant and 
 the deceased, that the defendant could only 
 be justified under the same circumstances 
 that would justify him had the afl'ray not 
 occurred in his house, with the exception 
 that the defendant would not be obliged to 
 retreat, but if attacked, might stand his 
 ground, and defend himself with all the 
 force necessary, even to the taking of life. 
 Held proper. State v. Martin, 30 Wis. 216. 
 
 693. A net house, thirty-six feet from a 
 man's dwelling, used by him not only for 
 preserving the nets which were used in his 
 ordinary occupation as a fisherman, but also 
 as a permanent dormitory for his servants, 
 though not inclosed with the house by a 
 fence, is a dwelling which may be protected 
 from felonious assault, even to the taking of 
 life. Pond v. People, 8 Mich. 150. 
 
 694. Intruder must not be pursued. The 
 right of self-defense, or defense of one's 
 family or his habitation, docs not justify 
 
 pursuing and killing the intruder or ag- 
 gressor after he has retreated, and after the 
 necessity has ceased. State v. Conally, 3 
 Oregon, 69. 
 
 695. Defending right to public prop- 
 erty. Where persons are on an island be- 
 longing to the United States, for the purpose 
 of collecting birds' eggs, and others go there 
 for the same object, but are forcibly pre- 
 vented from landing by the party first there, 
 they may lawfully oppose force to force, and 
 if one of the opposing party is killed, it will 
 he justifiable homicide. People v. Batchel- 
 der, 27 Cal. 69, Sawyer, J., dissenting. 
 
 {c) In prevention of felony. 
 
 696. Belief. A reasonable belief that a 
 felony is about to be committed will exten- 
 uate a homicide committed to prevent it, 
 but not a homicide committed by a private 
 person in pursuit. State v. Rutherford, 1 
 Hawks, 457. 
 
 697. Arresting felon. To justify the kill- 
 ing of a felon in order to arrest him, the 
 slayer must show both a felony committed, 
 and that he avowed his object, and that the 
 felon refused to submit. State v. Roane, 2 
 Dev. 58. 
 
 698. Resistance of attempt. A person 
 may lawfully use all the force necessary to 
 prevent the consummation of a felony. He 
 may resist all attempts to inflict bodily in- 
 juiy upon himself, and detain the felon, and 
 hand him over to the officers of the law, and 
 it would only be by the use of unnecessary 
 or wanton violence that he could become a 
 wrong-doer. Ruloff v. People, 45 N. Y. 213. 
 
 699. On a trial fowimurder, the defendant 
 will be justified in the killing, if it be proved 
 that he had a reasonable ground to appre- 
 hend a design to commit a felony or to do 
 some great personal injury to his wife, and 
 there was imminent danger of the design 
 being accomplished. Staten v. State, 30 
 Miss. 619. 
 
 700. Suppressing riot. Private persons 
 may forcibly interfere to suppress a riot or 
 resist rioters, and if they cannot otherwise 
 suppress the riot, or defend themselves from 
 the rioters, they may justify homicide in 
 killing them. Pond v. People, 8 Mich. 150.
 
 HOMICIDE.— IDIOCY. 
 
 323 
 
 Justifiable Homicide. In case of Shipwreck. In case of Accident. Evidence. 
 
 701. On the trial of an indictment for 
 homicide committed by the defendant in 
 protecting his premises from the invasion of 
 rioters, there was evidence tending to show 
 that owing to the feeble health of the de- 
 fendant's mother he might have apprehended 
 her speedy death from the fear and excite- 
 ment caused by the conduct and threats of 
 the rioters, Held^ that if they had notice to 
 that effect, or the defendant was prevented 
 from giving it by their noise and tumult, 
 his conduct toward them was excusable to 
 the same extent as if the danger to her life 
 had resulted from an actual attack upon her 
 person or upon his. Patten v. People, 18 
 Mich. 314. 
 
 (cT) In case of shipwreeh. 
 
 702. Must be decision by lot. In cases 
 of extreme peril from shipwreck, where 
 there is a necessity that a part should be 
 sacrificed in order to save the remainder, a 
 decision by lot should be resorted to, unless 
 the peril is so sudden and overwhelming as 
 to leave no choice of means, and no moment 
 for deliberation. U. S. v. Holmes, Wallace, 
 Jr. 1. 
 
 (e) In case of acclden t. 
 
 703. Must have been in lawful act. The 
 accidental taking of the life of another, to 
 be excusable, must have been in the doing 
 of some lawful act. If the defendant pointed 
 a loaded gun at deceased, under circum- 
 stances which would not have justified him 
 in shooting the deceased, and the deceased 
 seized it, and struggled to save himself from 
 the menaced injury, and in the struggle it 
 went oflF accidentally, the defendant could 
 not claim that the homicide was excusable ; 
 but otherwise, if the gun was discharged 
 under circumstances in which it would have 
 been lawful for the defendant to have shot 
 it oflT purposely. State v. Benham, 28 Iowa, 
 154. 
 
 704. Caused by disease. Where a wound 
 is inflicted which is not mortal, and the 
 person receiving it afterward becomes ill 
 from another cause, and death results from 
 euch illness, the party giving the wound is 
 not liable for the death, although the symp- 
 toma of the disease were aggravated, and 
 
 the fatal issue hastened by the wound, 
 Livingston v. Cora. 14 Gratt. 592. 
 
 (/) Evidence. '^ 
 
 705. Burden of proof. If the prisoner 
 claims a justification, he must take upon him- 
 self the burden of satisfying the jury by a 
 preponderance of evidence. He must pro- 
 duce the same degree of proof that would 
 be required if the blow inflicted had not 
 produced death, and he had been sued for 
 assault and battery, and had set up a justifi- 
 cation. It is not sufficient for him to raise 
 a reasonable doubt, neither is it necessary 
 for him to establish his justification bej^ond 
 a reasonable doubt. He must make his 
 defense appear to the jury, availing himself 
 of all the evidence in the case. People v. 
 Schryver, 42 N. Y. 1 ; overruling Patterson 
 V. People, 46 Barb. 625. 
 
 706. In Nevada, where a homicide is 
 proved by the State, and no circumstances 
 of mitigation, excuse, or justification are 
 shown, the burden of establishing such 
 mitigation, excuse, or justification is on the 
 defendant. But he is not required to estab- 
 lish the facts constituting his defense be- 
 yond a reasonable doubt, or by . evidence 
 preponderating over that produced against 
 him. State v. McCluer, 5 Nev. 133 ; disap- 
 proving State v. Waterman, 1 lb. 132. 
 
 707. Right of defendant to go into proof 
 of all of the circumstances. On a trial for 
 a homicide committed by the defendant in 
 the night, in repelling a riotous assembly 
 from his premises, it appeared that there 
 had been a similar assembly by the same 
 parties, at the same place, the night preWous. 
 Held., that the defendant had a right, either 
 by cross-examination or by witnesses intro- 
 duced in his behalf, to go fully into all the 
 proceedings and objects of both gatherings 
 and his acts. Patten v. People, 18 Mich. 314. 
 
 3Monj. 
 
 Rule of evidence in relation to. The 
 presumption that persons of full age are sane 
 remains until overcome by evidence. The 
 jury, in order to convict the prisoner, must
 
 324 
 
 IGNORANCE OF LAW.— INCEST. 
 
 When Open to Inquiry. 
 
 What Constitutes. 
 
 Indictment. 
 
 be satisfied not only of the doing of the acts, 
 but that they proceeded from a responsible 
 agent. This rule is applicable where the 
 defense is idiocy. Com. v. Heath, 11 Gray, 
 303. 
 See Insanity. 
 
 Sgnorancc of £aivi. 
 
 When open to inquiry. Wliere the act 
 done is malum in se, or where the law which 
 has been infringed is settled and plain, the 
 maxim ignorantia legis neminem excusat is 
 applied in its rigor. But when a special 
 mental condition constitutes a part of the 
 oifense charged, and such condition depends 
 on the question whether or not the defend- 
 ant had certain knowledge with respect to 
 matters of law, the existence of such knowl- 
 edge is open to inquiry. Cutter v. State, 36 
 N. J. 125; s. c. 3 Green's Crim. Reps. 589. 
 
 3ncc5t 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 1. What constitutes. 
 
 1. Incestuous marriage. In Iowa, under 
 the statute (Rev. § 4369), the intermarriage 
 of persons within the prohibited degrees of 
 consanguinity constitutes incest, without 
 proof of carnal knowledge. State v.Schaun- 
 hurst, 34 Iowa, 547. The terms " brother " 
 and " sister " in the statute mean oflfspring 
 of the same parents, and do not necessarily 
 imply legitimacy of birth. lb. 
 
 2. In California, the attempt to contract 
 an incestuous marriage contemplated by the 
 statute, must be manifested by acts which 
 would end in the consummation of the par- 
 ticular offense, but for the intervention of 
 circumstances independent of the will of the 
 party. The declarations of the defendant of 
 his determination to contract such a mar- 
 riage, his elopement with his niece for that 
 avowed purpose, and his request to a third 
 person to go for a magistrate to perfonu the 
 
 ceremony, do not constitute the attempt. 
 People V. Murray, 14 Cal. 159. 
 
 3. Step-daughter. In Mississippi, it is 
 not incest for a man to cohabit with his 
 step-daughter. Chancellor v. State, 47 Miss. 
 378. The offense may be committed with a 
 natural as well as Avith a legitimate daughter. 
 Morgan v. State, 11 Ala. 289. 
 
 3. Indictment. 
 
 4. Averment of relationship. In Ohio, 
 the relation of step-father and step-daughter, 
 within the meaning of the statutes against 
 incest, terminates with the death or divorce 
 of the mother. To aver this relation, there- 
 fore, is necessary to aver the marriage of the 
 mother to the step-father, and the existence 
 of it at the time of committing the offense. 
 Noble V. State, 22 Ohio, N. S. 541 ; s. c. 1 
 Green's Crim. Reps. 663. 
 
 5. In Michigan, an information for incest 
 need not allege that the parties are " within 
 the degrees of consanguinity within which 
 marriages are prohibited, or declared by law 
 to be incestuous and void." Hicks v. Peo- 
 ple, 10 Mich. 395. 
 
 6. An indictment which alleges that the 
 prisoner, " being then and there the father 
 of B., and within the degree of consanguin- 
 ity within which marriages are declared by 
 law to be incestuous and void, and then and 
 there knowing the said E. B. to be his 
 daughter, did then and there live with the 
 said E. B. in a state of adultery," is sufii- 
 cient. Baker v. State, 30 Ala. 521. 
 
 7. Time. An indictment for incest must 
 allege a single offense, and name the day on 
 which it was committed. Where the crime 
 was charged to have been committed on the 
 20th of September, 1860, " and on divers other 
 days and times between that day and the 
 9th day of December, 1862," thus alleging a 
 series of offenses without specifying any jjar- 
 ticular day except the first, the indictment 
 was held bad. State v. Temple, 38 Vt. 37. 
 
 8. Guilty knowledge. An indictment 
 charged that A. did unlawfully have sexual 
 intercourse with his daughter B., the said B. 
 then and there knowing that she, the said 
 B., was his, the said A.'s, daughter. Held 
 that the indictment was insufficient in not
 
 INCEST.— mDICTMENT. 
 
 325 
 
 Indictment. 
 
 Evidence. 
 
 When it will Lie. 
 
 alleging that A. had intercourse with his 
 daughter, ' ' knowing her to be such ; " the 
 word "unlawfully" not being equivalent to 
 such allegation. Williams v. State, 3 Carter, 
 439. 
 
 9. In Alabama, an indictment for incestu- 
 ous adultery, which alleges that the defend- 
 ant knew of the consanguinity, is sufficient, 
 without also charging that the other i^arty 
 knew it. Morgan v. State, 11 Ala. 289. And 
 the indictment wUl be good, although the 
 oft'ense be not laid with a continuendo. State 
 V. Glaze, 9 lb. 283. 
 
 10. In Missouri, an indictment for incest 
 need not allege a knowledge of the relation- 
 ship on the part of the defendant. State v. 
 Bullinger, 54 Mo. 143 ; s. c. 2 Green's Crim. 
 Reps. 601. But see Williams v. State, supra. 
 
 11. Charging rape. In Massachusetts, 
 where an indictment for rape contained all 
 the specifications of a charge of incest, it 
 was held competent for the jury, under the 
 statute (R. S. ch. 137, § 11), to convict the 
 defendant of the latter. Com. v. Goodhue, 
 2 Mete. 193. 
 
 3. Evidence. ^ 
 
 12. Admissions and declarations. On 
 the trial of an indictment for incestuous 
 adultery, the admission of the defendants 
 is sufficient proof of the relationship. 
 Morgan v. State, 11 Ala. 289. Or the re- 
 lationship of the parties may be proved by 
 reputation. State v. Bullinger, 54 Mo. 142;. 
 s. c. 3 Green's Crim. Reps. 601. 
 
 13. In New York, on the trial of an in- 
 dictment for incest, charged to have been 
 committed by a father with his daughter, 
 it was held that the declarations of the 
 defendant were admissible to prove the 
 consanguinity. The statute in such case 
 is only applicable where the sexual inter- 
 course is with mutual consent. When 
 effected by force it constitutes rape. People 
 V. Ilai'riden, 1 Parker, 344. 
 
 14. On the trial of a brother and sister 
 for incest, their relationship may be proved 
 by their acts and declarations. Their 
 identity may be established by admissions, 
 identity of names, and by evidence showing 
 that there are other persons of the same 
 
 name. The mere misspelling of the first 
 name of one of the parties in the certificate 
 of the clergyman who celebrated the mar- 
 riage, will not destroy the efiect of the mar- 
 riage record as evidence. State v. Schaun- 
 hurst, 34 Iowa, 547. 
 
 15. Proof of other acts. On a trial for 
 incest, evidence is admissible of previous 
 acts of sexual intercourse between the parties, 
 as tending to show the probable commission 
 of the act charged. People v. Jenness, 5 
 Mich. 305. 
 
 16. But where the indictment charges the 
 defendant with having committed incest on 
 a certain day, which is proved, the prosecu- 
 tion cannot show that the defendant had 
 sexual intercourse with the prosecutrix at a 
 subsequent time. Lovell v. State, 13 Ind. 
 18. 
 
 17. When the charge is for a single act ot 
 incestuous intercourse committed on a 
 certain day, as the time stated is not 
 material, the prosecution, before the evidence 
 is introduced, may select any one act of such 
 criminal intercourse which occurred within 
 the jurisdiction of the court, and within 
 the period of the statute of limitations. 
 But when the prosecution has made its 
 election, it cannot be allowed to prove any 
 other act of the kind as a substantive offense. 
 People V. Jenness, supi'a. 
 
 Subcccnci), 
 
 See Lasciviousness ; Nuisance. 
 
 3uMctmcnt. 
 
 1. When it will lie. 
 
 2. Finding. 
 
 3. Venue. 
 
 4. Caption. 
 
 5. Commencement. 
 
 G. Body op indictment. 
 
 (a) Name of defendant. 
 
 (b) Name of party injured. 
 
 (c) Time and place. 
 
 (d) Statement of the offense.
 
 32G 
 
 INDICTMENT. 
 
 When it will Lie. 
 
 Finding. 
 
 7. Removal of indictment. 
 
 8. Proof required. 
 
 9. Objection to indictment. 
 
 10. Amendment op indictment. 
 
 11. Quashing indictment. 
 
 1. When it will lie. 
 
 1. Constitutional right to. The fifth 
 article of the amendments to the Constitution 
 of the United States, which declares that 
 " no person shall be held to answer for a 
 capital or otherwise infamous crime, unless 
 on presentment or indictment of a grand 
 jury," is not an inhibition upon the States, 
 restricting them in the prosecution of capital 
 or infamous crimes to the common-law in- 
 dictments. Noles V. State, 24 Ala. 672. 
 
 2. When in general the proper remedy. 
 Whenever a statute prohibits a matter of 
 public grievance, or commands a matter of 
 public convenience, a person who violates 
 the statute is liable to indictment. State 
 V. Fletcher, 5 New Hamp. 257. 
 
 3. Where what was not criminal before 
 is prohibited by a statute, and in an another 
 section a special remedy is given, an in- 
 dictment or information may be maintained 
 upon the prohibitory clause. State v. 
 Bishop, 7 Conn, 181. 
 
 4. When an offense is punishable at com- 
 mon law, and a statute is passed giving a 
 new remedy, either remedy may be jjursued. 
 Jenning v. Com. 17 Pick. 80. A person 
 may be legally indicted, without first having 
 been taken before a magistrate. People v. 
 Page, 3 Parker, 600. 
 
 5. Where the statute creating the oflFense 
 simply prescribes a penalty, an indictment 
 will not lie. State v. Maze, 6 Humjih. 17; 
 State V. Corwin, 4 Mo. 609. 
 
 6. Offenses amenable to. Riding or 
 going armed with unusual and dangerous 
 weapons, to the terror of the people, is 
 indictable at common law. State v. Huntly, 
 3 Ired. 418. 
 
 7. It is an indictable ofi'euse for a person 
 to be publicly drunk, and one such act has 
 been held sufficient. Smith v. State, 1 
 Humph. 396 ; but not if no one was thereby 
 annoyed or disturbed. State v. Debury, 5 
 Ired. 371. 
 
 8. An official act done by a justice of the 
 peace with a corrupt intent is indictable. 
 Wickersham v. People, 1 Scam. 128. 
 
 9. Overseers of the poor are liable to in- 
 dictment for any willful neglect of duty. 
 State V. Hoit, 3 Post. 355. 
 
 10. If A. be charged as principal and B. 
 as accessoi-y, the indictment will be sup- 
 ported if B. be found guilty as principal 
 and A. as accessory. State v. Mairs, Coxe, 
 453. 
 
 11. Where a married woman commits a 
 misdemeanor with the concurrence of her 
 husband, he is liable to indictment. Wil- 
 liamson V. State, 16 Ala. 431. 
 
 12. Agreement to do act. A mere agree- 
 ment between persons to do an unlawful 
 act, without anything done in furtherance 
 of the common design, is not usually in- 
 dictable. Torrey v. Field, 10 Vt. 353. 
 
 2. Finding. 
 
 13. Grand jury. Quakers are competent 
 to serve as grand jurors. Com. v. Smith, 9 
 Mass. 107. 
 
 14. In New York, where a statute pro- 
 vided that the supervisors should select the 
 names of three hundred men to serve as 
 grand jurors, and two hundred and ninety- 
 nine only having been thus selected, an in- 
 dictment for perjury was found by a grand 
 jury drawn from them, it was held that the 
 indictment was not for that reason bad.. 
 People V. Harriot, 3 Parker, 112. 
 
 15. In Maine, the grand juiy as originally 
 impaneled consisted of thirteen, but was 
 reduced to eleven members. To supply the 
 deficiency, three other persons were drawn 
 and returned by order of the court. These 
 persons were sworn and charged as grand 
 jurors and added to the panel. Held that 
 as their selection was not conformable with 
 the laws of the State, an indictment found 
 by the grand jury so constituted was void^ 
 State V. Symouds, 36 Maine, 128. 
 
 16. Oath of grand jury. It must appear 
 from the indictment that it was found upon 
 the oath of the grand jurors. State v. Mc- 
 Allister, 13 Maine, 374. But it is no objec- 
 tion to the indictment that it purports to 
 be found by the grand jury '' upon their
 
 INDICTMENT. 
 
 327 
 
 Finding. 
 
 oaths," instead of " upon their oath." Com. 
 V. Scholes, 13 Allen, 554; Jerry v. State, 1 
 Blackf. 395; State v. Dayton, 3 Zabr. 49. 
 
 17. Where an indictment is on the affirma- 
 tion of some of the grand jurors, it must be 
 shown that they were persons entitled by 
 law to take affirmations instead of oaths or 
 the indictment will be fatally defective. 
 State V. Harris, 2 Halst. 361. And it must 
 appear that the grand jurors who were 
 affirmed stated that they had conscientious 
 scruples against taking an oath. State v. 
 Fox, lb. 244. 
 
 18. Proof required. Evidence before a 
 grand jury must be such as would be com- 
 petent before a petit jury. U. S. v. Reed, 
 2 Blatchf 435. The oath may be general 
 without reference to a criminal charge 
 against any particular person. But if the 
 oath embraces persons by name, evidence 
 cannot be given under it against others. lb. 
 
 19. The grand jury ought not to find an 
 indictment when the evidence taken to- 
 gether, if unexplained or uncontradicted, 
 would not warrant a conviction. Peoi^le v. 
 Tinder, 19 Cal. 539. 
 
 20. Where an indictment was found by 
 the grand jury upon the mere statement of 
 a witness without oath, it was quashed for 
 that reason. U. S. v. Coolidge, 2 Gallis. 
 334. 
 
 21. But a grand jury, without examining 
 witnesses over again, may find another in- 
 dictment in place of the one found by them 
 at a previous term. Com. v. Woods, 10 
 Gray, 477. 
 
 22. The fact that the defendant was re. 
 quired by the grand jury to testify, and in 
 pursuance of such requisition did testify 
 before them touching the charge, vitiates 
 the indictment. State v. Froiseth, 16 Minn. 
 296. 
 
 23. Presence of stranger. The mere 
 fact that a stranger was present in the 
 grand jury room when the indictment was 
 found would not render it void, but other- 
 wise if he participated in the proceedings. 
 Stat^ V. Clough, 49 Maine, 573. 
 
 24. Vacancy in office of district attor- 
 ney. Where an indictment was found while 
 the office of district attorney was vacant, it 
 
 was held that the action of the new district 
 attorney, in arraigning and trying the pris- 
 oner upon the indictment, was an adoption 
 of it, and evidence to the court of his con- 
 currence in the action of the grand jury, 
 and of his prosecution of the prisoner in the 
 name of the United States, pursuant to the 
 statute. U. S. v. McAvoy, 4 Blatchf. 418. 
 
 25. Signing. It is not a ground for ar- 
 resting juelgment, that the foreman of the 
 grand jury signed the indictment with his 
 surname and the initials of his christian 
 name. Com. v. Hamilton, 15 Gray, 480; 
 State V. Taggart, 38 Maine, 298 ; Com. v. 
 Gleason, 110 Mass. 66; s. c. 2 Green's Crim. 
 Reps. 260. 
 
 26. In Alabama, an indictment under the 
 forms prescribed by the code, need not be 
 signed by the solicitor. Harrall v. State, 
 26 Ala. 52. 
 
 27. Indorsing tru3 bill. The words " a 
 true bill," must \)e inelorsed upon every in- 
 dictment. Com. V. Walters, 6 Dana, 291. 
 The foreman of the grand jury indorsed on 
 the indictment, "A true bill. Ira Allen," but 
 omitted the word "foreman." Held, that 
 the indictment was, notwithstanding, good. 
 State V. Brown, 31 Vt. 602. 
 
 28. The neglect of the foreman of the 
 granel jury to certify under his hand an 
 indictment to be a true bill, is grounel for 
 quashing the indictment before trial, but 
 not for arrest of judgment. State v. Burgess, 
 24 Mo. 381. 
 
 29. Return of indictment. The indict- 
 ment must be brought into court by the 
 granel jurors in a body, and delivered to the 
 court by their foreman. Com. v. Johnson, 
 Thach. Crim. Cas. 284 ; State v. Cox, 6 Ired. 
 44 ; Nomaque v. People, Breese, 109. And 
 there must be an entry of record, showing 
 that the indictment was returned by the 
 grand jury in open court. Brown v. State, 
 9 Yerg. 198; Chappel v. State, 8 lb. 166. 
 
 30. But it is not a good objection to an 
 indictment properly returned, indorsed, and 
 filed, that the fact of its return is not entered 
 on the minutes of the court. Mose v. State, 
 35 Ala. 421. 
 
 31. Indorsement of prosecutor. Iii Mis- 
 sissippi, it has been helel a fatal objection
 
 528 
 
 INDICTMENT. 
 
 Finding. 
 
 Venue. 
 
 thai no prosecutor is marked on the indict- 
 ment. Kirk V. State, 13 Smed. & Marsh. 
 406. In Tennessee, it is required by the act 
 of 1801, cl\. 30, §1. Medaris v. State, 10 
 Yerg. 239. In the United States courts, it 
 is not necessary. U. S. v. Muudell, 6 Call, 
 245. 
 
 32. In Missouri, under the statute requir- 
 ing the name of tlie prosecutor to be indorsed 
 on the indictment in certain cases, it is sutfi- 
 cient if the name be on any part of the in- 
 dictment. Williams v. State, 9 Mo. 268. 
 
 33. The name of a married woman marked 
 on an indictment as prosecutrix, is a nullity. 
 Mayers v. State, 11 Humph. 40. 
 
 34. An indorsement on an indictment that 
 it " is preferred upon the testimony of the 
 party injured, who was summoned on pre- 
 sentation, and by order of the grand jury," 
 does not show that the indictment was pre- 
 ferred on the information of any of the grand 
 jury, and is not a compliance with a statute 
 requiring the indorsement of the prosecutor. 
 State V. Denton, 14 Ark. 348. 
 
 35. In Kentucky, the name of the prose- 
 cutor (who will be answerable for costs), the 
 town or county in which he resides, with his 
 title or i^rofession, must be written at the 
 foot of every indictment for a trespass, be- 
 fore it is presented to the grand jury. The 
 omission of his addition is a fatal defect, not 
 cured by security for the costs required of 
 and given by the prosecutor. Com. v. Gore, 
 3 Dana, 475; Allen v. Com. 2 Bibb, 210. 
 
 36. Indorsement of names of witnesses. 
 By the common law, the names of the wit 
 nesses for the prosecution need not be 
 indorsed on the indictment or information ; 
 and there is no act of Congress requiring it. 
 U. S. V. Shepard, 1 Abb. 431. 
 
 37. Filing. Where the trial and convic- 
 tion occur at the term at which the indict- 
 ment is found, the court may, at any time 
 during that term, as well after as before 
 conviction, cause the clerk to indorse the 
 indictment "filed," and to date the indorse- 
 ment according to the fact and sign it, and 
 may also cause an entry to be made on the 
 minutes, that the indictment was returned 
 into court by the grand jury, with the day 
 on which it was so returned. Franklin v. 
 
 State, 28 Ala. 9; Saunders v. Coffin, 16 lb. 
 421. 
 
 38. There being no words in the statute 
 of New York (3 R. S. 5th ed. p. 1018, § 38), 
 indicating an intention that the indictment 
 shall be void if not filed, the provision re- 
 quiring it to be filed is to be regarded as 
 merely directory. Dawson v. People, 25 
 X. Y. 399. 
 
 39. The failure of the clerk to enter on 
 an indictment the day of its return by the 
 the grand jury into court, is not ground for 
 the discharge of the prisoner. State v. 
 Clark, 18 Mo. 432. 
 
 40. Delivery to prisoner. A statute re- 
 quiring that a copy of the indictment shall 
 be delivered to the prisoner two days before 
 the trial, means that the copy shall be de- 
 livered two days before the cause is tried by 
 the jury, and not two days before the pris- 
 oner is arraigned. U. S. v. Curtis, 4 Mason, 
 232. 
 
 41. In Alabama, it is the constitutional 
 right of the defendant to be furnished with 
 a copy of the indictment before he can be 
 compelled by the court to be put upon his 
 trial. But in felonies not capital, this right 
 will be held to be waived if not made at the 
 proper time. DiiskiU v. State, 45 Ala. 21. 
 
 42. Loss of indictment. When the in- 
 dictment has been mislaid, lost or destroyed, 
 a copy cannot be substituted. Ganaway v. 
 State, 22 Ala. 772, Goldwait and Gibbon, 
 iS., dissenting ; and the prisoner cannot be 
 tried. Bradsha,w v. Com. 16 Graft. 507. 
 When an indictment has been abstracted 
 from the clerk's office, the prosecution will 
 not thereby be abated, but the pending 
 prosecution may be dismissed with the con- 
 sent of the court, and a new indictment be 
 found. Com. v. Keger, 1 Duvall, Ky. 249. 
 See Henry v. Com. 4 Bush, Ky. 427. 
 
 3. Venue. 
 
 43. Must be laid in county. An indict- 
 ment which does not lay the venue in any 
 county, is bad. Territory agst. Freeman, 
 McCahon's Kansas, 56. 
 
 44. Where the county is named in the 
 commencement of the indictment, the venue
 
 INDICTMENT. 
 
 329 
 
 Venue. 
 
 Caption. 
 
 is sufficiently laid in the county aforesaid. 
 State V. Ames, 10 Mo. 743. 
 
 45. The indictment must show that the 
 venue and any material fact alleged, was at 
 a place within the jurisdiction of the court. 
 But when only one county is named, the 
 words " county aforesaid " will refer to the 
 county in the margin. State v. Conley, 39 
 Maine, 78. 
 
 46. An indictment described the defend- 
 ant as late of U., in the county of O., and 
 then laid the offense at F., in said county, 
 F. being, in fact, in the county of H. Held 
 that this was equivalent to laying the offense 
 in the latter county, F. being a town created 
 by public statute. People v. Breese, 7 Cow. 
 429. 
 
 47. Where a new county is created. If 
 a crime be committed in the county of A., 
 and afterward the county of A. be divided, 
 and the part of it in which the offense was 
 committed be created a new county called 
 B., the offense is indictable in the county 
 of B. State v. Jones, 4 Halst. 357, 
 
 48. Statutes prescribing the limits of 
 counties and towns are pul)licacts, of which 
 courts will judicially take notice. The 
 county of A. was incorporated by erecting 
 certain existing towns, by their corporate 
 names, into a new county. P. was one of 
 the towns named in the act, and was taken 
 from the county of C. Held that an indict- 
 which charged the oflFense to have been 
 committed in P., now in the county of A., 
 was sufficient without alleging what county 
 P. was in when the offense was committed. 
 State V. Jackson, 39 Maine, 291. 
 
 4. Caption. 
 
 49. Nature and office. The caption forms 
 no part of the indictment, and is not es.sen- 
 tial to its validity. State v. Peterson, 2 La. 
 An. 221 ; State v. Lyons, 3 lb. 154. It may 
 be affixed by the clerk at any time, with the 
 view to the perfecting oi the record. Myers 
 V. People, 4 N. Y. Supm. N. S. 292. 
 
 50. The office of the caption is to state the 
 style of the court, the time and place when 
 and where the indictment was found, and in 
 some of the States, the jurors by whom it 
 was found ; and these particulars it must set 
 
 forth with reasonable certainty. State" v. 
 Gary, 36 New Hamp. 359. 
 
 51. When an indictment is removed from 
 an inferior to a superior court, the caption 
 consists wholly of a history of the proceed- 
 ings, naming the court where it was found, 
 the jurors' names by whom found, and the 
 time and jDlace were found. People v. Ben- 
 nett, 37 N. Y. 117. 
 
 52. How entitled. In Massachusetts, al- 
 though the caption is usually entitled as of 
 the first day of the term, yet an indictment 
 with such a caption may be presented for an 
 offense committed subsequent to that day, 
 and may be proved by reference to the clerk's 
 certificate thereon to have been returned 
 after the day on which it alleges the offense 
 was committed. Com. v. Hines, 101 Mass. 
 33; Com. v. Stone, 3 Gray, 453; Com. v. 
 Colton, nib. 1. 
 
 53. What it should contain. The cap- 
 tion must state in what court the indictment 
 was found, by what jurors it was returned, 
 and the place and time where and when it 
 was presented. State v. Williams, 2 Mc- 
 Cord, 201 ; Thomas v. State, 5 How. Miss. 
 31; Joseph v. State, lb. 20; State v. Sutton, 
 1 Murphy, 281. If it appear that the in- 
 dictment was found by a grand jury not le- 
 gally constituted, it will not support a con- 
 viction. Fitzgerald v. State, 4 Wis. 395. It 
 should show the county in which the court 
 is held, and that the grand jurors were 
 sworn. State v. Fields, Peck, 140; though 
 it would be sufficient if the latter fact ap- 
 peared in the body of the indictment. State 
 V. Long, 1 Humph. 386. It need not state 
 the title of the court. Taylor v. Com. 2 Va. 
 Cas. 940. But it should show that the grand 
 jurors were of the proper county. Byrd v. 
 State, 1 How. Miss. 163 ; Cornelius v. State. 
 23 Miss. 782. The averment that the grand 
 jurors were ''good and lawful men," is a 
 sufficient averment of their qualifications. 
 Beauchamp v. State, 6 Blackf. 299 ; Corn- 
 well V. State, 1 Mart. & Yerg. 147 ; Bonds 
 V. State, lb. 143. The indictment need not 
 state the names of the grand jurors by whom 
 it was found. People v. Haynes, 55 Barb_ 
 450. 
 
 54. In New Jersey, where the names and
 
 330 
 
 INDICTMENT. 
 
 Caption. 
 
 Commencement. 
 
 Body of the Indictment. Name of Defendant. 
 
 style of office of the judges composing the 
 court do not appear in the caption, the in- 
 dictment will be quashed. State v. Zule, 5 
 Halst. 348. 
 
 55. Indictment rendered certain by. 
 The caption of an indictment which shows 
 when, where, and by whom the court was 
 lield, and who were elected and sworn as 
 grand jurors, may be resorted to in aid of 
 the indictment as a part of the record. 
 Noles V. State, 24 Ala. 672. 
 
 56. The date of the offense may be ren- 
 dered certain hy referring to the year stated 
 in the caption. Jacobs v. Com. 5 Serg. & 
 Rawle, 315 ; and when the county is stated 
 in the caption, the words " then and there " 
 in the indictment will be referred to that 
 county. State v. Bell, 3 Ired. 506. It is 
 not a good objection to the caption that the 
 dates are given in figures. State v. Smith, 
 Peck, 165. 
 
 57. Amendment. A material error in the 
 caption is not fatal, but the caption may be 
 amended on motion at any time during the 
 term at which it is found. State v. Creight, 
 1 Brev. 169; Moody v. State, 7 Blackf. 424; 
 Allen V. State, 5 Wis. 329; State v. Emmott, 
 23 lb. 632. 
 
 58. Omission of caption. On a hearing 
 of a motion in arrest of judgment, defects in 
 the caption of the indictment, or even the 
 omission of the caption, cannot be noticed. 
 State V. Thibeau, 30 Vt. 100. 
 
 59. An indictment which remains in the 
 same court in which it was found, need not 
 have a caption. Wagner v. People, 4 N. Y. 
 Ct. of Appeals Decis. 509; affi'g 54 Barb. 
 367 ; s. c. 2 Keyes, 684. 
 
 5. Commencement. 
 
 60. Form. The following are all the re- 
 quisites of a good commencement to an in- 
 dictment : " The jurors of the people of the 
 
 State of , in and for the body of the 
 
 county of , upon their oaths present." 
 
 People V. Bennett, 37 N. Y. 117. 
 
 6. Body of the indictment. 
 (f() Name of defendant. 
 
 61. Must be alleged. Where an indict- 
 ment against a surveyor of a public road de- 
 
 scribed the road, but did not name the sur- 
 veyor, it was held bad on a demurrer. Sni- 
 der's Case, 2 Leigh, 744. 
 
 62. Where the defendant was charged 
 with committing an offense with " divers 
 other persons, to wit, to the number of five," 
 and the indictment did not state that the 
 five others were unknown, or give their 
 names, it was held that the indictment was 
 bad. State v. O'Donald, 1 McCord, 532. 
 
 63. An indictment for permitting gam- 
 bling must give the names of the persons 
 whom the defendant permitted to play, or 
 state that they are vinknown. Buck v. State, 
 McCook, 61. 
 
 64. Name unknown. A defendant should 
 be indicted by his true name when known. 
 But if unknown, he may be indicted by any 
 name that is suflScient to identify him. If, 
 when arraigned, he fails to give his true 
 name upon request, he cannot afterward 
 complain if he is tried by the name specified 
 in the indictment, or given by him upon ar- 
 raignment, although not his true name. 
 State V. Bums, 8 Nev. 251. 
 
 65. A name may be alleged in an indict- 
 ment to be unknown, notwithstanding the 
 grand jury had the means of informing 
 themselves of, or might with reasonable dili- 
 gence have ascertained it. Com. v. Stod- 
 dard, 9 Allen, 280. 
 
 66. It is only when the defendant's name 
 cannot be discovered that it is proper to de- 
 scribe him in the indictment by a fictitious 
 name, with the statement that his name is 
 unknown. Where, therefore, the defendant 
 was neither named nor described, but re- 
 ferred to as " a man in Turner Hall whose 
 name to the grand jury is unknown," the in- 
 dictment was held bad. Geiger v. State, 5 
 Iowa, 484. 
 
 67. Christian name. An indictment 
 which alleges that the defendant's christian 
 name is unknown to the grand jury is suffi- 
 cient. Skinner v. State, 30 Ala. 524. 
 
 68. Every person is presumed to have a 
 christian name. If unknown, it should be 
 so stated in the indictment. If known, the 
 allegation that the christian name is un- 
 known would be improper. An indictment 
 for murder was held defective which de-
 
 INDICTMENT. 
 
 331 
 
 Body of the Indictment. 
 
 Name of Defendant. 
 
 scribed the deceased as " one Hardy," with- 
 out averring that his name was otherwise to 
 the jurors unknown. People v. Walters, 5 
 Parker, 661; s. c. 6 lb. 15; 32 N. Y. 147. 
 
 69. In Kentucky, under the statute (Crim. 
 Code, § 124), an indictment will be good al- 
 though the christian name of the party 
 charged be omitted. Com. v. Kelcher, 3 
 Mete. Ky. 484. 
 
 70. An indictment for murder is not bad 
 for uncertainty or duplicity which charges 
 tlie prisoner with the killing of T. H., aliais 
 T. J. Kennedy v. People, 39 N. Y. 245. 
 
 71. Where the prisoner's full name has 
 been stated in the first part of the indict- 
 ment, it will be sufficient afterward to refer 
 to it by the christian name alone. State v. 
 Cox, 6 Ired. 44 ; State v. Coppenburg, 2 
 Strobh. 273. 
 
 72. Abbreviation. ^Vhere a person's 
 surname is usually abbreviated and written 
 Avith a prefix, a name written in that way in 
 an indictment will be sufficient. State v. 
 Kean, 10 New Hamp, 347. 
 
 73. Middle letter. An initial letter in- 
 terposed between the christian and surname 
 being no part of either, it is immaterial 
 whether one be introduced which the party 
 is not accustomed to use, or one be omitted 
 which he is accustomed to use, or whether 
 those used by him in writing his name be 
 transposed. State v. Manning, 14 Texas, 
 402; Edmundson v. State, 17 Ala. 179; State 
 V. Martin, 10 Mo. 391. On the other hand, 
 it has been held, that although the middle 
 letter of a person's name need not be alleged, 
 yet that if stated, it must be proved as laid, 
 Brice V. State, 19 Ohio, 423; State v. 
 Hughes, 1 Swan, 262. The improper addi- 
 tion of '■'•Junior'''' to the defendant's name 
 will not vitiate the indictment. Com. v» 
 Perkins, 1 Pick. 388. 
 
 74. Idem sonans. Uutton for Herdson, in 
 an indictment, is not a misnomer. State v. 
 Ilutson, 15 Mo. 512. But held otherwise as 
 to Donald ^jr Donnel. Donnel v. U. S. 1 
 Morris. 141. 
 
 75. " OwenH B. Havehj'''' and " Owen D. 
 Haverly,''' also " Blanhenship " and " Blacken- 
 ship " are idem sonant as matter of law. 
 State v. Havely, 21 Mo. 498; State v. Blank- 
 
 enship, lb. 504, Scott J., dissenting. Held 
 that it was a question of fact for the jury. 
 
 76. Where D. was tried separately under 
 an indictment charging him with having 
 committed a riot with one Land, and the 
 evidence showed that the name of the latter 
 was Lance, it was held that as there was no 
 doubt of the identity of the man, the vari- 
 ance was not material. Davenport v. State, 
 38 Ga. 184. Whether a name written in an 
 indictment is David or Daniel, is to be de- 
 termined by the court. Com. v. Riggs, 14 
 Gray, 376. 
 
 77. Description. The estate, degree, and 
 mystery of the accused, should be alleged 
 in the indictment. State v. Hughes, 2 Har. 
 & McHen. 479. 
 
 78. In Indiana, an indictment at common 
 law need not describe the defendant by his 
 addition. State v. McDowell, 6 Blackf. 49. 
 
 79. An indictment for embezzlement, un- 
 der the statute of New York (2 R. S. 678^ 
 § 59), must allege that the defendant was a 
 clerk or servant of some person (or an offi- 
 cer or agent of a corporation), and that the 
 property he is charged with embezzling 
 came to his possession, or under his care, by 
 virtue of such employment. People v. Al- 
 len, 5 Denio, 76. 
 
 80. Where an indictment alleges that the 
 name of the deceased was A. B., "a person 
 of color," the words "a person of color," 
 may be rejected as surplusage. Farrow v. 
 State, 48 Ga. 30. 
 
 81. Partners should be indicted as indi- 
 viduals. Peterson v. State, 32 Texas, 477. 
 
 82. An indictment against overseers of the 
 poor for neglect of duty, must allege that 
 they were overseers of the poor of the town ; 
 that it was their duty to relieve the pauper, 
 and that they intentionally and willfully 
 neglected to do so. State v. Hoit, 3 Foster, 
 355. 
 
 83. An indictment which charges the 
 defendant in one count with being an acces- 
 sory before the fact, and in another count 
 with being an accessory after the fact to the 
 same felonj', is good. So a receiver may be 
 ciiarged as an accessory in one count, and 
 for a substantive felony in another count. 
 U. S. V. Dickinson, 2 McLean, 325.
 
 332 
 
 INDICTMENT. 
 
 Body of the Indictment. Name of Party Injured. 
 
 Time and Place. 
 
 84. An indictment for extortion commit- 
 ted by an agent, may charge that the offense 
 Avas committed by the principal. Com. v. 
 Bagley, 7 Pick. 279. 
 
 (b) Name of jMrty injured. 
 
 85. Must be stated. An indictment for 
 an offense against the person or property of 
 an individual, must allege the christian and 
 surname of the person injured if known. 
 Willis V. People, 1 Scam. 399. 
 
 86. An indictment for an assault with in- 
 tent to rob, must state who was intended to 
 be robbed, and of what. Connolly v. People, 
 3 Scam. 474. 
 
 87. Name unknown. The averment in 
 an indictment, that the name of the person 
 injured is unknown, is material and tra- 
 versed by the plea of not guilty. Cameron 
 V. State, 8 Eng. 712. 
 
 88. "Where an indictment for retailing 
 liquor, alleged that the liquor was sold to a 
 person whose name was unknown to the 
 grand jurors, and it appeared that they 
 might have ascertained the name of the per- 
 son if they had asked the witness who tes- 
 tified before them, it was held that the in- 
 dictment could not be maintained. Blodget 
 V. State, 3 Ind. 403. 
 
 89. Initials. Although the name of the 
 person receiving the injury, when known, 
 must be set out in the indictment, yet if he 
 is described by the initials of his christian 
 name, and he is as well known by that as 
 by his full name, it is sufficient. Vauder- 
 mark v. People, 47 111. 122. 
 
 90. An indictment is sufficiently certain, 
 which describes third persons by the initials 
 of their christian names. State v. Ander- 
 son, 3 Rich. 172. 
 
 91. Addition. The indictment need not 
 describe by any addition, the person upon 
 whom the offense therein set forth, is al- 
 leged to have been committed. Com. v. 
 Varney, 10 Cash. 402. 
 
 92. Where an offense is more highly pun- 
 ishable when committed upon a particular 
 class of persons, an indictment which does 
 not allege whether the injured person be- 
 longs to that particular class, will be sus- 
 tained ; and ui)on a conviction, the court will 
 
 award only the milder punishment. State 
 V. Fielding, 32 Maine, 585. 
 
 93. Omission of name. Even if it is nec- 
 essary (which is doubtful) to name the 
 prosecutor in au indictment to recover a 
 fine or penalty, the omission is not material 
 when his right to any part of the recovery 
 is barred by the statute of limitation. State 
 V. Robinson, 29 New Hamp. 274. 
 
 94. How determined. The question 
 whether or not the name of the deceased in 
 an indictment for murder, is the true name, 
 is one of fact for the jury. State v. Angel, 
 7 Ired. 27. 
 
 (c) Time and place. 
 
 95. Must be stated with certainty. Al- 
 though time and place must be stated with 
 certainty in the indictment, yet they need 
 not be proved on the trial as stated, unless 
 they are necessary ingredients of the offense. 
 People V. Stocking, 50 Barb. 573; State v. 
 Munson, 40 Conn. 475; s. c. 2 Green's Crim. 
 Reps. 493. 
 
 96. The general rule requiring certainty in 
 averment of time and place does not apply 
 to those descriptive portions of the indict- 
 ment whose office it is to so qualify or limit 
 the object acted upon as to show it to be a 
 proper subject of complaint, unless time or 
 place is an element necessary to constitute it 
 a proper subject, and the existence of this 
 element would be susceptible of question if 
 not averred. State v. Cook, 38 Vt. 437, per 
 Steele, J.; State v. 0'Keefe,41 lb. 691. 
 
 97. Where the averment as to time and 
 place is repugnant or uncertain, the indict- 
 ment will be bad. Jane v. State, 3 Mo. 61. 
 But such averment need only be certain to a 
 common intent. State v. Brisbane, 2 Bay, 
 451 ; State v. G. S. 1 Tyler, 295 ; State v. 
 Thayer, 4 Strobh. 286. 
 
 98. Words "then and there." Where 
 the venue is laid in the margin, the words 
 " then and there" sufficiently show the place 
 where the offense was committed. State v. 
 Slocum, 8 Blackf. 315. But where time and 
 place are charged with certainty, the words 
 " then and there " need not be repeated. 
 State V. Capers, 6 La. An. 267; State v. 
 Wilson, 11 lb. 163.
 
 INDICTMENT. 
 
 533 
 
 Body of the Indictment. 
 
 Time and Place. 
 
 99. In general, the allegation of time and 
 place, " then and there," should be repeated 
 to every material averment. But if two 
 places are named, and afterward a material 
 fact be laid " then and there," the indict- 
 ment will be bad for uncertainty. State v. 
 Hardwick, 2 Mo. 220; Markley v. State, 10 
 lb. 291; State v. Hayes, 24 lb. 358; State 
 V. Roberts, 26 Maine, 268. 
 
 100. But although where two distinct 
 times and places have been mentioned, in 
 and at which the offense has been committed, 
 and reference is afterward made to time and 
 place by the words " then and there," the 
 allegation is defective, yet this is not the 
 case where but one time and place is men- 
 tioned with reference to the commission of 
 the offense, and the other place is spoken of 
 as the residence of one of the parties. State 
 V. Jackson, 39 Maine, 291. 
 
 101. An indictment which charges that 
 A. B. did construct and use a public gaming 
 place in the town of H., in the county of H., 
 at which a game of chance was played, and 
 that the defendant, at said town of H., did 
 l^lay at the said game, "and did then and 
 there bet money with the said A. B., at and 
 upon the said game," is insufficient in not 
 alleging that the playing and betting by the 
 defendant were at any public gaming place. 
 The words "then and there " referring only 
 to the time and to the county of H., and not 
 to the place of gaming. State v, Braxton, 
 3 Ired. 354. 
 
 102. An indictment charged that L. D., 
 late of the district of Maryland, mariner, on 
 the 31st day of October, 1839, then and there 
 being on board a certain brig belonging to 
 a citizen of the United States, on the high 
 seas, on the Atlantic Ocean, in latitude 
 thirty-three, out of the jurisdiction of any 
 particular State, and within the jurisdiction 
 of the United States, did tlien and there com- 
 mit, &c. Held that, as the word "there" 
 first above mentioned referred to the district 
 of Maryland, it was an allegation that the 
 crime was committed in that district, and 
 consequently that this allegation was re- 
 pugnant to the subsequent averment in 
 the same sentence, that it was committed 
 " out of the jurisdiction of any partic- 
 
 ular State." U. S. v. Dow, Campbell C. C. 
 34. 
 
 103. Rule as to the averment of time. 
 The indictment need not state the day on 
 which it was found, or the name of the pre- 
 siding judge. State v. Folke, 2 La. An. 744. 
 
 104. An indictment which omits to state 
 the time when the offense was committed 
 will be bad on demurrer. Roberts v. State, 
 19 Ala. 526; State v. Hopkins, 7 Blackf. 
 494. But when time does not enter into the 
 offense, it need not be alleged. State v.. 
 Sam, 2 Dev. 567. 
 
 105. An indictment which does not state 
 any year, is bad for uncertainty. Com. v. 
 Griffin, 3 Cush. 523 ; and if the offense be 
 laid on an impossible day or a future day, it , 
 
 State V. Sexton, 3 Hawks, / 
 
 will be fatal 
 184. 
 
 ,106. The time of committing an offens 
 (except where the time is of the essence of 
 the offense), may be laid on any day previous 
 to the finding of the indictment, during the 
 period within which it may be prosecuted. 
 Shelton v. State, 1 Stew. & Port. 208. 
 
 107. Where a 7ioUe prosequi was entered 
 to the first of the two counts of an indict- 
 ment, and the time of committing the of- 
 fense was only shown by reference to the 
 first count, it was held that the defendant 
 might be tried and convicted on the second 
 count. Wills V. State, 8 Mo. 52. 
 - 108. When the time becomes material, 
 either as constituting an element of the 
 crime, or as affording the accused a bar to 
 the proceeding, it must be accurately stated. 
 State V. Robinson, 29 New Hamp. 274; 
 State V. Oaverly, 51 lb. 446. 
 
 109. When the offense from its nature pre- 
 supposes a succession of acts to constitute it, 
 it maybe charged as having been done on a 
 given day, "and on divers other days and 
 times between that day and the day of the 
 finding of the indictment ; " and evidence is 
 admissible to show that acts were committed 
 at any time during the period mentioned. 
 State V. Cofren, 48 Maine, 364. 
 
 110. When an averment is made that an 
 offense was committed between a day certain 
 and the day of finding the indictment, and 
 there is nothing on the record showing the 
 
 V
 
 534 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Time and Place. 
 
 day when the indictment was found, it is 
 equivalent to an averment that it was com- 
 mitted between the first day alleged and the 
 day on which the term of the court com- 
 menced. Com. V. "Wood, 4 Gray, 11. 
 
 111. Where an offense which may have 
 continuance is alleged to have been com- 
 mitted on a day certain, and on divers other 
 days which are uncertainly alleged, the in- 
 dictment is effectual for the act alleged on 
 the day certain, and void only as to the act 
 alleged on the other days. Wells v. Com. 
 12 Gray, 326. 
 
 112. An indictment which charges that 
 the offense was committed on a future day 
 is a fatal defect which may be taken advan- 
 tage of by motion in arrest of judgment, or 
 by demurrer. State v. Litch, 33 Vt. 67. 
 
 113. The indictment will be good if the 
 day and year can be collected from the 
 whole statement, though they be not ex- 
 pressly averred. Gill v. People, 5 N. Y. 
 Supm. K S. 308. 
 
 114. An indictment at common law may 
 describe the year by the initials A. D. and 
 figures. State v. Hodgeden, 3 Vt. 481. An 
 indictment which, in stating the year, omits 
 the words "year of our Lord," is fatally 
 defective. Whiteside v. People, Breese, 4 ; 
 contra^ Engleman v. State, 2 Carter, 91 ; 
 State v. Gilbert, 13 Vt. 647; State v. Lane, 
 4 Ired. 113; Hall v. State, 3 Kelly, 18. 
 
 115. Although the offense is charged to 
 have been committed after the finding of the 
 indictment, yet if a day certain is laid be- 
 fore, the other may be rejected as surplusage. 
 State V. Woodman, 3 Hawks, 384. 
 
 116. Where the offense was charged to 
 have been committed the day previous to 
 that on which the statute under which the 
 prosecution was had went into operation, 
 but as continuirg to a day subsequent, it 
 was held that the indictment was sufficient, 
 i^ichol's Case, 7 Gratt. 589. 
 
 117. An indictment which alleges that the 
 same offense was committed on different 
 days, is bad. State v. Hendricks, Cam. & 
 Nor. 369. 
 
 118. Where a statute requires that the 
 offense shall be prosecuted within a year, an 
 indictment alleging its commission within 
 
 the year is good on its face, and if the proof 
 shows that the offense was committed at an 
 anterior time, the only way the prisoner can 
 avail himself of the objection, is by excep- 
 tions or motion for a new trial. Strawn v. 
 State, 14 Ark. 549. 
 
 119. Under a statute providing that night 
 in criminal prosecutions should be " the time 
 between one hour after the sunsetting on one 
 day, and one hour before sunrising on the 
 next day," it was held that an indictment 
 was good notwithstanding it described an 
 offense as committed in the night between 
 sunset and sunrise. Com. v. Lamb, 1 Gray, 
 493. 
 
 120. Where the statute limits the time for 
 prosecuting an offense, the indictment must 
 show that the time is within the limit. 
 State V. Rust, 8 Blackf. 195. 
 
 121. Use of figures. Some of the cases 
 hold that words, not figures, must be used 
 in designating numbers, or in charging the 
 date of the offense. U. S. v. Prescott, 2 
 Abb.169; Chambers v. People,4 Scam. 351 ; 
 State V. Raiford, 7 Porter, 101 ; State v. 
 Seamons, 1 Greene, 418. 
 
 122. In New Jersey it has been held error 
 in an indictment, to express numbers or 
 dates by figures, except where the indict- 
 ment sets out the tenor of the instrument. 
 Berrian v. State, 2 Zabr. 9. It has been held 
 otherwise in Maine, Mississippi and Louisi- 
 ana. State V. Reed, 35 Maine, 489 ; Kelly 
 V. State, 3 Smed. & Marsh. 518; State v. 
 Egan, 10 La. An. 698. A figure omitted 
 from an indictment cannot be supplied. 
 State v. Street, 1 Tayl. 158. 
 
 123. Rule as to averment of place. The 
 place of the alleged crime must be so stated 
 as to show that the court has jurisdiction of 
 the offense, and when the place is matter of 
 description, it must be particularly and truly 
 stated, and proved as laid. State v. Cotton, 
 4 Foster, 143 ; McBride v. State, 10 Humph. 
 615. 
 
 124. The following was held a sufficient 
 allegation of locality: "That Z. P., late of 
 &c., at the township aforesaid, «ikc., one 
 barn of the property of N. R., not parcel of 
 the dwelling-house of the said N. R., there 
 situate, willfully and maliciously did bum
 
 INDICTMENT. 
 
 335 
 
 Body of the Indictment. 
 
 Time and Place. 
 
 Statement of the Offense. 
 
 and caused to be burned.'' State v. Price, 
 6 Halst. 203. 
 
 125. The place when; the offense was 
 committed must be alleged in the body of 
 the indictment. It is not sufficient to charge 
 it in the margin only. State v. Cook, 1 Mo. 
 547. 
 
 126. But if the town and county are dis- 
 tinctly averred in the indictment, it is suffi- 
 cient without alleging that the offense was 
 committed in the State ; and where the 
 county is stated in the margin, the place 
 may be described in the town of A., " in the 
 county aforesaid." State v. Wentworth, 37 
 New Hamp. 196. 
 
 127. An indictment was entitled in the 
 margin, " The State of Alabama, Butler 
 county," and in the body of the indictment, 
 it was recited that " the grand jurors," «&c., 
 *'of the county of Buter, upon their oaths 
 present, " &c. Held, that as the courts were 
 bound to know the names of all the counties 
 in the State, and there was no such county 
 as Buter, the words in the county aforesaid 
 must refer to the county stated in the mar- 
 gin of the indictment. Reeves v. State, 30 
 Ala. S3. 
 
 128. Under the statute of New York (3 
 R. S. p. 737), providing that when an offense 
 shall be committed on the boundary of two 
 counties or within 500 yards of the boundary, 
 an indictment for the same may be found, 
 and a trial and conviction had in either of 
 such counties, an indictment found in the 
 county of A. is good which charges the 
 commission of the crime in the county of B., 
 and within 500 yards of the boundary line 
 between the county of A. and the county of 
 B. People v. Davis, 56 N. Y. 95. 
 
 129. An indictment against a town for not 
 making and opening a road, is sufficient if 
 it describe the road as leading from one 
 terminus in various directions, through the 
 town, to another terminus, without giving 
 the survey by courses and distances. State 
 V. Newfane, 13 Vt. 433. 
 
 130. An indictment for extortion must 
 state where the offense was committed. Hal- 
 scy v. State, 1 South. 334. 
 
 31L An indictment for fraudulently mort- 
 gaging real estate before it is conveyed must 
 
 state the time and place where the fraud 
 was committed. State v. "Walker, 14 Mo. 
 398. 
 
 (d) Statement of the offeme. 
 
 132. Must be intelligible. The indict- 
 ment is good if it contain the substance of 
 the offense, so that the defendant have in- 
 telligible nolice of the charge against him. 
 All other defects are cured by the verdict 
 and judgment. Thompson v. People, 3 
 Parker, 308. The certainty required in a 
 declaration is sufficient for an indictment. 
 Sherban v. Com. 8 Watts, 313; State v. Mc- 
 Cormick, 3 Carter, 305. 
 
 133. When the varied aspect in which the 
 acts of the defendant are represented in the 
 indictment is such as to render it difficult 
 to determine what particular offense he is 
 legally charged with, judgment will be 
 arrested. State v. Smith, 30 New Hamji. 
 399. 
 
 134. But if the indictment is conveniently 
 legible, it will not be bad simply because it 
 contains interlineations ; and in the absence 
 of anything appearing on the face of a writ- 
 ten instrument, or being shown extrinsically, 
 tending to prove that interlineations were 
 made subsequently to the execution of the 
 instrument, it will be presumed that they 
 were made before or at its execution. French 
 v. State, 13 Ind. 670. 
 
 135. An indictment is sufficient when it 
 substantially charges every act necessary to 
 constitute the offense in language so plain 
 that the nature of the offense may be easily 
 understood by the jury. Kersh v. State, 
 34 Ga. 191. Thus, an indictment for a con- 
 spiracy under the act of Congress of March 
 3d, 1867 (14 U. S. Stats, at Large, 484), w^as 
 held sufficient which alleged an unlawful 
 combination, and specified an act of one of 
 the conspirators in relation thereto, without 
 showing in what manner the act tended to 
 effect the object of the conspiracy. U. S. v. 
 Donau, 11 Blatchf. 168; s. c. 3 Green's Crim. 
 Reps. 306. 
 
 136. All that is requisite to the validity 
 of an indictment, is that it inform the de- 
 fendant of the grounds of the charge against 
 him; that it state facts sufficient to enable
 
 330 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 the court to see that an indictable offense is 
 alleged ; and that it enable tbe defendant to 
 prepare his defense, and to plead the judg- 
 ment against him in bar of a second prose- 
 cution. People V. Graves, 5 Parker, 134. 
 
 137. It will not be presumed that a differ- 
 ent offense is intended in the indictment 
 from that charged in the complaint before 
 the committing magistrate, because circum- 
 stances of aggravation set forth in the com- 
 plaint in describing an assault are omitted 
 in the indictment. State v. Bean, 36 New 
 Hamp. 122; apjjroved in State v. Stevens, 
 lb. 59. 
 
 133. Bad spelling which does not obscure 
 or change the meaning will not render an 
 indictment invalid. State v. Earp, 41 Texas, 
 487 ; Koontz v. State, lb. 570. Therefore, 
 an indictment charging that the offense was 
 committed "in tlie'year one thousand eight 
 hundred and fifty-too," was held good. 
 State V. Hedge, 6 Ind. 330. But the omis- 
 sion of a letter wliich makes a different 
 ^ word or meaning, is fatal to an indictment. 
 Com. V. Riley, Thach. Crim. Cas. 67. 
 
 139. It is error in the court to leave it to 
 the jury to determine whether certain words 
 constitute a part of the indictment, or have 
 been stricken from it. Com. v. Davis, 11 
 Gray, 4. 
 
 140. A count in an indictment may refer 
 to averments in a previous count, to avoid 
 repetition. People v. Graves, 5 Parker, 134. 
 
 141. In New York, an argumentative alle- 
 gation of the offense, when it does not tend 
 to prejudice the defendant, will not render 
 the indictment invalid. 3 N. Y. R. S. 5th 
 ed. 1019, 1020, §54; People v. Rynders, 12 
 "Wend. 425 ; People v. Charles, 3 Denio, 212; 
 s. c. 1 N. Y. 184, 185. 
 
 142. The indictment need not charge 
 whether it is for the first or second offense, 
 although the latter is punishable differently 
 from the former. State v. Smith, 8 Rich, 
 460. 
 
 143. Averment of means. When the act 
 is not in itself criminal or unlawful (as 
 cheating or defrauding a person of his prop- 
 erty), the unlawful means by which it is to 
 be accomplished must be distinctly set out. 
 State V. Mayberry, 48 Maine, 218. But an 
 
 indictment which alleged that the defend- 
 ant " in some way and manner, and by 
 some means, instrument and weapon to the 
 jurors unknown, killed and murdered the 
 deceased," was held sufficient. State v. 
 Burke, 54 New Hamp. 92 ; s. c. 2 Green's 
 Crim. Reps. 365. And the same was held 
 of an indictment which charged that the 
 defendant produced an abortion " with a 
 certain instrument to the jurors unknown." 
 State V. Wood, 53 New Hamp. 484 ; s. c. 2 
 Green's Crim. Reps. 346. 
 
 144. Where the principal in the second 
 degree is charged as an aider or abettor, it is 
 not necessary to set forth in the indictment 
 the means or manner by which he became 
 thus guilty, but merely to describe him gen- 
 erally as being present aiding and abetting. 
 State V. White, 7 La. An. 531. 
 
 145. A count in an indictment may charge 
 the use of different prohibited means to 
 perpetrate the crime, charging all as consti- 
 tuting a single felony. People v. Davis, 56 
 N. Y. 95. 
 
 146. An indictment for a malicious tres- 
 pass need not state the means employed. 
 State v. Merrill, 3 Blackf. 346. 
 
 147. Office of videlicet. It is the office 
 of a videlicet to restrain or limit the gener- 
 ality of preceding words, and in some in- 
 stances to explain them. If what precedes 
 be matter of direct averment and material, 
 what is stated under a videlicet will be 
 deemed material and traversable. Crichtou 
 V. People, 6 Parker, 363. 
 
 148. One count sufficient. An indict- 
 ment which contains one good count will 
 sustain a conviction irrespective of other 
 defective counts. People v. Davis, 56 N. Y. 
 95; State v. Stebbins, 29 COnn. 463; State 
 V. Burke, 38 Maine, 574; State v. Scripture, " 
 42 New Hamp. 485 ; People v. Gilkinson, 4 
 Parker, 26 ; Crichton v. People, 6 lb. 363 ; 
 State V. Mathis, 3 Ark. 84 ; State v. Andrews, 
 17 Maine, 103; Bullock v. State, 10 Ga. 46; 
 People V. Stein, 1 Parker, 203 ; U. S. v. Bur- 
 roughs, 3 McLean, 405 ; State v. Davidson, 
 12 Vt. 300 ; State v. Miller, 7 Ired. 275 ; 
 State V. Bugbee, 22 Vt. 32. 
 
 149. Must state facts constituting an 
 offense. An indictment alleged that A., B.
 
 INDICTMENT. 
 
 337 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 and C, -with force of arms, unlawfully and 
 riotously did assemble to disturb the peace 
 of the State, and did then and there being 
 so assembled make a great noise and dis- 
 turbance in and near the dwelling-house of 
 one W. S., proclaiming that the said W. 
 S. and his wife were persons of color, offer- 
 ing them for sale at auction, and calling 
 them vulgar and opi^robrious names, all of 
 which was done in a loud voice, so that the 
 same could be heard at a great distance, to 
 the great damage and terror of the said W. 
 S. and wife, and to the common nuisance. 
 Held that the indictment did not charge 
 any criminal offense, for the reason that it 
 did not state that the said "W. S. or his 
 wife was in the house at the time. State v. 
 H.atchcock, 7 Ired. 52. 
 
 150. An allegation that liquor was sold 
 by the defendant and drank in his house is 
 not equivalent to the averment that he sold 
 it to be drunk there. State v. Freeman, 6 
 Blackf. 248. 
 
 151. An attempt to commit a crime neces- 
 sarily includes the intent, and also an act or 
 endeavor adapted and intended to effectuate 
 the purpose, and both must be specifically 
 alleged and proved. The averment that the 
 act was by picking the pocket is uncertain 
 and equivocal, but not that the attempt was 
 " by thrusting the hand into the pocket," 
 although it was not alleged that there was 
 anything in the pocket. State v. Wilson, 
 30 Conn. 500. 
 
 152. An indictment for an assault with 
 intent to murder must specify the acts which 
 constituted the assault. Beasley v. State, 18 
 Ala. 535. 
 
 153. An indictment for administering a 
 drug to a female for the puijjose of procur- 
 ing an aboi*tion must charge that an abortion 
 occurred, and that the woman was quick 
 with child at the time. Com. v. Bangs, 9 
 Mass. 387. 
 
 154. If an offense committed on board of 
 a vessel is of such a character that the court 
 can entertain the case although the vessel 
 has no national character, the possible 
 foreign nationality of the vessel need not be 
 negatived in the indictment. U. S. v. De- 
 marchi, 5 BUitchf. 84. 
 
 22 
 
 155. An indictment against a justice of 
 the peace for corruption in office must set 
 out the facts constituting the offense. State 
 V. Zachary, Busbee, N. C. 432. 
 
 156. An indictment for extortion in tak- 
 ing what was not due must allege that there 
 was nothing due, and where the charge is 
 for taking more than was due, it must be 
 alleged in the indictment how much was 
 due. State v. Coggswell, 3 Blackf. 54. 
 
 157. An indictment against an officer for 
 misfeasance is sufficient which states that the 
 defendant was duly elected to office by the 
 legal voters, &c., and entered upon the dis- 
 charge of his office. Edge v. Com. 7 Barr, 
 275. 
 
 158. An indictment for resisting an officer 
 in the discharge of his duty need not allege 
 the specific acts of resistance ; charging an 
 assault upon a deputy sheriff legally ap- 
 pointed and duly qualified is sufficient. 
 State V. Copp, 15 New Hamp. 212. But the 
 process charged to have been in the hands 
 of an officer must be set out or alleged to 
 have been lawful process. Cantrill v. Peo- 
 ple, 3 Gilman, 356 ; State v. Henderson, 15 
 Mo. 486 ; and it must be charged that he 
 was an officer and acting in that capacity. 
 McQuoid V. People, 3 Gilman, 76. 
 
 159. An indictment for obstructing public 
 officers need not state the particular exer- 
 cise of office in which they were engaged at 
 the time, or the particular act and circum- 
 stances of obstruction. U. S. v. Bachelder, 
 
 2 Gallis. 15. 
 
 160. An indictment for refusing to assist 
 an officer in securing a person whom he has 
 arrested must set forth the authority by 
 which the arrest was made. State v. Shaw, 
 
 3 Ired. 20. 
 
 161. An indictment charging that the de- 
 fendant, in and upon the public highway, 
 unlawfully did erect, build, and put up a 
 number of wooden sheds and buildings, was 
 held bad for uncertainty, in not stating the 
 exact number of the sheds. Com. v. Hall, 15 
 Mass. 240. 
 
 162. Where an indictment for money lost 
 on a bet upon the result of a game of cards, 
 played by the defendant and others, did not 
 state whether the bet was made with the
 
 338 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 persons played with, or with a third person, 
 it was held defective. State v. Stallings, 3 
 lud. 531. 
 
 163. An indictment for keeping a ten-pin 
 alley without a license, should charge that 
 the defendant " was engaged in the business 
 or employment of keeping " such an estab- 
 lishment. Simply alleging that he " did keep 
 (me" is not sufficient. Eubanks v. State, 17 
 Ala. 181. 
 
 164. An indictment for an act which is 
 made criminal by statute, under certain cir- 
 cumstances, which does not allege the exist- 
 ence of those circumstances, is bad. Com. v. 
 Clark, 2 Ashm. 105. Where a statute creates 
 an offense, or enlarges the punishment, the 
 indictment must state the circumstances 
 which constitute the offense or increase the 
 punishment. Davis v. State, 39 Md. 355 ; 
 s. 0. 2 Green's Crim. Reps. 381. 
 
 165. An indictment insufficient in not 
 charging facts necessary to constitute a fel- 
 ony, may yet authorize a juiy to convict for 
 a misdemeanor. Com. v. Squire, 1 Mete. 258. 
 
 166. It is no defense to an indictment, that 
 the defendant has committed a higher offense 
 than the one alleged. Com. v. Walker, 108 
 Mass. 309. 
 
 167. Charging offense in different ways. 
 The offense may be charged in different ways 
 in several counts; and if the different counts 
 are inserted in good faith, for the purpose of 
 making a single charge, the court will not 
 compel the prosecution to elect. Nelson v. 
 People, 5 Parker, 39 ; Lanergan v. People, 6 
 lb. 209. 
 
 168. Where the indictment shows that 
 each count relates to the same transaction, 
 and that they are only varied in order to 
 meet the proof, the court will not compel 
 the prosecutor to elect any one count ujjon 
 which to proceed to trial. When an elec- 
 tion is proper the application is addressed 
 to the discretion of the court. People v. 
 White, 55 Barb. 606. 
 
 169. On a trial for murder, it is not error 
 in the court to refuse to require the public 
 prosecutor to elect between the three counts 
 in the indictment charging that the crime 
 was committed in three different ways. Lan- 
 ergan v. People, sujtra. 
 
 170. When a single offense is described in 
 different counts, it is unnecessary to allege 
 that the offense described in each count is 
 not different from that described in the 
 others. State v. Rust, 35 New Hamp. 438. 
 
 171. Charging several acts. The in- 
 dictment may ciiarge several felonious acts 
 which in themselves separately considered 
 are distinct offenses, when they collectively 
 constitute but one offense, and may set forth 
 in different counts various versions of the 
 same charge or transaction, alleging different 
 grades or degrees of the princijoal offense, 
 provided as thus alleged, they may all be 
 merged in one, and do not necessarily con- 
 stitute different and distinct offenses. But 
 each count should contain only one version 
 of one offense, or of one degree of the prin- 
 cipal offense. And there must not be alleged 
 in the same count facts which constitute dis- 
 tinct offenses. State v. Smith, 31 Maine, 
 386 ; s. c. 2 Green's Crim. Reps. 462. Forg- 
 ing an account, and an affidavit and certifi- 
 cate to the same, alleged as one act, may be 
 set forth in a single count. But if charged 
 as separate and distinct offenses, the count 
 will be bad for duplicity. Rosekrans v. Peo- 
 ple, 5 N. Y. Supm. N. S. 467 ; Harris v. Peo- 
 ple, 6 lb. 206. 
 
 172. Where in defining an offense, a stat- 
 ute enumerates a series of acts, either of 
 which separately or all together may consti- 
 tute the offense, all such acts may be charged 
 in a single count ; as the forging of an in- 
 dorsement on a draft, and uttering and pass- 
 ing the draft knowing the forged indorse- 
 ment to be thereon ; or forging an indorse- 
 ment on a draft, and after it is indorsed by 
 other jiersons, uttering it. People v. Frank, 
 28 Cal. 507 ; People v. De La Guerra, 31 lb. 
 459. An indictment alleging that the de- 
 fendant did falsely make and counterfeit a 
 written instrument, is not bad for duplicity. 
 State V. Hastings, 53 New Hamp. 452; s. c. 
 2 Green's Crim. Reps. 334. 
 
 173. An indictment for administering 
 poison is not bad for duplicity, which 
 charges that the defendant " did administer 
 to, and cause to be administered to, and 
 taken." Ben v. State, 22 Ala. 9. 
 
 174. Under a statute which forbids the
 
 mDICTMENT. 
 
 339 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 selling or offering for sale of tickets, an in- 
 dictment which charged that the defendant 
 offered for sale, and actually sold such tick- 
 ets, was held bad for duplicity. Com. v. 
 Eaton, 15 Pick. 273. 
 
 175. An indictment which charged in one 
 count shopbreaking and larceny was held 
 good. Com. V. Tuck, 20 Pick. 356. 
 
 176. An indictment which charged that 
 the defendant did unlawfully, maliciously, 
 •&C., destroy and injure, and cause to be de- 
 stroyed and injured, was held not objec- 
 tionable. State V. Slocum, 8 Blackf. 315 ; 
 State V. Kuns, 5 lb. 314. And the same 
 was held of an indictment which charged 
 that the defendant sold spirituous liquors 
 without a license, at his storehouse and 
 dwelling-house, in P. Conlay v. State, 5 
 West Va. 522 ; s. c. 2 Green's Crim. Reps. 
 675. 
 
 177. But an indictment which alleged that 
 the defendant, on a certain day, set fire to 
 and burned a stack of hay, and on the same 
 day also burned a building used as a stable 
 and granary, was held bad for duplicity. 
 State V. Fidment, 35 Iowa, 541 ; s. c. 1 
 Green's Crim. Reps. 632. 
 
 178. All indictment is not bad for du- 
 plicity which, in one count, charges the de- 
 fendant with keeping a gambling house, 
 and in another count with permitting other 
 persons, in a place under his control, to play 
 at cards or other games for money. State 
 V. Bitting, 13 Iowa, 600. 
 
 179. An indictment charging that the de- 
 fendant " did set up and promote an ex- 
 hibition," is not bad for duplicity. Com. v. 
 Twitchell, 4 Cush. 75. 
 
 180. "Where a statute makes either of two 
 or more distinct acts connected with the 
 same general offense, and subject to the 
 same punishment, indictable separately when 
 committed by different persons, or at differ- 
 ent times, they may, when committed by 
 the same person, at the same time, be joined 
 in one count, as constituting but one offense. 
 Byrne v. State, 13 Wis. 519. 
 
 181. Disjunctive averment. The indict- 
 ment should not charge the offense dis- 
 junctively, as that the defendant " did take 
 or cause to be taken." State v. O'Bouuor, 1 
 
 Bail. 144 ; unless the word " or " is used in 
 the sense of "to wit " — that is, in explana- 
 tion of what precedes. Clifford v. State, 29 
 Wis. 327. 
 
 182. Where a statute enumerates several 
 acts disjunctively, which separately or to- 
 gether constitute the offense, the indict- 
 ment, if it charges more than one of them, 
 should do so in the conjunctive ; otherwise 
 it will be bad for uncertainty. But this rule 
 does not apply to cases where the words of 
 the statute, which are used disjunctively, 
 are synonymous. People v. Tomlinson, 35 
 Cal. 503; Blemer v. People, 76 111. 265. It 
 was held not error to use the disjunctive in 
 describing the various kinds of liquor 
 charged in the indictment to have been sold. 
 Cunningham v. State, 5 West Va. 508 ; s. c. 
 2 Green's Crim. Reps. 669. 
 
 183. Under a statute punishing the " burn- 
 ing, or causing to be burned," an indictment 
 is good which charges that the defendant 
 " burned and caused to be burned." State 
 V. Price, 6 Halst. 303. 
 
 184. When the several acts specified in a 
 statute are charged conjunctively, a convic- 
 tion or acquittal is a bar to a subsequent 
 prosecution, whether pleaded separately or 
 together. Clifford v. State, 29 Wis. 327. 
 
 185. Charging distinct offenses. In 
 cases of felony, no more than one distinct of- 
 fense should be charged in the same indict- 
 ment. Wright V. State, 4 Humph. 194 ; 
 U. S. V. Dickinson, 3 McLean, 325 ; Bullock 
 V. State, 10 Ga. 46. 
 
 186. Where an indictment charges two 
 distinct offenses in the same count, it is bad 
 for duplicity, and a conviction on it will be 
 reversed on error. Reed v. People, 1 Park- 
 er, 481. 
 
 187. An indictment charging three dis- 
 tinct violations of a statute in one count, is 
 bad for duplicity. State v. Shields, 8 
 Blackf. 151. 
 
 188. An indictment charging rude be- 
 havior in a meeting-house, and disturbing 
 public worship, was held bad. Com. v. 
 Symonds, 3 Mass. 163. 
 
 189. An indictment which charges tiie de- 
 fendant with conspiring falsely to charge 
 another with a crime of which he is inno-
 
 340 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 cent, and with conspiring to cause him to be 
 falsely charged with such oflense by others, 
 and with prosecuting or causing him to be 
 prosecuted by others for such offense, is bad, 
 tlie offenses being different, and a convic- 
 tion not showing for which the defendants 
 were found guilty. State v. Gary, 36 New 
 Hamp. 359. 
 
 190. An indictment which charged the 
 defendant with being an overseer of the 
 road leading from R. to M., and that he per- 
 mitted said road to be out of repair and 
 ruinous, and that said road was not careful- 
 ly measured, and marks and posts of dura- 
 ble wood at each mile set upon said road, 
 was held bad for duplicity. Greenlow v. 
 State, 4 Humph. 25. 
 
 191. Joinder of offenses. Offenses com- 
 mitted by the same person may be included 
 in the same indictment in different counts, 
 when they are of the same general nature, 
 and belong to the same family of crimes, and 
 where the mode of trial and nature of the 
 punishment are also the same, although 
 punishable with different degreejof severity. 
 In Alabama, obtaining money by false pre- 
 tenses, and larceny from the person, may be 
 so included. Johnson v. State, 29 Ala. 62; 
 also embezzlement and larceny from a store- 
 house. Mayo V. State, 30 lb. 32. See also 
 Cowley V. State, 37 lb. 152 ; Sarah v. State, 
 28 Miss. 267 ; State v. Burke, 38 Maine, 574. 
 
 192. The joinder of the following offenses 
 has been held proper: Murder and man- 
 slaughter ; forging a check, and publishing 
 it knowing it to be false ; burglary and 
 larceny ; breaking and entering with intent 
 to steal the goods of another person, and 
 breaking and entering with an intent to 
 murder ; maiming another, and shooting at 
 him with intent to kill, &c. Baker v. 
 State, 4 Ark. 58 ; State v. Flye, 26 Maine, 
 312; People v. Austin, 1 Parker, 154 ; State 
 V. Patterson, 1 Woodbury and Minot. 305 ; 
 Com. V. Manson, 2 Ashm. 131; McGregg v. 
 State, 4 Blackf. 101 ; State v. Colman, 5 
 Porter, 32 ; Wash v. State, 14 Smed. & 
 Marsh. 129; People v. Baker, 3 Hill, 159; 
 Carlton v. Com. 5 Mete. 532 ; State v. Mc- 
 Allister, 13 Maine, 374 ; Stephen v. State, 11 
 Ga. 225. 
 
 193. An indictment charged in the first 
 count, that the defendant stole W., a slave^ 
 the property of A. ; in the second count, the 
 stealing of W., a slave, the property of B. ; 
 iu the third count, the stealing of a gray 
 mare, the property of C. ; and in the fourth 
 count, the stealing of a bay horse, the prop- 
 erty of D. Held that the joinder of several 
 distinct felonies was not a ground either of 
 demurrer or arrest of judgment. Cash v.. 
 State, 10 Humph. 111. And see State v. 
 Hogan, R. M. Charlt.474; Com.v. McChord, 
 2 Dana, 243. 
 
 194. The rule which forbids the charging 
 of several distinct offenses is not applicable 
 to cumulative offenses included in the same 
 statute. State v. Markham, 15 La. An. 498. 
 
 195. Although a felony and misdemeanor 
 ouglrt not in general to be joined, yet it is 
 the practice in Massachusetts to sustain a 
 joinder of such counts when they are for 
 substantially the same offense, as for a sim- 
 ple assault, and a felonious assault. Com. 
 V. McLaughlin, 12"Cush. 612-615. 
 
 196. In New Hampshire, where the indict- 
 ment charges but one transaction, a count 
 for a misdemeanor may be joined with a 
 count for a felony; as embezzlement, and 
 obtaining the same money by false pretenses. 
 State V. Lincoln, 49 New Hamp. 464. 
 
 197. In Maryland, an indictment may 
 charge a misdemeanor in one count, and a 
 felony in another count. Burk v. State, 3 
 Har. & Johns. 426. 
 
 198. An indictment is bad in which counts 
 for conspiracy are joined with counts for 
 murder. U. S. v. Scott, 4 Biss. 29. 
 
 199. Where distinct felonies are charged, 
 the court may compel the prosecution to 
 elect on which charge it will proceed. But 
 the refusal to compel such election cannot 
 be alleged for error. State v. Hood, 51 
 Maine, 363 ; Cook v. People, 2 N. Y. Supm. 
 N. S. 404 ; People v. Baker, 3 Hill, 158. 
 
 200. Charging several with different 
 offenses. In general, all the defendants in 
 a joint indictment must have been guilty of 
 the same offense, though they may have been 
 guilty in different degrees. White v. Peo- 
 ple, 32 N. Y. 465. 
 
 201. Therefore an indictment which
 
 INDICTMENT. 
 
 341 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 charges several defendants with a number of 
 offenses committed by them independent!}' 
 of each other, some having been committed 
 at one time and some at another, is fatally 
 defective. Elliott v. State, 26 Ala. 78. 
 
 202. But several offenders may, in some 
 cases, be included in the same indictment 
 for different offenses of the same kind, the 
 Avord separately being inserted which makes 
 it several as to each of them ; though the 
 court will quash the indictment if inconven- 
 ience arise from preferring the charge in 
 that mode. Lewellen v. State, 18 Texas, 
 538. 
 
 203. Charging time of enactment of 
 statute. An indictment is not rendered in- 
 valid by the misstatement of the time of the 
 enactment of a statute under which the de- 
 fendant was indicted; the time of such 
 enactment being immaterial, provided the 
 statute was in force when the offense charged 
 in the indictment was committed. People 
 V. Reed, 47 Barb. 235. 
 
 204. Recital of statute. If the indict- 
 ment purport to recite the statute, a slight 
 variance wnll be fatal. Butler v. State, 3 
 McCord, 383. 
 
 205. An indictment on a public statute, 
 need not recite it, or specially refer to it. 
 It is sufficient to conclude ' ' against the form 
 of the statute in such case made and pro- 
 vided." Com. V. Hoye, 11 Gray, 462. 
 
 206. An indictment for perjury, alleging 
 that the same was committed "in contempt 
 of the laws of the United States of America," 
 without referring to the statute, cannot be 
 sustained. U. S. v. Andrews, 2 Paine, 451. 
 
 207. Describing statutory offense. An 
 
 f indictment upon a statute must allege all 
 the facts and circumstances which constitute 
 the statutory offense ; and the prosecution is 
 bound to prove them. Wood v. People, 53 
 N. Y. 511. 
 
 208. Where the essential ingredient of an 
 aggravated offense charged upon the accused, 
 is, that the alleged felony was committed 
 after a former conviction of an offense pun- 
 ishable by imprisonment in a State prison 
 and a discharge ' ' eitlier upon being par- 
 doned, or upon the expiration of his sen- 
 tence," the discharge in one of the ways 
 
 mentioned in the statute is a fact material 
 and necessary to be alleged and proved. 
 Mere lapse of time will not authorize the 
 presumption that he had been imprisoned 
 and discharged upon the expiration of the 
 term for which he was sentenced, so as to 
 cast the burden of proof upon him that lie 
 was not thus discharged. lb. Folger and 
 Andrews, JJ., dissenting. 
 
 209. Where a statute contains a new of- 
 ense unknown to the common law, and 
 describes its ingredients, an indictment un- 
 der it must conform, substantially at least, 
 to the description thus given. Bryan v. 
 State, 45 Ala. 86. 
 
 210. Where the offense is punishable at 
 common law only, and the indictment avers 
 it to have been committed against the form 
 of the statute, such averment may be re- 
 jected as surplusage. But when what was a 
 misdemeanor only at common law is made 
 punishable as a felony by statute, or where the 
 statute declares a common-law offense, com- 
 mitted under peculiar circumstances not 
 necessarily included in the original offense, 
 punishable in a different manner, an indict- 
 ment for the statute offense, if bad for insuffi- 
 cient description,will not be good at common 
 law. State v. Gove, 34 New Hamp. 510. 
 
 211. Where a statute prohibits an act 
 which was before lawful, and enforces the 
 prohibition with a penalty, and a succeeding 
 statute, or the same statute in a substantive 
 clause, prescribes a mode of proceeding for 
 the penalty different from that by indict- 
 ment, the prosecutor may notwithstilnding, 
 at his option, proceed by indictment under 
 the prohibitory clause as for a misdemeanor 
 at common law, or in the manner pointed 
 out by the statute. Pliillips v. State, 19 
 Texas, 158. 
 
 212. An indictment upon a penal statute 
 must state all of the circumstances which 
 constitute the definition of the offense in the 
 act, so as to bring the defendant precisely 
 within it. An indictment under the statute 
 of Maine (R. S. of 1840, ch. 157, § 5), for 
 having in possession counterfeit bank bills, 
 which substitutes the word "similar" for 
 " in the siu\ilitude of," which latter is the 
 language of the statute, is insufficient ; and 
 
 V
 
 342 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 the bills must have the external appearance 
 of those issued by the bank named, in order 
 to come within the meaning of the statute. 
 A paper containing all the words and figures 
 upon a genuine bank bill, with no other re- 
 semblance or likeness, cannot be said to be 
 in the similitude of the latter. State v. 
 McKenzie, 42 Maine, 392. 
 
 213. In Maine, uuder the statute (R. S. 
 ch. 51, § 36), which makes railroad com- 
 panies liable to a forfeiture, for loss of life 
 through negligence to be recovered by 
 indictment, to the use of the widow, if no 
 children; to the children, if no widow; and 
 if both, to her and them equally ; the in- 
 dictment must allege that the person killed 
 left a widow, or heirs, or both, and state 
 their names. State v. Grand Trunk R. R. 
 Co. 60 Maine, 145. The remedy by indict- 
 ment under the foregoing statute is limited 
 to cases where the person injured dies im- 
 mediately; and is not applicable where the 
 person killed was at the time an employee of 
 the road. State t. Centr. K. R. Co. lb. 490 ; 
 s. p. 61 lb. 114. 
 
 214. When a statute injposes a higher 
 penalty upon a second or third conviction, it 
 makes the prior conviction a part of the 
 description of the offense intended to be 
 punished; and therefore the fact of such 
 prior conviction must be charged as well as 
 proved. Where the defendant is found 
 guilty on both counts of the indictment, it 
 is erroneous to impose such a penalty on the 
 second count. Tuttle v. Com. 2 Gray, 505. 
 
 215. In New York, an indictment under 
 the statute in the county where the arrest 
 was made, for an unlawful marriage in an- 
 other county, must allege that the prisoner 
 was arrested in the county in which he is 
 indicted, and it is not enough that this fact 
 is stated in the caption to the indictment or 
 record of conviction. Houser v. People, 46 
 Barb. 33. 
 
 216. Where a statute is framed to meet 
 the relations of parties to each other, and to 
 prevent fraud, and the language of it is 
 elliptical, lea-\dng some of the circumstances 
 expressive of the relation of the parties to 
 be supplied by intendment, the facts and 
 circumstances constituting such relation 
 
 must be alleged in the indictment, though 
 not expressed in the words of the statute. 
 People v. Wilber, 4 Parker, 19. 
 
 217. Where such a statute was designed 
 to prevent frauds upon parties supplying to 
 other parties illuminating gas for consump- 
 tion, passing by the ordinary means of con- 
 ducting it through a meter provided for 
 measuring and registering the quantity con- 
 sumed, an indictment which omitted to 
 allege that the company supplied the gas 
 consumed at the burners, was held fatally 
 defective. lb. 
 
 218. An indictment under the civil rights 
 bill of May 31, 1870, should charge that the 
 offense was committed against a person on 
 account of his race, color, or previous con- 
 dition of servitude. U. S. v. Cruikshank, 1 
 Woods, 308. 
 
 219. When the want of consent is a sub- 
 stantive part of the offense prohibited by a 
 statute, the indictment must allege that the 
 act was done without consent. State v. 
 Whittier, 21 Maine, 341. 
 
 220. Where a statute describes an offense 
 as a crime or misdemeanor of a certain grade, 
 the indictment need not charge the legal 
 conclusion that such offense amounts to such 
 crime or misdemeanor. State v. Absence, 4 
 Porter, 397. 
 
 221. Charging offense in words of stat- 
 ute. In an indictment for offenses created 
 by statute, it is in general suiBcient to de- 
 scribe the offense in the words of the statute. 
 Lodano v. State, 25 Ala. 64. If, in such 
 case, a defendant insists upon the insuffi- 
 ciency of the indictment, it is for him to 
 show that the case falls within some excep- 
 tion to the rule. Where a statute against 
 the sale of spirituous liquors without license 
 did not contain the term " willfully," or any 
 other equivalent expression, it was held that 
 the term need not be employed in the in- 
 dictment. State V. Abbott, 31 New Hamp. 
 434. 
 
 222. An indictment upon a penal statute 
 must distinctly allege tiie offense and the 
 penalty incurred. Com. v. Waters, 7 Dana, 
 29. Such an indictment must also be cer- 
 tain to every intent, and pursue the precise
 
 INDTCTMEXT. 
 
 343 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 t 
 
 language of the statute in describing the 
 offense. Ike v. State, 23 Miss. 525. 
 
 223. Where a generic term is employed 
 in a statute creating an offense, in connection 
 with words more precise, the indictment 
 must charge the offense in the language of 
 the statute. On this principle an indict- 
 ment for stealing a horse, was held not to 
 be supported by proof of stealing a gelding. 
 State V. Raiford, 7 Porter, 101; Bell v. 
 State, 5 Eng. 536. 
 
 224. An indictment under a statute for- 
 bidding the running of horses on a public 
 highway, so as to interrupt travelers there- 
 on, which charged the defendant with run- 
 ning a horse, "so as to interrupt travelers," 
 was held insutBcient. State v. Fleetwood, 
 16 Mo. 372. 
 
 225. An indictment under a statute pun- 
 ishing the cutting down of a timber tree, 
 which charged that the defendant " cut a 
 timber tree," was held insufficient. Maskill 
 V. State, 8 Blackf. 299. 
 
 226. An indictment under a statute against 
 " uttering and publishing," as applied to 
 forgery, which charged that the defendant 
 "disposed of, and put away," was held 
 bad. State v. Petty, Harper, 59. 
 
 227. In New Hampshire, an indictment 
 alleged that the prisoner " broke and entered 
 the store of one M." and divers goods "in 
 the shop aforesaid then and there being, 
 then and there in the shop aforesaid, felo- 
 niously did steal, take and cany away." 
 Held on demurrer, that as the words " shop " 
 and "store" in the statute (R. S. ch. 215, 
 § 9), were not synonymous, and the larceny 
 was not therefore alleged to have been in the 
 place broken and entered, there must be 
 judgment for the defendant. State v. Can- 
 ney, 19 New Ham p. 135. 
 
 228. Although the offense be not alleged 
 in the indictment in the very words of the 
 statute, yet if the substantial facts constitut- 
 ing the statutory offen-e are well stated, it 
 is sufficient. Frazer v. People, 54 Barb. 
 306 ; Thompson v. People, 3 Parker, 308. 
 
 229. Where in an indictment under a 
 statute, the words " likewise," and " simili- 
 tude," were substituted for the word imi- 
 tation in the statute, it was held that the 
 
 indictment was good. Peck v. State, 2 
 Humph. 78. And see State v. Vill, 2 Brev. 
 262. 
 
 230. Where the words of a statute are 
 descriptive of the offense, the indictment 
 must follow, substantially at least, the lan- 
 guage of the statute, and expressly charge 
 the defendant with the commission of the 
 offense as described. When the words 
 " willfully and maliciously " in a statute 
 are descriptive of the offense, an indictment 
 which charges that the act was done " felo- 
 niously, unlawfully and willfully " will be 
 insufficient. State v. Gove, 34 New Hamp. 
 510. 
 
 " 231. It is not sufficient to pursue the words 
 of the statute in an indictment, when the 
 statute merely designates an offense, but 
 does not, in express terms, prescribe its 
 constituents. Anthony v. State, 29 Ala. 
 27. 
 
 232. Where a statute is not to be taken in 
 the broad meaning of the words used, but 
 limited by construction to a special subject 
 or matter, the indictment should not charge 
 the crime in the language of the statute, 
 but should limit the case, and bring it with- 
 in the construction placed upon the act. 
 Bates V. State, 31 Ind. 72. 
 
 233. The principal exception to the gen- 
 eral rule that statutory offenses may be 
 charged in the words of the statute, is where 
 the words of the statute may by their gen- 
 erality embrace cases falling within its literal 
 terms, which are not within its meaning and 
 spirit. State v. Bierce, 27 Conn. 319. 
 
 234. Where a statute defines the offense 
 generally, and designates the particular acts 
 constituting it, it is sufficient in charging 
 the crime, to follow substantially the lan- 
 guage of the statute. But where the statute 
 defines the ciime generally, without naming 
 the particular acts constituting it, the acts 
 done should be set out. Malone v. State, 
 14 Ind. 219. 
 
 235. When the prohibition and definition 
 are both in the same section, the offense 
 should be described in the language of the 
 statute; and the circumstances mentioned 
 in the statute to make up the offense cannot 
 be supplied by the general conclusion, contra
 
 344 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 formam statuti. But wliere the oftense is 
 prohibited in general terms in one section 
 of the statute, and a penalty prescribed, and 
 in another section entirely distinct there is 
 a particular description, the indictment need 
 only contain the general description. State 
 V. Casey, 45 Maine, 435. 
 
 236. "When exceptions in statute must 
 be negatived. Wliere the exception is in 
 the enacting clause of the statute, and enters 
 into the descrijjtion of the oftense, the ex- 
 ception must be negatived. State v. Barker. 
 18 Vt. 195; State v. Palmer, lb. 570; State 
 V. Keene, 34 Maine, 500. Where, however, 
 there is a proviso containing matter of 
 excuse for the defendant, it need not be 
 negatived in the indictment. State v. God- 
 frey, 24 Maine, 232; and the same is true, 
 •where the statute contains provisos and 
 exceptions in distinct clauses. Britton v. 
 State, 5 Eng. 299; Com. v. Hart, 11 Cush. 
 130; s. c. 2 Green's Crim. Eeps. 247. 
 
 237. Where provisos and excerptions are 
 contained in distinct clauses of a statute, it 
 is not necessary to aver in the indictment 
 that the defendant does not come within 
 the exceptions, or to negative the provisos. 
 Nor is it necessary to allege that he is not 
 within such provisos, even though the pur- 
 view should expressly notice them, as by 
 saying that none shall do the act prohibited 
 except in the cases thereinafter excepted. 
 These are matters of defense. Com. v. 
 Clanahan, 2 Mete. Ky. 8 ; State v. Cox, 32 
 Mo. 566; State v. Cassady, 52 New Hamp. 
 500 ; State v. Gurney, 37 Maine, 149 ; State 
 V. Robinson, 39 lb. 150. 
 
 238. In determining whether or not ex- 
 ceptions in a statute are to be negatived in 
 pleading, it is immaterial whether the ex- 
 ception or proviso be contained in the enact- 
 ing clause or section, or be introduced in a 
 different manner. Neither does it depend 
 upon any distinction between the words 
 '■'■ provided,^'' or " except,''^ as they may be used 
 in the statute. The question is, whether 
 the exception is so incor2:)orated with and 
 becomes a part of the enactment as to 
 constitute a part of the definition or de- 
 scrijrtion of the defense. State v. Abbey, 29 
 Vt. 60; State v. Fuller, 33 New Hamp. 259; 
 
 State V. McGlynn, 34 lb. 422; State v. 
 Wade, lb. 495. Where a statute provided 
 that no person should manufacture or sell, 
 or suffer to be manufactured or sold by any 
 pei'son, except for the purpose of exportation, 
 or keep or sufifer to be kept on his premises, 
 or under his charge for the purpose of sale, 
 wine, or strong or mixed liquors, it was 
 held that a complaint charging a violation 
 of the statute must set out and negative the 
 exceptions. State v. O'Donnell, 10 R. I. 
 472 ; s. c. 2 Green's Crim. Reps. 376. 
 
 239. Where a statute prohibited the sale 
 of wine and spirituous liquors otherwise 
 than for medicinal, mechanical and chem- 
 ical purposes, and the allegation was, that 
 the defendant being licensed, did unlaw- 
 fully sell contrary to the form of the stat- 
 ute, without alleging that the sale was not 
 for medicinal, mechanical, or chemical pur- 
 poses, it was held that the indictment was 
 insufficient. State v. Abbott, 31 New Hamp. 
 434. 
 
 240. After words of general prohibition 
 in a statute, whatever comes in by way of 
 proviso or exception need not be negatived, 
 but must be set up by the accused, whether 
 the proviso or exception be contained in the 
 enacting or subsequent sections. But if 
 there be no general words of prohibition in 
 the description of the offense, the prosecutor 
 must show that the thing prohibited has 
 been done. State v. Miller, 24 Conn. 522. 
 
 241. An indictment under a statute impos- 
 ing a penalty need not negative the existence 
 of facts which under a proviso of the stat- 
 ute would constitute a defense. Com. v. 
 Fitchburg R. R. Co. 10 Allen, 189. 
 
 242. W hen a statute contains an exception 
 of such a character that the offense defined 
 in the statute cannot be accurately de- 
 scribed if the exce2)tion be omitted, an 
 indictment founded on the statute, must 
 show that the accused is not within the ex- 
 ception. But if the offense may be defined 
 without any reference to the exception, the 
 indictment need not refer to it, but it is 
 matter of defense. Where an officer was 
 charged with embezzlement of public money 
 more than two years previously, the prosecu- 
 tion for which, by act of Congress, must be
 
 INDICTMENT. 
 
 345 
 
 Body of the Indictment, 
 
 Statement of the Offense. 
 
 brought within two years from the time of 
 committing the ofl'ense, unless the defendant 
 was a fugitive from justice, the indictment 
 was held sufKcient on demurrer, although it 
 did not charge that the defendant was 
 within the exception. U. S. v. Cook, 17 
 Wallace, 168; s. c. 2 Green's Crim. Reps. 
 88. 
 
 243. Under a statute -which makes the 
 ofl'ense consist in threatening to accuse 
 another of crime, " either verbally, or by any 
 written or printed communication," an in- 
 dictment which contains no averment that 
 the threats charged were made in either 
 form is insufficient. Robinson v. Com. 101 
 Mass. 27. 
 
 244. Where the indictment charges a 
 series of acts, or a habit of life, the offense 
 may be stated in general terms, unless the 
 enacting clause of the statute specifies the 
 acts of which the ofl'ense consists, in which 
 case the indictment must follow the descrip- 
 tion in the statute. State v. Collins, 48 
 Maine, 217. 
 
 245. Description of written instrument. 
 Where the tenor of an instrument is re- 
 quired to be set out, a limited number of ab- 
 breviations may be employed, when their 
 meaning is obvious. State v. Jay, 5 Vroom 
 (34 N. J.) 368. 
 
 246. An indictment which alleges that a 
 note is payable to the holder, when on its 
 face, it purports to be payable to bearer, is 
 bad. Downing v. State, 4 Mo. 573. 
 
 247. A writing purporting to be an in- 
 denture, reciting that the party of the first 
 part, for a valuable consideration, " has sold, 
 and binds himself to deliver to the party of 
 the second part, all of his present crop of 
 cotton now planted, or so much of it as will 
 satisfy his indebtedness to the said party of 
 the second part ; " that " this conveyance is 
 intended as a security for the payment " of a 
 debt due from the party of the first to the 
 party of the second part, " which payment 
 if duly made, will render this conveyance 
 void, and if default be made in the payment 
 of the above sum, then the said party of 
 the second part, and his assigns, are hereby 
 
 • authorized to sell Mh certain crop of cotton, 
 or as much of it as will pay all of his dues 
 
 to the said party of the second part ; " and 
 signed and sealed by the party of the first 
 part, is sufficiently descril)ed in an indict- 
 ment as a " deed of trust." Oliver v. State, 
 37 Ala. 134. 
 
 248. Description of property. An in- 
 dictment under a statute for making a lot- 
 tery for the division of property, without 
 specifying the property, was held insuffi- 
 cient. Marks v. State, 3 Ind. 535. 
 
 249. Where on the trial of an indictment 
 for burglary in the house of A. with intent 
 to steal the goods of B., it was proved that 
 B. had no goods there, it was held material 
 to state truly in whom the ownership of the 
 goods was. State v. Brown, 3 McLean, 
 233. 
 
 250. In Maine, an indictment under the 
 statute (of 1821, ch. 4, § 2), for burning a 
 meeting-house, need not state who was the 
 owner of the house, or its value, or that the 
 burning was with force and arms, or that the 
 house was being used as a place of public 
 worship. State v. Temple, 12 Maine, 214. 
 
 251. Guilty knowledge and intent. 
 Where the intent is an essential element of 
 the oflFense, it must be distinctly averred by 
 a proper affirmative allegation, and not 
 merely by way of inference or argument. 
 Monroe v. Stote, 24 Miss. 54 ; State v. Free- 
 man, 6 Blackf. 248; People v. Lehman, 2 
 Barb. 216 ; McCann v. State, 13 Smed. & 
 Marsh. 471; State v. Gove, 34 New Hamp. 
 510. Where in an indictment for obtaining 
 a signature by a false pretense, the only 
 averment of an intent to defraud was in the 
 concluding clause, as follows: "So, the 
 jurors aforesaid, upon their oaths aforesaid, 
 do say and present, that said D. in the man- 
 ner aforesaid, designedly and by a false pre- 
 tense, and with intent to defraud, obtained 
 the signature of the said S.," the indictment 
 was held bad. Com. v. Dean, 110 Mass. 64 ; 
 s. c, 2 Green's Crim. Reps. 259. 
 
 252. An indictment against the owner of 
 a vessel, for casting away and destroying a 
 vessel at sea, must charge intent to preju- 
 dice the underwriters. U. S. v. Johns, I 
 Wash. C. C. 363. 
 
 253. An in<lictment against one I'or hav- 
 ing in possession parts of bank bills, with
 
 340 
 
 INDICTMENT. 
 
 Body of the Indictment. 
 
 Statement of the Offense. 
 
 the intent of putting them together and 
 making additional bills, must allege the 
 completion of the intent. Com. v. Hay ward, 
 10 Mass. Si. 
 
 254. An indictment for carrying and hav- 
 ing in possession counterfeit bank bills, with 
 intent to pass them, need not allege that the 
 intent was to pass them in the State, State 
 V. Cone, 2 Mass. 132. 
 
 255. An indictment at common law, for 
 receiving property which the sheriif had 
 distrained from a person in whose charge 
 the sheriff had placed it, must allege that 
 the defendant knew by what right the bailee 
 for the sheriff held it. Israel's Case, 4 Leigh, 
 67.5. 
 
 256. Where the statement of the case nec- 
 essarily includes a knowledge of its illegal- 
 ity, no averment of knowledge or bad in- 
 tent is necessary. Com. v. Stout, 7 Monr. 
 247. 
 
 257. Technical words. In Illinois, where 
 the indictment omitted the words, " in the 
 name and by the authority of the people of 
 the State of Illinois," it was held fatally de- 
 fective. Whitesidos v. People, Breese, 4. 
 
 258. But where an indictment commenced, 
 " South Carolina," leaving out the words 
 " State of," and concluded with the words, 
 " against the peace and dignity of the said 
 State," it was held good. State v. Anthony, 
 1 McCord, 285. 
 
 259. Where a statute uses the words will- 
 fully and maliciously, an indictment which 
 charges that the offense was committed 
 feloniously, unlawfully and maliciously, will 
 not be sufficient. State v. Delue, 1 Chand. 
 1G6. 
 
 260. An indictment for felony is insuffi- 
 cient unless it alleges that the act charged 
 was done "feloniously." State v. Feaster, 
 2.5 j\Io. 324. 
 
 261. An indictment for an act which was 
 a misdemeanor at common law, and which 
 by statute has been made a felony, need not 
 allege that the act was felonious. Beasley 
 V. State, 18 Ala. 535 ; contra, State v. Mur- 
 dock, 9 Mo. 730. 
 
 262. In Alabama, the statute (Clay's Di- 
 gest, 442, § 26) rendered unnecessary the 
 word " feloniouslv," in all indictments for 
 
 crimes which were misdemeanors at common 
 law, but were made felonies by the penal 
 code of that State. Butler v. State,22 Ala.43. 
 
 263. The word "willfully," as usedto denote 
 the intent with which an act is done, is sus- 
 ceptible of different shades of meaning, ac" 
 cording to the context. It sometimes sig- 
 nifies little more than intentionally or de- 
 signedly, but is most frequently understood 
 as conveying the idea of legal malice. State 
 V. Preston, 34 Wis. 675. 
 
 264. Where the indictment omits the 
 words, "at divers times," only one offense 
 can be proved. State v. Jones, 39 Vt. 370. 
 
 265. A clerical mistake in an indictment 
 for murder, in omitting the word " with " be- 
 fore the description of the weapon, does not 
 vitiate, if the offense be sufficiently charged 
 elsewhere in the indictment. Shay v. 
 People, 4 Parker, 353. 
 
 266. The omission in an indictment of the 
 word "did," in charging the commission of 
 an offense, is a fatal defect. State v. Hutch- 
 inson, 26 Texas, 111; State v. Daugherty, 
 30 lb. 300. 
 
 267. The words "«i et armis" are re- 
 quired in indictments for offenses which 
 occasion a breach of the peace. State v. 
 Kean, 10 New Hamp. 347. 
 
 268. Where an indictment was signed by 
 the foreman of the grand jury, but the 
 words, "a true bill," did not appear over 
 his signature, the indictment was held bad. 
 Webster's Case, 5 Maine, 432. 
 
 269. An indictment will not be bad on 
 account of clerical or grammatical errors, un- 
 less the meaning is im^Daired. State v. Wim- 
 berly, 3 McCord, 190. 
 
 270. Conclusion. In a common-law in- 
 dictment, the words contra formam statuti, 
 may be rejected as surplusage. Gregoiy v. 
 Com. 5 Dana, 417; State v. Wimberly, 3 
 McCord, 190; Com. v. Hoxey, 16 Mass. 385; 
 Knowles v. State, 3 Day, 103; Southworth 
 V. State, 5 Conn. 325 ; Cruiser v. State, 3 
 Harr. 206* State v. Phelps, 11 Vt. 116; 
 State V. Straw, 42 New Hamp. 393. 
 
 271. An indictment which concludes con- 
 trary to the law, instead of contrary to the 
 statute, is good. Hudson v. State, 1 Blackf. 
 317.
 
 INDICTMENT. 
 
 347 
 
 Body of the Indictment. Statement of the Offense. 
 
 Proof Required. 
 
 272. But an indictment concluding 
 " against the law in such case provided," is 
 bad for uncertainty, in not showing whether 
 the offense was committed against the stat- 
 ute or common law. Com. v. Inhabs. of 
 Stockbridge, 11 Mass. 279. 
 
 273. When the forged instrument is set 
 out in the indictment, and it appears that 
 the offense is not punishable under the stat- 
 ute, the conclusion "against the statute," 
 &c., may be rejected as surplusage, and the 
 defendant convicted of the common-law of- 
 fense. State V. Lamb, 65 N. C. 419. 
 
 274. An indictment under two statutes, 
 concluding in the singular, has been held 
 bad. Francisco v. State, 1 Carter, 179; 
 State V. Jim, 3 Murphy, 3 ; contra., U. S. v. 
 Trout, 4 Bis. 105 ; State v. Dayton, 3 Zabr. 
 49; U. 8. V. Gibert, 3 Sumner, 19. 
 
 275. In Rhode Island, an indictment 
 which concluded against the form of the 
 statute, instead of statutes, was held good, 
 although the offense was created by several 
 statutes. State v. Wilber, 1 R. I. 199. But 
 in North Carolina, where there was but one 
 statute, it was held that an indictment 
 which concluded against the form of the 
 statutes was bad. State v. Sandy, 3 Ired. 
 570; contra, Carter v. State, 2 Carter, 617. 
 
 276. Where one statute defines the offense, 
 and another fixes the punishment, the in- 
 dictment must conclude, " contrary to the 
 form of the statute;" but it is otherwise 
 where one statute continues a former one in 
 part, or explains, or regulates it. King v. 
 State, 2 Carter, 523. 
 
 277. Where the offense is created by stat- 
 ute, or the statute provides that a common- 
 law offense, committed under certain circum- 
 stances not necessarily embraced in the 
 original offense, shall be punished differ- 
 ently, or where the statute changes the com- 
 mon-law offense from a lower to a higher 
 grade, the indictment must conclude '' con- 
 trary to the form of the statute." But it is 
 otherwise where the statute is only declara- 
 tory of an offense at common law, without 
 changing the punishment. People v. Enoch, 
 13 Wend. 159. 
 
 278. Where there are two statutes for the 
 same offense, one creating the offense and 
 
 imposing a penalty, and the other making 
 the offense indictable, the indictment must 
 conclude "against the form of the statute." 
 State V. Pool, 2 Dev. 202. But where there 
 were two statutes, the first creating an offense 
 with a penalty, and the second imposing an 
 additional penalty, it was held that the in- 
 dictment might conclude " against the form 
 of the statute." Butman's Case, 8 Maine, 
 113. But where an offense is created by one 
 statute, and a penalty imposed for its viola- 
 tion by another statute, the indictment 
 must conclude in the plural. State v. Moses,. 
 7 Blackf. 244. 
 
 279. In Texas, indictments are required 
 to conclude against the peace and dignity 
 of the State. State v. Durst, 7 Texas, 74. 
 In Louisiana an indictment is good, although 
 it does not aver that it is carried on " in the 
 name and by the authority of the State," 
 and does not conclude " against the peace 
 and dignity of the same." State v. Russell, 
 2 La. An. 604. 
 
 7. Removal of indictment. 
 
 280. How made. In New York, a person 
 having been arraigned for trial in the Court 
 of Sessions on an indictment for burglary in 
 the third degree, and pleaded not guilty, 
 the court directed the indictment to be sent 
 to the court of Oyer and Terminer for trial. 
 The following entry was made on the indict- 
 ment : " Trial of indictment to go over to 
 next court of Oyer and Terminer." The 
 clerk then entered in his minutes: " The de- 
 fendant was arraigned before the court, and 
 by h's attorney, E. P. Hart, plead not 
 guilty. Remanded." At the opening of 
 the trial in the court of Oyer and Terminer, 
 the clerk made the further entry in his min- 
 utes: "Ordered, that the trial of this in- 
 dictment go over to the next court of Oyer 
 and Terminer." Held, that the indictment 
 was duly removed from the Court of Sessions 
 to the court of Oyer and Terminer. Myers 
 V. People, 4 N. Y. Supm. N. S. 292. 
 
 8. Proof required. 
 
 281. Holding of court. When it becomes 
 necessary to charge that a certain term of 
 the court was held, it must appear that at
 
 348 
 
 INDICTMENT. 
 
 Proof Required. 
 
 least a quorum of the court was present. 
 State V. Freeman, lo Vt. 722. 
 
 282. Authenticity of indictment. An 
 Indictment found on file, and acknowledged 
 to be an authentic paper, proves itself, when 
 the question of authenticity is raised on an 
 issue to a plea to the indictment. State v. 
 Clarkson, 3 Ala. 378. 
 
 283. Evidence as to the finding of the 
 indictment. The evidence upon which the 
 grand jury acted in finding the indictment 
 cannot be inquired into ; and the indictment 
 will be good although one of the grand 
 jurors misbehaved. Turk v. State, 7 Ohio, 
 240. 
 
 284. Evidence is not admissible for the 
 purpose of vitiating an indictment, either 
 from the grand jurors, or from the witness- 
 es before them, or from any other person 
 required by law to be present before them. 
 State V. Fasset, 16 Conn. 457. 
 
 285. Time. Although the time when an 
 offense was committed be alleged, it need 
 not be proved that the act was done on the 
 precise day alleged. State v. Baker, 34 
 Maine. 52 ; Johnson v. U. S. 3 McLean, 89 ; 
 Com. V. Braynard, Thach. Crim. Cas. 146; 
 Oliver V. State, 5 How. Miss. 14; Com. v. 
 Alfred, 4 Dana, 495 ; People v. Van Sant- 
 voord, 9 Cow. 655. 
 
 286. When the time of the commission of 
 the offense is charged in an indictment under 
 a videlicet, the prosecution may prove that 
 the offense was committed at any time be- 
 fore the finding of the indictment within 
 the period described. McDade v. State, 20 
 Ala. 81. 
 
 287. Place. The prosecution must prove 
 that the offense was committed in the county 
 where the venue is laid. Hite v. State, 9 
 Yerg. 382 ; Moody v. State, 7 Blackf. 424. 
 
 288. Averments which might have been 
 omitted. It is incumbent on the prosecu- 
 tion to prove allegations which though un- 
 necessary are nevertheless connected with 
 and descriptive of that which is material, or 
 in other words, averments which might with 
 propriety have been omitted, but being in- 
 serted in the indictment, are descriptive of 
 the identity of that which is legally essential 
 to the charge. John v. State, 24 Miss. 569. 
 
 289. Under an indictment for altering a 
 deed of assignment, the avennent that the 
 assignment was duly recorded is material, 
 and must be proved. State v. Clark, 3 Fos- 
 ter, 429. 
 
 290. Where an indictment for stopping 
 the mail set out the contract of the carrier 
 of the mail with the post otEce department, 
 it was held that it must be proved. State 
 V. Brown, 3 McLean, 23-3. 
 
 291. Sums of money alleged in an indict- 
 ment need not be proved as charged, unless 
 they form part of the description of a written 
 instrument, or are evidence of the offense. 
 Parsons v. State, 2 Carter, 499. 
 
 292. Must support charge. Under an 
 indictment for murder, it will be sufficient 
 to prove that the deceased was killed by a 
 different weapon than that described, or by 
 a different kind of poisoning than that al- 
 leged. But a charge of death by poisoning 
 will not be supported by proof of death by 
 shooting, starving or strangling. U. S. v. 
 Howard, 3 Sumner, 12. And an indictment 
 for stabbing will not be sustained by proof 
 of cutting. State v. Patza, 3 La. An. 512. 
 
 293. On the tiial of an indictment for pro- 
 curing persons to shoot, cut, stab and wound 
 another, it is not competent to prove that a 
 rape was committed by such persons after 
 they had broken into the dwelling-house of 
 such other, the rape being a distinct sub- 
 stantative offense from that charged. Watts 
 V. State, 5 West Va. 532. 
 
 294. An indictment for concealing treas- 
 ury notes, which the defendant knew had 
 been stolen from the United States mails, 
 described one of the notes as " a promissory 
 note called a treasury note for the payment 
 of fifty dollars with interest at the rate of 
 one per centum." The evidence was, that 
 the rate of interest was one mill per cent. 
 Held that the variance was fatal. U. S. v. 
 Hardman, 13 Peters, 176. 
 
 295. Where an indictment charges a cheat- 
 ing in an executed contract, and the proof 
 shows an attempt to cheat in executing a 
 contract which was abandoned, the variance 
 is fatal. State v. Corbett, 1 Jones, 264. 
 
 296. A charge of stealing a pine log will 
 not be supported by proof of the stealing of
 
 INDICTMENT. 
 
 3411 
 
 Proof Required. 
 
 Objection to Indictment. 
 
 an oak or birch log. State v. Noble, 15 
 Maine, 476 ; State v. Copp, 15 New Hauip. 
 212. 
 
 297. An indictment charging that an affi- 
 davit was sworn to, purporting to have been 
 made by J. N. P., is not sujjported by proof 
 that the affidavit was signed by J. P. Per- 
 kins V. State, 6 Ohio, 274. 
 
 298. Where an indictment against a wo- 
 man describes her as B. C, the wife of E. 
 G., the latter words will be deemed a mere 
 addition, which it will not be necessary to 
 prove. Com. v. Lewis, 1 Mete. 151. 
 
 299. The defendant and others were 
 charged in an indictment with an assault 
 and battery on Thomas Adams, a deputy 
 sheriff. At the trial, it was proved that the 
 person upon whom the assault and battery 
 were committed was commissioned as a 
 deputy sheriff by the name of Thomas 
 Adams, Jr. Held that the variance was not 
 material. Com. v. Beckley, 3 Mete. 330. 
 
 300. Although an indictment is good on 
 its face, yet no conviction under it can be 
 had when facts are proved which, if alleged 
 in the indictment, would make it defective, 
 and enable the defendants after cpnviction 
 to arrest or reverse the judgment. Thus, if 
 A. and B. are jointly indicted and tried for 
 gaming, and it is proved that A. in com- 
 pany with others played at one time during 
 the absence of B., and that B. in company 
 with others played at another time when A. 
 was not present, there can be no conviction. 
 Elliott V. State, 26 Ala. 78. 
 
 9. Objection to indictment. 
 
 301. How made. Where a grand jury 
 has presented an indictment contrary to 
 law, the court can properly arrive at the 
 fact only by a trial, and cannot on an ex parte 
 showing discharge a prisoner regularly in- 
 dicted. State V. Cheek, 25 Ark. 206. 
 
 302. The validity of an indictment cannot 
 be tested upon demurrer to the scire facias 
 issued on a forfeited recognizance, but the 
 defendant must appear and answer to the 
 indictment. State v. Weaver, 18 Ala. 293. 
 
 303. Where the sufficiency of an indict- 
 ment is not involved in a decision or opinion 
 of the court at the trial, the only way of 
 
 reaching a defect in the indictment is by a 
 motion in arrest of judgment, or by a writ 
 of error. People v. Stockham, 1 Parker, 424. 
 
 304. When an indictment is indorsed "a 
 true bill " by mistake, the fact may be shown 
 by affidavit or otherwise, either upon a mo- 
 tion to quash, or by a plea in abatement. 
 State V. Horton, 63 N. C. 595. 
 
 305. The objection to an indictment that 
 other persons than the defendant are not 
 sufficiently described, must be taken on de- 
 murrer. State V. Crank, 2 Bail. 66. 
 
 306. At common law, an objection on ac- 
 count of the misjoinder of counts can only 
 be made by motion to quash, or to compel 
 the prosecutor to elect on which count he 
 will proceed. Brantly v. State, 13 Smed. & 
 Marsh. 468. 
 
 307. An objection to an indictment on the 
 ground of duplicity must be made by de- 
 murrer or motion to quash. State v. Brown, 
 8 Humph. 89. 
 
 308. Where several distinct felonies are 
 charged in the same indictment, the court, 
 even after the case has been submitted to the 
 jury, upon the application of the prisoner, 
 may compel the prosecutor to elect as to 
 which charge he will proceed. Wash v. 
 State, 14 Smed. & Marsh. 120. 
 
 309. Where the objection that distinct 
 felonies ai'e joined in the same indictment 
 is not made until after plea, it is discretion- 
 ary with the court whether or not to compel 
 the State to elect on which count to try the 
 defendant. Weinzorflin v. State, 7 Blackf. 
 186. 
 
 310. An indictment defective or bad on 
 demurrer must be held insufficient on mo- 
 tion in arrest of judgment. State v. Barrett, 
 42 New Hamp. 466. 
 
 311. It is not a defense to an indictment 
 that there was no preliminary examination 
 of the accused before a magistrate. French 
 V. People, 3 Parker, 114. 
 
 312. Waiver of, not binding. The ac- 
 cused cannot waive his legal rights by any 
 consent in reference to material averments in 
 the indictment. People v. Campbell, 4 Par- 
 ker, 386. 
 
 313. A waiver by the prisoner of all ob- 
 jections to irregularity in the finding of the
 
 350 
 
 INDICTMENT. 
 
 Objection to Indictment. 
 
 Amendment of Indictment. 
 
 indictment, and to the jurisdiction of the 
 court, is not binding upon him. State v. 
 Bonncy, 34 Maine, 223. 
 
 314. When too late. It is too late after 
 verdict to object that the record fails to 
 show that the grand jury was regularly se- 
 lected and summoned. Shaw v. State, 18 
 Ala. 547 ; Com. v. Smith, 9 Mass. 107 ; or 
 that the indictment was presented by twen- 
 ty-four instead of twenty-three grand jurors, 
 as required by the statute. Conkey v. Peo- 
 ple, 1 N. Y. Ct. of Appeals Decis. 418; aflB'g 
 s. c. 5 Parker, 31. 
 
 315. In Alabama, although the statute 
 (Code, § 8591) provides that an objection to 
 an indictment on the ground that the grand 
 jurors were not drawn in the presence of the 
 proper officers, must be made at the term at 
 which the indictment is found ; yet if the 
 prisoner was unable to raise the objection at 
 that time in consequence of his confinement 
 in jail in another county, the court may en- 
 tertain the objection at a subsequent term. 
 Russell v. State, 33 Ala. 366. 
 
 316. In New York, a defect in an indict- 
 ment for murder, in charging the crime upon 
 the oath of the grand jurors, instead of oaths, 
 after verdict, is cured by the statute. Wag- 
 ner V. People, 54 Barb. 367 ; affi'd 4 N. Y. 
 Ct. of Appeals Decis. 509 ; s. c. 2 Keyes, 684. 
 
 317. Where an indictment is indorsed by 
 the foreman of the grand jury, "a true bill," 
 and the record shows it was returned into 
 court so indorsed; and that the prisoner 
 raised no objection, but i^leaded not guilty, 
 he cannot move in arrest of judgment, on 
 account of any informality in the finding, 
 returning or filiag. Russell v. State, 33 Ala. 
 S66. 
 
 318. An indictment on a sheet of paper 
 was wrapped in a blank half sheet of paper 
 of like size, and on the latter the prosecut- 
 ing attorney had indorsed " Commonwealth 
 \. Joseph Burgett, indictment," and under- 
 neath the foreman of the grand jury had 
 written " a true bill. Robert Hamilton, fore- 
 man." Held too late to object to the irregu- 
 larity after verdict. Burgess v. Com. 3 Va. 
 Cas. 483. 
 
 319. Although it be required that a pros- 
 ecutor shall be named at the foot of the 
 
 indictment, yet if the defendant postpones 
 his objection until after the jury have ren- 
 dered verdict against him, he will be held 
 to have waived that objection. Hayden v. 
 Com. 10 B. Mon. 125. 
 
 320. After the plea of guilty is filed, judg- 
 ment will not be arrested because a blank 
 left in the indictment for tlie name of the 
 county for which the grand jurors were 
 sworn, has not been filled. Forrester v. 
 State, 34 Ga. 107. 
 
 321. A mistake in the christian name of 
 the prisoner is cured by verdict. Smith v. 
 State, 8 Ohio, 294. A misnomer is only 
 matter of abatement, and after plea of not 
 guilty, it cannot be taken advantrge of ei- 
 ther at the trial, or in arrest of judgment, 
 or on motion for a new trial. Com. v. Ded- 
 ham, 16 Mass. 141 ; State v. Thompson, 
 Cheves, 31 ; People v. Smith, 1 Parker, 329. 
 
 322. Although an indictment charge two 
 distinct offenses, yet objection on that 
 ground will be waived by a failure to 
 demur. People v. Burgess, 35 Cal. 115. 
 
 323. Duplicity in an indictment, whether 
 in the same or diflerent counts, will be cured 
 by a verdict of guilty as to one of the of- 
 fenses, and not guilty as to the other. 
 When the indictment charges two offenses 
 in one count, the prosecuting ofiicer may 
 enter a nol. 2)ros. as to one charge before trial, 
 and a conviction upon the remaining charge 
 will be good; or he may be held to an elec- 
 tion upon which charge he will proceed. 
 Stf.te V. Merrill, 44 New Hamp. 624. 
 
 324. A motion to quash an indictment 
 after a nolle jjroseqtd has been entered, will 
 be overruled. U. S. v. Hill, 1 Brock. 156. 
 
 10. Amendment of indictment. 
 
 325. Not in general permitted. An in- 
 dictment is not the subject of amendment 
 like a declaration ; but a new indictment for 
 the same off'ense is substituted. Com. v. 
 Adcock, 8 Gratt. 661. 
 
 326. In Massachusetts, it has been held 
 that in a capital case, an indictment cannot 
 be amended, even with the consent of the 
 prisoner. Com. v. Mahar, 16 Pick. 120. 
 
 327. In Alabama, an indictment cannot 
 be amended without the consent of the ac-
 
 INDICTMENT. 
 
 351 
 
 Amendment of Indictment. 
 
 Quashing Indictment. 
 
 cused, and against his objection, even in an 
 immaterial particular. Gregory v. State, 46 
 Ala. 151 ; Johnson v. State, lb. 213. 
 
 328. Where an indictment is defective for 
 the reason that the name of the prosecutor 
 is not indorsed on it, the defect cannot be 
 remedied by amendment after trial. Moore 
 V. State, 13 Smed. & Marsh. 360. 
 
 329. Where the proper attorney signed an 
 indictment containing a single count, and 
 afterward two other counts were added by 
 another attorney charging different offenses, 
 it was held that a conviction could not be 
 sustained on either count. Hite v. State, 9 
 Yerg. 198. 
 
 330. A presentment being made by the 
 grand jury, an indictment for the same of- 
 fense was sent by the attorney for the pros- 
 ecution to the grand jury, who found it "a 
 true bill," and afterward, at a subsequent 
 term, the prosecuting attorney entered a 
 nolle prosequi on the indictment, and it then 
 appeared that the indictment was au amend- 
 ment of the presentment. Held that both 
 ceased to exist. U. S. v. Hill, 1 Brock. 156. 
 
 331. Striking out or quashing one count 
 in an indictment will vitiate the whole. 
 Eose v. State, Minor, 28. 
 
 332 When allowed. In New Hampshire, 
 where an indictment for burglary charges 
 the commission of the offense subsequent to 
 the finding of the indictment, the indict- 
 ment may, under the statute (Gen. Stats, ch. 
 243, § 13), be amended on motion, and if 
 net amended, the defect will be cured by the 
 verdict. State v. Blaisdell, 49 New Hamp. 
 81. 
 
 333. Where on the trial of an indictment 
 for arson charging the burning of thirty-five 
 houses, the prosecution withdrew the charge 
 except as to the house of B. The judge 
 told the jury they must find the prisoner 
 guilty of setting tire to that house, or acquit 
 him. Held that if the allegation as to the 
 other houses was erroneous, the error was 
 cured by the withdrawal of such allegation. 
 Woodford v. People, 5 N. Y. Supm. N. S. 
 039. 
 
 334. Where there were two indictments 
 against a party, one for assault and the other 
 for an assault with intent to murder, and by 
 
 mistake he pleaded guilty to the last instead 
 of the first, it was held that the error might 
 be corrected, although an entry had been 
 made on the indictment and minutes of the 
 court. Davis v. State, 30 Ga. 674. 
 
 335. Rejection as surplusage. All un- 
 necessary words in an indictment may, on 
 the trial, be rejected as surplusage, if the 
 indictment will be good upon striking them 
 out. State V. Webster, 39 New Hamp. 96. 
 
 336. The allegation in an indictment for 
 disinterring a dead body, that the burying 
 ground belonged to the first congregational 
 parish in G., may be rejected as surj^lusage. 
 Com. V. Cooley, 10 Pick. 37. 
 
 337. Mutilation. The accidental mutila- 
 tion of an indictment by cutting it into 
 several j^ieces, when the jjarts can be so 
 reunited that the words which have been 
 severed may be joined so that there is no 
 material omission of any averment, does not 
 unfit it to be the basis of further proceedings. 
 Com. V. Roland, 97 Mass. 598. 
 
 11. Quashing indictment. 
 
 338. By prosecution. Before the prisoner 
 is arraigned, the jjrosecution may, in its 
 discretion, enter a 7ioUe 2^'>'osequi, or quash 
 the indictment. Clark v. State, 23 Maine, 
 361. 
 
 339. Motion. On a motion to quash, 
 matters not apparent on the record must be 
 alleged in a traversable 2>lea, unless other- 
 wise provided by statute. State v. Intox- 
 icating Liquors, 44 Vt. 208. 
 
 340. Is in discretion of court. The court 
 is not bound to quash a defective indictment 
 on motion, the party having his remedy by 
 demurrer or motion in arrest of judgment. 
 State V. Taggart, 38 Maine, 298; State v. 
 Burke, lb. 575. 
 
 341. It is in the discretion of the court 
 whether or not to set aside a defective in- 
 dictment upon motion, or to put the prose- 
 cution to an election when more than one 
 oft'ense is charged, upon which it will 
 proceed. People v. Davis, 56 N. Y. 95 ; 
 Click V. State, 3 Texas, 383 ; State v. Day- 
 ton, 3 Zabr. 49; Bell v. Com. 8 Gratt. 600; 
 State V. Stuart, 33 Maine, 111; State v.
 
 INDICTMENT. 
 
 Quashing Indictment. 
 
 Smith, 1 Murphy, 213; Com. v. Eastman, 1 
 Cush. 189; State v. Barnes, 29 Maine, 561. 
 
 342. Courts usually refuse to quash on 
 the application of the defendant where the 
 indictment is for a serious offense, unless 
 upon the clearest and plainest ground ; but 
 will leave the party to a demurrer, or a 
 motion in arrest of judgment, or a writ of 
 error. People v. Walters, 5 Parker, 661; 
 s. c. 6 lb. 15 ; Bell v. Com. 8 Gratt. 600 ; 
 State V. Smith and Com. v. Eastman, 
 supra. 
 
 343. Where an indictment is quashed on 
 the defendant's motion, he has no legal 
 ground of exception to the refusal of the 
 court to allow him afterwards to withdraw 
 the motion ; nor to the refusal of the court 
 to allow him to withdraw his plea of not 
 guilty to a second indictment for the same 
 offense, and plead a former acquittal. Com. 
 V. Gould, 12 Gray, 171. 
 
 344. Wlien an Indictment is quashed, 
 adjudged bad on demurrer, or when judg- 
 ment is arrested for a defect therein, the 
 accused has not been in jeopardy. lb. 
 
 345. The court may quash a defective 
 count when it will not leave the other counts 
 of the indictment defective. Jones v. State, 
 6 Humph. 435. 
 
 346. Grounds for granting motion. The 
 objection that the grand jurors are not 
 named in the caption of the indictment 
 must be presented on motion to quash the 
 indictment or by demurrer. After judgment, 
 an allegation in an indictment that it was 
 found by " a grand jury of good and lawful 
 men," is sufficient. Dawson v. People, 25 
 N. Y. 399. 
 
 347. Where the sheriff summons the grand 
 jury without a proper process, the indict- 
 ment will be quashed on motion. Nicholls 
 V. State, South. 539. 
 
 348. The objection that a bailiff of the 
 court was present in the grand jury room 
 while witnesses were being examined, and 
 the grand jury were deliberating upon the 
 defendant's case, if valid, must be raised 
 upon a motion to set aside the indictment. 
 State V. Kimball, 29 Iowa, 267. 
 
 349. Misconduct in the grand jury may 
 
 be ground for quashing the indictment. 
 State V. Dayton, 3 Zabr. 49. 
 
 350. Where it appears that the court is 
 convened at a place not designated by law, 
 the indictment will be quashed. Sam v. 
 State, 13 Smed. & Marsh. 189. 
 
 351. An indictment will not be quashed 
 for a defect in the caption, unless the defect 
 is clear and decided. State v. Hickman, 3 
 Halst. 299. 
 
 352. An indictment which does not charge 
 any offense may be quashed on motion. Com. 
 V. Clark, 6 Gratt. 615; Bell v. Com. 8 lb. 
 600. 
 
 353. An indictment for counterfeiting was 
 quashed because the day of the month when 
 the offense was committed was not alleged. 
 State V. Roach, 2 Hayw. 552. 
 
 354. If a witness examined by the prose- 
 cutor on the trial, swears that he knows the 
 person who is stated in the indictment to be 
 unknown, and it appears that he gave testi- 
 mony before the grand jury disclosing the 
 name, the indictment cannot be sustained. 
 It is the ignorance of the grand jury, and 
 not of the petit jury, which authorizes the 
 statement that the person is unknown. It 
 does not sustain the objection that the 
 evidence on the trial discloses the name, 
 unless it at the same time appears that the 
 name was known to the grand jury. White 
 V. People, 32 N. Y. 465. 
 
 355. Where two or more distinct and sep- 
 arate felonies are contained in the same in- 
 dictment, it may be quashed, or the prosecu- 
 tor compelled to elect upon which charge he 
 will proceed. But in cases of misdemeanor, 
 several distinct offenses may be joined in the 
 same indictment, and tried at the same time. 
 Kane v. People, 8 Wend. 203; State v. 
 Smith, 8 Blackf. 489. 
 
 356. An indictment for overflowing a 
 highway will be quashed where there is no 
 proof of any authority to lay out the high- 
 way. Pennsylvania v. Oliphant, Addis. 345. 
 
 357. In case of several defendants. 
 Where gn indictment is quashed as to one 
 of several defendants, it is quashed as to all. 
 State V. Smith, 1 Murphy, 213. 
 
 358. But where a husband and wife were 
 jointly indicted for embezzlement and lar-
 
 mDICTMEN T.— INFOKM ATION. 
 
 353 
 
 Quashing Indictment. 
 
 Nature. 
 
 ceny, it was held that quashing the indict- 
 ment as to the wife did not destroy it as to 
 the husband. Coats v. People, 4 Parker, 
 662. 
 
 359. When motion denied. The court 
 will not look into the evidence that was be- 
 fore the grand jury, with a view to quash 
 the indictment. State v. Boyd, 3 Hill, S. C. 
 288 ; State v. Dayton, 3 Zabr. 49. 
 
 360. It is not a ground for quaking the 
 indictment, that the minutes of evidence 
 taken before the grand jury do not show 
 sufficient facts to justify the finding of the 
 indictment. State v. Morris, 36 Iowa, 272. 
 
 361. The fact that the grand jury re- 
 ceived evidence which was incompetent, is 
 not a sufficient ground for setting aside an 
 indictment. State v. Tucker, 20 Iowa, 508. 
 
 362. An indictment will not be quashed 
 on the ground that the name of one of the 
 grand jurors in the caption is different from 
 his name in the panel, if in reality he is the 
 same person. State v. Norton, 3 Zabr. 33. 
 
 363. An indictment will not be quashed 
 on the ground that the investigation of the 
 charge was still pending before the commit- 
 ting magistrate when the indictment was 
 found. People v. Horton, 4 Parker, 222; 
 People v. Heffernan, 5 lb. 393. 
 
 364. The mode of selecting the grand 
 jury will not be a ground for quashing the 
 indictment. State v. Bait, 7 Blackf. 9; 
 State v. Henley, lb. 324. 
 
 365. Where one of several counts in an in- 
 dictment is good, a motion to quash will not 
 be granted. State v. Wishon, 15 Mo. 503 ; 
 State V. Stalker, 3 Ind. 570; Kane v. People, 
 3 Wend. 363; State v. Rector, 11 Mo. 28. 
 
 366. Where one of two counts is bad, the 
 prosecution may enter a nolle prosequi as to 
 the defective count, which will remove the 
 grounds for the motion to quash the indict- 
 ment, and leave the defendant to be tried 
 upon the good count. State v. Buchanan, 
 1 Ired. 59. Or the defective count may be 
 reached by demurrer. State v. Coleman, 5 
 Porter, 32. , 
 
 367. An indictment cannot be quashed for 
 any matter which does not appear on the 
 faee of the indictment. Com. v. Church, 1 
 Penn. St. 105 ; Wickwire v. State, 19 Conn. | 
 
 23 
 
 477; contra, State v. Batcheldor, 15 Mo. 
 207 ; State v. Kitchen, lb. ; State v. Wall, 
 lb. 208. 
 
 368. In Maine the statute (R. S. ch. 172, 
 § 38) forbids the quashing of an indictment or 
 arresting judgment for any omission or mis- 
 statement which does not tend to the preju- 
 dice of the defendant. State v. Nelson, 29 
 Maine, 329. 
 
 369. After plea of not guilty, it is too late 
 to move to quash the indictment. State v, 
 Burlingham, 15 Maine, 104 ; State v. Barnes, 
 39 lb. 561 ; People v. Monroe O. & T. 20 
 Wend. 108. But the defendant may with- 
 draw his plea, in order to make a motion to 
 quash. Matter of Nicholls, 2 South. 539. 
 
 370. An indictment will not be quashed 
 after conviction, on the ground that during 
 the trial a second indictment was found for 
 the same offense. People v. Monroe O. & T. 
 supra. 
 
 See Grand jury. For indictments in the 
 several offenses, see the titles of those offenses. 
 
 SuformatioiL 
 
 1. Nature. In New Hampshire, an infor- 
 mation is an official act, devolving solely on 
 the attorney general ; and his action is not 
 limited by leave of court, or any preliminary 
 inquiry instituted by it. State v. Dover, 9 
 New Hamp. 468. 
 
 2. When it will lie. An information will 
 lie at common law for an exhibition that 
 tends to corrupt the morals of the commu- 
 nity, or shocks humanity with its indecency. 
 Knowles v. State, 3 Day, 103. 
 
 3. Offenses against the laws of the United 
 States, in all but capital and infamous crimes, 
 may be prosecuted by information. There 
 must first be a complaint supported by an 
 oath or affirmation showing probable cause, 
 followed by an arrest and examination ; and 
 if the accused is held to bail or committed, 
 the district attorney, on filing the magis- 
 trate's or commissioner's return with the 
 proofs, will have leave to file the informa- 
 tion. U. S. V. Shepard, 1 Abb. 431 ; U. S. 
 V. Miller, 1 Sawyer, 701. 
 
 4. What to contain. Where an informa-
 
 354 
 
 INFORMATION.— INNKEEPER. 
 
 What to Contain. 
 
 Who is. 
 
 tion for selling spirituous liquor without a 
 license contained a hundred counts, each 
 count having a distinct caption, and signed 
 at the end of the last count, on the last page, 
 but tlie pages were fastened together, the 
 information was held good. State v. Pad- 
 dock, 24 Vt. 312. 
 
 5. An information by the attorney general 
 need not allege that he informs under his 
 official oath. State v. Sickles, Brayt. 132. 
 
 6. Where an information charged, not that 
 the defendant committed the offense, but 
 that he was guilty as the district attorney 
 verily believed, it was held bad on motion 
 to quash. Vannatta v. State, 31 Ind. 210. 
 
 7. An information for being a common 
 cheat must state particular acts. State v. 
 Johnson, 1 Chip. 129. 
 
 8. An information for exhibiting a show, 
 must state acts of indecency, barbarity, or 
 immorality, in order that the court may see 
 whether the offense is within the statute, or 
 is an offense at common law. Knowles v. 
 State, 3 Day, 103. 
 
 9. An information for a first offense need 
 not allege that it is a first offense. Kilbourn 
 V. State, 9 Conn. 500. In Massachusetts, an 
 information for additional punishment need 
 not set forth the previous convictions and 
 sentences in extensn^ but it should aver them 
 with sufficient particularity to identify them, 
 and to show the character of the offense 
 charged. Wilde v. Com. 2 Mete. 408. 
 
 10. In Massachusetts, under the statute 
 (of 1832, ch. 73, and 1833, ch. 85) inflicting 
 additional punishment on convicts who had 
 been discharged from former sentences " in 
 due course of law," it was held sufficient for 
 an information for such punishment, to al- 
 lege that the convict had been discharged 
 from a former sentence by a pardon. Evans 
 V. Com. 3 Mete. 453. But see Wilde v. Com. 
 2 lb. 408. 
 
 11. In general, an information for an of- 
 fense created by statute, is sufficient which 
 sets forth the offense in the language of the 
 statute; and if the defendant insists upon 
 greater particularity, he must show that the 
 case fiills within some exception to the gen- 
 
 • eralrule. Therefore, where an information 
 under the statute of Connecticut, prohibiting 
 
 the sale of spirituous liquors without license, 
 alleged in the language of the statute, that 
 the defendant at a certain time and place, 
 sold spirituous liquors to A. B. without 
 license, not stating the kind, quantity, or 
 value of the liquor sold, or the terms of sale, 
 nor the delivery of the liquor, it was held 
 that as the statute did not specify either the 
 kind, quantity, or value of the liquors, the 
 sale of Tivhich constituted the offense, and as 
 these facts did not affect either the jurisdic- 
 tion of the court, or the nature or degree of 
 punishment, the information was sufficiently 
 certain. Whiting v. State, 14 Conn. 487. 
 
 12. Amendment. An information cannot 
 be amended by adding charges to it. Com. 
 V. Rodes, 1 Dana, 595. A variance between 
 the presentment and information may be 
 taken advantage of by objecting to the filing 
 of the information, or by motion to quash it. 
 Jones's Case, 2 Graft. 555. 
 
 13. In New Hampshire, criminal informa- 
 tions which are not found upon the oath of 
 a jury, may be amended by the court, or by 
 a single judge at chambers. State v.Weare, 
 38 New Hamp. 314. 
 
 14. Plea. Under an information against 
 two, the defendants may put in separate 
 pleas, one putting themselves on the court, 
 and the other on the jury. State v. Taylor, 
 1 Root, 226. 
 
 15. Conclusion. Where an information 
 concludes •' against the form of the statute," 
 and the offense charged is not prohibited by 
 any statute, these words may be rejected as 
 surplusage. Southworth v. .State, 5 Conn. 
 325. 
 
 3unkecper, 
 
 1. Who is. To constitute an innkeeper, 
 tavern keeper, or hotel keeper, the party so 
 designated must receive and entertain as 
 guests tliose who choose to visit his house; 
 and a restaurant, where meals are furnished, 
 is not an inn or tavern. People v. Jones, 54 
 Barb. 311. 
 
 2. A man may be an innkeeper, although 
 he keeps an inn imperfectly, or combines 
 that employment with others. If he is pre-
 
 INNKEEPER.— INSANITY. 
 
 355 
 
 Right to Detain Horses. 
 
 When a Defense. 
 
 pared and holds himself out to the public, 
 as ready to entertain travelers, strangers, 
 transient guests with their teams, although 
 he may sometimes make special bargains 
 ■with his customers, may not keep his house 
 open in the night, and may not keep the 
 stable at which he puts up the horses, at his 
 house. Com. v. Wetherbee, 101 Mass. 214. 
 
 3. Right to detain horses. The right 
 of an innkeeper to detain horses for their 
 keeping does not extend to the horses of in- 
 dividuals which are employed in carrying 
 the United States mail. U. S. v. Barney, 3 
 Wheeler's Crim. Cas. 513. 
 
 4. Indictment. It is not enough in an in- 
 dictment against an innholder for permit- 
 ting persons to play at cards and other 
 unlawful games in his house, to aver that the 
 defendant was duly licensed as an innholder, 
 without also alleging that the defendant was 
 actually keeping an inn at the time of the 
 playing cards in his house. State v. Bal- 
 kom, 3 Pick. 281. 
 
 hxBanxtm 
 
 1, When a defense. 
 
 2. Evidence. 
 
 1. When a defense. 
 
 1. Partial insanity. Partial insanity is 
 not necessarily an excuse for crime, and can 
 only be so when it deprives the party of his 
 reason in regard to the act charged. State 
 v. Huting, 21 Mo. 464. 
 
 2. A state of partial insanity will not ex- 
 cuse from responsibility if the person have 
 reason sufficient to enable him to distinguish 
 between right and wrong as to the particu- 
 lar act he is doing. Bovard v. State, 30 
 Miss, 600. 
 
 3. Moral insanity. It has been denied 
 that moral insanity has any foundation in 
 law. Choice v. State, 31 Ga. 424; affi'd 
 Humphreys v. State, 45 lb. 190. In Ken- 
 tucky, it has been held that to render moral 
 insanity an excuse there must be proved the 
 existence of an habitual tendency developed 
 in previous cases, becoming in itself a second 
 nature; but it need nut liuve manifested 
 
 itself in former acts of similar character to 
 the act charged. But it must have over- 
 whelmed the mental faculties to such an 
 extent as to render the accused incapable of 
 governing his actions at the time. Scott v. 
 Com. 4 Mete. Ky. 227. 
 
 4. Test of responsibility. It is erroneous 
 to charge that "when the jury, from evi- 
 dence, entertain a rational doubt on the 
 question of insanity, they should always 
 find in favor of insanity." The proper test 
 of responsibility is, whether the defendant 
 had sufficient reason to distinguish between 
 right and wrong, and sufficient power of 
 control to govern his actions. Smith v. 
 Com. 1 Duvall, Ky. 224; Kriel v. Com. 5 
 Bush, Ky. 362 ; People v. McDonnell, 47 Cal. 
 134; s. 0. 2 Green's Crim. Reps. 441, 
 
 5. The test of responsibility for criminal 
 acts, where unsoundness of mind is inter- 
 posed as a defense, is the capacity of the 
 accused to distinguish between right and 
 wrong at the time of, and with respect to 
 the act. A criminal act cannot be excused 
 upon the notion of an irresistible impulse to 
 commit it, where the offender has the ability 
 to discover his legal and moral duty in 
 respect to it. Flanagan v. People, 52 N.Y. 
 467 ; s. c. 1 Green's Crim. Reps. 377. 
 
 6. The unsoundness of mind which will 
 entitle the defendant to an acquittal under 
 the plea of insanity must be of such a 
 degree as to create an uncontrollable impulse 
 to do the act by overriding the reason and 
 obliterating the sense of right and wrong as 
 to the particular act. Hopps v. People, 31 
 111. 385 ; Spann v. State, 47 Ga. 553 ; s. c. 1 
 Green's Crim. Reps. 391. 
 
 7. The jury must be satisfied beyond a 
 reasonable doubt of the defendant's mental 
 capacity to commit the crime charged. If 
 he was moved to the act by an insane im- 
 pulse controlling his will and judgment, he 
 is not guilty, and if lie was a monomaniac 
 on any subject, it is immaterial on what 
 subject, so that the insane impulse led to 
 the commission of the act. Stevens v. State, 
 31 Ind. 485. 
 
 8. Where homicidal insanity is relied on, 
 it ought not to be regarded as sufficient to 
 exculpate, unless the jury believe, from the
 
 356 
 
 mSANITY. 
 
 When a Defense. 
 
 Evidence. 
 
 evidence, that the propensity to commit the 
 act existed in such violence as to subjugate 
 the intellect, control the will, and render it 
 impossible for the accused to do otherwise 
 than to yield to the insane impulse. State 
 V. Felter, 25 Iowa, 67. 
 
 9. The following charge upon the de- 
 fense of insanity was held proper : " If the 
 prisoner had power of mind enough to be 
 conscious of what he was doing at the time, 
 then he was responsible to the law for that 
 act." Brown v. Com. 78 Penn. St. 122. 
 
 10. On a trial for murder, the following 
 charge of the court was held unexception- 
 able: " To be a subject of punishment, an 
 individual must have reason and understand- 
 ing enough to enable him to judge of the 
 nature, character, and consequences of the 
 act charged against him. He must not be 
 overcome by an irresistible imjiulse arising 
 from disease. Every one of mature years is 
 presumed to be of sound mind. If a person 
 charged with crime be shown to have been 
 insane a short time before the commission of 
 the act, the evidence should show sanity at 
 the time, or the jury should acquit." State 
 v. Johnson, 40 Conn. 13G; s. c. 2 Green's 
 Crim. Reps. 487. 
 
 11. How determined. When, after the 
 jury are impaneled, there is reasonable 
 ground to doubt the sanity of the accused, 
 it is the duty of the court to suspend the 
 trial and to cause another jury to be im- 
 paneled to inquire into the fact of such 
 insanity. If the latter jury find that the 
 prisoner is insane, they should inquire 
 whether or not he was insane at the time of 
 the alleged offense. But if they find that 
 the accused is sane, his trial should proceed. 
 Gruber v. State, 3 West Va. 699. 
 
 2. Evidence. \^ 
 
 12. When introduced contrary to wishes 
 of defendant. Whenever a prisoner's sound- 
 ness of mind is in question, the rule that he 
 may control or discharge his counsel at 
 pleasure, is so far relaxed as to permit them 
 to offer evidence as to his insanity, against 
 his will. State v. Patten, 10 La. An. 299. 
 
 13. Importance of, to defense. Every 
 one must be held accountable for the conse- 
 
 quences of his acts consciously and deliber- 
 ately performed, unless he can show that he 
 is in that condition which stamps him as an 
 irresponsible being, and proof of his intel- 
 lectual capacity is improper. Patterson v. 
 People, 46 Barb. 625. 
 
 14. What proof required. The law de- 
 mands such evidence in support of the de- 
 fense of insanity as will satisfy the jury that 
 when the defendant committed the act he 
 was insane. Graham v. Com. 16 B. Mon. 
 587; State v. Smith, 53 Mo. 267; s. c. 3 
 Green's Crim. Reps. 597. It must be proved 
 that at that time the accused was laboring 
 under such a defect of reason as not to know 
 the nature and quality of the act he was 
 doing, or that he did not know he was 
 doing wrong. Kelly v. State, 3 Smed. & 
 Marsh. 518; and this must be clearly estab- 
 lished. People V. McDonnell, 47 Cal. 134; 
 s. c. 2 Green's Crim. Reps. 441. 
 
 15. It is not erroneous to charge the jury 
 that ' ' a man is not insane who knows right 
 from wrong; who knows the act he is com- 
 mitting is a violation of law, and wrong in 
 itself." "Willis v. Peojile, 5 Parker, 621. 
 
 16. The following instruction was held 
 projjer : ' ' Before you can acquit on the 
 ground of insanity, you must be clearly sat- 
 isfied that at the time the defendant com- 
 mitted the homicide, he was laboring under 
 a mental delusion or monomania, such as 
 irresistibly and uncontrolably forced him 
 to commit the crime. Fonts v. State, 4 
 Greene, 500. 
 
 17. Whether there is such a mental dis- 
 ease as dipsomania, and whether the ac- 
 cused had that disease, and whether a hom- 
 icide was the product of such disease, are 
 questions of fact for the jury. State v. Pike, 
 49 New Hamp. 399 ; State v. Jones, 50 lb. 
 369. 
 
 18. An irritable temper and excitable dis- 
 position of mind do not of themselves 
 prove insanity. If a person, when he kills 
 another, knows that the deed was unlawful 
 and morally wrong, he is responsible. Wil- 
 lis V. People, 32 N. Y. 715. 
 
 19. Reasonable doubt. The jury mu 
 be satisfied beyond a reasonable aoubt that 
 the prisoner was sane. Wagner v. Peopl
 
 INSANITY. 
 
 357 
 
 Evidence. 
 
 4 N. Y. Ct. of App. Decis. 509; affi'g 54 
 l^ Barb, 367 ; s. c. 2 Keyes, 684. 
 
 20. The defendant is not bound to prove 
 ) that he is insane by a preponderance of evi- 
 dence; but if there is a reasonable doubt 
 "whether lie is sane or insane, he must be ac- 
 quitted. State V. Crawford, 11 Kansas, 33; 
 s. c. 2 Green's Crim. Reps. 638; Polk v. 
 State, 19 Ind. 170. It is erroneous to charge 
 the jury that " the proof of insanity must be 
 as clear and satisfactory as the proof of the 
 crime ought to be to find a sane man 
 guilty," or to charge that "if the jury have 
 a reasonable doubt as to the insanity of the 
 defendant, they ought to convict." Dove v. 
 State, 3 Heisk. 348 ; s. c. 1 Green's Crim. 
 Reps. 412. 
 
 21. Where the prisoner relies on the de- 
 fense of insanity, he must prove it to the 
 satisfaction of the jury. If upon the whole 
 evidence they believe he was insane when 
 he committed the act, they should acquit 
 
 ^ him; but not upon any fanciful ground that 
 l/ though they believe he was then sane, yet 
 \ as there may be a rational doubt of such 
 sanity, he is therefore entitled to an acquit- 
 tal. Boswell V. Com. 20 Gratt. 860. 
 
 22. The defense of insanity must be es- 
 tablished to the satisfaction of the jury by 
 clear and convincing proof But if they 
 entertain a reasonable doubt of the sanity 
 of the prisoner, he must be acquitted. State 
 V. Marler, 2 Ala. 43 ; People v. McCann, 
 16 N. Y. 58. 
 
 23. Insanity must be established by evi- 
 dence in the case with the same clearness 
 and certainty as any other fact alleged in 
 defense; that is to say, the proof must be 
 such in amount, that if the single issue of 
 the sanity or insanity of the defendant 
 should be submitted to the jury in a civil 
 case, they would find that he was insane. 
 People V. Coflfman, 24 Cal. 230 ; People v. 
 Best, 39 lb. 690. 
 
 24. The following instruction, on a trial 
 for murder, was held correct: "It is not 
 necessary, in order to acquit, that the evi- 
 dence upon the question of insanity should 
 satisfy you beyond all reasonable doubt 
 that the defendant was insane. It is suffi- 
 cient, if, upon a consideration of all the evi- 
 
 dence, you are reasonably satisfied that he 
 was insane. If the weight or preponderance 
 of the evidence shows the insanity of the de- 
 fendant, it raises a reasonable doubt of his 
 guilt." State v. Felter, 82 Iowa, 49. But 
 the sanity of the accused being once estab- 
 lished in the case, the accused can only 
 avoid it by a preponderance of proof. lb. 
 
 25. Acts and declarations of accused. 
 Where on a trial for murder, the defense is 
 insanity, witnesses for the prisoner may tes- 
 tify as to the acts, declarations and conver- 
 sations of the prisoner, shortly previous to, 
 at the time of, or after the homicide. State 
 v. Hays, 22 La. An. 39 ; but not as to the 
 impression the prisoner's conduct made on 
 the mind of another person, the day before 
 the homicide. Lake v. People, 1 Parker, 
 495 ; aflS'd 12 N. Y. 358. 
 
 26. Upon the question of sanity at the 
 time of committing an offense, the acts, con- 
 duct, and habits of the prisoner at a subse- 
 quent time, to be admissible in evidence, 
 must be so connected with a disordered or 
 weakened mental condition preceding the 
 time of the offense as to lead to the infer- 
 ence of its continuance; or else they must 
 indicate unsoundness to such a degree or of 
 so permanent a nature as to have required a 
 longer period than the interval for its pro- 
 duction or development. Com. v. Pomeroy, 
 117 Mass. 143. 
 
 27. Where the defense is insanity, and the 
 coolness and unconcern of the prisoner at 
 the time he did the fatal act are made a 
 prominent feature in the case, it is compe- 
 tent for the prosecution to show that several 
 years before the commission of the crime 
 charged, he was engaged in smuggling, 
 which demanded at all times, great coolness 
 and hardihood. Hopps v. People, 31 111. 
 385. 
 
 28. It is not error for the judge, on a trial 
 for murder, to say to the jury: " If you find 
 the prisoner at tlie time Dr. B. was observ- 
 ing him through the hole in the wall, as de- 
 scribed by the witnesses, was watching to 
 see whether he was observed, and was regu- 
 lating his conduct accordingly, it would 
 raise a very strong presumption that the 
 prisoner was feigning insanity, and indeed
 
 358 
 
 INSANITY. 
 
 Evidence. 
 
 such evidence of design and calculation on 
 his part, as to be in my opinion, entirely 
 fatal to his defense of insanity." McKee v. 
 People, 36 N. Y. 113. 
 
 29. Character of prisoner. Where the 
 defense is insanity, evidence is admissible of 
 the uniform good character of the accused 
 as a man and a citizen. Hopps v. People, 
 31 111. 385. 
 
 30. Where on a trial for murder the ques- 
 tion was whether the act was the product of 
 insanity, or of a naturally malignant and 
 vicious heart, it was held, competent to in- 
 troduce evidence relative to the prisoner's 
 conduct at various times during many years 
 before the homicide, tending to show his 
 disposition and character. State v. Jones, 
 50 New Hamp. 369. 
 
 31. Opinions. In Ohio, it was held that 
 on a question of insanity, non-professional 
 witnesses might give their opinion in con- 
 nection with the facts on which such opin- 
 ion was based. Clark v. State, 13 Ohio, 483. 
 In Iowa, on a trial for murder, a witness hav- 
 ing testified that the prisoner "never was 
 just right," it was held proper for the jirose- 
 cution to ask the witness whether in his 
 opinion the prisoner was not intelligent 
 enough to know right from wrong. State 
 V. Porter, 34 Iowa, 131 : s. c. 1 Green's Crim. 
 Reps. 241. 
 
 32. But in New York, it was held proper 
 to exclude questions put to non-professional 
 witnesses who had testified to facts tending 
 to show the mental unsoundness of the ac- 
 cused, as to what they thought of his state 
 of mind. Eeal v. People, 42 N. Y. 270. 
 
 33. A party seeking to establish the de- 
 fense of insanity cannot prove by an expert 
 that he entertained doubts upon the ques- 
 tion. Sanchez v. People, 22 N. Y. 147. 
 
 34. Rumor. Where on the trial of a hus- 
 band for the murder of his wife, the defense 
 of insanity was set up, and it was sought to be 
 proved that the prisoner labored under the 
 insane delusion that his wife had been guilty 
 of adultery, it was held competent to prove 
 the existence of such a rumor in the village 
 where the prisoner and his wife lived. State 
 V. Jones, 50 New Hamp. 360. 
 
 35. Hereditary taint. Wheie on a trial 
 
 for murder, there is evidence tending to show 
 the insanity of the accused, it is competent 
 for the defense to prove that his parents and 
 other near relatives were insane. People v. 
 Smith, 31 Cal. 466. 
 
 36. Where the insanity of the defendant 
 is in issue, it is competent to prove that his 
 brother became insane from a cause similar 
 to that which it was alleged had induced 
 the destructive act of the defendant. Peo- 
 ple V. Garbutt, 17 Mich. 9. 
 
 37. Where insanity is relied on as a de- 
 fense, evidence of hereditary taint is not ad- 
 missible without some proof that the pris- 
 oner was affected by some form of mental 
 alienation. State v. Cunningham, 72 N. C. 
 409. 
 
 38. On an inquisition as to the sanity of a 
 person found guilty of murder, an inquiry 
 into his past life, to see if be had been insane 
 before, is only admissible after proof that 
 since his conviction he has given evidence 
 of insanity. Spann v. State, 47 Ga. 549 ; 
 s. c. 1 Green's Crim. Reps. 393. 
 
 39. Presumption from previous derange- 
 ment. Where it is shown that the intellec- 
 tual faculties were so impaired as to produce 
 a general habitual derangement of them, not 
 traceable to some temporary cause, the law 
 will presume the mind to have continued in 
 the same condition until the contrary is 
 shown. People v. Francis, 38 Cal. 183. 
 
 40. Where habitual unsoundness of mind 
 is once shown to exist, it is presumed to con 
 tinue to exist until the 23resumption is re 
 butted beyond a reasonable doubt. But 
 temporary insanity does not draw after it 
 such a presumption. State v. Reddick, 7 
 Kansas, 143. 
 
 41. But the finding of a jury upon a pre- 
 liminary issue that the accused was then 
 sane, cannot be considered upon the ques- 
 tion of insanity alleged as a defense upon 
 the trial. Freeman v. People, 4 Denio, 9. 
 
 42. Presumption from proof of insanity 
 at trial. Where a person was tried for 
 murder four months after it was charged to 
 have been committed, it was held that to 
 establish the defense of insanity, it was 
 competent for the defense to prove that the 
 
 It 1/
 
 INSANITY. 
 
 359 
 
 Evidence. 
 
 prisoner was insane at the time of the trial. 
 Freeman v. People, supra. 
 
 43. A verdict on an issue as to the sanity 
 of the prisoner, that he is insane, is compe- 
 tent evidence upon the question whether the 
 defendant was insane at the time of the 
 commission of the alleged offense. People 
 V. FaiTell, 31 Cal. 576. 
 
 44. Burden of proof. Sanity is jiresumed 
 to be the normal state of the human mind, 
 and it is not incumbent on the prosecution 
 to give affirmative evidence that such state 
 exists in a particular case. Walter v. Peo- 
 ple, 33 JST. Y. 147. But when any evidence 
 is given which tends to overthrow that pre- 
 sumption, the burden of proof is upon the 
 prosecution. People v. Garbutt, 17 Mich. 
 9 ; Bradley v. State, 31 Ind. 492. 
 
 45. Although sanity is the normal condi- 
 tion of the human mind, and in dealing 
 with acts there can be no presumption of 
 insanity, yet upon the traverse of an indict- 
 ment for murder when the homicide is ad- 
 mitted and the defense of insanity inter- 
 posed, the burden is with the prosecution to 
 show sanity which is requisite to constitute 
 the crime. People v. McCann, 16 N. Y. 58 ; 
 O'Brien v. People, 48 Barb. 274 ; Hopps v. 
 People, 31 111. 385 ; overruling Fisher's 
 Case, 23 lb. 293, Walker, J., dissenting; con- 
 tra, Lake v. People, 1 Parker, 495 ; McKen- 
 zie V. State, 26 Ark. 334. 
 
 46. In New Hampshire, on a trial for mur- 
 der, the prisoner's counsel asked the court 
 to charge the jury that sanity was a fact to 
 be proved by the prosecution beyond a rea- 
 sonable doubt; that there was no legal pre- 
 sumption of sanity as a matter of law, or as 
 affecting the burden of proof in criminal 
 cases. The court declined so to charge, and 
 instructed the jury that every person of ma- 
 ture age is presumed to be sane, until there 
 is evidence tending to show insanity ; but 
 that when there was evidence tending to 
 show insanity, the prosecution must satisfy 
 the jury beyond reasonable doubt, that the 
 prisoner was sane. Held correct. State v. 
 Pike, 49 New Hamp. 399. 
 
 47. In Maine, Massachusetts and Ohio, 
 when insanity is interposed as a defense, the 
 burden of proof is on the defendant, and he 
 
 must satisfy the jury by a preponderance of 
 evidence. State v. Lawrence, 57 Maine, 574 ; 
 Com. V. Eddy, 7 Gray, 583; Loefiiier v. 
 State, 10 Ohio, N. S. 598; Bond v. State, 23 
 lb. 349. 
 
 48. In Minnesota, the following instruc- 
 tion was held jjroper: "The plea of insan- 
 ity is one for the defendant to establish. 
 The sanity of mankind being the rule, the 
 burden of proof is on the defendant to 
 show that an exception exists in his case." 
 Bonfantiv. State, 2 Minn. 123; approved, 
 State V. Gut, 13 lb. 341. 
 
 49. In Pennsylvania, when a homicide is 
 admitted, and insanity alleged as an excuse, 
 the prisoner will be presumed to have been 
 sane, until the contrary is made to appear in 
 his behalf. The evidence to establish in- 
 sanity as a defense, must be satisfactory, and 
 not merely doubtful. Ortwein v. Com. 76 
 Peun. St. 414; Lynch v. Com. 77 lb. 205. 
 
 50. In Missouri, the burden of establish- 
 ing the insanity of the accused is on the 
 defense. State v. McCoy, 34 Mo. 531. But 
 it need not be established beyond a reason- 
 able doubt. It is sufficient if the jury is 
 reasonably satisfied by the weight or pre- 
 ponderance of the evidence that the accused 
 was insane at the time of the commission of 
 the act. State v. Klinger, 43 Mo. 127; 
 State V. Hundley, 46 lb. 414; State v. 
 Smith, 53 lb. 267 ; State v. Holme, 54 lb. 153. 
 
 51. In New .Jersey, where the defense is 
 insanity, the burden of proof is on the pris- 
 oner; and the jury must be satisfied of the 
 insanity beyond a reasonable doubt. State 
 V. Spencer, 1 Zabr. 197. 
 
 52. In California, where insanity is relied 
 on as a defense, the burden of proof is on 
 the defendant. People v. McDonell, 47 Cal. 
 134 ; and if it be a question whether it was 
 the result of intoxication immediately in- 
 dulged, or was caused by long continued 
 intemperance, the burden is on the prisoner 
 of proving it to be of the latter character. 
 People V. Bell, 49 lb. 485. 
 
 53. The jury ought not to return a verdict 
 of guilty so long as a reasonable doubt rests 
 in their minds of the prisoner's capacity to 
 commit the offense charged, whether the 
 proof of insanity comes from the govern-
 
 360 
 
 INTOXICATION AS AN EXCUSE FOR CRIME. 
 
 Will not in General Excuse. 
 
 When Entitled to Consideration. 
 
 ment or the accused, or part from each ; and 
 it is incumbent upon the prosecution to sat- 
 isfy them beyond a reasonable doubt of the 
 existence of all the elements that constitute 
 the offense, including the necessary sound- 
 ness of mind. State v. Bartlett, 43 New 
 Hamp. 224 ; approved, State v. Jones, 50 lb. 
 369. 
 See Homicide. 
 
 Jnto^icatioii as an ^3a*cu5c 
 for vdrimc. 
 
 1. Will not in general excuse. Drunk- 
 enness is no excuse for crime, and the person 
 who is voluntarily in that condition, takes 
 the consequences of his own acts. Lanergan 
 V. People, 50 Barb. 266 ; Frieiy v. People, 
 54 lb. 319; 2 N. Y. Ct. of App. Decis. 215; 
 Slate V. Harlow, 21 Mo. 446 ; Shanahan v. 
 Com. 8 Bush, 463; s. c, 1 Green's Ciim. 
 Reps. 373 ; the rule being that a man cannot 
 avail himself of his intoxication to exemjjt 
 him from any legal responsibility that would 
 attach to him if sober. Com. v. Hawkins, 
 3 Gray, 463. So long as the offender is ca- 
 pable of conceiving a design, he will be pre- 
 sumed, in the absence of proof to the 
 contrary, to have intended the natural con- 
 sequences of his act. Kenny v. People, 31 
 N. Y. 330. 
 
 2. Where without intoxication the law 
 would impute to the act a criminal intent, 
 as in the case of wanton killiug without 
 provocation, drunkenness is not available 
 to disprove such intent. Rafferty v. Peoijle, 
 66 111. 118. 
 
 3. It is no excuse for crime committed in 
 a state of intoxication that a person by con- 
 stitutional infirmity, or accidental injury to 
 the head, is more likely to be maddened by 
 liquor than another person. Choice v. State, 
 31 Ga, 424 ; affi'd Humphreys v. State, 45 lb. 
 190. 
 
 4. On a trial for murder, the court are not 
 required to charge that the jury may infer 
 from the jiresence of intoxication the ab- 
 sence of premeditation. O'Brien v. People, 
 48 Barb. 274 ; 36 N. Y. 276. 
 
 5. The following instruction on a trial for 
 murder was held proper: "If the jury are 
 satisfied from the evidence that the prisoner 
 intended to kill the deceased, the circum- 
 stance of his being drunk at the time is not 
 sufficient to repel the inference of malice 
 and premeditation or to mitigate the of- 
 fense." State v. Cross, 27 Mo. 332, Richard- 
 son, J., dissenting. 
 
 6. In Alabama, where on a trial for an 
 assault with intent to murder it was proved 
 that the prisoner was so much intoxicated 
 when he committed the offense as to be 
 reduced to a state of temjDorary insanity, it 
 was held that that fact should have no influ- 
 ence with the jury. State v. Bullock, 13 
 Ala. 413. 
 
 7. The following instruction was held 
 correct: "Insanity produced by intoxica- 
 tion does not destroy responsibility where 
 the party when sane and responsible made 
 himself voluntarily intoxicated, and drunk- 
 enness forms no defense whatever to the fact 
 of guilt. Evidence of drunkenness can only 
 be considered by the jury for the purpose of 
 determining the degree of crime." People 
 V. Lewis, 36 Cal. 531. 
 
 8. "When entitled to consideration. 
 Where the circumstances are such as to 
 raise the question whether the act was the 
 result of design or the impulse of sudden 
 passion, the intoxication of the accused is a 
 proper subject of consideration. State v. 
 Gut, 13 Minn. 341 ; Kelly v. State, 3 Smed. 
 & Marsh. 518; Golden v. State, 25 Ga. 527; 
 Jones V. State, 29 lb. 594. When intoxica- 
 tion so clouds the intellect as to deprive it 
 of the power to think and weigh the nature 
 of the act committed, it may reduce the 
 grade of offense. Jones v. Com. 75 Penn. 
 St. 403. 
 
 9. It is erroneous to charge the jury that 
 " drunkenness can never be received as a 
 ground to excuse or palliate a crime," how 
 far it should be so received depending on its 
 effect upon the mind. GoUiher v. Com. 2 
 Duvall, Ky. 163 ; Smith v. Com. 1 lb. 224. 
 
 10. Although where malice is an ingredi- 
 ent of the charge, intoxication is admissible 
 in evidence to rebut it, yet this does not
 
 INTOXICATION AS AN EXCUSE FOR CRIME. 
 
 361 
 
 When Entitled to Consideration. Where Defendant was Unconscious of his Act. 
 
 apply to intention. Dawson v. State, 16 
 Ind. 428. 
 
 11. If a man without provocation kill 
 another, no degree of intoxication short of 
 that which shows that he was at the time 
 utterly incapable of acting from motive will 
 shield him from conviction. But in cases of 
 homicide, the fact that the accused was 
 under the influence of liquor may be given 
 in evidence in his behalf, and. the efiect it 
 ought to have on the verdict will depend 
 upon the other circumstances of the case. 
 People V. Rogers, 18 N. Y. 9; rev'g s. c. 
 3 Parker, 633; s. p. Lanergan v. People, 6 
 Parker, 209. 
 
 12. It is erroneous to charge the jury that 
 *'in cases of homicide without any jirovoca- 
 tion, the fact of drunkenness is entitled to 
 no consideration," and that "temporary in- 
 sanity which has followed as the immediate 
 result of voluntary drinking to intoxication 
 is no excuse for crime." If the jury believe 
 from the evidence that the defendant at the 
 time of the killing was in a state of intoxi- 
 cation, brought on by drinking for the pur- 
 pose of gratifying a sensual appetite, or 
 indulging his feelings of social hilarity, 
 without any premeditated crime, they ought 
 in determining the question of malice and 
 mitigation to take into consideration the de- 
 fendant's condition. Smith v. Com. 1 Duvall, 
 Ky. 224 ; Curry v. Com. 2 Bush, Ky.67 ; Kriel 
 V. Com. 5 Bush, Ky. 363; Blimm v. Com. 7 
 lb. 330; Shanahan v. Com. 8 Bush, Ky. 463. 
 
 13. On a trial for murder charged to have 
 been committed by the accused with a club 
 in an affray, it may be shown that the ac- 
 cused was intoxicated at the time, and for 
 this purpose a witness who was well ac- 
 quainted with the accused may state his 
 opinion as to whether or not the accused 
 was intoxicated. Eastwood v. People, 3 
 Parker, 25 ; s. c. 14 N. Y. 563. 
 
 14. In case of homicide, intoxication is 
 not such an excuse as will allow a less than 
 ordinarily adequate provocation to palliate 
 the offense, unless it rendered him unable to 
 form a willful, deliberate and premeditated 
 design to kill, or incapable of judging of 
 his acts or their legitimate consequences. 
 Keenan v. Com. 44 Penn. St. 55. 
 
 15. On a trial for murder, the question 
 whether the prisoner was intoxicated is 
 material in order that the jury may deter- 
 mine whether threats used were the deliber- 
 ate words of a sober and bad man, or the 
 idle and coarse language of one who was 
 drunk. People agst. Eastwood, 14 N. Y. 
 562. 
 
 16. On a trial for murder, it is competent 
 to prove that the deceased was intoxicated 
 at the time of the homicide, as tending to 
 show that he was incapable of attack or 
 defense. State v. Home, 9 Kansas, 119; 
 s. c. 1 Green's Crim. Reps. 718. 
 
 17. Where defendant was unconscious 
 of his act. If the accused was so drunk 
 as not to know what he was doing, it may 
 be proved to show absence of intention. 
 But the question of malice must be deter- 
 mined aside from the fact of intoxication. 
 Nichols V. State, 8 Ohio, N. S. 435. 
 
 18. On the trial of a servant for stealing 
 the property of his master intrusted to him, 
 the court charged the jury that if the defend- 
 ant at the time he converted the property to 
 his own use was so drunk as not to know 
 what he was doing, he ought to be acquitted, 
 unless the evidence showed that the feloni- 
 ous intent existed when he was in the full 
 and undisturbed possession of his mental 
 faculties. Held correct. State v. Schingen, 
 20 Wis. 74. 
 
 19. On the trial of an indictment for an 
 assault with intent to do great bodily harm, 
 defendant's counsel asked the court to charge 
 that "if the jury believed from the evi- 
 dence that the defendant was in such a state 
 of mind from any cause that he did not 
 know what he was doing, they could not 
 rightfully convict.'' This instruction was 
 given with the qualification that " if the de- 
 fendant did not know what he was doing 
 from being in a state of insensibility, the 
 jury could not convict; but otherwise, if 
 from excitement or madness, the immediate 
 consequence of indulgence in strong drink." 
 Held error, for the reason that if the defend- 
 ant was so drunk as not to know what he 
 was doing, he was incapable of forming an 
 intention. State v. Garvey, 11 Minn. 154. 
 See State v. Gut, 13 lb. 341.
 
 3G2 
 
 INTOXICATION AS AN EXCUSE.— JUDGMENT. 
 
 Where Intoxication causes Madness. 
 
 Nature and Requisites. 
 
 20. But in Michigan, it was held proper 
 
 for the court to refuse to charge the jury 
 that if they believed that the defendant was 
 intoxicated to such an extent as to make him 
 unconscious of what he was doing at the 
 time of the commission of the oflFense, the 
 defendant must be acquitted. People v. 
 Garbutt, 17 Mich. 9; s. p. Boswell v. Com. 
 20 Gratt. 860. 
 
 21. Where intoxication causes madness. 
 Although evidence of intoxication is admis- 
 sible on a trial for murder, because it may 
 tend to cast light upon the acts, observa- 
 tions, or circumstances attending the homi- 
 cide, yet intoxication must result in a fixed 
 mental disease of some continuance or du- 
 ration, before it will have the effect to re- 
 lieve from responsibility for crime. Lanergan 
 V. People, 50 Barb. 266 ; s. c. 6 Parker, 209; 
 People V. Williams, 43 Cal. 344; s. c. 1 
 Green's Crim. Reps. 412. 
 
 22. While the temporary want of reason, 
 resulting from intoxication, aflbrds no ex- 
 cuse for crime, it is otherwise as to habitual 
 madness caused by long continued drunken- 
 ness. Cromwell v. State, 1 Mart. & Yerg. 
 147; U. S. V. Drew, 5 Mason, 28; State v. 
 McGonigal, .5 Haning. 510. 
 
 23. The rule that intoxication creates no 
 exemption from criminal responsibility, does 
 not apply to delirium tremens, which al- 
 though the result of prior vicious indulgence, 
 is always shunned, and not voluntarily as- 
 sumed. Maconnekey v. State, 5 Ohio, N. S. 77. 
 
 24. Where delirium tremens deprives a 
 person of the capacity of knowing what he 
 is doing, or of distinguishing right from 
 wrong, it will save him from criminal re- 
 sponsibility for his acts. O'Brien v. People, 
 48 Barb. 274, per Leonard, J. 
 
 25. Proof must be confined to date of 
 offense. Evidence that the accused was in 
 the habit, at times, of drinking to excess, 
 and the effect of this habit upon his mind, 
 is not proper, unless confined within a period 
 of a few days of the transaction. On a trial 
 for murder, the prisoner's counsel oft'ered to 
 prove that the prisoner was addicted to hard 
 drinking; that he sometimes drank to great 
 excess, and continued on drunken sprees 
 for days and weeks at a time, and had had 
 
 delirium tremens and insanity. The court 
 asked whether the counsel jjroposed to show 
 that within two or three days previous to the 
 homicide, he had one of those fits on him. 
 The counsel replied that he did not propose 
 to show that by the witness, but to lay a 
 foundation to prove it. The court ruled out 
 the question, and afterward told the counsel 
 that if he could show that the prisoner had 
 delirium tremens at or about the time of the 
 homicide, he could show it by this or any 
 other witness ; to which the counsel replied 
 that he proposed to show the drinking first. 
 Held no error. Real v. People, 55 Barb. 551 ; 
 affi'd 42 N. y. 270. 
 
 3copar&u, 
 
 See Former acquittal or conviction. 
 
 SuDgmcnt. 
 
 1. Nature and requisites. 
 
 2. Arrest op judgment. 
 
 1. Nature and requisites. 
 
 1. On demurrer. A judgment against the 
 defendant on demurrer to an indictment for 
 a misdemeanor is final. State v. Rutledge, 
 8 Humph. 32. But see Ross v. State, 9 Mo. 
 687. 
 
 2. Of conviction. A judgment of convic- 
 tion should be certain and final, and subject 
 to no future decision or contingency. Mor- 
 ris V. State, 1 Blackf 37. 
 
 3. A judgment reciting that the jury were 
 selected and sworn to try the prisoner, who 
 was indicted for murder, and that he was 
 thereupon arraigned and pleaded "not 
 guilty " to the indictment, is erroneous. It 
 should have stated that the plea of the 
 prisoner preceded the selection and swearing 
 of the jury. State v. Hughes, 1 Ala. 655. 
 
 4. Date may be given in figures. The 
 day of the sentence and day of execution 
 may be given in figures, instead of letters. 
 Noles v. State, 24 Ala. 672. In California, 
 the practice of designating in a judgment of 
 death, a day for carrying it into eflFect, is not
 
 JUDGMENT. 
 
 3G3 
 
 Nature and Requisites. 
 
 Arrest of Judgment. 
 
 in confoitnity with the statute, which requires 
 that the day should be designated in the 
 warrant for the execution, and not in the 
 judgment. People v. Bonilla, 38 Cal. 99; 
 People V. Murphy, 45 lb. 137 ; s. c. 2 Green's 
 Crim. Reps. 414. 
 
 5. Reversal. A judgment against the 
 prisoner will not be reversed by default, but 
 it must be shown to the court that there was 
 error in the record or proceedings of the 
 court below. Barron v. People, 1 Barb. 
 186. 
 
 6. A judgment may be erroneous in part, 
 and valid as to the residue. Taff v. State, 
 39 Conn. 82; Matter of Sweatman, 1 Cow. 
 144. 
 
 2. Arrest op judgment. 
 
 7. Nature and object of motion. A 
 motion in arrest is a proceeding in behalf of 
 a prisoner after verdict and before sentence, 
 and designed to stay sentence and judgment 
 for error appearing on the face of the record. 
 It is grounded upon the same objections as 
 will support a writ of error ; and no defect 
 in evidence or improper conduct on the trial 
 can be urged at this stage of the proceedings. 
 When, however, judgment is once given, the 
 writ of error is the only remedy for error of 
 record. The decision of the court upon the 
 motion in arrest, if erroneous, is not of itself 
 ground of eiTor ; for the same objections can 
 be raised upon the wilt as upon the motion 
 in arrest, and are not waived by the omission 
 to urge them before judgment. After judg- 
 ment, the remedy by motion in arrest is gone, 
 and the case is to be determined by the 
 record, as though no such motion had been 
 made. People v. Allen, 43 N. Y. 28. 
 
 8. A motion in arrest of judgment is not 
 limited to the indictment, but may be made 
 upon the whole record, which includes the 
 verdict. People v. Bruno, 6 Parker, 657. 
 
 9. In Kentucky, the only ground for arrest 
 of judgment under the statute (Crim. Code, 
 § 270) is that the facts stated in the indict- 
 ment do not constitute a public oflense 
 within the jurisdiction of the court. Wal- 
 ston V. Com. 16 B. Mon. 15. 
 
 10. "When the motion may be made. A 
 motion in arrest of judgment can only be 
 
 entertained for matter apparent upon an 
 inspection of the record. State v. Bangor, 
 38 Maine, 592 ; State v. Carver, 49 lb. 588 ; 
 Terrell v. State, 9 Ga. 58. Whether the 
 facts are properly alleged, or constitute a 
 crime may be inquired into on motion in 
 arrest of judgment. State v. Hart, 34 
 Maine, 36. Such a motion is proper after 
 conviction under an indictment charging 
 two distinct offenses. State v. Howe, 1 
 Rich. 360. Where the record did not show 
 that the grand jury had returned the indict- 
 ment into court, it was held that the judg- 
 ment must be set aside. Rainey v. People, 
 3 Gilman, 71. 
 
 11. It is too late after verdict to interjjose 
 a motion in arrest of judgment founded upon 
 proper service of the warrant. Com. v. 
 Gregory, 7 Gray, 498. 
 
 12. Where the offense is barred. In 
 Alabama, where the date of the commission 
 of the offense was left blank, and it did not 
 not appear whether the statute of limitations 
 barred the prosecution or not, judgment was 
 arrested. State v. Beckwith, 1 Stewart, 318. 
 But in New York, where it appeared from 
 the indictment that the offense was barred 
 by the statute of limitations, it was held not 
 a ground for arresting judgment. People 
 V. Van Santvoord, 9 Cow. 654. The contrary 
 was held in Georgia. McLane v. State, 4 
 Ga. 335. 
 
 13. When the motion will be denied. 
 The improper conduct of the jury after they 
 have retired to deliberate on their verdict 
 is not a ground for a motion in arrest of 
 judgment. Brister v. State, 26 Ala. 107. 
 
 14. The neglect of the clerk to enter the 
 verdict on the minutes, it being written on 
 the indictment, which is filed in the proper 
 office, is not a ground for arrest of judg- 
 ment. Hall V. State, 3 Kelly, 18. 
 
 15. Where the indictment alleged that 
 goods charged to have been stolen were the 
 property of persons whose names were un- 
 known, and a witness who appeared before 
 the grand jury swore that he owned a part 
 of the goods, it was held to be no cause for 
 arresting judgment, and that the objection 
 should have been made by special plea. U. S. 
 V. Stetson, 3 Woodb. & Minot, 164.
 
 364 
 
 JUDGMENT.— JURISDICTION. 
 
 Arrest of Judgment. 
 
 Of Courts in General. 
 
 16. Presumption where no exception 
 taken. Where no exception is taken to the 
 denial of a motion in arrest of judgment, 
 and the record does not set out the evidence 
 on Avliich the motion was made, the appel- 
 late court will presume that the motion was 
 properly overruled. Kobin v. State, 40 Ala. 
 
 r-O 
 ( i. 
 
 See New trial ; Trial. 
 
 SurisMctiou. 
 
 1. Op courts in general. 
 
 2. With reference to the place of trial. 
 
 3. Jurisdiction of State courts. 
 
 4. Jurisdiction of United States courts. 
 
 1. Of courts in general. 
 
 1. Cannot be conferred by consent. The 
 
 court cannot acquire jurisdiction to try an 
 offense by consent ; nor can its jurisdiction 
 over an offense be changed by consent so as 
 to embrace any other than that presented 
 by the grand jury. People v. Campbell, 4 
 Parker, 386. 
 
 2. Consent by the defendant, whether 
 given directly, or inferred from his acts or 
 omissions, cannot confer jurisdiction upon 
 the court to try the defendant for any other 
 crime than such as is charged in the indict- 
 ment as found and returned by the grand 
 jury. People v. Granice, 50 Cal. 447. 
 
 3. But where parties upon being brought 
 before a magistrate on a charge of keeping 
 a disorderly house, elected to be tried by a 
 Court of Special Sessions, it was held that 
 they thereby waived all objection to the 
 jurisdiction of the court. Gill v. People, 5 
 N. Y. Supm. N. S. 308. 
 
 4. So, where the defendant having been 
 indicted for gambling, and pleaded guilty, 
 sought to reverse the judgment because no 
 indictment would lie at the time for the 
 offense, it was held that as he voluntarily 
 submitted himself to the jurisdiction, the 
 judgment would not be reversed. State v. 
 Coover, 49 Mo. 432. 
 
 5. Judge de facto. Where a conviction 
 was had before a person who was appointed 
 to the office of circuit judge by the governor 
 
 without authority, it was held that he was 
 a de facto judge, so as to render his acts in 
 tiyiug and sentencing the accused valid. 
 State V. Bloom, 17 Wis. 521. 
 
 6. Absence of judge. Where after the 
 jury had been impaneled, and a portion of 
 the evidence taken on a trial in a Court of 
 Sessions, one of the associate justices ab- 
 sented himself, and a justice of the peace, 
 by the direction of the county judge, took 
 his place and the trial proceeded, it was 
 held error. Blend v. People, 41 N. Y. 604. 
 
 7. But when a session of court is in pro- 
 gress with a quorum in actual attendance, 
 the casual and temporary absence of one of 
 the judges from his seat, does not impair 
 the validity of the proceedings. Tuttle v. 
 People, 36 N. Y. 431. 
 
 8. Where the record of conviction shows 
 that one judge was " absent through dis- 
 ability," it is a statement of a jurisdictional 
 fact which if untrue might have been con- 
 troverted. For it is well settled that "no 
 court or officer can acquire jurisdiction by 
 the mere assertion of it, or by falsely alleg- 
 ing the existence of the facts on which 
 jurisdiction depends." People v. Davis, 61 
 Barb. 456. 
 
 9. Judge interested. Where the interest 
 of the judge was not only minute, but 
 contingent, and dependent upon the decision 
 of another tribunal, it was held that it did 
 not disqualify him. State v. Intoxicating 
 Liquors, 54 Maine, 564. 
 
 10. Irregularity in issuing precept. 
 Where a statute required the district at- 
 torney to issue a precept to the sheriff, at 
 least twenty days before the holding of a 
 Court of Oyer and Terminer, it was held 
 merely directory, and that an omission to 
 obey such direction, did not invalidate judg- 
 ments rendered at such a court; but that if 
 it did, the only way in which advantage 
 could be taken of the want of such a precept 
 would be by a motion to the same court to 
 quash the indictment or for a new trial or in 
 arrest of judgment. People v. McCann, 3 
 Parker, 272. Such an omission is not an 
 irregularity of which anybody can take 
 advantage. People v. Cummings, lb. 343, 
 per Harris, J.
 
 JURISDICTION. 
 
 365 
 
 Of Courts in General. 
 
 With Reference to the Place of Trial. 
 
 11. End of term. On a trial for murder, 
 the jury received the charge on Saturday, 
 the last day of the term, and did not agree 
 on their verdict until the following Tuesday, 
 the court being meanwhile adjourned from 
 day to day. Held that the jurisdiction of 
 the court did not end with the term, but 
 continued until the verdict was delivered 
 and the sentence passed. Briceland v. Com. 
 74 Penn. St. 463 ; s. c. 2 Green's Crim. 
 Reps. 523. 
 
 12. How determined. When the question 
 of jurisdiction depends upon the construc- 
 tion and effect of charters, grants and 
 records, it is to be determined by the court, 
 which may refer to the same, to the histories 
 of deceased authors, and to the census taken 
 under the laws of the United States; and 
 the officer who took the census may testify 
 as to the place of residence of a person 
 when the record does not show it. When 
 the State authorities have claimed and ex- 
 ercised jurisdiction over a particular place, 
 the State courts will acquiesce therein. 
 State V. Wagner, 61 Maine, 178. 
 
 13. The title of justices of sessions to 
 their office cannot be collaterally inquired 
 into, but only by a direct proceeding against 
 them by information in the nature of a quo 
 warranto. Nelson v. People, 5 Parker, 39. 
 
 14. On the trial of an indictment for 
 obtaining 'property under false pretenses, 
 doubts as to jurisdiction may be solved in 
 favor of the comi;, unless by so doing some 
 established rule of law will be violated. 
 Smith V. People, 47 N. Y. 330. 
 
 15. As the jurisdiction of justices of the 
 peace is wholly derived from the statute, it 
 cannot be enlarged by presumption or imi- 
 plication. State v. Hall, 49 Maine, 412. 
 
 IS. In pleading the judgments or pro- 
 ceedings of inferior courts of special and 
 limited jurisdiction, and of magistrates and 
 officers acting under a statute or special au- 
 thority, a general averment of jurisdiction 
 is not sufficient, but the facts upon which it 
 depends must be averred. People v. Weston, 
 4 Parker, 226. 
 
 2. With keperence to tue place op 
 
 TKIAL. 
 
 17. Designation of place by court. 
 
 Where the power to fix the times and places 
 of holding courts is committed by statute to 
 all the judges, it is not iu the power of a 
 single judge, after all the judges have united 
 in making the appointments, to adjourn his 
 court to be held at a different place, Nor- 
 thrup V. People, 37 N. Y. 203. 
 
 18. "Where the offense is committed out 
 of the State. Where an offense is com- 
 mitted in one State, by the procuration of a 
 resident of another State, who is not per- 
 sonally present, such non-resident offender 
 can be punished by the courts of the first 
 mentioned State, if jurisdiction can be ob- 
 tained of his person. State v. Grady, 34 
 Conn. 118; contra, State v. Wyckoff, 2 Vroom, 
 65. 
 
 19. An indictment which alleges that the 
 defendant committed a felonious assault and 
 battery in New York, and that the person 
 assaulted went to New Jersey and died there 
 of his wounds, does not charge a crime cog- 
 nizable by the courts of New Jersey. State 
 V. Carter, 3 Dutch. 499, 
 
 20. But where a person sold property in 
 Ohio which he did not own, falsely and 
 fraudulently representing that he was the 
 owner, and the money was paid and bill of 
 sale executed in Kentucky, where the person 
 defrauded lived, it was held that the courts 
 of the latter State had jurisdiction to try the 
 indictment for obtaining money by false 
 pretenses. Com. v. Van Tuyl, 1 Mete. 
 Ky. 1. 
 
 21. Where on the trial of an indictment 
 for unlawfully solemnizing a marriage, and it 
 appeared that the ceremony was performed 
 in the middle of the Ohio river, it was held 
 that as the State of Ohio had never by its 
 legislation claimed jurisdiction over the 
 place where the marriage was solemnized, 
 the offense was cognizable by the laws of 
 Kentucky. McFall v. Com. 2 Mete. Ky. 394. 
 
 22. County. Where a body of water in 
 which the tide ebbs and flows is situated 
 between a range of islands and the main 
 shore, and all are so near to each other that 
 a person with the ordinary power of vision, 
 can see with the naked eye from point to 
 point, on every part of the connecting line, 
 what is doing on each, it is included within
 
 366 
 
 JUKISDICTIOK 
 
 With Reference to the Place of Trial. 
 
 Jurisdiction of State Courts. 
 
 the county, according to the rule which ex- 
 tends the jurisdiction of the county to a line 
 running from one to the other of the fauces 
 term. People v. Wilson, 3 Parker, 199, per 
 Strong, J. 
 
 23. Boundary between two counties. 
 In New York, for the puqjoses of criminal 
 jurisdiction, an offense is committed on the 
 boundary between two adjacent counties, if 
 perpetrated within five hundred yards of the 
 boundary line. People v. Davis, 36 N. Y. 
 77. 
 
 24. Where the offense is committed on 
 board of a vessel. Upon the high seas 
 every vessel is, for jurisdictional purposes, 
 a part of the territory of the nation of its 
 owners. An offense committed on board of 
 such vessel is an oflfense against the sover- 
 eignty of that nation. But when a private 
 ship enters a foreign jurisdiction, it becomes 
 at once, with all on board (in the absence 
 of treaty stipulations to the contrary), sub- 
 ject to the municipal laws and control of the 
 country it visits. People v. Tyler, 7 Mich. 
 161 ; s. c. 8 lb. 320. See post, sub. 52. 
 
 25. Where A. shot B. on an American 
 vessel on the St. Clair river, within the limits 
 of Canada, and B. died of the wound on 
 land, within the county of St. Clair, in the 
 State of Michigan, it was held that the 
 oflfense was not cognizable by United States 
 law. lb. 
 
 26. In order to give the court jurisdiction 
 to try an offense committed on board of a 
 canal boat, it must be alleged in the indict- 
 ment that the crime was committed on board 
 the boat or vessel, and that the boat or ves- 
 sel, on that trip or voyage, had passed 
 through some part of the county in which 
 the indictment was found; and also to prove 
 both facts upon the trial. Larkin v. People, 
 61 Barb. 226. 
 
 27. A person was indicted, tried and con- 
 victed in the Court of Sessions of Erie coun- 
 ty. New York, for a crime charged in the 
 indictment to have been committed on board 
 a canal boat which was navigating the Erie 
 canal, at L., in the county of Herkimer, It 
 was proved on the trial that the boat had 
 passed from Buffalo on the canal through a 
 part of Erie county ; but there was no evi- 
 
 dence that the crime charged had been com- 
 mitted at the place named in the county of 
 Herkimer, on board the canal boat, as 
 charged. Held that this was sufficient to 
 reverse the judgment on the ground of want 
 of jurisdiction upon the facts proved. lb. 
 
 3. Jurisdiction op State courts. 
 
 28. In case of unlawful arrest out of 
 State. It is not a defense to an indictment 
 charging the parties with the commission of 
 crime in Iowa, that they were wrongfully 
 arrested in another State and taken to Iowa. 
 State V. Ross, 21 Iowa, 467. 
 
 29. Indians. Indians living on a reserva- 
 tion within the limits of a State must be 
 prosecuted in the State courts for oflfenses 
 committed by them away from the reserva- 
 tion and within the State. U. S. v. Sa-Coo- 
 Da-Cot, 1 Abb. 377. 
 
 30. Offenses against the United States. 
 The fact that the defendant will be liable to 
 prosecution in the courts of the United 
 States, will not exclude the jurisdiction of 
 the State courts. State v. Moore, 6 Ind. 436. 
 
 31. The New York Court of Oyer and 
 Terminer has jurisdiction to try an indict- 
 ment for murder committed within the 
 State by a soldier in the military service of 
 the United States in time of war, insurrec- 
 tion, or rebellion. People v. Gardiner, 6 
 Parker, 143. 
 
 32. The act of Congress of March 3, 1863, 
 which declares that in time of war, insur- 
 rection or rebellion, murder and other 
 enumerated oflfenses shall be punishable by 
 the sentence of a general court martial or 
 military commission, when committed by 
 persons who are in the military service of 
 the United States and subject to the articles 
 of war, although constitutional, does not 
 divest the State courts of jurisdiction in 
 similar cases. lb. 
 
 S3. The liability of a party to be punished 
 under the United States bankrupt act (of 
 1867, § 44), for obtaining goods on credit, 
 with intent to defraud, within three months 
 before the commencement of proceedings in 
 bankruptcy, does not take away the juris- 
 diction of the courts of Massachusetts under 
 an indictment for conspiring to obtain the
 
 JURISDICTION. 
 
 367 
 
 Jurisdiction of State Courts. 
 
 goods by false pretenses. Com. v. Walker, 
 108 Mass. 309. 
 
 34. But the State tribunals have no 
 power to punish crimes against the laws of 
 the United States as such. The same act may, 
 in some instances, be an offense against the 
 laws of both, and it is only as an offense 
 against the State laws that it can be pun- 
 ished by the State. People v. Kelly, 38 
 Cal. 145. 
 
 35. Congress has no power to give the 
 courts of the States criminal jurisdiction in 
 respect to offenses against Federal laws, and 
 a State Legislature has no power to con- 
 stitute such offenses cognizable by the courts 
 of the State. State v. Tuller, 34 Conn. 280. 
 
 36. The State tribunals have not jurisdic- 
 tion to grant relief in case of an unlawful 
 imprisonment by an oflScer of the United 
 States under color of the authority of the 
 United States. State v. Zulich, 5 Dutch. 
 409. 
 
 37. It is incompetent for a State court or 
 judge, by a writ of habeas corpus, or other- 
 wise, to take a party out of the hands of an 
 officer held by him under the authority of 
 the United States, whether retained by ju- 
 dicial process in the strict sense of that 
 term, or simply by authority of law. The 
 remedy is by application to a judge of the 
 United States courts. Matter of Hopson, 
 40 Barb. 34. 
 
 38. New York Supreme Court. The Su- 
 preme Court of 'New York cannot review 
 the action of the Oyer and Terminer in 
 granting or refusing a new trial on the 
 merits, or on the ground of misconduct of 
 the jury, but are confined to errors appear- 
 ing on the record or in the bill of exceptions. 
 People V. Hartung, 4 Parker, 319. 
 
 39. New York Oyer and Terminer. In 
 New York, the Oyer and Terminer is a per- 
 manent and continuous court in each of the 
 counties of the State, and not a distinct and 
 independent court, the existence of which 
 commences with the first and terminates 
 with the last day of the session. Quimbo 
 Appo V. People, 20 N. Y. 531. 
 
 40. In New York, a judge of the Supreme 
 Court, who has been selected under the Con- 
 stitution and laws to be a judge of the 
 
 Court of Appeals, is not thereby deprived 
 of authority to preside in a court of Oyer 
 and Terminer. McCarron v. People, 13 N.Y. 
 74. 
 
 41. Where the Court of Sessions, at which 
 an indictment is found, sends it to the next 
 court of Oyer and Terminer for trial, the 
 indictment may be tried at any term of the 
 court subsequent to the making of the 
 order. Real v. People, 43 N. Y. 270. 
 
 42. The New York Courts of Oyer and 
 Terminer have no authority to grant a new 
 trial upon the merits after conviction in a 
 capital case. Quimbo Appo v. People, 20 
 N. Y. 531. 
 
 43. But although in New York these 
 courts have no jurisdiction to grant a new 
 trial upon the merits, yet they may ent,ertain 
 a motion to set aside the verdict on the 
 ground of the want of indifference of a 
 juror. Willis v. People, 32 N. Y. 715. 
 
 44. New York Court of Sessions. The 
 act of New York of 1870, which provides 
 for the organization of the Court of Sessions 
 in the city and county of New York, designs 
 that generally the court shall be held by two 
 justices jointly; and it provides for filling a 
 vacancy. But it also contemplates that, 
 though the ofiBce be not vacant, it may hajJ- 
 pen that one of the justices will be disabled 
 from sitting, and in such cases the other is 
 authorized to hold alone while such dis- 
 ability continues. People v. Davis, 61 Barb. 
 456. 
 
 45. As the statute does not declare any 
 particular thing as being the disability to 
 which it refers, anything that disables the 
 justice from holding the court will be 
 embraced by the term. Sickness, absence 
 from the city, inability to reach the court- 
 house though in the city, would disable the 
 judge from holding the court; and if not 
 present he would be " disabled " from act- 
 ing, within the meaning of the statute. lb. 
 Ingraham, P. J., dissenting. 
 
 46. In New York, where neither of the 
 two designated justices of the peace attend 
 the Court of Sessions, the county judge may 
 call upon the bench two other justices, and 
 afterward the two first named justices may 
 appear and take their seats. Cyphers v.
 
 368 
 
 JURISDICTION.— JURY 
 
 Jurisdiction of State Courts. Jurisdiction of U. S. Courts. Right to Trial by. 
 
 People, 31 N. Y. 373; affi'g s. c. 5 Parker, 
 666. 
 
 47. In New York, the right to appeal or 
 to demand a trial at the General Sessions ig 
 gone when the accused has demanded in 
 writing a trial at the Special Sessions. Peo- 
 ple V. Rilej', 5 Parker, 401. 
 
 48. Supreme Court of Louisiana. In 
 Louisiana, the appellate jurisdiction of the 
 Supreme Court in criminal cases is confined 
 to questions of law. State v. Peterson, 2 
 La. An. 221 ; State v. Muldroon, 9 lb. 24. 
 And the jurisdiction does not attach until 
 after sentence or judgment. State v. May 
 lb. 69; State v. Pratt, lb. 157; State v. 
 Ross, 18 lb. 840; State v. Bruington, 22 
 lb. 9. 
 
 4. JcmsDicTioN OP United States courts. 
 
 49. Of offenses in general. The au- 
 thority of Congress to provide for the pun- 
 ishment of crime is limited to such subjects 
 and circumstances as are peculiar to the 
 Federal government. It may punish mur- 
 der when it is committed under certain cir- 
 cumstances, or in certain places ; as when 
 the murdered person is its olBcer, and at the 
 time of the homicide was in the discharge of 
 his official duties; or when the homicide 
 was committed in some place over which the 
 national government had sole and exclusive 
 jurisdiction. U. S. v. Ward, 1 Wool. C. C. 
 17. 
 
 50. The act of Congress punishing murder 
 does not embrace an accessory before the 
 fact to murder. U. S. v. Ramsay, Hemp. 
 481. But see U. S. v. Douglass, 2 Blatchf. 
 207. Robbery committed on land is not 
 punishable by any act of Congress. U. S. 
 V. Terrell, Hemp. 411. 
 
 51. To give the court jurisdiction within 
 the 6th amendment to the Constitution of 
 the United States, the district in which the 
 trial is had must have been ascertained by 
 law before the commission of the crime, and 
 not merely before the trial. U. S. v. Maxon, 
 5 Blatchf. 360. 
 
 52. A person having committed an assault 
 with a dangerous weapon on the high seas, 
 was put in irons, and so kept, until the ves- 
 sel arrived at the lower quarantine anchor- 
 
 age in New York harbor, in the eastern dis- 
 trict of that State, where she lay at anchor 
 five days. The offender was then delivered 
 to the United States marshal for the southern 
 district of New York, to whom a warrant 
 for the offender's arrest was afterward duly 
 issued. Held that the Circuit Court of the 
 United States for the southern district of 
 New York had jurisdiction of the case under 
 the act of Congress of April 30th, 1790, 
 which provides that such an ofiiense shall be 
 tried in the district where the offender is ap- 
 prehended, or into which he may first be 
 brought. U. S. v. Arwo, 19 Wall. 486 ; s. c. 
 2 Green's Crim. Reps. 134. 
 
 53. Offenses against State laws. Con- 
 gress has no power to confer upon the United 
 States courts jurisdiction to try indictments 
 found in the State courts. People v. Mur- 
 ray, 5 Parker, 577. 
 
 54. The necessity for martial law must be 
 shown affirmatively by the party assuming 
 to exercise it. Where a farmer of South 
 Carolina, some eighty years of age, who had 
 never been engaged in military service, was 
 arrested and tried before a military com- 
 mission, convicted of murder, and sen- 
 tenced to the jjenitentiary for life, seven 
 months after the termination of the Rebel- 
 lion, on a charge of killing a negro boy, and, 
 for aught that appeared, the courts of South 
 Carolina were, at the date of the trial, in the 
 full exercise of their judicial functions, the 
 prisoner was discharged on habeas corpus. 
 Matter of James Eagan, 6 Parker, 675. 
 
 55. Two indictments were found against 
 a person who held a license to sell liquors 
 under the internal revenue laws of the 
 United States, one charging him with being 
 a common seller of intoxicating liquors, and 
 the other with keeping a nuisance by reason 
 of the illegal keeping and sale of intoxicat- 
 ing liquor. Held that they could not be re- 
 moved into the Circuit Court of the United 
 States under U. S. Stat, of 1833, ch. 57, § 3, or 
 of 1864, ch. 173, § 50. State v. Elder, 54 
 Maine, 381. 
 
 3urn. 
 
 1. Right to trial by. In Alabama the
 
 JURY. 
 
 3G9 
 
 Who may Serve on. 
 
 constitutional guaranty of a trial by jury " in 
 all prosecutions by indictment or infoAiia- 
 tion " (art. 1, § 10), applies to no ofteuses 
 created by statute since the adoption of the 
 Constitution, except in the specified cases; 
 but the Legislature can make such offenses 
 triable before the justice of the peace with- 
 out indictment. The provision contained in 
 the 28th section of the same article, de- 
 claring that " the trial by jury shall remain 
 inviolate," does not extend the right of trial 
 by jury to cases unknown at the time of the 
 adoption of the Constitution, either to the 
 common or statute law. Tims v. State, 26 
 Ala. 165. 
 
 2. The statute of New York having made 
 intoxication in a public place a crime, the 
 accused is entitled to a trial by jury. Hill 
 V. People, 20 N. Y. 363. 
 
 3. Defendant cannot waive. It is not in 
 the power of the prisoner, on a trial for 
 felony, to waive a trial by jury. Williams 
 V. State, 12 Ohio, N. S. 622. 
 
 4. Who may serve on. Members of a 
 league, the object of which is to prosecute 
 for violations of the liquor law, and who 
 mutually contribute money to defray the ex- 
 penses of such prosecutions, are not incom- 
 petent to sit as jurors on the trial of such a 
 prosecution, when, for aught that is shown, 
 each of them may have paid, before the 
 prosecution, the full sum which he had sub- 
 scribed. Com. v. O'Neil, 6 Gray, 343. 
 
 5. Jurors who have previously, and at the 
 same term of the court, convicted the de- 
 fendant of a crime, are not thereby dis- 
 qualified for sitting as jurors for the trial of 
 another indictment against him for a similar 
 offense. Com. v. Hill, 4 Allen, 691. 
 
 6. A person is not disqualified from serv- 
 ing as a juror on a trial for murder by the 
 fact that he officiated as clergyman at the 
 funeral of the deceased,' and preached his 
 funeral sermon. State v. Stokely, 16 Minn. 
 282. 
 
 7. The fact that a juror married the widow 
 of the prosecutor's uncle, does not render 
 him incompetent to sit. O'Neal v. State, 47 
 Ga. 229. 
 
 8. It is not a good ol>jection to an indict- 
 ment for an offense to which the law an- 
 
 24 
 
 Persons Incompetent to Serve as Jurors. 
 
 nexes a fine for the use of the town, that the 
 foreman of the grand jury who found the 
 indictment is a taxable inhabitant of such 
 town. Com. v. Ryan, 5 Mass. 90. 
 
 9. M., several years prior to 1866, was a 
 resident of, and in business in, Ohio. In 
 that year he rented a house in Kentucky and 
 removed his family there, but continued his 
 business in Ohio, giving his personal atten- 
 tion to it every day. He had no intention 
 of becoming a citizen of Kentuckj-, but 
 during his sojourn there regarded himself as- 
 a citizen of Ohio, always voting there as- 
 such, without objection or challenge, and 
 never voting, or attempting to vote, in Ken- 
 tucky. Having returned to Ohio, it was 
 held that he had not forfeited any of his 
 rights of citizenship in that State, and that 
 he was qualified to serve on the jury in a 
 court of the United States sitting in Ohio. 
 U. S. v. Thorpe, 2 Bond, 340. 
 
 10. Persons incompetent to serve as 
 jurors. The mem1)ers of an association com- 
 bining for the purpose of enforcing or with- 
 standing the execution of a particular law, 
 and binding themselves to contribute money 
 therefor, are not competent to sit as jurors 
 on a trial for the violation of that law. Com. 
 V. Livermore, 4 Gray, 18. 
 
 11. On the trial of an indictment for 
 secreting records, it was held that a juror 
 belonging to the town whose book of 
 records was alleged to have been secreted 
 by the accused, was properly excluded from 
 the panel. State v. Williams, 30 Maine,. 
 484. 
 
 12. In Connecticut, where it was discov- 
 ered after verdict that one of the jurors was 
 not a freeholder, it was held a sufiicieut 
 ground for arrest of judgment. State v. 
 Babcock, 1 Conn. 401. 
 
 13. Where one of the jurors was on the 
 grand jury that found the indictment, it was 
 held that the defendant might challenge 
 him, but that he could not on tiiat ground, 
 move for a new trial, after a verdict of guilty, 
 if he knew of the objection when the jury- 
 was impaneled. Barlow v. State, 2 Blackf. 
 114. 
 
 14. Whether if a juror should express a 
 determination not to follow the instructions
 
 JURY 
 
 Venire. 
 
 of the court in matters of law, if they should 
 differ from his own opinion, he would be in- 
 competent — query. Com. v. Abbott, 13 Mete. 
 130. 
 
 15. Exemption from service on. In In- 
 diana, under the statute of 1824, persons 
 above sixty years of age are exempt from 
 serving on juries. But the prisoner cannot 
 object to them on that ground. State v. 
 Miller, 2 Blackf. 35. 
 
 16. Struck jury. There may be a struck 
 jury in a criminal as well as in a civil case. 
 Sutton v. State, 9 Ohio, 133. 
 
 17. Jury de medietate linguae. In New 
 York, where the prisoner, on his arraign- 
 ment, suggests that he is an alien, and 
 claims the privilege of a trial by a jury de 
 medietate lingua^ the court of Oyer and Ter- 
 miner may direct such a jury to be sum- 
 moned forthwith. People v. McLean, 2 
 Johns. 381. 
 
 18. Venire. In New York, a venire with- 
 out the seal of the court was held void. 
 People V. McKay, 18 Johns. 212. In Ala- 
 bama, a venire for summoning a grand jury 
 was held sufficient without the seal of the 
 clerk issuing it. Maher v. State, 1 Porter, 
 265. 
 
 19. In Mississippi, in a capital case, the 
 prisoner has a right to a jury summoned by 
 a special venire, and to be furnished with a 
 list of the jurors. Boles v. State, 24 Miss. 
 445. The other cases in which a special 
 venire may be issued, is where there are 
 none of the regular venire in attendance 
 ujjon the court. Baker v. State, 23 lb. 243. 
 
 20. If a jury cannot be formed from the 
 original panel, nor from the bystanders, the 
 court may award a venire facias commanding 
 the sheriff to summon an additional number 
 of jurors to attend the court then in session. 
 Gibson v. Com. 2 Va. Cas. 111. 
 
 21. Summoning. A grand jury and petit 
 jury should be separately summoned, and 
 not included in the same panel. Forsythe 
 V. State, 6 Ohio, 19. In Georgia, where the 
 grand jury and petit jury were summoned 
 by the sheriff, and returned without a venire, 
 it was held not a ground for arrest of judg- 
 ment. Bird V. State, 14 Ga. 43. 
 
 22. Where it appeared that certain of the 
 
 Summoning. 
 
 jurors had not been summoned by any legal 
 authferity, and that their names had been 
 put upon the list of jurors by the clerk of 
 tlie court, at the request of those persons 
 themselves, without any order of the court 
 being entered requiring such jurors to serve, 
 it was held good ground of challenge to the 
 array. McCloskey v. People, 5 Parker, 308. 
 
 23. In Massachusetts, a juror was put on 
 the panel, upon his testifying that he had 
 l)een summoned, the officer having omitted 
 his name in the return. Case of Patterson, 
 Mass. 486. 
 
 24. On a trial for murder, the panel 
 being exhausted, the court directed three 
 hundred additional jurors to be summoned. 
 Held that it was not error in the court to 
 deny the application of the prisoner's 
 counsel for two or three days' delay, to 
 enable them to examine such list of addi- 
 tional jurors. Colt v. People, 1 Parker, 
 611 ; s. c. 3 Hill, 432. 
 
 25. Officer's return. Tlie return of the 
 precept, directed to the sheriff', commanding 
 him to summon a jury, need not show that 
 the jury have been di'awn according to law; 
 but it will be presumed that such is the 
 case, until the contrary is shown. Com. v. 
 Green, 1 Ashm. 289. 
 
 26. Where a venire facias directed the 
 officer to cause a juror to be drawn not 
 more than twenty nor less than six days 
 before the sitting of the court, and he re- 
 turned that the juror was drawn as above 
 directed, but without date, the return was 
 held sufficient. Fellows' Case, 5 Maine, 
 333. 
 
 27. Objection to venire. An objection 
 to the issuance or direction of the venire to 
 summon the petit jury must be made before 
 the jurors are sworn. Brown v. State, 7 
 Eng. 623 ; Samuels v. State, 3 Mo. 50 ; State 
 V. Cole, 9 Humph. 626 ; People v. Robinson, 
 2 Parker, 235. 
 
 28. A venire will not be quashed on the 
 ground that it states only the initial letter 
 instead of the full christian names of several 
 of the jurors, when it appears that the pris- 
 oner was not deceived or misled by the list 
 furnished him, or that the jurors were not 
 as well known by their initials as by their
 
 JURY.— KIDNAPPING. 
 
 371 
 
 Drawing Jury. 
 
 Nature. 
 
 full christian names, nor on the ground tliat 
 the venire does not state that the jurors 
 "were summoned to try his case," when it 
 is shown that it was entitled " a list of the 
 jury summoned for A." (stating the pris- 
 oner's surname), and that the sheriff read 
 the list over to him, and at the same time 
 told him that it was the list of the jury 
 summoned to try him for the homicide with 
 which he was charged. Aikin v. State, 35 
 Ala. 363. 
 
 29. When the writs of venire by wliich the 
 grand and petit jurors were summoned are 
 void, the judgment will be arrested. State 
 ^r. Williams, 1 Rich. 188. 
 
 30. Drawing jury. On the 23d of Sep- 
 tember the court, at a stated term of the Oyer 
 and Terminer, made an order adjourning 
 the term until the 10th of November, and 
 also directing the sheriff to summon " for 
 the adjourned term of the court sixty ad- 
 ditional jurors, to be drawn by the clerk in 
 the usual way." The sixty jurors were 
 accordingly summoned, and a jury to try an 
 indictment for murder was drawn from 
 them and from the panel of the September 
 term promiscuously. No objection was made 
 to the regularity of the proceedings until 
 after the prisoner was convicted. It was 
 held that although the order in question 
 was informal, it was not a ground for setting 
 aside the verdict. People v. Cummings, 3 
 Parker, 843. In Pennsylvania, where after 
 the jurors' names were selected and placed 
 in the wheel, the wheel was sealed with but 
 one seal instead of three seals as required 
 by the statute, it was held ground for 
 quashing the indictment. Brown v. Com. 
 73 Penn. St. 321 ; s. c. 2 Green's Crim. Reps. 
 511. 
 
 31. Under the act of Congress of July 
 20th, 1840, there need only be substantial 
 conformity, and that only as far as is prac- 
 ticable, to the mode of selecting and drawing 
 jurors prescribed by the State laws. U. S. 
 V. Tallman, 10 Blatchf. 21 ; s. c. 1 Green's 
 Crim. Reps. 418. 
 
 32. In New York, where part of the jurors 
 had been drawn on a trial for murder before 
 the court had information that the clerk had 
 omitted in 1863 to take the names out of the 
 
 box and deposit therein the names on the 
 list of jurors returned and filed for the town 
 in that year, it was held proper for the clerk, 
 by direction of the court on the trial, to 
 make the proper change of the names of the 
 jurors in the box that the clerk should have 
 made in 1863. Gardiner v. People, 6 Parker, 
 155. 
 
 33. Talesmen. Persons were summoned 
 as talesmen who were not in the court 
 house. Held that the calling them into 
 court was a sufficient summoning, since 
 when they came in they were bystanders. 
 State V. Lamon, 3 Hawks, 175. 
 
 34. In Indiana, if there be no jurors on the 
 return of the venire^ a new one must issue. 
 But if any number, however small, appear, 
 and they be set aside on challenge, talesmen 
 may be sworn. Fuller v. State, 1 Blackf. 63. 
 
 See Gkand jury; Verdict. For chal- 
 lenges and other matters relating to jurors^ see 
 Trial. 
 
 Kibuapping. 
 
 1. Nature. Kidnapping is at common 
 law an aggravated kind of false imprison- 
 ment. Click v. State, 3 Texas, 282. 
 
 2. What constitutes. Procuring the in- 
 toxication of a sailor with the design of 
 getting him on board ship in that condition 
 without his consent, and thus taking him 
 on board, is kidnapping within the statute 
 of New York; and it is immaterial whether 
 the prisoner did the acts in person or caused 
 or advised their being done. And it was 
 held that if the intent and expectation were 
 that the sailor would be carried in the ship 
 against his will to a foreign port, the offense 
 was complete, although the destination of 
 the ship was not in fact any place out of the 
 State. Hadden v. People, 25 N. Y. 373. 
 
 3. Indictment. An indictment for kid- 
 napping must charge an assault and the 
 carrying away of the party injured from his 
 own country into another, unlawfully and 
 against his consent, and set forth the facts 
 and circumstances constituting the offense. 
 Click V. State, supra. 
 
 4. Evidence. On a trial for kidnapping
 
 o/li 
 
 KIDNAPPING.— LAKCENY. 
 
 Evidence. 
 
 The Taking. 
 
 a sailor, it was held competent to prove the 
 destination of the vessel by parol evidence, 
 notwithstanding there was written evidence 
 on the subject in the custom house. Had- 
 den V. People, supra. 
 
 5. In order to sustain a charge of forcibly 
 confining and detaining negroes on board of 
 a vessel with intent to make them slaves, 
 within the meaning of the act of Congress 
 of May 15th, 1820, § 5 (3 U. S. Stats, at 
 Large, 601), it is not necessary to prove the 
 employment of physical or manual force. 
 It is sufficient that the negroes were under 
 moral restraint and fear, and any person 
 participating in that sort of detention would 
 be a principal in the offense. U. S. v. Gor- 
 don, 5 Blatchf. 18; U. S. v. Westervelt, lb. 
 30. 
 
 6. The general reputation of a kidnapper 
 may be proved, to show the intent with 
 which the defendant aided him. State v. 
 Harten, 4 Hairing. 582. 
 
 Cavccni). 
 
 1. The taking. 
 
 2. The intent. 
 
 3. Subjects of laeceny. 
 
 4. AVarrant. 
 
 5. Place of indictment. 
 
 6. Indictment. 
 
 7. Evidence. 
 
 (a) Proof of taTcing, 
 
 (I) Evidence as to<^roperty taken. 
 
 if) Proof of place of offense. 
 
 {d) Proof of ownership of property. 
 
 {e) Proof of value of property. 
 
 (f) Presumptive evidence. 
 
 (g) Admissions, declarations and confes- 
 
 sions, 
 (h) Guilty knowledge and intent, 
 (i) Former conviction. 
 
 8. Charge op court. 
 
 9. Verdict. 
 10. Sentence. 
 
 1. The taking, 
 
 1. Must be against will of owner. To 
 
 constitute larceny, the property must have 
 beet, taken against the will of the owner. 
 
 and it must have been either in his actual 
 or constructive possession. Hite v. State, 9 
 Yerg. 198, 357. Violence is not necessary. 
 Fraud may supply the place of force. Com. 
 V. James, 1 Pick. 375. 
 
 2. Must be removal. There must have 
 been a taking or severance of the goods 
 from the possession of the owner. If a per- 
 son entice a horse or other animal, by plac- 
 ing food in such a situation as to operate on 
 its volition, and assumes dominion over it, 
 and has it once under his control, the tak- 
 ing is complete. State v. Wisdom, 8 Por- 
 ter, 511. But the mere upsetting of a barrel 
 of turpentine with a felonious intent, is not 
 sufficient. State v. Jones, 65 N. 0. 395. 
 And the merely looking at a dead hog lying 
 in the comer of a fence covered with leaves, 
 and running away on being hailed, is not 
 sufficient to sustain a conviction of larceny. 
 State V. Wilkerson, 72 N. C. 376. 
 
 3. Slight removal sufficient. The thief 
 need only have had a momentary possession. 
 State V. Wilscm, Coxe, 439 ; State v. Wis- 
 dom, 8 Porter, 511 ; State v. Jackson, 65 N. 
 C. 305. The least removal of an article 
 with intent to steal it, if the taker thereby 
 for an instant obtain the entire and absolute 
 possession of it, is a sufficient asportation to 
 constitute larceny, though the property be 
 not removed from the premises of the owner, 
 nor retained in the possession of the taker; 
 and a return of the article, will not purge 
 the offense, though the possession be retained 
 but for a moment. Therefore on a trial for 
 stealing money from a drawer, it was held 
 not erroneous to charge that if the defend- 
 ant took the money into his hand, and lifted 
 it from the place where the owner had 
 placed it, so as to sever it from the spot, 
 with the intention of stealing it, he was 
 guilty of larceny, although he dropped it 
 upon being discovered, and never had it 
 out of the drawer. Eckels v. State, 20 
 Ohio, N. S. 508. 
 
 4. W^here it was proved that the prisoner 
 thrust his hand into the complainant's 
 pocket, seized a pocket-book with money 
 and securities in it, and lifted it about 
 three inches from the bottom of the pocket 
 when he was discovered by the complainant,.
 
 LARCENY. 
 
 373 
 
 The Taking. 
 
 it was held that he was properly convicted 
 of larceny. Harrison v. People, 50 N. Y. 
 518. 
 
 5. On the trial of an indictment for an 
 attempt to commit larceny of a pocket-book 
 form the person, it was proved that the pris- 
 oner having put her hand into the pocket of 
 a lady, was seized by the wrist while her 
 hand was in the pocket, and that in the 
 struggle, the dress and pocket were torn, 
 and the pocket-book dropped on the ground. 
 The following instruction was held correct : 
 That if the jury were satisfied beyond a 
 reasonable doubt, that the hand of the de- 
 fendant had been thrust into the woman's 
 pocket with a felonious intent, and was ar- 
 rested in the pocket while attempting to 
 execute that intent, and before her hand 
 reached or disturbed the pocket-book, they 
 might convict; but not if the defendant's 
 hand had reached or seized the pocket-book 
 before it was arrested, and she altered the 
 position of the pocket-book. Com. v. 
 Luckis, 99 Mass. 431. 
 
 6. On the trial of an indictment for horse 
 stealing, the following instruction was held 
 proper: "If the defendant took, or led the 
 horse away any distance, with a felonious in- 
 tent, the asportation is complete, as much 
 so, as if the party had succeeded in remov- 
 ing the horse away altogether; and it 
 makes no difference that the horse had not 
 been removed from the inclosure or lot." 
 State V. Gazell, 30 Mo. 92. In Texas, aspor- 
 tation is not essential to constitute larceny. 
 Prim V. State, 32 Texas, 157. 
 
 7. Delivery of property by owner. If 
 the owner of goods alleged to have been 
 stolen, parts with the possession and title 
 to the thief, neither the taking nor the con- 
 version is felonious. An officer having 
 levied upon property belonging to the judg- 
 ment debtor, delivered it to the judgment 
 creditor, and shortly afterward, with the 
 consent of the judgment creditor, took the 
 goods away and sold them at private sale, 
 receiving therefor $55, which he converted 
 to his own use. Held, that the officer was 
 not guilty of larceny under section 71 of the 
 criminal code of Illinois, which provides 
 that the felonious conversion of property by 
 
 a bailee shall be deemed larceny; the gen- 
 eral property in the goods after the levy, 
 until a sale according to law, remaining in 
 the judgment debtor, and the proceeds of 
 the sale not being the property of tlie judg- 
 ment creditor until paid over to him. 
 Zschocke v. People, 62 111. 127; s. c. 2 
 Green's Crim. Eeps. 560. 
 
 8. An indictment for larceny cannot be 
 maintained when it appears that the goods 
 charged to have been stolen, were trans- 
 ferred, so as to create any trust or right of 
 property; and this is a question of fact for 
 the jury. Wilson v. State, 1 Porter, 118. 
 Where property is voluntarily delivered to 
 a person who has not generally the care of 
 his employer's property, and such person 
 converts the property to his own use, it is 
 embezzlement and not larceny. Ennis v. 
 State, 3 Greene, 67 ; State v. Fann, 65 K C. 
 317. 
 
 9. Where the owner parts with the 
 possession, but not with the title. But 
 although the owner parts with the possession 
 voluntarily, yet if he does not part with the 
 title, but expects that the same thing shall 
 be returned to him, or that it shall be dis- 
 posed of on his account, the taking and con- 
 version may constitute larceny. Welsh v. 
 People, 17 111. 339 ; Stinson v. People, 43 
 lb. 397 ; State v. Watson, 41 New Hamp. 
 533. 
 
 10. A jjerson while stopping at a hotel, 
 was handed a gun by the landlord, who told 
 him he might go and shoot birds with it, 
 which he did for a short time, and then 
 went off with the gun and traded it away. 
 Held larceny. Richards v. Com. 13 Gratt. 
 803. 
 
 11. Where the obligee of a bond, at the 
 request of the obligor, handed him the bond 
 to look at, when the obligor immediately 
 threw it into the fire, where it was destroyed, 
 it was held that if the obligor intended to 
 benefit himself by depriving the obligee of 
 his property, it was larceny. Dignowitty v. 
 State, 17 Texas, 521. 
 
 12. Where a five dollar bill, which was 
 handed to a person to procure change, and 
 to pay himself twenty-five cents out of it, 
 was ajjpropriated by him, it was held that
 
 374 
 
 LARCENY. 
 
 The Taking. 
 
 he was guilty of larceny. Farrell v. People, 
 IG m. 506. 
 
 13. The prosecutor handed the prisoner, 
 who was a bar-tender in a saloon, a fifty 
 dollar bill, to take ten cents out of it in 
 payment for a glass of soda water. The 
 prisoner put down a few coppers on the 
 counter; and when asked for the change he 
 put the prosecutor out of doors and kept the 
 money. Held larceny. Hildebrand v. 
 People, 56 N. Y. 394 ; s. c. 3 N. Y. Supm. 
 N. S. 82; 8 lb. 19. 
 
 14. The refusal of a magistrate, upon dis- 
 charging a person accused of larceny, to 
 return to him the property which when ex- 
 amined he had taken from him, is an indict- 
 able offense at common law. Hiss v. State, 
 24 Md. 556. 
 
 15. In Connecticut, a person having a 
 note left with him for collection applied 
 to the maker of the note for jjayment. The 
 hxtter asked to see the note, and upon its 
 being handed to him left the room with it, 
 and hid or destroyed it. Held that the 
 Jury were justified in finding that the maker 
 obtained possession of the note with a felo- 
 nious intent, and that the act was larceny. 
 State V. Fenn, 41 Conn. 590. In New York, 
 where the holder of a promissory note, hav- 
 ing received part payment, handed it to the 
 maker to indorse the payment, and he took 
 it away and refused to give it up, it was 
 held that he was guilty of larceny, although 
 when he first received the note he had no 
 felonious intent. People v. Call, 1 Denio, 
 120. 
 
 16. A person left his room and trunk un- 
 locked but closed, in charge of the defend- 
 ant, telling him there was money in the 
 trunk and to keep the room secured. In his 
 absence the defendant took some of the 
 money. Held larceny. Robinson v. State, 
 1 Cold. Tenn. 120. 
 
 17. In Virginia, where the defendant was 
 charged with stealing a free mulatto boy, 
 knowing at the time that he was free, it was 
 held that the offense was complete under the 
 statute, by the taking without an actual sale. 
 Davenport's Case, 1 Leigh, 588. 
 
 18. Where the owner of goods parts 
 with them for a special purpose. If the 
 
 owner of goods parts with them for a special 
 purpose, and the person who receives them 
 avowedly for that purpose has a fraudulent 
 intention at the time to convert the goods 
 to his own use, and does so convert them, it 
 is larceny. Lever v. Com. 15 Serg. & 
 Rawle, 98 ; State v. Gorman, 2 Nott & Mc- 
 Cord, 90. 
 
 19. Where a miller having received barilla 
 to grind, fraudulently kept part of it, re- 
 turning a mixture of barilla and plaster of 
 paris, it w-as held to be larceny. Com. v. 
 James, 1 Pick. 375. 
 
 20. It is the usual course of business for a 
 factor to mix the proceeds of his sales with 
 his own funds, and to use them indiscrimi- 
 nately. To make out larceny from the mere 
 use of the article, it must appear that the. 
 use was fraudulent, and that it was used 
 under such circumstances as to show an in- 
 tent to deprive the owner of his property. 
 Snell V. State, 50 Ga. 219. "Where stolen 
 money is mingled with that of another per- 
 son, the fact that it is not distinguishable 
 will not prevent a conviction. People v. 
 Williams, 24 Mich. 156. There may be a 
 conviction of larceny, although the stolen 
 goods are not found. State v. Kent, 65 
 N. C. 311. 
 
 21. If a carrier or other bailee opens a 
 package of goods, and takes away and dis- 
 poses of them to his own use, animo furandl, 
 it is larceny: but not if he takes away and 
 disposes of the entire package. State v. 
 Fairclough, 29 Conn. 47. 
 
 22. But in Massachusetts, it has been 
 held that if a person to whom a wagon load 
 of goods consisting of several packages is 
 delivered to be transported, fraudulently 
 takes away one of the packages, such taking 
 is larceny. Com. v. Brown, 4 Mass. 580. 
 
 23. The wrongful taking from a canal boat 
 by the captam and owner of the boat, of 
 bars of iron which had been intrusted to him 
 for transportation, is larceny, and not em- 
 bezzlement. Nichols V. People, 17 N. Y. 
 114, Denio, J., dissenting. 
 
 24. In Pennsylvania, where personal prop- 
 erty having been sold on execution was- 
 bought by a friend of the execution debtor, 
 who loaned it to him to use until demanded,
 
 LARCENY. 
 
 375 
 
 The Taking. 
 
 and the execution debtor sold and consumed 
 it, it was held that he was guilty of larceny 
 under the statute (Act of March 30th, 
 1860, § 108). Com. v. Chathams, 50 Penn. 
 St. 181. 
 
 25. Taking by servant. Where property 
 when appropriated by a servant is in the 
 actual or constractive possession of his mas- 
 ter, the offense is larceny, and not embezzle- 
 ment; the distinction being between custody 
 and possession. Com. v. Berry, 99 Mass. 
 428 ; State v. Jarvis, 63 K C. 556. 
 
 26. A servant who has the care of horses 
 in a livery stable, does not have such custody 
 of them as to prevent his conviction of lar- 
 ceny in taking them away. People v. Bel- 
 den, 37 Cal. 51. 
 
 27. Where a servant who is intrusted by 
 his master with property converts it to his 
 own use, he is guilty of larceny, although at 
 the time of receiving the property the felo- 
 nious intention did not exist in his mind; 
 and an offer by the servant to sell the prop- 
 erty will be sufficient proof of the conver- 
 sion. State V. Schiugen, 20 Wis. 74. 
 
 28. Taking by clerk. Where a clerk 
 who has possession of goods in a store, and 
 is salesman and general manager of the 
 store, abstracts a part of the goods with a 
 fraudulent intent to convert the same to his 
 own use, he is guilty of larceny. Walker's 
 Case, 8 Leigh, 743; Marcus v. State, 26 Ind. 
 101 ; State v. White, 2 Tyler, 352. 
 
 29. Where goods were feloniously taken 
 from the owner's shop by their clerk and 
 packer, who was not a salesman, though he 
 had occasionally sold when the regular sales- 
 men were absent or busy, an entry being 
 effected by keys which he had, it was held 
 larceny and not embezzlement. Com. v. 
 Davis, 104 Mass. 548. 
 
 30. In Texas, where a clerk left in charge 
 of a store at night carried away from the store 
 money and goods, and the next day was ar- 
 rested while leaving the country, at some 
 distance from the store, with the property in 
 his possession, it was held that he was prop- 
 erly convicted of larceny under the statute 
 (Paschal's Dig. art. 2421), which provides 
 that if a clerk shall embezzle, or misapply, 
 or convert to his own use, without the con- 
 
 sent of his principal, any money or other 
 property of such principal or employer, 
 which shall have come into his possession or 
 under his control by virtue of his employ- 
 ment, he shall be punished as for theft. 
 Cobletz V. State, 36 Texas, 353; s. c. 1 
 Green's Crim. Reps. 646. 
 
 31. Where a clerk of the State treasurer 
 who had the custody of the State securities, 
 and whose duty it was to deposit them in a 
 bank, feloniously appropriated to his own 
 use a draft which came into his hands as 
 such clerk, it was held that he was guilty of 
 larceny. Phelps v. People, 13 N. Y. Supm. 
 N. S. 401. 
 
 32. Where although the teller of a bank 
 was intrusted with funds of the bank while 
 engaged in transacting its business, yet at 
 night they were withdrawn from him and 
 placed in such custody that he could not 
 lawfully resume possession until the return 
 of business hours and the concurrence of the 
 cashier, it was held, that in wrongfully ab- 
 stracting the funds at night, and converting 
 them to his own use, he w^as guilty of lar- 
 ceny and not embezzlement. Com. v. Barry, 
 116 Mass. 1. 
 
 33. Consent of wife of owner. It is a 
 felony for a man who runs away with 
 another's wife, to take his goods, though 
 with the consent and at the solicitude of the 
 wife. People v. Schuyler, 6 Cow. 572. 
 Where on a trial for grand larceny in steal- 
 ing a bond belonging to A., which the 
 prisoner claimed was taken with the consent 
 of A.'s wife, it was proved that the prisoner 
 knew that A. owned the bond, and that A. 
 was in the vicinity of the house and would 
 return to it in a short time, it was held not 
 erroneous to submit the question to the 
 jury, whether upon all the evidence the 
 prisoner believed the wife had any right to 
 dispose of the bond, and to instruct them 
 that if the wife had no such right, and the 
 prisoner did not believe that she had any, 
 her consent to his taking the bond furnished 
 no defense to him. People v. Cole, 43 N. Y. 
 508 ; affi'g 2 Lans. 370. 
 
 34. In committing trespass. If a person 
 by committing a trespass, tortiously and un- 
 lawfully acquires possession of the personal
 
 37G 
 
 LARCENY 
 
 The Taking. 
 
 property of another, and afterward con- 
 ceives the purpose' of fraudulently depriving 
 the owner of it, and in pursuance of that 
 design, with a felonious intent, carries it 
 away and converts it to his own use, he is 
 guilty of larceny, Com. v. White, 1 1 Cush. 
 483. 
 
 35. Where A. agreed to get stone from the 
 land of another, upon a contract to have 
 half for getting them, it was held that while 
 they remained on the land undivided A. 
 was neither a tenant in common with the 
 owner of the land nor a bailee of them, and 
 that therefore he, or any other person with 
 his connivance, might be guilty of larceny 
 in taking them. State v. Jones, 2 Dev. & 
 Batt. 544. 
 
 36. Every larceny must include a trespass, 
 and the taking must have been under such 
 cu'cumstances as that the owner might 
 maintain an action of trespass. The pros- 
 ecutor having a draft for gold coin drawn 
 upon a banking house, the prisoner under- 
 took to get it cashed for him, and they went 
 for that purpose to the office of a broker, 
 where it was agreed that the prisoner should 
 indorse it, and that the broker should get 
 the money and have it at his office the same 
 day for the prosecutor. The prisoner, in 
 the prosecutor's absence, went to the broker's 
 office, obtained from him the money, and 
 carried it away, and when arrested shortly 
 afterward he had only a portion of it, hav- 
 ing disposed of the balance. Held that 
 if the prisoner when he received the draft 
 had the felonious intent of converting it 
 and the proceeds to his own use, and that in 
 pursuance of that intent he received and 
 carried away the gold, he was guilty of lar- 
 ceny. People V. McDonald, 43 N. Y. 61. 
 
 37. In Iowa, the statute (§ 4241), has done 
 away with the common-law rule that there 
 can be no larceny without a tresjiass, and no 
 trespass where there was a consent by a 
 party authorized to give it, even though 
 such consent was obtained by fraud. State 
 V. Brown, 25 Iowa, 561. 
 
 38. Is included in robbery. Larceny is 
 included in robbery, and tlie prosecution 
 may elect to try the accused of the former, 
 though by so doing it deprives itself of the 
 
 right to prosecute for the latter. Hickey v. 
 State, 23 lud. 21. 
 
 39. When taking from person deemed 
 larceny, and not robbery. Snatching money 
 out of another's hand, and instantly running 
 away with it, is larceny, and not robbery. 
 Bonsall v. State, 35 Ind. 460; State v. 
 Henderson, 66 N. C. 627. 
 
 40. A. was standing in a public street 
 counting money, which he held in his open 
 hand. B., passing along, took the money 
 out of his hand, using no more force than 
 was necessary to withdraw it, and walked 
 away. A. called to her several times to re- 
 turn the money, which she would not do. 
 Held larceny. Johnson v. Com. 24 Gratt. 555. 
 
 41. On the trial of an indictment for rob- 
 bery, it appeared that while A. was travel- 
 ing in a wagon on the public highway he 
 was overtaken about nine o'clock in the 
 evening by B., who, after some conversation, 
 requested A. to examine a bank bill, which 
 B. said he had found; that while A. was 
 looking at the bill he felt B.'s hand in his 
 pocket, on his pocket-book, and immedi- 
 ately seized his arm, the prisoner at the same 
 time snatching the bill ; and that thereupon 
 a scuffle ensued, in which A. was thrown out 
 of the wagon, and the prisoner escaped with 
 the pocket-book and bank bill. Held lar- 
 ceny, and not robbery. State v. Jolm, 5 
 Jones, 163, Battle, J., dissenting. 
 
 42. On the trial of an information for the 
 robbery of H., it was proved that H. was 
 discovered by a policeman lying on the 
 ground at night in an unconscious state from 
 intoxication, with his pockets turned inside 
 out, and the defendant standing astride his 
 body, taking from his pockets property, and 
 putting it in his own. Held not robbery, 
 but larceny. Brennon v. State, 25 Ind. 403. 
 
 43. Attempt to steal from the person, 
 •when complete. An attempt to steal from 
 the person is complete when an act is done 
 with intent to commit the crime which is 
 adapted to the perpetration of it, whether 
 the purpose fails by reason of interruption, 
 or because there was nothing in the pocket, 
 or for other extrinsic cause. State v. Wil- 
 son, SO Conn. 500. 
 
 44. Suing for fictitious demand. If a
 
 LARCENY. 
 
 377 
 
 The Taking. 
 
 person having no cause of action sues out a 
 writ for a fictitious demand, and thereby 
 gets possession of the property of another, 
 ■which he converts to his own use, with in- 
 tent to defraud tlie owner, it is larceny. 
 Com. V. Low, Thach. Crim. Cas. 477. 
 
 45. Acquiring possession through mis- 
 take. Where jiersonal property is left in 
 the possession of another through inadvert- 
 ence, and the latter knowing the owner, 
 animo furandi conceals it, he is guilty of 
 larceny. People v. McGarren, 17 Wend. 460. 
 
 46. A person who, upon receiving from 
 another money to which he knows he is not 
 entitled, and which he knows has been paid 
 to him by mistake, conceals such overpay- 
 ment, and appropriates the money to his 
 own use, intending thus to clieat and de- 
 fraud the owner, is guilty of larceny. Wolf- 
 stein V. People, 13 N. Y. Supm. N. S. 121. 
 
 \- 47. Obtaining property by trick. If, 
 by trick or artifice, the owner of property is 
 induced to part with the custody or naked 
 possession to one who receives the prop- 
 erty animo furandi, the owner still meaning 
 to retain the right of property, the taking 
 will be larceny. Smith v. People, 53 N. Y. 
 111. 
 
 48. A. having left his watch at a watch- 
 maker's to be repaired, B. went there pre- 
 tending to be A., asked for the watch, paid 
 for the repairing, and took tlie watch with 
 a felonious intent. Held that this consti- 
 tuted larceny at common law. Com. v. Col- 
 lins, 13 Allen, 181. 
 
 49. The prisoner sent an order to K. & 
 Co., jewelers, for six pairs of gold bracelets, 
 which they sent to him. The jirisoner was 
 also a jeweler, and the order was designed 
 and understood to be an application for the 
 bracelets for the purpose of showing them 
 to a customer and enabling him to insjject 
 them, and select wliich, if either, he would 
 take, and the money for tiiat, together with 
 the remainder of the bracelets, was to be 
 returned to K. & Co. But the prisoner did 
 not return to K. & Co. either the bracelets 
 or the money for either of them. Held that 
 as the title to the bracelets until sold re- 
 mained in K. & Co., the prisoner was guilty 
 
 of larceny. Weyman v. People, N. Y. 
 Supm. N. S. 696. 
 
 50. Fraudulently obtaining property by 
 the device known as "the five cent trick," is 
 larceny. Defrese v. State, 3 Heisk. 53 ; s. c. 
 1 Green's Crim. Reps. 356. 
 
 51. But where the maker of a note, claim- 
 ing that the title to land for which he had 
 given the note was not good, obtained pos- 
 session of the note by trick, for the purpose 
 of canceling it, it was held that he was not 
 guilty of larceny. State v. Deal, 64 N. C. 
 370, Rodman, J., dissenting. 
 
 52. A person may commit larceny, al- 
 though the property is obtained through 
 the connivance of a servant of the owner, 
 and the servant is guilty of embezzlement. 
 State V. McCartey, 17 Minn, 76. 
 
 53. Obtaining goods by false pretenses. -Y 
 Where a person gets possession of goods by 
 false pretenses, intending to convert them 
 to his own vise, which he afterward does, it 
 is larceny. State v. Ludenthall, 5 Rich. 237 ; 
 Anable v. Com. 34 Graft. 563 ; Watson v. 
 State, 36 Miss. 593 ; unless it appear that a 
 temjiorary trust or possession was extended 
 to the party. Wilson v. State, 1 Porter, 118. 
 
 54. Where the owner of goods was pre- 
 vailed upon by false pretenses, by the pris- 
 oner, who had engaged to sell them on com- 
 mission, to send them to R. H. & Co., who 
 did not mean to buy the goods, and had 
 never agreed to do so, and the prisoner 
 afterwards took the goods away from the 
 store of R. H. & Co., and converted them to 
 his own use, it was held that he was guilty 
 of larceny. People v, Jackson, 3 Parker, 
 590. 
 
 55. The clerk in a store referred the de- 
 fendant to the owner, who refused to sell 
 him certain articles except upon his father's 
 order, which was not obtained. Subsequently 
 telling the clerk in the absence of the owner 
 that he had made it all right with the latter, 
 he took the goods. Held larceny. Com. v. 
 Wilde, 5 Gray, 83. 
 
 56. On the trial of A. and B., for grand 
 larceny, it was proved that A. ordered some 
 goods at a store, and directed them to be 
 sent to a certain place where they woukl be 
 paid for; that the goods were sent by a
 
 378 
 
 LARCENY. 
 
 The Taking. 
 
 clerk, and on his going into the house, B. 
 took the goods, saying, " These are the 
 goods my sister ordered ; " that asking the 
 clerk to take a seat, she went into the next 
 room, saying she would look at the goods; 
 that after some time, the clerk discovered 
 that she had left the house, and that some 
 of the goods were afterward found in an- 
 other house, where A. lived. Held that as 
 the transaction was a mere fraud and trick, 
 and not the obtaining of goods under a pur- 
 chase, the defendants were properly con- 
 victed. The following instruction was held 
 proper: That in order to convict, the jury 
 must be satisfied that at the time A. went 
 to the store, ordered the goods, and said 
 the bill would be settled at the house, she 
 had the felonious intent to steal the goods ; 
 and in like manner, that B. must have had 
 a felonious intent to steal when she obtained 
 possession of the goods. St. Valerie v. 
 People, 64 Barb. 42G. 
 
 57. A person who obtains possession of 
 the discharge paper of a soldier, by falsely 
 personating the owner, and converts it to 
 his own use, may be convicted of larceny of 
 the paper. Com. v. Lawless, 103 Mass. 425. 
 
 58. If the owner be deceived into a sur- 
 render of the title as well as the possession 
 of his goods, by means of fraudulent repre- 
 sentations, the offense will not be larceny, 
 but false pretenses. Kelly v. People, 13 N. 
 Y. Supm. N. S. 509 ; Ross v. People, 5 Hill, 
 294. 
 
 -T 59. Obtaining property by borrowing 
 or hiring. If A. borrow a horse from B., 
 with the felonious intent to deprive B. of it, 
 and to appropriate it to his own use, and 
 does so, A. is guilty of larceny; and the of- 
 fense is not purged by returning the horse 
 to the owner. State v. Scott, 64 N. C. 586. 
 If, however, A. borrow of B. twenty dollars, 
 with the same intent, it is not larceny, but 
 fraud. But if the money be obtained by A., 
 by trick or contrivance, with the intent at 
 the time to steal it, it is larceny. State v. 
 Bryant, 74 N. C. 124. 
 
 \ 60. If A. hire a horse, and either at the 
 time he gets possession of tlie animal or 
 afterward, conceives the design of stealing 
 it, and canies the horse away with that de- 
 
 sign, he is guilty of larceny. Norton v. 
 State, 4 Mo. 461 ; Starkie's Case, 7 Leigh, 
 752; contra, Felter v. State, 9 Yerg. 397. 
 -^61. Where a person hired a horse, pre- 
 tending that he wished to go a short dis- 
 tance, and promising to return in a few 
 hours, but in fact having no intention to re- 
 store the horse to the owner, and used the 
 horse for a different purpose from that for 
 which he hired him, it was held larceny, al- 
 though he did not sell or dispose of the 
 horse. State v. Humphrey, 32 Vt. 569. 
 -^62. A person hired a mule for a day or 
 two, promising to return it at a specified 
 time ; but instead of doing so, he traded 
 the mule off for a horse, and then attemi^ted 
 to deceive the owner by falsely telling him 
 that the mule had broken away from him 
 and escaped. ^e/tZ larceny. Smith v. State, 
 35 Texas, 738. 
 
 ^63. A bailee who obtains possession of 
 property by delivery under the pretense of 
 hiring it, but with the intent to convert it 
 to his own use, is guilty of larceny. State 
 V. Williams, 35 Mo. 229. At common law. 
 a bailee of goods could not be guilty of 
 larceny by a fraudulent conversion of them. 
 Wright V. Lindsay, 20 Ala. 428. 
 
 64. Fraudulent taking of goods by 
 owner. If the general owner of property 
 which has been attached, takes and carries 
 the wliole, or part of it, away, with the 
 intent to defraud the attaching creditor of 
 his security, it is larceny, but not if his 
 design is merely to prevent other creditors 
 from attaching the goods, and he has no 
 intent to defraud the officer or attaching 
 creditor. Com. v. Greene, 111 Mass. 392; 
 see ijost. siih. 99. 
 
 65. To make a joint owner or tenant in 
 common guilty of larceny by taking and 
 disposing of the whole property to his own 
 use, he must have taken it out of the hands 
 of a bailee with whom it was left for safe 
 keeping. Kirsey v. Fike, 29 Ala. 206. 
 
 66. "When finder of property is guilty 
 of larceny. A person who finds personal 
 property, knowing, or having the means of 
 knowing, the owner, and instead of restor- 
 ing, appropriates it to his own use, is guilty
 
 LARCENY. 
 
 379 
 
 The Taking. 
 
 of larceny. State v. Weston, 9 Conn. 527; 
 People V. McGarren, 17 Wend. 460. 
 
 67. Proof that the defendant picked up 
 bank bills^ which had been dropped by the 
 owner, and with an unlawful intent con- 
 verted them to his own use, without the 
 knowledge of the owner, will sustain an 
 indictment for larceny; and the genuineness 
 of the bills will be presumed. State v. 
 Pratt, 20 Iowa, 267. 
 
 68. Where a person found a pocket-book 
 containing money, in the highway, it was 
 held that if at the time of finding the pocket- 
 book, and before he removed the money, 
 he knew it to be the property of the prose- 
 cutor, the conversion was larceny. State v. 
 Ferguson, 2 McMuUan, 502 ; s. p. State v. 
 Weston, 9 Conn. 527; contra^ Porter v. State, 
 1 Mart. & Yerg. 226. 
 
 69. Where the owner of a watch having 
 left it at a watchmaker's for repair, it was 
 placed in a window, and afterward blown 
 with other watches into the street, where it 
 was picked up by a per?on who retained it 
 and gave a false account of the manner in 
 which he got it, it was held that he was 
 properly convicted of larceny. Pritchett v. 
 State, 2 Sneed, 285 ; see Pyland v. State, 4 
 lb. 357. 
 
 70. A person in changing his clothes in 
 the office of his livery stable, unintentionally 
 left his purse containing money lying on an 
 old saddle behind the door, and while he 
 was gone to dinner, the purse and its contents 
 were picked up by a boy in the presence of 
 the defendant, and by his direction, and 
 handed to him. Held larceny. Pyland v. 
 State, 4 Sneed, 357 ; approving Pritchett v. 
 State, 3 lb. 285. 
 
 71. The owner of a ring in the District of 
 Columbia, left it by accident in a tub where 
 she had been washing. In ten or fifteen 
 minutes, knowing where it was, she went 
 to get it ; but meanwhile, it had been taken 
 by the prisoner, who denied the taking of 
 it, concealed it, cariied it to Connecticut, 
 and offered it for sale as her own. Held 
 larceny at common law. State v. Cumraings, 
 33 Conn. 260. 
 
 72. In Vermont, the finder of lost goods 
 must advertise them, and if he conceal or 
 
 convert them, he is guilty of larceny. State 
 V. Jenkins, 2 Tyler, 379. 
 
 73. When finder of property justified. 
 The finder of lost goods may lawfully take 
 them into his possession, and if he does so 
 without any felonious intent at that time, a 
 subsequent conversion of them to his own 
 use, by whatever intent that conversion is 
 accompanied, will not constitute larceny. 
 Com. V. Titus, 116 Mass. 42; Ransom v. 
 State, 22 Conn. 153 ; State v. Roper, 3 Dev. 
 473. 
 
 74. Where a person in good fidth finds 
 upon the highway a lost article, as a trunk 
 containing goods, he is not guilty of larceny 
 by any subsequent act in hiding or convert- 
 ing it to his own use. People v. Anderson, 
 14 Johns. 293. 
 
 75. A person having lost a carpet bag con- 
 taining several articles, on the highway, 
 requested the defendant to find it, and give 
 it to one H. The defendant having obtained 
 the bag, hid it, and denied having found it. 
 Held not larceny. State v. England, 8 Jones, 
 399. 
 
 76. Where on the trial of an indictment 
 for the larceny of a pocket-book containing 
 bank bills, which had been lost on the high- 
 way, the court charged the jury that if the 
 defendant, when he found the property, 
 knew or had the means of knowing the 
 owner, and did not restore it to him, but 
 converted it to his own use, he was guilty of 
 larceny, it was held error, for the reason 
 that if the defendant, when he found the 
 property, meant to act honestly with regard 
 to it, no subsequent felonious intention could 
 make him guilty of larceny. Ransom v. 
 State, 22 Conn. 153. 
 
 77. Where a person finds lost property 
 which has no marks upon it by which the 
 owner can be ascertained, he is not guilty of 
 larceny, though he take it animo furandi' 
 State V. Conway, 18 Mo. 321. It would be 
 otherwise if the finder knew the owner, or 
 had the means of knowing him. Randal v. 
 State, 4 Smed. & Marsh. 349. 
 
 78. Where a pocket-book containing bank 
 bills, with no mark about it showing who 
 the owner was, was found in the highway, 
 and there was no proof that the finder, ut the
 
 380 
 
 LARCENY. 
 
 The Taking. 
 
 The Intent. 
 
 time, knew who the owner was, it was held 
 that he could not l)e convicted of larceny, 
 though he fraudulently, and with intent to 
 convert the property to his own use, con- 
 cealed the same immediately afterward. 
 People V. Cogdell, 1 Hill, 94 ; s. p. People v. 
 Anderson, 14 Johns. 293. 
 
 79. To charge the finder of lost goods 
 with larceny, it is not enough that he has 
 the general means, by the use of diligence, 
 of discovering the owner. He must know 
 the owner at the time of the finding, or the 
 goods must have some mark upon them, 
 understood by him, by which the owner can 
 be ascertained; and he must intend to 
 appropriate them to his own use at the time 
 of finding them. People v. Cogdell, SM|)ra ; 
 Hunt V. Com. 13 Graft. 757 ; Tanner v. Com. 
 14 lb. 635. 
 
 80. The placing of a pocket-book upon a 
 table, and neglecting or forgetting to take 
 it away, is not losing it in the sense in which 
 the authorities speak of lost property. Mayor 
 V. Beasly, 21 Ala. 240. 
 
 81. Taking from house or building. A 
 jierson may be guilty of larceny from a house, 
 although the original entry was not felonious 
 or with an intent to steal. Perry v. State, 
 10 Ga. 511. 
 
 82. But to constitute larceny by entering 
 into and stealing from a house, the entry 
 must have been against the consent of the 
 owner, unless the crime was meditated at 
 the time of an entry with consent. State v. 
 Chambers, 6 Ala. 855. 
 
 83. In Massachusetts, breaking and enter- 
 ing a dwelling-house in the day time, with 
 intent to steal, and stealing in a dwelling- 
 house, whether by breaking and entering or 
 otherwise, are distinct ofi'enses subject to 
 separate punishment. But any one act of 
 breaking, entering, and stealing necessarily 
 constitutes both of these ofi'enses. Com. v. 
 Hope, 22 Pick. 1. 
 
 84. Stealing the money of a lodger which 
 is in his trunk, and the key of the trunk in 
 a pocket of his clothes, while he is in bed 
 undressed and asleep, constitutes larceny in 
 a dwelling-house. Com. v. Smith, 111 
 Mass. 429. In Alabama, it is not larceny in 
 a dwelling-house, within the statute (Code, 
 
 § 3170), to steal clothes from the railing of 
 a piazza. Henry v. State, 39 Ala. 679. 
 
 85. A small slight building, 21 feet by 15, 
 in a garden, used for the storage of garden 
 tools, seeds, and manures, is not a warehouse 
 or granary within the statute of New Hamp- 
 shire (Comp. Stat, ch, 229, § 10) punishing 
 larceny in a warehouse or granary after 
 entrance therein in the night, or breaking 
 and entering in the day time. State v. Wil- 
 son, 47 New Hamii. 101. 
 
 2. The intent. 
 
 86. Felonious intent essential. The crim- 
 inal intention is what distinguishes larceny 
 from trespass. The fact that the property 
 is taken clandestinely, or that there is an 
 attempt to conceal it, is evidence of a 
 felonious intent. Long v. State, 11 Fla. 
 295. 
 
 87. Where a person having obtained pos- 
 session of property from the owner by a 
 false and fraudulent pretense of buying it 
 for cash, carries it away without the consent 
 or knowledge of the owner, he is not guilty 
 of larceny, unless he obtained the property 
 and carried it away with a felonious intent. 
 Blunt's Case, 4 Leigh, 689. 
 
 88. Where, upon a settlement between a 
 landlord and tenant, under which an unex- 
 pired lease was to be surrendered by the 
 landlord, upon the payment of a sum of 
 money by the tenant, a misunderstanding 
 arose as to the amount of the money, and 
 the tenant carried away the lease, the receipt 
 for the money, and the money ofifered in 
 payment, it was held that such taking was 
 not larceny. Com. v. Robinson, Thach. 
 Crim. Cas. 230. 
 
 89. Where it was shown that property 
 was delivered to the defendants iinder a 
 contract of sale, and that they were in 
 possession of it several months holding and 
 using it under the contract, and it did not 
 appear that they had any other than an 
 honest intent at the time they contracted 
 for and received the i^roperty, it was held 
 that in carrying it away without paying for 
 it they Avere not guilty of larceny. State v. 
 Shermer, 55 Mo. 83. 
 
 90. Where goods are taken and carried
 
 LARCENY. 
 
 381 
 
 The Intent. 
 
 away without the intention to convert them 
 to the taker's own use, it is only a trespass ; 
 and the fact that they were taken openly 
 and in the presence of the owner or of other 
 persons, would be evidence of the absence 
 of a felonious intent. McDaniel v. State, 8 
 Smed. & Marsh. 401. 
 
 91. Where, on a trial for larceny it ap- 
 peared that the defendant's mind was so 
 far destroyed by his long-continued habit of 
 drunkenness as to render him mentally 
 incompetent intentionally and knowingly to 
 commit the larceny, it was held that he 
 ought to have been acquitted, Bailey v. 
 State, 26 Ind. 422. 
 
 S2. Must have been intent to deprive 
 owner of property. The goods must have 
 been taken fraudulently and secretly, with 
 the felonious intent of permanently depriving 
 the owner of them. Dodd v. Hamilton, 2 Tay- 
 lor, 31 ; State v. Hawkins, 8 Porter, 461 ; 
 Smith V. Schultz, 1 gcam. 490; Com. v. 
 Low, Thach. Crim. Cas. 477 ; Felter v. State, 
 9 Yerg. 397 ; State v. Ledford, 67 N. C. 60 ; 
 Johnson v. State, 36 Texas, 375 ; s. c. 1 
 Green's Crim. Reps. 347; U. S. v. Durkee, 1 
 McAllister C. C. 196. 
 
 93. On the trial of an indictment for steal- 
 ing a horse, it was held that if the defend- 
 ant took the horse with intent to convert 
 him to his own use, and wholly to deprive 
 the owner of his property, it was larceny ; 
 but otherwise, if he took the horse to facili- 
 tate his escape, and left him at a livery 
 stable, without any intention to deprive the 
 owner of his property. State v. York, 5 
 Harring. 493. In the latter case it would only 
 be a breach of trust. State v. Self, 1 Bay, 
 242. 
 
 94. A person who, with a felonious intent, 
 takes a purse from a store, where it has been 
 accidentally left, is guilty of larceny. State 
 V. McCann, 19 Mo. 249. 
 
 95. The taking of money with the design 
 to apply it on a debt which the person from 
 whom it is taken owes the taker, is larceny. 
 Com. V. Stebbins, 8 Gray, 492. 
 
 96. In Virginia, it was held that the de- 
 fendant might be convicted of the larceny 
 of a free negro boy, eigiit years of age, not- 
 withstanding the boy consented to go, 
 
 whether the defendant knew he was free or 
 not, and that the charge of knowledge in 
 the indictment might be rejected as surplus- 
 age. Davenport's Case, 1 Leigh, 588. 
 
 97. Intent to destroy property not suffi- 
 cient. It is not enough that the i^roperty is 
 taken for the purpose of destruction. Such 
 an offense would be punishable as malicious 
 mischief; but it would want one of the es- 
 sential ingredients of larceny — the lucri 
 causa. State v. Hawkins, 8 Porter, 4G1. 
 
 98. Where, on a trial for stealing a deed, 
 it appeared that the defendant had con- 
 tracted verbally to sell certain land to B., 
 and agreed upon a final meeting for that 
 purpose ; that, in the mean time, the defend- 
 ant handed B. a deed, that he might ascer- 
 tain its correctness, neither j^arty consider- 
 ing the business settled ; that B. gave the 
 deed to his counsel to examine the title, and 
 if satisfactory, to leave it at the registry to 
 be recorded, which was done; that when 
 the parties met for the final settlement, at 
 the registry office, a dispute arose between 
 them on a collateral point, and the defend- 
 ant asked the register for the deed, and on 
 receiving it destroyed it, calling upon those 
 present to witness the act, it was held that 
 if the defendant actually supposed that he 
 had a right to the paper, he could not be 
 convicted of larceny. Com. v. Weld, Thach. 
 Crim. Cas. 157. 
 
 99. Intent to -deprive owner of property 
 temporarily. The taking of the property 
 of another, with the intent of only de- 
 priving the owner of the use of it tempo- 
 rarily, is not larceny. State v. South, 4 
 Dutch. 28. 
 
 100. But where a person takes another's 
 horse while trespassing upon his jiremises, 
 with the intention to conceal it until the 
 owner shall ofier a reward, and then to re- 
 turn it and claim the reward, or until the 
 owner shall be induced to sell it to him for 
 less than its value, it is larceny. Com. v. 
 Mason, 105 Mass. 16:5. 
 
 101. Intent to charge another. Larceny 
 may be committed by stealing one's own 
 property, where the intent is to charge 
 another with the value of it. Palmer v. 
 People, 10 Wend. IGC. See ante^ sul>. 64.
 
 382 
 
 LAECENY. 
 
 The Intent. 
 
 Subjects of Larceny. 
 
 102. A person may steal his own pro2)erty 
 by taking it with intent to charge a bailee 
 with it. People v. Thompson, 34 Cal. 671. 
 Where a mortgagee is entitled to possession, 
 a felonious taking of the property by the 
 mortgagor constitutes larceny. People v. 
 Stone, 16 lb. 369. 
 
 103. Need not be intent to convert prop- 
 erty. It is not necessary to constitute lar- 
 ceny that the taking should be in order to 
 convert the thing stolen to the pecuniary ad- 
 vantage or gain of the taker. It is sufficient 
 if the taking be fraudulent, and with an in- 
 tent wholly to deprive the owner of the 
 property. Hamilton v. State, 35 Miss. 214 ; 
 People V. Juarez, 28 Cal. 380. 
 
 104. To constitute larceny, the taker need 
 not intend to convert the property to his 
 own use in the county where it is taken. 
 State v. Ware, 10 Ala. 814. 
 
 105. Time of forming intent. To con- 
 stitute larceny there must have been a feloni- 
 ous intent at the time of the taking. Ful- 
 ton V. State, 8 Eng. 168; McDaniel v. State, 
 8 Smed. & Marsh. 401. It is therefore er- 
 ror on a trial for larceny to charge that it is 
 not necessary, in order to find a verdict of 
 guilty, that the felonious intent existed at 
 the time of the taking of the property, but 
 that it would be sufficient if such intent ex- 
 isted at the time the prisoner actually con- 
 verted the same to his own use. Wilson v. 
 People, 39 N. Y. 459. 
 
 106. Where goods alleged to have been 
 stolen, were delivered to the defendant un- 
 der a contract of sale, and after keeping 
 and using them several months under the 
 contract, he carried them away without pay- 
 ing for them, it was held that he could not 
 l>e convicted of larceny. State v. Shermer, 
 55 Mo. 83; s. c. 2 Green's Crim. Reps. 613. 
 
 107. A tailor received goods from a firm 
 to be manufactured into coats for the firm ; 
 but after making the coats, instead of send- 
 ing them to his employers, sold them, and 
 ran away with the proceeds. Held, that un- 
 less he intended to convert the goods to his 
 own use when they were delivered to him, 
 he was not guilty of larceny. Abrams v. 
 People, 13 N. Y. Supm. N. S. 491. 
 
 108. The following instruction was, how- 
 
 ever, held correct: ''If the prisoner ob- 
 tained possession of the team, by falsely and 
 fraudulently pretending that he wanted it 
 to drive to a certain place, to be gone a 
 specified time, when in fact he did not in- 
 tend to go to such place, but to a more dis- 
 tant one, and to be absent longer, without 
 intending at the time to steal the property, 
 a subsequent conversion of it to his own use, 
 with a felonious intent while thus using it, 
 would be larceny." State v. Coombs, 55 
 Maine, 477. 
 
 109. "Where owner is unknown. It is 
 larceny, although the owner of the stolen 
 goods is unknown; the only object of nam- 
 ing the owner in the indictment being to 
 identify the offense so that the defendant 
 shall not be subjected to a second trial for 
 it. State V. Bell, 65 N. C. 313. 
 
 3. Subjects op larceny. 
 
 110. Must be of some value. To con- 
 stitute larceny, or receiving stolen goods, it 
 is sufficient if the thing stolen or received 
 is of some value, however small. People v. 
 Wiley, 3 Hill, 194. But it is not larceny to 
 take another's letter which has no value, and 
 does not import any projaerty in possession 
 of the person from whom it is taken. Payne 
 V. People, 6 Johns. 103. 
 
 111. Bonds and notes. By the common 
 law, bonds, bills, or notes, being of no in- 
 trinsic value, and not importing any prop- 
 erty in possession, but only the evidence of 
 property, were not the subjects of larceny. 
 U. S. V. Davis, 5 Mason, 358; Greeson v. 
 State, 5 How. Miss. 33 ; State v. Casados, 1 
 Nott & McCord, 91. To be the subjects of 
 larceny, they must be, at the time of the 
 taking, valid and subsisting securities. Wil- 
 son V. State, 1 Porter, 118. 
 
 112. In South Carolina, previous to the 
 acts of 1736-7, notes of hand being chosesin 
 action, and not deemed to possess any value 
 in themselves, were not the subjects of lar- 
 ceny; but these acts placed them on the 
 same footing as the money they were in- 
 tended to secure. State v. Wilson, 3 Brev. 
 196. 
 
 113. Bank bills or notes. An indictment 
 will not lie for stealing bank notes under a
 
 LAECENY. 
 
 383 
 
 Subjects of Larceny. 
 
 statute making promissory notes the subject 
 of larceny. Gulp v. State, 1 Porter, 33. But 
 see Damewood v. State, 1 How. Miss. 262. 
 
 114. In Alabama, bank bills and United 
 States treasury notes may be the subject of 
 larceny. Sallie v. State, 39 Ala. 691. In 
 Missouri a bank note is personal property, 
 and the subject of larceny within the mean- 
 ing of the statute (Act of 1835, art. 3, § 32), 
 concerning crimes and punishments. Mc- 
 Donald V. State, 8 Mo. 283. Abstracting 
 bank notes from a justice's court where they 
 were regularly filed as part of the papers, 
 was held larceny within the penal code of 
 Arkansas. Wilson v. State, 5 Ark. 513. 
 
 115. Receipt. A receipt for the payment 
 of money may be the subject of larceny. But 
 taking a receipt or other instrument from 
 the hands of the person who has given it, be- 
 fore it has taken effect by delivery, is not 
 larceny. Where, therefore, a creditor got 
 his debtor to sign a receipt, and under pre- 
 tense that he was about to pay him, and 
 then took it from him with a criminal in- 
 ent, without paying him, it was held that he 
 was not guilty of larceny. People v. Loomis, 
 4 Denio, 380. 
 
 116. Larceny cannot be predicated of a 
 simple receipt under the statute of New 
 York. But it is otherwise as to accountable 
 receipts, or receipts for money to be account- 
 ed for, receipts for property in store, and 
 ship receipts. People v. Bradley, 4 Parker, 
 245. A note payable in lumber, though not 
 negotiable, is the subject of larceny. lb. 
 
 117. Where A. promised B. to pay him 
 for work, it was held that a certificate given 
 by B. to C, stating that C. had paid for the 
 work, and that B. had no claim therefor on 
 A., was a receipt or release within the 
 statute of South Carolina (Rev. Stats, ch., 
 126, § 17), and the subject of larceny. State 
 v. Wilcox, 3 Brev. 96. 
 
 118. Book of accounts. In Massachusetts, 
 a memorandum Ijook of accounts is the sub- 
 ject of larceny within the statute. Com. v. 
 Williams, 9 Mete. 273. 
 
 119. Mail matter. Under the act of Con- 
 gress of March 3d, 1825 (4 U. S. Stat, at 
 Large, 108), making it an offense to steal the 
 mail, or steal or take from the mail, or from 
 
 any post office, a letter or packet, a post 
 office may be a desk, trunk, or box carried 
 about a house, or from one building to 
 another. U. S. v. Marselis, 2 Blatchf. 108. 
 A clerk employed in the post office may be 
 convicted under the act ; and a person may 
 be found guilty of stealing a letter from the 
 post office, although he merely puts the let- 
 ter in his pocket, and does not remove it be- 
 yond the post office building. lb. 
 
 120. A decoy letter prepared and mailed 
 by an officer of the government, for the pur- 
 pose of entrai^ping the accused, is within 
 the act of Congress of March 3d, 1825, § 21 
 (4 U. S. Stat, at Large, 107), making it an 
 offense to open a letter and steal money 
 therefrom. U. S. v. Cottingham, 2 Blatchf. 
 470. 
 
 121. The act of Congress (of March 3d, 
 1825, 4 U. S. Stat, at Large, 108), making it 
 an offense to open, secrete, embezzle or de- 
 stroy a letter before it is delivered to the 
 person to whom it is directed, does not ap- 
 ply where the letter is not obtained wrong- 
 fully from the post office or from a mail 
 carrier. U. S. v. Parsons, 2 Blatchf. 104. 
 
 122. Mortgaged property. The mort- 
 gagor of personal projierty who is left in 
 possession of it, with a right to sell it and 
 hold the proceeds for the benefit of the 
 mortgagee, has such an interest in the 
 property that it may be the subject of lar- 
 ceny. State V. Mullen, 10 Iowa, 451. 
 
 123. Domestic animals. A person who 
 drives oft', and converts feloniously to his 
 own use, the stray cattle of another, is 
 guilty of larceny, although he is ignorant of 
 the true owner. State v. Martin, 28 Mo. 
 530. Charging the jury, that if cattle es- 
 caped from the lot where they were at pas- 
 ture and were on the highway, the defend- 
 ant was guilty of larceny if he drove them 
 to the city of New York with intent to con- 
 vert them to his own use, was held correct. 
 People V. Kaatz, 3 Parker, 129. 
 
 124. Bees in the possession of the owner, 
 are the subjects of larceny. State v. Mur- 
 phy, 5 Blackf. 498. And the same is true of 
 poultry, or their young or eggs. Com. v. 
 Bceman, 8 Gray, 497. Larceny may be 
 committed by taking pea fowls. lb.
 
 384 
 
 LAKCENY. 
 
 Subjects of Larceny. 
 
 Warrant. 
 
 125. At common law a dog was not the 
 subject of larceny. But it is otherwise 
 under the Kevised Statutes of New York, 
 which recognize dogs as property by sub- 
 jecting them to taxation. People v. Malo- 
 ney, 1 Parker, 593 ; People v. Campbell, 4 
 Parker, 386. In Alabama, dogs are not the 
 subject of larceny. Ward v. State, 48 Ala. 
 101. 
 
 126. Animals of a wild nature. At 
 common law, bears, foxes, monkeys, ferrets, 
 cats, &c., are not the subjects of larceny, 
 although there may be a property in them 
 which the law will protect by a civil action. 
 jSTorton v. Ladd, 5 New Hamp. 203; and 
 they may be the subject of larceny when 
 confined or killed. State v. House, 65 N. C. 
 315. It has been held that a sable caught 
 in a trap in the woods, is not the subject of 
 larceny. Norton v. Ladd, supra. Doves 
 are not subjects of larceny, unless they are 
 in the custody of the owner, as when in a 
 dove cote or pigeon house, or in the nest 
 before they are able to fly. Com. v. Chace, 
 
 9 Rich. lo. 
 
 127. Property unlawfully obtained. An 
 
 indictment may be sustained for the larceny 
 of money, which was taken from a jierson 
 who had obtained it by the use of intoxicat- 
 ing liquor contrary to law. Com. v. Rourke, 
 
 10 Cush. 397. Articles kept and used for 
 gambling may be the subject of larceny. 
 Bales V. State, 3 "West Va. 685. 
 
 128. Things which savor of the realty. 
 The rule that larceny cannot be committed 
 of things savoring of the realty only applies 
 to such annexations as adhere to the soil, 
 and does not include such as are construct- 
 ively annexed, like leathern belts applied 
 and used to propel machinery. Jackson v. 
 State, 11 Ohio, N. S. 104. 
 
 129. To constitute larceny in taking and 
 carrying away articles severed from the 
 realty, no particular sjjace is necessary, only 
 the two acts must be so separated by time 
 as not to constitute one transaction. State 
 v. Berryman, 8 Nev. 262. 
 
 130. When nuggets of gold are separated 
 from the original veins by natural causes, 
 there is no severance from the realtv ; and 
 
 consequently they are not the subjects of 
 larceny. State v. Burt, 64 N. C. 619. U 
 
 131. Charging the larceny of " six hun- // 
 dred and ten pounds of silver-bearing ore," 
 sufficiently shows that the proijerty alleged 
 
 to have been stolen savored of the realty, 
 and was therefore not the subject of larceny. 
 State V. Berryman, 8 Nev. 262 ; s. c.l Green's 
 Crim. Reps. 335. 
 
 132. The defendant was indicted for steal- 
 ing copper pipes which were a part of a 
 steam engine attached to a manufactuiing 
 establishment. i?i??fZ, that if the pipes were 
 severed at one time, so that they became 
 personal property, and were afterward taken 
 and carried away by the defendant, with a 
 felonious intent, it was larceny ; otherwise, 
 only a trespass. State v. Hall, 5 Harring. 
 492. 
 
 133. Where a woman secretly and with 
 an intent to deprive a gas company of their 
 gas, and to appropriate it to her own use, 
 severed a portion of that which was in a 
 service pipe of the company, by taking it 
 into her house and there consuming it, it 
 was held that she was guilty of larceny. 
 Com. V. Shaw, 4 Allen, 308. 
 
 134. Turpentine which has run from the 
 trees into boxes is the subject of larceny. 
 State V. Moore, 11 Ired. 70; and the same is 
 true of ice in an ice house. Ward v. People, 
 3 Hill, 395. A key in the lock of the door 
 of a house may be the subject of larceny. 
 Hoskins v. Tarrence, 5 Blackf. 417. In 
 South Carolina, under the statute of 1826, 
 com growing in a field is the subject «f lar- 
 ceny. State V. Stephenson, 2 Bail. 334. 
 
 4. Warrant. 
 
 135. For arrest. In New York, a war- 
 rant issued by a justice for the arrest of a 
 person charged with larceny is not void by 
 reason of the omission of an allegation as to 
 the value of the projDerty, the only efl'ect of 
 such an omission being that the offense 
 charged will be petit instead of grand lar- 
 ceny. Payne v. Barnes, 5 Barb. 456. 
 
 136. Commitment. A mittimus which 
 does not state the time, place and subject 
 of an alleged larceny is void. State v. 
 Brady Ga. Decis. (pt. 2), 40.
 
 LAKCENY. 
 
 385 
 
 Place of Indictment. 
 
 5. Place of indictment. 
 
 137. Where property is stolen abroad. 
 A foreigner who steals goods abroad, and 
 takes them to the State of New York, may 
 be indicted, convicted and punished in that 
 State the same as if the larceny had origin- 
 ally been committed there. People v. Burke, 
 11 Wend. 139. 
 
 138. Where property was stolen in New 
 Brunswick and taken into Maine, it was 
 held that the thief might be indicted and 
 convicted in that State. State v. Under- 
 wood, 49 Maine, 181. But stealing goods 
 in a British province and carrying them 
 into Massachusetts is not larceny in that 
 State. Com. v. Uprichard, 3 Gray, 434. 
 
 139. In Ohio, the rule that a person hav- 
 ing in his possession in that State property 
 which had been stolen by him in another 
 State of the Union may be convicted of lar- 
 ceny in Ohio, does not extend to cases 
 where the property was stolen in a foreign 
 and independent sovereignty. Stanley v. 
 State, 24 Ohio, N. S. 166. 
 
 140. Where property is stolen in another 
 State. A person who steals goods in an- 
 other State and takes them to Massachusetts 
 may be indicted in the latter. Com. v. Cul- 
 lins, 1 Mass. 116 ; Com. v. Holder, 9 Gray, 7. 
 It is the same in Connecticut, Ohio, Ala- 
 bama, Missouri, New York and Oregon. 
 State V. Ellis, 3 Conn. 185 ; Hamilton v. 
 State, 11 Ohio, 435; State v. Seay, 3 Stew. 
 123; Hemmakerv. State, 12 Mo. 453; Peo- 
 ple v. Burke, 11 Wend. 129 ; State v. John- 
 son, 2 Oregon, 115. 
 
 141. Whether a person committing theft 
 in another State or country and carrying 
 the stolen property into Michigan would be 
 guilty of larceny in Michigan at common 
 law, query, the court being equally divided 
 on the question. Moriisey v. People, 11 
 Mich, 327. The statute of Michigan mak- 
 ing it larceny is constitutional. People v. 
 Williams, 24 lb. 156, Campbell, C. J., dis- 
 senting. 
 
 142. When property is stolen in the juris- 
 diction of a sister State and taken to Iowa, 
 the offense is commenced and consummated 
 in the State where the property is stolen. 
 It is punishable by the laws of Iowa upon 
 
 25 
 
 the principle that the continued possession 
 of the property stolen is itself larceny, every 
 act of the thief in the removal of the prop- 
 erty and keeping it from the possession of 
 the owner being in contemplation of law an 
 offense. State v. Bennett, 14 Iowa, 479. 
 
 143. The stealing of goods in another 
 State and taking them to Mississippi is lar- 
 ceny in the latter State, and the thief may 
 be indicted in any county to which he has 
 carried the goods. Watson v. State, 36 
 Miss. 593. 
 
 144. If a person steals goods in another 
 State and carries them into Nevada, where 
 he makes a removal or asportation of them , 
 intending to steal them, he is guilty of 
 larceny in the latter State. State v. New- 
 man, 9 Nev. 48. 
 
 145. Where a larceny is committed in 
 another State and the stolen goods taken to 
 Indiana, it is not an offense punishable 
 there, but only to enable the authorities to 
 return the thief to the proper vicinage for 
 trial. Beal v. State, 15 Ind. 378. 
 
 146. Where property is stolen in another 
 State and taken by the thief to Louisiana, 
 where he sells it, he does not thereby com- 
 mit larceny in the latter State. State v. 
 Reonnals, 14 La. An. 278. Stealing prop- 
 erty in another State and carrying it to 
 New Jersey is not larceny in the latter. 
 State V. Blanch, 2 Vroom (81 N. J.) 82. It 
 is the same in Nebraska. People v. Lough- 
 ridge, 1 Neb. 11. 
 
 147. Where goods stolen in one county 
 are carried into another county. By the 
 common law, the legal possession of stolen 
 property continues in the owner, and the 
 taker is guilty of larceny at all times while 
 he retains possession of the stolen goods. 
 Upon this principle, a person stealing goods 
 in one county and carrying them into an- 
 other county is deemed guilty of larceny in 
 the latter, and the rule is the same notwith- 
 standing the goods have been altered in 
 their character before being carried from 
 one county into another. State v. Somer- 
 ville, 21 Maine, 14. The doctrine has been 
 held not confined to cases of stealing prop- 
 erty which is the subject of larceny at com- 
 mon law, but to extend to bank notes, the
 
 380 
 
 LARCENY. 
 
 Place of Indictment. 
 
 Indictment. 
 
 stealing of which is made larceny by statute. 
 Com. V. Eand, 7 Mete. 475. 
 
 148. Where the original taking is feloni- 
 ous, every act of possession continued under 
 it by the thief is a felonious taking wherever 
 the thief may be, and he may be indicted, con- 
 victed and punished in any place where he 
 carries the stolen property. Stinson v. Peo- 
 ple. 43 111. 397: Aaron v. State, 39 Ala. 684; 
 Heniy v. State, 7 Cold. Tenn. 331. But if 
 the thief be tried in one county, such trial 
 will be a bar to a trial in every other county, 
 lb. 
 
 149. A person who aids and abets in a 
 larceny in one county, and afterward is con- 
 cerned in the possession and disposal of the 
 stolen property in another county, though 
 the goods were removed to this latter county 
 without his agency or consent, may be con- 
 victed of larceny in the latter county. Com. 
 V. Dewitt, 10 Mass. 154. 
 
 150. In New York, it has been held that 
 where property stolen in one county is taken 
 into another county, and through different 
 towns of the latter county into a city there- 
 in, a local court of the city has jurisdiction 
 to try the offense. People v. Smith, 4 
 Parker, 255. 
 
 151. In South Carolina, the defendant, 
 who owned a boat in the Santee river, 
 agreed to carry cotton from O. district to C. 
 Before arriving at C, and while passing 
 down the river, he told one of the hands on 
 board that he intended to convert the cotton 
 to his own use. Subsequently, at E., in C. 
 district, he burned a portion of the cotton, 
 and destroyed the marks upon the other 
 bales. He then shipped the cotton to C, 
 sold it, and pocketed the proceeds. Upon 
 the trial of an indictment in O. district, the 
 court charged the jury: That in order to 
 find the defendant guilty of grand larceny, 
 there must have been a taking and carrying 
 away of the cotton with a felonious intent, 
 in the district of O. ; that if the defendant, 
 when he received the cotton, meant to 
 deliver it to the consignee in C, his after- 
 ward converting it to his own use did not 
 constitute larceny; but that if when the 
 cotton was delivered to him, he received it 
 intending to steal it, it was larceny from the 
 
 beginning, as laid in O. district. Held cor- 
 rect. State v. Thurston, 2 McMull. 383. 
 
 152. Offenses against United States. 
 Although larceny is committed in a place 
 not under the sole and exclusive jurisdiction 
 of the United States, yet it may be made 
 the subject of punishment under the 3d 
 section of the act of Congress of 1825, ch. 
 270. U. S. V. Davis, 5 Mason, 356. 
 
 153. Where a clerk or servant, who is 
 authorized to take from the post ofiice all 
 letters arriving by mail to the address of his 
 employer, after receiving them, embezzles or 
 destroys them, the offense is to be looked into 
 by the authorities of the State, and not of the 
 United States. U. S. v. Driscoll, 1 Low, 303. 
 
 6. Indictment. 
 
 154. Thief cannot be punished with- 
 out process of law. One whose goods have 
 been stolen cannot lawfully punish the thief 
 himself, without process of law, by mali- 
 ciously threatening to accuse him of the 
 offense, or to do him an injury, with intent 
 to extort property from him. State v. Bruce, 
 24 Maine, 71. 
 
 155. ho liable. A person who is deaf 
 and dumb may be convicted of larceny. 
 Com. V. Hill, 14 Mass. 207; but not & feme 
 covert for a larceny committed by her 
 jointly with her husband. Com. v. Trim- 
 mer, 1 Mass. 476. 
 
 156. Acquittal, when not a bar. An 
 acquittal of the larceny of certain property 
 is not a bar to an indictment for the larceny 
 of certain other pi-operty, notwithstanding 
 that the last mentioned property is such that 
 the language of the first indictment might 
 describe it. Com. v. Sutherland, 109 Mass. 
 342; s. c. 1 Green's Crim. Reps. 189. 
 
 157. Statement of venue. An indict- 
 ment, after the words " State of Texas, 
 county of Fayette," and the usual com- 
 mencement, alleged that " James Cain, late 
 of Travis county, aforesaid, with force and 
 arms, in the county aforesaid, on, &c., did 
 then and there feloniously steal, take, and 
 carry away," &c. i7i??(Z bad for repugnancy 
 and uncertainty in stating the venue. Cain 
 V. State, 18 Texas, 391. 
 
 158. Joinder of defendants. Where sev-
 
 LARCENY. 
 
 387 
 
 Indictment. 
 
 ■eral persons unite in an attempt to steal 
 from the person, they may be jointly in- 
 dicted ; and under an indictment alleging 
 that they all thrust their hands into the 
 pocket, they may all be convicted, though 
 the proof shows that only one of them did 
 so. Com. V. Fortune, 105 Mass. 593. 
 
 159. Where several combine to commit 
 larceny, it is immaterial whether they were 
 previously acquainted, if they were then 
 confederating for the felonious purpose, or 
 whether they designed to procure the prop- 
 erty in order to share it, or for the benefit of 
 one of them. Stinson v. People, 43 111. 397. 
 
 160. In Massachusetts, one who steals 
 goods, and the receiver of them, may be 
 jointly indicted. Com. v. Adams, 7 Gray, 
 43; Com. v. O'Connell, 13 Allen, 451. But 
 in California, it has been held that an in- 
 dictment which charges one person with the 
 larceny of certain goods, and another person 
 with feloniously receiving, having, and aid- 
 ing in concealing the same, knowing them 
 to be stolen, is bad in charging two distinct 
 oflFenses against different parties. People v. 
 Hawkins, 34 Cal. 181. 
 
 161. Where several are jointly indicted 
 for grand larceny, they have no right to re- 
 quire that another whose name is included 
 in the indictment shall be tried with them. 
 Armsby v. People, 3 K Y. Supm. N. S. 157. 
 
 182. Averment of guilty knowledge and 
 intent. An indictment for stealing bank 
 bills and promissory notes must charge that 
 the defendant knew that the papers stolen 
 were bank bills and notes. Rich v. State, 
 8 Ohio, 111; Gatewood v. State, 4 lb. 386. 
 
 163. The indictment must allege that the 
 property was taken with intent to deprive 
 the owner of it, and to appropriate it to the 
 use of the defendant. State v. Sherlock, 36 
 Texas, 106 ; Ridgeway v. State, 41 lb. 831; 
 and also that it was taken without the con- 
 sent of the owner. Johnson v. State, 39 lb. 
 393. But the latter averment is unnecessary 
 where the person from whom the property 
 was stolen had posses ion of it with no other 
 authority than to keep it. Burns v. State, 
 35 lb. 734. 
 
 164. An indictment charged that one P. 
 had possession of a watch, the property of 
 
 the defendant, by virtue of his lien for re- 
 pairs, and that the defendant fraudulently 
 took it without the consent of P., to deprive 
 him of the value of said repairs, by depriv- 
 ing him of the said watch, and in order to 
 appropriate it (the value of the repairs) to 
 the defendant's use. Held sufficient to charge 
 a theft by the owner of his own property. 
 State V. Stephens, 33 Texas, 155. 
 
 165. In Alabama, an indictment under the 
 statute (Rev. Code, § 3695), which alleges that 
 the defendant broke into and entered a build- 
 ing, and feloniously took and carried away 
 personal property of the value of more than 
 one hundred dollars, without an averment 
 that the breaking and entering were with 
 intent to steal or to commit a felony, charges 
 grand larceny, and not felony. Bell v. State, 
 48 Ala. 684; s. c. 3 Green's Grim. Reps. 633. 
 But see Fisher v. State, 46 Ala, 717. 
 
 166. General rule as to description of 
 property. Goods charged to have been 
 stolen, must be described with certainty to a 
 common intent, that is, with such certainty 
 as will enable the jury to say that the goods 
 proved to have been stolen are the same as 
 those charged in the indictment, and that 
 the court can see that they are the subject- 
 matter of the offense alleged. People v. 
 Jackson, 8 Barb. 637. 
 
 167. The indictment must show on its 
 face that the offense alleged, was commit- 
 ted. If the language employed be capable 
 of two interpretations, only one of which 
 imports a charge of larceny, the indictment 
 is bad. Where the defendant was charged 
 with stealing gold-bearing quartz rock, and 
 it did not appear from the indictment that 
 the rock had been severed from the ledge, 
 and thus become personal property, before 
 the alleged taking by the defendant, it was 
 held ground for arrest of judgment. Peo- 
 ple v. Wiliams, 35 Cal. 671. But judgment 
 will not be arrested where the objection is 
 not to the whole of the indictment, but only 
 to the allegations concerning a part of the 
 property which is alleged in it to have been 
 stolen. Com. v. Eastman, 8 Gray, 76. See 
 Com. v. Hathaway, 14 lb. 393. 
 
 168. An indictment for larceny must de- 
 scribe the articles stolen by the namss they
 
 388 
 
 LAECENY, 
 
 Indictment. 
 
 usually bear, and specify the number and 
 value of each species or particular kind. 
 State V. Longbottoms, 11 Hamph. 39; State 
 V. Clark, 8 Ired. 226. 
 
 169. An indictment for stealing one bridle, 
 of the value of, &c., was held good. State 
 V. Dowell, 3 Gill & Johns. 310. And the 
 same was held as to an indictment which 
 charged the stealing of a book, of the value 
 of three dollars, without giving the title of 
 the book. State v. Logan, 1 Mo. 532. 
 
 170. An indictment which described the 
 stolen property as " one head of neat cattle, 
 of the value of $12," was held sufficient. 
 State V. Murphy, 39 Texas, 46. But an in- 
 dictment which charged the stealing of" one 
 certain trunk or chest, containing various 
 articles of clothing, jewelry," &c., was held 
 bad for uncertainty. Potter v. State, lb. 388. 
 
 171. An indictment for larceny, which in 
 one count described the thing stolen as " a 
 certain writ of Jieri facias belonging to the 
 Superior Court" in another count, as "a 
 certain process of and belonging to the Su- 
 perior Court," and in a third count, as " a 
 certain record of and belonging to the Su- 
 perior Court," was held bad for uncertainty. 
 State V. McLeod, 5 Jones, 318. 
 
 172. Where an indictment under a statute 
 which makes a distinction between the 
 terms " horse " and " gelding," charges the 
 defendant with stealing a horse, proof that 
 the defendant stole a gelding will not be 
 sufficient. Turley v. State, 3 Humph. 323; 
 State V. Plunket, 2 Stewart, 12. 
 
 173. An indictment for larceny, described 
 the property stolen as " a black or brown 
 mare or filly, branded with a small mule shoe 
 on the left shoulder." Held that describing 
 the animal in the alternative was not a fatal 
 objection, especially as the property was 
 identified by other terms of description. 
 People V. Smith, 15 Cal. 408. 
 
 174. In South Carolina, the word pig not 
 being in the statute against hog stealing, it 
 was held that an indictment for stealing a 
 pig contrary to that act, could not be sup- 
 ported. State V. McLf.in, 2 Brev. 44?. 
 
 176. An indictment charging that the de- 
 fendant stole a parcel of oats is sufficient. 
 State V. Brown, 1 Dev. 137. 
 
 176. Where an indictment charged the 
 stealing from C. of three swarms of bees 
 and forty pounds of honey, it was held that 
 it must be intended after verdict, that the 
 bees were reclaimed and the honey the prop- 
 erty of C. Harvey v. Com. 23 Graft. 941 • 
 s. c. 2 Green's Crim. Reps. 654. A person 
 who has planted oysters has an absolute 
 property in them, and an indictment for 
 stealing them need not aver that they were 
 reclaimed. State v. Taylor, 2 Dutch. 117. 
 
 177. When the thing stolen is in its raw or 
 unmanufactured condition, it may be de- 
 scribed in the indictment by its name, and 
 as so much in quantity, weight, or measure. 
 But if it be worked up into a specific arti- 
 cle, and remain so when stolen, it must be 
 described by the name by which it is gener- 
 ally known. The cast iron top of an iron 
 box which was stolen separate from the box, 
 may be described as " one pound of iron," 
 although it may weigh more or less than a 
 pound. State v. Horan, Phil. TST. C. 571. 
 
 178. Description of promissory notes. 
 Under a statute making promissory notes 
 the subject of larceny, they may be described 
 in the same manner as other things which 
 have an intrinsic value; and it is not neces- 
 sary to add the words " for the payment of 
 money." An indictment is also good which 
 alleges the larceny of a piece of paper, stat- 
 ing its value without further description- 
 Corn. V. Brettun, 100 Mass. 206. See Com. 
 V. Campbell, 103 lb. 436. 
 
 179. But where an indictment alleged that 
 the defendant feloniously stole, took and 
 carried away sundry promissory notes for 
 the payment of money, of the value of $80, 
 of the goods and chattels of the said M., it 
 was held bad for uncertainty. Stewart v. 
 Com. 4 Serg. & Rawle, 194. 
 
 180. A promissory note alleged to have 
 been stolen, was proved on the trial to have 
 been payable with semi-annual interest, and 
 all taxes that should be assessed on the 
 amount of money represented by it. An in- 
 formation for the theft in describing the 
 note, omitted those particulars. Reld that 
 the variance was not material. State v. 
 Fenn, 41 Conn. 590. 
 
 181. Averment of the stealing of men-
 
 LARCENY. 
 
 389 
 
 Indictment. 
 
 ey. In Michigan, where an information 
 alleged that the defendant " did feloniously 
 steal, take and carry away, of the property, 
 goods and chattels of J. C. from the posses- 
 sion of J, C, one hundred and thirty-five 
 dollars," without other description of the 
 property stolen, or any allegation of its 
 value, it was held fatally defective. Merwin 
 V. People, 26 Mich. 298; s. c. 1 Green's 
 Crim. Reps. 349. 
 
 182. But in the same State, an indictment 
 under the statute (Com. L. § 7930), which 
 charged that the defendant did " feloniously 
 steal, take and carry away, of the personal 
 goods and chattels of A. B. fifty dollars in 
 money, of the value of fifty dollars, contrary 
 to the statute," was held to sufficiently de- 
 scribe the property stolen. Brown v. Peo- 
 ple, 29 Mich. 232. 
 
 183. Description of bank bills. An in- 
 dictment under a statute which prescribes 
 the punishment for stealing "any bank 
 note," is good which charges the stealing of 
 *'a bank bill." Eastman v. Com. 4 Gray, 
 416 ; Low V. People, 2 Parker, 37. 
 
 184. In Michigan, an indictment under 
 the statute (Sess. 1840, p. 43, § 1), which 
 charged the stealing of " bank notes " or 
 " bank bills," following the language of the 
 statute, was held good. People v. Kent, 1 
 Doug. 42. 
 
 185. An indictment for stealing bank bills 
 need not particularly describe them ; but 
 their number and value should be stated. 
 Hamblett v. State, 18 New Hamp. 884; and 
 it ought to be alleged that the bills con- 
 tained a promise to pay money, or some 
 agreement to that effect. State v. Emery, 
 Brayt. 131. 
 
 186. An indictment for the larceny of a 
 bank note, which described the note as a 
 twenty dollar bank note on the State Bank 
 of North Carolina, of the value of twenty 
 dollars, was held sufficient. State v. Rout, 
 3 Hawks, 618. And the same was held of 
 an indictment which alleged that the de- 
 fendant stole of the proper goods and chat- 
 tels of A. B. " a ten dollar bill of the cur- 
 rency of the country, commonly called paper 
 money, of the value of ten dollars." State 
 V. Evans, 15 Rich. 31. 
 
 187. An indictment was held good which 
 described the stolen property as " a bank 
 note of the State Bank of Ohio for the pay- 
 ment of ten dollars." Crawford v. State, 2 
 Carter, 132. And see Engleman v. State, 
 lb. 91. The same was held of an indict- 
 ment which charged the stealing of " three 
 promissory notes called bank notes on the 
 Bank of the United States." McLaughlin 
 V. Com. 4 Rawle, 464. But an indictment 
 which alleged the stealing of "one bank 
 note of the Bank of Baltimore," was held 
 bad. Com. v. McDowell, 1 Browne, 359. 
 
 188. An indictment charging the larceny 
 of sundry bank bills, of a specified denom- 
 ination and value, of the Central Railroad 
 and Banking Company of Georgia, signed 
 by the president of that company and 
 countersigned by the cashier, the same being 
 the property of that bank, which were in- 
 trusted to the defendant as such cashier, is 
 a sufficient description of the articles stolen. 
 Bullock V. State, 10 Ga. 46. 
 
 189. An indictment for larceny which de- 
 scribes the peojaerty stolen as " a quantity of 
 bank bills current within this common- 
 wealth, amounting together to one hundred 
 and fifty dollars, and of the value of one " 
 hundred and fifty dollars," is sufficient. 
 Com. V. O'Connell, 12 Allen, 451. And see 
 Com. V. Sawtelle, 11 Cush. 142. 
 
 190. Where an indictment alleged that 
 the prisoner feloniously and violently stole, 
 took, and carried away from the person of 
 J. D., and against his will, current bank 
 bills of the value of fifteen dollars, and 
 silver coin of the value of three dollars, it 
 was held sufficient, although it did not show 
 the number and denomination of the bank 
 bills, or the amount secured thereby and re- 
 maining unsatisfied thereon, or the number, 
 size and description of the pieces of silver 
 coin. People v. Loop, 3 Parker, 559. 
 
 191. An information for larceny was held 
 sufficient which charged the property stolen 
 as " 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." Salis- 
 bury V. State, Conn. 101. 
 
 192. An indictment for larceny suBBciently
 
 390 
 
 LAECENY. 
 
 Indictment. 
 
 describes the property stolen in alleging 
 that it consisted of " one ten dollar treasury 
 note of the United States, usually called a 
 greenback, and one ten dollar national bank 
 bill usually called a greenback." Sallie v. 
 State, 89 Ala. 691. 
 
 193. An indictment charged the defend- 
 ant with stealing "two five dollar United 
 States treasury notes, issued by the treasury 
 department of the United States govern- 
 ment, for the payment of five dollars each, 
 and of the value of five dollars each." Held 
 sufficient. State v. Thomason, 71 N. C. 146. 
 
 194. An indictment for. larceny which al- 
 leged the stealing of " divers bank notes, 
 amounting in the whole to the sum of five 
 hundred dollars, and of the value of five 
 hundred dollars, " held bad for uncertainty. 
 State V. Hinckley, 4 Minn. 345. But an in- 
 dictment was held sufficient which charged 
 that the defendant "did steal, take and 
 carry away divers and sundry genuine and 
 current treasury notes of different denomi- 
 nations, issued by the treasury department 
 of the United States, and divers and sundry 
 genuine and current bank notes of diflerent 
 denominations issued by different and sundry 
 national banks, organized under the laws of 
 the United States, all of which treasury 
 notes and bank notes amounted to the sum 
 of, and were of the value of $250, and were 
 the property of one J. S. ; a more particular 
 description of which treasury notes and 
 bank notes, or of any or either of them, is 
 to the grand jurors unknown. State v. 
 Taunt, 16 lb. 109. 
 
 195. Description of bank bills as prom- 
 issory notes. An indictment properly de- 
 scribes a bank bill alleged to have been 
 stolen, as a promissory note. Com. v. 
 Thomas, 10 Gray, 483; Com. v. Paulus, 11 
 lb. 305. 
 
 196. An indictment for larceny was held 
 sufficient which alleged that the property 
 stolen was " one promissory note issued Ijy 
 the treasury department of the government 
 of the United States for the payment of one 
 dollar. State v. Fulford, Phil. N. C. 563. 
 
 197. An indictment for the larceny of 
 United States treasury notes described them 
 as " promissory notes of the United States 
 
 given for the payment of money," stating 
 their denomination and value; and bank 
 notes were described as "national bank 
 notes, commonly called national currency 
 notes, then and there being obligatory prom- 
 issory notes of the national currency issue, 
 given for the payment of money." Held. 
 sufficient. Hummel v. State, 17 0hio,KS.G28. 
 
 198. An indictment was held sufficient 
 which charged the defendant with stealing- 
 ten promissory notes, called bank notes, is- 
 sued by the Chickopee Bank, for the pay- 
 ment of the divers sums of money, amount- 
 ing, in the whole, to the sum of $50, and of 
 the value of $50 ; ten promissory notes, 
 called bank notes, issued by the Agawam 
 Bank, &c., of the goods, chattels and prop- 
 erty of one B. M. People v. Jackson, 8 
 Barb. 637. And see People v. Holbrook, 18 
 Johns. 90. 
 
 199. In South Carolina, the stealing of a 
 bank bill was held an offense within the 
 statute (of 1736-7), making it felony to steal 
 any warrant, bill, or promissory note for the 
 payment, or for securing the payment, of 
 any money, being the property of any other 
 person or persons; and that it was not a 
 good objection to the indictment that it de- 
 scribed the bill as a promissory note, al- 
 though the words promissory note and bank 
 bill are not convertible terms. State v. 
 Wilson. 3 Brev. 196. 
 
 200. Bank issuing bills alleged to have 
 been stolen need not be named. An in- 
 dictment for the larceny of a bank note need 
 not state that the bill is genuine, or the 
 name of the bank issuing it. State v. 
 Stevens, 62 Maine, 284 ; s. c. 2 Green's Crim. 
 Reps. 481. And charging in the same count 
 that the defendant stole a pocket-book and 
 shoe-knife, at the same time and place, does 
 not render the indictment bad for duplicity. 
 Ibid. 
 
 201. In Virginia, an indictment for the 
 larceny of two bank notes, whicli contained 
 no other description of the notes than that 
 they were bank notes current within the 
 United States, and that one of them was for 
 the sum of ten dollars, and the other for five 
 dollars, was held good after verdict. Com. 
 V. Mosely, 2 Va. Cas. 154.
 
 LARCENY. 
 
 391 
 
 Indictment. 
 
 202. In Tennessee it was held sufficient, 
 in an indictment for larceny, to describe 
 bank notes alleged to have been stolen, as 
 "ten five dollar bank bills of the value of 
 five dollars each," without naming the bank 
 that issued them; and that the fact that 
 they were current when stolen was prima 
 facie evidence that they were worth their 
 
 nominal value. Pyland v. State, 4 Sneed, 
 357. 
 
 203. In South Carolina, an indictment un- 
 der the statute for the larceny of bank bills, 
 need not allege that they were the bills of an 
 incorporated bank, or so describe them that 
 they may be distinguished from other bills 
 of the same bank. It is sufficient to de- 
 scribe them as the bills of a certain bank, 
 naming it. State v. Smart, 4 Rich. 35G. 
 
 204. Insufficient description of bank 
 bills. An indictment for larceny, which de- 
 scribes the property stolen as "goods and 
 lawful money of the United States, common- 
 ly called greenbacks, of the value of twenty- 
 four dollars and twenty-five cents," is in- 
 sufficient. State V. Cason, 20 La. An. 48. 
 
 205. An indictment for larceny, charging 
 that the defendant took and carried away 
 ' ' one lot of treasury notes, called green- 
 backs, the issue of the treasury of the U. S. 
 of America, and one lot of Kentucky bank 
 notes," is bad for uncertainty. Rhodus v. 
 Com. 2 Duvall, Ky. 159. 
 
 206. An indictment charged the defend- 
 ant with stealing "twelve five dollar and 
 one ten dollar notes, to wit : United States 
 promissory or bank notes of the value of 
 seventy dollars." Held that the objection 
 that the description was uncertain and in 
 the alternative came too late after verdict. 
 Bell V. State, 41 Ga.5S9. 
 
 207. An indictment which charged the 
 stealing of " one hundred and eighty-two 
 dollars in United States currency," was held 
 bad for uncertainty. Martinez v. State, 41 
 Texas, 164; Ridgeway v. State, lb. 231. 
 And the same was held of an indictment 
 which charged the larceny of "$150, in 
 United States currency." Merrill v. State, 
 45 Miss. 651 ; contra., State v. Casting, 23 
 La. An. 600. 
 
 208. An indictment for the larceny of 
 
 " bills of credit on the United States Bank," 
 which showed that the amounts charged 
 were less than the Bank of the United States 
 was authorized to issue by its charter, was 
 held bad. Culp v. State, 1 Porter, 33. 
 
 209. Description of coin. Stolen coin 
 should be described as so many pieces of 
 current gold or silver coin, specifying the 
 species of coin, unless the species of coin be 
 unknown to the grand jury, in which case 
 they may so state. People v. Bogart, 36 
 Cal. 245. An indictment described the 
 property stolen as " three thousand dollars 
 lawful money of the United States." Held 
 not sufficient, the species of coin not being 
 stated. People v. Ball, 14 Cal. 101. An in- 
 dictment which charged the defendant with 
 stealing "ten dollars good and lawful 
 money of the State of Tennessee," was held 
 insufficient. State v. Longbottoms, 11 
 Humph. 39. 
 
 210. It is not a ground for arrest of judg- 
 ment, after conviction of larceny of gold and 
 silver coin and bank bills of a specified 
 value, that the indictment avers that the 
 grand jury have no knowledge or means of 
 knowledge of the particular description of 
 the coin or bank bills alleged to have been 
 stolen. Com. v. Sawtelle, 11 Cush. 142. 
 See Com. v. O'Connell, 12 Allen, 451. 
 
 211. Where it was alleged that the pris- 
 oner stole " three dollars in divers pieces of 
 silver current in this State, and of the lawful 
 value of three dollars," it was held insuffi- 
 cient, and that the defect was not cured by 
 a verdict. Lord v. State, 20 New Hamp. 404. 
 
 212. An averment in an indictment for 
 larceny, that the defendant stole United 
 States gold coin, is the same as to allege 
 that he stole gold coin of the United States ; 
 and it will be presumed that the court and 
 jury know that a United States gold coin of 
 the denomination and value of ten dollars 
 is an eagle. Daily v. State, 10 Ind. 536. 
 
 213. An indictment charged the defendant 
 with stealing " the sum of sixty-five dollars 
 of the following description: two twenty 
 dollar gold pieces, and one five dollar gold 
 piece, anrl two ten dollar United States cur- 
 rency bills, and one money purse." Held 
 that as the indictment failed to state that
 
 592 
 
 LAKCENY. 
 
 Indictment. 
 
 tlicy \verc' of tlio current coin of the United 
 States or of any other country, it was bad 
 both as to description and value. Boyle v. 
 State, ;37 Texas, 359. 
 
 214. In Louisiana, in an indictment for 
 the larceny of coin under the statute (R. S. 
 1856, p. 176, § 88) it is not necessary to 
 specify the kind or denomination of the 
 coin. State v. Walker, 23 La. An. 425. 
 
 215. In Massachusetts, a complaint for 
 larceny was held sufficient ■which described 
 the property stolen as " cojiper coin of the 
 value of two dollars and seventy-five cents," 
 without alleging that it was money current 
 in the State. Com. v. Gallagher, 16 Gray, 
 240. 
 
 216. Description of building. "Where an 
 indictment for larceny in a building does 
 not properly describe the building, the con- 
 viction will, notwithstanding, be good for 
 simple larceny. Com. v. Hathaway, 14 
 Gray, 392. 
 
 217. In Maine, where an indictment for 
 compound larceny under the statute (ch. 156, 
 § 2), which punishes the breaking and en- 
 tering into and stealing within any building 
 in which goods, merchandise, or any valua- 
 ble thing is kept for use, sale, or deposit, 
 omitted to charge that it was a building of 
 that description, it was held that the indict- 
 ment might be maintained for simple larce- 
 ny. State V. Savage, 32 Maine, 583. 
 
 218. Ownership of property must be 
 averred. At common law, the ownership 
 of property stolen must be correctly averred 
 if known ; and the proof must correspond 
 with the averment. If not known, it must 
 be averred to be the property of some per- 
 son or persons to the grand jurors unknown. 
 Winder v. State, 25 lud. 234 ; Com. v. Man- 
 ley, 12 Pick. 173; Com. v. Morse, 14 Mass. 
 217: Reed v. Com. 7 Bush, Ky. 641. 
 
 219. An indictment for altering the brand 
 of a horse with intent to steal it, which 
 charges the property as that of an estate^ is 
 bad. It should allege that the animal be- 
 longs to a particular individual, or that the 
 owner is unknown. People v. Hall, 10 Cal. 
 425. 
 
 220. A complaint which charges the lar- 
 ceny of " one sheep of the value of five dol- 
 
 lars, the property of another person who is 
 unknown to your complainant," is sufficient. 
 State V. Polland, 53 Maine, 134. 
 
 221. Charging the larceny of bank bills 
 " the goods and chattels of A.," is sufficient 
 without alleging that they were the property 
 of A. ; the term " chattel " denoting property 
 and ownership. People v. Holbrook, 18 
 Johns. 90 ; Com. v. Moseley, 2 Va. Cas. 154; 
 People V. Kent, 1 Doug. 43. 
 
 222. An indictment for the larceny of coin, 
 bills, bonds, and treasury notes, which de- 
 scribes them as " of the goods and chattels" 
 of A., sufficiently alleges ownership. State 
 V. Bartlett, 55 Maine, 200. 
 
 223. An indictment is sufficient which in 
 one count charges that the defendant " did 
 steal a mule, the pers.onal property of J. L.," 
 and in another count that he " did steal a 
 horse, mare, gelding, colt, filly, or mule, the 
 personal property of J.L." Gabriel v. State, 
 40 Ala. 357. v 
 
 224. Owner of goods stolen must bev..^ 
 named. It is necessary to set forth in an 
 indictment for larceny, the entire christian 
 as well as the surname of the owner of the 
 goods alleged to have been stolen, if known, 
 linger v. State, 42 Miss. 642 ; State v. Go- 
 det, 7 Ired. 210. ^^_^ 
 
 225. In an indictment for larcTOTTihe 
 name of the owner of the goods stolen is 
 matter of substance, and the indictment in 
 this respect cannot be amended. State v. 
 Lyon, 47 New Hamp. 416. 
 
 226. Where the property stolen was al- 
 leged to belong to Richard G., and it was 
 afterward described as the property of Rob- 
 ert G., it was held a mere clerical error, and 
 not ground for objection. Greeson v. State, 
 5 How. Miss. 33. 
 
 227. In Texas, it has been held that the 
 initials of the christian name of the owner 
 of property stolen, in an indictment for lar- 
 ceny, are sufficient. State v. Black, 31 
 Texas, 560. And where the indictment 
 charged that an animal stolen was the pro- 
 perty of T. C. Lucky, and the proof showed 
 it to be the property of C. C. Lucky, it was 
 held that the variance was immaterial. 
 Brown v. State, 32 lb. 124. 
 
 228. Ownership of mail matter. An in-
 
 LAECENY. 
 
 393 
 
 Indictment. 
 
 dictment for stealing a letter must allege it 
 to be the property of some person other than 
 the prisoner. U. S. v. Foye, 1 Curtis C. C. 
 364. 
 
 229. An indictment for stealing bank 
 notes from the mail, may descrilie them as 
 the property of the person forwarding them. 
 U. S. V. Burroughs, 3 McLean, 405. 
 
 230. Articles furnished by parent to 
 child. Necessaiy articles furnished by a 
 parent to a child, may be described in the 
 indictment as belonging either to the parent 
 or child. State v. Williams, 2 Strobh. 229. 
 
 231. An indictment for larceny charged 
 that the property stolen belonged to A. B. 
 It was objected that it should have been laid 
 as the jjroijerty of her father, she being under 
 age and living with him. Held that the 
 ownership was well laid in the daughter, the 
 articles being in her possession, and used 
 exclusively by her. State v. Koch, 4 Bar- 
 ring. 570. 
 
 232. An indictment for stealing a saddle 
 furnished by a father to liis minor son, may 
 describe the saddle as the projierty either of 
 the father or son. State v. Williams, 2 
 Strobh. 229. 
 
 J3. Property of married woman. 
 Money held by a married woman, for the 
 support of herself and children, is in con- 
 templation of law the projierty of her hus- 
 band, and must be so averred in pleading, 
 when an averment of property is necessary. 
 Com. V. Davis, 9 Cush. 283. 
 — 234. An indictment for stealing the sep- 
 arate property of the wife, from the posses- 
 sion of the husband, may describe it as be- 
 longing to the husband. Davis v. State, 17 
 Ala. 415. 
 
 235. In Massachusetts, the statute (of 
 1855, ch. 304) enabling married women to 
 have money and property in their own right 
 and to their owm use, and to trade on their 
 own account, does not change the rule of 
 the common law, that money in the posses- 
 sion of a married woman is deemed, in the 
 absence of proof, the property of the hus- 
 band, and must be so alleged in an indict- 
 ment for larceny. Com. v. Williams, 7 Gray, 
 337. 
 
 236. In Louisiana, in an information for 
 
 larceny committed against the property of 
 the community, the goods stolen should be 
 alleged to belong to the husband, and proof 
 that they belong to the community will not 
 sustain a charge that they belong to the 
 wife. State v. Gaffery, 12 La. An. 265. 
 The rule is the same in Texas. Merriweather 
 V. State, 33 Texas, 789. 
 
 237. Joint ownership. At common law, 
 if the stolen goods are the property of 
 partners or joint owners, the names of all 
 the partners or joint owners must be stated; 
 but if they belong to a corporation, an indict- 
 ment will be good which contains an allega- 
 tion to that effect. People v. Bogart, 36 
 Cal. 245. 
 
 238. Where the goods of partners are 
 stolen, one of whom has only a contingent 
 interest in the goods, they must be laid in 
 the indictment as the property of the partner 
 who has the legal interest in them. People 
 V. Romaine, 1 Wheeler's Grim. Cas. 369. 
 
 239. An indictment for larceny vfhich in 
 one count alleges the goods stolen to be the 
 property of certain persons, and in other 
 counts states the owners to be different 
 persons, does not charge different offenses, 
 but only the same offense in different forms. 
 People V. Connor, 17 Cal. 354. 
 
 240. Where property stolen belongs to a 
 body of i^ersous, it ought not to be laid in 
 the indictment as the property of the body, 
 unless such body is incorporated, but should 
 be described as belonging to the individuals 
 composing the company. Where the in- 
 dictment did not describe the property as 
 belonging to any natural person or persons, 
 nor to any corporate body, it was held on 
 motion in arrest of judgment, that the error 
 was fatal. Wallace v. People, 63 111. 451 ; 
 s. c. 2 Green's Crim. Reps. 562. 
 
 241. Special ownership. When there is 
 a general and a special owner of the thing 
 stolen, the indictment may lay the owner- 
 ship, in either the one or the oLher, although 
 the goods were never in the real owner's 
 possession, but only in that of the bailee. 
 State V. Gorhara, 55 New Hamp. 152; State 
 v. Mullen, 30 Iowa, 203; Com. v. O'Hara,10 
 Gray, 469; Hill v. State, 1 Head, 454. 
 
 242. Goods bought for the use of the poor,
 
 394 
 
 LARCENY. 
 
 Indictment. 
 
 by order of the county superintendent, and 
 kept by liim for tliat object, may bs stated 
 in the indictment to be his property or the 
 property of the county. People v. Bennett, 
 37 N. Y. 117. 
 
 243. An indictment for stealing money 
 from a guardian, may allege that it is the 
 property of the guardian. Thomassou v. 
 State, 22 Ga. 499. 
 
 244. Where a person receives leather to 
 make into shoes, to be delivered to his 
 employer when done, an indictment for 
 stealing them, -while yet in the hands of the 
 manufacturer, may allege . the property of 
 the shoes to be in him. State v. Ayer, 3 
 Foster, 301. 
 
 245. Goods stolen from a woman who 
 takes in the linen of other people to wash, 
 may be charged in the indictment to be the 
 property of such woman. State v. Ayer, 
 supra ; U. S. v. Burroughs, 3 McLean, 405. 
 
 246. Where goods which have been levied 
 on by a constable are stolen, they may be 
 described in the indictment as the property 
 of the constable. Palmer v. People, 10 
 Wend. 160. 
 
 247. An indictment for stealing a pistol 
 hired from the State, may describe it as the 
 property of the hirer. Jones v. State, 13 
 Ala. 153. 
 
 248. The property in a box belonging to a 
 society deposited in a tavern, the landlord 
 being entitled to the key of the box, may be 
 laid to be in the landlord. State v. Ayer, 3 
 Foster, 301. 
 
 249. Where the goods of A. are stolen by 
 B., and afterward they are stolen from B. by 
 C, an indictment against the latter may 
 charge them to be the property of either A. 
 or B. Ward v. People, 3 Hill, 395. 
 
 250. K a coach be standing in the yard of 
 a coachmaker to be repaired, and a plate of 
 glass and hammercloth be stolen from it, the 
 property may be laid in the coachmaker. 
 U. S. V. Burroughs, 3 McLean, 405. 
 
 251. Where goods are stolen from the boot 
 of a stage, they may be laid in the driver, 
 though he be not the proprietor of the 
 coach. lb. 
 
 252. An indictment for stealing horses 
 may allege the propeity of the horses to be 
 
 in one who had the lawful possession of 
 them, though not the real owner. State v. 
 Addiugton, 1 Bail. 310. And see People v. 
 Smith, 1 Parker, 329. 
 
 253. Where a horse got away from the 
 owner, and was taken in the field of a third 
 person and placed in his stable, from whence 
 he was stolen, it was held that the indict- 
 ment for the larceny might describe the 
 horse as belonging either to the owner or 
 such third person. Owen v. State, G Humph. 
 330. 
 
 254. Averment of possession. An in- 
 dictment for larceny at common law need 
 not allege that the property was stolen from 
 the possession of any person. Thompson v. 
 Com. 2 Va. Cas. 135. 
 
 255. The first count of an indictment 
 charged the defendant with stealing a slave 
 of the goods and chattels of A. B. from the 
 possession of A. B. The second count was 
 like the first, excepting that it did not 
 allege that the slave was taken from the 
 possession of any one, and neither count 
 charged that the offense was committed 
 against the form of the statute. It appeared 
 that the slave was at the time a runaway. 
 Held that the defendant must be discharged, 
 the slave not being in the actual possession 
 of A. B., and the indictment not charging 
 an olfense at common law. Com. v. Hays, 
 1 Va. Cas. 122. 
 
 256. Where the bailee of a sherifi" took 
 from him personal chattels which had been 
 attached, and gave an accountable receipt 
 with a promise to deliver the same on de- 
 mand, it was held that the bailee had no 
 such special property in the chattels as 
 would sustain an indictment charging lar- 
 ceny from such bailee. Com. v. Morse, 14 
 Mass. 217. 
 
 257. An indictment for larceny from a 
 house must state the name of the owner or 
 occupant of the house. Lankin v. State, 42 
 Texas, 415. 
 
 258. Averment of value. Where the 
 nature of the punishment for larceny de- 
 pends upon the value of the things stolen, 
 the allegation of value is material, and if the 
 indictment omits such an averment it can- 
 not be amended. State v. Goodrich, 46
 
 LARCENY. 
 
 395 
 
 Indictment. 
 
 New Hamp. 186; Sheppard v. State, 42 Ala. 
 531; Com. v. Smith, 1 Mass. 245; Morgan 
 V. State, 13 Fla. 671. The failure to allege 
 in the indictment the value of the property 
 charged to have been stolen is ground for 
 arrest of judgment. Davis v. State, 40 Ga. 
 229. 
 
 259. Although when the goods of several 
 persons are stolen at the same time the in- 
 dictment may include the whole, yet the 
 value of each article and the name of each 
 owner must be separately and specially al- 
 leged. State V. Merrill, 44 New Hamp. 624; 
 Hope V. Com. 9 Mete. 134 ; contra, Clifton 
 V. State, 5 Blackf. 224 ; State v. Murphy, 8 
 lb. 498. 
 
 260. Where an indictment for stealing 
 towels and handkerchiefs did not allege 
 that each of the towels or each of the 
 handkerchiefs was of some value, but only 
 that six of the towels and twelve handker- 
 chiefs were of some value, it was held that 
 there must be a new trial, it being consis- 
 tent with the allegation that the only towels 
 and handkerchiefs which were deemed of 
 any value were those not produced or proved 
 to have been stolen. Com. v. Lavery, 101 
 Mass. 207. 
 
 261. In an indictment for larceny, the fol- 
 lowing allegation : The defendant " feloni- 
 ously took and carried away a certain writ- 
 ing commonly called a cotton receipt, issued 
 by," &c., "dated Dec. 4th, 1869, numbered 
 988, and issued to," &c., "for the receipt of 
 one bale of cotton, marked," &c., "and 
 weighing 524 pounds, of the value of more 
 than $100, the property of," &c., is bad for 
 uncertainty, it not appearing whether the 
 allegation of value applies to the bale of 
 cotton or the receipt. Caesar Williams v. 
 State, 44 Ala. 396. 
 
 262. An indictment for stealing a letter 
 from the post office, containing an article of 
 value, must describe the article and state its 
 value. U. S. v. Burroughs, 3 McLean, 405. 
 
 263. An indictment for the larceny of 
 promissory notes must allege the value of 
 the notes. Describing them as being of 
 certain amounts is not sufficient. Wilson v. 
 State, 1 Porter, 118. 
 
 264. An indictment for the larceny of 
 
 bank bills which alleges their aggregate 
 amount and value, need not state their 
 number or denomination. Com. v. Stebbins, 
 8 Gray, 492. Where, therefore, an indict- 
 ment charged the stealing of sundry bank 
 bills of some banks respectively, to the 
 jurors unknown, of the amount and value 
 of thirty-eight dollars, it was held sufficient 
 without setting forth the number of bank 
 bills stolen, or the denomination of each par- 
 ticular bill. Com. V. Grimes, 10 lb. 470. 
 
 265. In Alabama, an indictment for steal- 
 ing any horse, mare, gelding, colt, tilly, or 
 mule, is sufficient, without alleging the value 
 of the animal taken ; the Code making such 
 theft grand larceny irrespective of the value. 
 Maynard v. State, 46 Ala. 85. 
 
 256. Where the punishment for larceny 
 from the person does not dej^end upon the 
 amount stolen, the indictment need not 
 allege the value of the property, or describe 
 it with particularity. Com. v. McDonald, 5 
 Cush. 305. 
 
 267. Under the act of New York of 1862 
 (ch. 374, § 2), providing that " whenever 
 any larceny shall be committed by stealing, 
 taking, and carrying away from the person 
 of another, the offender may be punished as 
 for grand larceny, although the value of the 
 property taken shall be less than twenty-five 
 dollars," an indictment is good as a charge 
 for grand larceny, although it does not aver 
 that the property was stolen in the night 
 time, nor that it was of a value exceeding 
 twenty-five dollars. People v. Fallon, 6 
 Parker, 256 ; affi'd 1 N. Y. Ct. of App. Decis. 
 83. 
 
 268. Averment of place of oflFense. In 
 Mississippi, when goods are stolen in one 
 county and carried into another county, an 
 indictment in the latter county will be 
 quashed for want of jurisdiction, unless it 
 charge that the larceny was committed in that 
 county, the possession of the stolen good<j 
 l)y the thief being a larceny in every county 
 into which he carries them. Johnson v. 
 State, 47 Miss. 671; s. c. 1 Green's Crim. 
 Reps. 341. In Nevada, it has been held that 
 the indictment in such case must charge 
 that the offense was committed in the latter 
 county, or state that the bringing of the
 
 396 
 
 LAECENY. 
 
 Indictment. 
 
 property iuto that county was felonious. 
 State V. Brown, 8 Nev. 308 ; s. c. 1 Green's 
 Crim. Reps. 343. 
 
 269. An indictment for bringing stolen 
 property from another State must allege that 
 the possession of the property in the State to 
 which it was taken was felonious. State v. 
 Levy, 3 Stew. 123. 
 
 270. A., while traveling on the cars fr(jm 
 Detroit to Chicago, became acquainted with 
 B., C. and D. Wliile the train was in the 
 State of Indiana, B, made a bet with A. ; 
 whereupon A. deposited the amount of his 
 het in money with C, and -B. deposited an 
 express package, which afterward proved to 
 be nothing but waste paper, though marked 
 on the back $380. A. demanded his money 
 from C, which he refused to return. B., C. 
 and D., being tried and convicted of larceny 
 in Chicago, the judgment was affii-med. 
 Stinson v. People, 43 111. 397. 
 
 271. Charging attempt to commit of- 
 fense. An indictment for an attempt to 
 commit larceny must state facts showing the 
 manner in which the attempt was made. 
 State V. Brannan, 3 Nev. 238. 
 
 272. An indictment for an attempt to 
 commit larceny is sufficient which charges 
 that the accused took the impression of a 
 key, and prepared a false key from that im- 
 pression, to unlock the door of A.'s store, | 
 with the intention, through the agency of 
 B., to break and enter the store and to steal. 
 Griffin v. State, 26 Ga. 493. 
 
 273. An indictment for attempting to 
 commit larceny from the person, which 
 alleges that the defendant " did attempt to 
 steal, take, and carry away from the person 
 of F., the money, goods, and chattels of the 
 said F., then and there being in the posses- 
 sion and upon the person of the said F.," 
 &c., and did, " with intent then and there to 
 commit the crime of larceny from the person 
 of the said F., thrust, insert, and place his 
 hand into the pocket of said F.," sufficiently 
 charges that the pocket into which the 
 defendant thrust his hand was on the person 
 of F. Com. V. Sherman, 105 Mass. 169. 
 
 274. Charging second offense. An in- 
 dictment which cliarges the prisoner with a 
 second offense of petit larceuy must state 
 
 facts to show that he had, prior to the last 
 offense, been convicted of the jDrevious 
 offense; and if the conviction is alleged to 
 have taken place before a court of limited 
 jurisdiction, the indictment must show that 
 the court had jurisdiction as well of the 
 subject-matter as of the person of the pris- 
 oner. People V. Powers, 2 Seld. 50. 
 
 275. In New York, an indictment for 
 petit larceny charged as a second offense is 
 good which avers generally that the Court 
 of Special Sessions, before which the de- 
 fendant was convicted, had full and com- 
 petent power and authority in the premises 
 to try and convict the defendant, without 
 setting forth the facts showing jurisdiction, 
 the omission to state such facts being only 
 a formal defect, which is cured by the stat- 
 ute of jeofails. People v. Golden, 3 Parker, 
 330. 
 
 276. An indictment for petit larceny as a 
 second offense is sufficient, although it only 
 charges that the defendant was convicted of 
 the first offense, without alleging a judgment 
 or sentence, or naming the person or prop- 
 erty which the first offense concerned. But 
 not if the indictment omits to charge that 
 the defendant had been jjardoned or othei'- 
 wise discharged from the first conviction 
 before the commission of the second oflfeuse. 
 Stevens v. People, 1 Hill, 261. The statute 
 of New York declaring a second offense of 
 petit larceny to be punishable in the State 
 prison does not apply to a case in which the 
 first conviction took place in another State. 
 People V. Caesar, 1 Parker, 645. 
 
 277. In Virginia, an indictment for a 
 second offense of larceny, which charged a 
 former conviction and punishment for a like 
 offense, but did not state that the court in 
 which the first offense was tried had juris- 
 diction of the same, or that the former con- 
 viction remained in force, or that such 
 conviction ajipeared of record, or that the 
 prisoner was the pei'sou who was formerly 
 convicted, was held sufficient after verdict. 
 Stroup's Case, 1 Rob. 754. 
 
 278. Where an indictment for petit lar- 
 ceny described it as a second offense, and 
 alleged a previous conviction of forgery, it 
 was held that the defendant misjht be con-
 
 LARCENY. 
 
 397 
 
 Indictment. 
 
 victed of the larceny as a first offense. 
 Palmer v. People, 5 Hill, 427. 
 
 279. Form of an indictment charging 
 petit larceny as a second offense. People v. 
 Caesar, 1 Parker, 645. 
 
 280. Charging ofiense in different ways. 
 Where an indictment containing several 
 counts charges the same larceny in different 
 ways, the prosecutor will not be compelled 
 to elect on which count he will proceed ; but 
 it is otherwise where the evidence tends to 
 show that distinct larcenies are embraced in 
 the indictment. Engleman v. State, 2 
 Carter, 91. 
 
 281. An indictment for larceny charging 
 the defendant with " stealing, taking, and 
 leading or driving away " animals stolen, is 
 not bad as charging the offense in the dis- 
 junctive. People V. Smith, 15 Cal. 408. 
 
 282. A grand juror's complaint charged 
 that A., at &c., on the 21st day of November, 
 1857, with force and arms, one buffalo robe 
 of the value of eight dollars, of the goods 
 and chattels of B., of, &c., feloniously did 
 steal, &c., and that said A., at, &c., on the 
 21st day of November, 1857, did theu'and 
 there, feloniously steal, &c., one other buf- 
 falo robe of the value of eight dollars of the 
 goods and chattels of B., against the peace 
 and contrary to the statute. Held not a 
 ground for airest of judgment on account 
 of duplicity. State v. Holmes, 28 Conn. 
 230. The prosecution may elect to proceed 
 for part of several articles charged in the 
 indictment to have been stolen. State v. 
 Donnegan, 34 Mo. 67. 
 
 283. Averment of the stealing of arti- 
 cles belonging to different persons. The 
 spoils of a single larcenous act may all be 
 included in one count, and the indictment is 
 not thereby bad for duplicity. State v. 
 Stevens, 62 Maine, 284 ; s. c. 2 Green's Crim. 
 Reps. 481 ; and this may be done, notwith- 
 standing the articles stolen are the property 
 of different persons. State v. Henncssy, 23 
 Ohio, N. S. 339 ; s. c. 2 Green's Crim. Reps. 
 541; Lorton v. State, 7 Mo. 55; State v. 
 Morphin, 37 lb. 373; State v. Nelson, 29 
 Maine, 329; Bell v. State, 42 Ind. 335; or 
 there may be as many different indictments 
 against the thief as there are owners of tlie 
 
 property. State v. Thurston, 2 McMulL 
 382; Com. v. Sullivan, 104 Mass. 552; State 
 V, Lambert, 9 Nev. 321. 
 
 284. Counts for horse stealing, and for 
 stealing other property, may be joined in 
 the same indictment. Barton v. State, 18 
 Ohio, 221. An indictment which charges 
 the stealing of a horse of the value of one 
 hundred dollars, a sleigh of the value of 
 fifty dollars, and a harness of the value of 
 thirty dollars, is not bad for duplicity. 
 State V. Snyder, 50 New Hamp. 150. 
 
 285. The following indictment contain- 
 ing a single count, was held not bad for 
 duplicity: That on the 9th of Septem- 
 ber, 1866, the defendant feloniously did 
 steal one horse of the value of three hun- 
 dred dollars, one buggy wagon of the value 
 of one hundred and flity dollars, and one 
 harness of the value of fifty dollars, the 
 proper goods and chattels of a person 
 named. State v. Cameron, 40 Vt. 555. 
 
 286. Charging distinct offenses. Dis- 
 tinct larcenies may be presented in different 
 counts of one indictment ; and whether the 
 prosecution shall elect between them is in 
 the discretion of the court and not a subject 
 of exception. Com. v.SuUivan, 104 Mass.552. 
 
 287. An indictment may charge the de- 
 fendant with larceny, and with receiving the 
 same goods knowing them to have been 
 stolen. State v. Stimpson, 45 Maine, 608 ; 
 Hampton v. State, 8 Humph. 69 ; Keefer v. 
 State, 4 Ind. 246; State v. Crosby, 4 La. 
 An. 434 ; State v. McLane, lb. 435. 
 
 288. In Massachusetts, distinct larcenies, 
 and also distinct offenses of receiving stolen 
 goods may be joined in the same indictment 
 in different counts; and the ordering of 
 separate trials is in the discretion of the 
 court. Com. v. Hills, 10 Cush. 530. 
 
 289. An indictment which alleges that 
 the defendant broke and entered a shop 
 with intent to commit a larceny, and did 
 then and there commit a larceny, is not bad 
 for duplicity. Com. v. Tuck, 20 Pick. 356 ; 
 and the same if true of au indictment 
 which charges the breaking and entering a 
 dwelling-house in the night, and stealing 
 therein. Com. v. Hope, 22 Pick. 1 ; State 
 V. Squires, 11 New Hamp. 38.
 
 398 
 
 LAKCENY. 
 
 Indictment. 
 
 Evidence. 
 
 Proof of Taking. 
 
 290. An indictment charged the defend 
 ants with "burglary committed as follows," 
 and then stated facts constituting the crime 
 of larceny. Held good as an indictment for 
 the latter offense. State v. Coon, 18 Minn. 
 518. 
 
 291. An indictment charging that the de- 
 fendant did embezzle, steal, take, and carry 
 away, certain goods, is not bad for duplicity. 
 The word embezzle may be rejected as sur- 
 plusage. Com. V. Simpson, 9 Mete. 138. 
 
 292. Material and immaterial aver- 
 ments. An indictment which alleges that 
 the defendant " feloniously did steal, take, 
 and carry " the property, omitting the word 
 "away '' is insufficient, either as against the 
 thief or the receiver. Com. v. Adams, 7 
 Gray, 43. 
 
 293. An indictment for the larceny of 
 bank notes must charge that the offense 
 was committed feloniously, and state to 
 whom the notes belonged, or allege that he 
 is unknown. Barker v. Com. 2 Va. Cas. 
 123. 
 
 294. The word '' steal " is not necessary 
 in an indictment for larceny. Damewood 
 V. State, 1 How. Miss. 262; Engleman v. 
 State, 2 Carter, 91 ; and the employment of 
 the term "stal " for steal, in the indictment, 
 is not cause to arrest the judgment. Wills 
 T. State, 4 Blackf. 457. 
 
 295. It is not ground of demurrer to an 
 indictment for larceny, that the property 
 stolen is alleged to be of the value of a spec- 
 ified number of dollars, omitting the words 
 "lawful money of the United States." 
 People V. Winkler, 9 Cal. 234. 
 
 296. An indictment for stealing a cow is 
 sufficient which charges that the defendant 
 " did steal, take and carry away " the cow, 
 omitting the words " lead or drive aw'ay." 
 People V. Strong, 46 Cal. 302. 
 
 297. Conclusion. As the stealing of a 
 promissory note is not an offense at common 
 law, an indictment for the larceny of it 
 must conclude "contrary to the form of the 
 statute." People v. Cook, 2 Parker, 12. 
 
 7. Evidence. ^^ 
 
 (a) Proof of taking. 
 
 298. Materiality. On the trial of an in- 
 
 dictment for larceny, a taking as well as 
 carrying away must be shown. Pennsyl- 
 vania V. Campbell, Addis. 232. 
 
 299. On a trial for steahng two hogs, the 
 property of W., it was proved that the two 
 hogs of W. were missing, and that fifty 
 pounds of pork were found in the possession 
 of the defendant, which it was claimed from 
 certain marks was the meat of the lost 
 hogs. Evidence was offered by the defend- 
 ant to the effect that he bought a quantity 
 of pork shortly previous to the loss of W.'s 
 hogs. The judge charged the jury that if 
 they were reasonably satisfied that the meat 
 found in the possession of the defendant 
 was the property of W., it was their duty to 
 find the prisoner guilty. Held that as it was 
 necessary to show that a larceny had been 
 committed before attaching importance to 
 the identification of the property, the in- 
 struction was erroneous. State v. McGowan, 
 1 Rich. N. S. 14. 
 
 300. Taking from maiL To justify a 
 conviction on a trial for stealing letters and 
 packages from the mail, the jury must be 
 satisfied not only that the mail has been vio- 
 lated, but that the letters and packages in 
 question had been in and were taken from 
 the mail. The most satisfactory evidence 
 that a letter or package was put into the 
 mail for transmission, is that of the person 
 who deposited it in the post office; and the 
 best evidence of its loss, is that of the person 
 to whom it was addressed. U. S. v. Crow, 
 1 Bond, 51. 
 
 301. Proof of substance of charge suffi- 
 cient. An indictment which charges the 
 stealing and carrying away of a horse, will 
 be maintained by proof that the defendant 
 rode, drove or led the horse away. Baldwin 
 V. People, 1 Scam. 304. 
 
 302. In Alabama, it was held on the trial 
 of an indictment for larceny, competent for 
 the prosecution to prove that the goods were 
 stolen by the defendant in another State 
 and brought by him into that State. Mur- 
 ray V. State, 18 Ala. 727. 
 
 303. But proof of embezzlement will not 
 support an indictment for larceny, notwith- 
 standing the statute declares that a person 
 who embezzles money or goods, shall be
 
 LAKCENY. 
 
 399 
 
 Evidence. 
 
 Proof of Taking. Evidence as to Property Taken. 
 
 held to have committed larceny. Com. v. 
 Simpson, 9 Mete. 138; Com. v. King, 9 
 Cush. 284; Fulton v. State, 8 Eng. 168. 
 Proof, however, of burglarj', on the trial of 
 an indictment for larceny, does not entitle 
 the defendant to an acquittal. Wyatt v. 
 State, 1 Blackf. 257. 
 
 304. An indictment for larceny will not 
 be supported by proof that the defendant 
 received or jiurchased the goods, knowing 
 them to be stolen, although by statute the 
 punishment for the offense proved is the 
 same with that charged. Ross v. State, 1 
 Blackf. 390. . 
 
 305. Uncorroborated testimony of pros- 
 ecutor. It is doubtful whether on the trial 
 of an indictment for larceny, the defendant 
 ought ever to be convicted on the uncorrob- 
 orated testimony of a prosecutor who claims 
 the property in question, to which the de- 
 fendant also claims title, where the transac- 
 tion was not attended with any of the usual 
 concomitants of larceny or concealment. 
 State V. Kane, 1 McCord, 482. 
 
 306. Prosecution compelled to elect. 
 When the evidence tends to prove distinct 
 larcenies, the prosecution may be compelled 
 to elect upon which of them they will rely. 
 Engleman v. State, 2 Carter, 91. 
 
 307. Question for jury. The question 
 whether the severance from the freehold, 
 and asportation of property alleged to have 
 been stolen, were so separated by time as 
 not to constitute one transaction, is to be 
 deteiTQined by the jury. State v. Berryman, 
 8 Nev. 263 ; s. c. 1 Green's Crim. Reps. 335. 
 
 (5) Evidence as to property taken, 
 
 308. Proof of stealing more than 
 charged. An indictment charged the de- 
 fendant "vvith stealing two horses, and it was 
 proved that he also stole saddles and bridles. 
 Held that the variance was immaterial. 
 Jackson v. State, 14 Ind. 327. 
 
 309. Proof as to one of several articles 
 charged to have been stolen. Under an 
 indictment for larceny, or for receiving 
 stolen goods, charging the stealing or re- 
 ceiving of several articles, the defendant 
 may be found guilty, although the offense is 
 
 proved only in respect to a single article. 
 People V, Wiley, 3 Hill, 194. 
 
 310. In Virginia, where the indictment 
 was for stealing one gelding, of a dark bay 
 color, and also two horses, worth $75 each, 
 and it appeared from the record of the ex- 
 amining court that the defendant had been 
 examined for stealing a dark bay horse, and 
 also two horses, halter-chain and collar, 
 worth $150, it was held that the variance 
 was not material. Halkem v. Com. 2 Va, 
 Cas. 4. 
 
 311. But in Alabama, where an indict- 
 ment charged the stealing of a bank note 
 and other articles, and there was a variance 
 between the indictment and the proof as to 
 the bank note, and the defendant would not 
 consent to an amendment of the indictment 
 so as to correctly describe the bank note, the 
 court refused to permit a nolle prosequi to be 
 entered. State v. Kreps, 8 Ala. 591. 
 
 312. Slight variance not regarded. An 
 indictment charging the larceny of treasury 
 notes, was held sustained by proof that the 
 property stolen was greenbacks, Hickey v. 
 State, 23 Ind. 31. 
 
 313. Proof that a trunk, containing money, 
 was taken and carried away from a house, 
 will support a charge of taking and carrying 
 away money. Berry v. State, 10 Ga. 511. 
 
 314. Evidence that the defendant stole a 
 mare, or gelding, will suppoi't an indictment 
 for stealing a horse. Bald win v. People, 1 
 Scam. 304; State v. Donnegan, 34 Mo. 67. 
 Proof of stealing a lamb w ill support an in- 
 dictment for stealing sheep. State v. Trott, 
 2 Harr. 561 ; and an indictment for stealing 
 a hog will be supported by proof that the 
 defendant stole a shout. State v. Godet, 7 
 Ired. 310. 
 
 315. An indictment for stealing a " bull- 
 tongue," was held to be supported by proof 
 that the defendant stole a particular kind of 
 plowshare, usually known in the ueighbor- 
 borhood in which lie resided by that name. 
 State V. Clark, 8 Ired. 226. 
 
 316. Where an indictment for larceny de- 
 scribed the property stolen as a silver tea- 
 pot and a silver coffee-pot, and it was 
 proved that the articles stolen were plated 
 ware, consisting of only about one-twenty-
 
 400 
 
 LAKCENY 
 
 Evidence. 
 
 Evidence as to Property Taken. Proof of Place of Offense. 
 
 fifth part silver, it was held that the va- 
 riance was not material. Goodall v. State, 
 23 Ohio, N. S. 20-3; s. c. 1 Green's Crim. 
 Reps. 671. 
 
 317. Coin alleged to be stolen is not capa- 
 ble of the same description and identifica- 
 tion as other property, and therefore the 
 same exactness in proof is not required. The 
 jury must determine -whether the coin 
 proved to have been stolen is the same kind 
 of coin as that charged in the indictment ; 
 and when several kinds are stated in the in- 
 dictment, the proof should show that one or 
 more of such kinds were among the kinds of 
 coin stolen. People v. Linn, 23 Cal. 150. 
 
 318. Under an indictment charging that 
 the defendant stole gold and silver coin of 
 the value of two thousand dollars, and bank 
 notes of the value of five thousand dollars, 
 the denomination and nature of the coin 
 need not be proved, nor the date of the 
 bank notes, the bank that issued them, or 
 the person to whom they were payable. 
 Berry V. State, 10 Ga. 511. 
 
 319. When description is essential it 
 must be proved as laid. Where an ani- 
 mal stolen is described by color and sex, the 
 description must be supported by the proof. 
 Rowell V. Small, 30 Maine, 39. Under an 
 indictment for stealing a steer, there cannot 
 be a conviction upon proof of stealing a 
 bull. State v. Royster, 65 K C. 539. But 
 under an indictment describing the animal 
 as a bay, it was held suflScient to prove that 
 it was a bay or red sorrel. Turner v. State, 
 3 Heisk. 453 ; s. c. 1 Green's Crim. Reps. 
 353. 
 
 320. An indictment for larceny, which al- 
 leges the stealing of an animal, is not sup- 
 ported by proof that the animal was dead 
 when stolen. Com. v. Beaman, 8 Gray, 497. 
 
 321. An indictment for stealing l)ank bills 
 will not be supported by proof that the de- 
 fendant stole the orders of a railroad com- 
 pany on its treasurer. Grummond v. State, 
 10 Ohio, 510. 
 
 322. Where the indictment charges the 
 stealing of a plow, and it is proved that 
 the defendant stole a plowshare, the va- 
 riance will be fatal. State v. Cockfield, 15 
 Rich. 316. 
 
 323. The defendant was charged with 
 stealing a shovel-plow, and it Avas proved 
 that he stole the rim of a shovel-plow. 
 Held that it should have been left to the 
 jury to determine whether the thing stolen 
 was, according to common understanding, a 
 shovel-plow, as laid in the indictment. 
 State V. Sansom, 3 Brev. 5, 
 
 324. The defendant was convicted of 
 stealing a white woolen sheet, ujDon i^roof 
 that he stole a blanket made of cotton and 
 woolen — the warp being cotton and the fill- 
 ing woolen. Held, that the conviction could 
 not be sustained. Alkenback v. People, 1 
 Denio, 80. 
 
 325. An indictment for stealing '' one pair 
 of boots " is not supported by proof that the 
 defendant stole two boots unmatched, being 
 the right boot of two pairs. State v. Harris, 
 3 Barring. 559. 
 
 326. To support an indictment for stealing 
 two barrels of turpentine, it must be proved 
 that the turpentine was in barrels when it 
 was stolen. State v. Moore, 11 Ired. 70. 
 
 (c) Proof of jjlace of offense. 
 
 327. Exact proof not required. Simple 
 larceny being an offense not local in its na- 
 ture, the place of its commission is not ma- 
 terial, if in the county alleged. Where the 
 indictment charged a larceny in a building 
 in the city of B., in the county of S., and the 
 jjroof was of larceny in a building in the 
 city of C, in the same county, it was held 
 that the defendant might be convicted of 
 simple larceny, but not of larceny in a build- 
 ing. Com. V. Lavery, 101 Mass. 307. 
 
 328. An indictment for larceny charged 
 that the oflfense was committed in a vessel in 
 the First Ward of the city of New York. 
 It was proved that the vessel was lying in 
 the river at a wharf in the TMrd Waixl. 
 Held, that the variance w'as not material. 
 People V. Honeyman, 3 Denio, 121. 
 
 329. Where the indictment was for larceny 
 in " a certain building called and being a 
 shop," and the building was proved to be a 
 store, it was held that the variance was not 
 material. Com. v. Riggs, 14 Gray, 376. And 
 see Com. v. Annis, 15 Gray, 197. 
 
 330. Where an indictment for larceny al-
 
 LAECENY. 
 
 401 
 
 Evidence. 
 
 Proof of Place of Offense. Proof of Ownership of Property. 
 
 leged that the defendant had been convicted 
 of similar thefts on three former occasions, 
 " at the Municipal Court, begun and holden 
 at Portland," and it was proved that these 
 convictions were before "the Municipal 
 Court for the City of Portland," it was held 
 there was no variance. State v. Eegan, 63 
 Maine, 127. 
 
 331. But an indictment for larceny from a 
 house is not sustained by proof of stealing 
 from a tent. Callahan v. State, 41 Texas, 
 43 ; nor by proof that the stolen goods were 
 taken while hanging outside a store door. 
 Martinez v. State, lb. 126. 
 
 332. In an indictment for stealing letters, 
 the description of the termini between 
 which letters are sent by the post is ma- 
 terial, and must be proved as laid. U. S. v. 
 Foye, 1 Curtis C. C. 364. 
 
 {d) Proof of owner ship of property. 
 
 333. How made. It is not necessary that 
 the person whose goods are charged to have 
 been stolen should swear that they belonged 
 to him. That fact may be proved by others. 
 Lawrence v. State, 4 Yerg. 145. 
 
 334. A written receipt for the purchase- 
 money of stolen goods, in the possession of 
 the alleged owner, is competent evidence to 
 show title or ownership. If it appear from 
 the receipt that the money was paid by 
 another person, as agent of the alleged 
 owner, parol evidence is admissible to prove 
 that the contract was made by the agent for 
 his principal. Oakley v. State, 40 Ala. 372. 
 
 335. Where stolen bank notes have been 
 found in a place designated by the prisoner, 
 and handed to the jjerson from whom they 
 are alleged to have been stolen, the prosecu- 
 tion cannot prove that the latter " received 
 them as his own ;" nor does the death of the 
 alleged owner before the trial render such 
 evidence proper. Sayres v. State, 30 Ala. 15. 
 
 338. The testimony of a consignee that 
 goods were sent through a carrier to him is 
 sufficient evidence that the goods, while in 
 the hands of the carrier, are in the construc- 
 tive possession of the consignee, and may be 
 submitted to the jury in support of an in- 
 dictment charging larceny of the property 
 26 
 
 of the consignee. Com. v. Sullivan, 104 
 Mass. 552. 
 
 337. Proof of special ownership suffi- 
 cient. The goods alleged to have been stolen 
 may be proved to be the absolute or special 
 property of him who is charged to be the 
 owner. State v. Furlong, 19 Maine, 225. 
 
 338. Where it was proved that the stolen 
 property was taken from the possession of 
 the alleged owner, but the evidence was con- 
 flicting as to the character of his possession, 
 and the defendant requested the court to in- 
 struct the jury, "that if they were in any 
 doubt whether the property belonged to him 
 or to the government, they must give the de 
 fendant the benefit of the doubt, and acquit 
 him," which charge the court refused to 
 give without the qualification, " that if he 
 had possession of the property as agent or \ 
 bailee, they should convict the defendant,'^ 
 
 it was held that there was no error. Miller 
 V. State, 40 Ala. 54. 
 
 339. An indictment for stealing a watch 
 alleged that it was the property of A. It 
 was proved that B. was the general owner 
 of the watch, but that he had exchanged it 
 with A. for a few weeks, and that it was 
 stolen while in A.'s possession. Held^ that 
 as A. had a special property in the watch, 
 there was no variance. Yates v. State, 10 
 Yerg. 549. 
 
 340. Proof that the alleged owner of the 
 goods stolen bought them at a sheriflf's sale 
 subject to a mortgage after condition 
 broken, and that he had the rightful pos- 
 session, will support an allegation of owner- 
 ship. Robinson v. State, 1 Kelly, 563. 
 
 341. Occupancy of a house is sufficient 
 evidence of ownership to sustain the allega- 
 tion in an indictment for larceny, that the 
 prisoner entered such person's dwelling- 
 house. Markham v. State, 25 Ga. 52. 
 
 342. An indictment for the larceny of a 
 box of tobacco charged that it was taken 
 from the agent of the steamship company. 
 It was proved that it was taken from the 
 steamer, and had never been in the posses- 
 sion of the agent. Held that the variance 
 was fatal. Radford v. State, 35 Texas, 15. 
 
 343. Property held in trust. Proof that 
 the person alleged to be the owner held the
 
 402 
 
 LAECENY. 
 
 Evidence. 
 
 Proof of Ownership of Property. 
 
 / 
 
 property for the purpose of conveyance, or 
 in trust for the benefit of another, will sup- 
 port an allegation of ownership in an 
 inilictment for larceny. State v. Somerville, 
 31 Maine, 14. 
 
 344. Where an indictment described the 
 property stolen as the goods and chattels 
 of A., and it was proved that they were 
 owned by B., and that A. had the custody of 
 them for B., with authority to sell them 
 and account to B. for the proceeds, it was 
 held no variance. People v. Smith, 1 
 Parker, 829. 
 
 345. The allegation of ownership, in a 
 complaint for an alleged larceny of goods, 
 is sustained, when it is shown that the com- 
 plainant at the time the offense was com- 
 mitted, held jjossession of the goods under 
 a loan from, or contract with the owner. 
 State V. Pettis, 63 Maine, 124, Appleton, C. 
 J., and Barrows, J., dissenting. 
 
 346. Property of married woman. On a 
 trial for larceny, the ownership of the prop- 
 erty stolen must be proved as laid. Jones v. 
 Com. 17 Gratt. 563. And if the alleged 
 owner was a married woman at the time of 
 the commission of the offense, it is error, 
 and the prisoner must be acquitted. Hughes 
 V. Com. lb. 565. 
 
 347. Under an indictment for larceny in 
 stealing the shawl of C, it was proved that 
 the shawl was the property of the wife of C, 
 and was given to her by her mother after 
 marriage. Held that the variance was fatal. 
 Stevens v. State, 44 Ind. 469 ; s. c. 2 Green's 
 Crim. Reps. 717. 
 
 348. An indictment charged the stealing 
 of a title bond, the property of A. It was 
 proved that the bond was executed to A. 
 and B., who were husband and wife ; that 
 B. had died leaving one child, and that the 
 bond was taken from the possession of A. 
 Held that the variance was immaterial. Dig- 
 nowitty v. State, 17 Texas, 521. 
 
 349. An information for stealing a cow 
 alleged that it was the property of A. It 
 was proved that the cow, which was running 
 at large when stolen, was owned by A.'s 
 mother-in-law, who was old and nearly blind, 
 and that A. had the entire management and 
 control of her joroperty. Held that the vari- 
 
 ance was ground for a new trial. State v. 
 Washington, 15 Rich. 39. 
 
 350. Property of corporation. On the 
 trial of an indictment for stealing the prop- 
 erty of a corporation it is sufficient to prove 
 that the company known by the name given 
 in the indictment is a corporation de facto, 
 doing business as such. People v. Barric, 
 49 Cal. 342; Smith v. State, 28 Ind. 821. 
 
 351. Joint ownership. An indictment 
 for larceny, alleging that the goods stolen 
 were the property of A., is not sustained by 
 proof that they are the property of A. and 
 B., who are partners, and were stolen while 
 in A.'s possession. Com. v. Trimmer, 1 
 Mass. 476; Hogg v. State, 3 Blackf 226; 
 State V. McCoy, 14 New Ham p. 364 ; State 
 V. Owens, 10 Rich. 169; State v. London, 3 
 Rich. N. S. 230 ; State v. Burgess, 74 N. C. 
 272 ; and the same is true where the indict- 
 ment charges that the property stolen be- 
 longed to two, and the proof is, that it be- 
 longed only to one. Brown v. State, 85 
 Texas, 691. 
 
 352. In Massachusetts, under the statute 
 (Genl. Stats, ch. 172, § 12), if the indictment 
 charge the stealing of the property of A., 
 and the proof is, that A. and B. own the 
 property as tenants in common, the variance 
 is not material. Com. v. Arrance, 5 Allen, 
 517. 
 
 353. When stolen goods are alleged to have 
 belonged to three executors, a conviction 
 cannot be had on proof that the ownership 
 was in two of them only. Parmer v. State, 
 41 Ala. 416. 
 
 354. Name of owner. An indictment for 
 larceny charged the ownership of the prop- 
 erty to be in A. B., and it was proved that 
 it was in A. B., Junior. Held that the vari- 
 ance was immaterial. State v. Grant, 23 
 Maine, 171. 
 
 355. Where an indictment alleged that 
 the property stolen belonged to Elizabeth 
 Moore, and it was proved to be the property 
 of Betsey Moore, it was held that the jury 
 must decide whether the person so de- 
 scribed was known by both names. State v. 
 Godet, 7 Ired. 210. 
 
 356. The defendant was charged in the 
 indictment with stealing the goods of J. H.
 
 LARCENY. 
 
 403 
 
 Evidence. 
 
 Proof of Ownership of Property. Proof of Value of Property. 
 
 Dargin. It was proved that his name was 
 John H. Dargin, but that he was frequently 
 called J. H. Dargin, and signed his name J. 
 H. Dargin. Held sufficient. Thompson v. 
 State, 48 Ala. 165. 
 
 357. But where an indictment charged 
 the stealing of Stephen Daniel's hog, and it 
 was proved that the defendant stole Philip 
 Daniel's hog, it was held that the variance 
 was fatal. Hensley v. Com. 1 Bush, Ky. 
 11. 
 
 (e) Proof of value of property. 
 
 358. Genuineness of bank note must be 
 shown. On a trial for stealing a bank note, 
 it must be proved that the note was genuine. 
 State V. Dobson, 3 Harring. 503; State v. 
 Smart, 4 Rich. 356. 
 
 359. Genuineness of bank bills, how 
 proved. Under an indictment for stealing 
 bank bills, proof that similar bills were re- 
 ceived and passed away in the ordinary 
 course of business, as a part of the currency 
 of the country, would be presumptive evi- 
 dence of the existence of the bank, and of the 
 genuineness of the bills. Johnson v. Peo- 
 ple, 4 Denio, 364; Fallon v. People, 3 N. Y. 
 Ct. of Appeals Decis. 83; s. c. 2 Keyes, 
 145. 
 
 360. On the trial of an indictment for the 
 larceny of foreign bank bills, their genuine- 
 ness and value may be proved by the person 
 from whom they were stolen, to the effect 
 that he received and passed them in the 
 course of trade at their nominal value, and 
 by the testimony of others, that such bills 
 circulated as money in the community. 
 Corbett v. State, 31 Ala. 329. 
 
 361. On a trial for the larceny of bank 
 bills, the testimony of a person that he re- 
 ceived the bills in another State, and that 
 they were the bills of banks there, is admis- 
 sible to show that they were of value, and 
 current in the State where the trial is had. 
 Com. V. Stebbins, 8 Gray, 493. 
 
 362. Where on the trial of an indictment 
 for grand larceny, a witness testified that 
 the bills stolen " were of the currency or- 
 dinarily known as greenbacks," and that 
 they were of the denomination of one hun- 
 dred dollar bills of that currencv, it was 
 
 held that there was sufficient evidence of 
 the genuineness and value of the bills to 
 sustain the judgment. Remsen v. People, 
 57 Barb. 334. 
 
 363. Evidence that the defendant stole a 
 bank note, and passed it as genuine, is suffi- 
 cient proof that it was of value. Cummings 
 V. Com. 2 Va. Cas. 135. And on a trial for 
 stealing bank bills from M., it was held 
 proper to refuse to charge that the fact that 
 they had been paid to him for services and 
 received by him in payment, was no evi- 
 dence that they were genuine and of a cer- 
 tain value. The presumption in such case 
 is that the bills are genuine and of the 
 value they purport, and the onus of showing 
 the contrary is on the prisoner. People v. 
 Fallon, 6 Parker, 356 ; affi'd 2 K Y. Ct. of 
 App. Decis. 83. 
 
 364. Proof of genuineness of bank bills 
 presumed. Although evidence that bank 
 bills of certain denominations were taken, 
 without proof that they were genuine cir- 
 culating media, will not sustain a conviction 
 for larceny, yet where the bill of exceptions 
 does not contain all the evidence, it will be 
 presumed that proof of the genuineness was 
 given on the trial. The defendant was in- 
 dicted for robbery and stealing from the 
 person, a wallet of the value of one dollar, 
 twenty-four promissory notes (commonly 
 called bank bills), of national currency is- 
 sued by divers banking associations, to the 
 jurors unknown, of the value in the aggre- 
 gate of fifty-one dollars. All the proof there 
 was of the kind or amount of money was 
 that it consisted of three ten dollar bills, 
 four five dollar bills, and a one dollar bill. 
 There was no proof as to the person or cor- 
 poration by whom they were issued, or 
 whether they were genuine. Held that un- 
 less this defect was cured by the omission of 
 the prisoner's counsel to raise the objection 
 that there was not sufficient proof of the 
 value of the property to render the crime 
 grand larceny, it was fatal to the verdict. 
 Higgins V. People, 7 Lans. 110. 
 
 365. Proof of contents of bank bills. 
 On the trial of an indictment for the larceny 
 of bank bills, parol evidence of the contents 
 of the bills stolen is admissible, without
 
 404 
 
 LAKCENY. 
 
 Evidence. 
 
 Proof of Value of Property. Presumptive Evidence. 
 
 accounting for their non-production. Peo- 
 ple V. Ilolbrook, 18 Johns. 90. 
 
 366. Value of goods stolen, how proved. 
 On a trial for larceny, tlie stolen goods may 
 be exhibited to the owner before he is re- 
 quired to testify in relation to them ; and 
 when examined as a witness, he may refresh 
 his recollection as to the value of the articles 
 from a schedule made by his clerk in his 
 presence and under his direction and inspec- 
 tion. State V. Lull, 37 Maine, 246. 
 
 367. Where the punishment of the ofTense 
 charged (larceny from the person), did not 
 depend on the value of the articles taken, 
 it was held that proof of value was unnec- 
 essary, and that the jury might ascertain 
 Avhether or not the articles were of any 
 value by inspecting them. Com. v. Burke, 
 12 Allen, 182. 
 
 368. Where articles of different kinds are 
 alleged to have been stolen, and only the 
 collective value of the whole is averred, 
 there can be no conviction upon jiroof of 
 stealing either description of property alone. 
 This rule is also applicable to indictments 
 for robbery. Com. v. Cahill, 12 Allen, 540. 
 
 369. Value inferred. On a trial for steal- 
 ing a horse, the fact that the horse was of 
 some value, is sutKciently established by 
 proof of facts from which the jury may infer 
 it; as where the prisoner said he borrowed 
 the horse, and again that he stole it, it 
 might be inferred that the animal was of 
 some value, as no one would borrow or steal 
 a worthless horse ; so evidence that a wit- 
 ness went one hundred miles to hunt the 
 horse after he was stolen, would tend to 
 prove that he was of some value, as one 
 would hardly go so far for a worthless 
 horse ; so proof that the horse possessed the 
 power of locomotion, and traveled a hun- 
 dred miles and back again, would go to 
 establish the fact that he was of some value. 
 Houston V. State, 8 Eng. 66. 
 
 (/) Presumptive evidence. 
 
 370. Handwriting. On the trial of an 
 indictment for larceny committed by falsely 
 personating the owner of the property, evi- 
 dence that the signature to the receipt for 
 the articles was in the handwriting of the 
 
 defendant is admissible to identify him as 
 the person who had falsely personated the 
 owner and obtained the articles; and it is 
 no objection to its admissibility for this 
 purpose that it also proved him guilty of 
 another offense. Com. v. Lawless, 103 Mass. 
 425. 
 
 371. Foot-prints. An ofl5cer may lawfully 
 take off the boots or shoes of a person ar- 
 rested on a charge of larceny, and compare 
 them with foot-prints, and testify on the trial 
 as to the result of the comparison thus 
 made. State v. Graham, 74 K C. 646. 
 
 372. Possession by defendant of other 
 property. On a trial for larceny, it may be 
 proved that goods not described in the in- 
 dictment were taken at the same time and 
 found in the defendant's possession; and 
 the jury may take to their room, with the 
 goods alleged to have been stolen, the goods 
 that were taken at the same time. Com. v. 
 Riggs, 14 Gray, 376. 
 
 373. Where on a trial for grand larceny, 
 two of the notes which the defendant stole 
 which were of an amount sutficient to consti- 
 tute the offense, were described in the indict- 
 ment with particularity, it was held that 
 evidence as to other bills and coin not suffi- 
 ciently descriijed was admissible among the 
 circumstances attending the offense, though 
 a conviction could only be had as to the 
 property of which there was a sufficient de- 
 scription. Haskins v. People, 16 N. Y. 344. 
 See Quinlan v. People, 6 Parker, 9. 
 
 374. On the trial of an indictment for lar- 
 ceny, evidence having been introduced tend- 
 ing to show that the trunk in which the 
 stolen goods were found belonged to the 
 defendant, it was held that envelopes di- 
 rected to him, and a pardon found in the 
 trunk, were admissible as tending to prove 
 the defendant's connection with the goods. 
 State V. Lull, 37 Maine, 246. 
 
 375. Embarrassed circumstances of the 
 defendant. The fact that the defendant was 
 in embarrassed circumstances at the time of 
 the theft, is proper to be submitted to the 
 jury as a circumstance, taken in connection 
 with the other evidence, affording a pre- 
 sumption of his guilt. Bullock v. State, 1© 
 Ga. 46.
 
 LAECENY 
 
 405 
 
 Evidence. 
 
 Presumptive Evidence. 
 
 376. On a trial for stealing a horse and 
 buggy, a witness for the defendant testified 
 that the team which the defendant had was 
 bought by J. C. Held corupetent for the 
 prosecution to show that J. C. was on the 
 jail limits for debt, had failed in business 
 and had no visible means of support. State 
 V. Cameron, 40 Vt. 555. 
 
 377. Acts of defendant. On the trial of 
 an indictment for larceny in a hotel, the 
 prosecution may prove the presence of the 
 prisoner in the hotel on the night of the 
 larceny, and his acts and conduct there, and 
 the circumstances attending Ms arrest, as a 
 part of the res gestce, though these acts only 
 show an attempt to commit a felony on an- 
 other person in another jjart of the hotel. 
 Burr V. Com. 4 Graft. 534. 
 
 378. On a trial for stealing a bullock, it 
 is competent for the jury to consider the 
 fact that the ears and brand were cut off and 
 hid, in connection with other facts proved, 
 in order to determine whether the defendant 
 intended to steal the animal, the carcass of 
 which was found in his possession. People 
 V. Murphy, 47 Cal. 103. 
 
 379. Where on the trial of an indictment 
 for larceny, the evidence tended to prove 
 that the defendant, at the time the offense 
 was committed, was acting in concert with 
 a confederate, that he was in the entry of 
 his own house at an unusual hour of the 
 morning, with a light in his hand ; and that 
 he met the thief as he came down stairs, and 
 received from him a pocket-book containing 
 money which had been stolen from a lodger 
 in the house, it was held that he might be 
 convicted as a principal. Com. v. Lucas, 2 
 Allen, 170. 
 
 380. On a trial for larceny, the evidence 
 tended to show a conspiracy between the 
 prisoner and his accomplice, to steal the 
 prosecutor's watch, and afterwards to meet 
 and divide the profits. Held competent for 
 the prosecution to prove that the accomplice 
 having stolen the watch, afterwards paid 
 double toll at a bridge on the direct road to 
 the place at which he and the prisoner were 
 to meet. Scott v. State, 30 Ala. 503. 
 
 381. On a trial for the larceny of a hog, 
 the only witness in the case testified that he 
 
 heard the report of a gun in the woods, and 
 immediately afterward heard a hog squeal ; 
 that he saw the defendant chase the hog 
 about one hundred yards, and that he was 
 in the act of striking it with his gun when 
 the witness asked him what he was doing ; 
 and that he replied, he had shot at a squir- 
 rel and hit the hog, and wanted to see 
 where the hog was shot. Held that this did 
 not prove larceny. Wolf v. State, 41 Ala. 
 412. 
 
 382. Defendant pointing out stolen 
 property. When a person charged with 
 larceny, shortly after its commission, points 
 out the place where the stolen property is 
 concealed, he must be deemed the thief, un- 
 less he can reconcile his knowledge with 
 his innocence. Hudson v. State, 9 Yerg. 
 408. 
 
 383. On a trial for horse stealing, the pros- 
 ecution was allowed to prove that immedi- 
 ately after the arrest of the prisoner, one C. 
 conducted the witness to the horses. Held 
 that such proof was proper without showing 
 a conspiracy between the prisoner and C. to 
 steal the horses. Held also that it was 
 proper to show what was said by C. in re- 
 lation to the taking of the horses, in the 
 presence and hearing of the defendant, al- 
 though the latter remained silent. State v. 
 Bowers, 17 Iowa, 46. 
 
 384. Taking by defendant of other 
 goods. The admission of evidence on a 
 trial for grand larceny, that the accused 
 took a wagon on the same night from an- 
 other person, is not error, the taking of a 
 wagon under such circumstances being cor- 
 roborative of the main charge. Phillips v. 
 People, 57 Barb. 353 ; affd 42 N. Y. 200. 
 
 385. On the trial of an indictment for 
 stealing R.'s sheep, the testimony of W., 
 that his sheep and those of R. which herded 
 together, were driven oft' together by the 
 same parties, and sold together by the par- 
 ties driving them off, is admissible as tend- 
 ing to prove the larceny of R.'s sheep. Peo- 
 ple V. Robles, 34 Cal. 591. 
 
 386. On the trial of an indictment for 
 larceny in retaining jewelry which the pris- 
 oner had obtained from K. & Co., for the 
 purpose of showing it to a customer, with
 
 406 
 
 LAKCENY. 
 
 Evidence. 
 
 Presumptive Evidence. 
 
 the understanding that he should return the 
 articles unsold, and the money lor such as 
 ■were sold, the prosecution were allowed to 
 prove that the prisoner on the same day and 
 the day following that on which he pro- 
 cured the jewelry from K. & Co., in the 
 same way jirocured other jewelry from other 
 persons, Avhich he appropriated to his own 
 use. Held that the evidence was proper to 
 show felonious intent. Weyman v. People, 
 6 N. Y. Supm. N. S. 696, 
 
 387. Commission of distinct larceny. 
 It is error on a trial for larceny to permit the 
 prosecution to prove that just before the 
 larceny charged, the defendant committed 
 another larceny. Barton v. State, 18 Ohio, 
 221. 
 
 388. On the trial of an indictment for the 
 larceny of a watch, it is competent to prove 
 that the prisoner at another time stole a 
 cloak. Walker's Case, 1 Leigh, 574. 
 
 389. Association with horse thieves, or a 
 subsequent conspiracy to steal horses, cannot 
 be proved on a trial for horse stealing. 
 Cheny v. State, 7 Ohio, 222. 
 
 390. Flight of defendant. On the trial 
 of an indictment for larceny, the court 
 charged the jury, that if they believed that 
 the defendant fled because he was accused 
 of the crime, it was a suspicious circum- 
 stance, which it was for him to explain, but 
 that they must find that it was a flight; 
 that the burden of proof was on the prose- 
 cution ; and that even if the defendant could 
 not explain his flight, they need not neces- 
 sarily find him guilty. Com. v. Annis, 15 
 Gray, 197. 
 
 391. Return of defendant. Where on the 
 trial of an indictment for stealing letters and 
 packages from the mail, it appeared that 
 the defendant, when it was made known to 
 him that he was suspected, although in a 
 distant State, immediately returned to his 
 former residence and demanded a full in- 
 vestigation of the charge, it was held that 
 this circumstance together with proof of his 
 good character was entitled to the con- 
 sideration of the jury, unless the evidence 
 of guilt was clear beyond a reasonable doubt. 
 U. S. V. Crow, 1 Bond, 51. 
 
 392. Possession of stolen property. 
 
 According to the weight of authority, the 
 fact that stolen property is found soon after 
 the offense, in the possession of the accused, 
 {?, prima facie evidence of his guilt. People 
 V. Preston, 1 Wheeler's Crim. Cas. 41 ; State 
 v. Merrick, 19 Maine, 398; State v. Wolfi", 
 15 Mo. 168 ; State v. Bruin, 34 lb. 537 ; State 
 V. Gray, 37 lb. 463 ; State v. Williams, 54 
 lb. 170 ; State v. Smith, 2 Ired. 402 ; State v.. 
 Williams, 9 lb. 140; State v. Brewster, 7 
 Vt. 122; Hughes v. State, 8 Humph. 75; 
 Pennsylvania v. Myers, Addis. 320 ; State v. 
 Weston, 9 Conn. 527; Fuller v. State, 48 
 Ala. 273; Unger v. State, 43 Miss. 642; 
 State V. Millain, 3 Nev. 409 ; State v. Cassady, 
 12 Kansas, 550; Atzroth v. State, 10 Fla. 
 207; Wise v. State, 24 Ga. 31; State v.. 
 Turner, 65 N. C. 592. 
 
 393. Where the thief is found in posses- 
 sion of goods in a certain State, the pre- 
 sumption is that the larceny was committed 
 in that State. Simpson v. State, 4 Humph. 
 456. 
 
 394. Possession of stolen property must 
 have been recent. To justify the pre- 
 sumption that the possessor of stolen goods 
 is the thief, they must have been found in 
 his possession so recently after the theft 
 that it is reasonable to suppose he stole them. 
 State V. Graves, 72 K 0. 482. What is a 
 recent possession is a question for the jury. 
 Price V. Com. 21 Gratt. 846. 
 
 395. Where on a trial for larceny, it ap- 
 peared that the property was stolen the first 
 of November, and found in the possession 
 of the defendant in December, it was held 
 incumbent on him, in order to exonerate 
 himself from the imputation of guilt, to 
 account for his possession. Mondragon v. 
 State, 33 Texas, 480. 
 
 396. The presumption of guilt from the 
 possession of stolen property is not rebutted 
 by the lapse of two months between the 
 theft and the finding. State v. Bennett, 3 
 Brev. 514; s. c. 2 Const. R. 692. In Ten- 
 nessee, it was held that the possession of a 
 stolen horse two months after the theft 
 did not, even if unexplained, raise a con- 
 clusive presumption of the possessor's guilt. 
 Curtis V. State, 6 Cold. 9. 
 
 397. On the trial of an indictment for
 
 LARCENY. 
 
 407 
 
 Evidence. 
 
 Presumptive Evidence. 
 
 stealing a package of bank bills in December, 
 it was held thaf proof that two of the bills 
 (which were identified), each of the de- 
 nomination of one hundred dollars, were 
 in the defendant's possession, one of them 
 in March, and the other in April following, 
 might be submitted to the jury, as evidence 
 that he stole the whole package ; and that 
 even if none of the stolen bills had been 
 identified, yet testimony to prove that the 
 defendant, after the larceny, was in posses- 
 sion of two one hundred dollar bills, similar 
 to those that were stolen, and also a large 
 amount of other bank bills, and that he was 
 destitute of money before the larceny, was 
 admissible in connection with other ac- 
 companying circumstances indictative of 
 guilt. Com. V. Montgomery, 11 Mete. 534. 
 
 398. Possession of stolen property, how 
 regarded in the different States. In New 
 York, the exclusive possession of the whole, 
 or of some part of the stolen property by 
 the prisoner, recently after the theft, is suf- 
 ficient, when standing alone, to cast upon 
 him the burden of explaining now he came 
 by it, or of giving some explanation, and if 
 he fail to do so, to warrant the jury in 
 convicting him of the larceny ; or of burg- 
 lary, where that is the offense proved. 
 Knickerbocker V. People, 43 K Y. 177. 
 
 399. Where a larceny was committed 
 during the night, and the property was 
 found in the possession of the defendant at 
 half past three o'clock in the morning, it 
 was held not erroneous for the court to 
 refuse to charge the jury, that the mere 
 possession of the stolen property was not 
 prima facie evidence of the commission of 
 the larceny by the defendant. Dillon v. 
 People, 4 N. Y. Supm. N. S. 203 ; 8 lb. 670. 
 
 400. In North Carolina, the presumption 
 of guilt arising from the possession of stolen 
 property only applies when the evidence 
 tends to show that the property came into 
 the possession of the accused by his own act 
 or concurrence. Where, therefore, the de- 
 fendant and his two sons were indicted for 
 stealing tobacco in the night, and it was 
 proved that the stolen tobacco was found 
 the next day in the defendant's outhouse, 
 which was occupied by one of his negroes, 
 
 and in which the defendant kept his own 
 tobacco, and that he claimed to own the 
 tobacco so found, though proved to be the 
 stolen tobacco, it was held erroneous for the 
 court to instruct the jury that "the posses- 
 sion of the stolen tobacco raised a strong 
 presumption of the defendant's guilt." State 
 V. Smith, 3 Ired. 403. 
 
 401. In Indiana, it has been held that if, 
 on the trial of an indictment for larceny, the 
 jury find, from the evidence, that the prop- 
 erty described in the indictment, or some 
 portion of it, was stolen, and that it was 
 soon thereafter found in the possession of 
 the defendant, who failed to account for its 
 possession, or who gave a false account of 
 his possession, it is their duty to find him 
 guilty, unless such possession is explained 
 by the attending circumstances, or from his 
 character or habits of life they have a 
 reasonable doubt of his guilt. Smathers v. 
 State, 46 Ind. 447. See Tuberville v. State, 
 43 lb. 490 ; Jones v. State, 49 lb. 549. 
 
 402. On a trial for stealing a horse, the 
 court charged the jury as follows: " If the 
 projoerty stolen, or a portion of it, was found 
 in the possession of the defendant a short 
 time after the larceny, it would be your duty 
 to find the defendant guilty, unless he satis- 
 fies you, from the evidence, that he came by 
 the horse honestly." Held that the court 
 should have told the jury that they might 
 instead of that they should find the defend- 
 ant guilty; that the defendant was not 
 bound to satisfy the jury that he came hon- 
 estly by the property alleged to have been 
 stolen, but only to raise a reasonable doubt 
 whether he had not so come by it. Hall v. 
 State, 8 Ind. 439. See Engleman v. State, 2 
 lb. 91. 
 
 403. In Illinois, possession of property 
 soon after it is stolen is not of itself prima 
 facie evidence that it was stolen by the de- 
 fendant. Everything connected with the 
 possession must be considered, such as its 
 proximity to the larceny; whether it was 
 concealed ; whether the party admitted or 
 denied the possession ; whether other persons 
 had access to the place where it was found; 
 the demeanor of the accused, and his good 
 character. Conkwright v. People, 35 111.
 
 408 
 
 LAKCENY. 
 
 Evidence. 
 
 Presumptive Evidence. 
 
 204. If the j)ossession is recent after the 
 theft, and there are no attendant circum- 
 stances, or other evidence to rebut the pre- 
 sumption, or to create a reasonable doubt of 
 guilt, the mere fact of such possession will 
 warrant a conviction. Comfort v. People, 
 54 111. 404. 
 
 404. In Michigan, on a trial for larceny, 
 the jury were told that they might consider 
 as evidence of guilt the recent possession of 
 the stolen property by the defendant, coupled 
 with the fact that he was in a situation to 
 steal it ; that the circumstances did not ex- 
 plain how he came in -possession by any 
 honest course, and that he was in a position 
 to account for his possession, if it was an 
 honest one. Held proper. People v. Wilson, 
 30 Mich. 486. 
 
 405. In Wisconsin, on the trial of an in- 
 dictment for larceny, the court charged the 
 jury, that if within a short time after the 
 theft the stolen property was found in the 
 possession of the prisoner, the burden was 
 on him to show how he came by it, other- 
 wise, he might be presumed to have ob- 
 tained it feloniously; that such presump- 
 tion might be rebutted by the circumstances 
 proved ; that it was a presumption of fact, 
 and if the evidence led to a reasonable 
 doubt whether it was well founded, that 
 doubt would avail in favor of the accused. 
 Held correct. Crilley v. State, 30 Wis. 
 231. 
 
 406. Iir Alabama, it was held that a charge 
 to the jury on the trial of an indictment for 
 stealing a horse, that the recent possession 
 by the accused, of the property taken, un- 
 explained, was' evidence of guilt, was not 
 erroneous. Maynard v. State, 46 Ala. 85. 
 But^such possession is not conclusive evi- 
 dence of guilt.. Fisher v. State, lb. 717. 
 
 407. In Tennessee, where, on a trial for 
 larceny, nothing more is proved than that 
 the goods were stolen, and that they were 
 shortly thereafter found in the possession of 
 the defendant, the burden of proof is cast 
 upon him, and, if unexplained by positive 
 evidence, by the circumstances, or by the 
 character and habits of life of the defend- 
 ant, the presumption of his guilt becomes 
 conclusive. Hughes v. State, 8 Humph. 75 ; 
 
 State V. Brewster, 7 Vt. 118; State v. 
 Weston, 9 Conn. 527. 
 
 408. In California, a person cannot be con- 
 victed of larceny upon mere proof of pos- 
 session of the stolen property. People v. 
 Chambers, 18 Cal. 382. It is therefore error 
 in the court to instruct the jury that such 
 possession casts the burden of proof upon 
 the defendant. People v. Ah Ki, 20 lb. 177. 
 And the rule is not changed by the absence 
 of proof of good character. People v. Gass- 
 away, 28 Cal. 51. But proof of possession, 
 together with proof of other circumstances 
 indicative of guilt, would make a prima 
 facie case against the defendant, and there- 
 upon the burden of proof would be shifted 
 to the defendant. People v. Antonio, 27 
 Cal. 404 ; People v. Kelly, 28 lb. 423 ; Peo- 
 ple V. Gill, 45 lb. 285. 
 
 409. Although the possession of money of 
 the same kind as that which was recently 
 stolen is usually of slight, if any weight, as 
 evidence to prove the guilt of the person in 
 whose possession it is found, yet it is of 
 greater signiiicance when that kind of 
 money is rarely seen in circulation at that 
 place. People v. Getty, 49 Cal. 581. 
 
 410. Where money is stolen, proof that a 
 part of it on the following day was found on 
 the person of the accused, is sufficient cor- 
 roborating evidence to sustain a conviction 
 on the testimony of an accomplice. People 
 V. Melvane, 39 Cal. 614. 
 
 411. The facts that on the morning after 
 the larceny of a horse, the animal was found 
 in the defendant's possession under circum- 
 stances which were suspicious, and that he 
 immediately removed the horse to another 
 place, and gave an assumed name, sufficient- 
 ly corroborate the testimony of an accom- 
 plice to sustain a conviction. People v. 
 Cleaveland, 49 Cal. 577. 
 
 412. In Nevada, it has been held that 
 when property recently stolen is found in the 
 possession of a person accused of the theft, 
 the accused is bound to explain the posses- 
 sion in order to remove its effect as a circum- 
 stance indicative of guilt. In such case, the 
 prosecution may show that the accused has 
 made different statements concerning the
 
 LARCENY. 
 
 409 
 
 Evidence. 
 
 Presumptive Evidence. 
 
 manner in which the possession was ac- 
 quired. State V. I. En, 10 Nev. 277. 
 
 413. In New Hampshire, the law does not 
 presume guilt from the exclusive possession 
 of property recently stolen. State v. Hodge, 
 50 New Hamp. 510. In Iowa, it has been 
 held that the mere possession of stolen prop- 
 erty shortly after a burglary, is not prima 
 
 facie evidence of guilt. State v. Reid, 20 
 Iowa, 413. 
 
 414. Fact of possession of stolen prop- 
 erty to go to jury. The recent possession 
 of stolen property is a circumstance to be 
 submitted to the jury, in connection with 
 other evidence of guilt. The court cannot 
 properly say, in any case, that evidence of 
 good character, or the fact that the posses- 
 sion was undisguised and open, is a satis- 
 factory explanation. State v. Hogard, 12 
 Minn. 293 ; Yates v. State, 37 Texas, 202 ; 
 State V. "Williams, 2 Jones, 194; State v. 
 Shaw, 4 lb. 440. 
 
 415. An instruction to the juiy, in sub- 
 stance, that from proof that property had 
 been stolen, and recently thereafter found in 
 the possession of the accused, which posses- 
 sion was unexplained by him, it was a pre- 
 sumption of law that such property had 
 been feloniously stolen by him, is erroneous. 
 But where the jury were afterward directed 
 to consider the question as one of fact, not 
 only upon this but other proof in the case, it 
 was held that the error was obviated. Stover 
 v. People, 56 N. Y. 315. 
 
 416. Charging the jury that " the posses- 
 sion of stolen property is not alone sufficient 
 to convict," and " it is merely a guilty cir- 
 cumstance which, taken in connection with 
 other testimony, is to determine the question 
 of guilt," is not erroneous on account of the 
 expression " guilty circumstance." People 
 V. Rodundo, 44 Cal. 538; s. c. 2 Green's 
 Crim. Reps. 411. 
 
 417. Possession of stolen property may 
 be explained. Although the possession of 
 articles recently stolen raises a presumption 
 that the person in whose possession the same 
 are found is the thief, yet this presumption 
 may be repelled by evidence tending to 
 show how the accused came by them. Way 
 V. State, 35 Ind. 409. 
 
 418. Where goods are found in the pos- 
 session of a person charged with larceny, he 
 may rebut the presumption of guilt without 
 explaining how he came by them. Clack- 
 ner v. State, 33 Ind. 412. 
 
 419. Although the possession of goods re- 
 cently stolen is presumptive evidence that 
 such possessor is the thief, and in the ab- 
 sence of satisfactory explanation will war- 
 rant his conviction, yet if he give a reason- 
 able account of how he came by them, it is 
 incumbent on the prosecution to show that 
 the account is false. Jones v. State, 30 
 Miss. 653 ; Belote v. State, 36 lb. 96. 
 
 420. When the explanation given by a 
 party in whose possession stolen property is 
 found, is unreasonable or improbable, the 
 onus of proving its truth lies on him. But 
 if it is natural and probable, it devolves 
 upon the prosecution to show its falsity. 
 Garcia v. State, 26 Texas, 209. 
 
 421. On a trial for larceny, it was held not 
 erroneous for the com-t to refuse to charge 
 that where a man, in whose possession stolen 
 property is found, gives a reasonable account 
 of how he came by it, the prosecutor is re- 
 quired to show the account to be false, it 
 being necessary to appear, in order to render 
 such an instruction proper, that the account 
 was given to those finding him in possession. 
 Dillon V. People, 4 N. Y. Supm. N. S. 203 ; 
 8 lb. 670. 
 
 422. A person found in possession of cat- 
 tle, and accused of removing them from 
 their accustomed range, may prove that he 
 bought them of one who represented that he 
 was the agent of the owner of cattle of the 
 same road brand which had strayed from 
 the herd while passing through the county. 
 Smith V. State, 41 Texas, 168. 
 
 423. Possession of stolen property ob- 
 tained from carrier. Possession of stolen 
 goods, which had its inception by a delivery 
 of them to tiie defendant by a carrier, who 
 had transported them some distance, is not 
 such a possession as " creates a strong pre- 
 sumption " that the defendant committed 
 the larceny, although it might, in connection 
 with other evidence, tend to show his com- 
 plicity in the crime. Heed v. State, 25 Wis. 
 421.
 
 410 
 
 LARCENY. 
 
 Evidence. 
 
 Presumptive Evidence. Admissions, Declarations and Confessions. 
 
 424. Presumption of discliarge from 
 former conviction. An indictment, iu ad- 
 dition to the charge of grand larceny, for 
 which the prisoner was tried, contained an 
 averment that the prisoner had been tried 
 and convicted previously of grand larceny, 
 and sentenced to the State prison, from 
 which he had been duly discharged and re- 
 mitted of such judgment. The record 
 showed a conviction on the 6th of February, 
 1871, and sentence to imprisonment for one 
 year. The present indictment was found in 
 June, 1872. It was held that the fact that 
 the term for which the prisoner was sen- 
 tenced had expired, was sufficient evidence 
 to go to the jury that he was discharged of 
 that conviction. Johnson v. People, 65 
 Barb. 342. 
 
 425. Effect of circumstantial evidence. 
 When on a trial for grand larceny, the evi- 
 dence is mainly circumstantial, a charge 
 asked for, that "innocence should be pre- 
 sumed until the case proved, in all its mate- 
 rial circumstances, is beyond any reasonable 
 doubt, and that the evidence ought to be 
 strong and cogent to find the defendant 
 guilty," should be given. Moorer v. State, 
 44 Ala. 15. 
 
 426. The following instruction was held 
 unobjectionable: That the evidence being 
 wholly circumstantial, if the jury could not 
 reconcile all the facts proved upon any other 
 theory than the guilt of the prisoner, they 
 must find him guilty; but if they could 
 reconcile them with his innocence, they 
 must acquit him. Com. v. Annis, 15 Gray, 
 197. 
 
 (g) Admissiom, declarations and confessions. 
 
 427. Not to be excluded because owner 
 of property not a v^itness. On the trial of 
 an indictment for stealing from the person 
 of another, the admissions of the accused 
 are not to be excluded on the ground that 
 the person from whom the property is 
 alleged to have been stolen, is not examined 
 as a witness. Com. v. Kenney, 12 Mete. 
 235. 
 
 428. When not sufficient. On the trial of 
 an indictment for larceny, the corpus delicti 
 must be proved otherwise than by the con- 
 
 fessions of the accused. Jenkins v. State, 
 41 Miss. 582. 
 
 429. Silence of defendant. On a trial 
 for larceny, it is comi^etent to prove that the 
 prisoner when arrested was charged with 
 the theft, and made no reply. State v. 
 Pratt, 20 Iowa, 267. 
 
 430. Offer to pay for property. The fact 
 that a person charged with larceny ofl'ered 
 to pay the owner of the property fifty dol- 
 lars, is not admissible in evidence against 
 him as a confession, the offer being made 
 under the hope of settlement. Train v. State, 
 40 Ga. 529. 
 
 431. Confession. On the trial of an in- 
 dictment for stealing money, the statement 
 of the prisoner, not voluntarily made, that 
 he would point out the place where the 
 money was buried, in connection with the 
 fact that he did so, and that the money was 
 found there, is admissible in evidence; but 
 not the further statement, " I buried it in" the 
 ground there." People v. Hoy Yen, 34 Cal. 
 176. 
 
 432. On the trial of a freedman for the 
 larceny of a mule alleged to be the property 
 of J. L. Terrell, the prisoner's confession 
 that he had taken "^Mass. Lee's mule, " is not 
 competent evidence without proof of the 
 identity of J. L. Terrell as '■'■Mass. Lee.'''' 
 And the admission of such confession is 
 error, although the bill of exceptions states 
 that the defendant was on trial for the lar- 
 ceny of a mule, " the property of Lee Ter- 
 rell," and no objection was made to the 
 evidence on the gi-ound of variance. Gabriel 
 V. State, 40 Ala. 357. 
 
 433. The owner of stolen goods, on the 
 defendant's expressing sorrow for the ofi"ense, 
 promised not to prosecute him, but the offi- 
 cer whom they shortly after met, told them 
 the matter could not be settled, and imme- 
 diately arrested the defendant. Held that 
 the defendant's confessions made subse- 
 quently, were admissible in evidence against 
 him, notwithstanding the previous promise 
 of the owner. Ward v. People, 3 Hill, 395. 
 
 434. Declarations of owner of stolen 
 property. On a trial for grand larceny 
 against two jointly indicted, it having been 
 proved that money, corresponding somewhat
 
 LARCENY. 
 
 411 
 
 Evidence. 
 
 Admissions, Declarations and Confessions. 
 
 with that which had been taken from the 
 complainant, was found on one of the 
 prisoners, the following evidence was held 
 admissible on the question of identity : That 
 after the prisoners were arrested, the com- 
 plainant stated that one of them was the 
 man who had taken his money, and that the 
 other was the one who, at the time of the 
 larceny, introduced a game of dice, to which 
 they made no re[)ly ; and that the complain- 
 ant then said that another person had rep- 
 resented himself as city attorney, which both 
 prisoners immediately denied, Armsby v. 
 People, 2 N. Y. Supm. N. S. 157. 
 
 435. On a trial for stealing a pair of boots, 
 the question was whether or not the defend- 
 ant took them without the consent of the 
 owner. The defendant proved by two or 
 three witnesses, that he bought the boots of 
 A., and the only evidence to the contrary 
 was the testimony of C. and others, that a 
 dispute arose between the defendant and A. 
 in regard to the boots, about the time they 
 were taken from the store, in which the 
 defendant claimed to have bought them of 
 A., and which A. denied. Held, that the 
 testimony as to what A. said was hearsay 
 and inadmissible. Davis v. State, 37 Texas, 
 227. 
 
 436. For the purpose of joroving a bar- 
 gain and sale, the declarations of the parties 
 thereto at the time are a part of the res gestoe, 
 and competent evidence for the defendant 
 to rebut the presumption of guilt arising 
 from the possession of stolen goods. Leg- 
 gett V. State, 15 Ohio, 283. 
 
 437. The declarations ef the alleged owner 
 of stolen bank notes, made on the morning 
 after the night of the prisoner's arrest, that 
 " he and the prisoner were drunk together 
 on that night, that he let the prisoner have 
 the bank notes in order to invest them in 
 the grocery business, and that they were not 
 stolen," are not competent evidence for the 
 prisoner, although the alleged owner has 
 since died. Sayres v. State, 30 Ala. 15. 
 
 438. Declarations of defendant in his 
 own behalf. Wliere it is jjroved, on a trial 
 for larceny, that the defendant was accused 
 of the offense when he was arrested, it is 
 competent for him to show what he said in 
 
 reply to the charge. State v. Patterson, 63 
 N. C. 520. 
 
 439. Where, on a trial for larceny, it 
 appears that the defendant took lawful 
 possession of the property, his declaration as 
 to his intention, made at the time, is ad- 
 missible as part of the res gestce. Maddox v. 
 State, 41 Texas, 205. 
 
 440. On the trial of an indictment for 
 stealing a cow, the defendant offered to 
 prove that on the night the cow was killed, 
 before the family and others at his house 
 went to bed, he declared openly in their 
 presence that " he intended to kill the cow 
 that night, and take her to the neighboring 
 town to market; that he had received a 
 message from the owner of the cow which 
 authorized him to kill and j^ay for her. 
 Held admissible, as part of the res gestae and 
 to show the intention of the defendant iu 
 killing the cow. Cornelius- v. State, 7 Eng. 
 782. 
 
 441. In the same case, the defendant 
 proved by M., a resident of the neighboring 
 town, that the day before the cow was killed, 
 he had engaged to deliver M. beef the 
 following morning ; and he then oflfered to 
 prove by M. that he told him he had no 
 beef of his own, but that there was one at 
 his house, belonging to another man, which 
 he would kill and pay for, and that he had 
 permission from the owner to do so. Held 
 admissible, as part of the res gestce^ to show 
 the intention of the defendant in killing the 
 cow. lb. 
 
 442. On a trial for larceny, the declarations 
 of the accused as to the manner in which he 
 came into possession of the property are not 
 competent evidence in his favor. Taylor v. 
 State, 42 Ala. 529 ; Maynard v. State, 46 lb. 
 85. It was accordingly held that a person 
 charged with larceny could not be permitted 
 to i^rove that after the goods came into his 
 possession, he stated that he found them. 
 State V. Pettis, 63 Maine, 134, Appleton, C. 
 J., and Burrows, J., dissenting. 
 
 443. On a trial for stealing a horse, the 
 defendant offered to show that just previous 
 to taking the animal, he had made arrange- 
 ments with a man to bring the horse back, 
 after he had driven to a certain place. Held
 
 412 
 
 LARCENY. 
 
 Evidence. 
 
 Admissions and Confessions. Guilty Knowledge and Intent. 
 
 admissible to explain the defendant's conduct 
 and intention. State v. Shermer, 55 Mo. 83 ; 
 s. c. 3 Green's Crim. Heps. 613. 
 
 444. Whether, on a trial for larceny, the 
 declaration of the defendant before he was 
 suspected of the theft, and before any search 
 was made, accounting for his possession of 
 the property, is admissible in his favor — 
 query. Tipper v. Com. 1 Mete. Ky. 6. 
 
 445. Admission of district attorney. 
 On the trial ©f an indictment for stealing 
 sheep, one R., a witness for the prosecution, 
 testified that the defendant and another 
 person drove them to the party in possession. 
 Afterward the district attorney admitted 
 that R. was indicted for receiving the same 
 sheep, knowing them to have been stolen, 
 the following instruction of the court to the 
 jury was held erroneous : " There is no proof 
 in this case that the witness R. has been in- 
 dicted or now is indicted for any crime, and 
 you will not consider the statement of coun- 
 sel that indictments are now pending against 
 him in this court, as there is no such evi- 
 dence." People v. Robles, 34 Cal. 591. 
 
 446. Wife of defendant as •witness. 
 Upon the trial of two for larceny, the wife 
 of one of the defendants cannot be a 
 witness. State v. McGrew, 13 Rich. 316. 
 But where one of two persons jointly in- 
 dicted for larceny and embezzlement, is 
 tried separately, the wife of the other de- 
 fendant may testify. Cornelius v. Com. 3 
 Mete. Ky. 481. And under a joint indict- 
 ment against several, the wife of one of the 
 defendants, who has not been arrested, and 
 is not on trial, is a competent witness for 
 the prosecution. State v. Drawdy, 14 Rich. 
 87. 
 
 (A) Ouilty 'knowledge and intent, 
 
 447. Must be proved. Under an indict- 
 ment for the larceny of cattle, which had 
 been seized by the sheriff by virtue of an 
 execution against the defendant, and com- 
 mitted to the care of a third person, the 
 prosecution must show that the defendant 
 had knowledge of the execution and seizure 
 of the cattle by the sheriff. State v. Dewitt, 
 32 Mo. 571. 
 
 448. On the trial of an indictment for 
 
 stealing a steer, the substance of the instruc- 
 tion was that if the defendant caused the 
 steer to be killed, with the intent to deprive 
 the owner of it, he might be convicted, 
 notwithstanding he had not actually carried 
 the animal away. Held erroneous, as the 
 instruction authorized the jury to convict, 
 even though the steer had been killed as an 
 act of malicious mischief, and without any 
 felonious intent, and without removing it. 
 People V. Murphy, 47 Cal. 103. 
 
 449. On the trial of an indictment for 
 stealing a horse, it was proved that the 
 defendant hired a horse, promising to return 
 it by evening, but never came back. Held, 
 that to sustain a conviction, the jury must 
 find that the prisoner intended to steal the 
 horse at the time of hiring it. People v. 
 Jersey, 18 Cal. 337 ; People v. Smith, 23 lb. 
 280. 
 
 450. On the trial of an indictment for 
 entering a dwelling-house in the day time, 
 and stealing therefrom, the following in- 
 struction was held erroneous: That " if it 
 was proved that the defendant was with the 
 one who stole, as charged in the indictment, 
 and saw him steal without interference on 
 the defendant's part to prevent it, upon the 
 defendant would then devolve the labor of 
 proving himself innocent." People v. Ah 
 Ping, 27 Cal. 489. 
 
 451. Possession of other stolen property. 
 Evidence that other stolen property besides 
 that described in the indictment was found 
 in the defendant's possession, is admissible 
 to show guilty knowledge; but not that 
 other stolen property was found in the pos- 
 session of a person with whom the defend- 
 ant lived as a hired man. State v. Wolff, 15 
 Mo. 168. 
 
 452. Mental condition of defendant. On 
 the trial of an indictment for larceny, it ap- 
 peared that the defendant was addicted to 
 the habitual and excessive use of opium, 
 and that at the time of the supposed offense, 
 he had been deprived of it. Held competent 
 for him to show what effect such depriva- 
 tion would have upon his mental condition, 
 as tending to prove whether or not he was 
 in a condition to commit larceny, Rogers 
 V. State, 33 Ind. 543.
 
 LAECENY. 
 
 413 
 
 Evidence. Guilty Knowledge and Intent. Former Conviction. Charge of Court. 
 
 453. Minority of defendant. On a trial 
 for larceny, tbe defense cannot be permitted 
 to prove that the defendant is a minor, for 
 the purpose of showing that in committing 
 the offense, he was acting under the control 
 of his mother. People v. Richmond, 29 Cal. 
 414. 
 
 454. Mistake. On the trial of an indict- 
 ment for stealing a steer, it is competent for 
 the defendant to prove, in order to show the 
 absence of guilty intent, that immediately 
 after the fact was ascertained that the steer 
 was the property of K., he went to him and 
 said, if it was K.'s, he had made a mistake, 
 and that he paid K. the amount for which 
 the steer had been sold ; it being for the jury 
 to determine from all the facts in the case, 
 ■whether the mistake was real or feigned. 
 Hall V. State, 34 Ga. 208. 
 
 455. Right of defendant to explain in- 
 tent. On the trial of an indictment for 
 larceny, it is competent for the defendant to 
 introduce any legal proof conducing to show 
 the intent with which he took the property, 
 or whose property it was, or the general or 
 special title to it. People v. Stone, 16 Cal. 
 369. 
 
 456. But under an indictment for stealing 
 a portion of the cargo of a vessel, tbe de- 
 fendant cannot be permitted to prove a cus- 
 tom for the officers of vessels to appropriate 
 a small part of the cargo, or to show that 
 instances had occurred where the mates of 
 vessels, under a claim of right, had appro- 
 priated parts of the cargoes in their posses- 
 sion. Com. V. Doane, 1 Cush. 5. 
 
 457. To be determined by jury. On the 
 trial of an indictment for larceny, the jury 
 are the judges as to the title of the property, 
 the taking and carrying away, and the in- 
 tent. The defendant being indicted for 
 stealing a steer, the court charged the jury 
 in effect, that though the defendant killed 
 the steer believing it to be his own, yet 
 when lie appropriated it to his own use and 
 benefit, it was evidence of a felonious in- 
 tent. Held error. People v. Carabin, 14 
 Cal. 438. 
 
 458. Where there is any testimony tend- 
 ing to show that the defendant took the 
 property alleged to have been stolen, and 
 
 removed it with the felonious intent 
 charged, the sufficiency of the evidence is 
 wholly a question for the jury. State v, 
 Carr, 13 Vt. 571. 
 
 459. The owner of a hog, having lost it, 
 it was taken up as an estray by A., who 
 upon inquiring for the owner, was told by 
 the defendant that it belonged to him. The 
 latter then took the animal home, changed 
 the mark on it, and put it in the pen with 
 his other hogs. Held proper for the court 
 to charge the jury that it was for them to 
 determine whether the defendant took the 
 hog with a felonious intent, and that if he 
 did, he was guilty of larceny. State v. 
 Fisher, 70 N. C. 78. 
 
 (t) Former conviction. 
 
 460. To be proved. Upon a charge of 
 larceny after a former conviction of the ac- 
 cused for the same offense, the former con- 
 viction and discharge must be alleged in 
 the indictment, be proved on the trial, and 
 passed upon by the jury. Such proof is not 
 incompetent on the ground that it tends to 
 establish bad character by proof of specific 
 acts. Johnson v. People, 55 N. Y. 512. 
 
 461. Waiver of objection. Where under 
 an indictment for larceny after a former 
 conviction, the objection that the discharge 
 of the accused from imprisonment under the 
 former conviction was not proved, was not 
 raised on the trial, it was held that it was 
 not available on appeal. lb. 
 
 8. Charge op court. 
 
 462. As to finding the value of the 
 stolen property. AVhere on a trial for lar- 
 ceny, under an indictment charging the 
 stealing of several sums from the person of 
 another, in the city of New York, amount- 
 ing to more than $25, the judge was asked 
 to instruct the jury that their verdict ought 
 to indicate the amount stolen, so that if less 
 than $25, the court would not be compelled 
 to sentence the prisoner to the State prison, 
 it was held that the j^risoner was enti- 
 tled to the instruction asked. Williams 
 V. People, 24 N. Y. 405. 
 
 463. Where on the trial of an indictment 
 for stealing from the person moneys exceed-
 
 414 
 
 LAKCENY. 
 
 Charge of Court. 
 
 Verdict. 
 
 ing twenty-five dollars, it was proved that 
 less than that sum was stolen, and the judge 
 refused to charge that the defendant could 
 be found guilty of petit larceny only, but 
 instructed the jury that if they found the 
 defendant had stolen eighteen dollars, they 
 might render a verdict of guilty under the 
 indictment, it was held error. Rhodihan v. 
 People, 5 Parker, 395. 
 
 464. Where the grade of the offense does 
 not depend upon the value of the property 
 stolen, it is not error for the court to refuse 
 to instruct the jury "they must assess the 
 value of the property according to its value 
 in gold." Yarborough v. State, 41 Ala. 
 405. 
 
 9. Verdict. 
 
 465. Under an indictment charging the 
 larceny of several articles. Where a per- 
 son is charged in one count with stealing 
 several articles, he may be found guilty of 
 the larceny of one, and acquitted as to the 
 rest ; and if the jury find him guilty of steal- 
 ing one of the articles, and take no notice of 
 the other, it is an acquittal as to the other 
 articles. Swinney v. State, 8 Smed. & 
 Marsh. 576 ; People v. Wiley, 3 Hill, 194. 
 But see O'Connell v. Com. 7 Mete. 460. 
 
 466. Although as a general rule, where a 
 person is charged with having stolen several 
 articles, and he is proved to have stolen only 
 some of them, and not all, a general verdict 
 is good, because the punishment will be the 
 same; yet where the penalty is increased in 
 proportion to the number of articles stolen, 
 the verdict will be bad. State v. Bunten, 
 3 Nott & McCord, 441. 
 
 467. Under an indictment charging the 
 larceny of various articles, some of which 
 are well and others insufficiently described, 
 if a general verdict of guilty be found, the 
 insufficiency of the description as to some of 
 the articles has no other effect than to strike 
 them out of the indictment, and the verdict 
 is to be applied to the property which is 
 correctly described. Com. v. Williams, 2 
 Cush. 582 ; Warren v. State, 1 Greene, 106. 
 
 468. When there must be a finding of 
 value. Where the statute fixes the punish- 
 ment for larceny according to the value of 
 the property stolen, the verdict should find 
 
 the value, in order that the court may know 
 with certainty of what offense the defendant 
 has been convicted. Ray v. State, 1 Greene, 
 316. The verdict may be for the aggregate 
 value of the goods stolen. Warren v. State, 
 sup7'a. 
 
 469. The rule by which to value a bank 
 note for the purpose of determining the de- 
 gree of larceny, is the sum which on its face 
 it promises to pay. State v. Cassell, 2 Har. 
 & Gill, 407. 
 
 470. A general verdict of guilty on a trial 
 for larceny must be regarded as a finding of 
 the truth of all of the material averments 
 constituting the offense charged, including 
 the allegation of value. Mason v. People, 2 
 Col. 373. 
 
 471. In Massachusetts, when the alleged 
 value of property stolen does not exceed 
 one hundred dollars, the jury need not find 
 any precise sum as the value, and a general 
 verdict of guilty will necessarily include the 
 finding of value. Com. v. McKenney, 9 
 Gray, 114. 
 
 472. In Illinois, where a verdict for lar- 
 ceny does not find the value of the property 
 stolen, it is ground for arresting the judg- 
 ment, and for a new trial. Collins v. Peo- 
 ple, 39 111. 233. 
 
 473. Finding value of part of articles 
 stolen. Notwithstanding only the collect- 
 ive value of property alleged to have been 
 stolen is stated in the indictment, yet if the 
 jury find the defendant guilty of stealing a 
 part only of the property, and in their ver- 
 dict state the value of the articles so stolen 
 by him, judgment maybe rendered on the 
 verdict. Gilmore v. McNeil, 46 Maine, 532. 
 
 474. Under an indictment alleging the 
 larceny of bank bills of the value of $367, 
 the jury found the defendant guilty of steal- 
 ing bank bills of the value of $317, only. 
 fieZ<Z not a ground for arrest of judgment; 
 it being like the case of an allegation of a 
 larceny of ten bank bills, and a verdict of 
 guilty as to nine of the bills. Com. v. Duffy, 
 11 Cush. 145 ; approving Com. v. Sawtelle, 
 lb. 142. See Com. v. Gallagher, 16 Gray, 
 240; Com. v. Hussey, 111 Mass. 432. 
 
 475. Finding collective value. On a 
 trial for larceny, the verdict was that the
 
 LARCENY. 
 
 415 
 
 Verdict. 
 
 Sentence. 
 
 prisoner was guilty of stealing all of tlie 
 articles to which a collective value was as- 
 signed in the indictment. Held no ground 
 for arrest of judgment; it being only in 
 cases where the verdict negatives the steal- 
 ing of a part of the articles, that an allega- 
 tion of the collective value will be held in- 
 sufficient. State V. Hood, 51 Maine, 363. 
 
 476. An indictment for larceny charged 
 the defendant with stealing certain goods 
 and chattels, and then gave a list of the 
 goods with their value, amounting in the 
 aggregate to one hundred dollars. The 
 jury found the prisoner guilty of grand lar- 
 ceny. Held that they should have specified 
 the value, or found the defendant guilty 
 of the offense charged in the indictment, 
 and that not having done so, the verdict 
 was void for uncertainty. State v. Coon, 18 
 Minn. 518. 
 
 477. In Mississippi, the first count of an 
 indictment charged the stealing of a horse 
 of the value of seventy dollars ; a saddle of 
 the value of ten dollars ; a bridle of the 
 value of one dollar ; a blanket of the value 
 of one dollar; ten dollars in specie, and a 
 bank note for ten dollars. The second count 
 charged the stealing of a promissory note 
 for twenty- two hundred dollars. The jury 
 found a verdict of guilty, without assessing 
 any value to the property, or any portion of 
 it. Held sufficient to warrant a sentence for 
 grand larceny. Wilbom v. State, 8 Smed. & 
 Marsh. 345. 
 
 478. In New Hampsliire, on a trial for 
 larceny under the statute (R. S. ch. 215, 
 § 13), if the jury find a verdict of guilty, 
 they must also find the value of the prop- 
 erty stolen. Where the indictment charged 
 the stealing of a breast pin of the value of 
 ten dollars, and a watch of the value of one 
 hundred dollars, and it was proved that the 
 property was not worth as much as alleged, 
 and there was a verdict of guilty simply, it 
 was held that the judgment must be re- 
 versed. Locke V. State, 33 New Ilamp. 
 106. 
 
 479. In Ohio, where on the trial of an in- 
 dictment containing counts for horse stealing 
 and grand larceny, the jury found a general 
 verdict of guilty, assessing the value of the 
 
 whole property, without finding the amount 
 charged in each count, the judgment was 
 reversed. Barton v. State, 18 Ohio, 221. 
 
 480. Where another offense is charged. 
 "Where the indictment charges in one count 
 the larceny of goods, and in another the 
 receiving them knowing that they were 
 stolen, there may be a general verdict of 
 guilty. State v. Speight, 69 N. C. 72 ; State 
 V. Baker, 70 lb. 530; State v. Bailey, 73 lb. 
 70. 
 
 481. Where on the trial of an indictinent 
 for larceny, it appears that it was committed 
 in connection with a burglary, the prisoner 
 may be convicted of the larceny as a separate 
 and distinct ofiense. There is no merger in 
 such a case which is available to the accused 
 by way of defense, until there has been a 
 trial and conviction. People v. Smith, 57 
 Barb. 46. 
 
 482. In case of charge against two. 
 Under a joint indictment against two for 
 stealing the same goods, one cannot be con- 
 victed of petit larceny, and the other of 
 grand larceny. State v. Davis, 3 McCord, 
 187. 
 
 10. Sentence. 
 
 483. To be consistent with verdict. 
 Where under an indictment for stealing 
 several articles, there is a general verdict 
 of guilty, the court cannot impose the pun- 
 ishment for stealing only one of the articles, 
 although the larceny of only one was 
 proved ; but the judgment must conform to 
 the verdict. State v. Kersh, 1 Strobh. 352. 
 
 484. For part of offense found. Where 
 an indictment for burglary alleges a break- 
 ing and entering in the night with intent to 
 steal, and an actual stealing, the prosecution, 
 after a general verdict of guilty and before 
 sentence, may enter a nolle fjrosequi as to so 
 much of the indictment as charges a break- 
 ing and entering, and the defendant may be 
 sentenced for the larceny. Jennings v. Com. 
 105 Mass. 586. 
 
 485. Defendant disfranchised. In In- 
 diana, the law prescribes as a part of the 
 punishment, on a conviction of petit larceny, 
 that the defendant be disfranchised, and 
 rendered incapable of holding any office of 
 trust or profit, for a determinate period to
 
 416 
 
 LASCIYIOUSNESS. 
 
 What Constitutes. 
 
 be found by the jury. Doty v. State, 6 
 Blackf. 529. 
 
 See Receiving stolen property. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 1. What constitutes. 
 
 1. "Wanton behavior. When wanton and 
 lascivious acts are practiced by an indi- 
 vidual toward another of a different sex, 
 against the will and consent of such person, 
 no one else being present, such acts consti- 
 tute the offense of " lascivious carriage," 
 within the meaning of the statute of Con- 
 necticut. Fowler v. State, 5 Day, 81. 
 
 2. Where a man without provocation, 
 asks another person's wife to go to bed with 
 him, his intention in using the language, as 
 well as the purpose for which he used it, 
 makes it in law both obscene and vulgar. 
 Dillard v. State, 41 Ga. 278, Brown, C. J.^ 
 dissenting. 
 
 3. Indecent exposure. The indecent ex- 
 posure of one's person on a public highway, 
 is a misdemeanor at common law. State v. 
 Eose, 32 Mo. SCO. The offense of indecent 
 exposure does not depend on the number of 
 persons to whom one thus exposed himself. 
 State V. Millard, 18 Vt. 574. 
 
 4. In Tennessee, where a person permitted 
 his slaves to pass about in public view inde- 
 cently naked, it was held that he was liable 
 to indictment for lewdness. Britain v. State, 
 li Humph. 203. 
 
 5. In Vermont, under the statute (R. S. 
 ch. 99, § 8), where a man exposes his person 
 indecently to a woman, and solicits her to 
 have sexual intercourse with him, and per- 
 sists in so doing, against her remonstrance, 
 he is guilty of " open and gross lewdness 
 and lascivious behavior," and liable to in- 
 dictment. State V. Millard, supra. 
 
 6. Obscene language. The use in public, 
 of grossly obscene language, is indictable as 
 an offense against public morals and de- 
 
 cency, at common law. State v. Appling, 
 25 Mo. 315. 
 
 7. Keeping house of ill-fame. To con- 
 stitute the offense of keeping a bawdy-house, 
 a house or room must be kept for the accom- 
 modation and entertainment of lewd people. 
 Therefore, a female is not amenable to that 
 offense, who lives alone, and habitually ad- 
 mits persons to an illicit cohabitation with 
 her. State v. Evans, 5 Ired. 603. 
 
 8. On the trial of an indictment for keep- 
 ing a house of ill-fame, the defendant may 
 be convicted, although the house is owned 
 by his wife as her separate property, and the 
 business is carried on by her and slie takes 
 the profits, in which he does not participate. 
 Com. V. Wood, 97 Mass. 225. 
 
 9. The statute of Connecticut (R. S. tit. 6, 
 § 89), which provides that " every justice of 
 the peace may, on the complaint of any in- 
 forming officer, require sureties of the peace 
 and good behavior from any person who 
 shall be guilty of frequenting, keeping or 
 maintaining houses reputed to be houses of 
 bawdry and ill-fame," with right of appeal, 
 is not unconstitutional, and a person may be 
 convicted who keeps but one such house. 
 State V. Main, 31 Conn. 572. 
 
 10. Renting house for prostitution. The 
 owner of a house who rents it to be used 
 and kept as a house of prostitution is to be 
 deemed to keep such house, and is liable to 
 indictment and conviction as the keeper of 
 a bawdy-house. The principle of this rule 
 applies to any person who is directly con- 
 cerned in the keeping of such a house. 
 Lowenstein v. People, 54 Barb. 299. 
 
 11. A person who has the control of a 
 house, and knowingly rents it and permits 
 it to be used as a house of prostitution, is 
 liable to punishment therefor, although he is 
 a mere agent. lb. 
 
 12. Lascivous cohabitation. In Michi- 
 gan, to constitute the offense of lewd and 
 lascivious cohabitation under the statute, the 
 cohabitation must be lewd and lascivious on 
 the part of both. If either was acting in 
 good faith, neither is guilty. The charge 
 must therefore be joint, and both must be 
 joined as defendants, unless one of the par- 
 ties is unknown or has since died. But
 
 LASCIYIOUSNESS. 
 
 417 
 
 What Constitutes. 
 
 Indictment. 
 
 they may be tried separately, and one con- 
 victed and sentenced before the otlier is 
 tried. The following indictment was there- 
 fore held bad in not charging a joint of- 
 fense: That "T. D. did lewdly and lascivi- 
 ously associate and cohabit with one M. S., 
 he the said T. D. being then and there a 
 man, and she the said M. S. being then and 
 there a woman, and they, the said T. D. and 
 M. S., not being then and there married to 
 each other." Delany v. People, 10 Mich. 
 241. 
 
 13. In Tennessee, where two persons of 
 the opposite sex cohabit together, ostensibly 
 as husband and wife, without in fact being 
 married, they are liable to indictment, al- 
 though the fact of their being unmarried 
 may not be generally known. State v. 
 Boling, 2 Humph. 414. 
 
 14. In Illinois, to constitute the oflFense of 
 fornication within the meaning of the stat- 
 ute, the parties must cohabit openly and 
 notoriously. Searls v. People, 13 111. 597. 
 And in South Carolina, it was held that an 
 indictment for " living in open lewdness, 
 whoredom and adultery," was not suppoited 
 by simply proving adultery. State v. Bran- 
 son, 2 Bail. 149. And see Com. v. Calef, 10 
 Mass. 153. 
 
 15. In Massachusetts, a husl)and obtained 
 a divorce from his wife for desertion. The 
 wife subsequently went to another State, 
 where she was married to another man, 
 with whom she returned to Massachusetts 
 and there lived. Held that she was not in- 
 dictable under the statute (R. S. ch. 130, § 4) 
 for lewd and lascivious behavior. Com. v. 
 Hunt, 4 Cush. 49. 
 
 16. Simple incontinence is not punishable 
 
 at common law. Com. v. Jones, 2 Gratt. 
 
 555. 
 
 2. Indictment. 
 
 17. "When it will lie. All acts and con- 
 duct calculated to corrupt the public morals, 
 or to outrage the sense of public decency, 
 are indictable. Williams v. State, 4 Mo. 
 480. 
 
 18. Joinder of parties. Several persons 
 in the same place, but occupying different 
 houses, and having no community of in- 
 terest, may be joined in an indictment for 
 
 27 
 
 keeping bawdy-houses. State v. McDowell, 
 Dudley, S. C. 346. 
 
 19. But an indictment which charges two 
 persons in a single count with obscenity is 
 bad for duplicity, the offense being personal. 
 State V. Roulstone, 3 Sneed, 107. 
 
 20. Name of defendant. The defendant 
 pleaded to an indictment for keeping a 
 house of ill-fame, that her name was Mary 
 Y. Homer and not Mary Homer. Ueld that 
 if the letter Y. was to be regarded merely as 
 the initial letter of the middle name it was 
 doubtful whether the plea was sufficient; 
 that the name of which that was the initial 
 letter should have been set forth in the plea. 
 State V. Homer, 40 Maine, 438. 
 
 21. Charging lascivious behavior. An 
 indictment for open and gross lewdness or 
 lascivious behavior must set out the acts 
 which are charged to constitute the offense, 
 and state that they were committed openly 
 and notoriously. It is not sufficient to 
 allege generally that the defendant was 
 guilty " of open gross lewdness and lascivi- 
 ous behavior, by then and there publicly co- 
 habiting with one A. B.," but the specific 
 act of lewdness must be stated. Dameron 
 V. State, 8 Mo. 494 ; State v. Moore, 1 Swan, 
 136. 
 
 22. In New Hampshire, where a com- 
 plaint alleged that the defendant was guilty 
 of indecent and rude conduct in a public 
 street contrary to the statute, without any 
 further description of the acts complained 
 of, it was held insufficient. State v. Pierce, 
 43 New Hamp. 273. And see State v. 
 Goulding, 44 lb. 284. 
 
 23. In Massachusetts, a complaint under 
 the statute (Gen. Stats, ch. 165, § 28), which 
 alleges that the defendant " was, and still is, 
 a lewd, wanton and lascivious person in 
 speech and behavior," is not bad either for 
 uncertainty or duplicity, and it need not con- 
 clude " to the common nuisance of the peo- 
 ple of the commonwealth." Com. v. Parker, 
 4 Allen, 313. 
 
 24. Averment of indecent exposure. An 
 indictment which cluirgcs an indecent and 
 scandalous exposure of the naked person to 
 public view, in a public place, is sufficient, 
 without alleging that the act was committed
 
 418 
 
 LASCIVIOUSNESS. 
 
 Indictment. 
 
 Evidence. 
 
 in the presence of one or more of the citi- 
 zens of the State. State v. Roper, 1 Dev. 
 & B:vtt. 208. 
 
 25. An indictment which alleges that the 
 defendant, "devising and intending the 
 morals of the people to debauch and cor- 
 rupt," " unlawfully, scandalously, and wan- 
 tonly " exposed his naked body to the \'iew 
 of persons present, sufficiently charges a 
 ciiminal intent in the indecent exposure of 
 himself, and need not conclude, "to the 
 common nuisance of all the citizens," &c. 
 Com. V. Haynes, 2 Gray, 72. 
 
 26. Description of commou night walker. 
 In an indictment for being a common night 
 walker, the offense (as in the casss of com- 
 mon barratoi-s, common scolds, and the 
 like), may be described in general terms. 
 State V. Dowers, 45 New Hanip. 548. 
 
 27. Charge of publication or sale of in- 
 decent print. In an indictment charging 
 that the defendant did " publish an indecent 
 and obscene newspaper called," &c., the 
 composition should be set out, or such de- 
 scription given of it that the court can judge 
 of its character. State v. Hanson, 23 Texas, 
 232. 
 
 28. An indictment for selling an obscene 
 publication should, in general, set forth the 
 publication in here verba. But when the pub- 
 lication is of so gross a character that spread- 
 ing it upon the record will be an offense 
 against decency, it may be excused. State v. 
 Brown, 27 Vt. 619. 
 
 29. Charge of keeping house of ill- 
 fame. An indictment for keeping a house 
 of ill-fame need not specify the street in 
 which the house is situated. And where the 
 offense is created by statute, the words " to 
 the common nuisance," &c., are not essential 
 to the validity of the indictment. State v. 
 Stevens, 40 Maine, 559. 
 
 30. It is no objection to an indictment for 
 keeping and maintaining a building for 
 prostitution, lewdness, illegal gaming, and 
 the unlawful sale of intoxicating liquors, 
 which is described as a tenement on the 
 fourth floor, fronting on a certain street, 
 that there are three other rooms not occupied 
 by the defendant, on the same floor, front- 
 ing on the same street. Com. v. Hill, 14 
 
 Gray, 24. And see Com. v. Donovan, IG 
 Gray, IS. 
 
 31. Charge of unlawful cohabitation. 
 An indictment for illegal cohabitation should 
 allege that one of the parties was a man and 
 the other a woman, and that they cohabited 
 as husband and wife. State v. Dunn, 26 
 Ark. 84. 
 
 32. Where an indictment alleged that "A. 
 did take into his house one B., and they did 
 then and there have one or more children 
 without parting, or an entire separation, 
 they, the said A. and B., never having been 
 lawfully married," it was held that it suffi- 
 ciently showed that the parties were of dif- 
 ferent sexes. State v. Fore, 1 Ired. 378. 
 
 33. Under a statute providing that " if 
 any man or woman shall live together as 
 husband and wife, without being married, 
 each of them shall be deemed guilty of a 
 misdemeanor," an indictment which alleges 
 that a woman "did bed to and live " with a 
 man is insufficient. Grouse v. State, 16 Ark. 
 566. 
 
 34. An indictment is sufficient which al- 
 leges that the defendants, a man and woman, 
 lived together in fornication. Lawson v. 
 State, 20 Ala. 65. And where the indict- 
 ment charged that the defendant, an unmar- 
 ried man, lived in open and notorious forni- 
 cation with a woman, it was held that it 
 need not allege that she was unmarried. 
 State v. Gooch, 7 Blackf. 468. 
 
 35. In Massachusetts, an indictment under 
 the statute (Gen. Stats, ch. 165, § 4), for con- 
 tinuing to cohabit with a second wife, the 
 defendant having a former wife living, is 
 sufficient which alleges that the second niar- 
 riage took place on a certain day, and that 
 the defendant " afterward did cohabit and 
 continue to cohabit with said A. at C, in 
 said county for a long space of time, to wit., 
 for the space of six months." Com. v. Brad- 
 ley, 2 Cush. 553 ; Com. v. Godsoe, 105 Mass. 
 464. 1^ 
 
 |r^ 3. Evidence. 
 
 33. Complainant as witness. On the 
 trial of an information for lascivious carriage 
 and behavior, the complainant is a compe- 
 tent witness. Fowler v. State, 5 Day, 81. 
 
 37. Intent of defendant. Under an in-
 
 LASCIYIOUSNESS. 
 
 419 
 
 Evidence. 
 
 •dictment for exposing the nalfed body in 
 public, the intent with which the act was 
 done is material. Miller v. People, 5 Barb. 
 203. 
 
 38. Proof of open lewdness. An indict- 
 ment for open gross lewdness and lasci\(ious 
 behavior, will not be supported by evidence 
 oi lewdness or such behavior in secret. Com. 
 V. Catlin, 1 Mass. 8. 
 
 39. On a trial for open and notorious 
 lewdness, it is error to permit a witness to 
 testify that "it was the general rumor of 
 the neighborhood that the defendants were 
 living together in adultery." Buttram v. 
 State, 4 Cold. Tenn. 171 ; approving Fox v. 
 State, 8 Humph. 63. 
 
 40. A charge for open and notorious lewd- 
 ness may be proved by circumstantial evi- 
 dence. Peak V. State, 10 Humph. 90. 
 
 41. Acts of illicit intercourse. Under a 
 charge of illicit intercourse, within a limited 
 period, evidence may be given of acts an- 
 terior to that period, in connection with, and 
 in explanation of acts of a similar character 
 occurring within the same period, although 
 such former acts, if treated as an offense, 
 would be barred by the statute of limita- 
 tions. Lawson v. State, 20 Ala. 65. 
 
 42. Where acts of indecent familiarity 
 have been explained by previous acts of illicit 
 intercourse, proof of subsequent illicit inter- 
 course becomes corroborative, and is admis- 
 sible, lb. 
 
 43. Proof of renting house for purposes 
 of prostitution. Where on a trial of an 
 indictment for leasing premises for the pur- 
 pose of being used in keeping a bawdy-house, 
 there was no evidence that the defendant in 
 renting the house knew that the lessee was 
 an improper character, or that the house was 
 to be used for an improper purpose, it was 
 held that a convictioii could not be sus- 
 tained. State V. Leach, 50 Mo. 535. 
 
 44. In Iowa, on the trial of an indictment 
 under the statute (Code, §3713), for leasing 
 a house knowing that the lessee intended to 
 use the same as a place of resort for prosti- 
 tution, and for knowingly permitting it to 
 be so used, the prosecution must show such 
 acts or circumstances as shall satisfy the 
 jury that the lessor, knowing that the house 
 
 was being used for the illegal purpose, after 
 the execution of the lease, not only remained 
 inactive, but consented to such use ; and he 
 is not bound to prove that he took some 
 step to manifest his dissent. Abrahams v. 
 State, 4 Iowa, 541 ; s. c. 6 lb. 117. 
 
 45. Proof of evil reputation of house. 
 On a charge of keeping a house of ill-fame 
 resorted to for the purpose of prostitution 
 and lewdness, the former may be proved by 
 the reputation of the liouse, the latter, by 
 the testimony of persons knowing the fact 
 that prostitutes and lewd persons resorted 
 there and committed acts of prostitution ; 
 and in determining the purpose for which 
 such persons resorted to the house, the jury 
 may take into consideration the reputation 
 of the house. O'Brien v. People, 38 Mich. 
 313. 
 
 46. On the trial of an indictment for 
 keeping a bawdy-house, it may be proved 
 that convicted prostitutes resorted to the 
 house of the accused; that females were 
 arrested there in the night charged with 
 being prostitutes; and that the accused 
 procured bail for them. Harwood v. People, 
 36 N. Y. 190. 
 
 47. Where on the trial of a complaint for 
 keeping a house of ill-fame, it appeared 
 that a former prosecution for the same of- 
 fense v?as discontinued upon payment of the 
 costs by the defendant, it was held that 
 evidence was admissible of the reputation 
 of the house, at the time of, and prior to 
 the former prosecution. State v. Main, 31 
 Conn. 573. 
 
 48. Proof of keeping house of ill-fame. 
 The oflFense of keeping a bawdy-house does 
 not respect the ownership of the house, but 
 its criminal management. It is therefore 
 proper to show on the trial of an indictment 
 for such oflrense,that the defendant procured 
 a woman from a neighboring town to go 
 and live in the house; and it is immaterial 
 whether he acted as principal, or as the 
 agent or servant of another. As the nuisance 
 consists in drawing together dissolute per- 
 sons engaged in unlawful practices, evidence 
 is admissible to show the character of the 
 persons who frequent the house. The gist 
 of the oflFense is the keeping or managing
 
 420 
 
 LASCIVIOUSNESS.— LETTER. 
 
 Evidence. 
 
 Unlawful to Open. 
 
 such a house to the public detriment, and 
 under a general allegation particular in- 
 stances may be proved. State v. McGregor, 
 41 New Hamp. 407. 
 
 49. In Massachusetts, an indictment for 
 keeping a house of ill-fame resorted to for 
 prostitution and lewdness, within the statute 
 (Gen. Stats, ch. 87, §§ 6, 7), will not be sus- 
 tained by proof of a single act of illicit 
 intercourse. There need not be proof of 
 numerous acts of prostitution or lewdness 
 permitted by the keeper of the house, but 
 it must be shown that it was kept as a place 
 of resort for such purposes. Com. v. Lambert. 
 12 Allen, 177. 
 
 50. Proof of unlawful cohabitation. An 
 indictment for unlawful cohabitation, under 
 the statute of Massachusetts of 1784, ch. 40, 
 § 6, is not supported by proof of a single act 
 of criminal intercourse between a married 
 man and an unmarried woman. Com. v. 
 Calef, 10 Mass. 153. 
 
 51. Proof of two acts of private inconti- 
 nence, are not sufficient to sustain an indict- 
 ment for lewd and lascivious cohabitation. 
 State V. Marvin, 12 Iowa, 499. 
 
 52. Proof of adultery will not support an 
 indictment for " living in open lewdness, 
 whoredom and adultery." State v. Brunson, 
 3 Bail. 149. 
 
 53. On the trial of an indictment for for- 
 nication and adultery, it is sufficient to show 
 circumstances from which the jury may 
 reasonably infer the guilt of the defendants. 
 Where in such case, a witness testified that 
 he went early one morning to the house of 
 the man, and on knocking was, after some 
 delay, admitted by the woman who came to 
 the door with her dress on but unfastened ; 
 that the man was in the only bed in the 
 room; that the shoes of the woman were 
 near the head of the bed, and that the bed 
 seemed to be very much tumbled; it was 
 held that the court properly refused to 
 charge the jury that there was no evidence 
 from which the jury might infer the crimi- 
 nality of the defendants. State v. Poteet, 8 
 Ired. 2o; and see Peak v. State, 10 Humph. 
 S9. 
 
 54. Proof of marriage. In Massachusetts, 
 on the trial of an indictment for lascivious 
 
 cohabitation, one of the parties being 
 married, it was held that such marriage 
 must be proved by the record of the clergy- 
 man or by witnesses who were present at the 
 ceremony. Com. v. Barbarick, 15 Mass. 163.. 
 
 55. Admissions and declarations. On 
 the trial of a man and woman jointly in- 
 dicted for living together in fornication, the 
 confessions of the woman are admissible in 
 evidence against her. But such confessions 
 can only operate against the party making 
 them. Lawson v. State, 20 Ala. 65. 
 
 56. On the trial of a man and woman for 
 living together in fornication, the admission 
 of the woman that hercodefendant was the 
 father of a bastard child of which she was 
 delivered more than twelve months after the 
 finding of the indictment, is admissible in 
 evidence against her when connected with 
 other acts committed within the period em- 
 braced in the indictment. lb. 
 
 57. In such case, a conversation between 
 the mother of the woman and the doctor, in 
 the room in which the woman was lying, a 
 few minutes after she had been delivered of 
 a child, as to the person to whom the doc- 
 tor should look for his pay, in which con- 
 versation she took no part, is not admissible 
 in evidence against her as tending to show 
 her admission of the truth of their state- 
 ments, lb. 
 
 58. The refusal of the man to pay for the 
 lying-in expenses of the woman, and his dec- 
 laration that the child was not his, are not 
 admissible in evidence in his behalf, when 
 not connected with any conversation or ad- 
 mission introduced by the prosecution, lb. 
 
 See Adux,tkry; Bigamy; Incest; Nui- 
 sance; Obscene publications. 
 
 £cttci\ 
 
 1. Unlawful to open. When a letter is 
 once placed in the post office, it is in the 
 custody of the law, and no one except the 
 writer, or person to whom it is addressed, or 
 his agent, has the right while it is there, to 
 open it for the mere purpose of ascertaining 
 its contents. The fact that it was agreed 
 between a criminal and the sheriff that the
 
 LETTER.— LIBEL. 
 
 421 
 
 Indictment. 
 
 Meaning and Nature. 
 
 latter might inspect all the letters written by 
 the former before they left the jail, and that 
 the criminal violated the agreement, would 
 not authorize the sheriflF to open the letter 
 after it was in the post office to ascertain its 
 contents, U. S. v. Eddy, 1 Bis. 227. 
 
 2. Indictment. An indictment for open- 
 ing the letter of another, contrary to the act 
 of Congress of March 3d, 1825 (4 Stat, at 
 Large, 109), will be sustained, although the 
 letter was not sealed, and was not in the 
 custody of any person having lawful charge 
 •of it, and although it was addressed to a 
 person under a fictitious name ; and the in- 
 dictment need not charge that the opening 
 was unlawful, or that the person to whom 
 the letter was addressed was a real person. 
 U. S. V. Pond, 2 Curtis C. C. 265. 
 
 3, When defendant entitled to acquit- 
 tal. On the trial of an indictment for open- 
 ing a letter which had been in the custody 
 of a mail carrier, before it had been deliv- 
 ered to the person to wiiom it was directed, 
 with a design to obstruct correspondence, 
 &c., as it appeared that the letter was de- 
 livered by the mail carrier at the place to 
 which it was directed ; and the defendant 
 had resorted to no fraud or artifice to get pos- 
 session of it ; and as there was no testimony 
 showing either the opening or destruction of 
 the letter, except the defendant's admissions, 
 the court directed an acquittal. U. S. v. 
 Mulvaney, 4 Parker, 164. 
 
 See Threatening to accuse of crdie. 
 
 Cibcl. 
 
 1. MEANINa AND NATURE. 
 
 2. Indictment, 
 
 3. Evidence. 
 
 4. Verdict. 
 
 5. Writ of error. 
 
 I. Meaning and nature. 
 
 1. What is. To charge a person with be- 
 ing " a hireling murderer," if false and ma- 
 licious, is slander; and if it is written and 
 published, it is a libel. Smith v. State, 32 
 Texas, 594. 
 
 2. A malicious publication, the obvious 
 design and tendency of which is to bring 
 the subject of it into contempt and ridicule, 
 is a libel, although it imputes no crime. 
 State V. Henderson, 1 Rich. 179. 
 
 3. Where the tendency of the publication 
 was to degrade a man in the opinion of the 
 community, impeach his integrity as a juror, 
 and make him an object of public distrust 
 and contempt, it was held that it was a libel. 
 Com. V. Wright, 1 Cush. 46. 
 
 4. To publish of a person that he is 
 habitually profane, is a libel. Com. v. 
 Batchelder, Thach. Crim. Cas. 191. 
 
 5. Need not be ill-will. Although mal- 
 ice is of the essence of libel, yet it is not 
 necessary to render an act malicious that the 
 party be actuated by a feeling of hatred or 
 ill-will toward the individual, or that he en- 
 tertain and pursue any general bad purpose 
 or design. Com. v. Snelling, 15 Pick. 337 ; 
 Com. V. Bonner, 9 Mete. 410. 
 
 6. The editor of a paper is liable for libel- 
 ous matter inserted therein, unless done 
 without his knowledge or consent. Com. 
 V. Kneeland, Thach. Crim. Cas. 346. 
 
 7. The fact that the publication is true 
 does not affect the character of the libel as a 
 public offense. Com. v. Blanding, 3 Pick. 
 304. 
 
 8. What is not. A consjjiracy to publish 
 what is true of a person, is not a criminal 
 offense, if done from good motives and for 
 justifiable ends. De Bouillon v. People, 2 
 Hill, 248 ; contra^ Com. v. Blanding, supra. 
 Simply charging another with forging, does 
 not impute a criminal offense, Jackson v, 
 Weisiger, 2 B. Mon. 214. 
 
 9. Where the object of the publication is 
 the removal of an incompetent person from 
 oflice, or the prevention of his election, or to 
 impart useful information to the community, 
 or to those who have a right to it, the occa- 
 sion is lawful, and the writer justified. 
 State V. Burnham, 9 New Hamp. 34. 
 
 10. The following is not libelous : " The 
 above druggist in the city of Detroit, refus- 
 ing to contribute his mite with his fellow 
 mei'chants, for watering Jefferson avenue, I 
 have concluded to water said avenue in 
 front of Pierre Felle's store for the week end-
 
 422 
 
 LIBEL. 
 
 Meaning and Nature. 
 
 Indictment, 
 
 ing June 27, 1846." People v. Jerome, 1 
 Mann. 142. 
 
 11. The reception of a libelous letter 
 Avhich has not been read or heard by some 
 third person, does not constitute the publi- 
 cation of a libel; though the sending of 
 such a letter is indictable, if the intention 
 in sending it was to provoke a breach of 
 the peace. Hodges v. State, 5 Humph. 
 112. 
 
 2. Indictment. 
 
 12. Must show that the publication is a 
 libel. An indictment for libel must set forth 
 matter which is prima facie libelous, and 
 whether or not it is libelous is to be deter- 
 mined by the court ; or it must charge that 
 the matter set out, although not a libel on 
 its face, was designed to be so, and then the 
 question is to be left to the jury. State v. 
 White, 6 Led. 418. The charge in an in- 
 dictment for libel need not be more specific 
 than the libelous publication. Melton v. 
 State, 3 Humph. 389. 
 
 13. What it ought to contain. It must 
 be expressly averred, when it does not appear 
 from the libel itself, who was its author, the 
 persons of and concerning whom it was 
 written, and its object. Where the writing 
 is not libelous on its face, but has a latent 
 meaning which renders it so, the latent 
 meaning must be set forth by way of aver- 
 ment or colloquium, so as to show on the 
 face of the indictment that the writing is a 
 libel. State v. Henderson, 1 Rich. 179; 
 State V. White, 6 Ired. 418. 
 
 14. An indictment which alleges that the 
 defendant published a libel "tending to 
 blacken the honesty, virtue, integrity and 
 reputation of the said A. B., and thereby 
 expose him to public hatred, ridicule and 
 contempt, in which said false, scandalous 
 and malicious libel there are defamatory 
 and libelous matters of and concerning the 
 character of the said A. B.," sufficiently 
 charges that the libel was in relation to A. 
 B. Taylor v. State, 4 Ga. 14. 
 
 15. Innuendo. The office of an innuendo 
 is to point out and refer to matter previously 
 expressed, to explain the meaning of the 
 publication when it is obscure, and to indi- 
 cate the persons charged to have been libeled 
 
 where they are referred to in ambiguous 
 terms. Giles v. State, 6 Ga. 276. 
 
 16. Where the persons charged to have 
 been libeled are referred to ambiguously, it 
 is not enough to charge generally that the 
 paper was composed and published " of and 
 concerning " those persons, with innuendos 
 accompanying the ambiguous terms that 
 they mean those persons. There must be 
 a positive averment that the defendant 
 under and by the use of the terms employed 
 wrote of and concerning those persons. 
 State V. Henderson, 1 Rich. 179. 
 
 17. Averment of publication. An in- 
 dictment which charges that the defendant 
 published a libel as an advertisement in a 
 newspaper, and sets forth the libel signed 
 by a third person, is sufficient without al- 
 leging that the libel was written by such 
 third person. Taylor v. State, 4 Ga. 14, 
 Charging that the defendant sent the libel is 
 a sufficient averment of publication. State 
 V. Barnes, 32 Maine, 530. 
 
 18. Libelous matter must be set out.. 
 The indictment will be bad unless it set out 
 the alleged libel in words and figures. Pro- 
 fessing to set it out according to its sub- 
 stance is not sufficient. State v. Brownlow, 
 7 Humph. 63 ; even though an exact copy 
 of the libel be given. State v. Goodman, 6" 
 Rich. 387; Com. v. Wright, 1 Cush. 46; 
 Com. V. Sweney, 10 Serg. & Rawle, 173. 
 
 19. Where it was charged that the libel 
 " contained among other things in substance 
 the following false, malicious and libelous 
 matters, according to the tenor and effect 
 follo-\ving, that is to say," it was held that 
 as the indictment professed to set forth the 
 substance and not the words of the libel, it 
 was insufficient. State v. Brownlow, 7 
 Humph. 63. 
 
 20. An indictment alleged that the de- 
 fendant " did write a certain false malicious 
 libel of and concerning the said A. B., 
 which said false, malicious and defamatory 
 libel is of the following purport and effect, 
 that is to say," and then set out a copy of 
 the libel within inverted commas. Upon 
 motion in arrest of judgment, it was held 
 that the indictment was bad, for the reason 
 that it did not profess to set out the words.
 
 LIBEL. 
 
 423 
 
 Indictment. 
 
 Evidence. 
 
 of the libel. State v. Goodman, 6 Rich. 
 387. 
 
 21. Where the indictment alleged that 
 the defendant published an account of an 
 illegal lottery, and set forth the lottery 
 scheme, which showed that the prizes con- 
 sisted of sums of money, it was held suffi- 
 cient, although it was not otherwise averred 
 that the lottery was set on foot for the pur- 
 pose of disposing of money, land, &c. 
 Charles v. People, 1 Comst. 180. 
 
 22. The whole of a book containing de- 
 famatory matter need not be set out. De- 
 scribing the libel as a letter, circular or 
 pamphlet is not objectionable, it being only 
 the statement of a mode of publication. 
 State V. Barnes, 32 Maine, 530. 
 
 23. Where in setting out a libel the omis- 
 sion or addition of a letter does not alter 
 the word so as to make it different, the 
 Tariance is not material. Com. v. Bucking- 
 ham, Thach. Crim. Cas. 29. 
 
 24. On the trial of an indictment for libel, 
 to the printed matter offered in evidence 
 there were appended words and figures con- 
 stituting a date or memorandum of the time 
 and place where it purported to have been 
 published, with a fictitious mark or signa- 
 ture, while nothing of the kind was averred 
 in the indictment. Held that the variance 
 was not material. Com. v. Harmon, 2 Gray, 
 
 289. » . 
 
 3. Evidence. fr 
 
 25. Descriptive averment. An aver- 
 ment which is descriptive of the offense 
 must be proved. The charge of sending to 
 more than one person is not of that char- 
 acter, but is only a statement of the mode 
 in which the offense is in part effected. 
 State V. Barnes, 32 Maine, 530. 
 
 26. Proof of publication. Where an in- 
 dictment alleged that a libel was published 
 by the defendant on the 21st of November, 
 and the publishing was proved to have been 
 on the 19th of the same month, it was held 
 that there was no variance, though it would 
 have been otherwise if the allegation had 
 been that the libel was published in a paper 
 hearing date November 21st. Com. v. Var- 
 ney, 10 Cush. 402. 
 
 27. In Massachusetts, where an indictment 
 
 for a libel alleged that it was contained in a 
 newspaper printed and published by two, 
 and it was proved that the newspaper was 
 printed and published by only one of the 
 persons named, it was held that under the 
 statute (of 1864, ch. 250, s 1) the variance 
 was not material. Com. v. Morgan, 107 
 Mass. 199. 
 
 28. Where on the trial of an indictment 
 for libel, the defendant testifies in his own 
 behalf, he may be compelled to state on 
 cross-examination, whether or not he was 
 the publisher of the newspaper which con- 
 tained the libel, although on his direct ex- 
 amination he was asked only as to his 
 knowledge of the publication of the libel, 
 lb. 
 
 29. Publication by defendant, when 
 presumed. A person who is proved to 
 have once written the libel which is subse- 
 quently published, will be deemed the maker 
 of it, unless he rebut the presumption by 
 showing that another person is the author. 
 The following instruction was held proper: 
 That if the jury believed that the libel was 
 in the handwriting of the defendant, was 
 afterward found by the roadside and read, 
 the presumption was that it was published 
 by him or by his authority, and that if it 
 was not so published, the burden of proof 
 was on the defendant to show how it came 
 out of his possession. Giles v. State, 6 Ga. 
 276. 
 
 30. Explanation of meaning. On the 
 trial of an indictment for libel, the meaning 
 of the language used by the defendant, 
 when it is ambiguous, or consists of expres- 
 sions not in common use but has a known 
 meaning among certain persons, may be ex- 
 plained. Thus it was held that the words 
 " State cop," in a libel, might be shown to 
 mean a deputy State constable. Com. v. 
 Morgan, 107 Mass. 199. 
 
 31. Admissions. The admissions of the 
 editor of the newspaper as to tlie author of 
 the publication made in his absence, are not 
 admissible until it is proved that the de- 
 fendant was the author. Com. v. Guild, 
 Thach. Crim. Cas. 329. 
 
 32. On the trial of an indictment for a 
 libel, admissions made by the complainant
 
 424 
 
 LIBEL. 
 
 Evidence. 
 
 are in general inadmissible in behalf of the 
 defendant, even to prove facts tending to a 
 justification. Otherwise as to conversations 
 or declarations wliich are a part of the rest 
 gestcE. De Bouillon v. People, 2 Hill, 248. 
 
 33. Presumption of malice. When libel- 
 ous matter is published, malice or the 
 intent to injure is presumed, and the burden 
 of proof is on the accused, to show that the 
 publication was made under such circum- 
 stances as to bring it within the class of 
 privileged communications. Smith v. State, 
 82 Texas, 594. 
 
 34. When a libel is sold in a bookseller's 
 shop, by a servant of the bookseller in the 
 ordinary course of his employment, or is 
 published in a newspaper, it is sufficient to 
 charge the bookseller or the proprietor of 
 the newspaper with the publication. In the 
 latter case, proof that the defendant had 
 never seen the libel, and was not aware of 
 its publication until it was pointed out to 
 him by a third party, and that an apology 
 and retraction were subsequently published 
 in the same newspaper, will not rebut the 
 presumption of guilt arising from the publi- 
 cation; his want of knowledge implying 
 criminal neglect to exercise proper supervis- 
 ion over his subordinates. Com. v. Morgan, 
 107 Mass. 199. 
 
 35. Other publication. On a trial for 
 libel, proof may be given of other libelous 
 publications of the defendant of the same 
 nature, against the same person, for the pur- 
 pose of showing malice ; but not as evidence 
 that the defendant published the libel 
 charged. State v. Riggs, 39 Conn. 498; 
 s. c. 1 Green's Crim. Reps. 558. 
 
 36. Proof in justification or mitigation. 
 In Massachusetts, it has been held that to 
 establish a justification under the statute, 
 the facts must be proved as strictly and pre- 
 cisely as if pleaded in a civil action. Com. 
 V. Snelling, 15 Pick. 337. 
 
 37. A libel which charges hardness toward 
 the poor, and dissoluteness of morals de- 
 rived from instances of bad conduct pre- 
 Aaously stated, cannot be justified by other 
 instances not stated in the publication. De 
 Bouillon V. People, 2 Hill, 248. 
 
 38. Where on the trial of an indictment 
 
 for a libel, the defendant does not cive the 
 truth in evidence in defense, he will not be 
 permitted to show that the person libeled 
 treated a portion of the libel as a joke orig- 
 inated by himself ; the public scandal and 
 injury to public morals remaining, however 
 lightly he may have treated it. Com. v. 
 Morgan, 107 Mass. 199. 
 
 39. Evidence that the complainant had 
 used violent, abusive and slandefous words 
 concerning tlie defendant, which had been 
 communicated to him about a month pre- 
 vious to the pul)lication of the libel, is 
 not admissible in mitigation of damages. 
 Graves v. State, 9 Ala. 447. 
 
 40. Truth of publication. Although the 
 truth of the libel be no justification, yet the 
 defendant may show the object of the pub- 
 lication to have been justifiable, after which 
 he may give its truth in evidence, to negative 
 the malice and intent to defame. Cora. v. 
 Clap, 4 Mass. 168; Com. v. Blanding, 3 
 Pick. 304. 
 
 41. In Massachusetts, prior to the year 
 1826, the truth of a libel was not admissible 
 in evidence. In that year a statute was 
 passed permitting such evidence to be given, 
 but providing that it should not be a justifi- 
 cation unless on the trial, it was made satis- 
 factorily to appear that the matter charged 
 as libelous was published with good mo- 
 tives and for justifiable ends. Com. v. 
 Batchelder, Thach. Crim. Cas. 191. 
 
 42. In New York, the libel cannot be jus- 
 tified by proving the truth, unless it be fur- 
 ther proved that the publication was made 
 from good motives and for justifiable ends. 
 De Bouillon v. People, 2 Hill, 248. 
 
 43. In Virginia, on the trial of an indict- 
 ment for libel, the truth may be given in 
 evidence in mitigation of the fine. Com. v. 
 Morris, 1 Va. Cas. 176. 
 
 44. In South Carolina, it was held that 
 the defendant could not prove the truth of 
 the libel, unless the prosecution desired it. 
 State V. Lehre, 2 Brev. 446. 
 
 45. A person incurs the same liability for 
 giving currency to a slander or libel as if he 
 had originated it. Evidence of common re- 
 port, or of publications in newsi^apers, is not
 
 LIBEL.— LICENSE. 
 
 425 
 
 Evidence. 
 
 Verdict. 
 
 Writ of Error. 
 
 Necessity of. 
 
 admissible to prove the truth of the charges. 
 State V. Butman, 15 La. An. 166. 
 
 46. But where a writing claimed to be a 
 libel, alleged that the prosecutor was called 
 a murderer, and forsworn, it was held that 
 the defendant might introduce evidence to 
 show that there was, and long had been, a 
 general report in the neighborhood, that the 
 prosecutor was a murderer and forsworn. 
 State V. White, 7 Ired. 180. 
 
 47- A written statement that the prosecu- 
 tor was charged and proved guilty, by the 
 affidavits of seven or eight of the most 
 respectable gentlemen of the county, of botli 
 fraud and lying, is not justified by affidavits 
 employed before an ecclesiastical tribunal 
 upon a charge made by the defendant 
 against the prosecutor. When such evi- 
 dence is introduced, the prosecution may 
 inquire what was the decision of that tri- 
 bunal. Graves v. State, 9 Ala. 447. 
 
 48. Proof of character. On a trial for 
 conspiracy to publish a lil:)el imjouting moral 
 delinquencies to a clergyman, after evidence 
 had been given as to the truth of the impu- 
 tations, it was held that the character of the 
 defendant for good morals, piety, and an 
 aversion to hypocrisy, might be shown on 
 the question of motive. De Bouillon v. 
 People, 2 Hill, 248. In such case, evidence 
 of the defendant's general good character 
 would be too indefinite, and therefore, in- 
 admissible, lb. 
 
 49. Waiver by defendant. Although in 
 prosecutions for liljel, the defendant is enti- 
 tled to have the question of libel or no 
 libel submitted to the jury, yet it is compe- 
 tent for him to waive this right, in which 
 case he cannot complain of a ruling of the 
 court, as matter of law, that it is a libel. 
 State V. Goold,62 Maine, 509; s, c. 2 Green's 
 Crim. Reps. 482. 
 
 4. Verdict. 
 
 50. What to contain. In South Carolina, 
 the jury may by their verdict determine 
 whether the matter charged be or be not 
 libelous, as well as the questions of fact as 
 to the publication of the writing, and its 
 truth. State v. Lehre, 2 Brcv. 446. 
 
 51. At common law, the publication of a 
 
 libel, was punishable by fine and imprison- 
 ment. State V. Bumham, 9 New Hamp. 34. 
 
 52. Must be consistent with charge. 
 An indictment for libel charged the defend- 
 ant with publishing of the prosecutor that 
 he " was the most swindling and worthless 
 speculator who ever brought ruin on the city 
 of St. Louis." The jury found a special 
 verdict of " guilty of charging the prosecu- 
 tor of being a visionary, worthless specula- 
 tor ; " held that the verdict was bad in find- 
 ing matter not alleged in the indictment, 
 and in not finding malice. Webber v. State, 
 10 Mo. 4. 
 
 5. Writ op error. 
 
 53. For exclusion of evidence. On error 
 brought by persons jointly convicted of a 
 conspiracy to publish a libel, they are enti- 
 tled to avail themselves of an erroneous 
 exclusion of evidence tending to exonerate 
 an alleged co-conspirator, since proof of his 
 innocence might tend to their benefit. De 
 Bouillon V. People, 2 Hill, 248. 
 
 54. Record. An obscene book or picture 
 can never with propriety be spread upon 
 the records of the court. Com. v. Holmes, 
 17 Mass. 336. 
 
 Ciccu5C. 
 
 1. Necessity of. It is not a defense to an 
 indictment for keeping an eating house 
 without a license, that the defendant con- 
 ducted the business as agent. Winter v. 
 State, 30 Ala. 22. 
 
 2. In New York, any person may keep an 
 inn, tavern, or hotel, without a license, un- 
 less he sell intoxicating liquors. People v. 
 Muqjhy, 5 Parker, 130, 
 
 3. To partnership. In Alabama, f\lthough 
 a license may be granted to a partnership, 
 upon each partner complying with the stat- 
 ute as to certificate, oath, &c., yet a license 
 to one partner individually confers no au- 
 thority upon his copartners or the firm. 
 Long V. State, 27 Ala. 32. 
 
 4. Unlawful granting of. To constitute 
 a criminal offense in granting a license under 
 the statute of New York, the license must
 
 42G 
 
 LICENSE.— LOTTERY. 
 
 Indictment. 
 
 What Constitutes. 
 
 have been granted with full knowledge of 
 the facts, and willfully. The offense con- 
 sists in the moiive and intent with wliich 
 the act was done. The mere granting of a 
 license which a court or jury might say 
 ought not to have been granted, is not an 
 offense; but the jury must be able to say 
 from the evidence that the commissioners, or 
 such as are pronounced guilty, knew at the 
 time that it was not a proper case for a li- 
 cense under the statute, and nevertheless 
 granted it in willful disregard of the statute 
 — that is, that they knowingly and purpose- 
 ly disregarded the statute. People v. Jones, 
 54 Barb. 311. 
 
 5. Indictment. An indictment for a sale 
 of merchandise, in violation of the license 
 law, must state to whom the goods were 
 sold, or allege that the person or persons are 
 unknown. Spielman v. State, 27 Md. 530. 
 
 6. In Alabama, an indictment under the 
 statute (Code, §§ 397, 399), for exhibiting 
 feats of sleight of hand without a license, 
 need not allege that the exhibition was for 
 profit ; nor need that fact be proved on the 
 trial. Spaight v. State, 29 Ala. 32 ; Pike v. 
 State, 85 lb. 419. 
 
 7. Evidence. Where, on a trial for ex- 
 hibiting feats of sleight of hand without a 
 license, it appeared that the alleged exhibi- 
 tion was a musical entertainment, regularly 
 licensed, it was held competent for the pris- 
 oner to show, as a part of the res gestxe, that 
 he publicly announced, while the audience 
 were assembling for the entertainment, that 
 he would show feats of legerdemain, free of 
 charge. Spaight v. State, supra. 
 
 8. Where, on the trial of a complaint for 
 refusing to allow a negro to play at billiards 
 in a public billiard room, it was not proved 
 that the room was licensed, it was held that 
 a conviction could not be sustained. Com. 
 V. Sylvester, 13 Allen, 247. 
 
 See Spirituous liquors, sale of. 
 
 £ottcnj. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 1. What constitutes. 
 1. What deemed. A revolving wheel, 
 
 with an index, which, upon being turned, 
 determines whether the holder of cards 
 marked with numbers corresponding with 
 numbers on the wheel, wins or loses, is a 
 lottery. Chavannah v. State, 49 Ala. 396. 
 
 2. The distribution of prizes by chance 
 constitutes a lottery. Randle v. State, 42 
 Texas, 580. Where, according to a scheme 
 upon which the defendants professed to act, 
 there was a correspondence between the 
 numbers placed on books purchased, and 
 the different articles proposed as gifts or 
 prizes the jDurchaser was entitled to have, it 
 was held that it was a lottery within the 
 statute of New Hampshire. State v. Clarke, 
 33 New Hamp. 329. 
 
 3. A public exhibition was conducted 
 thus: Each person got a ticket at the door, 
 with a number on it. At the close of the 
 exhibition one of the proprietors called, at 
 will, any number, and the person holding 
 the corresponding ticket presented himself, 
 when, if the exhibitor liked his appearance, 
 he gave him one of the articles advertised as 
 gifts. It was also a condition that, at the 
 option of the proprietors, there should be no 
 distribution of gifts. Held a lottery. State 
 V. Shoris, 3 Vroom (32 N. J.) 398. 
 
 4. The constitution of the American Art 
 Union provided that the society should pur- 
 chase such works of art as the state of the 
 treasury allowed, and that they were to be- 
 come, by lot, the property of the members, 
 each member being entitled to one chance or 
 share in the distribution, for each five dol- 
 lars subscribed and paid by him, the mode 
 of distribution being particularly pointed 
 out in the by-laws. The association jiub- 
 licly announced that, for the payment of 
 five dollars, any person would become a 
 subscriber, and entitled to an engraving, to 
 a copy of the bulletin of their proceedings, 
 and to a chance of one of a number of paint- 
 ings to be " distributed by lot among the 
 members, each member having one share for 
 every five dollars paid by him." Held not 
 unlawful within 1 N. Y. R. S. 666, §§ 30, 31. 
 People V. Am. Art. Union, 7 N. Y. 240. 
 
 5. The defendant was indicted for selling 
 a lottery ticket, of which the following was 
 a copy: "Chicago Industrial College and
 
 LOTTERY 
 
 427 
 
 What Constitutes. 
 
 Home Festival, This ticket is a receipt for 
 five dollars in payment for, and delivery of, 
 a copy of a steel-plate engraving and admis- 
 sion to our concerts and lectures for which 
 it is sold. By order of the officers. Thomas 
 & Co., General Agents." With the ticket a 
 steel-plate engraving was delivered, and a 
 hill, entitled " Grand National Festival to 
 erect, in the city of Chicago, an Industrial 
 College and Home for unfortunate females." 
 The bill stated that there would be given a 
 series of musical receptions, and a course of 
 lectures, at the close of which, and after the 
 sale of 200,000 copies of steel-plate engrav- 
 ings, there would be distributed, as pres- 
 ents to the purchasers of engravings, " in a 
 just and legal manner," $200,000 in presents, 
 amounting, in number, to 3,012. Twenty- 
 eight hundred of this number were newspa- 
 papers, at a price from $2 to $12 each. The 
 remaining 212 were estimated at from $35,- 
 000, to $50,000. Eeld a lottery. Thomas 
 V. People, 59 111. 160; s. c. 2 Green's Crim. 
 Reps. 551. 
 
 6. Lottery tickets. A guaranty, by 
 which the guarantor binds himself that he 
 will pay the prize which may be drawn to 
 a certain number in a lottery, when sold by 
 the proprietor of the ticket or a duly au- 
 thorized agent of the proprietor, is a lottery 
 ticket, though not in the form of one. Com. 
 v, Chubb, 5 Rand. 715. 
 
 7. A ticket purported to entitle the holder 
 to whatever prize should be drawn by its 
 corresponding number, in a scheme called a 
 " prize concert." The prizes were gifts in 
 greenbacks and other property. One-half 
 of all the tickets represented blanks, and 
 every other ticket was to draw a prize. Held 
 that this constituted a lottery. Com. v. 
 Thacher, 97 Mass. 583. 
 
 8. Advertisement. In Massachusetts, the 
 printer of a newspaper, containing an ad- 
 vertisement of lottery tickets, is liable to 
 indictment, though not concerned in the 
 sale of the tickets. Com.v.Clapp,5 Pick. 41. 
 
 9. In the same State, a sign-board at a 
 person's place of business, stating that lot- 
 tery tickets were for sale there, was held an 
 advertisement within the statute of 1825, 
 ch, 184, and to be a new advertisement 
 
 every day it was kept up after the passing 
 of the statute, although erected before. 
 Ibid. 
 
 10. Prohibitory statutes. In New York, 
 under the statute (1 R. S. 665, § 28), it is a 
 misdemeanor to publish in that State an 
 account of a lotteiy to be drawn in another 
 State or territory, although such lottery is 
 lawful in the place where it is to be drawn. 
 People V. Charles, 3 Denio, 212; 1 Comst. 
 180. 
 
 11. Construction of the Constitution of 
 New York (art. 1, § 10), and of the statute 
 (R. S. § 22), relative to "raffling and lot- 
 teries." People V. Am. Art Union, 7 N. Y. 
 240. 
 
 12. The statute of Connecticut (R. S. tit. 
 6, § 96), making it a criminal offense to pub- 
 lish within the State, any waitten or printed 
 proposals to sell or procure lottery tickets, is 
 not unconstitutional; and it is applicable 
 to domestic and foreign lotteries alike, 
 whether they are or are not authorized by 
 the laws of the State in which they are lo- 
 cated, and without reference to the place 
 where the tickets are to be procured or sold. 
 State V. Sykes, 28 Conn. 225. 
 
 13. An information charged that the ac- 
 cused published a proposal to sell and pro- 
 cure lottery tickets. The instrument, which 
 was set out in words and figures, was de- 
 nominated " a caution notice," and imported 
 a caution against the devices of fraudulent 
 ticket vendors, and the purchase of spurious 
 lottery tickets. It stated that the country 
 was flooded with swindling lotteries, what 
 lotteries and tickets should be avoided, 
 what lotteries were authorized, how the 
 genuine tickets could be distinguished from 
 the spurious, and that purchasers in the 
 Maryland State lotteries might be sure of 
 fair and honest drawings. But there was 
 no proposal to sell or procure lottery tickets, 
 and the author did not profess to have such 
 things for sale, or to be engaged in the busi- 
 ness of selling or procuring them. Held 
 not a violation of the statute of Connecticut 
 (R. S. tit. G, § 96), which prohibited the 
 publishing within tlie State, of any written 
 or printed proposals to sell or procure lottery 
 tickets. lb.
 
 428 
 
 LOTTERY 
 
 What Constitutes. 
 
 Indictment. 
 
 14. An indictment may be maintained 
 under the statute of Missouri, of Dec. 19th, 
 1843, for the sale of a lottery ticket, al- 
 though the statute is in the plural, prohib- 
 iting the sale of lottery tickets. Freleigh v. 
 State, 8 Mo. 606. 
 
 15. In Alabama, a resale of a ticket in a 
 lottery not authorized by law, by a third 
 person not connected with the lottery, is 
 not a violation of the statute (Code, § 3254), 
 when his previous purchase extinguished all 
 interest of ownership of every agent, con- 
 ductor, manager or proprietor in the ticket. 
 Salamon v. State, 38 Ala. 83. 
 
 2. Indictment. 
 
 16. Descriptive averments. The object 
 of the lottery will be sufficiently stated in 
 the indictment, by setting out verbatim an 
 advertisement that the lottery was made for 
 the purpose of disposing of money or prop- 
 erty, without other averment. People v. 
 Charles, 3 Denio, 212; affi'd 1 N. Y. 180. 
 
 17. In New York, an indictment for set- 
 ting on foot a lottery contrary to the statute, 
 must state the object of the lottery. A gen- 
 eral allegation of its object is not sufficient. 
 But the amount of the lottery need not be 
 stated. People v. Taylor, 3 Denio, 91. The 
 lottery must be described as one set on foot 
 for the purpose of disposing of property, 
 according to the terms of the statute (I R. 
 S. § 27). People v. Payne, 3 Denio, 88. 
 The indictment need not set out the tickets 
 .sold, or name the persons to whom they 
 were sold, it being alleged that their names 
 are unknown. People v. Taylor, supra; or 
 allege that the lottery was not authoi'ized by 
 law. People v. Sturtevant, 28 Wend. 418; 
 nor aver that the lottery was established in 
 the State, or got up for the purpose of dis- 
 posing of real estate, goods, money or things 
 in action. People v. Warner, 4 Barb. 314. 
 
 18. An indictment which alleged that the 
 defendant unlawfully did set on foot a cer- 
 tain lottery for the purpose of exposing cer- 
 tain money to abide the drawing of such 
 lottery, he being unauthorized, &c., without 
 containing other matter of description, was 
 held insufficient. People v. Taylor, 3 Denio, 
 91. 
 
 19. An indictment was held insufficient 
 which alleged that the defendant kept a 
 certain common gaming house, in which he 
 sold and furnished tickets in lotteries unau- 
 thorized by law, to divers persons. People 
 V, Jackson, 3 Denio, 101. 
 
 20. In Massachusetts, an indictment under 
 the act of 1825, ch. 184, for causing lottery 
 tickets to be advertised for sale, need not 
 allege that they were advertised as for sale 
 within the commonwealth, or charge that 
 the lottery was in the State, and against the 
 law thereof, or set forth the lottery. Com. 
 V. Clapp, 5 Pick. 41. 
 
 21. An indictment charged that the de- 
 fendant did unlawfully and knowingly per- 
 mit in the dwelling-house and building then 
 and there actually uged and occupied by him, 
 the setting up of a lottery, in which certain 
 articles of personal property and of value 
 were disposed of by the way of a lottery. 
 Held that it was unnecessary to allege that 
 it was " a lottery not authorized by law for 
 money," or to describe i>articularly the 
 articles which were the subject of the lot- 
 tery, their value, and owners, or to name the 
 parties who drew them as prizes. Com. v. 
 Horton, 2 Gray, 69. 
 
 22. In New Hampshire, an indictment 
 charging that "F., of Concord, unlawfully 
 sold to one C. part of a ticket, that is to 
 say, one quarter part of a ticket, at and for 
 the price of fifty cents, in a certain lottery 
 not authorized by the Legislature of the 
 State, contrary to the form of the statute in 
 such case made and provided," without any 
 description of the ticket or lottery, was held 
 good, since all lotteries were prohibited. 
 State V. Follet, 6 New Hamp. 53. 
 
 23. A ticket in a lottery entitling the 
 holder to one fourth of the prize drawn, 
 although commonly called a quarter of a 
 ticket, may be described as a lottery ticket 
 in an indictment under the statute of Mis- 
 souri of December 19, 1843, "to abolish 
 lotteries and to prohibit the sale of lottery 
 tickets in this State." Freleigh v. State, 8 
 Mo. 606. 
 
 24. In Pennsylvania, an indictment for 
 selling lottery tickets must allege the name
 
 MAGISTRATE.— MALICIOUS MISCHIEF. 
 
 429 
 
 Proceedings before, Continuous. 
 
 What Constitutes. 
 
 of the lottery and the number of the tickets 
 Com. V. Gillespie, 7 Serg. & Rawle, 469. 
 
 illagistratc. 
 
 Proceedings before, continuous. An ex- 
 amining magistrate does not act judicially 
 in the technical sense, but as conservator of 
 the peace. His proceedings are regarded as 
 continuous, unless forinally adjourned ; and 
 where a legal holiday intervenes, the close of 
 business on one day carries them over to 
 the next business day. Hamilton v. People, 
 29 Mich. 173. 
 
 ittaliciDus Arrest 
 
 See False imprisonment. 
 
 UTalicious iitiscljicf, 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Vekdict. 
 
 1. What constitutes. 
 
 1. Meaning. Malicious mischief is the 
 willful destruction of personal property from 
 ill-will or resentment toward its owner or 
 possessor, and out of a spirit of wanton 
 cruelty or wicked revenge. State v. Robin- 
 son, 3 Dev. & Batt. 130. Where it was 
 proved that the defendant supposed he had 
 a right to do the act, it was held that a con- 
 viction could not be supported. Goforth v. 
 State, 8 Humph. 37. 
 
 2. In Massachusetts, to constitute the of- 
 fense under the statute of 1803, ch. IGO, it 
 is not sufficient that the injury was willful 
 and intentional, but it must have been done 
 out of cruelty, hostility, or revenge. Com. 
 V. Williams, 110 Mass. 401; s. c. 2 Green's 
 Crim. Reps. 265. It is erroneous to charge 
 the jury that the word maliciously means 
 "the willfully doing of an act prohibited by 
 law, and for which the defendant had no 
 lawful excuse," and that " moral turpitude 
 
 of mind need not be shown.'' Com. v. Wal- 
 den, 3 Cush. 558. 
 
 3. What essential. The essence of the 
 crime of malicious mischief is the injury to 
 property. Without this, an act, however 
 wanton and dangerous, does not constitute 
 it. Wait V. Green, 5 Parker, 185. 
 
 4. Acts which will sustain an indictment 
 for arson or larceny will support a charge 
 for malicious mischief. State v. Leavitt, 33 
 Maine, 18;5. 
 
 5. At common law. It has been held not 
 an indictable oft'ense at common law to in- 
 jure the private property of another, though 
 done forcibly, unless the act be with a 
 breach of the peace. State v. Wheeler, 3 
 Vt. 344 ; lilies v. Knight, 3 Texas, 313. But 
 in New York, it was held that the wanton 
 destruction of personal property in the day 
 time, clandestinely and maliciously, was 
 a misdemeanor at common law. People v. 
 Moody, 5 Parker, 568. 
 
 6. It is an oflense at common law for a 
 person to shoot or wound stock found tres- 
 passing upon his premises. In Illinois, a 
 person so doing may be convicted and fined 
 under the statute for malicious mischief. 
 Snap V. People, 19 III. 80. 
 
 7. To put an irritating substance called 
 cow-itch on a towel and in a tub of water 
 used by another person is indictable at com- 
 mon law. People v. Blake, 1 Wheeler's 
 Crim. Cas. 490. 
 
 8. Injury of animals. It is indictable ta 
 maliciously, willfully and T\ickedly kill 
 another's horse or cow. Resp. v. Teischer, 1 
 Dall. 335 ; People v. Smith, 5 Cow. 258 ; 
 and stabbing another's horse is indictable 
 without proof of express malice. State v. 
 Council, 1 Overt. 305. 
 
 9. Malice toward the owner is essential to 
 constitute the oiFense of malicious injury to 
 animals; otherwise, it is a mere trespass and 
 not malicious mischief. Where the injury 
 is unlawful, malice may be presumed from 
 circumstances. Hill v. State, 43 Ala. 335; 
 Hobson V. State, 44 II). 381. 
 
 10. To render the defendant liable under 
 the statute of Tennessee (of 1803, ch. 9) for 
 maliciously killing cattle, there must be 
 malice against the owner of the cattle, and
 
 430 
 
 MALICIOUS MISCHIEF. 
 
 What Constitutes. 
 
 Indictment. 
 
 not merely agaiust the animals, and it must 
 be so alleged and ijroved. State v. Wilcox, 
 3 Yerg. 278. 
 
 11. In Indiana, an indictment under the 
 statute (R. S. cli. 53, § 71) for malicious mis- 
 chief, will be supported by proof of killing 
 a dog. State v. Sumner, 2 Carter, 377. In 
 Virginia, a dog is not property within the 
 meaning of the code (ch. 193, §58), for the 
 killing of which an indictment will lie. 
 Davis V. Com. 17 Gratt. 617. In New 
 Hampshire, dogs are under the protection of 
 the statute (R. S. ch. 215, § 18), and an in- 
 dictment will lie for their willful and mali- 
 cious destruction. State v. McDuffie, 34 
 New Hamp. 510. 
 
 12. In South Carolina, shaving the mane 
 and cropping the tail of a horse, in the 
 owner's stable, was held not to constitute 
 the offense of disfiguring within the meaning 
 of the statute. State v. Smith, Cheves, 157. 
 
 13. Destruction of property. Tearing 
 down advertisements for the sale of land for 
 taxes, and refusing to put them up again, 
 is an indictable offense. Pennsylvania v. 
 Gillespie, Addis. 267. 
 
 14. Where a person whose property had 
 been seized for taxes and a sale of it duly 
 advertised, after replevying it, tore down 
 the advertisement of sale, it was lield that 
 he was liable to indictment. Faulds v. Peo- 
 ple, 66 111. 210. 
 
 15. The willful and malicious cutting off 
 of a rope having a banner attached to it, by 
 means of which the rope and banner were 
 greatly injured, is an indictable offense 
 within the statute of New Hampshire (R. S. 
 ch. 215, § 18). State v. Webster, 17 New 
 Hamp. 543. 
 
 16. It is not indictable, unlawfully and 
 maliciously to destroy the saddle bags of 
 another. Shell v. State, 6 Humph. 283. 
 
 17. A person in possession of land under 
 a lona fide claim of title, cannot be guilty of 
 malicious mischief in tearing down a fence 
 erected on the land against his consent. On 
 the trial of an indictment for malicious mis- 
 chief, it appeared that there was a contro- 
 versy between the prosecutors and the de- 
 fendant as to the possession of land, the de- 
 fendant being in victual possession, and that 
 
 on the prosecutors attempting to run a 
 division fence across it, the defendant took 
 up the posts and tore off the boards while 
 the fence was in process of construction ; 
 that the defendant forbade them from 
 making the fence, protesting that they had 
 no right so to do, and that he was paying 
 rent for the whole premises. Held that the 
 defendant was entitled to acquittal. Sattler 
 v.'People, 59 111. 08; s. c. 2 Green's Crim. 
 Reps. 550. 
 
 18. An indictment for malicious mischief 
 in destroying a quantity of standing Indian 
 corn cannot be supported ; the offense being 
 confined to personal projierty. State v. 
 Helms, 5 Ired. 364. 
 
 19. In Virginia, a person was charged 
 with knowingly, willfully, and without 
 lawful authority, cutting down and carry- 
 ing away a line tree standing on the division 
 line between his land and the land of an- 
 other. Held not an oftense within any 
 statute then in force in that State. Powell's 
 Case, 8 Leigh, 719. 
 
 2. Indictment. 
 
 20. Averment of malice. An indictment 
 for malicious mischief must either expressly 
 allege malice against the owner, or other- 
 wise describe the offense. Charging that 
 the act was done feloniously, willfully and 
 maliciously, without stating that it was 
 done mischievously, or with malice against 
 the owner, is not sufficient. State v. Jack- 
 son, 12 Ired. 329. 
 
 21. In Kentucky, an indictment under the 
 statute (R. S. ch. 28, art. 25, § 8), which 
 provides for the punishment of any person 
 who shall willfully kill, disfigure or maim 
 any horse, cow, &c., not his own, without 
 the consent of the owner, charging that the 
 defendant imlm<^fuU.y killed the horse of R. 
 C, omitting the word " willfully," was held 
 fatally defective. Com. v. Turner, 8 Bush, 
 1 ; 8. c. 1 Green's Crim. Reps. 293. 
 
 22. An indictment for cutting timber on 
 another person's land, must allege that it 
 was done knowingly. State v. Arnold, 39 
 Texas, 74. 
 
 23. Nature of act. An indictment for 
 malicious mischief need not allege that the
 
 MALICIOUS MISCHIEF. 
 
 431 
 
 Indictment. 
 
 offense was committed with force and arms. 
 Taylor v. State, 6 Humph. 285. 
 
 24. Description of property. Where an 
 indictment for defacing and destroying a 
 promissory note, alleges that the tenor of 
 the note cannot be set forth because it was 
 destroyed by the defendant, it must state the 
 substance and effect of the instrument. 
 Birdg V. State, 31 Ind. 88. 
 
 25. In Vermont, it was held that an in- 
 dictment for wounding a steer need not 
 allege in the words of the statute that the 
 steer was "cattle or other beast." State v. 
 Abbott, 20 Vt. 537. 
 
 26. An indictment under a statute (R. S. 
 of Mass. ch. 126, § 42) punishing a person 
 who shall maliciously or wantonly break the 
 glass in any building, must allege that the 
 glass was a part of a building. An aver- 
 ment that it was in a building is not suffi- 
 cient. Com. V. Bean, 11 Cush. 414; s. p. 
 Com. V. Lindsay, lb. 415, iwte. 
 
 27. An indictment under a statute punish- 
 ing the willfully and maliciously cutting 
 down a tree which had been marked to 
 show the " point on a boundary of " land, 
 alleged that the defendant willfully and 
 maliciously cut down a tree which had been 
 marked in order to designate " a corner of a 
 tract of land." Held insufficient. State v. 
 Mallory, 5 Vroom (34 N. J.) 410. 
 
 28. In Indiana, an indictment for mali- 
 cious mischief in destroying and injuring the 
 windows of a county seminary which was 
 under the management of county commis- 
 sioners, was held in efi'ect to charge the 
 malicious destruction of public property; 
 and it was further held that the prosecution 
 need not prove that the title to the seminary 
 was in the county. Read v. State, 1 Smith, 
 369. 
 
 29. Averment of ownership. An indict- 
 ment for maliciously killing a domestic 
 animal must eithcJr allege the owner's name 
 or state that the name of the owner is un- 
 knoAvn. State v. Pierce, 7 Ala. 723. 
 
 30. An indictment under the statute of 
 New Ilamp.shire (R. S. ch. 215, § 3) for 
 maliciously placing obstructions on a rail- 
 road track need not aver the legal existence 
 or organization of the company, or tlie 
 
 ownership of the road. Where it was 
 charged that the defendants " willfully and 
 maliciously placed upon the track of the 
 Boston and Maine railroad" in S. an ob- 
 struction, it was held that the averment was 
 one of description and not of property, and 
 that it might be proved by parol that the 
 road was known by the name alleged. 
 State V. Wentworth, 87 New Hamp. 196. 
 Such indictment need not allege that the 
 railroad was a corporation or carrier, or a 
 way or road used for travel. lb. 
 
 31. Allegation of value. Where the 
 statute does not make the punishment for 
 injuring an animal depend upon the value 
 of the animal, it is not necessary to allege 
 the value in the indictment. Caldwell v. 
 State, 49 Ala. 34. 
 
 32. Description of injury. An iudict- 
 ment alleging that the defendant willfully 
 shot a domestic animal with intent to injure 
 the owner must state the amount of the in- 
 jury. State V. Heath, 41 Texas, 426. 
 
 33. In Massachusetts, an indictment which ' 
 alleges that the defendants did willfully and 
 maliciously kill the horse of another person 
 named, sufficiently avers the statute offense 
 (R. S. ch. 126, § 39) without setting forth 
 the manner of the killing. Com. v. Sowle, 
 
 9 Gray, 304. 
 
 34. In Missouri, an indictment under the 
 statute prohibiting the torture of animals, 
 which merely charged the tying of brush or 
 boards to the tail of a horse, without any 
 other averment, was held insufficient, such 
 act not necessarily producing torture. State 
 V. Pugh, 15 Mo. 509. 
 
 35. In Massachusetts, an indictment under 
 the statute (Gen. Stats, ch. 161) for destroy- 
 ing hens by poison need not state what kind 
 of poison was used, and the allegation that 
 the act was done unlawfully, willfully and 
 maliciously is sufficient without an aver- 
 ment of guilty knowledge. The intent to 
 poison the hens and the placing of the poison 
 where they found and ate it, is causing 
 them to eat it; and whereseveral hens were 
 destroyed the indictment may state their 
 collective value. Com. v. Falvey, 108 Mass. 
 304. 
 
 36. An indictment under the statute of
 
 432 
 
 MALICIOUS MISCHIEF. 
 
 Evidence. 
 
 New Hampshire (R. S. ch. 215, § 3) for 
 maliciously placing obstructions on a rail- 
 road track, " whereby the life of any person 
 may be endangered," is sulEcient after ver- 
 dict if it contain the averment, "whereby 
 the lives of sundry persons, to wit, twenty 
 persons riding in said cars upon said railroad 
 were greatly endangei-ed," without naming 
 the persons. State v. Wentworth, 37 New 
 Hamp. 196. 
 
 3. Evidence. ^r 
 
 37. Proof of ownership. On the trial of 
 an indictment for maliciously killing a do- 
 mestic animal, it must be proved that there 
 was an owner and who he was. But it is 
 not essential to a conviction that the de- 
 fendant before committing the act declared 
 his intention to injure the owner, or did or 
 said anything showing express malice. 
 Malice will be presumed. State v. Gamer, 
 8 Porter, 447. 
 
 38. Where an indictment for breaking 
 down a dam alleges the ownership of the 
 dam, it must be proved as laid. State v. 
 Weeks, 30 Maine, 183. 
 
 39. On a trial for maliciously cutting and 
 girdling fruit trees, described in the indict- 
 ment as the property of B., it is sufiicient 
 proof of ownership to prove that the land 
 on which the trees stood was in the posses- 
 sion and occupation of B. at the time the 
 offense was committed. People v. Horr, 7 
 Barb. 9. 
 
 40. A complaint for maliciously breaking 
 glass in a buildiug, the property of Nathan 
 S. Hoard, is not supported by proof that the 
 building was hired of Nathan Hoard, and 
 that the defendant threatened to break the 
 windows of Mr. Hoard. Com. v. McAvoy, 
 16 Gray, 335. 
 
 41. Property injured. An indictment 
 which charges the malicious killing of a 
 horse, will not be sustained by proof of the 
 killing of a gelding. Gholston v. State, 33 
 Texas, 343. As to the same rule, in case of 
 larceny, see Gibbs v. State, 34 lb. 134. 
 
 42. Nature of injury. An indictment for 
 an attempt to poison a horse, charged that 
 the defendants "filled and saturated" po- 
 tatoes with croton oil, intending to give 
 
 them to the horse to eat. The evidence 
 showed that the potatoes were not saturated, 
 but that they were filled with bran which 
 was. Held that the variance was not ma- 
 terial. Com. V. McLaughlin, 105 Mass. 460. 
 
 43. In Texas, it was held that an indict- 
 ment for altering the brand of a cow, was 
 supported by proof that the defendant put 
 an additional brand on the animal to the one 
 already on her, although the second brand 
 did not interfere with or change the first. 
 Linnay v. State, 6 Texas, 1. 
 
 44. On the trial of an indictment for ma- 
 licious mischief containing but one count, 
 for an injury to " a mare and an ox," com- 
 mitted at diflerent times, it is error to refuse 
 to charge that " if the State had failed to 
 prove that the mare and ox were injured at 
 the same time, or so near each other as t© 
 constitute the same offense, the defendant is 
 not guilty as charged." The indictment in 
 such case should have charged the ofiiensesin 
 two counts, or in the alternative in the same 
 count. Burgess v. State, 44 Ala. 190. 
 
 45. In Massachusetts, an indictment un- 
 der the statute (R. S. ch. 136, § 39), for ma- 
 licious mischief, charging that the defend- 
 ant willfully, maliciously and secretly de- 
 stroyed lobster cans and cables to which the 
 cans were attached, was held sustained by 
 proof that the cables were cut in the center, 
 and that the cans had floated a short distance 
 away, and were somewhat injured. Com. v. 
 Soule, 3 Mete. 31. 
 
 46. On the trial of an indictment for ma- 
 liciously obstructing a railroad track by 
 placing pieces of timber on it, it is not nec- 
 essary that the proof should correspond 
 •with the allegation as to the number of the 
 l^ieces of timber. It is sufficient if the 
 evidence shows that one piece of timber was 
 placed on the track in such a manner as to 
 obstruct the passage of the cars. Allison v. 
 State, 43 lud. 354 ; s. c. 3 Green's Crim. Reps. 
 683. 
 
 47. Proof of another offense. On the 
 trial of an indictment for placing obstruc- 
 tions on a railroad track, evidence that the 
 prisoner placed obstructions on the track 
 other than those for which he was indicted, 
 is admissible when the acts are so connected
 
 MALICIOUS MISCHIEF. 
 
 433 
 
 Evidence. 
 
 as to form one entire transaction. State v. 
 Wentworth, 37 New Ilanip. 196. 
 
 48. Proof of malice. On tbe trial of an 
 indictment for maliciously injuring a fence, 
 the following instruction was held errone- 
 ous: "Malice maybe inferred or implied 
 from the act, or manner of committing the 
 act, or by its repetition, or by the relation 
 existing between the defendant and the 
 family in which he lived, and the owner of 
 the fence,'' it not being competent for the 
 jury to consider as one of the circumstances 
 tending to prove a malicious intent on the 
 part of the defendant, the relation existing 
 between the family in which he lived, and 
 the owner of the fence. State v. McDer- 
 mott, 36 Iowa, 107; s. c. 3 Green's Crim. 
 Reps. 634. 
 
 49. In Tennessee, where on the trial of an 
 indictment for malicious mischief, it was 
 proved that the act was committed without 
 any unlawftil, willful and malicious intent to 
 injure, but under the belief that the defend- 
 ant had a right to commit it, it was held 
 that the defendant must be acquitted. Go- 
 forth v. State, 8 Humph. 37. 
 
 50. In Maine, an indictment under the 
 statute (R. S. ch. 162, § 2), which provides 
 that if any person shall maliciously or wan- 
 tonly break down, injure, remove, or destroy 
 any dam, &c., he shall be punished, &c., 
 charged that the defendants maliciously and 
 wantonly broke down, &c. Held, that proof 
 that the act was done either maliciously or 
 wantonly was sutBcient. State v. Burgess, 
 40 Maine, 592. 
 
 51. On the trial of an iodictment for ma- 
 licious mischief, evidence of malice toward 
 Ihe son of the owner of the property is not 
 admissible. Northcot v. State, 42 Ala. 
 330. 
 
 52. In Tennessee, on a trial under the 
 statute (Code § 4657), for malicious mis- 
 chief in killing a horse in the possession of 
 a bailee, it is sufficient to prove malice to- 
 ward the bailee, notwithstanding the indict- 
 ment describes the horse as the property of 
 the general owner. Stone v. State, 3 Heisk. 
 457; s. c. 1 Green's Crim. Reps. 520. 
 
 53. If the act of altering or defacing the 
 marks of cattle is proved to have been will- 
 
 fully done, it follows that the intent was to 
 defraud the owner, unless there be proof to 
 the contrary. State v, Davis, 2 Ired, 153. 
 
 54. Whether a person was guilty of ma- 
 licious shooting or not, with intent to kill, 
 depends upon the question whether if he 
 had killed the person at whom he shot, 
 instead of only wounding him, the offense 
 would have been murder. Read v. Com. 22 
 Gratt. 924 ; s. c. 1 Green's Crim. Reps. 267. 
 
 55. Presumption. On the trial of an in- 
 dictment for maliciously shooting and kill- 
 ing a mare, a witness was permitted to 
 testify as to the kind of shot found in an 
 animal which was at the same time wounded, 
 with a view of showing that the shot 
 agreed in size with those found at the de- 
 fendant's house on the day the shooting 
 took place, as a circumstance to connect the 
 defendant with the offense charged. State 
 V. Wholeham, 22 Iowa, 297. 
 
 56. Opinion of witness. On a trial for 
 willfully and maliciously shooting a mule, it 
 was held that a witness who was acquainted 
 with the mule, both before and after the 
 occurrence, but who had no skill in veteri- 
 nary or medical science, might state his opin- 
 ion as to the extent of the damage caused 
 by the wound. Johnson v. State, 37 Ala. 
 457. 
 
 57. Declarations of defendant. On tbe 
 trial of an indictment for maliciously killing 
 a hog, the declarations of the defendant im- 
 mediately after the occurrence tending to 
 show that it was accidental, are admissible 
 in evidence in his behalf. State v. Graham, 
 46 Mo. 490. 
 
 58. On a trial for malicious mischief, the 
 only evidence was, that the witness asked 
 the defendant "what made him shoot his 
 mare," to which the defendant replied that 
 "he did not shoot her with shot." Held 
 not sufficient to sustain a conviction. Dover 
 V. State, 32 Texas, 84. 
 
 59. Justification. On the trial of an in- 
 dictment for malicious mischief in shooting 
 a mule, it is competent for the defendant to 
 show that the mule was of a thievish and 
 unmanageable disposition, and that he shot 
 it to protect his crop, and not from ill will
 
 434 MALICIOUS MISCHIEF.— MALICIOUS TRESPASS. 
 
 Evidence. 
 
 Verdict. 
 
 What is or is not Deemed. 
 
 to the owner, or cruelty to the animal. 
 Wright V. State, 30 Ga. 325. 
 
 60. It is not a defense to an indictment 
 for altering and defacing marks on cattle, 
 that at the time the act was committed, the 
 cattle had strayed from their owner. State 
 V. Davis, 2 Ired. 153. 
 
 61. On the trial of an indictment for ma- 
 licious mischief in tearing down and remov- 
 ing a fence standing on the land of another, 
 it is no justification, that the defendant 
 built the house, or that his wife claimed an 
 interest in the land. Rilter v. State, 33 
 Texas, 608. 
 
 4. Verdict. 
 
 62. Must find malice. Since to consti- 
 tute malicious mischief at common law, 
 there must have been malice toward the 
 owner of the property injured, if this be 
 not found by the verdict, the defendant 
 must be acquitted. State v. Newby, 64 N. 
 C. 23. 
 
 See Malicious trespass. 
 
 illaliciouo Prosecution. 
 
 When indictable. It is an indictable of- 
 fense to buy three promissory notes against 
 the same person, get them into as many 
 judgments, and issue separate executions on 
 them. But such acts do not make the per- 
 petrator of them, a common barretor. Com. 
 V. McCulloch, 15 Mass. 227. 
 
 iilalicious trespass. 
 
 1. "What is or is not deemed. 
 
 2. Complaint. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 1. What is or is not deemed. 
 
 1. Destruction of property. Tearing 
 down the roof and chimney of a dwelling- 
 house in the peaceable possession of another, 
 is indictable at common law. State v. Wil- 
 son, 3 Mo. 125. 
 
 2. On a prosecution for malicious trespass 
 
 in injuring a toll gate on a turnpike, it was 
 proved that the defendant was traveling 
 with a two horse team, and that on refusing 
 to pay toll, and the gate being closed against 
 him, he sawed the gate down and went 
 through. Held that the conviction was proper. 
 Bock V. State, 50 Ind. 281. 
 
 3. Severing and taking away a growing 
 crop by one act, is only a trespass. By the 
 statute of New York, such an act, if the 
 property so severed and taken was of more 
 than $25 dollars value, would be grand lar- 
 ceny; but if of the value of $25 or less, the 
 act is not a criminal offense unless charged 
 to have been done maliciously ; and if so 
 charged, it is a misdemeanor as a malicious 
 trespass, but not stealing. Comfort v. Ful- 
 ton, 39 Barb. 56. 
 
 4. Killing dog. Whether the right of 
 property in dogs is such in South Carolina 
 that an indictment for malicious trespass 
 will lie for killing them — query. State v. 
 Trapp, 14 Rich. 203. 
 
 5. Acts not regarded as criminal. A 
 man is not liable to a criminal prosecution 
 for destroying timber upon lands which he 
 holds possession of by virtue of a contract 
 obtained by fraud. Howe v. State, 10 Ind. 
 492. 
 
 6. A person without color of title, cannot 
 defeat a criminal prosecution for malicious 
 trespass upon lands by setting up a title 
 thereto in himself. But where he has a 
 paper title apparently valid on its face, and 
 claims in good faith to be the owner, and is 
 in possession, either by himself or others 
 occupying by his direction, he cannot be 
 prosecuted criminally for a trespass commit- 
 ted thereon by him to the damage of a third 
 person, although such third person, in the 
 end, may prove to have the better title. 
 Windsor v. State, 13 Ind. 375. 
 
 7. Where a person has used a private way 
 for a long period, supposing that he had a 
 right so to use it, he will be guilty of ma- 
 licious trespass in tearing down a fence 
 placed across the way. Palmer v. State, 45 
 Ind. 388; s. c. 2 Green's Crim. Reps. 718. 
 
 8. The stopping of a train of cars by a 
 passenger by pulling the signal-rope at- 
 tached to a bell upon the engine is not a
 
 MALICIOUS TRESPASS.— MANDAMUS.— MAYHEM. 435 
 
 Complaint. 
 
 Indictment. 
 
 Evidence. 
 
 Ground for. 
 
 criminal obstruction of the train within the 
 statute of Massachusetts (Genl. Stats, ch. 
 63, § 107). Com. v. Killian, 109 Mass. 345. 
 
 9. An indictment cannot be maintained 
 against a person for being in the habit of 
 going frequently to the house of another, 
 and so maltreating his family as to render 
 their lives uncomfortable. Com. v.Edwards, 
 1 Ashm. 46. 
 
 2. Complaint. 
 
 10. What it ought to contain. An affi- 
 davit and complaint for malicious trespass 
 must allege the ownership of the property 
 injured, and the nature of the injury. State 
 V. Jackson, 7 Ind. 270 ; see Boswell v. State, 
 8 lb. 499. 
 
 3. Indictment. 
 
 11. Averment of injury. An indictment 
 for malicious trespass, alleging that the de- 
 fendant maliciously and mi«chievously in- 
 jured and caused to be injured a certain 
 house, the property of one M., of the value 
 of fifty dollars, contrary to the form of the 
 statute, &c., was held insufficient in not 
 showing what injury was done to the house. 
 State V. Aydelott, 7 Blackf. 157. 
 
 12. Where, under an information for cut- 
 ting trees upon another's land, the value of 
 the trees is the basis of the penalty, the 
 damage to the owner need not be alleged. 
 State V. Shadley, 16 Ind. 230. 
 
 13. Description of property. An in- 
 dictment for maliciously injuring a dwelling- 
 house occupied by a tenant at will of the 
 owner, may describe the house as the ten- 
 ant's. State V. Whittier, 21 Maine, 341. 
 
 14. In Indiana, an indictment for ma- 
 licious trespass was held sufficient under the 
 statute (R. S. ch. 53, § 71), which alleged 
 that the defendant did unlawfully, mali- 
 ciously, and mischievously injure and de- 
 stroy several windows belonging to a certain 
 county seminary, the property of the county 
 of S. Read v.State; on appeal, lCarter,511. 
 
 4. Evidence, f^ 
 
 15. Ownership of property. An indict- 
 ment for malicious trespass in killing a dog, 
 charged that the animal was owned by A. 
 
 It was proved that the dog was the property 
 of B., a son of A., who was eighteen years 
 of age, and lived with his father, it having 
 been presented to B. by his sister. Held^ 
 that the variance was fatal. State v. Trapp, 
 14 Rich. 203. 
 
 16. Malicious intent. On the trial of an 
 indictment for a malicious trespass, it is er- 
 roneous for the court to charge that it is 
 competent for the jury to consider as a cir- 
 cumstance tending to prove a malicious in- 
 tent on the part of the defendant the re- 
 lation existing between the family in which 
 he lived and the owner of the property. 
 State V. McDermott, 36 Iowa, 107. 
 
 See Malicious mischief; Trespass. 
 
 ilTanbamus, 
 
 Ground for. On an application for a man- 
 damus against the Hartford and New Ha- 
 ven Railroad Company, it appeared that the 
 company was incorporated with power to 
 construct and operate a railroad from Hart- 
 ford to the navigable waters of New Haven 
 harbor, and that a steamboat company was 
 afterward chartered to run in connection 
 with it, and that the line thus established 
 was maintained with great public benefit for 
 several years, and until a side track was 
 constructed by the railroad company a mile 
 and a half from its terminus on the harbor, 
 running to the station of the New York and 
 New Haven Railroad Company, when the 
 Hartford and New Haven company discon- 
 tinued the conveyance of passengers to the 
 original terminus, to the great detriment of 
 public travel. Held that the application 
 ought to be granted. State v. Hartford and" 
 New Haven R. R. Co. 29 Conn. 533. 
 
 illauslaugljtcr 
 
 See Homicide. 
 
 iHa|)l)cm. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Verdict.
 
 436 
 
 MAYHEM. 
 
 What Constitutes. 
 
 Indictment. 
 
 Evidence. 
 
 1. What constitutes. 
 
 1. At common law. To constitute may- 
 hem at common law, the injury must have 
 been permanent. A temporary disabling of 
 a linger, an arm, or an eye would not be 
 sufBcient. It is the same in Alabama, under 
 the statute of 1807. State v. Briley, 8 
 Porter, 472. 
 
 2. The breaking into a man's dwelling- 
 house in the night time, and cutting ofi' his 
 ear, is indictable at common law. Com. v. 
 Newell, 7 Mass. 245. 
 
 3. In New York. To constitute the of- 
 fense of mayhem under the statute of New 
 York, the disabling must be done with pre- 
 meditation, and not be the result of an un- 
 expected instantaneous encounter, or of the 
 excitement produced by the fear of bodily 
 harm. Burke v. People, 11 N. Y. Supm. 
 N. S. 481 : Godfrey v. People, 12 lb. 369. 
 
 4. In North Carolina. To constitute 
 mayhem under the statute of North Caro- 
 lina, by biting off an ear, it is sutHcient if 
 only a part is taken off, provided it changes 
 and impairs the natural personal appearance, 
 and to ordinary observation renders the 
 person less comely. State v. Gerkin, 1 Ired. 
 121. 
 
 5. In Alabama. To support an indict- 
 ment for putting out the eye of a person 
 under the statute of Alabama, it is sufficient 
 if the defendant maliciously and on purpose 
 does the act, in jDursuance of a design formed 
 during the conflict. State v. Simmons, 3 
 Ala. 497. 
 
 6. In Alabama, to constitute mayhem, the 
 member need not be wholly mutilated ; but 
 there must be so much of it mutilated as to 
 disfigure the person on ordinary inspection. 
 State V. Abram, 10 Ala. 928. 
 
 7. In Arkansas. Under the statute of 
 Arkansas, maiming consists in unlawfully 
 disabling a human being, by depriving him 
 of the use of a limb or member, or rendering 
 him lame, or defective in bodily vigor; and 
 it is immaterial by what means, or with what 
 instrument the injury is effected, provided 
 the crime is consummated by depriving the 
 party of the use of a limb or member of his 
 body. Baker v. State, 4 Ark. 56. 
 
 3. Indictment. 
 
 8. Necessary averments. The indict- 
 ment at common law and under the statute 
 of Tennessee, in addition to stating the 
 injury, must charge that the party was 
 thereby maimed. Chick v. State, 7 Humph. 
 161. In Alabama, an indictment for may- 
 hem need not charge that the act was done 
 feloniously. State v. Absence, 4 Porter,. 
 397. In North Carolina, an indictment 
 under the statute (act of 1791, R. S. 339) for 
 biting off an ear, must charge that the 
 offense was committed on purpose as well 
 as unlawfully. State v. Ormond, 1 Dev. & 
 Batt. 119. But an indictment under the 
 statute of North Carolina (R. S. ch. 84, §48), 
 for maiming by biting off an ear, need not 
 state whether it was the right or the left 
 ear. State v. Green, 7 Ired. 89. An intent 
 to disfigure will be inferred. State v. Ger- 
 kin, 1 lb. 121. 
 
 9. Description of injury. In Virginia, 
 an indictment under the statute against 
 mayhem, charged a shooting with intent to 
 maim, disfigure, disable and kill ; while the 
 statute used the disjunctive or, instead of 
 the conjunctive as in the indictment. Held 
 that the indictment was good. Angel v. 
 Com. 2 Va. Cas. 231. 
 
 10. An indictment for mayhem which 
 charges that the defendant slit, cut off and 
 bit off the ear of a person, is not bad for 
 duplicity. State v. Ailey, 3 Heisk. 8. 
 
 11. An allegation that the nose of the 
 prosecutor was bitten off, is within a statute, 
 so as to imply a cutting off of the nose. 
 State v. Mairs, Coxe, 453. 
 
 12. In Oregon, it was held proper to 
 designate as mayhem the maliciously and 
 feloniously tearing off of an ear. State v. 
 Vowels, 4 Oregon, 324. 
 
 8. Evidence. 
 
 13. Guilty intent. In North Carolina, on 
 the trial of an indictment under the statute 
 (R. S. ch. 34, § 48), malice aforethought, or 
 a previous intention to commit the mayhem, 
 need not be proved. State v. Gerkin, 1 
 Ired. 121. 
 
 14. Restoration of member. Where on 
 a trial for maiming, it is proved that the
 
 MAYHEM.— MISDEMEANOR. 
 
 437 
 
 Evidence. 
 
 Verdict. 
 
 What Constitutes. 
 
 person injured lost a member of his body by 
 the willful act of the defendant, a conviction 
 will be sustained, although it also appear 
 that the member was afterward put back 
 and grew in its proper place. Slatterly v. 
 State, 41 Texas, 619. 
 
 15. Justification. In order to make a 
 previous assault on the defendant, who is 
 charged with mayhem, a good justification, 
 it must be proved that the striking by the 
 defendant was in his own defense, and in 
 proportion to the attack made on him. 
 Hayden v. State, 4 Blackf. 546. 
 
 4. Verdict. 
 
 16. May be for assault. Under an in- 
 dictment for an assault with intent to commit 
 mayhem, the defendant may be convicted of 
 simple assault. McBride v. State, 2 Eng. 
 374. 
 
 17. Under an indictment for aiding and 
 abetting a mayhem, if it does not appear 
 from the evidence that the aider or abettor 
 knew that the principal intended to commit 
 a mayhem at the time aid was given, the 
 abettor can only be convicted of assaulting 
 and beating. State v. Absence, 4 Porter, 
 397. 
 
 See Assault and battery. 
 
 ittbbcmcanor, 
 
 1. What constitutes. 
 3. Indictment. 
 
 3. Trial. 
 
 4. Evidence. 
 
 5. Verdict. 
 
 6. Judgment. 
 
 1. What constitutes. 
 
 1. In general. To constitute a misde- 
 meanor, there must have been a violation of 
 public law, through the joint operation of 
 act or intention, or criminal negligence. 
 Yoes V. State, 4 Eng. 43. 
 
 2. At common law. The following have 
 been held misdemeanors at common law : 
 Riding, or going armed with unusual and 
 dangerous weapons, to the terror of the 
 >people. State v. Huntley, 3 Ired. 418; the 
 
 proposal to receive a bribe. Walsh v. Peo- 
 ple, 65 111. 58 ; forging a receipt for a note 
 of hand, which would be in full when paid. 
 People V. Hoag, 3 Parker, 36 ; the disturb- 
 ance of a religious meeting. State v. Jasper, 
 4 Dev. 333 ; throwing the dead body of a 
 person into a river without the rites of 
 burial. Kanavan's Case, 1 Maine, 326 ; dis- 
 interring the dead. Com. v. Cooley, 10 
 Pick. 37 ; giving a person unwholesome 
 food. State v. Smith, 3 Hawks, 378. 
 
 3. Other acts deemed. It is a misde- 
 meanor to keep open a tippling house on the 
 Sabbath. Hall v. State, 3 Kelly, 18. But 
 see Van Zart v. People, 3 Parker, 168. And 
 the keeping of a bawdy-house is a misde- 
 meanor. Ross V. Com. 3 B. Mon. 417. So 
 is malicious mischief done to any kind of 
 property. Loomis v. Edgerton, 19 Wend. 
 419; Com. v. Eckert,3 Browne, 349. Break- 
 ing into the house of another, and making 
 a great noise, whereby a woman in the 
 house miscarries, is a misdemeanor. Com. 
 V. Taylor, 3 Binn. 377. And encouraging 
 and aiding another to commit a misde- 
 meanor, is itself a misdemeanor. Com. v. 
 Harrington, 3 Pick. 36; Pennsylvania v. 
 McGill, Addis. 31. 
 
 4. Where a person, after request not to do 
 it, discharged a gun unnecessarily, within 
 the hearing of a person who was ill, and 
 likely to be affected thereby, and the conse- 
 quence was, that the person was seriously 
 disturbed, it was held a misdemeanor. 
 Com. V. Wing, 9 Pick. 1. 
 
 5. It is a misdemeanor, when the act pro- 
 posed to be committed by the counsel, ad- 
 vice, or enticement of another, is of a 
 high and aggravated character, tending to 
 breaches of the peace, and other great dis- 
 order and violence. Com. v. Willard, 33 
 Pick. 476. 
 
 6. It is a misdemeanor to persuade an- 
 other to steal a conveyance of land. Penn- 
 sylvania V. McGill, Addis. 31 ; and the 
 destruction of a tree standing on public 
 ground is indictable as a misdemeanor. 
 Com. V. Eckert, 2 Browne, 249. 
 
 7. In Massachusetts, the sale of spirituous 
 liquors without being a physician or apoth- 
 ecary licensed for that purpose, is a misde-
 
 438 
 
 MISDEMEANOR. 
 
 What Constitutes. 
 
 Indictment. 
 
 meaner under the statute of 1838. But the 
 purchase from such person, although imply- 
 ing an inducement held out to commit a 
 misdemeanor, is not in itself a misdemeanor. 
 Com. V. Willard, 22 Pick. 476. 
 
 8. In New York, a person found guilty of 
 petit larceny as a first ofiense is not convicted 
 of a felony, but a misdemeanor. People v. 
 Rawson, 61 Barb. 619. 
 
 9. Attempt to commit. The attempt to 
 commit a misdemeanor, shown by an overt 
 act, is a misdemeanor, whether the offense is 
 created by statute, or by common law. Com. 
 V.Kingsbury, 5 Mass. 106; Smith v. Com. 
 54 Penn. St. 209. 
 
 10. What is not. The breaking and en- 
 tering the close of another, unless attended 
 by circumstances constituting a breach of 
 the peace (such as entering the dwelling- 
 house with offensive weapons in a manner 
 to cause terror and alarm to the family and 
 inmates of the house), is only a civil injury, 
 to be redressed by an action of trespass, and 
 cannot be treated as a misdemeanor. Hen- 
 derson v. Com. 8 Graft. 708. 
 
 11. Compounding. The offense of com- 
 pounding crime, extends as well to misde- 
 meanors as to felonies. Jones v. Rice, 18 
 Pick. 440. 
 
 12. Degrees of guilt. In misdemeanors 
 there are no accessories. All who procure, 
 counsel, aid, or abet the commission of the 
 crime, are principals. Com. v. Atee, 8 Dana, 
 28; Williams V. State, 12 Smed. & Marsh. 
 58: State v. Westfield, 1 Bail. 132; State v. 
 Cheek, 13 Ired. 114 ; Com. v. Macomber, 3 
 Mass. 254; Com. v. Barlow, 4 lb. 439; 
 Curlin v. State, 4 Yerg. 143; U. S. v. 
 Gooding, 12 Wheat. 460; Lowenstein v. 
 People, 54 Barb. 299. Those personally 
 present at the commission of the offense, are 
 guilty in the first degree. Such as are not 
 personally present, but who are so connected 
 with the offense charged that in the eye of 
 the law they are constructively present, are 
 guilty as principals in the second degree. 
 But unless there is some evidence of guilty 
 complicity before the commission of the of- 
 fense, there cannot be a conviction upon 
 proof of subsequent acts. U. S. v. Harries, 
 2 Bond, 311. 
 
 2. Indictmemt. 
 
 13. When it will lie. Where a statute 
 contains a prohibitory clause, and a specific 
 remedy in a subsequent clause, without any- 
 mention of indictment, an indictment will 
 lie for the misdemeanor committed in viola- 
 tion of the prohibition. State v. Thompson^ 
 2 Strobh. 12. 
 
 14. Need not be precise. An indictment 
 for a misdemeanor, does not require that 
 technical nicety as to form, which has been 
 adopted and sanctioned by long practice in 
 cases of felony. U. S. v. Lancaster, 2 Mc- 
 Lean, 431 ; Bilbro v. State, 7 Humph. 534; 
 Taylor v. State, 6 lb. 285 ; Martin v. State, 
 lb. 204; Sanderlin V. State, 3 lb. 315; U. S. 
 V. Sclnmer, 5 Biss. 195. 
 
 15. Name of county. Where the name 
 of the county is stated in the body of an 
 indictment for a misdemeanor, it will be 
 held sufficient, although not named in the 
 margin. Tefft's Case, 8 Leigh, 721. 
 
 16. Description of offense. As a general' 
 rule, it is sufficient in indictments for mis- 
 demeanor, to describe the offense in the 
 words of the statute. State v. Blaisdell, 33 
 New Hamp. 388; State v. Rust, lb. 438. 
 
 17. Where an indictment charged that the 
 defendant sold spirituous liquors to a slave, 
 the property of A. B., without a permit from 
 his master, it was held that the name of the 
 slave and the name of his master need not 
 have been alleged. Martin v. State, 6 
 Humi^h. 204. 
 
 18. An indictment for a misdemeanor, 
 charging the defendant with being a com- 
 mon Sabbath breaker and profaner of the 
 Lord's day, was held to be insufficient, in not 
 stating how, or in what manner he was a Sab- 
 bath breaker. State v.Bro-wn, 3 Murphy, 221. 
 
 19. Joinder of offenses. In indictments 
 for misdemeanor, there may be counts for 
 different offenses, if the judgments on the 
 different offenses are of the same nature^ 
 Stone V. State, 1 Spencer, 404. 
 
 20. A count for a misdemeanor at com- 
 mon law, and a count for a misdemeanor 
 contra formam statuti^ may be united in the 
 same indictment. State v. Thompson, 2 
 Strobh. 12. 
 
 21. Where several misdemeanors are joined
 
 MISDEMEAiXOR. 
 
 439 
 
 Indictment. 
 
 Trial. 
 
 Evidence. 
 
 in the same indictment, a conviction for all 
 may take place at the same time, and the 
 prosecution (cannot be compelled to elect for 
 which it will proceed. People v. Costello, 
 1 Denio, 83. 
 
 22. An indictment against three persons 
 for misdemeanor charged distinct offenses 
 in different counts, and on the trial, the 
 evidence tended to show that two offenses 
 had been committed. There being no evi- 
 dence against one of the defendants in respect 
 to one of the offenses charged, though there 
 was evidence tending to show them all 
 guilty of the other offense, the defendants 
 applied to court to compel the prosecution to 
 elect for which offense it would proceed. 
 Held that it should have been required to 
 make such election. People v. Costello, 
 supra. As such application was addressed 
 to the discretion of the court before which 
 the trial was had, whether a decision de- 
 nying it could be corrected by the appellate 
 court upon a bill of exceptions — query. lb. 
 
 23. Defective as to degree of offense 
 charged. An indictment defective as to a 
 felony charged, may be good for a misde- 
 meanor, and a conviction of the latter will 
 bar a subsequent indictment for the former. 
 The record would be conclusive that the 
 acts were committed with the intent charged, 
 and the prosecution could not allege a differ- 
 ent intent so as to constitute a different 
 offense. Lohman v. People, 1 Comst. 379 ; 
 affi'gs. c. 2 Barb. 216. 
 
 24. EflFect of overruling demurrer to. 
 If the defendant demur to an indictment 
 for a misdemeanor, and the demurrer is 
 overruled, the decision operates as a con- 
 viction, and the judgment will be final. 
 Wickwire v. State, 19 Conn. 477. 
 
 3. Trial. 
 
 25. Absence of defendant. In Kentucky, 
 where a person has been recognized to ap- 
 pear and answer for a misdemeanor, he may 
 be tried, although he do not appear. Canada 
 V. Com. 9 Dana, 304. ^ 
 
 4. Evidence. ^ 
 
 26. Weight and sufficiency of. Where 
 on the trial of an indictment for a misde- 
 meanor, the court charged the JU17 that the 
 
 evidence must show the guilt of the defend- 
 ant to their reasonable satisfaction, that their 
 best judgment must be that the defendant 
 was guilty, so that the mind might rest 
 easy in the conclusion of guilt, it was held 
 not error also to charge them that the prose- 
 cution need not show that the defendant was 
 guilty beyond all reasonable doubt. Purkey 
 V. State, 3 Heisk. 26. 
 
 27. In Tennessee, on the trial of an in- 
 dictment for misdemeanor under the statute 
 (of 1837-8), prohibiting the wearing, con- 
 cealed about the person, any bowie-knife, 
 Arkansas tooth-pick, or other similar weap- 
 on, it was proved that the knife carried by 
 the defendant was a Mexican pirate knife. 
 Held sufficient to support a conviction. 
 Haynes v. State, 5 Humph. 120. 
 
 28. On the trial of an indictment for a 
 misdemeanor in secreting the book of rec- 
 ords of the town of A., it was held no de- 
 fense that one of the princijial inhabitants 
 of the town knew that the book of records 
 was left with the defendant, and that per- 
 sons had seen it there ; or that the defendant 
 did no act to conceal the book, other than to 
 deny that it was in his possession, and that 
 he had any knowledge of it; or that the 
 book being left in the defendant's custody, 
 was kept openiy with his own books and 
 papers, and he did no more than refuse to 
 surrender it when demanded, and refused to 
 tell where it could be found. State v. Wil- 
 liams, 30 Maine, 484. 
 
 29. On the trial of a police justice for a 
 misdemeanor, in unlawfully letting a prisoner 
 to bail without authority, and without no- 
 tice to the district attorney, it is not error in 
 the court to charge the jury that in order to 
 sustain the indictment, there need not be 
 proof of corruption. People v. Bogart, 3 
 Parker, 143; approved 5 N. Y. Supm. N. S. 
 678. 
 
 30. On a prosecution against the consignee 
 of goods, under a statute making it a misde- 
 meanor for the consignee to fail to deliver 
 to the consignor the proceeds or profits of 
 sales on demand, the demand must fairly ap- 
 prise the consignee that he will be subject to 
 the penalties of the statute if he fails to 
 comply. Wright v. People, 61 111. 382.
 
 440 
 
 MISDEMEANOR.— NEW TRIAL. 
 
 Evidence. Verdict, Judgment. Jurisdiction of Court, and when Exercised. 
 
 31. Good charactsr. It is erroneous to 
 charge the Jury on a trial for a misdemeanor, 
 that evidence of good character goes only to 
 the question of the defendant's guilt, and is 
 not to be regarded in mitigation of the fine 
 they may think prf)per to assess against him. 
 Eosenbaum v. State, 33 Ala. 354. 
 
 32. Proof of felony. If on the trial of an 
 indictment for a misdemeanor, the evidence 
 prove a felony, the prisoner must be ac- 
 quitted of the misdemeanor, in order to be 
 indicted for the felony. Com, v. Roby, 13 
 Pick. 508. But unless it appears that the 
 same act involves both offenses, the lesser 
 is not merged. Johnson v. State, 2 Dutch. 
 313, A conspiracy to commit a misde- 
 meanor is not merged, in carrying out the 
 object of the conspiracy. State v. Murray, 
 15 Maine, 100, 
 
 5. Verdict. 
 
 33. "Where defendant is not present. 
 In the case of inferior misdemeanors, a ver- 
 dict may be given in the absence of the de- 
 fendant. The court, after verdict, if the 
 defendant do not appear, should call him 
 and his bail, and then issue a warrant to 
 apprehend the defendant, and bring him 
 before the court for sentence. Sawyer v. 
 Joiner, 16 Vt. 497. 
 
 34. For attempt. On a trial for a mis- 
 demeanor, the defendant may be convicted 
 of an attempt to commit the offense charged. 
 Wolf v. State, 41 Ala. 413. 
 
 6. Judgment. 
 
 35. Upon conviction of felony. Under 
 an indictment for a misdemeanor, and a 
 conviction of felony, there cannot be a judg- 
 ment for a misdemeanor. State v. Wheeler, 
 3 Vt. 347. 
 
 36. Under general verdict of guilty. 
 In Virginia, where on a trial for misde- 
 meanor under the statute, the jury rendered 
 a general verdict of guilty, without assessing 
 the fine, it was held on motion in arrest, 
 that judgment of imprisonment must pass 
 against the defendant. Com. v. Frye, 1 Va. 
 Cas. 19. 
 
 37. Arrest of. It is too late after con- 
 viction of misdemeanor, to arrest the judg- 
 
 ment for an alleged variance between the 
 information and i^resentmeut. Jones' Case, 
 3 Gratt. 555. 
 
 illuvbci\ 
 
 See Homicide. 
 
 Jfcit) ^viaL 
 
 1. Jukisdiction of court, and when ex- 
 ercised. 
 3. Grounds for. 
 
 («) On account of indictment, 
 (t) Irregularity in summoning or imj>an- 
 eling jury. 
 
 (c) Disqualification of jurors. 
 
 (d) Improj:>er admission or exclusion of 
 evidence. 
 
 (e) Erroneous proceeding or instruction. 
 {f) Tampering with jury. 
 
 (g) Misconduct of jury. 
 
 {h) Surprise. 
 
 (i) Newly discovered evidence. 
 
 (j) Irregularities in the care or conduct 
 
 of the jury, 
 (h) Improper rendering of verdict, 
 (l) Wrong verdict. 
 3. Effect of setting aside verdict. 
 
 1. Jurisdiction of court, and when ex- 
 ercised. 
 
 1. U. S. courts. The Circuit Courts of 
 the United States have power to grant new 
 trials. U. S. v. Williams, 1 Cliff. 5; over- 
 ruling U. S. V. Gibert, 3 Sumner, 19; U. S. 
 V. Keene, 1 McLean, 439 ; U. S. v. Conner, 3 
 lb. 573. 
 
 2. State courts. In New York, a court 
 of Oyer and Terminer may grant a new trial 
 on the merits, after conviction of felony. 
 People V. Stone, 8 Wend. 39; People v. 
 Morrison, 1 Parker, 635; disapproving Peo- 
 ple V. Judges of Dutchess Oyer and Ter- 
 miner, 3 Barb. 383. In New York, courts 
 of Oyer and Terminer have power to grant 
 new trials to prisoners who have been found 
 guilty upon insufficient evidence, or where 
 verdicts have been rendered against evi- 
 dence. But it has been held that when they
 
 NEW TRIAL. 
 
 441 
 
 Jurisdiction of Court, and when Exercised. 
 
 exercise this power, the case ought to be 
 such as to have made it the duty of the 
 court to advise the jury to acquit the de- 
 fendant, or that it was unsafe for them to 
 convict him. People v. Goodrich, 3 Parker, 
 518. 
 
 3. The Supreme Court of New Hampshire 
 may grant new trials. State v. Prescott, 7 
 New Hamp. 287 ; and so may the Municipal 
 Court of Boston. Com. v. Benesh, Thach. 
 Crim. Cas. 684 ; and the Supreme Court of 
 Massachusetts. Com. v. Green, 17 Mass. 515. 
 
 4. Application for new trial, upon 
 "what predicated. A motion for a new 
 trial is based upon the supposition that 
 injustice has been done, and unless such is 
 shown to have been the case, the application 
 is invariably denied. State v. Camp, 23 Vt, 
 551. 
 
 5. Duty of court. Where an error is 
 committed on the trial that materially 
 affects the case of the prisoner to his preju- 
 dice, it is the duty of the court to grant 
 him a new trial, although there be no doubt 
 of his guilt upon the evidence. Gardiner 
 v. People, 6 Parker, 155. 
 
 6. Where error has clearly intervened, the 
 general rule is that the judgment must be 
 reversed ; but not if, during the subsequent 
 proceedings, the foundation of the error is 
 overthrown, and the complaining party can 
 no longer say he has been injured. People 
 v. Anderson, 26 Cal. 129. 
 
 7. Courts have no power to affirm a judg- 
 ment merely because the judges are per- 
 suaded that, upon the merits of the case, the 
 judgment is right. If any error intervenes 
 in the proceeding, it is presumed to be 
 injurious to the prisoner, and he is, in 
 general, entitled to a reversal of the judg- 
 ment. People V. Williams, 18 Cal. 187. 
 
 8. Discretionary power of court. It is 
 in the discretion of the court to grant a new 
 trial, although no error appears on the 
 record. Com. v. Green, 17 Mass. 515. 
 
 9. The statute of New York (2 R. S. 741, 
 § 24), which provides that "if the Supreme 
 Court shall reverse the judgment rendered, 
 it shall either direct a new trial, or that the 
 defendant be absolutely discharged, accord- 
 ing to the circumstances of the case," does 
 
 not vest in the court an absolute discretion. 
 Where less than one-third of the time for 
 which the prisoner had been sentenced had 
 exrijired, and there was nothing in the case 
 from which the court could infer that he 
 was not guilty, it was held error to discharge 
 absolutely, and a new trial was ordered. 
 People V. Phillips, 42 N. Y. 200. 
 
 10. In Illinois, the discretion of the Cir- 
 cuit Court in granting or refusing a new 
 trial will not be reviewed. Pate v. People, 
 3 Gilman, 644; Martin v. People, 13 111. 341. 
 See jiost, sub. 263. 
 
 11. In Missouri, the Supreme Court will 
 not interfere with the finding of the facts by 
 the jury, unless manifest injustice has been 
 done; nor exercise any control over the 
 discretion of the lower courts in granting or 
 i-efusing new trials, except in cases " strong 
 and unequivocal." State v. Cruise, 16 Mo. 
 391. 
 
 12. It must be a very clear case of error 
 which will induce the Supreme Court of 
 Georgia to control the court below, where it 
 has a discretion to grant or refuse a new 
 trial. Jones v. State, 1 Kelly, 610 ; Hodgins 
 V. State, 2 lb. 173; Roberts v. State, 8 lb. 
 310. 
 
 13. In Arkansas, where no exceptions are 
 taken in the court below to the refusal to 
 grant a new trial, the Supreme Court will 
 take no notice of the appeal. Robinson v. 
 State, 5 Ark. 659. In North Carolina, where 
 it appeared from the certificate of the judge 
 that a case was intended to be made by him, 
 but none was sent up with the record, a 
 new trial was granted. State v. Powei's, 3 
 Hawks, 376. And see State v. Upton, 1 Dev. 
 268. 
 
 14. Whether the Supreme Court of Texas 
 will entertain an application based on the 
 refusal of the court below to grant a new 
 trial on a question of fact — query. Herber 
 V. State, 7 Texas, 69. 
 
 15. In case of vacancy in court. After 
 a conviction of murder, the court having 
 become vacant by death pending a motion 
 for a new trial, and new judges commis- 
 sioned to fill the vacancies, it was held that 
 the new court would not sentence the pris- 
 oners, l)ut tliiit it would allow those of them
 
 442 
 
 NEW TRIAL. 
 
 Jurisdiction of Court. 
 
 Grounds for. 
 
 On Account of Indictment. 
 
 ■who desired it a new trial ; and the court 
 declined to hear any evidence as to what 
 opinion the former court had entertained in 
 regard to the motion for a new trial. U. S. 
 T. Harding, 1 Wall. Jr. 127. 
 
 16. In case of acquittal. A new trial 
 will not be granted on a motion in behalf of 
 the prosecution where there lias been a ver- 
 dict in favor of the prisoner. State v. De 
 Hart, 2 Halst. 173 ; State v. Taylor, 1 Hawks, 
 462; State v. Martin, 3 lb. 881; State v. 
 Wright, 3 Brev. 421. 
 
 17. Where some of several tried at the 
 same time are acquitted, and others found 
 guilty, the court may grant a new trial as 
 to such as were convicted, without setting 
 aside the entire verdict. Campbell v. State, 
 9 Yerg. 338 ; State v. Ayer, 3 Foster, 331. 
 
 18. Application for new trial, where 
 made. A motion to set aside the verdict 
 and for a new trial is not properly addressed 
 to the court sitting in banc, but must be ad- 
 dressed to, and be heard and determined by, 
 the judge at nisi priiis. State v. Smith, 54 
 Maine, 33. 
 
 19. In New York, the Sui^reme Court 
 cannot, on a writ of error, entertain a mo- 
 tion for a new trial, on the ground that since 
 the trial material evidence favorable to the 
 prisoner has been discovered. The motion, 
 if it can be made in any court, must be in 
 the Oyer and Terminer. Fralich v. People, 
 G5 Barb. 48. 
 
 20. In Delaware, a retrial was had at the 
 same term, the first juiy having been dis- 
 charged by the court. State v. Updike, 4 
 Harring. 581. 
 
 21. Absence of prisoner. Where the 
 prisoner, after conviction of receiving stolen 
 goods, concealed himself, it was held that 
 a motion for a new trial would not be enter- 
 tained until he was present. State v. Rippon, 
 2 Bay, 99. 
 
 22. Hearing of motion. When the ex- 
 ceptions and the motion for a new trial are 
 to be considered and decided by the same 
 court, both may be heard together, or the 
 one or the other considered first, according 
 to the circumstances. Com. v. Peck, 1 Mete. 
 438. 
 
 23. In a capital case, the prisoner may, on 
 
 motion for a new trial, bring before the court 
 for review any ruling which denies him a 
 substantial right, whether objected to by him 
 at the time or not. Rakes v. People, 3 Kan- 
 sas, 157. 
 
 24. Where a female is found guilty of an 
 offense which is punishable by imprisonment, 
 her pregnancy is not a ground for a new trial. 
 Coleman v. State, 8 Eng. 105. 
 
 25. A person who wishes a new trial, must 
 receive it as to the whole case. Morris v. 
 State, 1 Blackf. 87. 
 
 26. AflBldavits of prisoner. The motion 
 should be supported by the affidavits of 
 other persons than the ijrisoner. Pleasant v. 
 State, 8 Eng. 360. The unsupported afiida- 
 vit of the defendant that the testimony of a 
 material witness was false, that he was sur- 
 prised by it, and that he felt certain he could 
 prove it false upon another trial, was held 
 not sufficient to obtain a new trial. Riley 
 V. State, 9 Humph. 647. 
 
 27. The affidavits of the prisoner's coun- 
 sel as to information from jurors concerning-^ 
 what took place in the jury room are not 
 admissible on a motion for a new trial. 
 Wilson V. People, 4 Parker, 619. 
 
 28. Affidavits of jurors. Although the 
 court will hear the affidavits of jurors in 
 support of their verdict, it will not receive 
 such affidavits for the purpose of impeach- 
 ing the verdict. Cannon v. State, 3 Texas, 
 31 ; Bishop v. State, 9 Ga. 121 ; Ward v. 
 State, 8 Blackf 101; People v. Carnal, 1 
 Parker, 256 ; State v. Ayer, 3 Foster, 321 ; 
 Anderson v. State, 5 Ark. 445 ; People v. 
 Baker, 1 Cal. 403. 
 
 29. On a motion for a new trial, the affi- 
 davits of jurors that the jury misunderstood 
 the instructions of the court are competent. 
 Packard v. U. S. 1 Iowa, 225; Norris v. 
 State, 3 Humph. 333. 
 
 30. "Waiver of motion. It is too late to- 
 move for a new trial after a motion in 
 arrest of judgment, because the latter as- 
 sumes that the verdict is correct. McComas 
 V. State, 11 Mo. 116. 
 
 2. Grounds for. 
 (a) On account of indictment. 
 
 31. Finding. The fact that one of the
 
 NEW TPJAL. 
 
 443 
 
 Grounds for. 
 
 On Account of Indictment. Irregularity in Summoning Jury. 
 
 grand jurors -who found the indictment was 
 also one of the petit jury, although good 
 cause of challenge, is not ground for arrest 
 of judgment or a new trial. State v. Tur- 
 ner, 6 La. An. 309. 
 
 32. Insufficiency. In Georgia, a motion 
 for a new trial may be sustained on the 
 ground that the indictment is fatally defect- 
 ive, though strictly a motion in arrest of 
 judgment is the proper mode of raising the 
 objection. Wood v. State, 46 Ga. 322. 
 
 33. Absence of. The mere fact that the 
 indictment was stolen or missing, and could 
 not be sent up with the writ of error, is not 
 a ground for reversing the judgment. Smith 
 V. State, 4 Greene, 189. 
 
 (b) Irregularity in summoning or impaneling 
 
 jury. 
 
 34. Objection, how made. When any 
 error or irregularity has intervened in sum- 
 moning or impaneling the petit jury, the de- 
 fendant, if he would avail himself of the 
 objection, unless he can present the question 
 in the fonn of an exception to some decision 
 upon the trial, must bring it before the 
 court upon a motion for a new trial. He 
 cannot make it a ground for reversing the 
 judgment upon error. People v. McCann, 3 
 Parker, 272. 
 
 35. Failure to return venire. Where a 
 prisoner was tried and convicted without a 
 venire returned and filed, it was held error, 
 and the judgment was arrested and a new 
 trial granted. People v. McKay, 18 Johns. 
 212. 
 
 36. Omission to place names in box. 
 The neglect of the clerk to place the names 
 of all the persons returned as jurors in a box 
 from which juries for the trial of issues are 
 to be drawn pursuant to the statute, is not 
 ground for setting aside the verdict, where 
 the court is satisfied that the party com- 
 plaining has sustained no injury from the 
 omission. People v. Ransom, 7 Wend. 417. 
 
 37. Error in drawing. The statute of 
 New York as to drawing and impaneling 
 juries is directory to the clerk, and a neglect 
 to conform to its provisions will not per se 
 be a sufficient ground for setting aside the 
 verdict when the court see that the prisoner 
 
 has not been prejudiced. Ferris v. People^ 
 48 Barb. 17; s. c. 35 N. Y. 125. 
 
 38. In New York, the object of the statu- 
 tory regulations as to drawing and summon- 
 ing of jurors is merely to secure a fair and 
 impartial distribution of the jury duty 
 among the citizens. Consequently, in the 
 absence of any suggestion of fraud or mis- 
 conduct other than the failure to observe 
 the regulations, the public only can complain. 
 Friery v. People, 54 Barb. 319; afii'd 2 
 Keyes, 424 ; 2 N. Y. Ct. of Appeals Decis. 
 215. 
 
 39. A new trial was moved for on the 
 ground that the grand jury was drawn by a 
 boy thirteen years of age, and that such 
 illegal drawing might have affected the 
 composition of the petit jury. Held that 
 the objection came too late ; that it should 
 have been made by a challenge to the array 
 before the petit jury was sworn. State v. 
 Underwood, 6 Ired. 96. 
 
 40. Although on the trial of a capital 
 case the original venire should be first drawn 
 and tendered, yet if the court, there being 
 only eleven of the original panel, should 
 direct tales jurors to be drawn with them, 
 the defendant is not for this reason entitled 
 to a venire de novo if an opportunity was 
 afforded him to accept or reject all of the 
 original venire. State v. Lytic, 5 Ired. 58. 
 
 41. When one of the venire having been 
 challenged by the prosecution and directed 
 to stand aside until the panel was exhausted 
 was not afterward recalled, the prisoner not 
 asking to have it done, and it being known 
 that the juror was one of the prisoner's wit- 
 nesses, it was held not a ground for a venire 
 de novo. lb. 
 
 42. Setting aside juror. A motion for a 
 new trial, or in arrest of judgment, will not 
 be granted on the ground that the court 
 ordered one of the jurors to stand aside,, 
 who on his voir dire stated that he had 
 formed an opinion from having conversed 
 with the defendant, but that he then felt 
 himself in a state of mind to do justice be- 
 tween the parties. Stoner v. State, 4 Mo. 
 614. 
 
 43. Withdrawal of juror. Where the 
 prisoner not objecting, one of the jurors was
 
 444 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Irregularity in Impaneling Jury. Disqualification of Jurors. 
 
 ■withdrawn who was supposed to be incom- 
 petent at the time, but who was found, after 
 the trial had proceeded by the substitution 
 of another juror, to be competent, it was 
 held not ground for a new trial. Com. v. 
 Stowell, 9 Mete. 573. 
 
 44. When a juror becomes unable to go 
 on with the trial, the court on ascertaining 
 the fact, should either susjiend the trial or 
 discharge him altogether, and impanel an- 
 other juror in his place and commence the 
 trial over again. Baxter v. People, 3 Gil- 
 man, 368. 
 
 45. Insufficient number. Where after 
 conviction of larceny, it appeared that the 
 prisoner was tried by only eleven jurors, the 
 court set aside the judgment and verdict 
 and remanded the cause for a new trial. 
 Brown v. State, 8 Blackf. 561. 
 
 (c) Disqualijication of jurors. 
 
 46. Disqualification must have been un- 
 known. The incompetency of a juror, to be 
 ground for a new trial, must have been un- 
 known to the prisoner when the juror was 
 sworn. Lisle v. State, 6 Mo. 426 ; Booby v. 
 State, 4 Yerg. Ill; Poore v. Com. 2 Va. 
 Cas. 474; State v. O'Driscoll, 2 Bay, 153; 
 Givens v. State, 6 Texas, 344. 
 
 47. Where the fact that a juror had 
 formed and expressed an opinion before the 
 trial, is not known to the jjrisoner or his 
 counsel imtil after the verdict, it is a good 
 ground for arresting the judgment. But if 
 they know of an objection to the panel be- 
 fore verdict, and in time to jirevent it and 
 obtain a rehearing before another jury, and 
 do not avail themselves of the opportunity, 
 they will be deemed to have waived the ob- 
 jection. State v. Fuller, 34 Conn. 280. 
 
 48. A motion for a new trial was made 
 on the ground that one of the jury which 
 had tried the case, had before the trial de- 
 clared that the commmiity ought to have 
 hung the prisoner without a trial, and that 
 if the juror was on a jury to try him, he 
 would sit there and perish or hang him; 
 and that this declaration had not come to 
 the knowledge of the prisoner until after 
 the trial. Held that before the motion could 
 be granted, it must appear by the affidavit 
 
 of the prisoner's counsel that he too had no 
 knowledge before verdict of the declarations 
 made by the juror. Anderson v. State, 14 
 Ga. 709. 
 
 49. Where a juror bet on the result of the 
 trial, and the only proof of the prisoner's 
 i>;norance of the bet was that the juror swore 
 that he believed that the defendant did not 
 know it, it was held that there was not suffi- 
 cient ground for a new trial. Booby v. State, 
 4 Yerg. 111. 
 
 50. Objection, when to be made. At 
 common law, au inquiry cannot be made 
 into a juror's impartiality after he has been 
 sworn. The statute of Massachusetts, of 
 1807, did not change this rule. The objec- 
 tion to the juror must be made as well by 
 the prosecution as by the prisoner, before 
 the juror is sworn, or at least before the jury 
 are impaneled. Com. v. Knapp, 10 Pick. 
 477. 
 
 51. A cause of challenge cannot be made 
 ground for a new trial. State v. Fisher, 2 
 Nott & McCord, 261. Where it appeared 
 that one of the jurors was a member of the 
 grand jury which found the indictment, 
 but that the defendant neglected to chal- 
 lenge him for that cause, it was held that 
 the defendant was not entitled to a new 
 trial. State v. O'Driscoll, supra. See how- 
 ever. Com. V. Hussey, 13 Mass. 221. But 
 whenever an objection to a juror would have 
 been good cause of challenge for favor, it 
 will be ground for a new trial, if not discov- 
 ered until after verdict. Monroe v. State, 5 
 Ga. 85. 
 
 52. In Arkansas, after conviction of mur- 
 der, it was held that if the prisoner neglected 
 to avail himself before trial of any of the 
 means provided by law for ascertaining the 
 incompetency of a juror on account of preju- 
 dice, the prisoner would not be entitled to 
 a new trial. Meyer v. State, 19 Ark. 156 ; 
 Collier v. State, 20 lb. 36. 
 
 53. Where a defendant fails to interrogate 
 the jurors at the proper time, in respect to 
 their being householders of the county, it is 
 too late to raise the objection afterward; 
 and a new trial will not be granted on the 
 ground that one of the jurors was not a 
 householder. Kingen v. State, 46 Ind. 132.
 
 NEW TRIAL. 
 
 445 
 
 Grounds for. 
 
 Disqualification of Jurors. 
 
 54. Insanity. When the insanity of a 
 juror is alleged as ground for a new trial, it 
 must be shown by clear evidence. State v. 
 Scott, 1 Hawks, 24. 
 
 55. On the trial of an indictment for as- 
 sault with intent to murder, the defense was 
 insanity, which it was claimed was consti- 
 tutional in the prisoner's relatives, one of 
 whom (the prisoner's second cousin) was a 
 juror in the case. Held that the fact of the 
 juror's relationship to the defendant, al- 
 though a proper matter to be addressed to 
 the discretion of the court, if brought to its 
 notice in season, was not a sufficient reason 
 for setting aside the verdict. State v. An- 
 drews, 29 Conn. 100. 
 
 56. Bias or prejudice. Where it appears 
 that a juror was not open to conviction on 
 the evidence, but decided the case in his 
 own mind before the trial, it is good ground 
 for setting aside the verdict. Com. v. Flan- 
 agan, 7 Watts & Serg. 415. 
 
 57. After conviction of treason, a new 
 trial was granted, where it appeared that 
 one of the jurors liad made declarations, as 
 well in relation to the prisoner personally, 
 as to the general question at issue, show- 
 ing prejudice. U. S. v. Fries, 3 Dall. 515. 
 
 58. Where after conviction of murder, it 
 was proved that one of the jurors stated be- 
 fore he was impaneled that if he were on 
 the jury he would hang the prisoner, it was 
 held that there must be a new trial. Bishop 
 V. State, 9 Ga. 121. And the same was held 
 where a juror, after he was summoned and 
 before trial, declared that if he served on 
 the jury he would have to find the prisoner 
 guilty. Cody v. State, 3 How. Miss. 27. 
 
 59. Where, after a verdict of guilty, on a 
 trial for murder, it was proved that one of 
 the jurors had stated the day before the 
 trial that " if the evidence was the same as 
 on a former trial which he had heard, the 
 prisoner was guilty of murder, and should 
 be hung," it was held ground for a new 
 trial. Sam v. State, 31 Miss. 480. 
 
 60. On a trial for murder, one of the 
 jurors, when examined on his voir dire, said 
 that he had not formed or expressed an 
 opinion as to the prisoner's guilt or inno- 
 cence, but it was proved after conviction 
 
 that several months before the sitting of the 
 court the juror told a person that from the 
 best information he could get he was of 
 opinion that the prisoners ought all to be 
 hung. Held that they were entitled to a 
 new trial. Troxdale v. State, 9 Humph. 
 411. 
 
 61. Where it was proved that a juror who 
 had stated that he had no prejudice, said 
 before the trial that the prisoner " had 
 killed a poor, innocent soldier, and ought 
 to have his neck broke," which was not 
 known to the defense when the jury were 
 impaneled, it was held that the prisoner 
 was entitled to a new trial. Henrie v. State, 
 41 Texas, 573. 
 
 62. After conviction of murder it appear- 
 ed that one of the jurors who sat on the 
 trial, soon after the homicide, declared that 
 " the people ought to take the prisoner out 
 of jail and hang him ;" and that another 
 juror stated that " the prisoner ought to be 
 hung, and if he was at the Bay he would 
 be hung before night." Held ground for a 
 new trial. People v. Plummer, 9 Cal. 298. 
 
 63. Where a juror, when interrogated, 
 stated that he had formed no opinion re- 
 specting the guilt or innocence of the pris- 
 oner, and after verdict it appeared that 
 before the trial he had said if he (the pris- 
 oner), is not hung, there is no use of laws, 
 it was held that a new trial should be 
 granted. Busick v. State, 19 Ohio, 198. 
 
 64. After conviction of forgery, it was 
 proved by the affidavit of a person that the 
 forman of the jury, on the morning of the 
 day of trial, had had a conversation with 
 such person about the prisoner, in which he 
 declared that he had come from home to 
 hang every damned counterfeiting rascal, 
 and that he was determined to hang the de- 
 fendant, at all events, or words to that ef- 
 fect. Held ground for a new trial. State 
 V. Hopkins, 1 Bay, 373. But affidavits call- 
 ing in question the verdict of a jury should 
 be received with caution. State v. Duesloe, 
 1 Bay, 377. 
 
 65. Where a person who was afterward on 
 the jury declared that the prisoner ought to 
 be hung, that there was nothing that could 
 save him, and a short time before the trial
 
 44G 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Disqualification of Jurors. 
 
 told the prisoner that if he served on the 
 jury he (the prisoner) would not be hung, 
 and when sworn as a juror on the trial said 
 that he had formed no opinion, it was held 
 that there must be a new trial. Sellers v. 
 People, 3 Scam. 412. 
 
 66. Opinion which is not fixed will not 
 disqualify. After conviction of murder in 
 the second degree, the prisoner moved for a 
 new trial, on the ground that one of the 
 jurors, before the trial, said, in the hearing 
 of another person, that the prisoner ought 
 to be hung. Held that as the declaration 
 did not appear to have been a fixed opinion, 
 it was not sufficient cause for setting aside 
 the verdict. Smith v. Com. 2 Va. Cas. 6. 
 And see Com. v. Flanagan, 7 Watts & 
 Serg. 415. 
 
 67. Where it was proved that one of the 
 jurors admitted in a conversation with some 
 j'oung men, who were questioning him as to 
 the propriety of the verdict, that he had 
 formed the opinion that the prisoner was 
 guilty before the trial, it was held that as 
 the conversation was not of a serious char- 
 acter, and was elicited by an improper criti- 
 cism of the verdict, there was no cause for 
 a new trial. Monroe v. State, 5 Ga. 85. 
 
 68. Where, in a capital case, a juror, be- 
 fore he was impaneled, declared that if the 
 prisoner killed the man, he ought to be 
 hung, it was held that as the declaration 
 was hypothetical, it was not cause for grant- 
 ing a new trial. Com. v. Hughes, 5 Rand. 
 655. And the same was held where a juror 
 stated before trial that if the testimony was 
 as he had heard it, the prisoner was guilty, 
 and would be hung. Mitchum v. State, 11 
 Ga. 615. 
 
 89. Opinion founded on rumor. The 
 loose impressions and conversations of a 
 juror, founded upon rumor, are not, when 
 disclosed after verdict, ground for a new 
 trial. Howerton V. State, Meigs, 262; Ken- 
 nedy V. Com. 2 Va. Cas. 510; Brown v. 
 Com. lb. 516 ; Smith v. Com. lb. 6; Monroe 
 V. State, 5 Ga. 85. 
 
 70. On a trial for arson, a juror testified 
 on his voir dire that he had not formed an 
 opinion as to the prisoner's guilt or inno- 
 cence, but upon being challenged peremp 
 
 torily by the defense, remarked: "It wa.«i 
 well I was rejected, for if I were on the jury, 
 I would send her the other side of Boston." 
 Afterward the defense chose this person as 
 a juror, not then having any knowledge of 
 his remarks. Held no ground for a new 
 trial. Com. v. Hailstock, 2 Graft. 564. 
 
 71. Ezaminationof juror on oath. Where 
 a person called as a juror in a capital case, 
 testified that he had not formed or expressed 
 an opinion respecting the guilt or innocence 
 of the prisoner, and, after the verdict it was 
 proved that he had declared a few minutes 
 before, to another person, that he could not 
 serve, because he had made up his mind, 
 which was unknown to the prisoner when he 
 accepted the juror, it was held not cause for 
 a new trial, first, because such declaration 
 by the juror was not on oath, and secondly, 
 because it was contradicted by the juror on 
 oath. State v. Scott, 1 Hawks, 24. And sec 
 Heath's Case, 1 Rob. 735. 
 
 72. Where before the jury were impan- 
 eled for the trial of an indictment for 
 arson, one of the jurors expressed an opinion 
 unfavorable to the prisoner, but being sub- 
 sequently examined on oath, stated that he 
 was wholly impartial, it was held that there 
 was no ground for a new trial. Curran's 
 Case, 7 Graft. 619. 
 
 73. A statement of the prisoner's former 
 trial, was published in a paper in the county 
 in which his second trial took place, by the 
 judge, commenting severely on his character 
 and conduct. But the jury, on their voir 
 dire denied that they had formed any opin- 
 ion, and it also appeared that the writer of 
 the statement was not known until after the 
 second trial. Held not ground for a new 
 trial. Vance v. Com. 2 Va. Cas. 162. 
 
 74. Denial by juror of previous bias. 
 Where a new trial is moved for on the 
 ground that a juror had expressed the opin- 
 ion before the trial, that the prisoner was 
 guilty, the juror is competent to testify in 
 denial of the bias imputed to him. State 
 V. Howard, 17 New Hamp. 171; State v. 
 Pike, 20 lb. 344. If the court, upon hear- 
 ing the explanation of the juror, and any 
 testimony he may present by affidavits, is 
 satisfied that the juror was competent, the
 
 NEW TRIAL. 
 
 447 
 
 Grounds for. 
 
 Improper Admission or Exclusion of Evidence. 
 
 verdict will not be disturbed : especially 
 when lie was not put upon his »o/?' dire, and 
 no questions were asked him. Jim v. State, 
 15 Ga. 535. See Anderson v. State, 14 lb. 
 709. 
 
 {d) Impraper admission or exclusion of evi- 
 dence. I y 
 
 75. Witness not sworn. After a convic- 
 tion for misdemeanor, no exceptions having 
 been taken during the trial, the defendant 
 moved to set aside the verdict, on the ground 
 that a witness for the prosecution testilied 
 without being sworn. Held that as it did 
 not appear but that the defense knew that 
 the witness was not sworn at the time he 
 testified, nor appear that the witness testified 
 falsely, or that the defendant had sustained 
 any injury, the motion must be denied. State 
 v. Camp, 23 Vt. 551. 
 
 76. Withdrawal of witness. Where a 
 girl six years of age, upon whom it was 
 charged the defendant committed an assault 
 with intent to commit a rape, after being sworn 
 as a witness, was withdrawn before she had 
 testified, it was held that the fact that her ap- 
 pearance on the stand was calculated to ex- 
 cite the sympathies of the jury, was no 
 ground for a new trial. People v. Graham, 
 21 Cal. 261. 
 
 77. Irrelevant evidence. Where irrele- 
 vant testimony has been admitted, and the 
 chances are equal that it may have injuri- 
 ously affected the minds of the jury, a new 
 trial should be granted. Hobergv. State, 3 
 Minn. 262. 
 
 78. Where the prosecution was permitted 
 to introduce proof of the violent temper of 
 the accused, such evidence being irrelevant 
 to the issue, it was held gi'ound for a new 
 trial. State v. Merrill, 2 Dev. 269. 
 
 79. Where upon a trial for passing a 
 counterfeit bank bill, the prosecution proved 
 the passing by the prisoner of two other 
 bills two or three days after the transaction 
 for which he was upon trial, which latter 
 passing did not appear to have any connec- 
 tion with the alleged oflfense, it was held 
 that as the evidence was calculated to excite 
 suspicion and prejudice against the prisoner, 
 and had no legal bearing upon the issue, its 
 
 admission was ground for a new trial. Peo- 
 ple V. Dibble, 5 Parker, 28. 
 
 80. But where evidence is admitted which 
 is only competent in connection with other 
 proposed evidence, and the latter is not 
 introduced, and the court charges the jury 
 to disregard the former, its admission is not 
 error. People v. Pitcher, 15 Mich. 397. 
 
 81. Admission of illegal evidence. If 
 
 illegal evidence be admitted against the 
 prisoner, after objection, it will be ground 
 for a new tiial. Com. v. Bosworth, 22 
 Pick. 397 ; State v. Allen, 1 Hawks, 6 ; State 
 V. Merrill, 2 Dev. 269; Com. v. Green, 17 
 Mass. 515. The admission of illegal evi- 
 dence cannot be disregarded or excused 
 upon the ground that the other evidence in 
 the case was sufficient to justify a convic- 
 tion. The conviction must be had by legal 
 evidence only. Rosenweig v. People, 63 
 Barb. 634. Where improper evidence has 
 been received which might have influenced 
 the jury, a new trial will be granted, even 
 though there be sufficient other evidence to 
 sustain the verdict. Peck v. State, 2 Humph. 
 78. 
 
 82. Illegal evidence presumed injurious. 
 The intendment of law is, that an error in 
 the admission of evidence is prejudicial to 
 the party objecting, and will be ground for 
 the reversal of the judgment, unless the in- 
 tendment is clearly repelled by the record. 
 Coleman v. People, 58 N. Y. 555. 
 
 83. Presumption of injury may be re- 
 butted. But although the reception of il- 
 legal evidence is ijresumptively injurious to 
 the party objecting to its admission, yet 
 where it appears from an examination of 
 the whole record that the result would have 
 been the same if the objectionable proof had 
 been rejected, the error furnishes no ground 
 for reversal. People v. Gonzales, 35 N. Y. 
 49 ; Eggler v. People, 3 N. Y. Supm. N. S. 
 796; State v. Engle, 1 Zabr. 347; State 
 v. Ford, 3 Strobh. 517, note. 
 
 84. Under an indictment for selling adul- 
 terated milk, it was held not a ground for a 
 new trial, after a verdict of guilty, that the 
 certificate of an inspector of milk was ad- 
 mitted in evidence, the inspector testifying
 
 448 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Improper Admission or Exclusion of Evidence. 
 
 to all the facts set forth in the certificate. 
 Com. V. Waite, 11 Allen, 264. 
 
 85. Misdirection of evidence. Where 
 the testimony on a trial for murder is rele- 
 vant, but its logical and legal effect is mis- 
 directed to the prejudice of the defendant, 
 which is mainly due to the course adopted 
 by the prosecution in provoking both sides 
 of the case, and then undertaking to rebut 
 so much of the evidence as tends to justify 
 the homicide, a new trial will be granted. 
 People v. Taylor, 36 Cal. 355. 
 
 86. Failure to object. Where illegal 
 evidence is allowed to go to the jury with- 
 out objection, either when it is introduced 
 or in the argument of the case, the illegality 
 is waived, and its admission will not be 
 ground for a new tnal. Bishop v. State, 9 
 Ga. 131. Where therefore on the trial of an 
 indictment charging a single assault, evi- 
 dence was submitted to the jury of two 
 different and distinct assaults, without objec- 
 tion from the defendant, it was held that he 
 was not entitled to a new trial. Drake v. 
 Com. 10 B. Mon. 235. And the same has 
 been held in capital cases, where improper 
 evidence has gone to the jury without ob- 
 jection. State V. Gordon, 1 R. I. 179; Stone 
 V. State, 4 Humph. 27; Bishop v. State, 9 
 Ga. 121; Drake v. Com. supra; State v. 
 Camp, 23 Vt. 551 ; contra. Rakes v. People, 
 3 Neb. 157. 
 
 87. But where a prisoner is convicted of 
 a capital offense, and an indispensable ele- 
 ment to constitute such offense is unsup- 
 ported by any evidence tending to prove 
 the same, the judgment will be reversed, 
 although no exception was taken on the 
 trial. McCann v. People, 6 Parker, 629. 
 
 88. Inability to present evidence. It is 
 not in general a ground for a new trial that 
 the evidence of persons who were jointly in- 
 dicted with the defendant, but who were 
 not convicted, is material to prove his inno- 
 cence. State V. Bean, 36 New Hamp. 133. 
 
 89. Where several are joined in the prose- 
 cution to prevent their being used as wit- 
 nesses for the defense, the party desiring 
 their testimony should ask for a separate 
 trial; or if there be no testimony against 
 one of several defendants, he should move 
 
 for a separate verdict, which motion being 
 granted, he would be a competent witness 
 for the defense. A neglect in such case to 
 move for a separate trial or separate verdict 
 would be cause for refusing a new trial for 
 the purpose of giving the parties convicted 
 the desired testimony. State v. Ayer, 3 
 Foster, 331. 
 
 90. But in Texas, where one of two joint 
 defendants was acquitted and the other 
 convicted, it was held that the latter was 
 entitled to a new trial upon showing that 
 his codefendant was a material witness in 
 his behalf, but could not testify by reason 
 of being joined in the indictment. Lyles v. 
 State, 41 Texas, 173. 
 
 91. A new trial will be granted where it 
 appears that material evidence for the de- 
 fense was excluded by reason of the form in 
 which the indictment is drawn. Com. v. 
 Manson, 3 Ashm. 31. 
 
 92. Withholding evidence from jury. 
 Where the court improperly excludes com- 
 petent evidence in relation to part of the 
 offense charged, and the prosecution after- 
 ward abandons that part, the erroneous 
 ruling will not be ground for a new trial. 
 People V. Cunningham, 1 Denio, 534. 
 
 93. Where on the trial of an indictment 
 for conspiracy to defraud, a letter from the 
 defendant to his brother which was given 
 in evidence was not delivered to the jury 
 with the other papers in the case, and it 
 appeared that the letter was not needed by 
 the jury in their deliberations, its absence 
 was held not a ground for setting aside the 
 verdict. State v. Pike, 30 New Hamp. 344. 
 
 94. Jury viewing premises in absence of 
 prisoner. The fact that the jnry on a trial 
 for murder were permitted by the court to 
 view the scene of the alleged crime in 
 custody of the sheriff without being accom- 
 panied by the prisoner is no reason for set- 
 ting aside the verdict, especially if he 
 neither objected nor asked leave to go with 
 them. People v. Bonney, 19 Cal. 426. See 
 post, sub. 316. 
 
 95. Credibility of witness. A new trial 
 will not be granted where the sole question 
 is the credibility of a-i accomplice, although
 
 NEW TRIAL. 
 
 449 
 
 Grounds for. 
 
 Improper Admission of Evidence. Erroneous Proceeding. 
 
 he was the only witness. Keithler v. Com. 
 10 Smed. & Marsh. 192. 
 
 96. Where the granting of a new trial de- 
 pends upon the credibility of a witness, a 
 denial of the motion by the court below will 
 not be regarded as error. Weinzorflin v. 
 State, 7 Blackf. 186. 
 
 97. Improper argument. Where the 
 prosecution is permitted, contrary to the de- 
 fendant's objection, to argue to the jury from 
 matters not in evidence, and it is probable 
 that the defendant was thereby prejudiced, 
 the verdict will be set aside. State v. Foley, 
 45 New Hamp. 466. 
 
 98. Evidence to be set out. Upon an 
 an application for a new trial, upon the 
 ground of the admission of improper evi- 
 dence, the evidence should be set out, in 
 order that the court may see whether or not 
 it is illegal. State v. Clark, 12 Ired. 151. 
 
 (e) Erroneous 2)'>oceed big or instruction. 
 
 99. Must have caused injury. A new- 
 trial should not be granted, even for a mis- 
 direction, when it is evident that justice has 
 been done. Johnson v. State, 14 Ga. 55; 
 Lester v. State, 11 Conn, 415; People v. 
 Ransom, 7 Wend. 417; State v. Camp, 23 
 Vt. 551. No error ought to avail a prisoner 
 to escape punishment, unless it manifestly 
 appears that it may have done him some 
 material injury. Fralich v. People, 65 Barb. 
 48, per MuUin, P. J. 
 
 100. An error of the court to be ground 
 for a reversal of the judgment, must afi'ect 
 the substantial rights of the defendant ; and 
 the burden is on him to show that such is 
 the case. People v. Brotherton, 47 Cal. 388 ; 
 s. c. 2 Green's Crim. Reps. 444. 
 
 101. Where a minor who was charged 
 with larceny, was inquired of in court if 
 he was of age and re^jlied that he was sup- 
 posed to be, and the trial proceeded without 
 the appointment of a guardian ad litem, 
 it was held after conviction, that he was not 
 entitled to a new trial. State v. James, 37 
 Conn. 355. 
 
 102. When judgment is rendered against 
 the defendant for the amount of a fine, 
 and that he remain in the custody of the 
 sheriff until the line and costs are paid, 
 
 29 
 
 and ©n a subsequent day of the term, the 
 court in his absence also sentences him to 
 imprisonment in the county jail, the latter 
 judgment only will be reversed, and the 
 cause remanded. Young v. State, 39 Ala. 
 357. 
 
 103. Must be exceptions. As a general 
 rule, counsel cannot be heard to assail the 
 charge of the court, if he has not excepted 
 to it, or if it is too general to be available. 
 Fralich v. People, 65 Barb. 48; State v. 
 Avery, 44 New Hamp. 392. 
 
 104. But in a capital case, where in- 
 structions do not announce correct legal 
 principles, or are inapplicable to the case, 
 a new trial will be granted, although no 
 exceptions were taken. Falk v. People, 42 
 111. 332. 
 
 105. Error in admitting or excluding 
 jurors. Where on a trial for grand larceny, 
 the effect of the improper disallowance by 
 the court, of the defendant's challenge of a 
 juror for cause, was to contract the number 
 of peremptory challenges to which the de- 
 fendant was entitled, it was beld ground for 
 a new trial. People v. Weil, 40 Cal. 268. 
 
 106. Where the court improperly excused 
 a juror, it was held ground for a new trial. 
 Boles V. State, 13 Smed. & Marsh. 398. 
 
 107. Uncalled for remark by judge. 
 After a witness for the prosecution had 
 testified, the defendant's counsel, for the sole 
 purpose of contradicting him, introduced 
 in evidence the written testimony of the 
 witness taken before the examining magis- 
 trate, which was objected to by the prose- 
 cuting attorney. The judge in admitting 
 it said that " the defendant's attorney had 
 let down the fence, and all is now before 
 the jury." Held that this remark was ultra- 
 judicial and misleading, and ground for a 
 new trial, as it implied that the written 
 statement was evidence of all the facts con- 
 tained in it, and that it was the more 
 impressive as proof offered by the defendant 
 himself. Coppage v. Com. 3 Bush, Ky. 532 ; 
 see Lanham v. Com. lb. 528. 
 
 108. Where the jury may have been 
 misled. If the testimony in a capital case 
 be not free from doubt, and there is reason 
 to suppose that the jury have been misled
 
 450 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Erroneous Proceedings or Instruction. Tampering with Jury. 
 
 by the court in charging them as to the evi- 
 dence, a new trial will be granted, notwith- 
 standing the charge was correct in point of 
 hiw. Foxdale v. State, 9 Humph. 411. Al- 
 though the prosecuting attorney is permitted 
 by the court to state the law incorrectly to 
 the jury, yet the verdict will not for that 
 reason be set aside, if the court afterward in 
 its charge corrected the error. People v. 
 Jenness, 5 Mich. 30o. 
 
 109. Intimation of opinion. In Massa- 
 chusetts, where the judge reasoned upon the 
 facts, and intimated his opinion of the evi- 
 dence, it was held not ground for a new 
 trial. Com. v. Child, 10 Pick. 352. 
 
 110. Where the judge in his charge, after 
 alluding to the influence of proof of good 
 character in a doubtful case, called the at- 
 tention of the jury to the absence of such 
 proof in the case before them, it was held 
 no cause for granting a new trial. People 
 V. White, 22 Wend. 167; contra, s. c. 24 lb. 
 520. 
 
 111. Appeal to prejudices of jury. If 
 no legal error was committed in the submis- 
 sion of the cause, the judgment cannot be 
 reversed on the ground that the charge of 
 the court was an appeal to the passions and 
 prejudices of the jury. Boyce v. People, -55 
 K Y. 644. 
 
 112. On the trial of an indictment for 
 assault and battery, the court charged the 
 jury as follows: "I am not a little surprised 
 that there should be an attempt made to 
 acquit this defendant, but it is nevertheless 
 your duty to find according to the evidence," 
 and then proceeded to define the oflense, 
 and to instruct the jury to acquit or convict 
 according to the evidence. Held not cause 
 for a new trial. Keaton v. State, 7 Ga. 189. 
 
 113. Neglecting or refusing to charge. 
 Where on a trial for murder, the evidence 
 tended to show that it was manslaughter 
 only, and the judge in his charge neglected 
 so to instruct the jury, or to tell them the 
 distinction between murder and manslaugh- 
 ter, it was held ground for setting aside the 
 verdict. State v. Donnell, 32 Vt. 491. 
 
 114. In New York, a new trial was denied 
 where the objection was that the judge, 
 although requested, refused to charge the 
 
 jury, the trial closing so late on Saturday 
 night that had the jury been charged they 
 must have been dismissed or kept over 
 Sunday. People v. Gray, 5 Wend. 289. 
 
 115. Charging a second time. On the 
 trial of an indictment for libel, the judge 
 charged the jury a second time after they 
 returned into court and reported that they 
 could not agree, although they did not ask 
 for further instructions. Held not ground 
 for a new trial. Com. v. Snelling, 15 Pick. 
 321. 
 
 116. Failure to interrogate prisoner. 
 Upon the reversal of the judgment of a Court 
 of Oyer and Terminer, after conviction for 
 murder, on the ground that the return to the 
 writ of error does not show that the prison- 
 er was asked if he had anjthing to say why 
 sentence should not be jironounced, a new 
 trial will be granted. Graham v. People, 
 63 Barb. 468. 
 
 (/) Tampering with jury. 
 
 117. By prosecutor beforetrial. Where 
 it appeared that on a trial for perjury, pa- 
 pers calculated to make an unfavorable 
 impression on the jury, were exhibited by 
 the prosecutor at several public places and 
 read in the hearing of the jurors during the 
 sitting of the court before the trial, the 
 verdict was set aside. State v. Hascall, 6 
 New Hamp. 352. 
 
 118. By counsel for prosecution. Where 
 after the jury w^ere impaneled on a trial for 
 robbery, one of the counsel for the prosecu- 
 tion took care of, fed and provided during 
 the night for the horses of two of the jurors, 
 free of charge, it was held ground for a new 
 trial. Springer v. State, 34 Ga. 379. 
 
 119. By witness for prosecution. After 
 conviction it was proved that a witness for 
 the prosecution made remarks in the pres- 
 ence of one of the jurors, prejudicial to the 
 prisoner's character, and to the effect that 
 he believed the prisoner guilty. But it was 
 further proved that as soon as the witness 
 saw the juror he stopped talking, that he 
 did not know the juror was present, and 
 that the juror told him afterward that he did 
 not take any notice of the conversation.
 
 NEW TRIAL. 
 
 451 
 
 Grounds for. 
 
 Tampering with Jury. 
 
 Held no ground for a new trial. State v. 
 Ayer, 3 Foster, 301. 
 
 120. By stranger. Although where a 
 communication is made to a jury while de- 
 liberating, by a party in whose favor the 
 verdict is rendered, it will avoid the verdict, 
 yet a verdict will not in general be set aside 
 by reason of such communication, when it 
 is made by the losing party or by a stranger. 
 People v. Carnal, 1 Parker, 256. 
 
 121. In North Carolina, it has been held 
 that where it is not shown that there was, 
 but only that there might have been, im- 
 proper influence brought to bear on the 
 jury, a new trial is in the discretion of the 
 presiding judge ; but that where such in- 
 fluence is proved, the Supreme Court will, 
 as matter of law, direct a retrial. State v. 
 Tilghman, 11 Ired. 513. 
 
 122. Where, during a trial for murder, a 
 person spoke to one of the jurors, in the 
 presence of the court, about the health of 
 the juror's family, it was held not ground 
 for a new trial. Rowe v. State, 11 Humph. 
 491. 
 
 123. Where the sheriif took the jury to a 
 private house, and there left them in the 
 parlor, in company with three other men, it 
 was held that this was sufficient ground for 
 a new trial, although it appeared from the 
 affidavits of the three persons that no con- 
 versation was had with the jury during the 
 sheriff's absence in relation to the trial. 
 Com. V. Wormley. 8 Graft. 712. 
 
 124. On the trial of an indictment for an 
 assault with intent to murder, S., one of the 
 standing jurors of the term, but not sitting 
 in the cause, stated to a juror after they had 
 retired for the night, in a bed-room which 
 they both occupied, that he guessed the 
 defendant had a hard case; that he had 
 heard that when he was in the book business 
 at the South, a person refused to take a book 
 subscribed for, and that the defendant drew 
 two pistols, and threatened to blow the 
 person's brains out if he did not take it. S., 
 also, while the case was on trial, told sub- 
 stantially the same story in a i^ublic stage- 
 coach, in which with several passengers 
 were two other jurors. Held that the former 
 conversation was cause for setting aside the 
 
 verdict, but not the latter. State v. An- 
 drews, 29 Conn. 100. 
 
 125. On a trial for malicious stabbing, it 
 appeared that the jury, being in a room in 
 charge of an oflBcer, the officer left the room 
 for wood and water, and that, in his absence, 
 a person walked into the room, and on being 
 told by the jury to take a seat, did so apart 
 from the jury, but that there was no con- 
 versation between this person and the jury 
 until the officer came back, when the in- 
 truder was removed. Held not a ground for 
 a new trial. Luster v. State, 11 Humph. 
 169. 
 
 126. On a trial for passing a counterfeit 
 bank note, the jury, after they retired to 
 deliberate, found a placard on the wall of 
 their room, which stated that one of their 
 number was a counterfeiter, and that he had 
 purposely got on the jury; and it apjieared 
 that all of the jury read the placard. Held 
 that there was no cause for a new trial, un- 
 less it appeared that the juror, by reason of 
 the placard, was disconcerted, or that the 
 jurors were thereby influenced in giving 
 their verdict. Hall's Case, 6 Leigh, 615. 
 
 127. By consent of the prisoner, the jury, 
 on a trial for murder, were taken by the 
 officer in charge of them to a hotel, there to 
 be kept until they could agree. At the 
 hotel they were taken to the public table, 
 where they ate, the officer sitting between 
 them and the guests. Rooms were prepared 
 for them at the hotel ; and at their request, 
 a barber was sent for to shave some of them 
 and cut their hair. The barber was in the 
 room more than an hour, and for a few 
 minutes of that time he was there in the 
 absence of the officer. Held that although 
 there was no evidence that the juiy had 
 been tampered with, the prisoner was enti- 
 tled to a new trial. Boles v. State, 13 Smed. 
 & Marsh. 398. 
 
 128. By officer. Where, on a trial for 
 murder, it appeared that two of the officers 
 who had the jury in charge spoke of the 
 enormity of the offense, by saying that it was 
 a worse case than D.'s, and one of them said 
 public opinion was against the prisoner, it 
 was held sufficient cause for a new trial. 
 Nelms V. State, 13 Smed. & Marsh. 500.
 
 452 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Tampering with Jury. 
 
 Misconduct of Jury, 
 
 129. Where it appeared, after conviction 
 for an aggravated assault, that the officer in 
 charge of the jury went into their room 
 while they were considering their verdict, 
 and argued with them that the defendant 
 ought to be punished severely, it was held 
 ground for a new trial. Dansby v. State, 34 
 Texas, 393. 
 
 130. Where refreshments were given to 
 the jury in a capital case by the officer who 
 had charge of them and. another person, but 
 it appeared that neither the officer nor the 
 other person had. any conversation with the 
 jury, it was held that there was no cause for 
 a new trial. Com. v. Roby, 12 Pick. 496. 
 
 131. Person not sworn taking charge of 
 jury. Where, on a trial for murder, a per- 
 son not sworn to take charge of the jury, 
 went to the jury room in the absence of the 
 proper officer, and took charge of them, it 
 was held ground for a new trial. Hare v. 
 State, 4 How. Miss. 187. 
 
 132. Judge communicating with jury 
 after they have retired. If the judge 
 communicate with the jury respecting his 
 charge after they have retired, except pub- 
 licly and in the presence of the prisoner, it 
 will be ground for a new trial. Kirk v. 
 State, 14 Ohio, 511. 
 
 133. It is error for the judge, after the 
 jury have retired to deliberate, to give 
 private instructions to them out of the 
 hearing of counsel. Where, therefore, after 
 conviction of manslaughter, it appeared that 
 one of the jurors went to the judge, saying 
 that he had come under the charge of the 
 sheriff, at the request of the jury, who had 
 found their verdict, to ask the judge whether 
 it was competent for the jury to attach to 
 their verdict a recommendation of the pris- 
 oner to mercy, and that the judge replied 
 that it was perfectly competent for them to 
 do so, it was held ground for a new trial. 
 State V. Frisby, 19 La. An. 143. 
 
 134. The jury, after being out a long 
 time, were called into court, and in answer 
 to the judge, stated that there was no pros- 
 pect of their agreeing. The judge there- 
 upon told them that he must have a verdict, 
 that the case was one of peculiar character, 
 and that he had reason to believe, from in- 
 
 formation received, that some of the jury 
 had been approached and tampered with 
 previous to the trial. The jury then retired 
 and found the defendant guilty of man- 
 slaughter. Held that as the remarks of the 
 judge had a tendency to coerce the jury, 
 they were ground for a new trial. State v. 
 Ladd, 10 La. An. 271. 
 
 135. After the jury had retired to de- 
 liberate, and the court had adjourned, the 
 jury sent a note to the judge asking for 
 information on two points. The judge 
 returned the note to them without any 
 reply, but directed the officer to tell the 
 foreman of the jury to read to them from 
 1 Pickering, 342, to the effect that no com- 
 munication whatever ought to take place 
 between the judge and the jury after the 
 cause had been submitted to them, unless in 
 open court and in the presence of the 
 respective counsel. Held not ground for a 
 new trial. Com. v. Jenkins, Thach. Crim. 
 Cas. 118. 
 
 13S. While the jury were deliberating on 
 a trial for murder, one of them sent the 
 officer who had charge of them to the court, 
 to request that some book containing the 
 law of manslaughter might be sent to them. 
 The officer returned and told the jury that 
 " Judge Edmonds said they had nothing to 
 do with manslaughter; " and they found the 
 prisoner guilty of murder. Held that the 
 communication of the judge to the jury was 
 not ground for a new trial. People v. Car- 
 nal, 1 Parker, 25G. 
 
 (g) Misconduct of jury. 
 
 137. Will not be presumed. On a motion 
 for a new trial on the ground of misconduct 
 of the jurors, the presumption is that they 
 performed their duty in accordance with 
 their oaths; and to overthrow this jjresump- 
 tion, there must be direct and positive tes- 
 timony. People V. Williams, 24 Cal. 31. 
 
 138. Taking notes. Where jurors, con- 
 trary to the defendant's objection, and after 
 the court has told them they must not do 
 so, persist in taking notes of the evidence, 
 it will be ground for a new trial. Cheek v. 
 State, 35 Ind. 492. But not if the defendant 
 does not object, and the jurors do not act in
 
 NEW TRIAL. 
 
 453 
 
 Grounds for. 
 
 Misconduct of Jury. 
 
 disobedience to the orders of the court. 
 Cluck V. State, 40 lb. 263. 
 
 139. Juror sleeping. Where it appeared 
 after verdict tliat during the progress of a 
 trial for conspiracy one of the jurors was 
 asleep, it was held that the defendant should 
 have called attention to the fact at the time, 
 and that not having done so, it was not 
 ground for a new trial. U. S. v. Boyden, 
 Lowell, 266. 
 
 140. Separation without improper mo- 
 tive. A brief separation of the jury, for 
 necessary jjurposes, without any imputation 
 of improper motives, even in a capital case, 
 and contrary to the directions of the court, 
 will not be ground for a new trial. But if 
 there be the least suspicion of abuse, the 
 verdict should be set aside. People v. Doug- 
 lass, 4 Cow. 26 ; State v. Lytic, 5 Ired. 58 ; 
 Whitney v. State, 8 Mo. 165; Jarnagin v. 
 State, 10 Yerg. 529; Thomas v. Com. 2 Va. 
 Cas. 470. Where a juror withdrew from his 
 fellows in consequence of illness, but while 
 absent talked with no one about the case, 
 and was subject to no improper influences, 
 it was held not good cause for complaint. 
 People V. Reynolds, 2 Mich. 422. For the 
 separation to vitiate the verdict, it must be 
 shown that the jurors might have been 
 tampered with, or improperly influenced, or 
 some means exerted over them in con- 
 sequence of their separating, so as to in- 
 fluence their verdict. Reins v. People, 30 
 111. 256. 
 
 141. In Missouri, the rule has been long 
 established that the mere fact of the separa- 
 tion of the jury in a criminal case will not 
 be ground for a new trial, unless it apjiear 
 that they were tampered with, or that they 
 misbehaved. State v. Dougherty, 55 Mo. 
 69; s. c. 2 Green's Crim. Reps. 610. 
 
 142. In Texas, it has been held that ver- 
 dicts in minor offenses, will not be set aside 
 on the ground that the jury separated with- 
 out the permission of the court, unless it is 
 manifest that injury has thereby been done. 
 Cannon v. State, 3 Texas, 31. 
 
 143. On a trial for rajjc, one of tlie jurors 
 left his seat while the court was in session, 
 went out of the court house, passed through 
 a group of persons, and after a moment's ab- 
 
 sence returned to the jury box. HeU not 
 ground for a new trial. Porter v. State, 2 
 Carter, 435. 
 
 144. On a trial for murder, the jury slept 
 in five rooms in the third story of a hotel, 
 opening on a common passage, which com- 
 municated with the street below by flights 
 of stairs, the doors of their chambers being 
 unfastened, and there being no doors at either 
 end of the passage. Held not a separation 
 in law, calling for a new trial. Thompson, 
 V. Com. 8 Gratt. 637. 
 
 145. During the same trial, one of the 
 jurors went down stairs to the pavement 
 before the door of the hotel, in order to 
 meet a passer by to send a message to his 
 family, and after remaining there about five 
 minutes, and seeing no one passing, re- 
 turned to the rest of the jury. Held not a 
 cause for a new trial. lb. 
 
 146. The officer took charge of the jury 
 without being sworn to do so; and the jury 
 were allowed to separate. But it was 
 proved that the separation was casual, that 
 there was no tampering or opportunity to 
 tamper with them, and that the officer did 
 not speak to them about the case. Held 
 that there was no cause for a new trial. 
 Stone V. State, 4 Humph. 27. 
 
 147. After conviction of murder, the fol- 
 lowing was held not a ground for a new 
 trial: Before the termination of the trial, 
 and while the jury was in charge of an offi- 
 cer, one of them was permitted by the officer 
 to go to his house for the purpose of chang- 
 ing his shirt, and was absent from three to 
 five minutes, being seen by the officer to go 
 upstairs and enter a room, the rest of the 
 jury remaining below until he rejoined them. 
 State V. O'Brien, 7 R. L 336. 
 
 148. On the trial of an indictment for a 
 felonious assault, one of the jurors, after the 
 jury had retired to consider their verdict, 
 was seen on the public square unattended 
 by an officer, in conversation with a by- 
 stander; but upon what subject, and how 
 long, was not shown. Held not a ground 
 for a new trial. State v. Igo, 21 Mo. 459. 
 
 149. Where on a trial for grand larceny, 
 after the jury had retired to deliberate, one 
 of them, in company with the officer in
 
 454 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Misconduct of Jury. 
 
 charge, -went home, a distance of about five 
 hundred yards, and while going through 
 tlie street was spoken to by several persons 
 on matters not connected with the case, it 
 was held not a ground for a new trial. 
 State V. Jones, 7 Nev. 408. 
 
 150. The juiy on a trial for murder, re- 
 fired to deliberate, Thursday, at six o'clock 
 P. M., and rendered their verdict Saturday, 
 at ten A. M, Members of the jury left the 
 jury room at various times, in charge of an 
 officer, and went about fifty yards to obey 
 the calls of nature, going one at a time and 
 returning as soon as practicable ; the rest of 
 the jury remaining together in the jury 
 room with the door locked. One of the 
 jurors being ill went in charge of the ofiicer 
 to a drug store one hundred and fifty yards 
 distant, to get medicine, the keeper of which 
 asked him if they had agreed on their ver- 
 dict, to which he replied that they had not. 
 Another juror left the jury room and con- 
 versed outside near the door, ten or fifteen 
 minutes with a third person. The jury 
 violated the injunction of the court not to 
 eat or drink, contrary to the wishes of the 
 officer. Several of the jurors wrote notes 
 and dropped them from the windows of the 
 jury room, and received notes in reply. 
 Some of the jurors talked from the windows 
 to persons in the street about the case, and 
 on other subjects, but what was said did not 
 appear. Servants and small children visited 
 the jury room, the servants in order to carry 
 food and clothing to the jurors, and the 
 children to see their fathers. Held., that al- 
 though these irregularities miglit, in the 
 discretion of the presiding judge, have been 
 good cause for setting aside the verdict, yet 
 that they did not justify the Supreme Court 
 in declaring, as matter of law, that there 
 was a mistrial. State v. Tilghman, 11 Ired. 
 513. 
 
 151. Separation of jury presumed in- 
 jurious. The prisoner need not show that 
 the jury were subjected to improper in- 
 fluence during their separation. It is suf- 
 ficient if they might have been. People 
 V. Backus, 5 Cal. 275; People v. Lee, 17 lb. 
 78; People v. Bonney, 19 lb. 426. Where 
 part of the jury, after separating without the 
 
 permission of the court, remain absent for a 
 considerable length of time, it will be pre- 
 sumed that they were tampered with. State 
 V. Fox, Ga. Decis. pt. 1, 35; State v. Peter, 
 lb. 4G; Hines v. State, 8 Humph. 597; 
 State V. Prescott, 7 New Hamp. 287; Stone. 
 V. State, 4 Humph. 27 ; Riley v. State, 9 lb. 
 646. In Vermont, in case of separation of the 
 jury, the burden of proof to show injury, is 
 on the party seeking to set aside the verdict. 
 State V. Camp, 23 Vt. 551. 
 
 152. Unexplained separation of jury, 
 fatal to verdict. In cases of a higher grade 
 than misdemeanor, and especially in capital 
 cases, a separation of the jury without the 
 leave of the court, will be fatal to a verdict 
 against the jirisoner, unless it be shown 
 affirmatively by the prosecution, that no 
 injury to the prisoner could have resulted 
 therefrom. Eastwood v. People, 3 Parker, 
 25 ; Cornelius v. State, 7 Eng. 782. 
 
 153. Where during a trial for murder, 
 which lasted several days, some of the jury, 
 after they had retired from the court for the 
 night, frequently absented themselves from 
 their fellows, without being under the charge 
 of an officer, and remained absent for fifteen 
 or twenty minutes at a time, it was held 
 cause for a new trial. McLain v. State, 10 
 Yerg. 241. 
 
 154. After the jury had retired to de- 
 liberate on a trial for murder, one of them 
 separated himself from his fellows without 
 the attendance of the officer having the 
 jury in charge. The juror was gone a 
 very short time, and it was not shown that 
 he communicated with any one while absent. 
 Held ground for a new trial. Maher v. 
 State, 3 Minn. 444. 
 
 155. On a trial for murder, the judge 
 having charged the jury, gave them, a recess 
 of five minutes, and they were allowed to 
 leave the court room and go at large without 
 being in charge of an officer. At the ex- 
 piration of the time, having returned, the 
 sheriif was sworn to take charge of them, 
 and they retired to deliberate. Held error, 
 and that the prisoner was entitled to a new 
 trial. State v. Parrant, 16 Minn. 178. 
 
 156. Where on a trial for manslaughter, 
 the jury separated, and several persons went
 
 NEW TEIAL. 
 
 455 
 
 Grounds for. 
 
 Misconduct of Jury. 
 
 into the jurors' room and talked with them, 
 it was held cause for a new trial. State v. 
 Sherbourne, Dudley, Ga. 28. 
 
 157. The bailiff in whose charge the JU17 
 retired to consider of their verdict, was a 
 portion of the time away from the building 
 in which their deliberations were held. A 
 person held communication with the jury 
 while the bailiff was absent. Three of the 
 jurors separated from the jury unattended 
 by an officer ; and one of them was seen 
 talking with a person. The bailiff told a 
 person how the jury stood while they were 
 still deliberating; and the bystanders gen- 
 erally seemed to know the state of their 
 deliberations. Held error in the court below 
 to refuse to grant a new trial. Madden v. 
 State, 1 Kansas, 340. 
 
 158. Separation of jury by consent. 
 In New York, the trial of a capital case is 
 not vitiated by the separation of the jury 
 before retiring to deliberate on their verdict, 
 with the consent of the prisoner and per- 
 mission of the court. Stephens v. People, 
 19 N. T. 549 ; affi-g s. c. 4 Parker, 396. The 
 contrary has been held in Tennessee. Wes- 
 ley v. State, 11 Humph. 503; Wiley v. State, 
 1 Swan, 256. In Pennsylvania, where the 
 jury on a trial for murder were allowed to 
 separate by consent of the prisoner's coun- 
 sel, the conviction was set aside. Peiffer v. 
 Com. 15 Penn. St. 468. 
 
 159. In Mississippi, the separation of the 
 jury during the trial of a capital case, even 
 by permission of the court, either with or 
 without the consent of the prisoner, except 
 in case of great necessity, or the separation 
 of any of the jurors from their fellows dur- 
 ing the trial without being attended by an 
 officer, will vitiate the verdict. Woods v. 
 State, 43 Miss. 364. 
 
 160. In Louisiana, the separation of the 
 jury in criminal cases, after the evidence is 
 closed and the jury charged before verdict, 
 vitiates the verdict, notwithstanding such 
 eeparation was with the consent of the pris- 
 oner or his counsel. State v. Populus, 12 
 La. An. 710. 
 
 161. Jury taking refreshments. If the 
 jury take refreshments before they have 
 agreed, at the charge of the prosecutor, it 
 
 will be ground for a new trial. State v. 
 Sparrow, 3 Murphy, 487. But see Com, v. 
 Roby, 12 Pick. 496. 
 
 162. Drinking of spirituous liquors by 
 jury, when excusable. In ^Missouri and 
 Tennessee, the use of intoxicating drinks by 
 jurors while in the discharge of their duties 
 will not be ground for a new trial unless 
 used to excess, or supplied from an improper 
 source, or calculated to affect the verdict. 
 State V. Upton, 20 Mo. 397 ; Stone v. State, 
 4 Humph. 27; Rowe v. State, 11 lb. 491. 
 Substantially the same has been held in New 
 Jersey, Illinois and Nevada. State v. Cucuel, 
 31 N. J. 349; Davis v. People, 19 111. 74; 
 State V. Jones, 7 Nev. 408. 
 
 163. After the charge of the judge, one 
 of the jurors in ojien court stated that he 
 had been unwell for several days and was 
 still so, and that it was impossible for him 
 under the circumstances to confine himself 
 to water without danger to his health, and 
 he asked permission for such spirits as might 
 be required for his health ; to which request 
 the counsel for the prisoner consented and 
 the indulgence was granted. Held not a 
 ground for setting aside the verdict. U. S. 
 V. Gibert, 2 Sumner, 19. 
 
 164. During a trial for murder, one of 
 the jurors not in the habit of drinking was 
 ill, and took for medicinal purposes without 
 medical advice some brandy and blackberry 
 balsam. It was not shown or claimed that 
 its effects were intoxicating or other than 
 remedial, or that the occurrence was not 
 known to the defendant and his counsel at 
 the time and before the cause was submitted 
 to the jury. Held not a ground for setting 
 aside the verdict. State v. Morphy, 33 Iowa, 
 270. 
 
 165. After the jury had retired to deliber- 
 ate, the bailiff having charge of them car- 
 ried a bottle of liquor into the jury room 
 without the knowledge or permission of the 
 court to a sick juror, who drank of the 
 liquor. It did not appear that any one else 
 drank, and the liquor was in the jury room 
 a very short time, during which the bailiff 
 was present. Held not a ground for a new 
 trial. Pope V. State, 85 Miss. 121. 
 
 168. Where it appeared that one of the
 
 45G 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Misconduct of Jury. 
 
 Surprise. 
 
 witnesses for the prosecution met the jury at 
 the hotel where they lodged, and invited 
 them in the presence of the officer who had 
 charge of them to drink liquor with him, it 
 was held that this act, though one for which 
 the jurors were liable to a fine, was not 
 ground for a new trial. Thompson v. Com. 
 8 Gratt. 637. 
 
 167. Drinking of liquor by jury, when 
 fatal to verdict. lu New York, the jury 
 on a trial for murder being allowed to leave 
 the court house during the trial, under 
 the charge of two sworn constables, two of 
 them separated from their fellows, went to 
 their lodgings, a distance of thirty rods, 
 ate cakes, took some cakes with them on 
 their return, and drank spirituous liquors, 
 though not enough to affect them, and one 
 of them conversed on the subject of the 
 trial; they came back, heard the trial 
 through, and found the prisoner guilty. 
 Held cause for a new trial. People v. Doug- 
 lass, 4 Cow. 26. 
 
 168. In New Hampshire, it has been held 
 that the use of stimulating liquors by the 
 jury while deliberating on their verdict, 
 without first showing good reason for such 
 use and getting leave of the court, is good 
 cause for setting aside a conviction, whether 
 the use was intemperate or otherwise. State 
 V. BuUard, 16 New Hamp. 139. 
 
 169. The sej^aration of a juror fi'om his 
 fellows, after the case has been finally sub- 
 mitted and before they have agreed upon a 
 verdict, for the purpose of obtaining and 
 drinking intoxicating liquors, when not 
 shown to be excusable, will entitle the pris- 
 oner to a new trial. Weis v. State, 22 Ohio, 
 N. S. 486. 
 
 170. After the jury on a trial for murder 
 had retired to deliberate, the officer who had 
 them in charge went to a liquor and billiard 
 saloon with two of them, and asking the 
 keeper of the saloon if he could not " fix up 
 something for these jurors for the diarrhoea," 
 procured for each of them "a drink of brandy, 
 ginger wine, nutmeg and sugar," which they 
 drank, and which was paid for by one of 
 them. It did not appear where the other 
 jurors were while the two were in the saloon 
 with the officer, and there was no attempt 
 
 to show that the jurors were really suflFering 
 with diarrhoea, how much liquor they drank, 
 or what efi"ect it had ujwn them. Held 
 ground for a new trial. Davis v. State, 35 
 Ind. 496. 
 
 171. On a prosecution for adultery, after 
 the jury had retired in charge of the bailifl^, 
 two of them, each separately at different 
 times, were permitted to separate from the 
 balance of the jury, and during their absence 
 from the jury room, which was for a neces- 
 sary purpose, one of such jurors went to a 
 grocery store to buy tobacco, and while 
 there procured and drank a glass of ale, and 
 then returned with the bailiff to the jury 
 room. Held ground for a new trial. State 
 V. Baldy, 17 Iowa, 39. 
 
 172. Evidence. A new trial will not be 
 granted upon the reported observations of 
 jurors as to their misconduct, hearsay evi- 
 dence not being admissible on an application 
 to set aside the verdict. Stone v. State, 4 
 Humph. 27. 
 
 Qi) Surprise. 
 
 173. Disqualification of juror. Where 
 the objection to a juror would be sufficient 
 cause of challenge to the favor if discovered 
 before trial, it will furnish cause for a new 
 trial if not discovered until after verdict. 
 Anderson v. State, 14 Ga. 709 ; Monroe v. 
 State, 5 lb. 85. 
 
 174. But although it appear that the 
 prisoner had good cause of challenge, which 
 he did not avail himself of in consequence 
 of ignorance of the facts, yet if no injustice 
 has been done by the verdict, he is not en- 
 titled to a new trial. State v. Howard, 17 
 New Hamp. 171. 
 
 175. The fact that a juror is an alien, 
 though cause of challenge, is not ground for 
 a new trial, notwithstanding it was unknown 
 to the prisoner or his counsel until after the 
 verdict. Presbury v. Com. 9 Dana, 203; 
 contra, Seal v. State, 13 Smed. & Marsh. 
 286. 
 
 176. "Where a juror before trial made the 
 prisoner believe that he was in his favor, for 
 which reason the prisoner did not exercise 
 his right of challenge for cause, which he 
 would have done had the deceptive conduct
 
 NEW TRIAL. 
 
 457 
 
 Grounds for. 
 
 Surprise. 
 
 of the juror not misled him, it was held not 
 ground for a writ of error. Poore v. Com. 
 2 Va. Cas. 474 
 
 177. Names of witnesses not on indict- 
 ment. Where the prisoner has a right to 
 have the names of the witnesses for the 
 prosecution written on the indictment, to 
 enable him to prejiare for his defense, the 
 objection that this requirement was neglect- 
 ed, comes too late after verdict, and is not 
 therefore ground for a new trial. Ray v. 
 State, 1 Iowa, 316. 
 
 178. Artifice or management. When the 
 ])urposes of justice have been perverted to 
 Ihe injury of the accused, by -practices deJw?'s 
 the trial, as by j^rocuring improper persons 
 to sit ujjon the jury, by management on the 
 part of any person which could not be guard- 
 ed against by ordinary care and attention, 
 or the like, or by an accident without the 
 fault of the prisoner, the same court in which 
 the miscarriage took place may set aside the 
 verdict as for a mistrial. Willis v. People, 
 32 N. Y. 715. 
 
 179. Where a person indicted for horse 
 stealing, was induced to go to trial by the 
 artifice of concealing from him the fact that 
 certain witnesses for the prosecution were 
 present, and making him believe that they 
 were not there when in fact they were, and 
 had been concealed by the attorney for 
 the State, it was held that the prisoner was 
 entitled to a new trial. Curtis v. State, 6 
 Cold. Tenn. 9. 
 
 180. Omission or mistake. Although a 
 new trial may be granted for surprise, yet 
 after the prisoner has submitted his case, he 
 cannot upon discovering that the verdict is 
 against him, ask the court to relieve him 
 from the consequences of a mistake or omis- 
 sion, by granting him a new trial. People 
 V. Mack, 2 Parker, 673. 
 
 181. Insufficient preparation, or a mistake 
 in conducting the trial, or the want of such 
 evidence or defense as it was in the prison- 
 er's power to have produced, or a discovery 
 of the incompetency of the witnesses exam- 
 ined, are not grounds for setting aside the 
 verdict. Com. v. Benesh, Thach.Crim. Cas. 
 684. 
 
 182. A new trial will not be granted 
 
 because the public prosecutor, by mistake, 
 withholds in his hands papers important to 
 the defendant, unless the latter use diligence 
 to obtain them. People v. Vermilyea, 7 
 Cow. 369. 
 
 183. It is doubtful whether surprise found 
 ed upon mistake of law, is ground for a new 
 trial. It cannot be when it arises from the 
 party's own negligence. That the defendant 
 or his counsel were guilty of laches in pre- 
 paring the cause, is not a ground for dis- 
 turbing the verdict. People v. O'Brien, 4 
 Parker, 203. 
 
 184. Neglect to obtain witness. Where 
 on a trial for forgery, the prisoner neglected 
 to obtain witnesses in rebuttal in conse- 
 quence of counsel advising him that certain 
 testimony for the i^rosecution which was 
 allowed, would not be received, it was held 
 that he was entitled to a new trial on the 
 ground of surprise. State v. Williams, 27 
 Vt. 724. 
 
 135. Where it was shown that the prison- 
 er having been informed before the trial, 
 that a certain jjerson would be a material 
 witness in his favor, interrogated him and 
 was told by him that he knew nothing 
 about the case, but that after conviction the 
 prisoner learned that this person could tes- 
 tify to facts which would be likely to pro- 
 duce a different verdict, it was held ground 
 for anew trial. Phillips v. State, 33 Ga.281. 
 
 186. Absence of witness. On a trial for 
 murder, the jirisoner's counsel stated that 
 they would be able to procure the attend- 
 ance of a material witness for the defense, 
 who was absent, on the following day. The 
 trial accordingly proceeded, but the absent 
 witness was not obtained, though nearly 
 everything was proved which the defendant 
 expected to show by the absent witness. 
 Beld not ground for a new trial. Young v. 
 Com. 4 Gratt. 550. 
 
 187. In the same case, a material witness 
 for the defense, who was present at the com- 
 mencement of the trial was taken ill before 
 the evidence for the prosecution was closed, 
 and did not attend and testify. But what 
 the absent witness was expected to swear to 
 was shown by other witnesses. Held no 
 ground for a new trial. lb.
 
 458 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Surprise. 
 
 Newly Discovered Evidence. 
 
 188. Intoxication of witness. On a trial 
 for murder, the defense having introduced 
 a witness who was so much intoxicated as 
 not to be capable of understanding the ob- 
 ligations of an oath, the court would not 
 permit him to be sworn, but told the de- 
 fense that they might recall the witness 
 when he was sober. The defense examined 
 other witnesses, but did not recall this one. 
 Held that the granting or refusing a new 
 trial on this ground w'as in the discretion of 
 the court. State v. Underwood, 6 Ired. 96. 
 
 189. Witness leaving court. Where a 
 witness, subpoenaed by the prosecution, but 
 not examined, leaves the court, it is not 
 cause for a new trial on behalf of the pris- 
 oner. If the testimony of the witness was 
 material to the defense, it should have 
 subpoenaed him. State v. Blennerhassett, 
 Walker, 7. 
 
 190. Perjury of witness. A new trial 
 will not be granted to enable a party to 
 impeach a witness who testified on a former 
 trial. Com. v. White, 5 Mass. 261 ; State v. 
 Henry, E. M. Charlt. 505 ; Herber v. State, 
 7 Texas, 69 ; Porter v. State, 2 Carter, 435 ; 
 Deer v. State, 14 Mo, 348. This rule is 
 subject to rare exceptions. Thompson's 
 Case, 8 Gratt. 637. 
 
 191. Incapacity of interpreter. The 
 incompetency of an interjDreter employed 
 by the court to interpret the evidence of 
 witnesses testifying in a language not un- 
 derstood by the court, counsel, or jury, is not 
 ground for a new trial, the objection coming 
 too late after verdict. State v. Lemodelio, 
 23 La. An. 16. 
 
 192. Intoxication of defendant. Where, 
 after conviction on a charge of felony, it 
 was proved that the prisoner during the 
 trial was too drunk to understand the 
 nature of the proceedings, it Avas held 
 ground for a new trial. Taffe v. State, 23 
 Ark. 34. 
 
 193. Unexpected evidence. It being- 
 proved on a trial for murder that there was 
 blood on the prisoner's clothes, after convic- 
 tion he filed his afiidavit staling that he was 
 surprised by this proof; that he did not 
 know that it would be jiroduced against 
 him, or know that he could explain it until 
 
 after the trial. Held not a ground for ar- 
 resting the sentence of the court and grant- 
 ing a new trial. Gilbert v. State, 7 Humph. 
 524. 
 
 194. The defendant, having been convicted 
 of obstructing a highway, moved for a new 
 trial on the ground that he was surprised by 
 proof that the point of obstruction was 
 different th^n he had supjjosed, for which 
 he was not prepared to defend. Held that 
 he was not entitled to the relief asked. 
 Wholford V. Com. 4 Gratt. 553. 
 
 195. Improper admission by counsel. A. 
 and B., being confined in jail on a charge of 
 burglary, made a deadly assault upon the 
 jailer and his assistants. Having been tried 
 and convicted for this ofiense, they moved 
 for a new trial on the ground that their 
 commitment to jail was irreguhu and void, 
 and that their counsel, supposing it to be 
 valid, in order to avoid prejudicing the 
 minds of the jury by showing the cause of 
 the commitment, admitted the legality of 
 the imprisonment, by reason whereof they 
 were found guilty. Held that they were not 
 entitled to the relief asked. Lester v. State, 
 11 Conn. 415. ^i 
 
 {i) Newly discovered evidence. 
 
 196. "When ground for relief. To render 
 newly discovered evidence cause for a new 
 trial, the applicant must show: 1st, that the 
 evidence has come to his knowledge since 
 the trial; 2d, that it was not owing to the 
 want of due diligence that it did not come 
 sooner; 3d, that it is so material that it 
 would probably produce a difi"erent result 
 if the new trial were granted ; 4th, that it is 
 not cumulative ; 5th, that the afiidavit of the 
 witness himself should be produced or its 
 absence accounted for; 6th, that the object 
 of the testimony is not merely to impeach 
 the character or credit of a witness. State 
 V. Carr, 1 Foster, 106 ; Lester v. State, 11 
 Conn. 415; Holman v. State, 8 Eng. 105; 
 Pleasant v. State, 2 lb. 300 ; Ditto v. Com. 
 2 Bibb, 17; People v. Vermilyea, 7 Cow. 
 369 ; Thompson's Case, 8 Gratt. 637 ; White 
 V. State, 17 Ark. 404 ; Berry v. State, 10 Ga. 
 511 ; State v. McLaughlin, 27 Mo. Ill ; State 
 V. Ray, 53 lb. 345. In California, newly
 
 NEW TRIAL. 
 
 459 
 
 Grounds for. 
 
 Newly Discovered Evidence. 
 
 discovered evidence is not ground for a new 
 trial under the statute (Wood's Dig. 304, 
 § 440). People v. Bernstein, 18 Cal. 699. 
 
 197. Must have been unknown, and no 
 want of diligence. Newly discovered evi- 
 dence is a ground for a new trial when it 
 was not known to the party at the time of 
 the trial, and it was owing to no want of 
 diligence that it was not known and pro- 
 duced. Wise V. State, 24 Ga. 31 ; Milner v. 
 State, 80 lb. 137. 
 
 198. A. having been arrested and put in 
 jail on a charge of assault with intent to 
 murder, which was alleged to have occurred 
 in a fight between a foreman and employees, 
 the attorney of A., upon asking those who 
 were present, was told that they did not 
 know what part A. took in the affair. But 
 after conviction, they stated that they were 
 ready to testify that A. did not make the 
 assault. Held ground for a new trial. 
 Thomas v. State, 53 Ga. 509. 
 
 199. Where the prosecution had a witness 
 testify who had been convicted of an in- 
 famous crime, and no objection was made, 
 it was held that a new trial could not be 
 granted the defendant upon discovering the 
 incompetency of the witness after conviction. 
 Com. V. Green, 17 Mass. 515. 
 
 200. Where the newly discovered evi- 
 dence was a confession of the prisoner's wife 
 to third persons, during the trial, that she 
 committed the crime, and that her husband 
 had no knowledge of it, the court refused a 
 new trial. State v. J. W. 1 Tyler, 417. 
 
 201. Must be ma,terial. Newly discov- 
 ered evidence which would not be likely to 
 produce a different result, is not ground for 
 a new trial. Jones v. State, 48 Ga. 163 ; s. c. 
 2 Green's Grim. Reps. 586, 
 
 202. After a conviction of manslaughter, a 
 new trial will not be granted on the ground 
 that since the trial it has been discovered 
 that the deceased, some weeks previous to 
 the homicide, bought a pistol, saying that 
 he intended to kill the accused, there being 
 no evidence of notice to the accused of the 
 threats. Carr v. State, 14 Ga. 358. 
 
 203. On the trial of an indictment for ob- 
 taining goods by false pretenses, the prose- 
 cution introduced in evidence a book pur- 
 
 porting to contain an entity of the false 
 statements of the defendant, made in the 
 book at the time the goods were obtained. 
 After the conviction of the defendant, it was 
 discovered that the entry in the book was 
 made some time after the obtaining of the 
 goods. Held that the discrepancy was not 
 ground for a new trial. Com. v. Benesh, 
 Thach. Grim. Cas, 684. 
 
 204. Where after conviction of stealing 
 cattle, it appeared that the defendant took 
 the cattle under a color of title, a new trial 
 was granted. State v. Simons, Dudley, Ga. 
 27. 
 
 205. Where after conviction for murder, 
 it was ascertained that a written confession 
 which was given in evidence against the de- 
 fendant, did not contain the entire confes- 
 sion, it was held that the defendant was en- 
 titled to a new trial on the ground of newly 
 discovered evidence. Powell v. State, 37 
 Texas, 348. 
 
 206. To prove alibi. The propriety of 
 granting a new trial for the purpose of let- 
 ting in the defense of an alibi^ depends so 
 much upon the circumstances of the case, 
 that a court of review will rarely interfere 
 with the decision of the court below. 
 Thompson v. State, 5 Humph. 138. 
 
 207. Must not be cumulative. A new 
 trial will not be granted on account of newly 
 discovered evidence which is merely cumu- 
 lative. Roberts v. State, 3 Kelly, 310 ; Com. 
 V. Flanagan, 7 Watts & Serg. 415 ; Com. v. 
 Murray, 2 Ashm. 41 ; Com. v. Williams, lb. 
 69 ; Giles v. State, 6 Ga. 276 ; Williams v. 
 People, 45 Barb. 201 ; People v. McDonnell, 
 47 Cal. 134; s. c. 2 Green's Crim, Reps. 441. 
 
 208. To impeach witness. The discov- 
 ery of such new evidence as would only im- 
 peach the evidence of a witness on the 
 former trial, is not a sufficient ground for a 
 new trial. Bland v. State, 2 Carter, 608*, 
 State V. Henry, R. M. Charlt. 505 ; Herber v. 
 State, 7 Texas, 69; Leving v. State, 13 Ga. 
 513; Porter v. State, 2 Carter, 435; Com. v. 
 Waite, 5 Mass. 261; Deer v. State, 14 Mo. 
 348; Wright v. State, 34 Ga. 110; Hoye v. 
 State, 39 lb. 718. 
 
 209. Where a material witness had stated 
 before the trial, that he would hang the
 
 460 
 
 NEW TKIAL. 
 
 Grounds for. 
 
 Irregularities in the Care or Conduct of the Jury. 
 
 prisoner by his testimony, if he could, and 
 the prisoner knew nothing of the declaration 
 until after the trial, it was held that this 
 was no cause for staying sentence. Com. v. 
 Drew, 4 Mass. 391. 
 
 (j) Irregularities in the care or conduct of the 
 jury. 
 
 210. Jury not in care of officer. In Mis- 
 sissippi, where the jury during a portion of 
 the trial, and after they had retired, were 
 not under the charge of a sworn oflBcer, it 
 "was held ground for a new trial. McCann v. 
 State, 9 Smed. & Marsh. 465. 
 
 211. In Tennessee, where the jury retired 
 for deliberation on their verdict, to a room 
 of the building in which the court sat, with- 
 out an officer, and it did not appear that 
 they improperly separated, or held commu- 
 nication with any person not of their body, 
 it was held that there was no cause for a new 
 trial. Jarnagin v. State, 10 Terg. 529. 
 
 212. Change of officer. The jury retired 
 to deliberate with an officer who had been 
 sworn to take charge of them ; but before 
 the court adjourned a second officer was 
 sworn in court to attend ujjon them ; and 
 after the court adjourned, another officer was 
 sworn for the same service. Held not ground 
 for a new trial. Com. v. Jenkins, Thach. 
 Crim. Cas. 118. 
 
 213. Papers handed to jury by officer. 
 Where on a trial for murder the sherift', after 
 the jury had retired to deliberate, handed to 
 them loose papers purporting to be evidence, 
 it was held that the refusal of the court be- 
 low to grant a new trial was error. Pound 
 V. State, 43 Ga. 88. 
 
 214. But where after the jury had retired 
 to deliberate on a trial for murder, a con- 
 stable, upon the request of one of their num- 
 ber, handed him a paper on which was 
 marked the several punishments fixed by 
 law for the diflferent degrees of manslaugh- 
 ter, it was held not a ground for a new trial, 
 it appearing that the prisoner had not been 
 prejudiced thereby. Wilson v. People, 4 
 Parker, 619. 
 
 215. Jury taking out documents. Where 
 the jury took to their room two papers which 
 were in evidence, inadvertently without the 
 
 permission of the court, but through no im- 
 proper intervention of any one, and it was 
 not shown what, or whether any use of them 
 was made by the jury in their deliberations, 
 it was held not a ground for a new trial. 
 Bersch v. State, 13 Ind. 434, 
 
 216. Examination of statutes. On a 
 trial for murder, after the jury had retired, 
 one of their number inquired of a constable 
 who was in attendance whether the jury 
 could not bring in a verdict of manslaughter, 
 saying that if they could do so, the jury 
 would agree. He said he thought they 
 could, but added that they had better con- 
 sult their foreman, who being a justice of 
 the peace, would probably know. The 
 Revised Statutes were then sent for by the 
 jury and examined in relation to murder and 
 manslaughter. Held that this was sufficient 
 to vitiate the verdict, unless it appeared be- 
 yond all reasonable doubt that no injury had 
 resulted to the prisoner therefrom. People 
 V. Hartung, 4 Parker, 256. 
 
 217. Reading newspapers. Suffering 
 jurors to have daily access to newspapers 
 containing imperfect accounts of the trial 
 being had before them, with comments 
 upon the person and character of those 
 connected with it, is ground for setting aside 
 the verdict. Walker v. State, 37 Texas, 
 366. 
 
 218. Where it appeared that after the 
 jury were impaneled on a trial for murder, 
 they saw newspaper accounts of the testi- 
 mony, but that such accounts had no influ- 
 ence on their minds in finding the verdict, 
 it was held not to be sufficient ground for a 
 new trial. U. S. v. Reid, 12 How. U. S. 
 361. 
 
 219. And where the jury, while being kept 
 together in a capital case, were allowed by 
 the officer in charge of them to read the 
 newspapers, the officer first inspecting tlie 
 papers and cutting out everything which 
 related to the trial, it was held that there 
 was no cause for setting aside the verdict. 
 U. S. V. Gibert, 2 Sumner, 10. 
 
 220. Receiving additional evidence. 
 Where, after a cause has been submitted, 
 the jury receive additional evidence which 
 is material, it will be fatal to the verdict.
 
 NEW TRIAL. 
 
 401 
 
 Grounds for. Irregularities in the Care of Jury. Improper Rendering of Verdict. 
 
 Hudson V. State, 9 Yerg. 408 ; Booby v. State, 
 4 lb. 111. 
 
 221. Where, on a trial for murder, after 
 the evidence was all in, several of the jury 
 while taking exercise, with the consent of 
 the court accompanied by an ofBcer, visited 
 and examined the locality of tbe homicide, 
 it was held good ground for a new trial. 
 Eastwood V. People, 3 Parker, 25. See ante, 
 sui. 94. 
 
 222. On the trial of an indictment for 
 burglary and larceny, the jury came into 
 court after they had retired, and asked for 
 an explanation from a witness, whereupon 
 the witness stated a fact to which he had 
 not testified before, but the jury were in- 
 structed by the court not to regard the 
 additional testimony. Held not a ground 
 for a new trial. Hudson v. State, s^vpra. 
 
 223. Where, on a trial for murder, after 
 the prosecution had rested, one of the jurors 
 at the adjournment of the court, took up and 
 examined the skull of the murdered man, 
 which was on the district attorney's table, it 
 was held not a ground for a new trial. 
 Wilson V. People, 4 Parker, 619. 
 
 224. Juror communicating information 
 to his fellows. Where, on a trial for felony, 
 the evidence on a material point is conflict- 
 ing, and after the jury retire to deliberate, 
 one of their number makes statements not 
 previously disclosed, conducing in some 
 degree to the determination of the contro- 
 verted point against the jorisoner, the verdict 
 will be set aside. In such case, the burden 
 is not upon the prisoner to show that he has 
 been prejudiced. It is sufficient that he may 
 have been. Sam v. State, 1 Swan, 61. 
 
 225. Where, after the jury had retired to 
 deliberate, one of their number stated to the 
 others that the defendant had stolen a hog, 
 which was not proved on the trial, but which 
 the jury regarded as evidence, it was held 
 that the defendant was entitled to a new 
 trial. Booby v. State, 4 Yerg. 111. 
 
 226. Where one of the jurors told the 
 others, after tliey had retired, that he had 
 heard the principal witness in the case ex- 
 amined before the grand jury, and that the 
 witness then made the same statement that 
 he made at the trial, and it appeared that 
 
 such declarations of the juror had a power- 
 ful influence on them in finding the prisoner 
 guilty, it was held ground for a new trial. 
 Donston v. State, 6 Humph. 375. 
 
 (h) Improper rendering of verdict. 
 
 227. Resorting to calculation. Where 
 the jury, in order to agree on the period of 
 imprisonment, arranged that each juror 
 should write his figures, the whole be added, 
 the amount divided by twelve, and the quo- 
 tient be their finding, it was held ground for 
 a new trial. Crabtree v. State, 3 Sneed, 
 303. 
 
 228. But where, on a trial for murder, the 
 jury having agreed as to the guilt of the 
 prisoner, and the only question being as to 
 the punishment, the result was arrived at by 
 each juror setting down the number of years 
 he thought the ofiense merited, adding 
 these numbers, dividing the aggregate by 
 twelve, and adopting the quotient for their 
 verdict, it was held not cause for a new trial. 
 Thompson v. Com. 8 Gratt. 637. 
 
 229. Disclosing verdict. The fact that 
 the jury disclosed their verdict by order of 
 the court, is not ground for a new trial, as 
 it might be if disclosed without such order. 
 State V. Bryant, 21 Vt. 479. 
 
 230. Absence of prisoner. The fact that 
 the prisoner's counsel are present in court 
 during the trial, and at the return of the 
 verdict, and do not raise any objection on 
 account of his absence, does not constitute 
 a waiver of his right to be present. Rose v. 
 State, 20 Ohio, 31. 
 
 231. If after conviction of assault with 
 intent to commit murder, the record does 
 not show that the prisoner was present in 
 court when the verdict was delivered, anew 
 trial will be granted. But if the irregularity 
 consists in pronouncing sentence in the 
 prisoner's absence, the judgment will be 
 reversed, and the cause remanded, with 
 instructions to pronounce judgment in ac- 
 cordance with law. Cole v. State, 5 Eng. 
 318. And see Rose v. State, sujjva. 
 
 232. Jury not polled. In South Carolina, 
 where after conviction of murder, the judge 
 refused the prisoner's application to have 
 the jury polled, it was held not a ground for
 
 462 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Improper Rendering of Verdict. 
 
 Wrong Verdict. 
 
 a new trial. State v. Wise, 7 Eich. 413 ; 
 State V. Whitman, 14 lb. 113. 
 
 233. Jury not acquiescing in verdict. 
 On the trial of an indictment for an affray, 
 the jury having intimated their intention to 
 acquit one of the defendants, the court told 
 them that if they believed the evidence, 
 both of the defendants were guilty; where- 
 upon the prosecuting attorney directed the 
 clerk to enter a verdict of guilty as to both, 
 which was done, and the jury, being asked 
 if that was their verdict, made no direct 
 assent, but by a nod from each of them. 
 Held that there must be a new trial. State 
 V. Shule, 10 Ired. 153. 
 
 234. One of the jurors filed his affidavit, 
 in which he stated that he believed that the 
 prisoner was not guilty; that he was made 
 to believe by some of the jurors, that there 
 were fatal defects in some part of the pro- 
 ceedings which would prevent the prisoner 
 from being sent to the penitentiary; that 
 they would find a verdict of guilty, and 
 recommend him to the, mercy of the court, 
 and that the recommendation being sent to 
 the Governor, would procure his pardon. 
 Held that there must be a new trial. Coch- 
 ran V. State, 7 Humph. 544. 
 
 235. Where on the trial of an indictment 
 for grand larceny, it was the duty of the 
 jury to fix the term of imprisonment, which 
 they neglected to do, and were discharged 
 but were all recalled by the judge before 
 leaving the court room, excepting one, who 
 had gone away a short distance with the 
 deputy sheriff", it was held that the verdict 
 must be set aside. Mill's Case, 7 Leigh, 751. 
 
 236. Where after conviction for murder, 
 one of the jurors said that he did not agree 
 to find the prisoner guilty of murder, but 
 only of manslaughter, and through mistake 
 of his duty believed that he must coincide 
 with the other jurors, it was held not 
 ground for a new trial. Com. v. Drew, 4 
 Mass. 391. 
 
 237. Upon the jury being polled on a trial 
 for murder, one of them stated that when he 
 first went out, he was not in favor of finding 
 the prisoner guilty, but that a majority of 
 the jury being against him, he agreed to the 
 verdict as delivered by the foreman. When 
 
 again asked "What is your verdict now? " 
 he replied, "I find the prisoner guilty." 
 Held no ground for setting aside the verdict. 
 State V. Godwin, 5 Ired. 401. 
 
 (?) Wrong verdict. 
 
 238. Insufficient for judgment. Although 
 when a verdict does not pronounce on the 
 facts necessary to enable the court to give 
 judgment, the jury should be directed to 
 retire for further deliberation, yet if the 
 court docs not do this, it does not entitle the 
 defendant to a discharge, but a new trial 
 may be granted. State v. Arthur, 21 Iowa, 
 333. 
 
 239. Under an indictment containing a 
 count for selling liquor by measure in quan- 
 tities less than five gallons, and also a count 
 for selling liquor by the glass to be drank 
 upon the premises, without having a license 
 therefor, the proof was of a sale of less than 
 five gallons not drank on the premises, and 
 a sale of one glass on Sunday, drank upon 
 the premises, and a general verdict of guilty. 
 It was held that although there was suffi- 
 cient evidence to have warranted the jury in 
 convicting the defendant under the first 
 count, yet as their verdict was general, and 
 the court could not say that it was based on 
 that offense, there must be a new trial. Peo- 
 ple V. Brown, 6 Parker, 66G. 
 
 240. Against law or evidence. Where 
 the jury render a verdict of guilty, mani- 
 festly against law and evidence, a new trial 
 will be granted. State v. Sims, Dudley, 
 Ga. 313; State v. Jones, 3 Bay, 530; State 
 V. Powers, Ga. Decis.pt. 1, 150; U. S. v. 
 Duval, Gilpin, 356 ; State v. Rabon, 4 Rich. 
 260; Ball's Case, 8 Leigh, 726; State v. 
 Spenlove, Riley, 269; Grayson's Case, 6 
 Graft. 712. 
 
 241. Where there is a great preponderance 
 of evidence against the verdict, a new trial 
 will be granted. Keithler v. State, 10 Smed. 
 & Marsh. 193 ; Cochran v. State, 7 Humph. 
 544 ; Leake v. State, 10 lb. 144 ; Bedford v. 
 State, 5 lb. 552 ; State v. Lyon, 12 Conn. 
 487. 
 
 242. But the courts will grant a new 
 trial with reluctance, where the proceedings 
 have been regular, and no misconduct is at-
 
 NEW TRIAL. 
 
 463 
 
 Grounds for. 
 
 Wrong Verdict. 
 
 tributable to the jurors, merely because the 
 jury may have mistaken the law of the case, 
 or the weight of evidence. Wickersham v. 
 People, 1 Scam. 130 ; State v. Hooper, 2 
 Bail. 29; State v. Anderson, lb. 565; State 
 v. Jeffrey, 3 Murph. 480; Hall's Case, 2 
 Gratt. 594 ; State v. Sartor, 2 Strobh. 60 ; 
 Bivens v. State, 6 Eng. 455 ; Mains v. State, 
 8 lb. 285 ; Bennett v. State, lb. 694; Giles 
 V. State, 6 Ga. 276 ; State v. Fisher. 2 Nott 
 & McCord, 261; Kirby v. State, 3 Humph. 
 289. 
 
 243. Where, however, the evidence is not 
 sufficient to sustain the verdict, a new trial 
 may be granted, although it may not be a 
 case in which a like course would have been 
 pursued in a civil action. Bedford v. State, 
 5 Humph. 552. Where the prisoner has 
 been twice tried for murder, and found 
 guilty each time, the court being of opinion 
 that the evidence was wholly insufficient to 
 sustain the verdict, awarded a new' trial. 
 Grayson v. Com. 7 Gratt. 613. But a new 
 trial will .not be always granted although 
 the court is not satisfied beyond a reason- 
 able doubt of the guilt of the accused. 
 Kirby v. State, supra. 
 
 244. The prisoner having been convicted 
 of murder in the first degree, the Supreme 
 Court in reversing the judgment, stated that 
 the facts would authorize a conviction of 
 murder in the second degree. On the sec- 
 ond trial, the jury, notwithstanding this in- 
 timation of the court, again found the pris- 
 oner guilty of murder in the first degree. 
 Held that there was no cause for a new trial. 
 Mitchell V. State, 8 Yerg. 514. 
 
 245. Where after conviction of rape, it 
 appeared that the prosecutrix was of doubt- 
 ful character, that she did not speak of the 
 offense until asked about it, that the ac- 
 cused did not flee, that the prosecutrix was 
 uncorroborated, that the place of the alleged 
 crime was such that she might have been 
 heard, and she made no outcry, it was held 
 that the defendant was entitled to a new 
 trial. Whitney v. State, 35 Ind. 503. 
 
 246. Where under an indictment against 
 two, for grand larceny, the evidence against 
 both being the same, the jury found one 
 guilty of grand and the other of petit lar- 
 
 ceny, a new trial was granted. State v. Lo- 
 rumbo, Harper, 183. 
 
 247. Under a statute limiting prosecutions 
 for the offense to one year from the time the 
 offense was committed, an indictment for 
 gaming was found in March, and the evi- 
 dence showed that the alleged gaming was 
 some time during the year previous. It was 
 further proved that the defendant sat be- 
 hind a table, commonly called a faro table ; 
 that he dealt or drew cards from a box, and 
 used pieces of bone for the purpose of carry- 
 ing on the game ; but it was not proved that 
 any money was played for, or that any game 
 was actually played. The defendant having 
 been convicted, it was held that there was 
 no cause for a new trial. Stevens v. State, 
 3 Ark. 66. 
 
 248. On a trial for Sabbath breaking, a 
 witness testified that on Sunday he went to 
 the back door of the defendant's store and 
 applied to him for goods, which the de- 
 fendant refused to sell him, assigning as a 
 reason that it was Sunday ; that the witness 
 then helped himself to the goods ; that the 
 defendant did not charge the goods in his 
 account against the witness, or at any time 
 demand payment, but that he afterward re- 
 ceived pay for them from the witness. The 
 defendant having been found guilty, it was 
 held that there was no cause for a new trial. 
 Bennett v. State. 8 Eng. 694. 
 
 249. Withholding from prisoner benefit 
 of doubt. If the jury withhold from the 
 prisoner the benefit of a doubt, a new trial 
 will be granted. State v. Hammond, 5 
 Strobh. 91. Where the judge before whom 
 the prisoner was tried, considered his guilt 
 doubtful, a new trial was ordered uj^on the 
 consent of the prosecuting attorney. Dilby 
 V. State, Riley, 302. And where on a trial 
 for murder, the evidence left it doubtful 
 whether one of the defendants was present 
 at the homicide, a new trial was granted as 
 to him. State v. Rabon, 4 Rich. 260. 
 
 250. Verdict variant from charge. On 
 the trial of an indictment for breaking and 
 entering a dwelling-house with intent to 
 commit a felony, the court instructed the 
 jury that "if they believed the defendants 
 (however they may have got into the house)
 
 4G4 
 
 NEW TRIAL. 
 
 Grounds for. 
 
 Wrong Verdict. 
 
 broke out of it, they were guilty. Held that 
 as they coulJ not be convicted of that with 
 which they were not charged, the instruc- 
 tion was erroneous, and ground for a new 
 trial. State v. McPherson, 70 N. C. 239. 
 
 251. In South Carolina, on the trial of an 
 indictment for stealing fifteen hogs, under a 
 statute imposing a penalty of five dollars for 
 each hog stolen, it was proved that the de- 
 fendant only stole three hogs. Held that 
 the defendant was entitled to a new trial on 
 the ground that the charge was not proved 
 as laid, notwithstanding the prosecution of- 
 fered to obtain a remission of the penalty, 
 excepting for the three hogs. State v. Her- 
 ring, 1 Brev. 159. 
 
 252. On the trial of an indictment for 
 arson, charging the defendant in the first 
 count with burning a barn, parcel of the 
 mansion house, and in the second count 
 with burning a barn not being parcel of the 
 mansion house, the evidence sustained the 
 second count, but the jm-y notwithstanding, 
 found the defendant guilty under the first 
 count, and acquitted him as to the second. 
 Held ground for a new trial. State v. Stew- 
 art, 6 Conn. 47. 
 
 253. Where under an indictment for the 
 larceny of several books, the evidence showed 
 that the defendant stole but a part of the 
 books, and the jury found a general verdict 
 of guilty, it was held that there must be a 
 new trial, although the punishment was the 
 same for stealing a part as the whole. State 
 V. Somerville, 21 Maine, 20. 
 
 254. Where there is a general verdict of 
 guilty, under an indictment charging two 
 distinct offenses, differently punished, a new 
 trial will be granted. State v. Montague, 
 2 McCord, 257. 
 
 255. Under an indictment for receiving 
 stolen goods and charging a former convic- 
 tion, the jury rendered a general verdict, 
 nothing having been said to them as to the 
 former conviction. Held that the verdict 
 must be set aside. Com. v. Briggs, 5 Pick. 
 429. 
 
 256. "Where no injustice has been done. 
 On the trial of an indictment for receiving 
 stolen goods, which misdescribed a part of 
 the goods, but contained a suflScient de- 
 
 scription of the residue, the court charged 
 the jury that there was no misdescription, 
 and a general verdict of guilty was rendered. 
 Held not ground for a new trial, it appear- 
 ing from the bill of exceptions that the 
 question of the prisoner's guilt was the same 
 in respect to the whole of the goods, he 
 having received them from the same person 
 by a single act. People v. Wiley, 3 Hill, 
 194. 
 
 257. Presumption in favor of verdict. 
 The presumption is in favor of the verdict, 
 and unless affirmatively overthrown by the 
 record, the verdict will not in general be 
 disturbed. Waller v. State, 4 Ark. 87. But 
 the court may grant a new trial, although 
 no error appear on the record. Com. v. 
 Green, 17 Mass. 515. 
 
 258. Where the instructions of the court 
 contain an abstract proposition of law, it 
 will be presumed that the jury correctly 
 applied it to the case before them. People 
 v. Reynolds, 2 Mich. 422. 
 
 259. If on the trial of an indictment for 
 libel, the question of malice has been prop- 
 erly left to the jury, and they have found 
 malice, a new trial will not be granted on 
 the ground that the alleged libel was not 
 malicious. Taylor v. State, 4 Ga. 14. 
 
 260. Where it is the duty of the jury to 
 assess the fine, a new trial will not be granted 
 unless the fine be so excessive, as to show 
 partiality or corruption. State v. Blenner- 
 hassett. Walker, 7. 
 
 261. Relief when granted. After a con- 
 viction for murder, the court are required 
 to order a new trial, when they are satisfied 
 that the verdict is against evidence or 
 against law, or that justice requires a new 
 trial. ]\Ianuel v. People, 48 Barb. 548. 
 
 262. Where the bill of exceptions purports 
 to set out all the evidence, and the proof 
 does not sustain the indictment, the court 
 will set aside the verdict, although no special 
 instruction was asked for by the defendant. 
 Com. v. Merrill, 14 Gray, 415. 
 
 263. Review of decision. In Illinois, 
 Arkansas and Georgia, the decision of the 
 court below, refusing a new trial on the 
 ground that the verdict was contrary to 
 evidence, will not be reviewed. Halliday
 
 NEW TRIAL.— NOLLE PROSEQUL 
 
 405 
 
 Grounds for. Wrong Verdict. Effect of Setting Aside Verdict. In U. S. Courts. 
 
 V. People, 4 Oilman, 111 ; Mayers v. State, 2 
 Eng. 174 ; McLane v. State, 4 Ga. 335 ; Glory 
 V. State, 8 Eng. 236. 
 
 264. In Virginia, wliere the prisoner was 
 found guilty upon circumstantial evidence, 
 and the court before which the trial was 
 had refused to grant a new trial, it was 
 held on a hearing before the general court, 
 that the verdict could not be set aside, al- 
 though the evidence did not appear to be 
 sufficient. McCune's Case, 2 Rob. 77 ; Cot- 
 trell's Case, lb. And see Hill's Case, 2 Gratt. 
 594. 
 
 265. In New York, on certiorari to a Court 
 of Sessions, the Supreme Court will not 
 reverse the judgment on the ground that the 
 jury mistook a question of fact. People v. 
 Butler, 3 Parker, 377; see ante, suh. 10-14. 
 
 3. Effect of setting aside verdict. 
 
 266. Prisoner to be tried again. After 
 conviction and reversal of the judgment for 
 error in the proceedings, the prisoner may 
 be tried again, notwithstanding the jsro vision 
 of the bill of rights that the accused shall 
 not be twice put in jeopardy for the same 
 oflfense. Com. v. Gibson, 2 Va. Cas. 70 ; 
 Sutcliffe V. State, 18 Ohio, 469. 
 
 267. Subject of rehearing. When a 
 new trial is granted, the prisoner can only 
 be tried upon those counts in the indictment 
 on which he was convicted, and not upon 
 those of which he was acquitted. Lithgow 
 V. Com. 2 Va. Cas. 297. 
 
 268. But in South Carolina, where under 
 an indictment containing two counts against 
 road commissioners for obstructing a road, 
 the defendants were convicted on the second 
 count, it was held that a new trial restored 
 the case to the position in which it stood 
 upon the finding of the indictment. State 
 V. Commissioners, Riley, 273. 
 
 See Appeal ; Bill of exceptions ; Cer- 
 tiorari ; Writ op error. 
 
 Nolle Pro0cqui. 
 
 1. In United States courts. Although 
 in a case calling for such action, the court 
 might decline to grant a motion made by 
 30 
 
 the district attorney before verdict for leave 
 to enter a nolle prosequi, until the government 
 should have had sufficient time to protect 
 itself against collusion, yet aside from this, 
 the motion must be granted as a matter of 
 right. U. S. V. Watson, 7 Blatchf. 60. 
 
 2. While an accusation is under investiga- 
 tion, before either a commissioner or the 
 grand jury, the United States district attor- 
 ney has no absolute power over the case. Al- 
 though his duty requires him to attend the 
 sessions of the grand jury, to advise them of 
 the law, to examine witnesses, and when 
 directed, to di'aw indictments, yet he cannot 
 control the action of that body. But after 
 indictment found and until the juiy is im- 
 paneled, he can enter a nolle prosequi, even 
 without the consent of the court. U. S. v. 
 Schumann, 2 Abb. 523. 
 
 3. In the State courts. In New Hamp- 
 shire, the prosecuting officer has a general 
 discretionary power to enter a nolle prosequi 
 before or after a verdict is rendered against 
 the prisoner. State v. Smith, 49 New Hamp . 
 155. In Vermont, it was held that although 
 the prosecution might enter a nolle prosequi 
 before the trial commenced, yet that after 
 that time, it could only be done by leave 
 of the court. State v. Roe, 12 Vt. 93 ; but 
 not against the wish of the defendant. State 
 V. I. S. S. 1 Tyler, 178. 
 
 4. In New York, although the entry of a 
 nolle prosequi cannot be directed by the 
 court, yet the district attorney can only 
 enter it with leave of the court. People v. 
 McLeod, 1 Hill, 377. The necessity of pro- 
 curing the consent of the court, is of com- 
 paratively recent statutory regulation ; and 
 this restriction applies to district attorneys 
 only, the attorney general still having power 
 to enter a nolle prosequi upon any indictment 
 without the consent of the court. People 
 V. Bennett, 49 N. Y, 137 ; per Church, C. J. 
 The New York Court of Sessions has no 
 authority to direct a nolle prosequi on an 
 indictment for an offense not triable therein. 
 People V. Porter, 4 Parker, 524. 
 
 5. In Massachusetts where on the trial of 
 anindictment for burning a barn, the allega- 
 tion of ownership was not proved as charged, 
 it was held that a nolle prosequi could not be
 
 4GG 
 
 NOLLE PROSEQUL 
 
 In State Courts. 
 
 To Some of Several Counts. 
 
 entered, but that the defeudant must be 
 acquitted. Com. v. Wade, 17 Pick. o95. 
 
 6. But in the same State it has been held 
 that, although after the jury are impaneled 
 the defendant is entitled to demand a ver- 
 dict, yet if he do not do so, it is not a valid 
 ground of exception that a nolle fvo»eqni 
 was entered. Com. v. Kimball, 7 Gray, 328. 
 
 7. In Tennessee, before conviction, the 
 attorney general and the court may dis- 
 charge the prisoner, vpithout acquittal, by 
 voile prosequi. State v. Fleming, 7 Humph. 
 152. In North Carolina, the attorney gen- 
 eral may enter a nolle prosequi^ but the court 
 will interfere if the power be oppressively 
 exercised. State v. Thompson, 3 Hawks, 
 613. In South Carolina, before the jury is 
 impaneled, a nolle prosequi may be entered 
 at the pleasure of the prosecuting officer; 
 but if entered afterward, without the con- 
 sent of the prisoner, it will operate as an ac- 
 quittal. State V. McKee, 1 Bailey, G51. 
 
 8. In Georgia, the prosecution may enter 
 a nolle prosequi upon a first, or any subse- 
 quent indictment, for the same olfense, be- 
 fore tbe case has been submitted to the 
 jury, either for defects in the pleadings, 
 want of proof, or any other cause. Durham 
 V. State, 9 Ga. 306. But see Reynolds v. 
 State, 3 Kelly, 53. In Virginia, it was held 
 that the prosecuting attorney could not en- 
 ter a nolle prosequi without the consent of 
 the court. Anon. 1 Va. Cas. 139. 
 
 9. The meaning of "jeopardy," in the 
 Constitution of Alabama, is that which arises 
 on the first trial, and commences as soon as 
 the parties are at issue upon a sufficient in- 
 dictment. After the case is submitted to 
 the jury, the State cannot enter a nolle prose- 
 qui wUhout the consent of the defendant ; 
 and if done, the defendant is entitled to be 
 discharged, as upon an acquittal. Grogan 
 V. State, 44 Ala. 9. 
 
 10. To part of charge. After verdict, a 
 voile prosequi may be entered as to a part of 
 a count, whereby the charge, as set forth, is 
 reduced in its degree of criminality. State 
 V. Burke, 38 Me. 574. 
 
 11. Where the defendant was charged 
 with receiving stolen goods, and in the same 
 indictment it was alleged that he had be- 
 
 fore been convicted of the like offense, it was 
 held that if there was a general verdict, a 
 nolle prosequi as to the aggravation might be 
 entered after conviction. Com. v. Briggs, 7 
 Pick. 177. 
 
 12. Jn New York, it has been held that 
 when a nolle j^rosequi is entered to part of an 
 indictment containing a single count, it 
 operates upon the whole, and entitles the 
 prisoner to his discharge. People v. Porter, 
 4 Parker, 524. In Tennessee, it has been 
 held that where an indictment for a felo- 
 nious assault contains but one count, a nolle 
 prosequi entered as to the felony is a dis- 
 charge of the entire accusation. Brittain v. 
 State, 7 Humph. 159. 
 
 13. To some of several counts. Where 
 the defendant is found guilty under an in- 
 dictment containing two counts, the prose- 
 cution may enter a nolle prosequi as to one of 
 the counts. State v. Bruce, 11 Shepl. 71. 
 
 14. In Massachusetts a complaint before a 
 justice of the peace for selling spirituous 
 liquor without a license, contrary to the 
 statute (R. S. ch. 143, § 5), contained six 
 counts, upon all of which the justice found, 
 the defendant guilty. On appeal to the 
 court of Common Pleas, the jury found the 
 defendant guilty on one of the counts, but 
 disagreed as to the other counts. The attor- 
 ney for the prosecution thereupon entered a 
 nolle prosequi as to the latter counts. Held 
 proper. Com. v. Stedman, 12 Mete. 444. 
 
 15. Two slaves being charged with man- 
 slaughter, and a severance granted, one of 
 them was found "guilty as charged in the 
 first count," and a nolle prosequi entered in his 
 case as to the second count. The other de- 
 fendant, in whose case a demurrer was er- 
 roneously sustained to the second count, was 
 tried and acquitted on the first count. Held 
 not good ground for arrest of judgment after 
 a second conviction on the first count in the 
 case of the first defendant. Aaron v. State, 
 39 Ala. 75. 
 
 16. An indictment charged the prisoner in 
 one couut with the murder of Lucy Mc- 
 Laughlin, and in another with the murder 
 of Kate Smith. The counsel for the prisoner 
 moved the court that the prosecution be re- 
 quired to elect upon which count the pris-
 
 NOLLE PROSEQUL— NUISANCE. 
 
 467 
 
 Is not a Bar to Further Prosecution. 
 
 Nature and Requisites. 
 
 ■oner should be tried. The court reserved 
 the question. During the trial it was proved 
 by the prosecution that the deceased was 
 usually known by the name of Kate Smith, 
 but there was some evidence tending to 
 show that her name was Lucy McLaughlin. 
 At the close of the evidence the prosecution 
 entered a nolle prosequi as to the count 
 charging the murder of Lucy McLaughlin, 
 and the prisoner was found guilty upon the 
 other count for the murder of Kate Smith. 
 Held, that as there was nothing to mislead 
 the prisoner, there was no error. O'Brien v. 
 People, 48 Barb. 274 ; atR'd 36 N. T. 276. 
 
 17. Where an indictment contained three 
 counts, the first of which charged the burn- 
 ing of a dwelling-house in the night, the 
 second the burning of a barn in the night, by 
 means of which said dwelling-house was 
 burned, and the third the burning in the 
 night of a barn within the curtilage ©f said 
 •dwelling-house, it was held that the want of 
 an averment that the different counts were 
 different descriptions of the same act, was 
 cured by the entry of a nolle prosequi of the 
 first and second counts, which was proper 
 after a motion to quash had been overruled, 
 but before the jury had been impaneled. 
 Com. v. Cain, 103 Mass. 487. See Com. v. 
 Holmes, 103 lb. 440. 
 
 18. Is not a bar to further prosecution. 
 A nolle prosequi, even where it is to the 
 whole indictment, is not a bar to another in- 
 dictment for the same offense. Com. v. 
 "Wheeler, 3 Mass. 172 ; State v. McNeill, 3 
 Hawks, 183; State v. Haskett, Riley, 97: 
 State v. Thornton, 13 Ired. 256 ; State v. 
 Dover, 46 New Hamp. 453. 
 
 19. In North Carolina, a nolle prosequi 
 having been entered to an indictment in the 
 •county court, a second indictment was found 
 against the defendant in the Superior Court 
 for the same offense. Held proper, the de- 
 fendant being amenable to another indict- 
 ment in any court having jurisdiction of the 
 offense. State v. McNeill, supra. 
 
 20. In Alabama, it was held that the 
 statute (Penal Code, ch. 8, § 11) which 
 authorized the entry of a nolle prosequi 
 where the prisoner would not consent to 
 tlie amendment of the indictment, the vari- 
 
 ance between the allegations and the proof 
 being such as would entitle him to acquittal, 
 could not be extended by construction so as 
 to permit a nolle prosequi to be entered and 
 a new indictment to be found with allega- 
 tions essentially dissimilar, and that such 
 second indictment would not come within 
 the saving clause in respect to the statute of 
 limitations. State v. Dunham, 9 Ala. 76. 
 
 21. Effect on bond. The entry of a riolle 
 prosequi is a release of the bond and its ifor- 
 feiture. State v. Langton, 6 La. An. 282. 
 
 22. Withdrawal of. Where leave was 
 granted the prosecution to enter a nolle 
 prosequi as to certain portions of the indict- 
 ment, and the same was entered on the 
 docket, and afterward, during the progress 
 of the trial, leave was granted the prosecu- 
 tion to strike this entry off, it was held 
 proper, none of the rights of the prisoner 
 being thereby impaired. State v. Nutting, 
 39 Maine, 359. 
 
 ^fiusaucc. 
 
 1. 
 
 2. 
 
 3. 
 4. 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 15. 
 
 Nature and requisites. 
 Acts endangering life. 
 Acts detrimental to health. 
 Obstructing highway. 
 Neglect to repair highway or 
 
 BRIDGE. 
 
 Obstructing river. 
 
 Disorderly house. 
 
 Gaming house. 
 
 Bowling alley. 
 
 Trial. 
 
 Indictment. 
 
 Evidence. 
 
 Verdict. 
 
 Judgment. 
 
 Ab.vtement of nuisance. 
 
 1. Nature and requisites. 
 
 1. Must be an annoyance to the public. 
 
 To render an act indictable as a nuisance, it 
 must be inconvenient and troublesome to 
 the whole community, and not merely to in- 
 dividuals. State V. Schlottman, 53 Mo. 
 164 ; s. c. 1 Green's Crim. Reps. 553. Pub- 
 lic profanity is indictable as a common
 
 4G8 
 
 NUISANCE. 
 
 Nature and Requisites. 
 
 Acts Endangering Life. 
 
 nuisance. State v. Graham, 3 Sneed, 134. 
 But where persons assembled in a jniblic 
 place, and with loud quarreling and pro- 
 fane swearing disturbed and broke up a 
 a singing school, it was held that they were 
 not guilty of a nuisance. State v. Baldwin, 
 1 Dev. & Batt. 195. 
 
 2. In Massachusetts, an indictment for a 
 public nuisance in uttering loud cries and 
 exclamations in a jjublic street was held 
 sustained by proof that one or two persons 
 were awakened from sleep and disturbed 
 thereby. Com. v. Oaks, 113 Mass. 8. In 
 the same State, to constitute the offense of 
 uttering loud exclamations and outcries, and 
 thereby drawing together a number of per- 
 sons, to the great damage and common nuis- 
 ance of all the citizens, the act must be of 
 such a nature as tends to annoy good citi- 
 zens, and does in fact annoy such of them 
 as are present and not favoring it. But the 
 fact that there are also persons present who 
 give encouragement and countenance to the 
 illegal act is no defense. Com. v. Harris, 
 101 lb. 29. See Com. v. Smith, 6 Cush. 80. 
 
 3. Nature of the acts to be regarded, 
 and not time. To constitute the offense of 
 disturbing the public peace by the assembly 
 of noisy and dissolute persons in a house or 
 tenement, and thus creatmg a common nui- 
 sance, the nature of the acts are to be re- 
 garded, and not the length of time during 
 which they are committed. Com. v. Gal- 
 lagher, 1 Allen, 592. 
 
 4. On the trial of an indictment for keep- 
 iug a disorderly house, it appeared that the 
 dwelling of the defendant where the dis- 
 order occurred was in the country, not on or 
 near a public road, and that there were only 
 five families within a mile; that two of 
 these families were often disturbed at a late 
 hour of the night by the drunken orgies of 
 the sous of the defendant, but that the other 
 three families were not disturbed by them; 
 that the defendant did not join his sons in 
 making the noise, and at times tried to keep 
 them quiet. Held that the house was not a 
 common nuisance. State v. Wright, 6 Jones, 
 25. 
 
 5. On the trial of an indictment for keep- 
 ing a disorderly common tippling house, the 
 
 jury found a special verdict that the de- 
 fendant on one occasion kept a house in 
 which there was a collection of twenty or 
 thirty negroes, who got drunk, danced and 
 disturbed the neighborhood with noise. 
 Held not sufficient to support a conviction. 
 Dunnaway v. State, 9 Yerg. 350. 
 
 6. Must be obnoxious in fact. The com- 
 mon council of a city cannot declare that to 
 be a nuisance which is not such in fact, 
 and they m.ust confine their prohibitory 
 action aimed at fixing the locality of any 
 business to future erections. Wreford v. 
 People, 14 Mich. 41. 
 
 7. In Massachusetts, under the statute 
 (Gen. Stats, ch. 64), the determination of 
 the mayor and aldermen of a city of the 
 places in which the poles of telegraph com- 
 panies may stand is conclusive upon the 
 rightfulness of their erection within the 
 limits of a highway, so that they cannot 
 lawfully be removed by the city or any of 
 its officers or treated as a public nuisance- 
 Com. V. City of Boston, 97 Mass. 555. 
 
 8. A statute which legalizes an existing 
 nuisance maybe repealed. Reading v. Com- 
 11 Penn. St. 196. 
 
 2. Acts ekdangering life. 
 
 9. Keeping explosives. A nuisance at 
 common law, may consist in the keeping or 
 manufacture of gunpowder,naphtha, or other 
 explosive or inflammable substances in such 
 quantities and places, or in such a manner 
 as to be dangerous to the persons and prop- 
 erty of the people of the neighborhood. 
 Com. V. Kidder, 107 Mass. 188. 
 
 10. Spring guns. The mere act of set- 
 ting spring guns on one's own premises is not 
 unlawful ; but the doing of it may make the 
 person responsible for any injury thereby 
 occasioned to individuals, and he may be in- 
 dictable for the erection of a nuisance, if the 
 public are subjected to danger and annoy- 
 ance. State V. Moore, 31 Conn. 479. 
 
 11. In Connecticut, the placing of spring 
 guns in a shoj) for its protection against 
 burglars is lawful, and the person so doing, 
 will be justified, although the death of the 
 burglar be thereby occasioned. Placing 
 however, a loaded gun in a shop so as to
 
 NUISANCE. 
 
 4G!) 
 
 Acts Endangering Life. 
 
 Acts Detrimental to Health. 
 
 range over a highway, cocked, and with 
 strings attached to the trigger, so that it may 
 be discharged by an object coming in con- 
 tact with the string, and sufficiently near and 
 unprotected to inflict injury if any one 
 should then be within its range on the high- 
 way, is a public nuisance; but otherwise, if 
 the shot would not pass through the side of 
 the shop with sufficient force to inflict injury, 
 although jiersons passing on the highway 
 are annoyed and alarmed, and apprehensive 
 of danger from an accidental discharge of 
 the gun. State v. Moore, supra. 
 
 12. Improper driving. An indictment 
 may be maintained at common law for driv- 
 ing through a crowded street in such a way 
 as to endanger the lives of the citizens. U. 
 S. V. Hart, Pet. C. C. 390. 
 
 3. Acts detrimental to health. 
 
 13. Offensive trade. While an ofiensive 
 or unwholesome trade or business is carried 
 on at a point so remote from others as in no 
 manner to afl^ect or disturb them, the pursuit 
 is lawful. But it becomes unlawful when 
 the adjacent territory is devoted to domestic 
 or business uses, and the inhabitants are 
 disturbed and rendered uncomfortable by 
 the continuance of the establishment. Tay- 
 lor V. People, 6 Parker, 347. 
 
 14. The defendants were indicted for cre- 
 ating a nuisance by unwholesome smells, 
 smokes and stenches, rendering the air cor- 
 rupt, offensive, uncomfortable and unwhole- 
 some. The Legislature had authorized them 
 to manufacture gas to be used for lighting 
 streets and buildings in the city of New 
 York. It also required that the act be favor- 
 ably construed in all the courts for the pur- 
 poses expressed therein. It appeared that 
 persons residing near were much disturbed, 
 and sometimes sickened, by the oppressive 
 smell in certain conditions of the atmos- 
 phere. Held, that although private persons 
 might perhaps maintain an action for dam- 
 ages, yet that the people were barred by the 
 act of the Legislature from making a public 
 complaint by indictment for such a cause 
 while the defendants conducted their busi- 
 ness with skill and care. People v. N. Y. 
 Gas Light Co. 64 Barb. 55. 
 
 15. The continuance of an offensive busi- 
 ness for more than twenty years before the 
 existence of a public way or dwelling-houses 
 in the vicinity, is no defense to an indict- 
 ment for a nuisance. Com. v. Upton, 6 
 Gray, 473. 
 
 16. In Maine, it was held not a defense to 
 an indictment for carrying on a noxious 
 trade, that the selectmen had not previously 
 assigned some place for exercising the trade 
 under the statute (ch. 1G4, § 2). State v. 
 Hart, 34 Maine, 36. 
 
 17. Corrupting water. It is indictable 
 to render water unwholesome by throwing a 
 dead animal into ic. State v. Buckman, 8 
 New Ilamp. 203. 
 
 18. An information for a nuisance, was 
 held sufficient at common law, which 
 charged the defendant with urinating in a 
 spring of water near a public highway, out 
 of which many persons in the vicinity and 
 travelers along the road were accustomed to 
 use water, thereby rendering the spring un- 
 fit for use and indecent, and to the obstruc- 
 tion of the free use of the water thereof by 
 the citizens of the State. State v. Taylor, 
 29 Ind. 517. See Sloan v. State, 8 lb. 312. 
 
 19. Poisoning air with stagnant water. 
 Where a mill-dam across a stream, by caus- 
 ing the water to stagnate, corrupts the air, 
 producing sickness in a whole neighborhood ; 
 or if without occasioning sickness, it renders 
 the enjoyment of life and property in the 
 community uncomfortable by disagreeable 
 smells, it is a public nuisance, for which an 
 indictment wUl lie, notwithstanding the dam 
 has been kept up in the same place for 
 seventy years, and it only became ofiensive 
 during the last year of its existence. State 
 V. Rankin, 3 South Car. 438; s. c. 1 Green's 
 Crim. Reps. 503. 
 
 20. But to constitute a nuisance in dam- 
 ming up the water of astream,thereby making- 
 it stagnant, it must be proved that the dam 
 was placed in the stream so near the high- 
 way, or some public place, that the stagnant 
 water afibcted the public. Com. v. Webb, 
 6 Rand. 726. 
 
 21. Where the authorities of a city by 
 changing the grade of a street in front of 
 the defendant's premises caused water to ac-
 
 470 
 
 NUISANCE. 
 
 Acts Detrimental to Health. 
 
 Obstructing Highway. 
 
 cumulate, Tvhich became putrid and noxious, 
 it was held that an indictment against the 
 defendant for keeping and permitting a 
 nuisance could not be sustained. Barring 
 V. Com. 2 Duvall, Ky. 95. 
 
 22. Where a pond, without creating sick- 
 ness, produces smells which impair the en- 
 joyment of life and property in the neigh- 
 borhood, it is indictable as a public nui- 
 sance, and no length of time will legalize it. 
 But if other causes to which the owner of 
 the pond does not contribute, and which do 
 not arise from his agency, produce the un- 
 pleasant effects, he is not liable. State v. 
 Rankin, 3 Rich. N. S. 438. 
 
 23. It is no defense to an indictment for a 
 nuisance in maintaining a mill-dam whereby 
 the surrounding country is flooded with stag- 
 nant water, that the dam is not more detri- 
 mental to the public health than such struc- 
 tures usually are, or that the dam was erected 
 before that section was settled. Douglass v. 
 State, 4 Wis. 387. 
 
 4. Obstructing highway. 
 .. '24. Highway, how created. Land does 
 not become a public highway by dedication 
 without user for twenty years, or acceptance. 
 Repairing it by a surveyor of highways does 
 Bot constitute such acceptance. State v. 
 Bradbury, 40 Maine, 154. 
 
 •25. The mere use of a way or road by the 
 people of a neighborhood for a long period 
 of time to go to church, and other neighbor- 
 ing places, the road not being of the width 
 prescribed by law for highways, nor treated 
 as a highway by the appointment of an over- 
 seer with laborers to keep it in repair, is not 
 a public road which it is indictable to ob- 
 struct. State V. McDaniel, 8 Jones, 284. 
 
 26. In New Hampshire, it has been held 
 that a highway may be accepted by a vote 
 raising money, or other act recognizing an 
 obligation to repair, or by twenty years' user, 
 or by substituting it for an ancient highway 
 which has been allowed to go to decay. 
 State V. Atherton, 16 New Hamp. 203. Se- 
 lectmen are required in the exercise of their 
 power in laying out a road, to proceed upon 
 their own convictions of what the public 
 good and convenience demand. Where a 
 
 road was laid out by them in pursuance of 
 the instructions of the town, it was held 
 illegal ; the record not showing that their 
 doings were of that judicial character that 
 the law exacts, or that improper influences 
 were not brought to bear upon them. State 
 v. Newmarket, 20 lb. 519, Where no notice 
 was given of the laying out of a highway 
 over land on which there was a house, it 
 was held that an indictment for a nuisance 
 in continuing the house in the highway 
 could not be maintained. State v. Reed, 38 
 lb. 59. 
 
 " 27. What deemed a highway. On the 
 trial of a complaint for a nuisance in erect- 
 ing and continuing a fence upon '' a public 
 highway, and traveled road," the following 
 instruction was held correct : That if the jury 
 found there was at the time of the acts com- 
 plained of, and had been for more than 
 twenty years before, a road or way open to 
 the whole public without limitation or re- 
 striction, and it was in fact so used by 
 travelers on foot, or with horses and car- 
 riages, during all that time, and was recog- 
 nized as such jjublic way by the town, by ex- 
 pending money on it for repairs during all 
 those years, it was such a highway or public 
 road as would sustain the complaint. State 
 V. Bunker, 59 Maine, 360. 
 
 28. In New York, a road used as a com- 
 mon highway subsequent to the year 1777, 
 but not recorded as such, was held not a 
 public highway within the meaning of the 
 statute relative to highways (Sess. 36, ch. 33, 
 § 24), so as to render an obstruction of it a 
 nuisance. People v. Lawson, 17 Johns. 277. 
 
 29. The public easement is not necessarily 
 limited to the traveled path and the ditches 
 on each side. But where the road has been 
 fenced out for many years, about the usual 
 width, and there is nothing to control it, a 
 jury will be justified in finding that the 
 whole space between the fences is a public 
 highway. State v. Morse, 50 New Hamp. 9. 
 
 20. Right of way. Where a town has a 
 right of way, it will be deemed a private 
 way, and if any one other than an inhabit- 
 ant of the town passes over it, he will be a 
 trespasser. If obstructed, an indictment can- 
 not be maintained for the obstruction ; and
 
 NUISANCE. 
 
 471 
 
 Obstructing Highway. 
 
 the towu will not be liable for neglecting to 
 repair it. Com. v. Low, 3 Pick. 408. 
 
 31. Where a way has always been used as 
 a public highway by the land owners for ac- 
 cess to their farms, and for Airming purposes, 
 the public right will not be deemed to have 
 been lost by abandonment. State v. Morse, 
 50 New Hamp. 9. 
 
 32. A way of necessity does not give the 
 public a permanent easement in the adjoin- 
 ing land. State v. Northumberland, 44 New 
 Hamp. 638. 
 
 33. Acts rendering party liable. The 
 obstruction of any road laid by public au- 
 thority is a nuisance. State v. Mobley, 1 
 McMullan, 44. And although a road be 
 opened as a highway by an erroneous judg- 
 ment of the court, it will be a nuisance to 
 obstruct it before the judgment is reversed. 
 State v. Spainhour, 2 Dev. & Batt. 547. 
 
 34. The proprietors of a distillery in a city 
 were in the habit of delivering the grains 
 after distillation to purchasers, by passing 
 the grain through pipes to the public street, 
 opposite their distillery, where it was re- 
 ceived into casks standing in wagons and 
 carts, which were accustomed to collect 
 there in great numbers to receive and take 
 away the article ; and in consequence of 
 their remaining there to await their turns. 
 and of the strife among the drivers for pri- 
 ority, and of their disorderly conduct, the 
 street was obstructed. Held that the de- 
 fendants were liable to indictment for nui- 
 sance. People V. Cunningham, 1 Denio, 534. 
 
 35. Placing or maintaining a building, 
 stones, or other obstructions, in a public 
 highway without lawful authority, is an in- 
 dictable nuisance at common law. Com. v. 
 Blaisdell, 107 Mass. 334. The temporary 
 obstruction of part of a street or highway, 
 by persons engaged in building, or in receiv- 
 ing or delivering goods, is allowed, from the 
 necessity of the case; but not the systematic 
 and continued encroachment upon a street, 
 though for the purpose of carrying on a law- 
 ful business. People v. Cunningham, supra. 
 
 36. Oflicers who obstruct a highway by 
 holding sales therein, may be indicted as a 
 nuisance. Com. v. Williams, 18 Serg. & 
 Rawlc, 403. 
 
 37. Where a person who occupies land 
 over which a public road runs, maintains a 
 fence across the road, which he did not 
 originally erect, he is liable to an indict- 
 ment for a nuisance. State v. Hunter, 5 
 Ired. 369. 
 
 38. Where an act of the Legislature au- 
 thorized the owner of land lying on the East 
 River to construct wharves and bulkheads 
 in the river in front of his land, and there 
 was at that time a public highway through 
 said land terminating at the river, it was 
 held that he could not, by filling up the 
 land between the shore and the bulkhead, 
 obstruct the public right of passage from 
 the land to the water, without being liable 
 to indictment for nuisance. People v. Lam- 
 bier, 5 Denio, 9. 
 
 39. Where a public highway was discon- 
 tinued for a time, and a new road used by 
 the public, by permission of the owners of 
 the land, it was held that any obstruction 
 placed across the old road was a nuisance. 
 Elkins V. State, 3 Humph. 543. 
 
 40. Partial encroachment. A mere en- 
 croachment upon some portion of the high- 
 way limits, whereby the highway is rendered 
 less commodious, is a nuisance. State v. 
 Merrit, 35. Conn. 314. 
 
 41. Where a petition to county commis- 
 sioners for laying out a highway prayed that 
 it might be laid across a bridge thirty-two 
 feet wide, it was held that they might lay out 
 the way fifty feet wide, if they thought that 
 the public convenience required it ; but that 
 if they so adjudged, and afterward deter- 
 mined that only thirty-two feet in width 
 should be completed at that time, an ob- 
 struction on the unfinished part was a 
 nuisance for which an indictment might be 
 maintained. Com. v. Boston & Lowell R. R. 
 Corp. 13 Cush. 254. 
 
 42. Sidewalk. In Pennsylvania, it is an 
 indictable ofiense to obstruct a sidewalk. 
 Reading v. Com. 11 Penn. St. 196. 
 
 43. Passageway. The obstruction of a 
 passageway from one highway to another 
 is a nuisance, such passageway being 
 deemed a highway. State v. Duncan, 1 
 McCord, 404. 
 
 44. But to make the obstruction of a way
 
 472 
 
 NUISANCE. 
 
 Obstructing Highway. 
 
 an indictable offense, it must injuriously 
 affect some public right. An alley or cid de 
 sac in the interior of a city block, not form- 
 ing a passage from one street to another, is 
 not a way for the obstruction of which an 
 indictment will lie. People v. Jackson, 7 
 Mich. 432. 
 
 45. Encroachment by railroad. The un- 
 lawful obstruction of a highway by a railroad 
 is a nuisance, and the remedy is by indict- 
 ment against the company. Com. v. Vt. & 
 Mass. R. R. Corp. 4 Gray, 22 ; State v. Vt. 
 Cent. R. R. Co. 27 Vt. 103. 
 
 46. A railroad company is liable to in- 
 dictment for a nuisance in erecting and 
 continuing a building and leaving their cars 
 in the highway ; and it is liable for the acts 
 of its agents done by its implied authority, 
 though there be no written appointment 
 under seal, nor a vote of the company con- 
 stituting the agency. State v. Morris & Essex 
 R. R. Co. 3 Zabr. 3G0. 
 
 47. But an indictment cannot be main- 
 tained against a railroad company for a 
 nuisance in obstructing a street by a switch 
 when the street, which was dedicated to 
 public use by the owner, has never been 
 accepted by the town. Gedge v. Com. 9 
 Bush, Ky. 61. 
 
 48. And when a railroad is in the hands 
 of a receiver, and the company are under an 
 injunction not to intermeddle with its con- 
 cerns, the company is not liable to an 
 indictment for a nuisance in blocking up a 
 highway with freight cars, engines, &c. 
 State V. Vt. Cent. R. R. Co. 30 Vt. 108. 
 
 49. Encroachment on public square. 
 Where a public square was illegally scjld by 
 city authorities, and jjrivate houses erected 
 thereon, it was held that the owners of the 
 houses were indictable for a nuisance in 
 erecting them. Com. v. Rush, 14 Penn. St. 
 18G. 
 
 50. Where county buildings were erected 
 on part of a public square, and occupied 
 several years, when new buildings were 
 erected on another part of the same square, 
 and the old buildings rented for other than 
 county purposes — held that the county com- 
 missioners, and also the persons who occu- 
 pied the old buildings, were liable to an 
 
 indictment for a public nuisance. Com. v. 
 Bowman, 3 Barr, 202. 
 
 51. Though the fee of land be in a town 
 or be private property, yet if the use be 
 given to the public, and it is so used for a 
 long time, an obstruction of it may be prose- 
 cuted by indictment. State v. Atkinson, 24 
 Vt. 448. 
 
 52. Cattle in street. Where the ordinance 
 of a city provided that no owner or person 
 having the care of cows or other grazing 
 animals should permit them to go at large, 
 or stop to feed on any street, it was held that 
 a complaint which alleged that the defend- 
 ant having the care of two cows, permitted 
 them to stop and feed in certain streets, was 
 insufficient even after verdict, the manifest 
 intention of the statute being to prohibit the 
 grazing of cattle in the streets. Com. v. Bean, 
 14 Gray, 52. 
 
 53. Obstructing railroad. As placing a 
 single piece of timber on a railroad track 
 constitutes an unlawful obstruction, the fact 
 that the indictment charges that several 
 pieces of timber were placed upon it, and it 
 is proved that only one was placed there, is 
 not a variance. Allison v. State, 42 Ind. 
 354. 
 
 54. On the trial of an indictment for 
 placing obstructions on a railroad track, it 
 is proper for the court to refuse to charge 
 that " if the jury believe from the evidence 
 that the defendant owns the land where the 
 obstruction was laid upon the railroad track, 
 and the railroad company had not obtained 
 tlie right of way over the same, the defend- 
 ant had a right to place what he pleased 
 upon his own land, and should be acquit- 
 ted." State V. Hessenkamp, 17 Iowa, 25. 
 
 55. The defendant, with a heavily loaded 
 team, was on a public street, with one of his 
 wheels on the track of a horse railroad, when 
 the cars came up behind him. The defend- 
 ant's team was moving at the usual rate for 
 teams of that class, but at a less rate of speed 
 than the cars were in the habit of moving, 
 with room outside the track for vehicles to 
 pass. The conductor requested the defend- 
 ant to remove his team from the track, which 
 he did not do, but continued upon it at the 
 same rate of speed several hundred feet, and
 
 NUISANCE. 
 
 473 
 
 Neglect to Repair Highway or Bridge. 
 
 then turned off. Held that he was liable to 
 indictment for the willful and malicious ob- 
 struction of the railroad, and that it was no 
 excuse that he did not get upon the track in 
 the first instance with the intention of 
 obstructing the passage of the cars, or 
 slacken his pace on their approach. Com. 
 V. Temple, 14 Gray, 69. 
 
 5. Neglect to repair highway ok bridge. 
 
 56. May be punished criminally. The 
 party obliged by law to rejiair a public 
 bighway or toll-bridge is liable criminally 
 for neglecting to do so; and, in general, an 
 indictment may be maintained whenever an 
 action for damages will lie. State v. Inhabs. 
 of Madison, 63 Maine, 546. 
 
 57. Liability of turnpike company. In 
 Tennessee, where a turnpike company neg- 
 lected to repair their road, and thereby 
 forfeited their right to toll, it was held that 
 the company was liable to indictment for a 
 nuisance. Simpson v. State, 10 Yerg. 525. 
 
 58. In Massachusetts, where by the turn- 
 pike law (R. S. ch. 39, § 42), the corporation 
 is amenable to indictment whenever a person 
 liable to 2)ay toll has sustained injury by 
 reason of the road being out of repair, it is 
 likewise amenable, although no person pay- 
 ing toll has sustained injury by reason of 
 such want of repair. Com. v. Hancock Free 
 Bridge Corp. 2 Gray, 58. 
 
 59. Where, by the act of incorporation of 
 a turnpike and bridge company, it was made 
 the duty of the president and directors to 
 keep the road in repair, and the neglect to do 
 so was declared a misdemeanor in the pres- 
 ident and individual directors for the time 
 being, it was held that an individual director 
 might be indicted for such neglect, either 
 separately or jointly with his codirectors, 
 and on conviction might be punished sepa- 
 rately, although the board of directors con- 
 sisted of several members, and the concur- 
 rence of a majority was necessary to the 
 doing of a corporate act. Kane v. People, 8 
 Wend. 203. 
 
 60. Neglect of town to repair road. 
 The conditional acceptance of a road by a 
 town is void ; and where it was covered by 
 water and only traveled in the winter upon 
 
 the ice, it was held that such travel could 
 not establish the road by user, for the non- 
 repair of which in summer the town could 
 be indicted. State v. Calais, 48 Maine, 456. 
 But if a town has neglected to repair a part 
 of the road which it is its duty to maintain, 
 it is no defense that this part would be of 
 no immediate practical use because a bridge 
 company has also been guilty of a neglect of 
 duty. Com. v. Inhabs. of Deerfield, 6 Allen, 
 449. 
 
 61. An order of court establishing a high- 
 way having length but no definite width, 
 imposes no duty or obligation on the town 
 to open and work such highway. State v. 
 Town of Leicester, 33 Vt. 653. The grant- 
 ing of a writ of certiorari^ however, to quash 
 the proceedings of the county commissioners 
 in laying out a highway is not tantamount 
 to quashing such proceedings ; but it is to 
 be regarded as a valid and subsisting high- 
 way until judgment to quash is rendered. 
 State V. Inhabs. of Madison, 63 Maine, 
 546. 
 
 62. Neglect to repair streets. Where 
 the mayor and aldennen of a municipal 
 corporation are bound to keep the streets in 
 repair, they may be indicted and punished 
 individually for neglect of that duty. Hill 
 V. State, 4 Sneed, 443. 
 
 63. Duty to repair bridge. When the 
 duty of building and keeping in repair a 
 public bridge is imposed by law upon any 
 person or cori^oration, such person or cor- 
 poration is liable to indictment at common 
 law for neglecting this duty. State v. Morris 
 Canal Co. 2 Zabr. 537. 
 
 64. When a flood in a river has washed 
 away a part of its banks, and so widened 
 the bed of the stream, the obligation of a 
 corporation having the franchise of a toll- 
 bridge across the river to maintain and keep 
 the bridge in repair will require the exten- 
 sion of the bridge to the new bank thus 
 created, if there is no other limitation of the 
 franchise; and this will carry with it a like 
 duty as to the abutments and approaches to 
 the bridge to that which devolved upon the 
 corporation when the bridge was first built. 
 Com. V. Inhabs. of Deei-field, 6 Allen, 449. 
 
 65. In Maine, a structure for the passage
 
 474 
 
 NUISANCE. 
 
 Neglect to Repair Highway or Bridge. 
 
 Obstructing River. Disorderly House. 
 
 of travelers over a railroad where it crosses 
 ii highwaj', is a bridge within the statute, 
 for the want of repair of which by the rail- 
 road company an indictment will lie. State 
 V. Inhabs. of Gorham, 37 Maine, 451. 
 
 66. Towns lying on the Connecticut and 
 Merrimack rivers extend to the center of the 
 river, and are liable to indictment for neg- 
 lecting to build the portion of the bridge 
 required in their town for a public highway 
 across the river. State v. Canterbury, 28 
 New Hamp. 195. 
 
 67. Where the proprietor of a mill con- 
 structs a canal across a public road, and 
 erects a bridge over the canal, he is not 
 liable to indictment for suffering the bridge 
 to be out of repair. State v. Yarrell, 13 Ired. 
 130. 
 
 68. Neglecting to keep bridge lighted. 
 Where the charter of a bridge company 
 provided that the bridge should "at all 
 times be kept in good, safe, and passable 
 repair," it was held that the company was 
 bound to keep the bridge artificially lighted 
 during the night, provided such lighting 
 was necessary to the safety and convenience 
 of the public, and that a neglect of the duty 
 rendered the company liable to indictment 
 for a nuisance. Com. v. Centr. Bridge Corp. 
 ISCush. 242. 
 
 6. Obstructing river. 
 
 69. Indictable at common law. Where 
 a river up to a certain point had been fre- 
 quently used by the public as a navigable 
 river, and by an act of the Legislature was 
 placed in charge of public officers, and 
 worked by the public, it was held a public 
 highway, for the obstruction of which an 
 indictment would lie at common law. State 
 V. Thompson, 2 Strobh. 12. 
 
 70. The unauthorized erection of a bridge 
 over a public navigable river, thereby ob- 
 structing the navigation, is an offense at 
 common law, on the same principle upon 
 which the erection of gates across a public 
 road has been held to be a nuisance. But 
 the Legislature may authorize the construc- 
 tion of a bridge across navigable or tide 
 waters, though the navigation may thereby 
 
 be injured. State v. Inhabs. of Freeport,48 
 Maine, 198. 
 
 71. Erection of dam. At common law, 
 an indictment cannot be maintained for a 
 nuisance in erecting a dam across a river 
 not navigable by which fish are prevented 
 from ascending the river. Com. v. Chapin, 
 5 Pick. 199. 
 
 72. The statute of 8 Anne, ch. 3, prohibit- 
 ing the setting, erecting, or making on or 
 across any river, any incumbrances, and en- 
 acting that all such incumbrances which hin- 
 der the passage of fish are nuisances, is in 
 force in Massachusetts. But a seine or net 
 is not an obstruction within the meaning of 
 the statute. Com. v. Ruggles, 10 Mass. 391. 
 
 73. In New Hampshire, the maintenance 
 of dams without fishways in a river not navi- 
 gable, issuing from an inland lake, and 
 thereby preventing the passage of fish from 
 the sea to the lake is a criminal offense at 
 common law ; and a right to so obstruct the 
 river will not be acquired against the State 
 by twenty years of adverse user. State v. 
 Franklin Falls Co. 49 New Hamj}. 240. 
 
 74. Where the charter of a company per- 
 mitted them to build a dam across a stream 
 at a certain place, it was held that if they 
 erected the dam higher up the stream, and 
 thereby obstructed navigation, they were 
 liable for a nuisance. State v. Godfrey, 13 
 Maine, 361. 
 
 75. Where indictable. An obstruction 
 in the Hudson River above low-water mark, 
 is indictable in New Jersey, while obstruc- 
 tions below low-water mark can only be pun- 
 ished by proceedings in the courts of New 
 York, or of the United States. State v. Bab- 
 cock, 1 Vroom (30 N. ,J.) 29. ■ 
 
 7. Disorderly house. 
 
 76. What is. A place of public resort in 
 which illegal practices are habitually carried 
 on, or which is the habitual resort of thieves, 
 drunkards, prostitutes, or other idle and 
 vicious persons who gather there for the 
 Ijurpose of gratifying their depraved appe- 
 tites, or to make it a rendezvous where plans 
 may be concocted for depredations upon so- 
 ciety, is a disorderly house. State v. Wil- 
 liams, 1 Vroom (30 N. J.) 102.
 
 NUISANCE. 
 
 475 
 
 Disorderly House. 
 
 Gaming House. 
 
 Bowling Alley. 
 
 77. To constitute a disorderly house, the 
 noises must be usual or common occurrences, 
 and must disturb the neighborhood, and not 
 merely one person. Palfus v. State, 3Ci Ga. 
 280. 
 
 78. In Iowa, a person is guilty of keeping 
 a disorderly house under the statute, whether 
 the lighting, quarreling, &c., occur in it, or 
 on the sidewalk in front of it, if it was the 
 character of the house which attracted the 
 disorderly persons there and which caused 
 the disturbances. State v. Webb, 25 Iowa, 
 235. See Cable v. State, 8 Blackf. 531. 
 
 79. Deemed a nuisance. The habitual 
 disturbance of a neighborhood by the noises 
 of disorderly persons in a house, is a nui- 
 sance. People V. Carey, 4 Parker, 238. 
 
 80. Liability of keeper. The keeper of 
 a disorderly house is liable to indictment for 
 a nuisance ; and it need not be alleged that 
 the house was kept for gain. State v. Bailey, 
 1 Foster, 343. 
 
 81. An indictment for a nuisance may be 
 maintained against a jjerson for keeping a 
 house wherein offenses are committed that 
 are punishable by fine. Smith v. Com. 6 B. 
 Mon. 21. 
 
 82. A common tippling house is a public 
 nuisance, and the keeper liable to indict- 
 ment. State V. Berthol, 6 Blackf. 474 ; Bloom- 
 huff V. State, 8 lb. 205. 
 
 83. Liability of landlord. A person who 
 aids and assists others in keeping a house of 
 ill-fame, is equally guilty in the eye of the 
 law, with those who actually hire and con- 
 trol the house. Cora. v. Gannett, 1 Allen, 7. 
 
 84. One who leases a house, knowing that 
 it is to be used for the pui'pose of prostitu- 
 tion, is in law a participator in the crime of 
 keeping the house. Smith v. State^ 6 Gill, 
 425. 
 
 85. Renting a house to a woman of ill 
 fame, knowing her to be such, with the in- 
 tent that it shall be used for the purpose of 
 prostitution, is indictable at common law. 
 Com. V. Harrington, 3 Pick. 26; Jennings v. 
 Com. 17 lb. 80. Brockway v. People, 2 Hill, 
 558, is not authority so far as it conflicts 
 with this rule. People v. Erwin, 4 Denio, 
 129. 
 
 86. Mere non-feasance on the part of the 
 
 landlord cannot involve him in the guilt of 
 the tenant. The fact of his being landlord 
 of a disorderly house, receiving the rent of 
 it, and that he has power to expel his tenant 
 for non-payment of rent, does not of itself 
 make him responsible. To make him liable, 
 he must have known for what purpose the 
 house was intended to be used when he 
 rented it, or afterward aid, assist, or give 
 his consent to its being so kept. lb. 
 
 87. One who permits the promiscuous as- 
 sembling about his shop where spirituous 
 liquor is sold, of persons who make loud 
 noises, quarrel, and swear, may be indicted 
 for keeping a disorderly house. State v. 
 Thornton, Busbee, 252. 
 
 8. Gaming house. 
 
 88. Indictable at common law. The 
 
 keeping of a common gaminghouse is an in- 
 dictable offense at common law, by reason of 
 its tendency to bring together disorderly 
 persons, to promote immorality, and to lead 
 to breaches of the peace. People v. Jack- 
 son, 3 Denio, 101. 
 
 89. Under an indictment at common law 
 for keeping a gaming house, or house of ill- 
 fame, proof of the act alleged, fer se proves 
 a case of common nuisance. And the same 
 is true where the prosecution is under a stat- 
 ute which declares that all buildings used for 
 certain specified jjurposes, shall be common 
 nuisances. Com. v. Buxton, 10 Gray, 9. 
 
 90. A house in which a faro table is kej)t 
 for the purpose of gambling, is a nuisance, 
 without proof of frequent frays and disturb- 
 ances there; and the use of the table is not 
 rendered lawful by a tax. State v. Doon, R. 
 M.Charlt. 1. 
 
 91. But maintaining a billiard room with- 
 out noise or disturbance of the neighbor- 
 hood, and without any betting, is not a 
 public nuisance, unless it be in a place where 
 it is made a nuisance by statute. People 
 agst. Sergeant, 8 Cow. 139. 
 
 9. Bowling alley. 
 
 92. Deemed a nuisance. Erections for 
 the profit of the owner, adapted to sports 
 and amusements which are not useful, are 
 deemed nuisances. This has been held in
 
 476 
 
 NUISANCE. 
 
 Bowling Alley. 
 
 Trial. 
 
 Indictment. 
 
 respect to a bowling alley for gain and 
 common use, resorted to by the public in 
 the day and night time. State v. Haines, 
 30 Maine, 65. But the owner of a bowling 
 alley is not liable for the unauthorized use 
 of it by another person. H). In New Jer- 
 sey, it has been held that a ten-pin alley, 
 kept for gain, in a populous village, and 
 open to public use, is not per se a nuisance. 
 State V. Hall, 3 Vroom (32 N. J.) 158. 
 
 93. An indictment alleged that the de- 
 fendant kejot in a public place, " a certain 
 common, ill-govemed and disorderly room, 
 in which for lucre, the defendant procured 
 and suffered disorderly persons to meet by 
 night and day, and to remain there drink- 
 ing, tippling, cursing, swearing, quarreling, 
 making great noises, rolling bowls in and 
 at a game called ten-pins." Held that the 
 offense charged was a public nuisance. 
 Bloomhuff V. State, 8 Blackf. 205. 
 
 10. Tkial. 
 
 94. By jury, right to. Keeping a bawdy- 
 house being an indictable offense at common 
 law, the Legislature cannot, by classing it 
 "with those acts which constitute disorderly 
 persons, withdraw from the accused the 
 right which the Constitution has secured to 
 him of a trial by jury ; and if he offer to 
 give bail for his api^earance before the next 
 grand jury, it is the duty of the magistrate 
 to take it. Warren v. People, 3 Parker, 544. 
 
 11. Indictment. 
 
 95. Right to, not affected by penalty. 
 
 The right of indicting a public nuisance is 
 not affected by a statute imposing a penalty 
 for the offense, unless there are negative 
 "words showing that that is the intention. 
 Renwick v. Morris, 7 Hill, 575. 
 
 96. "Who not liable to. Where an al- 
 leged public nuisance is not the natural, 
 direct and proximate result of the defend- 
 ant's own act, but is occasioned by the acts 
 of others so operating on his acts as to cause 
 the injurious consequences complained of, 
 he is not liable. State v. Rankin, 3 South 
 Car. 438; b. c. 1 Green's Crim. Reps. 503. 
 
 97. Where a gate was unlawfully erected 
 across a public road, and the owner of the 
 
 land afterward sold the land to A., who 
 never actually entered, but leased it to 
 others who kept up the gate, it was held 
 that A. was not indictable for the contin- 
 uance of the nuisance. State v. Pollock, 4 
 Ired. 303. 
 
 98. In Alabama, it was held that to render 
 a person liable under the act of 1836, for 
 an obstruction erected previous to the pas- 
 sage of the act, he must, subsequent to its 
 passage, have done something showing an 
 intention to continue the nuisance. Free- 
 man V. State, 6 Porter, 372. 
 
 99. An infant, two years of age, upon 
 whose land a nuisance is erected, is not lia- 
 ble to indictment. People v. Townsend, 3 
 Hill, 479. 
 
 100. Liability of attorney. Where a 
 municipal corporation agreed with the 
 owner of land, that in consideration of a 
 release of damages for widening a street, 
 the corporation would set back the fence 
 and grade the land, but afterward the cor- 
 poration refused to do so, and the attorney 
 of the ownei-, the latter being an infant and 
 married woman, replaced the fence in its 
 former position so as to obstruct the street, 
 it was held that the attorney was liable to 
 indictment for a nuisance. Com. v. Smyth, 
 14 Gray, 33. 
 
 101. Husband and wife may be jointly 
 indicted, and both be convicted of keeping 
 a common nuisance, by maintaining a house 
 for the illegal sale of intoxicating liquors. 
 Com. V. Tryon, 99 Mass. 442 ; or they may 
 be prosecuted severally. Com. v. Heffron, 
 102 lb. 148. 
 
 102. Landlord and tenant In New 
 York, it has been held that an indictment 
 for a misdemeanor in letting a house with 
 the intent that it shall be kept for the 
 purposes of public prostitution, and which 
 is accordingly kept for that jjurpose, should 
 charge the defendant as the keeper of a 
 common bawdy-house in the ordinary form ; 
 and the tenant who lives in and conducts 
 the house, may be joined with the landlord 
 in the indictment. People v. Irwin, 4 Denio, 
 129. 
 
 103. Corporation. An indictment for a 
 nuisance will lie against a corporation.
 
 NUISANCE. 
 
 477 
 
 Indictment. 
 
 Btate V. Morris & Essex R. R. Co. 3 Zabr. 360. 
 An information against a railroad company, 
 for neglecting to ring their bell or blow their 
 whistle when about to pass a highway, is 
 sufficient which designates the respondent 
 as " The Vt. Cent. R. R. Co., a corporation 
 existing under and by force of the laws of 
 this State, duly organized and doing busi- 
 ness," without alleging when and where 
 the existence of the company commenced. 
 State V. Vt. Cent. R. R. Co. 28 Yt. 583. 
 
 104. Averment of time. An indictment 
 for letting a house for the jjurposes of pros- 
 titution, must contain an averment of the 
 time of the commission of the offense, and 
 state the name of the person to whom the 
 lease was made, or that such person was to 
 the jurors unknown, and that the lease was 
 received and accepted by the individual to 
 whom it was made. Com. v. Moore, 11 
 Ciish. 600. But see Com. v. Harrington, 3 
 Pick. 26. 
 
 105. Averment of place. The indict- 
 ment, in describing the place of the alleged 
 nuisance, must be certain to a common in- 
 tent, and allege that it is in the county. 
 State V. Sturdivant, 21 Maine, 9. But where 
 an indictment for a nuisance caused by a 
 mill and dam near a highway, did not de- 
 scribe the mill or state that it was in the 
 county, it was held that the indictment was 
 sufficient after verdict. Stephen's Case, 2 
 Leigh, 759. And where a nuisance was 
 alleged to have been committed in a certain 
 town, and a part of the nuisance was in fact 
 committed in another town, it was held 
 that the offense was sufficiently charged. 
 State V. Godfrey, 12 Maine, 361. 
 
 106. An indictment for neglecting to repair 
 a highway must state the town in which 
 the road lies. Com. v. Inhabs. of North 
 Brookfield, 8 Pick. 463. 
 
 107. An indictment for keeping a disor- 
 derly house need not state the precise local- 
 ity where the offense was committed. If the 
 city or town where the building or tenement 
 is situated be distinctly set out, no further 
 averment of place is required. Com. v. 
 Welsh, 1 Allen, 1 ; Com. v. Gallagher, Tb. 592. 
 
 108. In indictments for common nuisances, 
 it is sufficient to name the place, as a certain 
 
 building, a certain disorderly house, a cer- 
 tain shop, a certain common gaming house,, 
 &c., without further description. Com. v. 
 Skelley, 10 Gray, 464. 
 
 109. An indictment for a nuisance in 
 erecting and continuing a building on a 
 highway need not state what particular part 
 of the building is an encroachment. State 
 V. Atherton, 16 New Hamp. 203. 
 
 110. An indictment for obstructing a 
 navigable stream must name the stream, 
 state that it is navigable where it is ob- 
 structed, describe the place of obstruction, 
 allege that boats cannot pass it, and state 
 that the bed of the stream has not been sold 
 by the Government of the United States. 
 Cox V. State, 3 Blackf. 193. 
 
 111. An indictment for a nuisance in 
 maintaining a certain mill-dam in and about 
 and across a certain stream of water in said 
 county, called "Elkhart river," is bad for 
 uncertainty. The land on which the dam 
 was constructed should have been described, 
 or reference made to known objects near it. 
 Wood V. State, 5 Ind. 433. 
 
 112. Where an indictment for a nuisance 
 caused by a mill and dam near a highway, 
 omitted to describe the mill or to state that 
 it was in the county, it was held that the 
 defect was cured by the verdict. Stephen's 
 Case, 2 Leigh, 759. 
 
 113. An indictment for obstructing a 
 river, and thereby overflowing a highway, 
 need not describe the length and breadth of 
 the ovei-flow on the highway. Resp. v. 
 Arnold, 3 Yeates, 417. 
 
 114. Description of highway. An indict- 
 ment against a town for a defective highway 
 need not state the width of the highway, or 
 allege the authority by which it is laid out. 
 State V. Inhabs. of Madison, 63 Me. 546. 
 
 115. Although in indictments for not re- 
 pairing highways, and for nuisances therein^ 
 it is not necessary to set out the termini, yet 
 if they are set out, they must be proved as 
 laid, and any material variance will be fatal. 
 State V. Northumberland, 40 New Hamp. 
 156. 
 
 116. Where in an indictment for not mak- 
 ing a highway pursuant to an order of court, 
 the highway was described by courses and
 
 478 
 
 NUISANCE. 
 
 Indictment. 
 
 distances only, and in the description the 
 signs of degrees and minutes were used in- 
 stead of words, it was held insufficient on 
 demurrer. State v. Jericho, 40 Vt. 121. 
 
 117. An indictment described the place of 
 an alleged nuisance as " a certain common 
 public highway and landing place in the 
 town of P., in the county of N., commonly 
 known by the name of The Common, lying 
 west of the highway, leading through a por- 
 tion of said P. from the town of M., in said 
 county, to B. Ferry, and extending from the 
 highway to the shore in a westerly direc- 
 tion." The evidence produced was the ob- 
 struction of a common which lay to the 
 northwest and north of the highway. Held 
 that the indictment was not sustained. State 
 V. Peckham, 9 R. I. 1. 
 
 118. Description of building. In Maine, 
 an indictment under the statute (R. S. ch. 
 17, § 1) for a nuisance in keeping a liquor 
 shop, need not allege that the shop was " a 
 house of ill-fame," nor that it " was resorted 
 to," instead of "was used," nor state the 
 names of persons to whom liquor was sold, 
 nor describe the place, except by naming the 
 town and county. State v. Lang, 63 Maine, 
 215. 
 
 119. Ownership of property. In Ver- 
 mont, an indictment under the statute 
 (Comp. Stat. 204) for obstructing railroad en- 
 gines and cars, which alleges that they are 
 the property of a certain railroad company, 
 is insufficient ; the expression '■ railroad com- 
 pany " not necessarily importing that it is a 
 corporation, and the court not being able to 
 take judicial notice of the fact. State v. 
 Mead, 27 Vt. 722. 
 
 120. Statement of facts constituting of- 
 fense. As a house kept for tippling and 
 whoring is not a nuisance per se, but only 
 becomes so by reason of the public being af- 
 fected by it, an indictment charging it to be 
 a nuisance must allege the facts making it 
 such; as that it is in a public place, or that 
 people reside near it. Mains v. State, 42 
 Ind. 327; Leary v. State, 39 lb. 544. 
 
 121. Where the defendant is charged with 
 keeping a disorderly house, the acts of dis- 
 order must be specified. Frederick v. Com. 
 4 B. Men. 7. An indictment which alleged 
 
 that the defendant kept a disorderly and ill- 
 governed house, and unlawfully caused and 
 procured, for his own lucre and gain, certain 
 persons, as well men as women of evil name 
 and fame, and of dishonest conversation, to 
 frequent and come together in his said houso 
 at unlawful times, was held sufficiently de- 
 finite. Com. V. Stewart, 1 Serg. & Rawle, 
 342. 
 
 122. Where an indictment for a nuisance 
 in keeping a disorderly house alleged vari- 
 ous purposes for which the premises were 
 used, constituting the means by which the 
 nuisance was created, it was held that the 
 indictment was not bad for duplicity, al- 
 though each of the purposes was criminal in 
 its nature. Com. v. Kimball, 7 Gray, 328. 
 
 123. An indictment which alleges that the 
 defendant kept and maintained a building 
 used as a house of ill-fame " to the common 
 nuisance of all good citizens," &c., is suffi- 
 cient, without averring that he kept and 
 maintained a common nuisance. Wells v. 
 Com. 12 Gray, 326. 
 
 124. An indictment is not objectionable as 
 embodying distinct offenses, which charges 
 the keeping of a bawdy-house, a tippling 
 house, and a dancing house, to the nuisance 
 of the public; and the defendant may be 
 convicted if the jury find that " the house 
 was conducted in such a manner as to dis- 
 turb and disquiet the neighbors, or if its 
 business was so carried on as to tend to the 
 corruption of the public morals." People 
 V. Carey, 4 Parker, 238. 
 
 125. An indictment set forth that ''on the 
 first day of June, and on divers other days 
 and times between that day and the first 
 day of October then next ensuing, the de- 
 fendants knowingly kept and maintained 
 a certain common nuisance, to wit, a certain 
 building, to wit, a house of ill-fame, situ- 
 ate," &c., " and that the said defendants in 
 said house, for their own lucre and gain, 
 certain persons, as well men as women of 
 evil name and fame and dishonest conversa- 
 tion to frequent and come together, did then 
 unlawfully and willfully cause, permit and 
 procure, and said men and women in said 
 house, as well in the night as in the day, 
 tlieu on said other days and times did sufier
 
 NUISANCE. 
 
 479 
 
 Indictment. 
 
 and permit to be and to remain whoring, 
 to the common nuisance," &c. Held not 
 bad for duplicity. Com. v. Hart, 10 Gray, 
 465. 
 
 12S. An indictment for a nuisance at com- 
 mon law is good which alleges that " the de- 
 fendants, on a day named, set up, erected 
 and maintained certain buildings, and on 
 said day, and on divers days and times 
 between that day and the day of the finding 
 of the indictment, did in said buildings un- 
 lawfully use and employ, decompose and 
 combine large quantities of acid, guano, tar, 
 oil, bone and dead bodies, and other nox- 
 ious and offensive substances in the manufac- 
 ture of acids, colors, chemicals and chemical 
 products, by means whereof divers noxious, 
 offensive and unwholesome smokes, gases, 
 smells and stenches were issued and emitted 
 from said buildings during all the time 
 aforesaid, so that the air then and there 
 was thereby filled and impregnated there- 
 with, and rendered corrupt, offensive and 
 unwholesome, to the great damage and 
 common nuisance of all persons then and 
 there being." Com. v. Rumford Chemical 
 Works, 16 Gray, 231. As to what is a suffi- 
 cient indictment charging a common-law 
 nuisance, see Reed v. People, 1 Parker, 481. 
 
 127. A count in an indictment for nui- 
 sance which alleges that swine were kept in 
 a certain pen and yard near to the public 
 highway, and that they were fed with offal, 
 &c., does not charge two offenses. State v. 
 Payson, 37 Maine, 361. 
 
 128. An indictment for a continuing nui- 
 sance need not charge that it is such. State 
 V. Hall, 21 Maine, 84. But the indictment 
 must set out all of the facts. State v. Brown, 
 16 Conn. 154. 
 
 129. InsuflBcient averment. An indict- 
 ment which charges that the defendant 
 suffered and permitted an indecent and dis- 
 orderly house to be kept on his premises, is 
 bad for uncertainty in not showing that the 
 house was maintained by the defendant, or 
 that he had leased it to another knowing 
 the object for which it was to be used, or 
 that the house was under the defendant's 
 control. Taylor v. Com. 1 Duvall, Xy. 160. 
 
 130. An indictment alleged that the tle- 
 
 fendant on a specified day, at L., "unlaw- 
 fully did keep and maintam a certain com- 
 mon ill-governed and disorderly tenement 
 there situate." Held that the indictment 
 did not describe the offense of keeping a 
 disorderly house or any other offense. Com. 
 V. Wise, 110 Mass. 181; s, c. 3 Green's 
 Crim. Reps. 264. 
 
 131. A complaint alleged that the defend- 
 ants with force and arms were disturbers 
 and breakers of the peace, to the great dis- 
 turbance of divers citizens. Held that no 
 offense was charged. It shouM have been 
 alleged that the defendants were disturbers, 
 &c., to the great damage and common nui- 
 sance of all of the citizens of the State then 
 inhabiting, being and residing, &c. Com. 
 V. Smith, 6 Cush. 80. 
 
 132. An indictment charging a party with 
 neglect to make or repair a highway, does 
 not charge a neglect to build and repair a 
 bridge. So, a count is insufficient which 
 alleges the laying out of a new road and an 
 order on the town to build their part, which 
 they neglected to do, without alleging that 
 the road was bad or needed making, or was 
 not passable, and omitting to the common 
 nuisance, &c. State v. Canterbury, 28 New 
 Hamp. 195. 
 
 133. The charter of a railroad company 
 authorized them to construct bridges across 
 tide waters and navigable rivers, provided 
 they did not prevent the navigating said 
 waters. An indictment against them al- 
 leged that they did " unlawfully and in- 
 juriously obstruct and impede without legal 
 authority the passage of said navigable 
 river by erecting a bridge across said river, 
 which bridge is so constructed as to prevent 
 the navigating said river," &c., "by means 
 whereof the passage of said river hath been 
 obstructed and impeded, and still is ob- 
 structed and imj)eded," &c., without alleg- 
 ing that the bridge prevented the navigating 
 the river. Held bad. State v. Portland, 
 &c. R. R. Co. 57 Maine, 402. 
 
 134. Duplicity. An indictment which 
 charges the maintenance of a stone building 
 overhanging a public street, and liable and 
 threatening to fall into the same, to the 
 great damage of people passing along the
 
 480 
 
 NUISANCE. 
 
 Indictment, 
 
 street, and also the permitting to remain 
 in said building large quantities of filth 
 emitting offensive stenches dangerous to 
 public health, is bad for duplicity. Chute 
 V. State, 19 Minn. 271. 
 
 135. Averment of defendant's duty and 
 liability. An indictment for permitting a 
 public bridge to become ruinous must state 
 how the defendant became liable to make 
 repairs. State v. King, 3 Ired. 411. 
 
 136. An information against the trustees 
 of a canal for a nuisance in neglecting to 
 keep a bridge in repair, was held bad in not 
 alleging that the bridge crossed the canal, 
 or that it was the defendant's duty to keep 
 it in repair, and because it did not show by 
 what right they became possessed of the 
 bridge, and how it became their duty to 
 keep it in repair. Butler v. State, 17 Ind. 
 450. 
 
 137. An indictment against a bridge com- 
 pany for a public nuisance was held suffi- 
 cient which, after setting forth the act of 
 incorporation, the building and use of the 
 bridge, alleged that the defendants were 
 bound " to keep and maintain the same in 
 such a condition as to render the same safe 
 and convenient for travelers, " &c. ; that the 
 defendants, " regardless of their duty in this 
 behalf, negligently and willfully suffered and 
 permitted said bridge to be and remain in 
 such a condition as to render it unsafe and 
 inconvenient for travelers, by neglecting to 
 keep the same properly and suitably lighted 
 in the night time, to the great damage and 
 common nuisance," &c. Com. v. Centr. 
 Bridge Corp. 13 Cush. 243. 
 
 138. An indictment against a railroad 
 company for the unlawful and willful neg- 
 lect to erect and maintain fences on the sides 
 of its road must aver that it was the duty 
 of the company to erect and maintain the 
 fences. People v. N. Y. Cent. R. R. Co. 5 
 Parker, 195. 
 
 139. In Maine, under the statute (R. S. 
 ch. 51, §15), which provides that "railroads 
 may cross highways in the line of the road,'' 
 but that "the conditions and manner of 
 crossing are to be first determined in writ- 
 ing by the county commissioners," an indict- 
 ment against a railroad company for erect- 
 
 ing and maintaining a nuisance in laying- 
 their tra<^k across a highway, which does 
 not allege that it crosses the highway in a 
 manner not determined by the county com- 
 missioners, is fatally defective. State v.. 
 Portland, &c., R. R. Co. 58 Maine, 46. 
 
 140. Under an indictment for not keeping 
 in repair a certain turnpike which defend- 
 ant and another had been authorized to con- 
 struct by act of Legislature, the court cannot 
 take judicial notice of the charter, unless it 
 is set out; and if the indictment alleges that 
 the defendant alone accepted the charter, 
 erected toll-gates, and took: toll, but does- 
 not aver that the charter authorized him to 
 accept alone, or require him to keep the 
 road in repair, it will be fatally defective on 
 demurrer. Moore v. State, 26 Ala. 88. 
 
 141. An indictment for a nuisance in 
 keeping fifty barrels of gunpowder in a cer- 
 tain building near the dwelling-house of 
 divers good citizens, and near a certain pub- 
 lic street, was held insufficient in not alleg- 
 ing that it was negligently and improvi- 
 dently kept. People v. Sands, 1 Johns. 78. 
 
 142. Guilty intent. In Massachusetts, an 
 indictment under the statute (Genl. Stats. 
 ch. 63, § 108), which alleged that the de- 
 fendant, on the fifth of March, intending to 
 obstruct an engine passing upon a railroad, 
 did, on the first of the same month, place a 
 rail across the track, without averring that 
 the act was done with a criminal intent, or 
 that the intent charged was accompanied by 
 any act, was held insufficient. Com. v. 
 Bakeman, 105 Mass. 53. 
 
 143. An indictment for a nuisance in sell- 
 ing and furnishing unwholesome water to 
 an entire community must either allege that 
 the defendant, his agents or servants im- 
 parted to the water its unwholesome quality, 
 or that he knew it was unwholesome. Stein 
 V. State, 37 Ala. 133. 
 
 144. In Massachusetts, an indictment 
 under the statute (R. S. ch. 130, § 8), for 
 keeping a house of ill-fame, resorted to for 
 the purposes of prostitution and lewdness, 
 need not allege that the defendant kept the 
 house for lucre, or that it was resorted to by 
 divers persons, men as well as women. Com.
 
 NUISANCE. 
 
 481 
 
 Indictment. 
 
 Evidence. 
 
 V. Ashley, 2 Gray, 350 ; Com. v. Wood, 97 
 Mass. 225, 
 
 145. An iudictment against a railroad 
 company for maintaining a nuisance need 
 not contain the word " unlawfully," the 
 words "injuriously and wrongfully " being 
 sufficient. State v. Vt. Cent. R. R. Co. 27 
 Vt. 103. 
 
 146. Conclusion. An indictment for a 
 nuisance concluding " to the common nui- 
 sance of the commonwealth citizens," was 
 held bad. It should have concluded to the 
 common nuisance of all the citizens of the 
 commonwealth who resided in that place, 
 or had to pass it. Com. v. Farris, 5 Rand. 
 691. See Com. v. Smith, 6 Cush. 80. 
 
 12. Evidence. 
 
 147. Place. Where a nuisance is charged 
 to be situated on a particular tract of land, 
 the prosecution must prove the location as 
 alleged. W^ertz v. State, 42 Ind. 161 ; s. c. 
 2 Green's Crim. Reps. 681. 
 
 148. An indictment charged the obstruc- 
 tion of a public landing. The proof showed 
 that the obstruction was in a road leading 
 to the landing one hundred yards from it. 
 Held that the variance was ground for a new 
 trial. State v. Graham, 15 Rich. 310. 
 
 149. Where, on the trial of an indictment 
 for obstructing a highway, a local descrip- 
 tion sufficient to identify .and fix the precise 
 point of obstruction is given as well as the 
 termini of the road, the latter may be dis- 
 regarded; and proof that a road existed at 
 the place of obstruction is alone necessary. 
 But when the allegation is general that a 
 road leading from one place to another has 
 been obstructe:!, its existence between the 
 points named must be proved as a matter of 
 essential description. Houston v. People, 
 63 111. 185. 
 
 150. A variance between the indictment 
 and the evidence as to the precise situation 
 of a dam, by means of which the defendant 
 caused a nuisance in a highway by overflow- 
 ing the same, and rendering it impassable, 
 is not material, the gist of the offense not 
 being the erection of the dam, but the 
 obstruction of the highway. The nuisance 
 being in New Hampshire, it is not important 
 
 31 
 
 that the dam is in Maine. State v. Lord, 16 
 New Hamp. 357. 
 
 151. An indictment for a nuisance in 
 maintaining a ruinous building, alleged that 
 the building was situated upon lots one and 
 two, in block three. It was proved that the 
 building was in part on lots one, two, and 
 three, in block three. Held a case of re- 
 dundancy of proof, and not a variance. 
 Chute V. State, 19 Minn. 271 ; s. c. 1 Green's 
 Crim. Reps. 571. 
 
 152. The offense of keeping a house of 
 ill-fame is local, and must be proved to have 
 been committed in a particular town, and 
 not merely within the county. State v. 
 Nixon, 18 Vt. 70. 
 
 153. In order to sustain an indictment for 
 keeping a disorderly house, it is not neces- 
 sary to prove that the whole building was 
 used for the unlawful purpose. State v. 
 Ganty, 46 New Hamp. 61. Evidence that 
 a single room was so used, is sufficient. 
 Com. V. Bulmaii, 118 Mass. 456. 
 
 154. View of premises. In Minnesota, 
 under the statute (Gen. Stats, ch. 114, § 10), 
 the propriety of allowing the jury to view 
 an alleged nuisance is in the discretion of the 
 court. Chute v. State, 19 Minn. 271 ; s. c. 1 
 Green's Crim. Reps. 571. Evidence to show 
 the condition of the premises after the find- 
 ing of the indictment, is not admissible. 
 Taylor v. People, 6 Parker, 347. 
 
 155. Owner of property. Where an in- 
 dictment charged the obstructing of the en- 
 gines of a railroad company, and the evi- 
 dence was that the true name was railroad 
 corporation, it was held that the variance 
 was fatal. Com. v. Pope, 12 Cush. 272. 
 
 156. Person committing injury. On the 
 trial of an indictment for a nuisance, it is 
 not sufficient merely to show that the de- 
 fendant is the owner of the land ; but it 
 must be proved that he either erected or 
 continued the nuisance, or in some way 
 sanctioned its erection or ccmtinuance. Peo- 
 ple v. Townsend, 3 Hill, 479. 
 
 157. In Massachusetts, on the trial of an 
 indictment under the statute (of 1849, ch. 
 49), for keeping a disorderly house, to the 
 common nuisance, &c., it need not be proved 
 that the house was used by the defendant,
 
 482 
 
 IN^UISANCE. 
 
 Evidence. 
 
 or by whom it was used, or that it was used 
 for all of the purposes alleged. Com. y. 
 Kimball, 7 Gray, 328. 
 
 158. Acts constituting offense. The 
 keeping of a disorderly house must be 
 shown as a fact, and not by evidence of 
 reputation. State v. Foley, 45 New Hamp. 
 466. It is not therefore competent to prove 
 that the house was a matter of general com- 
 plaint in the neighborhood. Com. v. Stew- 
 art, 1 Serg. & Rawle, 342. 
 
 159. On the trial of an indictment for 
 keeping a disorderly house, it is correct to 
 charge the jury that to authorize a convic- 
 tion, it must be proved that the house was 
 kept in a manner to annoy and disturb the 
 persons living near or having occasion to 
 pass by it ; that it need not be proved that 
 all of such persons were thus annoyed ; and 
 that it was competent to show that large 
 numbers of disorderly persons were seen 
 going in and out, and conducting them- 
 selves in a disorderly manner, though the 
 witnesses did not see or hear what was 
 done inside the house. Com. v. Davenport, 
 2 Allen, 299. 
 
 160. In Ohio, where a person w^as indicted 
 for keeping a disorderly tavern, the journal 
 of the court, with the entering or granting 
 a license, was held sufficient proof that the 
 defendant kept a tavern. Baldwin v. State, 
 6 Ohio, 15. 
 
 161. On the trial of an indictment for 
 keeping a disorderly house, after proof of 
 specific acts, other acts not specified, which 
 do not amount to a distinct offense, and for 
 which a distinct pi'osecution will not lie, are 
 admissible in evidence under the general 
 charge. Frederick v. Com. 4 B. Mon. 7. 
 
 162. In Connecticut, on the trial of an 
 information for the violation of the statute 
 (of 1843, ch. 20), prohibiting houses of ill- 
 fame, the prosecution must prove — 1st, that 
 the general reputation of the house was that 
 of a bawdy-house ; 2d, that it was such in 
 fact. To show the character of the house, 
 evidence is admissible to prove that it was 
 reputed to be a house of ill-fame previous 
 to the enactment of the statute. Cadwell 
 V. State, 17 Conn. 467 ; approved in State v. 
 Blakesley, 38 Conn, 523. 
 
 163. Land on Charleston Neck was dedi- 
 cated by the owners to the public, for an 
 open square. The defendants, who were 
 commissioners of roads on the Neck, in- 
 closed the square with a railing, with gates 
 at convenient distances. Being indicted for 
 a nuisance, it was held, that the prosecution 
 must prove that the defendants had violated 
 the public uses of the square, and that in 
 the absence of such proof, the verdict 
 against them must be set aside, and a new 
 trial granted. State v. Comm'rs, 3 Hill, 
 S. C. 149. 
 
 164. Proof must tend to support cliarge. 
 On a trial for erecting and maintaining a 
 powder house, and keeping therein a large 
 quantity of powder near a city, a witness 
 for the prosecution testified that he had 
 been in the infantry and artillery service of 
 the United States for three years, and a por- 
 tion of the time had charge of an ordnance 
 bureau ; and he was asked, what was the 
 ordinary mode of constructing powder mag- 
 azines. Held that the question was imma- 
 terial and incompetent. Bradley v. People, 
 56 Barb. 72, Mullin, J., dissenting. 
 
 165. An indictment under a statute in 
 respect to nuisances, prohibiting the erec- 
 tion of a building or other obstruction in 
 a highway, charged that the defendant erect- 
 ed a store in the highway, by which the 
 passage of travelers was obstructed. It was 
 proved that the defendant purchased the 
 store thirty years after it was built, and neg- 
 lected to remove it from the highway when 
 notified to do so by a committee of the 
 town. Held that the variance was fatal. 
 State V. Brown, 16 Conn. 54. 
 
 166. On the trial of an indictment for 
 maintaining a ruinous building, the court 
 admitted in evidence, against the defend- 
 ant's objection, the record of the proceed- 
 ings of the city council in which the build- 
 ing was situated, showing that at a 
 meeting holden on a certain day the de- 
 fendant was present as an alderman, and 
 that a resolution was then passed declaring 
 the building unsafe, and a public nuisance. 
 Held that although the testimony was un- 
 objectionable, if its only eflect was to show 
 
 ' notice and knowledge on the defendant's
 
 NUISANCE. 
 
 483 
 
 Evidence. 
 
 part, of the condition of the building, yet, 
 as it might have influenced the minds of the 
 jury in reference to, the main question 
 whether or not a nuisance existed, its ad- 
 mission was error. Chute v. State, 19 Minn. 
 271 ; s. c. 1 Green's Crim. Reps. 571. 
 
 167. An indictment alleged that the de- 
 fendant, " near a public street and common 
 highway, and also near the dwelling-houses 
 of divers citizens there situate, did unlaw- 
 fully erect and maintain a certain buildmg 
 for the purpose of making neatsfoot oil, and 
 did unlawfully place and maintain in said 
 building divers furnaces, stoves, caldrons, 
 five coppers, and five boilers, for the pur- 
 pose of boiling and trying putrid meat, 
 bones, heads, feet, «&c., by reason whereof 
 noisome and unwholesome smoke and va- 
 pors were emitted and issued, to the great 
 damage and common nuisance," &c. It was 
 proved that the defendant kept hogs in a 
 yard on two sides of his oil-works, and that 
 the bones after being used in the works, 
 were thrown into the hog-yard. It was also 
 shown that the emptying of the kettles, and 
 the carting away of the bones, created a 
 stench. Held, that as the nuisance arising 
 from the hog-yard and the carting away of 
 the bones, was not charged in the indict- 
 ment, the evidence was improper. Com. v. 
 Brown, 13 Mete. 365. 
 
 168. Under an indictment against a town 
 for a defect in a highway, it was held that as 
 the averment that the defect had been .con- 
 tinued "without any sufficient railing or 
 fence, and without any sufficient light hung 
 out or placed in the night time, to prevent 
 the injury and damage that might happen," 
 was not necessary, it need not be proved. 
 State v. Bangor, 30 Maine, 341, 
 
 169. An indictment for a nuisance in 
 erecting and maintaining a dam, charged 
 that, by reason of the dam, the animal and 
 vegetable substances brought down the 
 stream were collected and accumulated, and 
 became offensive. Held supported by proof 
 that the injury resulted from the alternate 
 rise and fall of water in the pond, and from 
 the action of the sun upon the vegetables 
 growing on the margin. People v. Town- 
 send, 3 Hill, 479. 
 
 170. An indictment for horse-racing on a 
 public road, is sustained by proof of racing 
 with mules. Goldsmith v. State, 1 Head, 
 154. 
 
 171. Presumptions. The record of the 
 laying out of a highway, dated thirty-nine 
 years previous, is admissible in evidence as 
 presumptive evidence that the landowners 
 received due notice that compensation was 
 awarded them, and that the road was for 
 the public use; and proof that highway 
 surveyors, in the execution of the warrants 
 committed to them, were accustomed, soon 
 after the supposed laying out of the road, to 
 work it, would tend to confirm the pre- 
 sumption. State V. Alstead, 18 New Hamp. 
 59. 
 
 172. Where the record of the laying out 
 of a highway is so ancient as to afl^ord a pre- 
 sumption that by the death of the actors it 
 cannot be amended, and what is recorded 
 leads to the belief that the statute has proba- 
 bly been complied with, although some of 
 its requisites are not stated in the record, a 
 jury will be at liberty to find from such rec- 
 ord, with proof that the way was made by 
 the town, and used many years, though less 
 than twenty, that the proceedings were 
 regular. State v. Morse, 50 New Hamp. 9. 
 
 173. On the trial of an indictment for ob- 
 structing a railroad, proof of the granting 
 to the company of its charter, and the pub- 
 lic exercise and enjoyment by it of its fran- 
 chises for many years, are prima facie evi- 
 dence of the existence of such a corporation, 
 of its possession and management of the 
 road, and of its ownership of the engines 
 and carriages. Com. v. Bakeman, 105 
 Mass. 53. 
 
 174. On the trial of an indictment for a 
 nuisance in maintaining a coal-yard, the fact 
 that the defendant had been the general 
 agent of the owner of the yard for several 
 years, and until within a few weeks of the 
 doing of the acts complained of, is proper 
 for the consideration of the jury in deter- 
 mining whether his connection with those 
 acts aided and encouraged them. Com. v. 
 Mann, 4 Gray, 213. 
 
 175. On the trial of an indictment for a 
 nuisance in maintaining a dam, it is error in
 
 484 
 
 NUISANCE. 
 
 Evidence. 
 
 the court to refuse to charge that a trial and 
 acquittal of the former owners of the dam 
 under an indictment against them therefor, is 
 a matter for the consideration of the jury ; 
 the record of the former prosecution being 
 evidence that the dam was not a nuisance at 
 that time; but not that the dam had not 
 since become a nuisance. Crippen v. Peo- 
 ple, 8 Mich. 117. 
 
 176. Proof of quarreling and collision 
 among drivers while awaiting their turns, is 
 admissible in evidence for the purpose of 
 showing the fact of obstruction. People v. 
 Cunningham, 1 Denio, 524. 
 
 177. On a trial for a nuisance in selling 
 and furnishing unwholesome water to an en- 
 tire community, the prosecution may prove 
 the deleterious effects of the water on par- 
 ticular persons, members of the community, 
 not named in the indictment. Stein v. 
 State, 37 Ala. 123. 
 
 178. On the trial of an indictment for a 
 nuisance in keeping a disorderly house for 
 cock-fighting, evidence was admitted of an 
 entry in the cash book of a gas company, 
 showing that the defendant paid for gas 
 used at the house ; the object being to prove 
 that the defendant was proprietor and 
 manager of the bouse. The entry, which 
 was made by a former book-keei)er of the 
 defendant, who was beyond the jurisdiction 
 of the court and in parts unknown, was 
 verified by proof of his handwriting. State 
 V. Mace, 6 R. I. 85. 
 
 179. On the trial of an indictment for 
 keeping a house of ill-fame, evidence of 
 the general character for chastity of females 
 frequenting the house, is admissible; and it 
 is no justification that there was no noise or 
 disturbance of the peace in the house, or an- 
 noyance to persons residing in the neighbor- 
 hood. Com. v. Gannett, 1 Allen, 7. 
 
 180. On a trial for keeping a bawdy house, 
 80 as to be a common nuisance, it is com- 
 petent to show the character of the women 
 who lived in the house, the character and 
 behavior while there of the men who fre- 
 quented the house, and also the effect of the 
 house upon the peace of the neighborhood. 
 Clementine v. State, 14 Mo. 112 ; State v. 
 McDowell, Dudley, S. C. 346. 
 
 181. Where, on the trial of an indictment 
 for keeping a bawdy-house, witnesses who- 
 frequented the house refuse to answer ques- 
 tions in relation to the conduct of the in- 
 mates and visitors, upon the ground that the 
 answer would degrade them, such refusal 
 may be the subject of consideration by the 
 jury. Clementine v. State, supra. 
 
 Ih2. Guilty intent. On the trial of an 
 indictment for obstructing a railroad, it was 
 held that the jury were properly instructed 
 that if the defendant placed a rail upon the 
 track as alleged, and if the ordinary and 
 usual consequences of so doing would be to 
 obstruct the cars running on said track, and 
 thereby endanger the safety of persons con- 
 veyed in the cars, it was competent for 
 them to infer that he did it with that intent, 
 and that it was not necessary, in order ta 
 complete the offense, that he should have 
 had any individual in his mind whom he 
 wished to injure, or any jiurpose other than 
 to destroy property and endanger or destroy 
 life. Com. v. Bakeman, 105 Mass. 53. 
 
 183. On the trial of an indictment for 
 willfully and maliciously obstructing ahorse- 
 lailroad, the actual enjoyment and use of 
 the iranchise by the company is sufficient to 
 authorize the jury to find, in the absence of 
 proof to the contrary, that the location of 
 the road was lawful ; and it need not be 
 proved that the defendant was requested 
 to remove from the track, and refused to do 
 so, if the jury are satisfied from other evi- 
 dence that his obstructiT'g the cars was will- 
 ful and malicious. Com.v.Hicks, 7 Al!en,573. 
 
 184. Where, on the trial of a complaint 
 for permitting cattle to go upon the side- 
 walks of a street, it was proved that the de- 
 fendant employed two men to assist in 
 driving the cattle, it was held competent 
 for him to show that the owner of the cattle 
 requested him to hire and pay these men^ 
 since, if that constituted all his agency in 
 the matter, he would not be liable; but that 
 the way bills on the railroad were not ad- 
 missible to show that he did not own the 
 cattle. Com. v. Leavitt, 12 Allen, 179. 
 
 185. On a trial for nuisance, the prosecu- 
 tion need not prove a criminal intent. Tay- 
 lor V. People, 6 Parker, 847.
 
 NUISANCE. 
 
 485 
 
 Evidence. 
 
 186. Admissions and declarations. Ou 
 the trial of an indictment for a nuisance on 
 the defendants' land, they admitted that the 
 title in fee was in a third person as trustee 
 for them, and that they were cestuis que 
 trust. Held not an admission that they 
 were owners of the land, or had any estate in 
 it. People V. Townsend, B Hill, 479. 
 
 187. On the trial of an indictment for 
 keeping a disorderly house, the testimony of 
 witnesses as to what was said and done by 
 disturbers of the peace in the highway, at a 
 considerable distance from the house, out of 
 the presence and knowledge of the defend- 
 ant or his family, is not admissible. Com. 
 V. Davenport, 2 Allen, 299. 
 
 188. Defense. On the trial of an indict- 
 ment for a nuisance, it is not competent for 
 the defendant to prove in justification that 
 the public benefit resulting from his acts is 
 equal to the public inconvenience. State v. 
 Kaster, 35 Iowa, 221 ; s. c. 2 Green's Grim. 
 Reps. 629. 
 
 189. But where a wharf is extended into 
 the channel of a harbor beyond the line of 
 low water mark, it is not necessarily a nui- 
 sance ; and the presumption that it is such 
 may be repelled by proof that it has increased 
 the accommodation of the public. Com. v. 
 Wright, Thach. Crim. Cas. 211. 
 
 190. It is not a defense to an indictment 
 for a nuisance, that the defendant acted as 
 the agent of another. State v. Bell, 5 Porter, 
 365. 
 
 191. On the trial of an indictment for 
 maintaining a building overhanging a pub- 
 lic street, it is not competent for the defend- 
 ant, on the question whether the building is 
 or is not a nuisance, or whether he is an- 
 swerable for maintaining it, to prove that 
 he had consulted competent builders, by 
 whom he was advised that the building was 
 not in danger of falling. Chute v. State, 
 19 Minn. 271 ; s. c. 1 Green's Crim. Rejis. 
 571. 
 
 192. On the trial of an indictment for 
 erecting a nuisance near dwelling-houses, it 
 cannot be proved in bar of the prosecution, 
 that the dwelling-houses were erected after 
 the erection of the alleged nuisance. Ellis 
 V. State, 7 Blackf 534. 
 
 193. It is not a defense to an indictment 
 for a nuisance, that it lias existed for such 
 length of time as would establish a prescrip- 
 tion against individuals. People v. Cun- 
 ningham, 1 Denio, 524 ; Com. v. Elburger, 1 
 Whart. 469. 
 
 194. The mere fact that under the internal 
 revenue act of the United States, a retailer's 
 tax had been paid, and a retailer's license 
 obtained for the defendant's wife, does not 
 tend to prove that the defendant did not keep 
 a disorderly house, or to justify him in keep- 
 ing it. State V. Foley. 45 New Hamp. 
 466. 
 
 195. Weight and sufficiency of proof. 
 On the trial of an indictment for neglect- 
 ing to rebuild and keep in repair a bridge 
 across a river, the question whether a bridge 
 at the place in question would be so connect- 
 ed with other public highways as to be 
 convenient and useful to the public, so that 
 the neglect to build or repair it would be a 
 nuisance, is one of fact for the jury. State 
 V. Northumberland, 44 New Hamp. 628. 
 
 196. On the trial of an indictment against a 
 town, for allowing a highway to be out of re- 
 pair, the following instruction was held prop- 
 er : " That the jury must be satisfied, having 
 reference to the nature and amount of the 
 public travel, that there was a substantial in- 
 convenience in the use of the road, burden- 
 some to the traveler, as compared with other 
 similar ordinary roads, and growing out of 
 causes which could be removed by the town 
 by a reasonable expenditure of money." 
 Com. V. Inhabs. of Taunton, 16 Gray, 228. 
 
 197. An indictment alleged that the de- 
 fendants' plank-road had been and still was 
 at the finding of the indictment out of re- 
 pair, to the damage and common nuisance of 
 the people of the State, so that they could 
 not pass over the same without great trou- 
 ble, annoyance and inconvenience. Held, 
 that before the jury would be warranted in 
 finding the defendants guilty, they must find 
 from the evidence, not only that the defend- 
 ants permitted their road to be out of repair 
 at the time laid, but that it continued and 
 remained out of repair down to the time of 
 finding the indictment. People v. Branch- 
 port &c. Plank R. Co. 5 Parker, 604.
 
 48G 
 
 NUISANCE. 
 
 Evidence. 
 
 Verdict. 
 
 Judgment. Abatement of Nuisance. 
 
 198. On the trial of an indictment for 
 obstructing a public road, it was proved 
 that the obstructions were caused by the 
 felling of timber to build the defendant's 
 house, that he was about the premises and 
 saw the obstructions, but did nothing toward 
 their removal, and that he had no control 
 over the workmen engaged in building his 
 house. Held, that a verdict of guilty would 
 not be disturbed. Sanders v. State, 18 Ark. 
 198. 
 
 13. Verdict. 
 
 199. In case of several defendants. 
 
 Where several are joined in an iodictment 
 for a nuisance, the jury may find one of the 
 defendants guilty, and the others not guilty. 
 Bloomhuff V. State, 8 Black f. 205. 
 
 14. Judgment. 
 
 200. In case of obstruction of highway. 
 
 The object of the prosecution by indict- 
 ment for nuisance to highways, is not for the 
 punishment of the defendant, but the repair 
 of the highway when it is out of repair, or 
 the removal of the nuisance when the high- 
 way is obstructed. The judgment in such 
 cases is, that the defendant pay a fine and 
 abate the nuisance. People v. Branchport 
 &c. Plank R. Co. 5 Parker, 604. 
 
 201. Command in, must be to defend- 
 ant. A judgment tliat " the nuisance be 
 abated forthwith, at the cost of the de- 
 fendant, and the sherifi" is charged with the 
 execution of this order," being in eficct a 
 command to the sheriff to abate the nui- 
 sance, was held erroneous ; but it was held 
 that it might be amended so as to command 
 the defendant to abate the nuisance. Camp- 
 bell V. State, 16 Ala. 144. 
 
 202. For removal of nuisance. Where 
 the indictment does not aver a continuance 
 of the nuisance, a judgment for the abate- 
 ment of the nuisance is improper; and if 
 rendered, it will be reversed on writ of 
 error, and the proceedings be remitted, with 
 directions to the court below to pass a 
 proper sentence. Munson v. People. 5 Par- 
 ker, 16. Where, therefore, the indictment 
 averred that the defendant unlawfully and 
 
 injuriously slaughtered animals at his slaugh- 
 ter house, and that annoyance and disturb- 
 ance of the public was occasioned by the 
 off"al and other refuse material which he 
 caused and permitted to be and remain near 
 the dwellings and highway, it was held that 
 the court had no power to restrain him from 
 continuing the business of slaughtering at 
 his slaughter house. Taylor v. People, 6 
 Parker, 347. 
 
 15. Abatement op nuisance. 
 
 203. By private person. At common 
 law an individual may abate a nuisance. 
 But no more injury must be done to prop- 
 erty than is absolutely necessary to accom- 
 plish the object. State v. Mofi'ett, 1 Iowa, 
 347. Where a railroad bridge across the 
 Neuse river obstructed the navigation of it 
 by the defendants' steamboat, and for that 
 reason they tore the bridge down, it was 
 held that they were justified in so doing. 
 State V. Parrott, 71 N. C. 811; s. c. 3 Green's 
 Grim. Reps. 755 ; approving State v. Dibble, 
 4 Jones, 107. 
 
 204. In Maine, county commissioners have 
 no authority to lay out roads, and construct 
 bridges over creeks or arms of the sea, where 
 canal-boats and other small craft have been 
 accustomed to be floated; and any citizen 
 having occasion to use such waters for the 
 passage of his vessel, may lawfully remove 
 the obstruction. State v. Anthoine, 40 
 Maine, 435. 
 
 205. By mortgagor. Where a mortgagor 
 removes from the mortgaged premises a 
 ruinous building, in the performance of his 
 duty to abate a public nuisance, such re- 
 moval will not make him liable under a 
 statute (of Minnesota, L. of 1869, ch. 64)^ 
 which makes it a criminal ofl'ense for a 
 mortgagor to remove any building situate 
 upon mortgaged real estate, to the prejudice 
 of the mortgagee, "with the intent to im- 
 pair or lessen the value of the mortgage," 
 without the consent of the mortgagee. 
 Chute V. State, 19 Minn. 271 ; s. c. 1 Green's 
 Crim. Reps. 571. 
 
 See Breach of the peace; Lascivious- 
 
 NESS.
 
 OBSCENE PUBLICATIONS.— OFFICER. 
 
 487 
 
 Indictment. 
 
 Authority and Duty. 
 
 ®b6ccuc Publications, 
 
 1. Indictment. An indictment for pub- 
 lishing an obscene book or picture nee<i not 
 so fully describe them as to spread them out 
 on the records of the court. Com. v. 
 Holmes, 17 Mass. 336; People v. Girardin, 1 
 Mann. 90. 
 
 2. Although an indictment for publishing 
 an obscene book need not always set out the 
 contents of the book, yet whenever it is 
 necessary to do so, or whenever the indict- 
 ment undertakes to set out the contents, the 
 alleged obscene publication must be set out 
 in the very words of which it is composed. 
 When, however, the publication is so ob- 
 scene as to render it improper that it should 
 appear on the record, the statement of the 
 contents may be omitted, and a description 
 of them substituted; but a reason for the 
 omission must appear in the indictment, by 
 proper averments. Com. v. Tarbox, 1 Cush. 
 66.. 
 
 3. In order to sustain an indictment for 
 the publication of an obscene picture, it is 
 not necessary to allege that the exhibition 
 was in a public place. It is sufficient to 
 state that it was exhibited to sundry persons 
 for money. The indictment need not de- 
 scribe minutely the picture, as to its attitude 
 and posture, or allege that the defendant's 
 house, where the picture is shown, is a nui- 
 sance. Com. V. Sharpless, 2 Serg. «fcRawle, 
 91. 
 
 See LAscrviousNEss ; Libel. 
 
 ©bstructiug tjigijiDa]), 
 
 See Nuisance. 
 
 ©fficer. 
 
 1. Authority and duty. 
 
 2. Liability. 
 
 3. Resisting officer. 
 
 4. Indictment. 
 
 5. Evidence. 
 
 1 . Authority and duty. 
 1. Magistrate when protected. Where 
 
 a magistrate, in issuing a warrant, possessed 
 and was exercising a general jurisdiction of 
 the subject-matter, and not a special juris- 
 diction over a particular ofl'ense created by 
 statute, and thereby restricted as to the 
 manner of proceeding, all that is required to 
 protect him is that the evidence was color- 
 able — something upon which the judicial 
 mind was called upon to act in determining 
 the question of probable cause. Pratt v. 
 Bogardus, 49 Barb. 89. 
 
 2. Who deemed an oflBcer de facto. An 
 officer de facto is one whose acts, though not 
 those of a lawful officer, the law, upon prin- 
 ciples of policy and justice, will hold valid, 
 so far as they involve the interests of the 
 public and third persons, where the duties 
 of the office were exercised : 1st, without a 
 known appointment or election, but under 
 such circumstances of reputation or acqui- 
 escence as were calculated to induce people, 
 without inquiry, to submit to or invoke his 
 action, supposing him to be the officer he 
 assumed to be ; 2d, under color of a known 
 and valid appointment or election, but where 
 the officer had failed to conform to some re- 
 quirement or condition, as to take an oath, 
 give a bond, or the like ; 3d, under color of 
 a known election or appointment, void be- 
 cause the officer was not eligible, or because 
 there was a want of power in the electing or 
 appointing body, or by reason of some de- 
 fect or irregularity in its exercise, such in- 
 eligibility being unknown to the public. 
 State V. Carroll, 38 Conn. 449, per Butler, 
 C. J. ; disapproving Douglass v. Wickwire, 
 19 lb. 488. 
 
 3. Acts of officer de facto, how far valid. 
 Although a chief of police de facto, at the 
 time he serves a warrant, holds another 
 office incompatible with that of policeman, 
 his official act in serving the warrant wU be 
 valid as to the public and third persons. 
 State V. Clark, 44 Vt. 636. 
 
 4. Commissioners of excise. In New 
 York, the duties devolved upon commis- 
 sioners of excise, by " the act to suppress 
 intemperance and to regulate the sale of in- 
 toxicating liquors " (Laws of 1857, ch. 628), 
 call for the exercise of discretion and judg- 
 ment, and are to some extent judicial. The
 
 488 
 
 OFFICER. 
 
 Authority and Duty. 
 
 commissioners cannot be coerced in the ex-, 
 crcise of their discretion. But for an unlaw- 
 ful and corrupt exercise of the powers vested 
 in them, they are answerable criminally. 
 People V. Jones, 54 Barb. 311. 
 
 5. Right to make arrest in default of 
 property. The statute of New Hampshire 
 (Gen. Stats, ch. 54, § 8), authorizing the col- 
 lector to arrest the body of the delinquent 
 taxpayer for want of goods and chattels, 
 does not require the officer to search for 
 projierty, or to incur labor, expense, or risk 
 in taking it ; but only to take such property 
 as shall be specifically produced, together 
 with indemnity if required. On the trial of 
 an indictment for assaulting a tax-collector, 
 and opposing and hindering him in the dis- 
 charge of the duties of his office, it was 
 l^roved that the defendant having twenty 
 head of cattle in his barnyard, pointed them 
 out to the tax-collector, who was standing in 
 the highway, and said, " There are oxen, 
 cows, steers, &c., take what you will," but 
 refused, when requested to turn them out 
 into the road for the collector. Held that 
 the tax-collector was justified in arresting 
 the defendant. State v. Roberts, 52 New 
 Hamp. 492 ; s. c. 1 Green's Grim. Reps. 157. 
 
 6. Right of justice of the peace to com- 
 mand assistance. A justice of the peace 
 has the same autliority to command assist- 
 ance in pursuing and retaking an offender 
 whom he has caused to be arrested for 
 an offense ccmmitted in his presence, and 
 who has escaped, that he has to command 
 assistance in making the original arrest. 
 Com. V. McGahey, 11 Gray, 194. 
 
 7. Duty to arrest deserters. When offi- 
 cers are ordered by their superiors to arrest 
 l^ersons specifically named as deserters, they 
 have no right to make their obedience de- 
 l^endent upon the inquiry as to whether the 
 persons to be arrested are or are not de- 
 serters. U. S. V. Gleason, 1 Wool. C. C. 128. 
 
 8. May enter house without warrant. 
 Police officers may enter the house of a per- 
 son in the night without a warrant and 
 arrest him, whenever his conduct is such as 
 to induce the belief that he intends to com- 
 mit a felony, or even a breach of the peace. 
 State V. Stouderman, 6 La. An. 286. 
 
 9. A constable has the right, by virtue of 
 his office, and without warrant, to enter any 
 house the door of which is unfastened, and 
 in which there is a noise amounting to a 
 breach of the peace, and arrest any person 
 engaged in an affray, or in committing an as- 
 sault in his presence, and hold him by suit- 
 able means for a reasonable time to prevent 
 any further assault. Com. v. Tobin, 108 
 Mass. 426. 
 
 10. Right to search house. Where an 
 officer having a warrant for the arrest of a 
 person on a criminal charge, knocks at the 
 door of a house in the night and is admitted, 
 he has a right, acting in good faith and in a 
 proper manner, to search the loremises for the 
 offender, if he reasonably and in fact sup- 
 poses him to be there ; and he is not bound 
 to exhibit his warrant to the occupier of the 
 house, if the latter has reasonable notice 
 from the officer's uniform or otherwse, that 
 he is an officer and is acting under a warrant 
 against a person supposed to be there. Com. 
 V. Irwin, 1 Allen, 587. 
 
 11. May break open door of house. A 
 sheriff or other officer, authorized to execute 
 criminal process, may lawfully break open 
 the door of the house wherein the accused 
 dwells, and enter and search the dwelling to 
 find the offender; and if hindered and ob- 
 structed in his attempt to efl^ect an entrance 
 by other persons, they will be liable to pros- 
 ecution, although at the time the accused 
 was not in the house. This right includes 
 the right to break open the inner doors. 
 The accused need not have owned the house, 
 provided he dwelt there at the time. If the 
 accused neither owns nor dwells in the house, 
 he must have been therein at the time of the 
 breaking and entering, or the officer will not 
 be justified; and in such case the owner, 
 after giving the officer leave to enter, may at 
 any time withdraw it. Hawkins v. Com. 14 
 B. Mon. 395. 
 
 12. Duty to show his precept. An offi- 
 cer when called upon by a person arrested 
 to state his authoritj", is bound to give rea- 
 sonable information ; but not under all cir- 
 cumstances to show his precept. His omis- 
 sion to exhibit or declare his authority can 
 do no more than deprive him of the protec-
 
 OFFICER. 
 
 489 
 
 Authority and Duty. 
 
 Liability. 
 
 Resisting Officer. 
 
 tion wliicli the law throws around him when 
 in the rightful discharge of his official duty. 
 A prisoner who escapes without questioning 
 the officer's authority, is not entitled to the 
 same extent to demand the authority when 
 rearrested that he had before his escape. 
 State V. Phimiey, 42 Maine, 384. 
 
 13. "When justified in taking life. At 
 common law, if a felony has been committed, 
 an officer in arresting or preventing the es- 
 cape of the offender, will be justified in tak- 
 ing the life of the offender when there is an 
 absolute necessity for his so doing. Where 
 no process has been issued, a homicide can 
 only be justified, even by an officer, by show- 
 ing the actual commission of a felony, and 
 that there was a positive necessity to take 
 life in order to arrest "or Retain the felon. 
 Conraddy v. People, 5 Parker, 234. 
 
 14. May take into his custody stolen 
 property. An officer charged with the 
 execution of a warrant for grand larceny, 
 may not only make the arrest, but also take 
 into his custody the property described in 
 his warrant if he finds it on the person or in 
 the possession of the accused. But he has 
 no power to search the house or premises for 
 concealed property, another process being 
 required for this purpose. Houghton v. 
 Bachman, 47 Barb. 388. 
 
 15. Right of magistrate to order de- 
 livery of stolen property. In New York, 
 if the evidence adduced before the magis- 
 trate satisfies him judicially that the prop- 
 erty found on the accused has in fact been 
 stolen, and that the claimant is the actual 
 owner, he has authority in his judicial ca- 
 pacity to order its delivery to such claimant. 
 3 N. Y. R. S. 5th ed. 1042. The order of 
 the magistrate in such case is not an estoppel 
 upon the question of title. It simply dis- 
 poses of the possession of property already 
 in the custody of the law, leaving the title 
 open to vindication by any party claiming 
 to have it. Houghton v. Bachman, supi'a. 
 
 16. Has custody of prisoner. An ofliccr 
 who arrests a party upon a warrant return- 
 able before a justice of the peace, is deemed 
 to have the party in custody by virtue of the 
 original warrant, until he is discharged by 
 the court, or a new wan-ant for commitment 
 
 is made and delivered to him by the justice. 
 Com. V. Morihan, 4 Alien, 585. 
 
 17. Duty to return warrant. Although 
 a writ issued by a court having jurisdiction 
 of the subject-matter, and regular on its face, 
 will protect the officer who executes it, yet 
 to have that effect, the warrant must be 
 regularly returned. Slomer v. People, 25 
 III. 70. The fact that a warrant does not 
 command the officer to make due return of 
 it, with his doings thereon, is not a valid 
 ground for the discharge of the prisoner. 
 Com. V. Boon, 2 Gray, 74. 
 
 2. Liability. 
 
 18. Neglect of duty. Whenever a duty 
 of a public natm'e is cast on a person, any 
 neglect of the duty or act done in violation 
 of it is indictable. Robinson v. State, 2 
 Cold. Tenn. 181. 
 
 19. Fraudulent conversion. It is not a 
 defense to an indictment against an officer 
 for the fraudulent conversion of moneys, 
 that he and his sureties are liable for the 
 same on his bond, and that it is not public 
 money until paid into the treasury. State 
 V. Walton, 62 Maine, 106. 
 
 20. Overdrawing account. In New Jer- 
 sey, it is a misdemeanor under the statute 
 (R. S. 135), for a director or officer of a bank 
 knowingly to overdraw his account with the 
 bank, although done without fraudulent 
 intent, and without defrauding the bank ; 
 and the indictment need not allege the 
 manner, by whose checks, in how many 
 checks, or in what funds, he overdrew his 
 account. State v. Stimson, 4 Zabr. 478. 
 
 21. Buying order. It is not a defense to 
 an indictment against a county treasurer for 
 buying an order on the county for less than 
 its par value, that the person of whom he 
 bought had no title to the order. Wilder v. 
 State, 47 Ga. 522. 
 
 3. Resisting officer. 
 
 22. What is. To constitute the offense 
 of resisting an officer, the officer or person 
 resisted must be authorized to execute the 
 process in the execution of which he is 
 resisted ; the process must be legal, and this
 
 490 
 
 OFFICEK. 
 
 Resisting Officer. 
 
 Indictment. 
 
 must be alleged and proved. A general 
 averment that it was lawful process, and 
 the person resisted a public officer, au- 
 thorized to execute the same, is a sufficient 
 allegation of the validity of the process and 
 the jurisdiction of the officer. Bowers v. 
 People, 17 111. 373. 
 
 23. To constitute the offense of resisting 
 an officer in the lawful execution of process, 
 within the statute of Wisconsin (R. S. ch. 
 167, §18), the resistance must be direct and 
 forcible. The mere frightening away or 
 removing horses from a field to prevent their 
 seizure by an officer under a writ, is not 
 sufficient. But threats against the officer 
 with the present ability and apparent in- 
 tention to execute them, might constitute 
 the offense. State v. Welch, 37 Wis. 196. 
 
 24. Hindering person deputed to serve 
 process. In Connecticut, the hindering and 
 obstructing an indifferent person regularly 
 deputed to serve a writ of attachment, while 
 such person is engaged in the performance 
 of his duty in serving such process, has been 
 held to be a violation of the statute (Rev. 
 Stat. p. 261), which provides that "Every 
 person who shall hinder, obstruct, resist or 
 abuse any justice of the peace, or resist 
 hinder, obstruct, or abuse any sheriff, deputy 
 sheriff, constable, or other officer, in the 
 execution of his office, shall be punished," 
 &c. State V. Moore. 39 Conn. 244 ; s. e. 1 
 Green's Crira. Reps. 296. 
 
 25. Resistance by tax-payer. In New 
 Hampshire, a tax-payer will not be justified 
 
 •in resisting the officer, even though the 
 assessment of the tax was irregular, or the 
 tax illegal, or the warrant defective. State 
 V. Roberts, 52 New Hamp. 492. 
 
 26. Resisting seizure of property. It is 
 not a defense to an indictment for obstruct- 
 ing an officer in the service of process of 
 attachment, that the goods attached be- 
 longed to the defendant, and not to the 
 party to the process. State v. Fifield, 18 
 New Hamp. 34 ; State v. Richardson, 38 lb. 
 208. 
 
 27. Whenever the question of property is 
 so far doubtful that the creditor and officer 
 may be supposed to act, and do in fact act 
 in good faith and on reasonable grounds for 
 
 believing the property to be that of the 
 debtor, the owner has no right to resist an 
 execution or attachment by a breach of the 
 peace. Faris v. State, 3 Ohio, N. S. 159. 
 
 28. After an officer has taken possession 
 of the right personal property under a de- 
 fective writ, a person who has been tried 
 and convicted for resisting the seizure can- 
 not reverse the conviction on the ground 
 that the writ was defective. Nolty v. State, 
 17 Wis. 668. 
 
 29. Duty of soldier to obey orders. 
 A soldier is only bound to obey the lawful 
 orders of his superiors. U. S. v. Carr, 1 
 Woods, 480. If in obeying an illegal order, 
 he commits an offense, the order will be no 
 justification. But a soldier would be bound 
 to obey any order given by his superior 
 officer which did not show its illegality on 
 its face; and such an order would be a 
 protection to him. Riggs v. State, 3 Cold. 
 Tenn. 85. 
 
 4. Indictment. 
 
 30. For misconduct in office. An indict- 
 ment charged that the defendant being 
 register of deeds, made and signed a certif- 
 icate that he had examined the title to a 
 certain lot and found no incumbrance there- 
 on, whereas, there was an incumbrance on it 
 by attachment which was entered in the 
 registry; that the defendant knew the fact 
 when he gave the certificate, and knew 
 that his certificate was false, and knowingly, 
 designedly, and unlawfully issued the same. 
 Held that the facts set forth showed "mis- 
 conduct in office " within the statute of 
 Maine (Stat, of 1857, ch. 7, §15), although 
 there was no intent to defraud, and it was 
 no part of the defendant's duty to make 
 sitch examination or issue such certificate ; 
 that the writ of attachment need not be set 
 out; and that the allegation, " all of which 
 then and there appeared by the records of 
 said registry of deeds " sufficiently averred 
 that the attachment was recorded. State v. 
 Leach, 60 Maine, 58. 
 
 31. An indictment for the willful neglect 
 of duty and misbehavior in office as a justice 
 of the peace charged that the defendant, 
 having in his possession as justice of the
 
 OFFICER. 
 
 491 
 
 Indictment. 
 
 peace $60 20, received by him in satis- 
 faction of a judgment recovered before 
 him by one A., did "willfully, corruptly, 
 and fraudulently witlihold it " from A. ; that 
 A., having called on him and made inquiry 
 of him about said judgment, he " willfully 
 and corruptly, and with intent to injure and 
 defraud the said A.," withheld from him the 
 knowledge that the judgment had been sat- 
 isfied, and neglected to pay over to him the 
 amount received in satisfaction of the judg- 
 ment, and " then and there willfully and 
 corruptly advised the said A. to sell the said 
 judgment; " and that afterward he paid of 
 the money so received to B. $51, and did 
 then and there willfully and corruptly re- 
 serve to himself the remainder of said judg- 
 ment money, amounting to $9 20, "with 
 intent to injure and defraud the said A." 
 Held that the indictment was bad for du- 
 plicity, and in not showing that any crime 
 had been committed. State v. Coon, 14 
 Minn. 456. 
 
 32. Taking iinlawful fee. An indictment 
 under a statute punishing the taking or re- 
 ceiving for an official service or duty a 
 greater fee or compensation than is author- 
 ized by law, must state the service or duty 
 for which the money was taken. State v. 
 Packard, 4 Oregon, 157. And see State v. 
 Perham, lb. 188. 
 
 33. Failure to execute warrant. Where 
 a constable is indicted for not executing a 
 warrant commanding him to arrest a person 
 charged with crime, the indictment must 
 show that the person who issued the war- 
 rant had jurisdiction, and the indictment 
 must allege that the facts recited in the 
 warrant are true. People v. Weston, 4 Par- 
 ker, 226. 
 
 34. Making false return. An indictment 
 against an officer for making a false return 
 to process must state wherein the return was 
 false, and the facts in relation to the trans- 
 action whereof the return was made. Tib- 
 bals V. State, 5 Wis. 596. 
 
 35. Falsely personating officer. In 
 Massachusetts, an indictment for falsely 
 personating a sheriff, in violation of the 
 statute (R. S. ch. 128, § 19), must allege that 
 the defendant falsely assumed or pretended 
 
 to be a sheriff of the commonwealth, and 
 took upon himself to act as such. Com. v. 
 Wolcott, 10 Cush. 61. 
 
 36. Resisting officer. In charging a per- 
 son with knowingly and willfully resisting an 
 officer in the execution of a legal writ, it is 
 not necessary to aver that the officer at the 
 time informed the defendant that he acted 
 under a warrant. The indictment need not 
 set forth the acts of the officer, or show that 
 in making the arrest he complied with the 
 statute. The officer will be presumed to 
 have discharged his duty ; and the fact that 
 he did not do so is proper matter of defense. 
 State V. Freeman, 8 Iowa, 428. 
 
 37. Whether an indictment for resisting^ 
 an officer ought to specify the process 
 under which he acted, state the manner 
 of executing it, and of the resistance, 
 and allege that the defendant knew he was 
 an officer — qxierij. Faris v. State, 3 Ohio, N. 
 S. 159. An indictment for resisting process 
 which shows that the time of the commission 
 of the offense was after the return day is bad 
 on error. McGehee v. State, 26 Ala. 154. 
 
 38. In New Hampshire, an indictment 
 under the statute (Gen. Stats, ch. 259, § 6), 
 for willfully obstructing or assaulting an 
 officer or other person in the service ©f 
 criminal process, need not state that the 
 officer was duly appointed or qualified to 
 serve the process, or that it was " a lawful 
 process," or that the complaint on which 
 the process was issued was signed or ad- 
 dressed to any magistrate, or that the 
 process was under the seal of the justice by 
 whom it was issued. State v. Cassady, 52 
 New Hamp. 500. 
 
 39. An indictment under a statute pun- 
 ishing a person who should willfully ob- 
 struct or assault any officer or person duly 
 authorized, in the discharge of any duty of 
 his office, was held sufficient which charged 
 that " the defendant, with force and arms, 
 upon one H.,then and there being a col- 
 lector of taxes for said town of J., and in 
 the due discharge of the duties of his said 
 office, to wit, in the service of a certain 
 warrant for the collection of taxes, thereto- 
 fore issued and directed to said H. by the 
 selectmen of said J., then and there made
 
 492 
 
 OFFICER. 
 
 Indictment. 
 
 Evidence. 
 
 an assault, and him, the said H., so being 
 in the discharge of the duties of his said 
 office, then and there did willfully obstruct, 
 oppose, and hinder, and then and there did 
 beat," &c., -without alleging that H, was 
 "duly authorized," and in the discharge of 
 his duty. State v. Roberts, 52 New Hamp. 
 493; s. c. 1 Green's Crim. Reps. 157. 
 
 40. An information for hindering and ob- 
 structing G., an ofHcer, in the execution of 
 process, alleged that " G. was lawfully de- 
 puted according to the statute in such cases 
 provided, as an indifferent person, by A. B., 
 a justice of the peace, and as such indifferent 
 person, had in his hands a writ of attach- 
 ment issued by said justice, which was law- 
 fully issued and perfected in all respects 
 according to law, and which was directed 
 to the said G., as an indifferent person, 
 commanding him," &c., without alleging 
 that G. was an cificer, or that the plaintiff 
 in the writ, or his agent, took the oath re- 
 quired by law, or that a bond for prosecution 
 was given. Held that the information was 
 sufficient after verdict. State v. Moore, 39 
 Conn. 244 ; s. c. 1 Green's Crim. Reps. 296. 
 
 41. Where an indictment charged the 
 defendant with having willfully obstructed 
 J. P., a deputy sheriff, in the service of a 
 writ, which was set out and averred to be 
 lawful process in a civil case, it was held 
 sufficient without alleging that the writ was 
 ever in the hands of the officer, or that it 
 was returned. State v. Fifield, 18 New 
 Hamp. 34. 
 
 42. It is essential to an indictment for 
 obstructing an officer in the service of legal 
 process, that it show that such process was 
 legal ; and it is not enough to allege that 
 the officer was " in the due and lawful exe- 
 cution of his office." If the process was a 
 writ of replevin, the indictment should allege 
 that a bond w^as given. State v. Beasom, 40 
 New Hamp. 367. 
 
 43. An indictment for obstructing and 
 resisting an officer in the service of an exe- 
 cution, which is set out, need not allege that 
 a judgment was rendered upon which the 
 execution issued. State v. Dickerson, 24 
 Mo. 365. 
 
 44. For rescue. An indictment for a res- 
 
 cue, must state the nature and cause of the 
 imprisonment of the person alleged to have 
 been rescued, and whether the party from 
 whom the rescue was made was a public 
 officer or private person. If the latter, the 
 defendant would not be liable unless he 
 knew that the prisoner was under arrest. 
 State V. Hilton, 26 Mo. 199. 
 
 45. An indictment for attempting forcibly 
 to rescue a prisoner held in the lawful cus- 
 tody of an officer, need not allege the pro- 
 cess by which he was held or the circum- 
 stances of the holding. Com. v. Lee, 107 
 Mass. 207. 
 
 46. An indictment for rescue must aver 
 that an order for bail was made previous to 
 issuing the capias ad respondendum upon 
 which the party rescued was arrested. State 
 V. Dunn, 1 Dutch. 214. 
 
 47. Removal. Fonn of information and 
 decree for the removal of a public officer. 
 Com. V. Cooley, 1 Allen, 35S. 
 
 y 
 
 5. Evidence. 
 
 48. Proof of authority. Where it is 
 shown that a person has acted notoriously 
 as a public offcer, it is prima facie evidence 
 of his official character, without proving his 
 commission or appointment. State v. Roberts, 
 52 New Hamp. 492 ; s. c. 1 Green's Crim. 
 Reps. 157. 
 
 49. Proof that a person is an acting offi- 
 cer, is evidence of his authority, notwith- 
 standing in the given case, the power of ap- 
 pointing officers depends upon the adoption 
 by the town, of the police law, which fact is 
 not shown. State v. Butman, 42 New 
 Hamp. 490. 
 
 50. The legal presumption that officers are 
 authorized to act, and that papers bearing 
 their official signature are genuine, applies 
 to a warrant in the hands of an officer, and 
 purporting to be signed by the tax-collector 
 and treasurer of a town. Com. v. Gearing, 
 1 Allen, 595. 
 
 51. Intent to defraud. On the trial of an 
 indictment against a register of deeds for 
 " official misconduct " in making and sign- 
 ing a certificate that he had examined the 
 title to a certain lot, and found no incum- 
 brance thereon, whereas there was an in-
 
 OFFICER.— OUTLAWKY.— PARDON. 
 
 495 
 
 Evidence. 
 
 Prosecution to. Power of Executive to Grant. 
 
 cumbrance oa it, which was entered in the 
 registry, the history of the certificate and of 
 the uses made of it by the holder in obtain- 
 ing a loan, are admissible to show an intent 
 to defraud ; also proof that a lien by at- 
 tachment was perfected by levy ; and like- 
 wise the record of the attachment notwith- 
 standing there is a variance between that 
 and the writ in the middle initial letter of 
 the attaching creditor. State v. Leach, 60 
 Maine, 58. 
 
 52. Original process. In Connecticut, on 
 the trial of an information for obstructing 
 and hindering an officer in the execution of 
 process, it was held that the original process 
 was admissible in evidence although it had 
 not been returned to court ; the offense be- 
 ing complete upon the obstruction of the 
 process, and it not being a question of the 
 justification of the officer. State v. Moore;, 
 39 Conn. 244; s. c. 1 Green's Crim. Reps. 
 296. 
 
 53. Officer need not be witness. When 
 an officer is charged with misconduct which 
 may be a ground for his removal or im- 
 peachment, though not an indictable offense, 
 he is not bound to be a witness against him- 
 self. U. S. V. Collins, 1 Woods, 499. 
 
 See Arrest ; Embezzlement. 
 
 ©utlaujrij. 
 
 1. Prosecution to. In Virginia, where 
 the defendant was indicteil for a trespass, it 
 was held that he might be prosecuted to 
 outlawry. Com. v. Hale, 2 Va. Cas. 241. 
 
 2. Process of. In Pennsylvania, in pro- 
 cess of outlawry, the township of which the 
 defendant was inhabitant must be alleged. 
 But if he is proved to hav'e been there, it is 
 sufficient, though not his place of residence. 
 Resp. V. Steele, 2 Ball. 93. 
 
 |3arbou. 
 
 1. Power of executive to grant. Where 
 the punishment is in the discretion of the 
 presiding judge, the pardoning power should 
 only be exercised in extreme cases. Whether 
 
 the governor has power to [)ardon a portion 
 of the supposed punishment (when it is dis- 
 cretionary) before it is determined by judg- 
 ment— ^i^ery. State V. Mclntire, 1 Jones, 1. 
 
 2. In Massachusetts, under the State Con- 
 stitution (ch. 2, art. 8, § 1), thegovenior has 
 power, by and with the advice of the coun- 
 cil to pardon a prisoner after verdict, and 
 while exceptions allowed by the judge who 
 presided at the trial are pending in the Su- 
 preme Court for argument ; and the pris- 
 oner, upon waiving his exceptions, and 
 pleading the pardon, is entitled to his dis- 
 charge. Com. V. Lockwood, 109 Mass. 323; 
 8. c. 1 Green's Crim. Reps. 168. 
 
 3. Remission of part of fine. The gov- 
 ernor, under the power of pardoning, may 
 remit part of a fine. State v. Twitty, 4 
 Hawks, 193. And see Rowe v. State, 2 
 Bay, 565. In South Carolina, it was held 
 that the 4th section of the act of 1827, which 
 provided that fines or forfeitures incurred or 
 imposed in any Court of Sessions, should be 
 paid to the commissioners of public build- 
 ings for public purposes, did not take from 
 the governor the power to remit so much of 
 any fine or forfeiture as was not by law given 
 to the informer or other private persons for 
 private purposes. State v. Simpson, 1 
 Bail. 378. 
 
 4. The power of pardon confided to the 
 President after a judgment ordering a por- 
 tion of a fine to be paid to a private citizen, 
 is limited to a remission of the share of the 
 government only, and is inoperative to di- 
 vest an interest vested by sucli judgment in 
 the citizen, U. S. v. Harris, 1 Abb. 110. 
 
 5. May be conditional. The power of 
 the executive under the Constitution, to 
 grant pardons, includes the power of grant- 
 ing a conditional pardon. Such condition 
 may extend to banishment from the United 
 States ; and where there is a breach of the 
 condition, the pardon becomes void, and 
 the criminal may be remanded l)y the court 
 in which he was convicted, or other court 
 having criminal jurisdiction. People v. 
 Potter, 1 Parker, 47. 
 
 6. A pardon may be upon the condition 
 that the offender leave the State and never 
 return ; and upon a violation of the condi-
 
 494 
 
 PARDON. 
 
 May be Conditional. 
 
 General Effect. 
 
 tion, the original sentence may be enforced. 
 State V. Smith, 1 Bail. 123; State v. Fuller, 
 1 McGord, 178. 
 
 7. In Arkansas, where a person having 
 been pardoned by the governor on condition 
 that he should leave the State, complied 
 with the condition, but afterward returned 
 to the State, it was held that he was not 
 liable to be retaken and imprisoned under 
 the former conviction. Ex parte Hunt, 5 
 Eng. 284. 
 
 8. It is a reasonable condition that the 
 defendant shall leave the county forthwith ; 
 by which the defendant would be required 
 to depart and remain absent during at least 
 the term of sentence. Com. v. Haggerty, 4 
 Brewster, Pa. 326 ; s. c. 1 Green's Crim. 
 Eeps. 180. 
 
 9. Where it appeared from the pardon 
 that the governor supposing that the de- 
 fendant had been fined as well as imprisoned, 
 made his discharge conditional upon the 
 payment of the fine, it was held that the 
 pardon was void. State v. Mclntire, 1 
 Jones, 1. 
 
 10. In Virginia, where a pardon was con- 
 ditional, it was held that the governor having 
 no power to pardon upon condition, the 
 pardon was absolute. Com. v. Fowler, 4 
 Call, 35. 
 
 11. By repeal of statute. Where a penal 
 statute is repealed, it operates as a pardon 
 of all offenses committed before such repeal. 
 Roberts v. State, 2 Overt. 423. 
 
 12. Implied promise of. Where an ac- 
 complice testifies in the United States Circuit 
 Court in behalf of the prosecution, there is 
 an implied promise by the government that 
 he shall not be prosecuted if he makes a 
 full and honest disclosure. U. S. v. Lee, 4 
 McLean, 103. 
 
 13. In New York, an accomplice testifying 
 and making a full disclosure is entitled to a 
 recommendation for pardon. People v. 
 Whipple, 9 Cow. 707. It was held other- 
 wise in "Virginia. Byrd v. Com. 3 Va. Cas. 
 493 ; Dabney's Case, 1 Rob. 696. 
 
 14. An accomplice in murder who testifies 
 on behalf of the State, is not before convic- 
 tion entitled to avail himself of the rights 
 
 and privileges of one claiming executive 
 clemency. Ex ^arf^ Birch, 3 Gilman, 134. 
 
 15. How proved. A pardon may be 
 proved by production of the charter of 
 pardon under the great seal of the State. 
 Roberts v. State, 2 Overt. 423; State v. 
 Blaisdell, 33 New Hamp. 388. 
 
 16. How taken advantage of. A^ pris- 
 oner can only avail himself of a pardon by 
 bringing it judicially before the court. U. 
 S. V. Wilson, 7 Peters, 150. 
 
 17. Averment. Where an information 
 alleges that the prisoner was discharged in 
 consequence of a pardon, it is equivalent to 
 an averment that he was discharged " in 
 due course of law." Evans v. Com. 3 Mete. 
 453. 
 
 18. General effect. Pardons are to be 
 construed favorably to the convict. They 
 take eflfect from the delivery, and not only 
 relieve fiom punishment, but remove the 
 guilt of the offense. Ex parte Hunt, 5 Eng. 
 284. A pardon removes disabilities, whether 
 granted before or after the term of punish- 
 ment has expired. State v, Baptiste, 26 La. 
 An. 134. 
 
 19. When a person sentenced to the State 
 prison for life, is pardoned, he is restored to 
 his rights and duties as a parent, and be- 
 comes entitled to the custody of his infant 
 children, who had been placed under the 
 care of a guardian, but it does not annul 
 the second marriage of his wife, nor the sale 
 of his property by persons appointed to 
 administer on his estate, nor deprive his 
 heirs of the interest acquired in his estate, 
 by reason of his civil death. Matter of 
 Deraing, 10 Johns. 232. 
 
 20. A pardon restores all the rights of 
 property of the grantee for acts done or per- 
 mitted in aid of the late rebellion ; and he 
 may plead such pardon in proceedings for 
 the confiscation of his property. Brown 
 agst. U. S. McCahon's Kansas, 229. 
 
 21. Does not restore capacity of magis- 
 trate. Where a justice of the peace having 
 been convicted of felony, thereby forfeited 
 his oflace, it was held that a pardon did not 
 do away with the forfeiture, or restore his 
 capacity. Fugate's Case, 2 Leigh, 724. 
 
 22. Does not affect offense not men-
 
 P AKDON.— PE DDLERS. 
 
 495 
 
 Restoration of Competency to Testify. Effect on Costs. 
 
 Meaning of. 
 
 tioned. A pardon for a specified offense 
 does not operate as a pardon for a previous 
 felony not mentioned in such pardon. State 
 V. McCarty, 1 Bay, 334. 
 
 23. It is not a defense to an indictment 
 for horse stealing, that the crime was com- 
 mitted previous to the conviction of the 
 defendant for negro stealing, for which he 
 was pardoned. Hawkins v. State, 1 Porter, 
 475. 
 
 24. Restoration of competency to testify. 
 The effect of a pardon, although granted 
 after the convict has suffered the entire 
 punishment awarded against him, is to re- 
 move the common-law disability of incom- 
 petency as a witness. State v. Blaisdell, 33 
 New Hamp. 388. 
 
 25. A clause in a pardon that nothing 
 contained therein is intended to relieve the 
 prisoner from the legal disabilities arising 
 from his conviction and sentence, but solely 
 from imprisonment, is repugnant, and may 
 be treated as surplusage. People v. Pease, 3 
 Johns. Cas. 333. 
 
 23. A pardon restores the competency of 
 a felon as a witness, notwithstanding it is 
 not affirmatively shown that the pardon re- 
 stored him to the rights of citizenship. Yar- 
 borough V. State, 41 Ala. 405. 
 
 27. The following was held not to be a 
 pardon entitling the convict to testify as a 
 witness, for the reason that it sought to re- 
 store the prisoner to all the rights of citizen- 
 ship possessed by him before his conviction, 
 while he yet remained a convicted felon: 
 " Whereas Charles Davis, alias Charles 
 Moore, has been convicted of criminal of- 
 fenses against the laws of the State of Cali- 
 fornia, and whereas it is desirable for the 
 attainment of the ends of justice that he 
 should be restored to citizenship ; therefore 
 I, H. H. Haight, governor of said State, do 
 hereby restore said Davis to all the rights 
 of citizenship possessed by him before his 
 conviction for the offenses above referred 
 to." People V. Bowen, 43 Cal. 433 ; s. c. 1 
 Green's Crim. Reps. 185. 
 
 28. Although a pardon restores the per- 
 son's competency as a witness, yet a remis- 
 sion merely of his punishment does not have 
 that effect. Perkins v. Stevens, 34 Pick. 277. 
 
 29. Person convicted of perjury not 
 competent witness. In New York, a per- 
 son who has been convicted of perjury can- 
 not be a witness, until the judgment is re- 
 versed, though he has been pardoned by the 
 governor, and the pardon purports to restore 
 him to all his civil rights. Houghtaling v. 
 Kelderhouse, 1 Parker, 241. 
 
 30. Does not remit interest in penalty. 
 A pardon by the president of the United 
 States as to all the interest of the govern- 
 ment in the penalty incurred by a violation 
 of the embargo laws, and directing further 
 proceedings to be suspended, does not remit 
 the interest of the custom house officers in a 
 moiety. U. S. v. Lancaster, 4 Wash. C. C. 
 64. 
 
 31. Effect on costs. A general pardon 
 discharging a convict from a fine and judg- 
 ment of imprisonment does not operate as a 
 remission of the judgment for costs against 
 him. Estep v. Lacy, 35 Iowa, 419; s. c. 3 
 Green's Crim. Reps. 634. 
 
 32. In Illinois, where a person sentenced 
 to imprisonment, and to pay a fine of one 
 hundred dollars, was pardoned for the crime, 
 and an execution issued against him for the 
 amount of the fine and costs, it was held 
 that the pardon discharged him from the 
 fine, but not from the costs. Halliday v. 
 People, 5 Gilman, 214. And in Pennsyl- 
 vania, it has been held that the pardoning 
 power does not include the costs to which 
 the prisoner may have been sentenced upon 
 conviction. Ex parte McDonald, 2 Whart. 
 440. It is the same in Indiana. State v. 
 Farley, 8 Blackf. 239. 
 
 33. But in Pennsylvania, the pardon of a 
 person convicted of bastardy, when pleaded 
 before sentence, exempts the defendant from 
 the costs of the proceedings, as well as from 
 the obligation to support the bastard child. 
 Com. V. Ahl, 43 Penn. St. 53. 
 
 Ipcace, iSrcacI) of. 
 
 See Affray ; Breach of the peace ; Riot. 
 
 |3cbMcr0. 
 
 1. Meaning of. A hawker and peddler is
 
 490 
 
 PEDDLERS.— PERJURY. 
 
 Meaning of. 
 
 Perjury. 
 
 When and How Committed. 
 
 one who travels from town to town, or from 
 house to house, carrying to sell, or exposing 
 for sale, goods, wares, and merchandise. A 
 single shipment of goods, regularly con- 
 signed to merchants, by the defendant, and 
 sold for his benefit, is not hawking and 
 peddling. State v. Belcher, 1 McMuUan, 40. 
 
 2. It is a violation of the hawker and 
 peddler act of Massachusetts (Stat, of 1846, 
 ch. 244) for a person to sell merchandise 
 from house to house by request of buyers, 
 notwithstanding he was traveling in pursuit 
 of a lawful occupation, and did not previ- 
 ously intend to sell such goods. But it is 
 not a violation of such act for a carrier to 
 deliver goods to persons who had previously 
 ordered them, but who, when the goods 
 were brought, desired to enlarge their order 
 upon the same terms. Com. v. Ober, 12 
 Cush. 493. 
 
 3. Constitutionality of statute. A law 
 prohibiting sales by hawkers and peddlers 
 without license is valid, it being an exercise 
 of the police power of the State. Morrill v. 
 State, 38 Wis. 428. 
 
 4. Indictment. An indictment against a 
 peddler must allege that the person charged 
 with peddling had no license. May v. State, 
 9 Ala. 167. 
 
 5. An indictment for vending clocks with- 
 out license need not allege to whom the 
 clocks were sold, or the price that was given. 
 Page v. State, 6 Mo. 205. 
 
 6. In Indiana, an indictment under the 
 statute (R. S. of 1838, p. 216), for selling 
 clocks without a license, must show that the 
 defendant made vending clocks his busi- 
 ness, Alcott V. State, 8 Blackf. 6. 
 
 7. In Maine, an indictment under the stat- 
 ute (R. S. ch. 27, ? 20), making it unlawful 
 for peddlers and dealers to carry for sale, or 
 offer for sale, or offer to obtain, or to obtain, 
 orders for the sale or delivery of any spirit- 
 uous liquors, which charges a violation of all 
 of the acts prohibited, is bad for duplicity. 
 State v. Smith, 31 Maine, 386; s. c. 2 
 Green's Crim. Eeps. 462. 
 
 8. Burden of proof On the trial of an 
 indictment for peddling goods not of the 
 production or manufi^cture of this country, 
 the burden of proof is on the prosecution 
 
 to show that the goods are foreign. Com. 
 v. Samuel, 2 Pick. 103. 
 
 Iperjuri) aub Subornation 
 of pcrjurij. 
 
 1. Perjury. 
 
 («) When and how committed. 
 ill) Indictment. 
 
 (c) Evidence. 
 
 (d) Verdict. 
 
 2. SURORNATION OF PERJURY. 
 
 (a) Bequisites. 
 
 (b) Indictment. 
 ((•) Ecidence. 
 
 1. Perjury, 
 («) When and how committed. 
 
 1. Meaning of. Perjury is the willful 
 taking of a false oath by a person who 
 being required to testify in a judicial pro- 
 ceeding, swears absolutely in a matter ma- 
 terial to the issue. If the testimony though 
 false, be immaterial, it is not perjury ; and 
 it lies on the pi-osecution to show that it is 
 material. Com. v. Pollard, 12 Mete. 225; 
 State V. Simons, 30 Vt. 620. A person can- 
 not be convicted of perjury because the jury 
 believe that he had no reasonable ground 
 for the opinion he expressed. Com. v. 
 Brady, 5 Gray, 78. 
 
 2. In Tennessee, an early statute defined 
 perjury as follows: "When a lawful oath or 
 affirmation is administered in some judicial 
 proceeding, to a person who swears or af- 
 fii-ms willfully, absolutely, and falsely, in 
 a matter material to the issue, or point in 
 question." State v. Wall, 9 Yerg. 347. 
 
 3. Perjury consists in s^^-earing falsely and 
 corruptly contrary to the belief of the wit- 
 ness, and not in swearing rashly and incon- 
 siderately according to his belief. U. S. v. 
 Shelburne, 1 Bald. 350; Com. v. Pollard, 
 supra. 
 
 4. May be under general oath. Where 
 a person swears falsely uuder a general oath, 
 when he might have taken a more restricted 
 oath, he will be guilty of perjury. State v. 
 Keene, 26 Maine, 83.
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 497 
 
 Perjury. 
 
 When and How Committed. 
 
 5. Swearing to fact without any knowl- 
 edge of it. A person may commit perjury 
 notwithstandicg lie believes what he swears, 
 if he have no probable cause for his belief. 
 State V. Knox, Phil. N. C. 313. 
 
 6. Perjury may be committed not only by 
 swearing to material facts known not to be 
 true, but in swearing to them without any 
 knowledge on the subject. State v. Gates, 
 17 New Hamp. 373. 
 
 7. The following charge on a trial for 
 perjury, was held correct: That if the fact 
 sworn to by the prisoner was material, 
 although it was true, yet if the jury believed 
 from the evidence that the jirisoner at the 
 time of such testimony did not know it to 
 be true, or have such knowledge or informa- 
 tion concerning it as fairly justified him in 
 believing it true, he could properly be 
 convicted. People v. McKinney, 3 Parkei', 
 510. 
 
 8. "Where it appeared that the prisoner 
 had testified that he was present at the mak- 
 ing of a contract between certain parties, 
 and it wal proved that although the con- 
 tract was made at such time and j)lace, yet 
 that the prisoner was not present and had no 
 knowledge of it, it was held that such evi- 
 dence was circumstantially material, and 
 that the prisoner was guilty of perjury. lb. 
 
 9. Swearing contrary to belief. Peijury 
 may be committed by falsely swearing to an 
 account that it is just to the witness's belief. 
 Patrick v. Smoke, 3 Strobh. 147. 
 
 10. The cashier of a bank who swears 
 that the return made by him "is, according 
 to his best knowledge and belief, true," 
 knowing at the time that it is false, is 
 guilty of perjury. Com. v. Dunham, Thach. 
 Crim. Cas. 519. 
 
 11. A witness who swears that a thing is 
 so, or that he believes it to be so, when in 
 truth he does not believe it to be so, takes a 
 false oath, thougli the fact be really as 
 stated. State v. Cruikshank, 6 Blackf. 62. 
 
 12. What material. Where several are 
 jointly indicted for an assault, evidence as 
 to the acts of either is material, and if 
 fully and falsely given, it is perjury. State 
 V. Norris, 9 New Hamp. 96. 
 
 13. Land was conveyed by A. to B., which 
 
 33 
 
 had previously been mortgaged to C. .Judg- 
 ment of foreclosure having been recovered 
 by C, a petition for review was filed by B., 
 setting forth the discovery of new evidence, 
 and claiming a technical payment of the 
 debt secured by the mortgage. A. swore at 
 the hearing of the petition, that he informed 
 B. when the conveyance was made, of the 
 existence of the mortgage. A. being in- 
 dicted for perjury, a motion made before 
 plea, to quash the indictment, on the ground 
 of the immateriality of such evidence to 
 the main issue at the hearing, was denied. 
 Com. V. Farley, Th.ich. Crim. Cas. 654. 
 
 14. Where one summoned as a trustee dis- 
 charged himself by disclosing that he had 
 appropriated the funds of the principal de- 
 fendant in his hands to the payment of 
 money due him by such defendant, without 
 disclosing that the debt was due him on a 
 usurious contract, and being indicted for 
 perjury in such statement, and the principal 
 defendant being examined as a witness in 
 support of the charge, he denied the exiiit- 
 ence of any contract between him and the 
 trustee for the payment by him to the latter, 
 of any more than lawful interest. — Held that 
 if his testimony was false, he was liable for 
 perjury. Com. v. Farley, supra. 
 
 15. A., who was summoned as a trustee of 
 B., stated in his answer, that from the pro- 
 ceeds of property^ placed in his hands by B. 
 as security for the indebtedness of C, he had 
 received a sum of money, which pursuant to 
 an agreement between him and C, he had 
 appropriated in part discharge of the indebt- 
 edness of C, and that he had appropriated, 
 paid over, and accounted to C. for the money 
 so received. After A. was discharged as 
 trustee, C. entered a complaint against him 
 before the grand jury for perjury, and swore 
 that there never was any agreement between 
 him and A. for the payment by him to the 
 latter of more than lawful interest on any of 
 the transactions between them — Held that 
 the evidence of C. was material, and if false, 
 he was guilty of perjury. Com. v. Parker, 3 
 Cush. 313. 
 
 16. False statement need not tend di- 
 rectly to prove the issue. To constitute 
 perjury, the fact sworn to need not be im-
 
 498 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury, 
 
 When and How Committed. 
 
 mediately material to the issue, provided it 
 has such a direct connection with a material 
 fact as to give weight to the testimony on 
 that point ; and it has been held tliat a false 
 answer to a question put to the witness for 
 the purpose of impairing his credit as to 
 points material to the issue, is perjury, es- 
 pecially if the witness be cautioned as to his 
 answer. State v. Norris, 9 New Hamp. 96 ; 
 State V. Hattaway, 2 Nott & McCord, 118; 
 Wood V. People, 59 N. Y. 117; Com. v. 
 Grant, 116 Mass. 17; State v. Strat, 1 Mur- 
 phey, 124. 
 
 17. Perjury may be committed in swearing 
 falsely to a collateral matter with intent to 
 &ustain the testimony on some other point ; 
 but such collateral matter must be material 
 to the issue. Studdard v. Linville, 3 Hawks, 
 474; State v. Wall, 9 Yerg. 347; State v. 
 Shupe, 16 Iowa, 86. 
 
 18. The swearing falsely by the prosecutor 
 upon matters immaterial to the issue, who is 
 examined on the trial of an indictment for 
 assault and battery, with the view of miti- 
 gating the sentence, is perjury. State v. 
 Keenau, 8 Rich. 456. So, if on a trial for 
 assault and battery, a witness falsely swears 
 to matters in aggravation, he is guilty of per- 
 jury. Stevens v. State, 1 Swan, 157. 
 
 19. "Where the false testimony is in- 
 admissible. Although testimony be incom- 
 petent and inadmissible in the action in 
 which it is given, yet if it is false, perjury 
 may be predicated upon it. Chamberlain v. 
 People, 23 N. Y. 85. 
 
 20. Where the witness is improperly 
 sworn. Perjury may be committed by a 
 person who is erroneously sworn. State v. 
 Molicr, 1 Dev. 263 ; Montgomery v. State, 
 10 Ohio, 220; Van Steenburgh v. Kortz, 10 
 Johns. 167. 
 
 21. Failure from defect of proof. If a 
 person swear falsely in respect to any fact 
 relative to the issue being tried, he is guilty 
 of perjury, although the case failed from de- 
 fect of proof of another fact, and although 
 such other fact had no existence. AVood v. 
 People, 59 N. Y. 117. 
 
 22. Immaterial statements. A witness 
 having sworn that he was present at a cer- 
 tain transaction, was asked where he lived 
 
 at the time, and he answered, near the pai'- 
 ties ; and it was proved that he did not then 
 live in the State, it was held that it was not 
 swearing to such a material fact as consti- 
 tuted perjury. State v. Hattaway, 2 Nott 
 & McCord, 118. 
 
 23. An applicant for naturalization is not 
 guilty of perjury in swearing falsely to his 
 residence in the State previous to his appli- 
 cation ; the oath of the applicant on this 
 point being voluntary and immaterial under 
 the act of Congress of 1802. State v. Helle, 
 2 Hill, S. C. 290. 
 
 24. If any other statements than those re- 
 quired by law be introduced in a petition 
 for a habeas corpus^ perjury cannot be predi- 
 cated upon them. A false oath that the ac- 
 cused " is the father and proper custodian 
 of Catharine, or Kate, a colored girl," on an 
 application for a writ of habeas corpus, to 
 bring up said Catharine, is not enough to 
 sustain a conviction for perjury. Gibson v. 
 State, 44 Ala. 17. 
 
 25. Mode of statement not important. 
 It is not a valid objection to an indictment 
 for perjury which alleges that the defend- 
 ant knowingly and falsely made statements 
 under oath which were material, that either 
 before or after the oath was administered 
 the statements made were reduced to writ- 
 ing by another person and signed by the 
 defendant; the offense consisting in the false 
 statement of material facts under oath, know- 
 ing them to be false, without reference to 
 the mode of statement, whether oral or writ- 
 ten. Com. V. Hatfield, 107 Mass. 227. 
 
 26. Need not have caused injury. It is 
 the act of false swearing in respect to a mat- 
 ter material to the point of inquiry which 
 constitutes perjury, and not the injury it 
 may have done individuals, or the degree of 
 credit which was given to the testimony. 
 Where it was charged that the accused 
 falsely testified as to his qualifications to go 
 bail in the sum of $3,000, that he was worth 
 $40,000 and owned 400 tons of hay, which 
 was in a certain village and worth $8 per 
 ton, it was held that the material point of 
 inquiry was not whether the defendant was 
 worth the definite sum of $40,000, but 
 whether he was able to respond to the sum
 
 PEKJUEY AND SUBOKNATION OF PERJURY 
 
 499 
 
 Perjury. 
 
 When and How Committed. 
 
 of $3,000, nor if defendant owned the hay, 
 ■whether it was situated in the village named, 
 or was worth precisely $8 a ton. Pollard v. 
 People, 69 111. 148. 
 
 27. Where on the trial of an indictment 
 for perjury it appeared that the defendant 
 having offered himself as bail, falsely swore to 
 his ownershij) of jjroperty, it was held that, 
 if he did not own all the items of property 
 enumerated, it was false and material as a 
 representation of his responsibility, even 
 though a part of the property was sufficient 
 to cover the amount of the recognizance. 
 Com. V. Hatfield, 107 Mass. 227. 
 
 28. False oath must have been taken 
 willfully. If the prisoner took the oath 
 pursuant to the advice of his counsel, be- 
 lieving that he might lawfully do so, the 
 element of corrupt intent would be wanting; 
 •)ut not if he sought such advice as a mere 
 cover. Tuttle v. People, 36 K. Y. 431 ; 
 Hood v. State, 44 Ala. 81. 
 
 29. A bankrupt who willfully and fraudu- 
 lently exhibits a false schedule of his prop- 
 erty is guilty of perjury; but not, if acting 
 under the advice of counsel, he igncrantly 
 omits items from his schedule. State v. 
 Conner, 3 McLean, 573 ; Com. v. Calvert, 1 
 Va. Cas. 181. 
 
 30. Where a bankrupt intentionally leaves 
 out of his schedule part of his property, and 
 swears that his schedule contains a true 
 account of all his eflects, he is guilty of per- 
 jury under the act of Congress. U. S. v. 
 Nichols, 4 McLean, 23; U. S. v. Dickey, 1 
 Morris, 412. 
 
 31. Subject of offense. Perjury may be 
 committed in swearing falsely in an affidavit 
 to hold to bail, or for a continuance. State 
 V. Johnson, 7 Blackf. 49; or in swearing 
 falsely in an affidavit administered by a 
 justice of the peace as the foundation for 
 obtaining a writ of habeas corpm^. White v. 
 State, 1 Smed. & Marsh. 149; but not by 
 swearing falsely in such affidavit as to mat- 
 ters of inducement merely. lb. ; or in swear- 
 ing falsely to an affidavit to obtain a certi- 
 orari. Pratt V. Price, 11 Wend. 127. 
 
 32. It is perjury to swear falsely before a 
 justice of the peace in a matter isubmitted to 
 arbitration by a rule of court without the 
 
 consent of the parties. State v. Stephenson, 
 4 McCord, 165 ; but not in a parol submis- 
 sion not made a rule of court. Mahan v. 
 Berry, 5 Mo. 21. To take a false oath under 
 the insolvent debtor's act is perjuiy at com- 
 mon law. Com. V. Calbert, 1 Bald. 350. 
 In Connecticut, where a person took the 
 oath provided for poor imprisoned debtors 
 falsely and corruptly before a magistrate, it 
 was held perjury. Arden v. State, 11 Conn. 
 408. And it is perjury for the defendant in 
 an action of debt on a bond to swear in an 
 affidavit before the justice trying the cause, 
 that he did not execute the bond. Com. v. 
 Litton, 6 Graft. 691. 
 
 33. It is perjury for a witness falsely to 
 swear that he was present and saw the due 
 execution and acknowledgment of a deed. 
 Where a person corrujitly erased the signa- 
 ture of the subscribing witness to a deed, 
 and caused the instrument to be recorded 
 by falsely swearing that he was himself the 
 subscribing witness, it was held that he 
 was guilty of perjury. Tuttle v. People, 36 
 N. Y. 431 ; 2 N. Y. Trans, of Appeals, 306. 
 
 34. Where a person sued before a justice 
 of the peace on a promissory note, filed an 
 affidavit as a plea, stating that he did not 
 execute the note, and that it was wholly un- 
 just and forged, it was held that perjury 
 might be assigned on it. State v. Roberts, 
 11 Humph. 539. 
 
 35. A false affidavit to procure a search 
 warrant, in order to be the subject of perjury, 
 need not charge the oSense on any particular 
 person. Carpenter v.State,4 How. (Miss.) 163. 
 
 36. Swearing falsely iu affidavits by draft- 
 ed men claiming exemption from military 
 service is perjury. U. S. v. Sonachall, 4 
 Bis. 425. 
 
 37. In naturalization proceeding. In 
 Pennsylvania, swearing falsely in a naturali- 
 zation proceeding is perjury at common law. 
 Rump V. Com. 30 Penn. St. 475. And see 
 State V. Whittemore, 50 New Ilamp. 245. 
 But in New York, it has been held that per- 
 jury in a naturalization proceeding before a 
 county court is an offense against the laws 
 of the United States, of which the federal 
 courts have exclusive jurisdiction. People 
 v. Sweetman, 3 Parker, 358.
 
 500 
 
 PERJUKY AND SUBORNATION OF PERJURY. 
 
 Perjury. 
 
 When and How Committed. 
 
 38. Before grand jury. Tlie rule that 
 the proceedings before the grand jury shall 
 be secret, will not protect witnesses who 
 commit perjury in testifying before it from 
 prosecution. People v. Young, 81 Cal. 56.3. 
 
 39. By juror. If a juror, when examined 
 as to his competency and qualifications, will- 
 fully and corruptly swears to what is not true, 
 he is guilty of perjury. State v. Wall, 9 
 Yerg. 347. 
 
 40. In aflB.davit required by statute. To 
 constitute perjury in swearing falsely to an 
 aftidavit required by statute, it is not neces- 
 sary that the affidavit should be in the words 
 of the statute. It is sufficient that it sub- 
 stantially conforms to the requirements of 
 the act. State v. Dayton, 3 Zabr. 49. 
 
 41. Amendment or repeal of statute. 
 Where a statute prescribes certain oaths, and 
 false swearing in taking them is declared 
 perjury, and by a subsequent statute the 
 original act is amended, and the form of the 
 oaths altered, false swearing under the 
 amendment is peijury, although it be not 
 expressly declared to be so in the amended 
 act. Campbell v. People, 8 Wend. 63G. 
 
 42. The repeal of a statute will bar a 
 prosecution for perjury committed under 
 the statute while it was in existence. U. S. 
 V. Passmore, 4 Dall. 372. Therefore, al- 
 though a false oath taken before commis- 
 sioners in bankruptcy is perjury, yet the 
 moment the law is repealed it ceases to be a 
 punishable ofiense. Anon. 1 Wash. C. C. 
 84. 
 
 43. Tribunal administering oath must 
 have had jurisdiction. To constitute per- 
 jury, it is essential that the court have 
 jurisdiction of the subject-matter, and power 
 to administer oaths. Pankey v. People, 1 
 Scam. 80 ; Boling v. Luther, 2 Taylor, 202. 
 But where the court has jurisdiction of the 
 parties and the subject-matter, perjury may 
 be committed although the proceedings are 
 not strictly regular. State v. Lavalley, 9 
 Mo. 834 ; State v. Hall, 7 Blackf. 25 ; U. S. 
 Y. Babcock, 4 McLean, 113. 
 
 44. Perjury may be committed by taking 
 a false oath before a magistrate authorized 
 to administer oaths, in pursuance of a regu- 
 lation of the U. S. treasury department, or 
 
 in conformity with the practice and usage of 
 the treasury department. U. S. v. Bailey, 
 Peters, 238. 
 
 45. Where an oath which was required to 
 be taken before a collector of customs, was 
 falsely made before a deputy of the collector, 
 it was held ground for an indictment for 
 perjury. U. S. v. Barton, Gilpin, 439. 
 
 46. Where an indictment alleged that 
 perjury was committed on a trial before a 
 justice and six jurors, and the trial seemed 
 to have been with the consent of the parties, 
 it was held that the consent was a waiver of 
 the irregularity as to the jury. State v. Hall, 
 7 Blackf. 25. 
 
 47. Oath administered by unauthorized 
 person. It is a good defense to an indict- 
 ment for perjury, that the officer who ad- 
 ministered the alleged false oath acted under 
 a void appointment. Muir v. State, 8 BlackL 
 154. 
 
 48. In South Carolina, where a magistrate 
 had taken the oath of qualification be- 
 fore an associate judge, and was therefore 
 not duly qualified, it was held that a person 
 could not be convicted of perjury in swear- 
 ing falsely before such magistrate. State v. 
 Hayward, 1 Nott & McCord, 546. 
 
 49. Extrajudicial oath. Perjury cannot 
 be predicated upon an extrajudicial oath. 
 U. S. v. Babcock, 4 McLean, 113. It cannot 
 be assigned upon an answer in chancery, 
 unless the bill call for a sworn answer. 
 Silver v. State, 17 Ohio, 365. 
 
 50. It is not perjury to swear falsely to a 
 protest before a notary puljlic as part of the 
 preliminary proofs in case of a marine loss, 
 the oath in such case being voluntary and 
 extrajudicial. People v. Travis, 4 Parker,. 
 213. 
 
 51. Where the clerk of the United States 
 Circuit Court administered an oath as to the 
 travel of a witness, which was not required 
 by law or by a rule of court, it was held not 
 perjury. U. S. v. Babcock, supra. 
 
 52. A petition for divorce having been 
 filed in the Court of Common Pleas of Indi- 
 ana by a non-resident, falsely alleging that 
 he was a resident of the county, and that he 
 had resided in the State one year, and that 
 notice to the absent defendant had been duly
 
 PERJUHY AND SUBOENATION OF PERJURY. 
 
 501 
 
 Perjury. 
 
 Indictment. 
 
 published, the deposition of a witness was 
 taken before a notary public in Ohio, testi- 
 fying to the fact of residence, and the causes 
 of divorce specified in the petition. Held 
 that the deposition of the witness was not 
 extrajudicial, and that perjury might be 
 assigned upon it. Stewart v. State, 32 Ohio, 
 N. S. 477 ; s. c. 1 Green's Grim. Eeps. 537. 
 
 (b) Indictment. 
 
 53. General requisites. In an indict- 
 ment for perjury charged to have been com- 
 mitted on the trial of a cause before the 
 court or an officer thereof, it is essential, 1st, 
 That the name of the court should be stated, 
 and that such court should have a legal ex- 
 istence. 2d, That the offense should be 
 charged to have been committed in the 
 county in which the indictment was found. 
 3d, That it should appear on the face, or be 
 alleged in the body of the indictment, that 
 the evidence on which the assignment of 
 perjury is based, was material to the deter- 
 mination of the issue, or at least proper to 
 be offered on the trial of such issue. Guston 
 v. People, 61 Barb. 35 ; 4 Lans. 487. 
 
 54. Must show that oflfense was com- 
 mitted, in a judicial proceeding. An in- 
 dictment for peijury must show that the 
 oath was had in a judicial proceeding. 
 Such an indictment charged that B. exhib- 
 ited his certain bill of comjjlaint in writing 
 against C. and others named, in the Court 
 of Chancery within and for the county of O., 
 then being in session, which said bill was 
 directed to the chancellor of the 2d judicial 
 circuit, " as in and by said bill of complaint 
 of the said B., remaining filed of record in 
 the said Court of Chancery, amongst other 
 things, will more fully appear;" that 0. made 
 oath to his answer to said bill in due form 
 before a justice of the peace, setting forth in 
 what respects such answer was false. Held 
 sufficient on the authority of the precedent 
 in Chitty's Grim. Law (vol. 3, p. SSG); 
 and that it was not necessary to allege that 
 C. was called upon to make answer under 
 ©ath,or that the bill of complaint was served 
 upon him. State v. Ciiambcrlin, 30 Vt. 559. 
 
 55. An indictment for perjury alleged that 
 C, on the 25th of June, 18G0, brought her 
 
 petition to the Supreme Court for divorce, 
 " stating in her petition," &c., " whereupon 
 it became necessary to take the testimony of 
 witnesses in the jDremises," and that the 
 accused " appeared before W., a notary 
 public, and made his deposition as to facts 
 in the premises," &c. Held that it suffi- 
 ciently appeared that the alleged perjury 
 was committed in a judicial proceeding. 
 State V. Sleeper, 37 Vt. 132 ; State v. Ma- 
 goon, lb. 
 
 56. It is not sufficient to aver that "the 
 perjury was committed in a course of jus- 
 tice." Where the perjury was alleged to 
 have been committed in answers to certain 
 interrogatories on a writ of scire facias, and 
 there was no averment that the interroga- 
 tories were exhibited in any cause or pro- 
 ceeding pending or at issue, or on trial be- 
 fore the court, the indictment was held 
 insufficient. State v. Hanson, 39 Maine, 337. 
 
 57. "Where an indictment for perjury 
 charged to have been committed in a pub- 
 lic prosecution, did not state whether it was 
 on the trial of an indictment or presentment, 
 it was held fatally defective. Steinston v. 
 State, 6 Yerg. 531. 
 
 58. Must state before what tribunal the 
 oath was administered. The indictment 
 should set out the style of the court before 
 which the perjuiy is alleged to have been 
 committed. State v. Street, 1 Murphey, 156. 
 
 59. An indictment for perjury which 
 charges that the defendant went before A. 
 B., a justice, and was sworn before A. B., 
 being such justice, shows with sufficient cer- 
 tainty by whom the oath was administered. 
 State v. Ellison, 8 Blackf. 235. 
 
 60. Must show that court or officer had 
 authority to administer the oath. An in- 
 dictment for perjury must show with cer- 
 tainty that at the time of the alleged offense, 
 the tribunal which administered the oath, 
 and before which the testimony was given, 
 had jurisdiction of the matter on trial. 
 State V. Plummer, 50 Maine, 217. 
 
 61. It is sufficient to aver that an issue 
 was duly joined, that it came on to be tried 
 in due form of law, and that the judge had 
 competent authority to administer the oath 
 in question, without expressly stating that
 
 502 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury, 
 
 Indictment. 
 
 the court had jurisdiction. State v. New- 
 ton, 1 Iowa, 160; Com. v. Knight, 13 Mass. 
 274; Hallock v. State, 11 Ohio, 400; People 
 V. Phelps, 5 Wend. 9. 
 
 62. Where an indictment for perjury al- 
 leged to have been committed in swearing 
 to a deposition taken to be used in a libel 
 for divorce under a rule of court requiring 
 testimony in such case to be taken before 
 a commissioner appointed by the court, 
 charged that the oath was administered by 
 the commissioner on a day mentioned, he 
 "then being a justice of the peace, and duly 
 authorized to administer said oath," and 
 that the commissioner was appointed by the 
 court at a term subsequent to the time at 
 which the oath was administered ; it was 
 held that the latter averment might be re- 
 jected as surplusage. State v. Langley, 34 
 New Hamp. 529. 
 
 63. An indictment for peijury on an oath 
 taken before a clerk of the Circuit Court, 
 must show that the oath upon which it was 
 founded was one which the clerk was com- 
 petent to administer, a general averment 
 that the clerk had the requisite power, will 
 not be sufficient. IMcGregor v. State, 1 
 Carter, 232. 
 
 64. An indictment ibr per'ury charged to 
 have been committed before the grand jury, 
 must show that the evidence related to an 
 oflfense committed in the county. Com. v. 
 Pickering, 8 Gratt. 638. 
 
 65. Where perjury is charged to have been 
 committed on the trial of a former indict- 
 ment, the finding of the former indict- 
 ment in the proper county, must be alleged, 
 and the former indictment be set forth, or 
 so much of it as to show that it charged an 
 offense committed in the county, and of 
 which the court had jurisdiction ; and the 
 plea of the defendant to the former indict- 
 ment must be set forth. State v. Gallimon, 
 2 Ired. 872. 
 
 66. An indictment for perjury alleged to 
 have been committed on an examination be- 
 fore a commissioner of the United States, 
 should state how, or by whom, or under 
 what statute, or for what purpose, such com- 
 missioner was appointed, that he had au- 
 thority to ailminister the oath ; that the pro- 
 
 ceeding before him was one in which the 
 oath was required, and what particular 
 crime was charged. U. S. v. Wilcox, 4 
 Blatchf. 391. 
 
 67. An indictment for perjury in swearing 
 falsely to an affidavit made for the purpose of 
 obtaining an audit of an unliquidated claim 
 against the city of Buffalo, by the common 
 council of that city, did not aver that the 
 affidavit was authorized by the city charter, 
 or that it was made for the purpose required 
 thereby, or that the claim to which it was 
 appended was ever presented to the common 
 council for audit. Held insufficient. Ort- 
 ner v. People, 11 N. Y. Supm. N. S. 323. 
 
 68. An indictment for perjury in taking a 
 false oath before a regimental court of in- 
 quiry, should state the number of officers 
 composing the court, and their rank, so as to 
 show that the court of inquiry was legally 
 organized, and also state the subject of in- 
 quiry before the court. Connor v. Com. 2 
 Va. Cas. 30. 
 
 69. In an indictment for perjui^ at a gen- 
 eral election, an allegation of jurisdiction to 
 administer the oath is sufficient, without 
 stating in detail the names or the number of 
 the inspectors who constituted the board. 
 And the indictment need not state that the 
 inspectors were acting for the ward in which 
 the alleged perjury was committed. The 
 averment that a general election was held 
 pursuant to the laws and Constitution of the 
 State before a board of inspectors legally 
 constituted and authorized according to law, 
 is sufficient, without stating that the place 
 had been legally appointed. Burns v. Peo- 
 ple, 59 Barb. 531 ; 5 Lans. 189. 
 
 70. Where the perjury is charged to have 
 been committed on the trial of a cause at a 
 special term of the court, the indictment 
 need not set forth the order of the judge 
 directing such special term, nor the desig- 
 nation by the governor, of the judge who 
 held it. State v. Bedford, 6 Ired. 5. 
 
 71. In an indictment against an insolvent 
 debtor for taking a false oath on presenting 
 his petition and the inventory of his estate, 
 it is sufficient to aver tliat the officer had 
 lawful and competent authority to adminis- 
 ter the oath, without setting forth the facts
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 503 
 
 Perjury. 
 
 Indictment. 
 
 which gave the officer jurisdiction. People 
 V. Phelps, 5 Wend. 9. 
 
 72. An indictment for perjury which 
 shows that the court had no authority to 
 administer the oath is bad. State v. Fur- 
 long, 2G Maine, 69. 
 
 73. Must show nature of proceedings. 
 At common law, where the oath upon which 
 the perjury is assigned is taken in court, it 
 is necessary to set forth the pleadings, the 
 proceedings on the trial, the evidence, and 
 the assignment of perjury upon it. In 
 Tennessee it is sufficient to state the nature 
 of the proceeding in which the false oath 
 was taken, the court or person who adminis- 
 tered the oath; and that it or he had author- 
 ity to do so. State v. Stillmau, 7 Cold. Tenn. 
 341. 
 
 74. In North Carolina, the indictment 
 need not set forth the pleadings in the case 
 in which the perjury is charged to have 
 been committed, the statute (of 1843, ch. 49) 
 having changed the common law in that 
 respect. State v. Hoyle, 6 Ired. 1. 
 
 75. An information for perjury should set 
 out the facts or show enough of the nature 
 of the jwoceedings and of the purposes for 
 which the oath was taken, to make it appear 
 that the oath was either " required or au- 
 thorized by law." When the perjury is 
 charged to have been in swearing to an 
 answer, the bill and answer should be set 
 out. Com. V. Lodge, 2 Graft. 579. Where 
 an information charged that the offense was 
 committed in swearing to a bill in equity, 
 but did not show on its face that the bill 
 was of a character to require to be verified 
 by the oath of the complainant or of any 
 other person, it was held fatally defective ; 
 the general allegation that the defendant 
 was "lawfully required to declare and de- 
 pose " not being sufficient. People v. Gaige, 
 26 Mich. 30; s. c. 1 Green's Crim. Reps. 
 524. 
 
 76. An indictment for perjury alleged to 
 have been committed in testifying before a 
 grand jury need not set out the facts con- 
 stituting the offense which was under inves- 
 tigation by the grand jury, nor aver that the 
 party charged with the offense was guilty. 
 State V. Schill, 27 Iowa, 2G3. 
 
 77. An indictment charging that a juror 
 swore falsely and corruptly upon his voir 
 dire that he had not formed or expressed an 
 opinion, must allege that an issue or ques- 
 tion as to the competency of jurors was 
 submitted to the determination of the court. 
 State V. Wall, 9 Yerg. 347 ; State v. Moffatt, 
 7 Humph. 250. 
 
 78. An indictment for perjury charged to 
 have been committed on a reference need 
 not allege that there was a final determina- 
 tion of the controversy by the referees. 
 State V. Keene, 36 Maine, 33. 
 
 79. An indictment for perjury in a jus- 
 tice's court, which charges that the offense 
 was " committed on the trial of the cause or 
 issue" is not bad for ambiguity. State, v. 
 Bishop, 1 Chip. 134. 
 
 80. Where an indictment for perjury al- 
 leged to have been committed at the hearing 
 of a petition for review, stated that the par- 
 ties were " at issue " at the hearing, no issue 
 having in fact been there joined, it was held 
 that the words were to be taken in their 
 popular signification. Com. v. Farley, Thach. 
 Crim. Cas. 654. 
 
 81. An indictment for perjury alleged to 
 have been committed by a petitioner in 
 bankruptcy need not set out the petition. 
 State V. Deming, 4 McLean, 3. 
 
 82. An indictment for perjury need not 
 set out the interrogatories in answer to 
 which the perjury is charged to have been 
 committed. State v. Bishop, 1 Chip. 124. 
 
 83. Averment of time and place. Where 
 the indictment omits to state the day the 
 trial was held at which the perjury is 
 charged to have been committed, the judg- 
 ment will be arrested. U. S. v. Bowman, 3 
 Wash. C. C. 328. And a variance b'etween 
 the day charged and that proved will be 
 fatal. U. S. V. McNeal, 1 Gallison, 387 ; 
 State V. Offutt, 4 Blackf. 855. 
 
 84. Where an indictment for perjury 
 charges that the oath was taken on the 
 trial of a cause fully identified, the particular 
 day of the trial need not be averred so posi- 
 tively that a variance of a day would be 
 fatal. Keator v. People, 32 Mich. 484. 
 
 85. An indictment for perjury is insuffi- 
 cient which avers in substance that the
 
 504 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury. 
 
 Indictment. 
 
 defendant appeared before the court during 
 a certain term named, and there made the 
 false answers, without specifying any month 
 or day of the month during the term when 
 the answers were laade. State v. Hanson, 
 39 Maine, 337. 
 
 86. x\n indictment for perjury in taking 
 the poor prisoner's oath need not allege that 
 the oath was administered to the defendant 
 in the prison, or within the yard or liberty 
 of the prison. Com. v. Alden, 14 Mass. 
 388. 
 
 87. Where an indictment for perjury al- 
 leged that the offense was committed in the 
 village of S., and that the court at which it 
 was committed was held in the town of K., 
 it was held that the court would take judi- 
 cial notice that the village of S. was situated 
 in the town of K. ; but that as the county 
 was averred, it was all that was essential, the 
 precise locality in the county being mere 
 matter of description. Wood v. People, 3 
 N. Y. Supm. N. S. 506; s. c. 8 lb. 381; 59 
 K Y. 117. 
 
 88. Averment of administration of oath. 
 An indictment for perjury must show that 
 the defendant was sworn. The mere allega- 
 tion that the defendant made and subscribed 
 the following false oath, reciting it, is not 
 sufficient. State v. Divoll, 44 New Hamp. 
 140. 
 
 89. The indictment need not state whether 
 or not the witness was compelled to attend 
 by subi^oena, or whether he testified falsely 
 in answer to a question or in the course of 
 his own narration of the facts. Com. v. 
 Knight, 12 Mass. 274. 
 
 90. An indictment for perjury is sufficient 
 which charges that the defendant was duly 
 sworn, without stating tiiat the oath was 
 administered by any one. State v. O'Hagan, 
 38 Iowa, 504. 
 
 91. An indictment for perjury in falsely 
 swearing to an affidavit, must charge that 
 the affidavit was made by the prisoner. It 
 ought to allege either that he did corruptly 
 say, depose, swear, and make affidavit in 
 writing; or that he did produce and ex- 
 hibit an affidavit in writing. Copeland v. 
 State, 23 Miss. 257. 
 
 92. Form of oath need not be averred. 
 
 The indictment need not specify the partic- 
 ular mode in which the jirisoner was sworn. 
 The averment that the defendant was duly 
 sworn is sufficient. Patrick v. Smoke, 3 
 Strobh. 147; State v. Norris, 9 New Hamp. 
 96 ; Tuttle v. People, 36 N. Y. 431. It is, 
 therefore, unnecessary to allege that the 
 oath upon which the perjury is assigned, 
 was taken upon the Gospels or Bible, or 
 administered according to the ceremonies of 
 any particular religion, or that the court 
 had jurisdiction of the prosecutor's suit. 
 State V. Farrow, 10 Rich. 165. 
 
 93. An indictment for perjuiy is good, 
 although it charges that the oath was ad- 
 ministered to the prisoner on "the Holy 
 Scriptures," instead of the Gospels, the 
 term used in the statute. Tuttle v. People, 
 supra. 
 
 94. In New York, it has been held that 
 an indictment for peijury at a general elec- 
 tion, need not specify the particular mode 
 in which the prisoner was sworn, or the 
 particular oath which he took, or show that 
 the oath required by the statute was admin- 
 istered to the defendant, or that he falsely 
 swore to any part of the same ; the aver- 
 ment that he was duly sworn and took his 
 coqjoral oath before the board, being tanta- 
 mount to the allegation that the proper 
 oath was administered to him. Burns v. 
 People, 59 Barb. 531 ; 5 Lans. 189. 
 
 95. But if the form of the oath, or man- 
 ner of taking it, be alleged, it must be stated 
 correctly; great strictness being required in 
 this respect. State v. Porter, 2 Hill, S. C. 
 611. If it be charged that the prisoner 
 swore upon the Holy Evangelists, and the 
 evidence shows that he swore with the 
 uplifted hand, tiie variance will be fatal. 
 And the same, where it is charged that he 
 deposed directly and positively to a fact, 
 and the proof is that he deposed with a 
 qualification or reservation, or upon his 
 belief as informed by others. AYilliams v. 
 State, 7 Humph. 47. 
 
 96. The Avords ''corporal oath," and 
 " solemn oath," are synonymous, and an oath 
 taken with the uplifted hand, may be de- 
 scribed by either term. Jackson v. State, 1 
 Carter, 189. An indictment for perjury
 
 PERJUEY AND SUBOENATTON OF PEEJUEY. 
 
 505 
 
 Perjury. 
 
 Indictment. 
 
 which charges that the witness took his 
 corporal oath to speak the truth, the whole 
 truth, and nothing but the truth, is suffi- 
 cient without alleging the form in which 
 such bodily assent was signified, as by rais- 
 ing the hand, or otherwise. State v. Norris, 
 9 New Hamp. 96. 
 
 97. Averment of substance of oath suf- 
 ficient. When the oath is sf>t forth to be in 
 substance and to the effect following, 
 there need not be an exact recital. People 
 V. Warner, 5 Wend. 271. Where, therefore 
 the defendant was charged with having 
 sworn falsely in an affidavit "in substance 
 and effect following, that is to say," «fec., 
 that there were 60,000 cigars on his prem- 
 ises, and the affidavit when produced showed 
 that he had sworn to having 65,000, it was 
 held that the variance was immaterial. Har- 
 ris V. People, 6 N. Y. Supm. K S. 206. 
 
 98. In New York, it was held that an 
 indictment charging an insolvent with tak- 
 ing a false oath on presenting his petition 
 for a discharge, need only set forth the sub- 
 stance of the oath ; that it was sufficient to 
 allege the oath to be " in substance, and to 
 the eifect following, to wit," &c. ; and that 
 where the indefinite article was substituted 
 for the definite article, the variance was not 
 material. People v. Warner, supra. 
 
 99. The indictment need not set out the 
 entire oath, but only the portion of it which 
 is false. State v. Neal, 43 Mo. 119. In New 
 York, it was held that an averment in an 
 indictment for swearing in a vote at an 
 election, that the defendant was sworn by 
 and before the board of inspectors, they 
 being duly authorized to administer tlie 
 oath, was sufficient, and that the whole oath 
 need not be set out, but only that part of it 
 in which the perjury was charged to have 
 been committed. Campbell v. People, 8 
 Wend. 636. 
 
 100. Averment of guilty knowledge and 
 intent. The indictment must allege that 
 the defendant willfully and corruptly swore 
 that a certain thing was true, knowing it to 
 be false, or denied it, knowing it to be true. 
 State v. Morse, 1 Iowa, 503; State v. Pow- 
 ell, 28 Texas, 626 ; U. S. v. Babcock, 4 Mc- 
 Lean, 113; State v. Perry, 42 Texas, 238. 
 
 101. The averment in an indictment for 
 perjury, that the defendant knew the falsity 
 of the matter testified to by him, is only 
 requisite where the assignment of perjury is 
 upon the statement by the accused of his 
 belief or denial of his belief of the alleged 
 false matter. State v. Raymond, 20 Iowa, 
 582. 
 
 102. An indictment against an insolvent 
 debtor for perjury, in swearing to a schedule 
 which did not include certain debts owing, 
 was held bad on demurrer for not alleging 
 that he " well knew and remembered," the 
 omitted debts. Cook's Case, 1 Rob. 729. 
 
 103. In California, an indictment for per- 
 jury which charged that the defendant " did 
 willfully, corruptly, and falsely swear," &c., 
 without using the word "feloniously," was 
 held sufficient. People v. Parsons, 6 Cal. 
 487 ; People v. Olivera, 7 lb. 403. 
 
 104. In Vermont, the allegation in an in- 
 dictment for perjury, that the accused swore 
 "falsely, willfully, and corruptly," was held 
 sufficient, without the word "knowingly." 
 State V. Sleeper, 37 Vt. 122. 
 
 105. In Iowa, an indictment which does 
 not charge, in the language of the statute, 
 that the defendant deposed, affirmed, or de- 
 clared some matter to be fact, knowing the 
 same to be false, or denied some matter to be 
 fact, knowing the same to be true, is fatally 
 defective ; and the defect is not cured by a 
 statute which provides that " no indictment 
 shall be quashed if an indictable offense is 
 clearly charged therein, or if the charge be 
 so explicitly set forth that judgment can be 
 rendered thereon." State v. Morse, 1 Iowa, 
 503. 
 
 106. Averment of falsity of testimony. 
 An indictment for perjury must charge the 
 falsity of the statement, and not leave it to 
 be adduced by argument and intendment ; 
 and the omission of such averment will not 
 be cured l)y the conclusion that the defend- 
 ant did " falsely, wickedly, willfully and 
 corruptly, in manner and form aforesaid, 
 commit willful and corrupt perjury." Juar- 
 aqui V. State, 28 Texas, 625. 
 
 107. Assignments of perjury must be 
 made by special averment negativing the 
 oath. A general allegation that the defend-
 
 506 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury. 
 
 Indictment. 
 
 ant swore falsely is not sufficient. Burns v. 
 People, 59 Barb. 531 ; s. c. 5 Lans. 189. 
 
 108. In Maine, an indictment for perjury 
 under the statute (R. S. ch. 123, § 4), which 
 alleges that the accused "committed per- 
 jury by testifying as follows," giving the 
 language, is a sufficient averment that the 
 words sworn to were not true. State v. 
 Corson, 59 ]\Iaine, 137. 
 
 109. Specifying in what the offense con- 
 sists. The indictment should set out the 
 substance and effect of the testimony which 
 is alleged to be false. State v. Graves, 
 Busbee, 403. 
 
 110. Where it was alleged that the ac- 
 cused had sworn that he had not voted at 
 the election, and the assignment of perjury 
 was that he had voted previously in the 
 fourth ward of the city of New York, " in 
 the house of T. L. W. in said ward," without 
 stating that he voted before a board of 
 officers duly constituted and authorized ac- 
 cording to law, or that a lawful election had 
 been appointed or maintained at the place 
 named, it was held that the assignment was 
 too general and uncertain, and that the 
 defect was not cured by the statute of 
 jeofails. Burns v. People, 59 Barb. 531 ; 
 s. 0. 5 Lans. 189. 
 
 111. An indictment for perjury in giving 
 false testimony before a grand jury alleged 
 that the defendant, being duly sworn, " did 
 depose and give evidence to the grand jury 
 in substance and to the effect following" 
 (stating the testimony), "which said evi- 
 dence was willfully false and corrupt, for in 
 truth," &c. (denying the facts deposed to), 
 " and so the defendant did, in manner and 
 form aforesaid, commit willful and corrupt 
 perjury. Held insufficient at common law. 
 Thomas' Case, 3 Rob. 795. 
 
 112. An indictment against a bankrupt for 
 perjury, must state in what the perjury con- 
 sisted, and it is not sufficient to allege that 
 the defendant swore falsely in respect to his 
 schedule in taking the oath of bankruptcy. 
 U. S. V. Morgan, 1 Morris, 341. 
 
 113. But in an indictment for perjury 
 against an insolvent debtor for omitting to set 
 forth projjerty in his inventory, it is sufficient 
 to allege that,with the papers presented to the 
 
 officer, was one purporting to be a full and 
 just inventory of all the estate of the in- 
 solvent, without setting out the inventory or 
 stating the substance of it. People v. 
 Phelps, 5 Wend. 9. 
 
 114. Where the defendant is charged with 
 having taken a false oath to procure his 
 release from custody under an execution, an 
 assignment alleging that when he took the 
 oath he had property enough to satisfy the 
 debt for which he was arrested, is sufficient. 
 De Bernie v. State, 19 Ala. 23. 
 
 115. On a charge of peijury, where the 
 question is whether certain goods .were sold 
 in part payment of the one or the other of 
 two debts, the averment that the defendant 
 falsely swore that they were sold in paj't 
 payment of the first, is sufficient. Com. v. 
 Johns, 6 Gray, 274. 
 
 116. It was objected on motion in arrest 
 of judgment, that the portion ©f the oath on 
 which perjury was assigned, to wit, that the 
 defendant " saw the said Peter Martin enter 
 upon the premises of the said Jason Pang- 
 born," was not negatived by the averment 
 that he "did not see Peter Marl in enter 
 upon the premises of the said Joseph Pang- 
 bom," and that the oath he ''heard and saw 
 the said Peter Martin getting and carrying 
 away," was not negatived by the averment 
 that he did not see and hear the said Peter 
 Martin gather and carry away. Held that 
 the objections were not well taken. State 
 V. Raymond, 20 Iowa, 583. 
 
 117. An indictment which charged a per- 
 son with lalsely swearing, in July, that he 
 had witnessed a certain transaction in Oc- 
 tober of the same year, was held not bad for 
 inconsistency. State v. McKennan, Harper, 
 303. 
 
 118. Where the perjury consists in swear- 
 ing to a written instrument, the tenor of the 
 instrument, or of the part of it alleged to be 
 false, should be set out, and not merely the 
 substance of it be given, Coppack v. State, 
 36 Ind. 513. 
 
 119. Where the perjury is assigned on a 
 book account, it is not necessary to specify 
 the particular items of the account to which 
 the testimony related. State v. Keene, 36 
 Elaine, 33.
 
 PERJUHY AND SUBORNATION OF PERJURY. 
 
 507 
 
 Perjury. 
 
 Indictment. 
 
 120. An indictment against a bankrupt 
 for pel jury, in not giving a true and full 
 account of Ms property, need not set out the 
 items on the schedule. State v. Chapman, 
 3 McLean, 390. 
 
 121. Perjury cannot be charged on an affi- 
 davit made before the clerk of the court for 
 an attachment, unless tlie affidavit contains 
 the facts required by the statute, and such 
 facts are alleged to be false. Hood v. State, 
 44 Ala. 81. 
 
 122. An indictment for peijury is good 
 which charges the making of a false affidavit 
 relative .to an application for naturalization 
 to be made subsequently, and that the affiant 
 at the time of making the affidavit was 
 sworn as a witness in support of the appli- 
 cation, without alleging that the application 
 was ever made or the affidavit used. State 
 V. Whittemore, 50 New Hamp. 245. 
 
 123. A person was charged with swearing 
 to an affidavit, that a certain boat was, as he 
 believed, attempting to pass a certain place, 
 whereas, he did not believe that the boat 
 was attempting to pass said place. Held 
 that the indictment was not bad in not stat- 
 ing that the boat was not attempting to pass 
 the place. State v. Cruikshank, 6 Blackf. 63. 
 
 124. One assignment of perjury well made 
 will sustain an indictment for that offense. 
 Com. V. Johns, 6 Gray, 274. 
 
 125. Must charge materiality of testi- 
 mony. An indictment for perjury must show 
 that the false testimony was material. Com. 
 V. Knight, 13 Mass. 274 ; Hembree v. State, 
 53 Ga. 348; State v. Keel, 54 Mo. 183. And 
 where the perjury is charged to have been 
 committed by a party to a suit, the indict- 
 ment must show by proper averments that 
 the defendant was sworn under circumstan- 
 ces which authorized his testifying as a wit- 
 ness in the cause. State v. Hamilton, 7 Mo. 
 300. 
 
 126. The materiality of the alleged false 
 testimony must appear on the face of the in- 
 dictment. Stating that '' it became and was 
 material to ascertain the truth of the mat- 
 ters hereinafter alleged to have been sworn 
 to," setting out what the defendant testified, 
 is sufficient. People v. Collier, 1 Manning, 
 137; Com. v. Pollard, 12 Mete. 325. 
 
 127. It is not suthcient in an indictment 
 for perjury to charge generally that the false 
 oath was material upon the trial of the 
 issue. Its materiality must appear from the 
 facts set forth. State v. Holden, 48 Mo. 93. 
 
 128. An indictment for perjury which 
 dees not show either by direct averment or 
 facts set out, that the statement upon which 
 the perjury is assigned was material to the 
 matter before the court, is ftitally defective. 
 State V. Beard, 1 Dutch. 384. 
 
 129. An indictment alleged that the de- 
 fendant, falsely, &c., swore to certain facts 
 before the grand jury, but did not state how 
 or in what way the facts thus sworn to had 
 a bearing upon the otfense charged in the in- 
 dictment, nor that they were material. Held 
 insufficient. State v. Dodd, 3 Murphy, 32G. 
 
 130. Where an indictment for perjury al- 
 leged to have been committed before a jus- 
 tice of the peace, \vt the county of W., upon 
 the trial of a complaint for an assault and 
 battei7 committed upon him by A., B. and 
 C, at G., in the county of W., charged that 
 the defendant falsely and corruptly swore 
 that A. and C. assaulted him at or near the 
 house of C, without alleging that the testi- 
 mony was material, or that the assault by A. 
 and C. was the same assault as that charged, 
 or that the house of C. was in G., or in the 
 county of W., or within the State, it was 
 held fatally defective. Com. v. Byron, 14 
 Gray, 31. 
 
 131. An information for perjury in falsely 
 swearing to an affidavit, must show that the 
 affidavit was made to be used, or was actu- 
 ally used in a judicial proceeding. People 
 V. Fox, 25 Mich. 492. 
 
 132. When charged to have been com- 
 mitted in swearing falsely to an affidavit for 
 a continuance, the indictment should contain 
 an averment that a cause was pending in 
 court ; that an application for its continu- 
 ance had been made, and that the affidavit 
 was material; and then show what facts 
 sworn to were false. Morrell v. People, 32 
 111. 429 ; Kerr v. People, 43 111. 307. 
 
 133. The prisoner was convicted of per- 
 jui-y, in swearing falsely in an affidavit made 
 for the purpose of obtaining an audit of a 
 claim against the city of Buffalo. The city
 
 508 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury, 
 
 Indictment. 
 
 charter prohibited the common council from 
 auditing any such claim, unless it was made 
 out in detail with certain prescribed speci- 
 fications, and unless accompanied by an affi- 
 davit that the claim, and the items and 
 specifications, were in all respects just and cor- 
 rect. The indictment was held insufficient, 
 because it did not aver that the affidavit 
 was authorized by the charter, or that it was 
 made for the purpose required by the char- 
 ter, or that the claim to which it was ap- 
 pended was presented to the common coun- 
 cil for audit. Ortuer v. People, 6 N. Y. 
 Supm. N. S. 548. 
 
 134. The indictment alleged that the 
 prisoner caused his claim to be presented to 
 T>., the city engineer, and that he made his 
 -affidavit before P., who was a commissioner 
 of deeds and a clerk in the office of D. 
 IBut it was not averred that it was any part 
 of D.'s duties to receive the bill, or that he 
 in fact received it for any purpose connected 
 Tvith an audit. The oath was not in fact re- 
 quired, and it did not appear that P. was 
 authorized to take the affidavit. Held that 
 the prisoner must be discharged. lb. 
 
 135. An information for perjury in swear- 
 ing to a bill in equity, alleging that " it then 
 and there became a material question in said 
 bill of complaint, and in said judicial pro- 
 ceeding, whether the said T. had ^y claim 
 or title to said stream or water- course," &c., 
 is defective in failing to show the materiality 
 of the matter sworn to ; the bill not being- 
 one whose allegations could be treated as 
 evidence. People v. Gaige, 26 Mich. 30 ; s. 
 c. 1 Green's Crim. Reps. 524. 
 
 136. An indictment for perjury alleged 
 that " it became and was material to show 
 whether the said S. was at the house of 0. 
 on the morning of the 2d of November, 
 1859, and whether he then had a conversa- 
 tion with said C. in the presence of certain 
 other jiersons," and then alleged that the 
 accused falsely swore that at said time he 
 stopped at said C.'s house and had a con- 
 versation with C. in the presence of one M. 
 Held that it was sufficiently alleged that the 
 t3vidence was material. State v. Sleeper, 37 
 Vt. 122 ; State v. Magoon, lb. 
 
 137. An indictment for perjury committed 
 
 in an ex parte proceeding sufficiently charges 
 the materiality of the matter sworn to by 
 alleging that "it then and there became 
 material to him," the defendant, to take the 
 oath, especially on a motion in arrest of 
 judgment. Stofer v. State, 3 West Va. 689. 
 
 138. Where an indictment for perjury al- 
 leged that the evidence was material, and 
 there was nothing in the record of the case 
 in which the alleged false evidence was given 
 contradicting it, it was held that the indict- 
 ment could not l)e quashed for insufficiency. 
 Com. V. Farley, Thach. Crim. Cas. 654. 
 
 139. A., in an action by a bank on a 
 promissory note, in testifying in behalf of 
 the indorser, swore that B., who at that 
 time was president of the bank, took usury 
 in discounting the note. Held that an in- 
 dictment charging A. with perjury in so 
 swearing need not allege that B. was acting 
 in the transaction as an officer of the bank, 
 or how he was connected with the trans- 
 action, but that it was sufficient to aver that 
 it became a material question whether the 
 said B. discounted the said note, and 
 whether he took usury in discounting it, 
 setting forth the testimony of the accused 
 and, the facts inconsistent with such testi- 
 mony, with the usual allegations of falsity 
 and corrupt intent. People v. Burroughs, 1 
 Parker, 211. 
 
 140. Where the materiality of the matter 
 which is alleged to have been falsely sworn 
 to appears from the statement of the matter, 
 an express allegation of its materiality is 
 unnecessary. State v. Johnson, 1 Blackf. 
 49 ; Com. v. Pollard, 12 Mete. 225 ; Camp- 
 bell V. People, 8 Wend. 638 ; State v. Day- 
 ton, 3 Zabr. 49 ; Hock v. People, 3 Mich. 
 552 ; Hendricks v. State, 26 Ind. 493 ; Gal- 
 loway V. State, 29 lb. 442 ; State v. Marshall, 
 47 Mo. 378. It was so held where the false 
 swearing was by the husband in his answer 
 to a bill in chancery brought to foreclose a 
 mortgage executed solely by the wife, which 
 bill alleged that her husband, who was a 
 party to the suit, gave his consent to the 
 execution of the mortgage by his wife, and 
 the borrowing by her of the money for 
 which the mortgage was given. State v. 
 Chamberlin, 30 Vt. 559.
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 50f^ 
 
 Perjury. 
 
 Indictment. 
 
 Evidence. 
 
 141. Perjury niny be assigned upon a false 
 oath to a matter wliicli, without additional 
 proof, is insufficient to effect the purpose for 
 which the oath was taken. State v. Dayton, 
 3 Zabr. 49. 
 
 142. Conclusion. "Where after the alleged 
 perjury was committed another statute was 
 passed changing the punishment, it was held 
 that an indictment concluding " against the 
 form of the statute " was good. Strong v. 
 State, 1 Blackf. 193. 
 
 143. Form. The usual form of an indict- 
 ment for perjury when more than one ques- 
 tion is relied on as material, is to aver that 
 certain questions became and were material, 
 to wit, whetlier, &c., and whether, &c., and 
 also whether, «S:c. But this form is not 
 essential. The indictment will be sufficient 
 if it clearly avers that several matters were 
 material on the trial in which the defendant 
 testified, and that he committed perjury 
 concerning them or any of them. Com. v. 
 Johns, 6 Gray, 274. Form of an indictment 
 for perjury in falsely swearing that usury 
 was taken on a promissory note. People v. 
 Burroughs, 1 Parker, 211 
 
 V 
 
 (c) Evidence. 
 
 144. Authority to administer oath. To 
 procure a conviction for perjury, it must be 
 proved that the person before whom the 
 oath was taken was authorized by law to 
 administer it. Proof that the person habit- 
 ually acted in the capacity of a particular 
 officer, until rebutted, is sufficient without 
 producing his commission. Morrell v. Peo- 
 ple, 32 lU. 429. 
 
 145. On the trial of an indictment for 
 perjury alleged to have been committed 
 before a company court martial, the com- 
 mission of the captain need not be produced. 
 Parol proof of his acting as such is sufficient. 
 State v. Gregory, 2 Murjjhy, 69. 
 
 146. On a trial for perjury, it is sufficient 
 to prove that the oath was administered by 
 an officer de facto, Keator v. People, 32 
 Mich. 484. 
 
 147. To justify a verdict of guilty on the 
 trial of an indictment for perjury under sec- 
 tion 13 of the act of Congress approved 
 March 2d, 1825, the jury must be satisfied 
 
 by the evidence that the defendant was 
 sworn in a proceeding in which an oath was 
 required by some law of the United States, 
 and 'that he knowingly and willingly swore 
 to that which was false; that the oath was- 
 administered to him by the person named 
 in the indictment, and that such person had 
 authority to administer the oath ; and that 
 the defendant swore with a corrupt intent to 
 falsify. Any discrepancy between what the 
 defendant swore to and what is set out in 
 the indictment as having been sworn to by 
 him will be fatal to a conviction. U. S. v. 
 Coons, 1 Bond, 1. 
 
 148. Proof that the defendant was 
 sworn. On the trial of an indictment for 
 perjury, the certificate of the magistrate 
 before whom the alleged false oath waa 
 taken is prima facie evidence that the pris- 
 oner took the oath. Com. v. Warden, 11 
 Mete. 406. 
 
 149. The following instruction on a trial 
 for perjury was held erroneous: "It being 
 the uniform rule and custom in the courts 
 to administer oaths to witnesses before they 
 testify, you will be justified in finding that 
 the defendant was sworn on less evidence 
 than would be necessary to establish a fact 
 of a different character not occurring accord- 
 ing to any fixed rule or custom." Hitesman 
 V. State, 48 Ind. 473. 
 
 150. Ciiaracter of oath. On a trial for 
 perjury, evidence that the accused was sworn 
 to tell "the whole truth, and nothing but 
 the truth," supports the allegation that he 
 " took his corporeal oath to tell the truth, 
 the whole truth, and nothing but the truth.'' 
 State V. Gates, 17 New Hamp. 375. 
 
 151. Where an indictment for perjury al- 
 leges that the defendant was sworn en the 
 Holy Gospels, a failure to prove that he was 
 so sworn will be a fatal variance. State v. 
 Davis, 69 N. C. 383. 
 
 152. An indictment for perjury in swear- 
 ing falsely as to ability to become bail al- 
 leged that the perjury was committed upon 
 an examination had after the defendant had 
 been previously sworn to make true answers 
 to such questions as should be put to him, 
 touching liis qualifications and competency 
 to be and become bail. It was proved that,
 
 510 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury. 
 
 Evidence. 
 
 after the answers of the defendant to certain 
 interrogatories had been taken down in 
 writing, an oath was administered to him 
 that the answers to the foregoing interroga- 
 tories, by him subscribed, are each and every 
 of them true. Held that the variance was 
 material, and that the proof did not support 
 the indictment. Smith v. PeojDle, 1 Parker, 
 317. ■ 
 
 153. Time and place. An indictment for 
 perjury alleged that the defendant committed 
 the offense at the hearing of a petition for 
 review, " on the third day of April, before 
 three of the justices of the Supreme Judicial 
 Court." The record of the hearing set forth 
 that it was "on the tenth day of April be- 
 fore the Supreme Judicial Court." Held that 
 the record was admissible in evidence not- 
 withstaading the variance. Com. v. Farley, 
 Thach. Crim. Cas. 654. 
 
 154. On the trial of an indictment for 
 perjury in falsely swearing to a petition be- 
 fore the court, the clerk of the court testified 
 that the petition, which bore a certificate of 
 the clerk that it was sworn to before him, 
 was so sworn, but whether in his office or in 
 court he could not remember; that there was 
 no order of the court to administer the oath, 
 but that was the practice. Held that the 
 jury were justified in finding that the de- 
 fendant was sworn in a proper manner be- 
 fore the court. Com. v. Kimball, 108 Mass. 
 473. 
 
 155. Nature of proceedings. An indict- 
 ment charged that the peijury was com- 
 mitted on the offer of the accused to become 
 bail for one Thompson, committed on the 
 complaint of McDonald, in default of bail 
 for §500. The evidence was that the perjm-y 
 was committed cm the examination of the 
 defendant as bail for Thompson, committed 
 on the complaint of Sayre and others, in 
 default of $3,000 bail. Held that the vari- 
 ance was fatal. Smith v. People, 1 Parker, 
 317. 
 
 156. An indictment charging perjuiy com- 
 mitted on a trial for the larceny of property 
 of A., or his son B., is not sustained by 
 proof of a trial for the larceny of property of 
 A.'s son B. Brown v. State, 47 Ala. 47 ; s. c. 
 1 Green's Crim. Reps. 531. 
 
 157. An indictment for perjury alleging 
 that a warrant was tried, in which A. de- 
 manded of B. $30 for corn, is supported by 
 proof of a warrant between the same parties 
 for a debt due by account, without specify- 
 ing the particulars of the account. State v. 
 Alexander, 2 Dcv. 470. 
 
 158. An indictment for perjury charged 
 that the defendant had conveyed land to B. 
 which had been previously mortgaged to C. ; 
 that C. had recovered a judgment under the 
 mortgage for the possession of the land ; that 
 a petition for a review had been filed by B., 
 on the ground of newly discovered evidence 
 to show a technical payment of the debt 
 secured by the mortgage ; and that the de- 
 fendant swore falsely at the hearing of the 
 petition, that he told B. of the existence of 
 the mortgage at the time of the conveyance. 
 The indictment alleged that the judgment 
 recovered by C. was " for possession of land, 
 mill site, and mills of B.," and that the pe- 
 tition was " for a review of a certain action 
 and judgment." The record of the proceed- 
 ings at the hearing of the petition, ofi'ered in 
 evidence at the trial of the indictment, set 
 forth, that the petition was a review of a 
 judgment for the possession of " the peti- 
 tioner's mill site and mills," and that the 
 petition was " a review of a certain action 
 and supersedeas, and stay of execution." 
 Held that, as the record was not recited in 
 the indictment, the variance was not cause 
 for the rejection of the testimony. Com. v. 
 Farley, Thach. Crim. Cas. 654. 
 
 159. An indictment charging that the 
 prisoner was sworn as a witness between a 
 bank and A., is supported by proof that the 
 prisoner was sworn in a suit brought by the 
 bank on a promissory note against A. as 
 indorser, and B. and the prisoner as joint 
 makers, the evidence of the prisoner in such 
 case being only available in behalf of the 
 indorser. People v. Burroughs, 1 Parker, 
 211. 
 
 160. A variance between an indictment 
 for i)erjury alleged to have been committed 
 on a trial before a referee, and the evidence 
 in regard to the person before whom the 
 referee was sworn, is immaterial. People v. 
 McGinnis, 1 Parker, 387.
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 511 
 
 Perjury. 
 
 Evidence. 
 
 161. Matter sworn to. On a trial for 
 perjury charged to have been committed iu 
 testifying before an examining magistrate, 
 the prosecution may prove what the defend- 
 ant swore to by parol evidence. People v. 
 Curtis, 50 Cal. 95. 
 
 162. An indictment for perjury, committed 
 in swearing to a deposition, concluded thus : 
 "As by his said answers to said inter- 
 rogatories, written in said deposition re- 
 maining, will, among other things, appear." 
 Held that upon the rejection of the de- 
 position, parol evidence might be given to 
 prove the testimony of the deponent. Com. 
 V. Stone, Thach. Crim. Cas. G04. 
 
 163. An indictment f©r perjury which al- 
 leges that the defendant swore falsely in 
 testifying that M. did not assault him on 
 the tenth of September, is not sustained by 
 proof that the defendant was assaulted by 
 M. on the ninth of September. Com. v. 
 Monahan, 9 Gray, 119. 
 
 164. An indictment alleged that the 
 defendant swore that A. bought a gun of B. 
 His testimony as proved, was, that B. in 
 conversation with A. asked him, if he had 
 returned his gun, to which A. replied that 
 he had forgot it, but that he would keep the 
 gun, and allow $15 for it on what B. owed 
 him, and that B. responded " enough said." 
 Held that the proof did not support the 
 charge, B.'s answer not necessarily import- 
 ing assent to A.'s proposition, but being 
 susceptible of a different interpretation. 
 State V. Graves, Busbee, 402. 
 
 165. An indictment for perjury alleged 
 thai the defendant falsely swore that he had 
 land and two houses in East Cambridge, 
 Massachusetts. On the trial, it was proved 
 that he made oath to a written statement 
 to the eflfcct that he had land and two houses 
 in East Cambridge, without any affirmation 
 or assertion that they were in Massachusetts. 
 Held that the variance was fatal. Com. v. 
 Hughes, 5 Allen, 499. 
 
 166. An indictment for perjury alleged to 
 have been committed in swearing to a repli- 
 cation to a plea of usuiy, that the sum of 
 $20 above the legal interest was not re- 
 ceived for tlie loan of $400. It was proved 
 that the defendant gave to one S., who 
 
 borrowed the money of him, the sum of 
 $380, and received therefor of him a note 
 for $400. Held that the variance was fatal. 
 State V. Tappan, 1 Foster, 56. 
 
 167. Testimony required to convict. 
 To authorize a conviction for perjury, the 
 statements of the defendant must be dis- 
 proved by two witnesses, or by one witness 
 and corroborating circumstances. U. S. v. 
 Coons, 1 Bond, 1 ; State v. Raymond, 20 
 Iowa, 582; Com. v. Farley, Thach. Crim. 
 Cas. 654; State v. Hayward, 1 Nott & 
 McCord, 546. 
 
 168. The law does not require two wit- 
 nesses to establish the giving of the testi- 
 mony upon which the perjury is assigned ; 
 but only to prove its falsity. State v. "Wood, 
 17 Iowa, 18; Com. v. Pollard, 12 Mete. 225. 
 
 169. On a trial for perjury, the corrobora- 
 tive proof, in addition to the testimony of 
 one witness, need not be equivalent to the 
 testimony of another witness ; but only such 
 as gives a clear preponderance to the evi- 
 dence in favor of the prosecution. Crusen 
 V. State, 10 Ohio, N. S. 258 ; State v. Heed, 
 57 Mo. 252; contra^ Galloway v. State, 29 
 Ind. 442. The testimony of a single witness, 
 and the declarations of the prisoner, are suf- 
 ficient to sustain a conviction. State v. 
 Molier, 1 Dev. 263. 
 
 170. Written evidence. Where the 
 owner of goods was charged in the indict- 
 ment with taking a false oath at the custom 
 house, it was held not necessary to a con- 
 viction that the prosecution should produce 
 a living witness, if the jury believed the 
 written testimony sufficient to establish the 
 charge. U. S. v. Wood, 14 Peters, 430. 
 
 171. When a person, by a subsequent de- 
 position, contradicts a former one made by 
 him, and admits that the former one was 
 intentionally false at the time it was made, 
 or in such subsequent deposition alleges such 
 facts and circumstances as to render the 
 corrupt motive apparent, he may be con- 
 victed of perjury, upon an indictment 
 charging the first deposition to be false, 
 without any other proof than that of the 
 two depositions. People v. Burden, 9 Barb. 
 467, Selden, J., dissenting. 
 
 172. On the trial of an indictment for
 
 512 
 
 PEEJURY AXD SU130RNATI0N OF PERJURY. 
 
 Perjury. 
 
 Evidence. 
 
 perjury, the falsity of the matter sworn to 
 by the defendant may be proved by the 
 books and papei's kept by him and under 
 his control. U. S. v. Mayer, Deady, 127. 
 
 173. On the trial of an indictment for 
 perjury, charged to have been committed in 
 testifying in a cause before a justice of the 
 peace, in relation to a written contract, the 
 record or papers of the suit, and the contract, 
 must be produced, or their absence account- 
 ed for. The first is necessary to show the 
 identity of the proceedings with those de- 
 scribed in the indictment; and the second, 
 to ascertain the legal effect" of the contract, 
 and what evidence was material. McMurry 
 V. State, 6 Ala. 324. 
 
 174. The record of the court at which 
 perjury is charged to have been committed, 
 is not inadmissible in consequence of the 
 day of holding the court being misrecited 
 in the indictment. State v. Clark, 2 Tyler, 
 282. 
 
 175. Party to suit may be a witness. A 
 party to a suit may be a witness to prove 
 perjury therein, where the conviction of the 
 prisoner would not entitle the witness to a 
 new trial, or to damages as an injured party. 
 State V. Bishop, 1 Chip. 124. 
 
 176. Wife as witness. Upon a trial of 
 the husband for perjury, in swearing in an 
 action for divorce (his wife having borne a 
 child), that he had no sexual intercourse 
 with her during marriage, she is a competent 
 witness (a divorce having been obtained), 
 to prove that she had no sexual intercourse 
 with any other person. Chamberlain v. 
 People, 23 N. Y. 85. 
 
 177. Presumptive evidence. Where, on 
 the trial of an indictment for perjury, in 
 falsely swearing that the defendant owned a 
 house, the proof went to show that the house 
 belonged to the defendant's wife, it was held 
 that in the absence of any proof of title in 
 the defendant, the fact that the records 
 showed no conveyance from the wife, was 
 presumptive evidence of title still in her. 
 Com. V. Hatfield, 107 Mass. 237. 
 
 178. On the trial of A. for perjury, in 
 swearing falsely to an alibi on the trial of B. 
 for robbery, evidence of the conduct and 
 appearance of B. just previous to and at the 
 
 time of his arrest, not being a part of the 
 res gestcB, is inadmis3iV)le ; but otherwise, as 
 to proof that B. was guilty, as it would tend 
 to show that he was not at the place sworn 
 to by A. Galloway v. State, 29 Ind. 442. 
 
 179. Materiality of false testimony. To 
 convict of perjury, the materiality of the 
 matter sworn to must be established by evi- 
 dence, and cannot be left to presumption or 
 inference. State v. Aikens, 32 Iowa, 403. 
 In State v. Lewis, 10 Kansas, 157, it was 
 held that the question whether the alleged 
 false testimony was material, was one of 'law 
 for the court. 
 
 180. Guilty knowledge and intent. An 
 instruction which authorizes the jury, on 
 a trial for perjury, to find the defendant 
 guilty without proof that the false oath was 
 taken willfully and corruptly, is erroneous. 
 Green v. State, 41 Ala. 419. 
 
 181. On a trial for perjury it is competent 
 to show that the motives which actuated the 
 prisoner in committing the offense were cor- 
 rupt; as that he swore to a complaint against 
 the prosecutor, ostensibly to procure sureties 
 of the peace, but in fact to coerce the settle- 
 ment of a civil action. State v. Hascall, 6 
 New Hamp. 352. 
 
 182. On a trial for perjury, alleged to have 
 been committed by the defendant in testify- 
 ing before a fire marshal as to the origin of 
 a fire, proof that the defendant falsely aug- 
 mented the value of his property which was 
 consumed by the fire, is material on the 
 question of motive. Harris v. People, 6 
 N. Y. Supm. N. S. 206. 
 
 183. On a trial for perjury committed by 
 the defendant in falsely swearing in a civil 
 action that " he did not send his son to 
 school last year, and did not know that his 
 son went to school," the fact that he knew 
 that his son went to school, if material to 
 the issue in the civil suit, would be relevant 
 evidence. Floyd v. State, 30 Ala. 511. 
 
 184. Although the jury cannot consider 
 any other perjury than that assigned, for the 
 purpose of determining the defendant's guilt 
 upon such other perjury, yet if such other 
 perjury was brought out in the development 
 of the whole case, and related to the oath 
 and subject-matter of the perjury charged
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 513 
 
 Perjury. 
 
 Evidence. 
 
 Verdict. Subornation of Perjury. Requisites. 
 
 SuW: 
 
 the Jury may consider it in considering the 
 question of corrupt intent in swearing to the 
 false matter upon which the perjuiy was as- 
 signed. State V. Raymond, 20 Iowa, 582. 
 
 185. On a trial for j^erjury, charged to 
 have been committed at the hearing of a 
 complaint for maliciously setting fire to a 
 ship, the prosecution, in order to show a 
 corrupt motive, proved that a reward was 
 offered for the detection of the incendiary, 
 which was known to the defendant. Held 
 that evidence was admissible in behalf of 
 the defendant to show that he came from 
 another State to testify in the case, reluct- 
 antly, and that no inducements were offered 
 to him to do so. Com. v. Brady, 7 Gray, 320. 
 
 186. Declarations of defendant. It is 
 not proper to instruct the jury on a tiial for 
 perjury, that the law presumes the declara- 
 tions of a party against himself to be true, 
 when the object of such an instruction is to 
 make the declarations evidence of the falsity 
 of the oath. The weight of such declara- 
 tions is to be determined by the jury; but 
 of themselves they are not sufficient to con- 
 vict. State V. Williams, 30 Mo. 364. 
 
 187. On a trial for perjury in falsely 
 swearing that F., one of the assailants in an 
 affray, struck the defendant, the defendant, 
 in order to disprove a corrupt motive, may 
 show that immediately on his recovery from 
 the unconsciousness occasioned by the blow, 
 he had given the same account of the trans- 
 action he did in his testimony. State v. 
 Curtis, 12 Ired. 270. 
 
 188. On the trial of an indictment for 
 perjury in swearing falsely to a deposition, 
 the deponent having afterwards testified on 
 the stand that the facts stated therein were 
 false, it was held that the prisoner was not 
 estopped from showing in his defense the 
 truth of his deposition. State v. J. B. 1 
 Tyler, 269. 
 
 189. Where an indictment for perjury al- 
 leged that the defendant was sworn as a 
 witness in his own belialf, and while thus 
 testifying committed the perjury charged, 
 it was held that an affidavit made by the 
 defendant was not admissible in evidence, 
 except by consent of parties. Copeland v. 
 State, 23 Miss. 257. 
 
 33 
 
 90. The good character of the defend- 
 ant may l)e given in evidence ; but it is en- 
 titled to but little weight on the trial of an 
 indictment for perjury. Schaller v. State, 
 14 Mo. 502. 
 
 191. Offer of prosecutor to settle. On a 
 trial for perjury, evidence that the prosecutor 
 had offered to settle, and not prosecute the 
 defendant, if the latter would pay him a 
 certain sum, is not admissible. State v. 
 Gates, 17 New Hamp. 873. 
 
 192. Burden of explanation on defend- 
 ant. When, on a trial for jierjury, the 
 prosecution shows that the prisoner swore 
 falsely, a prima facie case is made out, and 
 the burden is cast on the prisoner to prove 
 that his so swearing was caused by surprise, 
 inadvertence, or mistake. State v. Cham- 
 berlin, 30 Vt. 559. 
 
 {d) Verdict. 
 
 193. Variance in. An indictment for 
 perjury alleged that the offense was com- 
 mitted before A., and the verdict was guilty 
 of perjury before A. and F. Held that the 
 variance was fatal. State v. Mayson, 3 Brev. 
 284. 
 
 194. Where the indictment charged that 
 the defendant falsely swore that he did not 
 execute a certain deed, and the jury found 
 him guilty of perjury in denying his signa- 
 ture, it was held that the judgment must be 
 arrested, as a deed maybe executed without 
 signing. State v. Avera, 2 Taylor, 237. 
 
 2. Subornation of perjury. 
 {a) Requisites. 
 
 195. Perjury must have been instigated. 
 
 To constitute subornation of perjury, the ac- 
 cused must have procured the commission 
 of the perjury by inciting, instigating, or 
 persuading the guilty party. Com. v. Doug- 
 lass, 5 Mete. 241. 
 
 196. Must have been knowledge that 
 testimony would be willfully false. Al- 
 thougli a person charged with subornation 
 of jjerjury knew that the testimony of a wit- 
 ness whom he called would be false, yet if 
 he did not know that the witness would 
 willfully testify to a fact knowing it to be
 
 514 
 
 PERJURY AND SUBORNATION OF PERJURY. 
 
 Subornation of Perjury. Requisites. Indictment. 
 
 Evidence. 
 
 false, he cannot be convicted. Com. v. 
 Douglass, sii])7'a. 
 
 197. May be through, party in other 
 State. In Massf,chusetts, a person may be 
 guilty of subornation of perjury who causes 
 the perjury to be committed there, through 
 the instrumentality of a party in another 
 State. Com. v. Smith, 11 Allen, 243. 
 
 (h) Indictment. 
 
 198. Must aver that the witness testi- 
 fied. In an indictment for suborning L. to 
 commit perjury, it must be alleged that L. 
 testified, and his testimony be set out in sub- 
 stance, and the omission of the verb signify- 
 ing that L. was sworn, will be fatal on mo- 
 tion in arrest of judgment. State v. Leach, 
 27 Vt. 317. 
 
 199. An indictment for subornation of 
 perjury charged that the defendant did 
 feloniously, knowingly, and willingly pro- 
 cure A. and B. to swear falsely in the tak- 
 ing of an oath. But it did not allege that 
 A. and B., and either of them, swore falsely. 
 Held bad on demurrer. U. S. v. Wilcox, 4 
 Blatchf. 393. 
 
 200. Description of proceedings. In an 
 indictment for perjury or subornation of per- 
 jury, it is necessary to allege that the false 
 testimony was given in a judicial proceed- 
 ing. Where, therefore, the statute required 
 that a complaint in a prosecution for bas- 
 tardy, should be in writing, and an indict- 
 ment for suborning the female to commit 
 perjury in making such a complaint did not 
 allege that the complaint was in writing, 
 the indictment was held insufficient. State 
 T. Simons, 30 Vt. 620. 
 
 201. An indictment for subornation of 
 perjury in a deposition to be used in a civil 
 action in another State, is sufficient which 
 alleges that on a day named a cause was de- 
 pending, and that an issue was then and 
 there joined in the cause between the par- 
 ties, and that on the same day, " in the said 
 cause then and there so depending as afore- 
 said a commission was duly issued." Com. 
 V. Smith, 11 Allen, 243. 
 
 202. Must charge guilty knowledge. 
 Guilty knowledge on the part of the subor- 
 ner being a necessary element in the crime 
 
 of subornation of peijuiy, it must be aver- 
 red in the indictment and proved on the 
 trial. An indictment for subornation of 
 perjury charged in due form of law willful 
 and corrupt perjury by A., and that A. knew 
 that his testimony was false and fictitious, 
 and concluded with the averment that A. 
 had "in manner aforesaid " committed will- 
 ful and corrupt peijury; and it then alleged 
 that B. "procured, persuaded, and suborned 
 the witness to commit said willful and cor- 
 rupt perjury in manner and form aforesaid." 
 Held that the guilty knowledge of B. was suf- 
 ficiently averred. Stewart v. State, 22 Ohio, 
 N. S. 477; s. c. 1 Green's Crim. Reps. 527. 
 
 203. Against several. An indictment 
 may charge one person in one count with 
 perjury, and another person in another 
 count with subornation of perjury. State 
 v. Lea, Cold. Tenn. 175. 
 
 204. For attempt. An indictment for 
 attempting to commit subornation of per- 
 jury need not state in what the proposed 
 perjury would have consisted. State v. 
 Holding, 1 McCord, 31. 
 
 205. In Missouri, an indictment for at- 
 tempting to bribe a witness (1 R. C. 601), 
 need not allege that the testimony of the 
 witness was material, or that he had been 
 summoned, or that the justice of the peace 
 before whom the suit was pending was an 
 acting justice, or the intent to impede and 
 obstruct the due course of justice, or the 
 kind and amount of the money or property 
 ofi'ered as a bribe, or the nature of the of- 
 fense with which the defendant stood 
 charged, or that the defendant was guilty 
 of the charge. State v. Biebusch, 32 Mo. 
 276. 
 
 (c) Evidence. 
 
 206. Witness. A person may be con- 
 victed of subornation of perjury upon the 
 testimony of a single witness. Com. v. 
 Douglass, 5 Mete. 241. Where, however, on 
 a trial for subornation of perjury, the person 
 who committed the perjury is the sole wit- 
 ness on the part of the prosecution, it forms 
 an exception to the rule that it is competent 
 to convict upon the uncorroborated testi- 
 mony of an accomplice. People v. Evans, 
 40 N. y, 1.
 
 PILOT.— PIEACY 
 
 515 
 
 Liability of. 
 
 At Common Law. 
 
 Privateers. 
 
 iMiot; 
 
 Liability of. To render a person liable 
 as the pilot for a violation of the. statute of 
 New York (Laws of 1847, ch. 69), relative 
 to pilots, for the safe pilotage of vessels 
 through the channel commonly called Hell 
 Gate, he must have been on board the vessel 
 piloted. Francisco v. People, 4 Parker, 
 139. 
 
 |3irnci). 
 
 1. At common law. A pirate at common 
 law is one who, to enrich himself, either by 
 surprise or force sets upon merchants or 
 other traders by sea, to despoil them of their 
 goods. U. S. V. Tully, 1 Gallis. 247. 
 
 2. The felonious taking or carrying away 
 of a ship, and the property on board of her, 
 which if done on land would constitute 
 felony, is piracy at common law, although 
 there be no violence or putting in fear. U. 
 S. V. Smith, 5 Wheat. 153 ; U. S. v. Pirates, 
 lb. 184; U. S. V. Klintock, lb. 144 ; U. S. v. 
 Jones, 3 Wash. C. C. 231. 
 
 3. A seizure made animo furandi under a 
 commission purporting to be from a republic 
 whose existence is unknown, or from a 
 province of an acknowledged nation, is 
 piracy. U. S. v. Klintock, supra. 
 
 4. May be on ship at anchor. Piracy 
 may be committed on a ship which is at 
 anchor, with no one in her, part of the crew 
 being in the ship's boat and the balance on 
 shore. U. S. v. Tully, supra. 
 
 5. Under acts of Congress. A robbery 
 at common law, when committed on the 
 high seas, is piracy by the act of Congress 
 of 1790, ch. 38, § 8; and the Circuit Courts 
 have jurisdiction of the oflFcnse. U. S. v. 
 Palmer, 3 Wheat. 610. 
 
 6. To constitute piracy under the act of 
 Congress of April 30th, 1790, ch. 9, the 
 intent must have been ardmus furandi ; 
 but personal violence is not necessary. U. 
 8. V. Tully, supra. The acts must have been 
 such as are perpetrated by citizens or on 
 vessels belonging to the United States. 
 U. S. V. Howard, 3 Wash. C. C. 340. 
 
 7. Any intercourse with pirates calculated 
 to further their views is within the act of 
 Congress of April 30th, 1790, § 12. A con- 
 federacy by citizens on land, or on board of 
 an American vessel, with pirates, or a yield- 
 ing up of a vessel to such pirates, is within 
 the 8th section of the same act. And an 
 attempt by a mariner to corrupt the master 
 of a vessel, and induce him to go over to 
 pirates, is also within such act. U. S. v. 
 Howard, supra. 
 
 8. The act of Congress of April 30, 1790, 
 § 8, punishes in the courts of the United 
 States a crew acting in defiance of all law, 
 and acknowledging allegiance to no govern- 
 ment. U. S. v. Klintock, supra. 
 
 9. The word " piratical," in the act of 
 Congress of March 3d, 1819, ch. 75, is not 
 restricted in its construction to such acts as 
 by the law of nations are denominated 
 piracy, but embraces such as pirates are in 
 the habit of committing. A piratical ag- 
 gression, search, restraint, or seizure is 
 within the meaning of the act; and inno- 
 cence or ignorance of the owner of the 
 vessel of such acts will not save it from 
 condemnation. U. S. v. Biig Malek Adhel, 2 
 How. U. S. 210. 
 
 10. To constitute a vessel piratical, it 
 makes no difiference whether she be armed 
 for offense or defense, provided she commit 
 the unlawful acts alleged. To bring a vessel 
 within the terms of the act of Congress of 
 March 3d, 1819, ch. 75, there need not be 
 either actual plunder or an intent to plunder. 
 It is sufiicient that the act is committed from 
 hatred, or an abuse of power, in a spirit of 
 mischief. U. S. v. Brig Malek Adhel, 
 svpra. 
 
 11. Privateers. There is no exception 
 in favor of commissioned privateers. U. 8. 
 V. Jones, 3 Wash. C. C. 209. And where an 
 American citizen fits out a privateer to cruise 
 against a power at peace with the United 
 States, he is not protected by a commission 
 from another belligerent power. U. S. v. 
 Pirates, 5 Wheat. 184. 
 
 12. But in a state of war between two 
 nations, a commission to a private armed 
 vessel from either of the belligerents afibrds 
 a defense in the courts of the enemy against
 
 516 
 
 PIRACY.— POUND BPtEACH.— PRESENTMENT. 
 
 Foreign Cruisers. 
 
 What Essential to. 
 
 What at Common Law. 
 
 a charge of robbery or piracy on the high voyage must have been uhdertaken with a 
 
 seas. U. S. v. Baker, 5 Bhitchf. 6. 
 
 13. Foreign cruisers. The courts of the 
 United States Tvill not treat as pirates the 
 cruisers of either of two nations who it is 
 well known are at war with each other, al- 
 though the independence of one of them has 
 not been acknowledged by our government. 
 The Josefa Segunda, 5 Wheat. 338 ; U. S. v. 
 Palmer, 3 Wheat. 610. 
 
 14. Robbery on foreign vessel. Robbery 
 committed by a person on the high seas, on 
 board of a ship or vessel belonging to sub- 
 jects of a foreign State, is not piracy. U. S. 
 V. Palmer, supra. 
 
 15. Seizure of piratical vessel. Pirates 
 may lawfully be cajjtured on the ocean by 
 the ships of any nation. The Marianna 
 Flora, 11 Wheat. 1. The vessel upon be- 
 coming a pirate loses her national character. 
 U. S. V. Pirates, 5 Wheat. 184. 
 
 16. Under the act of Congress of March 
 3d, 1819, ch. 75, punishing piracy, any 
 armed vessel may be seized and brought in, 
 or any vessel the crew of which are armed, 
 and which shall have attempted or commit- 
 ted any piratical aggression, search, re- 
 straint, depredation, or seizure upon any 
 vessel, and the offending vessel may be 
 condemned and sold, the proceeds to be 
 divided between the United States and the 
 captors, in the discretion of the court. U. S. 
 V. Brig Malek Adhel, 2 How. U. S. 210. 
 
 17. Indictment. Where the indictment 
 charged that the piracy was committed on 
 the high seas, within the admiralty and 
 maritime jurisdiction of a particular State, 
 it was held that the venue was well laid. 
 U. S. V. Gibert, 2 Sumner, 19. 
 
 18. Proof of character of vessel. On 
 the trial of an indictment for piracy, the 
 national character of the vessel need not be 
 proved by her register or by documentary 
 evidence. U. S. v. Pirates, 5 Wheat. 184. 
 
 19. Guilty knowledge and intent. To 
 convict persons of piracy, it must be proved 
 that they participated in the imlawful cap- 
 ture of property with a felonious intent. U. 
 S. v. Jones, 3 Wash. C. C. 231. 
 
 20. In order to make all the officers and 
 
 piratical design, and they must have known 
 and acted upon such design, otherwise those 
 only can be convicted who actively co-oper- 
 ated in the imlawful enterprise. U. S. v. 
 Gibert, 2 Sumner, 19. 
 
 21. Where a United States vessel was 
 attacked by an armed ship without felonious 
 intent, under the mistaken belief that she 
 was a piratical cruiser, it was held not a 
 piratical aggression within the acts of Con- 
 gress, nor to subject the ship if captured to 
 confiscation. The Marianna Flora, 11 
 Wheat. 1. 
 
 See Slave tkade. 
 
 See Homicide. 
 
 Jouub CvcacI), 
 
 What essential to. The driving or con- 
 veying away the imijounded cattle, is a 
 necessary part of the offense of pound 
 breach. State v. Young, 18 New Hamp^ 
 543. 
 
 Presentment 
 
 1. What at common law. A present- 
 ment at common law is the instruction given 
 by the grand jury to the proper officer of the 
 court for framing an indictment for an of- 
 fense which they find to have been com- 
 mitted. When the indictment prepared by 
 him and submitted to them has been found 
 a true liill, the presentment is merged in it. 
 Christian's Case, 7 Graft. G31. 
 
 2. How used in Virginia. In Virginia, 
 the presentment has been made the founda- 
 tion for a summons to show cause at the next 
 court why an information for the offense 
 presented should not be filed against the 
 accused. When an indictment has been 
 previously found, an information will not 
 be granted, although the indictment has 
 
 crew of a piratical vessel guilty, the original | been quashed for insufficiency. The pre-
 
 PEESENTMENT.— PUBLIC JUSTICE, OBSTRUCTION OF. 517 
 
 Finding and Entering of Record. 
 
 Indictment. 
 
 sentment, and not the time of filing the 
 information upon it, is deemed the date of 
 the prosecution. Ibid. 
 
 3. Finding and entering of record. A 
 presentment should be made in the presence 
 of the juiy, but need not be signed by all of 
 them. It should be handed to the court by 
 their foreman, and when entered of record 
 there need be no further proof of its authen- 
 ticity. State V. Cox, 6 Ired. 440. It is not 
 necessary to its validity that it should ap- 
 pear on the record m extenso. Com. v. 
 Tieman, 4 Graft. 545. 
 
 4. A presentment which was not found 
 upon the knowledge of the grand jury, or 
 any one of their number, but upon informa- 
 tion of a person who was not sworn before 
 the court, and sent to the grand jury pre- 
 vious to his being examined by them, will 
 be bad on a plea of abatement. State v. 
 Love, 4 Humph. 255. 
 
 |)rofanc Swearing, 
 
 1. How regarded. It is an indictable 
 offense to utter in a public place, in the 
 presence of others, profane and blasphemous 
 language. State v. Steele, 3 Heisk. 135. 
 
 2. "What deemed. Any words amounting 
 to an imprecation of future divine vengeance 
 will constitute the offense; and several dis- 
 tinct offenses may be committed by the same 
 individual in relation to the same person on 
 the same day, Holcomb v. Cornish, 8 Conn. 
 375. 
 
 3. Arrest of defendant. In Connecticut, 
 a justice of the peace who has plain view 
 and personal knowledge of the offense of 
 profane swearing, may arrest and commit 
 the offender without previous complaint or 
 Avarrant. Holcomb v. Cornish, supra. 
 
 4. Indictment. An indictment for pro- 
 fane swearing must allege that it was uttered 
 in the hearing of divers persons. An in- 
 dictment therefore was held insufficient 
 which charged that the defendant " in the 
 public streets of the town of L., with force 
 and arms, and to the great displeasure of 
 Almighty God, and the common nuisance of 
 all the good citizens? of the State then and 
 
 there being assembled, did for a long time, 
 to wit, for the space of twelve seconds, pro- 
 fanely curse and swear, and take the name 
 of Almighty God in vain, to the common 
 nuisance," &c. State v. Pepper, 68 N. C. 
 259; s. c. 2 Green's Crim, Reps. 738, note. 
 
 5. An indictment alleged that the defend- 
 ant did publicly, in the streets of the town 
 of L., profanely curse and swear, and take 
 the name of Almighty God in vain, to the 
 common nuisance of the good people of the 
 State then and there being and residing. 
 Held that no crime was charged. State v. 
 Powell, 70 N. C. 67; s. c. 2 Green's Crim. 
 Reps. 731 ; approving State v. Pepper, su- 
 pra. 
 
 6. An indictment which alleged that A., 
 at, &c., with force and arms, on, &c., did 
 publicly curse and swear, and take the name 
 of Almighty God in vain, for a long time, to 
 wit, for the space of two hours, to the com- 
 mon nuisance of all of the citizens of the 
 State, and against the peace and dignity of 
 the State, was held insufficient. State v. 
 Jones, 9 Ired. 38. 
 
 7. The whole conversation need not be set 
 out in the indictment ; but only so much of 
 it as clearly describes the language used. 
 State V. Steele, supra; approving State v, 
 Graham, 3 Sneed, 134. 
 
 See Blasphemy. 
 
 Prolusions. 
 
 See Unwholesome provisions, sale op. 
 
 Public Bribgc. 
 
 See Toll. 
 
 Public Justice, ©bstruc- 
 tion of. 
 
 Indictment. The dissuading, hindering 
 and preventing a witness from appearing at 
 court being an offense at common law, the 
 words " contrary to the form of the statute ''
 
 518 EAILROAD TKA1¥, UNLAWFUL STOPPING.— EAPE. 
 
 By Pulling Bell Rope. 
 
 What Constitutes. 
 
 may be rejected as surplusage. The indict- 
 ment need not state where the witness was 
 summoned, or when he was required to ap- 
 pear before the court, nor in whose behalf 
 he was summoned, nor that his testimony 
 was material. "Where the indictment Btates 
 facts showing the obstruction of " the due 
 course of justice," it need not show that the 
 trial was hindered or the result altered, nor 
 conclude "to the obstruction and hindrance 
 of public justice." Com. v. Reynolds, 14 
 Gray, 87. 
 
 Uailroab Strain, ilnlaivj- 
 fulln Stopping. 
 
 By pulling bell rope. In Massachusetts, 
 the defendant was indicted for obstructing 
 a train of cars by pulling the signal rope fast- 
 ened to a bell upon the engine, by which 
 act the train was stopped, and the safety of 
 the passengers endangered. It was proved 
 at the trial, that the defendant was a pas- 
 senger at the time of committing the offense, 
 and that the bell rope was ordinarily pulled 
 as a danger signal to notify the engineer to 
 stop the train. A majority of the court held 
 that the evidence was not sufficient to sus- 
 tain a conviction for a criminal obstruction 
 of the train, within the meaning of the stat- 
 ute (Gen. Stats, ch. 63, § 107) providing for 
 the punishment of a person who " obstructs 
 any engine or carriage passing upon a rail- 
 road, or endangers the safety of persons con- 
 veyed in or upon the same, or assists therein. 
 Com. V. Killian, 109 Mass. 345; s. c. 1 Green's 
 Crim. Reps. 192. 
 
 For olstructing railroad traci, see Nuisance. 
 
 Kapc. 
 
 1. What constitutes. 
 
 2. Who may commit. 
 
 3. Against whom offense may be 
 
 committed. 
 
 4. Indictment. 
 
 5. Evidence. 
 
 6. Verdict. 
 
 7. Assault with intent to com- 
 
 mit RAPE. 
 
 (a) What deemed. 
 {!)) Who may commit. 
 
 (c) Indictment. 
 
 (d) Evidence. 
 
 (e) Verdict. 
 
 if) Punishment. 
 
 1. What constitutes. 
 
 1. Meaning of. Rape is the carnal knowl- 
 edge of a female, forcibly, and against her 
 will. Charles v. State, 6 Eng. 389. 
 
 2. Must be force. Force, actual or con- 
 stractive, is essential to constitute rape. 
 Therefore an instruction that "if a man have 
 carnal knowledge of a woman against her 
 will, he may be convicted of rape," omitting 
 the word " forcibly," is insufficient. Cato 
 v. State, 9 Fla. 163. 
 
 3. The following charge on a trial for 
 rape, was held erroneous : " As to the degree 
 of force used in a case like this, where re- 
 sistance is not made by reason of a repre- 
 sentation leading the female to believe that 
 sexual penetration of her body is necessary 
 for the recovery from disease, the force used 
 in ordinary sexual intercourse is sufficient to 
 constitute a rape." Walter v. People, 50 
 Barb. 144. 
 
 4. Must have been resistance. The crime 
 of rape can only be committed when there is 
 on the part of the female, the utmost reluct- 
 ance, and the utmost resistance. State v. 
 Burgdorf, 53 Mo. 65; s. c. 2 Green's Crim. 
 Reps. 593. 
 
 5. The following instruction, on a trial for 
 rape, was held proper: "The jury must be 
 satisfied that the connection was had by 
 force, and against the will of the prosecu- 
 trix, and that there was the utmost reluct- 
 ance and resistance on her part, or that her 
 will was overcome by fear of the defendant ; 
 and if you entertain a reasonable doubt of 
 such reluctance and resistance, it is your 
 duty to acquit." Strang v. People, 24 
 Mich. 1. 
 
 6. In New York, to constitute the crime 
 of rape of a female over ten years of age, if 
 she is conscious of what is attempted, has 
 possession of her mental and physical pow- 
 ers, is not overawed by the number of assail- 
 ants, nor terrified by threats, nor in such
 
 EAPE. 
 
 519 
 
 ^Ayhat Constitutes. 
 
 place that resistance is useless, she must re- 
 sist until exhausted or overpowered. Peo- 
 ple 'V. Dohriug, 59 N. Y. 374. 
 
 7. Where female is insensible. Rape 
 may be committed by a man's having car- 
 nal intercourse with a woman while she is 
 wholly insensible, with such force as is nec- 
 essary to accomplish the purpose. Com. v. 
 Burke, 105 Mass. 376. 
 
 8. In New York, forcible carnal connec- 
 tion Avith a female who is insensible from 
 intoxication is not rape, but a crime under 
 the twenty-third section of the act respect- 
 ing oifenses against the person. People v. 
 Quinn. 50 Barb. 128. Where the evidence 
 showed that the female and the defendants 
 were drinking together voluntarily, and 
 afterward went out together without any 
 assignation or any consent on her part to 
 have sexual intercourse with them, and she 
 became insensible from the liquor, and while 
 in such condition the defendants violated 
 her person, it was held that they were not 
 guilty of rape. lb. 
 
 9. Purpose accomplished by fraud. 
 Where sexual intercourse is had with a 
 female through fraud, without force, it is 
 not rape. People v. Bartow, 1 Wheeler's 
 Crim. Cas. 378. 
 
 10. On a trial for rape, it was held that 
 the following request of the prisoner's coun- 
 sel of the court to charge was correct, and 
 that the jury should have been so instructed : 
 that " even if the defendant had accom- 
 plished his alleged purpose by fraud with- 
 out intending to use force, such fraud did 
 not constitute rape, unless the evidence 
 showed that the defendant intended to use 
 force if the fraud failed." Walter v. People, 
 50 Barb. 144. 
 
 11. Where female consented. Carnal 
 knowledge of the person of a female of 
 mature years, of good size and strength, 
 with her consent, and without fraud, she 
 being at the time laboring under dementia, 
 not idiotic, but approaching toward it, does 
 not constitute rape. Crosswell v. People, 13 
 Mich. 427. 
 
 12. In case of consent, the defendant 
 cannot be convicted, although such consent 
 was obtained by fraudulent representations. 
 
 Don Moran V. People, 25 Mich. 356; Lewis 
 V. State, 30 Ala. 54. 
 
 13. But although the female consented, 
 yet if her consent was obtained by the use 
 of force, and her will was overcome by fear 
 of personal injury, it is rape, and not seduc- 
 tion. Croghan v. State, 22 Wis. 444. 
 
 14. On a trial for rape, the court charged 
 the jury that if the prosecutrix consented 
 through fear, or consented after the fact, or 
 if, though she at first consented, she was 
 afterward forced, the oflFense was committed. 
 Held correct. Wright v. State, 4 Humph. 
 194. 
 
 15. On the trial of an indictment for rape 
 alleged to have been committed on a girl 
 twelve years of age, the court instructed the 
 jury that if the girl in the first instance con- 
 sented, and the defendant commenced the 
 sexual intercourse with her consent, but she 
 then withdrew her consent, and the defend- 
 ant, notwithstanding, forcibly continued the 
 intercourse, it was rape. Held that in con- 
 sideration of the age and physical strength 
 of the girl, and the relation she sustained 
 to the defendant (stepdaughter), there was 
 no error. State v. Niles, 47 Vt. 82. 
 
 16. The carnal knowledge of a female 
 under ten years of age is rape, although the 
 act be committed with her consent. Fizele 
 V. State, 25 Wis. 364 ; Williams v. State, 47 
 Miss. 609. 
 
 17. Penetration. Under the existing law 
 of North Carolina, the slightest penetration 
 is sutBcient to constitute rape. State v. ■ 
 Hargrave, 65 N. C. 466. 
 
 18. Emission. In Ohio, to constitute rape 
 there must have been emission. Blackburn 
 v. State, 23 Ohio, N. S. 102 ; referring to 
 Williams v. State, 14 Ohio, 222. It is not 
 so in Pennsylvania. Penn. v. Sullivan, 
 Addis. 143. 
 
 19. In North Cartilina, upon an indictment 
 under the statute (Rev. Code, ch. 34, § 5), 
 for carnally knowing and abusing a female 
 child under the age of ten years, it is neces- 
 sary to prove emission as well as penetra- 
 tion. State V. Gray, 8 Jones, 170. But under 
 the act of 1860-61 carnal knowledge of a 
 female is deemed complete upon proof of 
 penetration alone. State v. Hodges, Piiil.
 
 520 
 
 RAPE. 
 
 Who may Commit. Against whom Offense may be Committed. 
 
 Indictment, 
 
 N. C. 231 ; State v. Storkey, 63 N. C. 7. In 
 Alabama, proof of penetration alone is suffi- 
 cient. Waller v. State, 40 Ala. 325. 
 
 3. Who may commit. 
 
 20. Boy under fourteen. The presump- 
 tion that an infant under the age of fourteen 
 is incapable of committing, or attempting to 
 commit the crime of rape may be rebutted 
 by proof that he has arrived at the age of 
 puberty. Williams v. State, s?/^:*?-^ / see 2^ost, 
 sui. 123. 
 
 21. Persons assisting. ' In rape, all who 
 are present and participating in the outrage 
 are regarded as principals, and may be 
 jointly indicted. Strang v. People, 24 
 Mich. 1. 
 
 22. But it is improper for the court, on a 
 trial for rape, to refuse to charge the jury 
 that if they are satisfied, from the evidence, 
 that the defendant stood by at the time the 
 oflense was alleged to have been committed, 
 but did no act to aid, assist, or abet the 
 same, they should find the defendant not 
 guilty. People v. Woodward, 45 Cal. 293 ; 
 s. c. 2 Green's Crim. Reps. 421. 
 
 3. AcAIIiiST WHOM OFFENSE MAT BE COM- 
 MITTED. 
 
 23. With reference to age. A female 
 ceases to be ''a child," and becomes "a 
 woman,'' at the age of puberty, within the 
 meaning of the statute of Ohio, defining 
 the crime of rape. Blackburn v. State, 22 
 Ohio, N. S. 102; s. c. 1 Green's Crim. Reps. 
 660. 
 
 24. In jMaine, by statute (R. S. ch. 154, 
 § 17), rape consists in a man's ravishing and 
 carnally knowing any female of the age of 
 ten years, or more, by force and against her 
 will. State v. Blake, 39 Mains, 322. 
 
 2.5. The carnal knowledge of a female 
 under the age of ten years, is rape at com- 
 mon law. People v. McDonald, 9 Mich. 150. 
 A child under ten years of age, cannot con- 
 sent to sexual intercourse so as to rebut the 
 presumption of force. Whether the same 
 presumption does not exist in the case of a 
 child over that age who is equally imma- 
 ture— gwr^/. Stephen v. State, 11 Ga. 225. 
 
 4. T:SDICTMENT. 
 
 26. Parties. Two or more persons may 
 be joined in an indictment for rape. Denis 
 V. State, 5 Ark. 230. 
 
 27. Necessary averments. The words 
 "forcibly" and "against the will," are 
 essential in an indictment for rape. State 
 V. Jim, 1 Dev. 142. It is otherwise, as to 
 the word "unlawfully." Com. v. Bennett, 
 
 2 Va. Cas. 235; Weinzorflin v. State, 7 
 Blackf. 186. An indictaient for rape which 
 charges that the woman was gotten with 
 child, is not for that reason bad. U. S. v. 
 Dickinson, Hemp. 1. 
 
 28. Where an indictment for rape does 
 not charge that the assault was with the ^ 
 intent " feloniously " to ravish, it is insuffi- 
 cient. State V. Scott, 72 K C. 461. 
 
 29. In Massachusetts, in an indictment 
 for rape, the omission of the words ' ' felo- 
 nious " or " feloniously " and " with force 
 and arms " made the assault, is no longer a 
 ground for a motion in arrest of judgment. 
 R. S. ch. 137, § 14; Act of 1852, ch. 37, 
 § 3; Com. v. Scannel, 11 Cush. 547. 
 
 30. The word "ravish," is essential, in an 
 indictment for rape. Gougleman v. People, 
 
 3 Parker, 15. The words "carnal knowl- 
 edge " of a woman, by a man in an indict- 
 ment, mean sexual bodily connection. Com. 
 V. Squires, 97 Mass. 59. 
 
 31. In an indictment for rape, it is a suf- 
 ficient averment of force to allege that the 
 accused violently and against the will of the 
 woman "feloniously did ravish, and car- 
 qally know." Com. Fogerty, 8 Gray, 489. 
 
 / 32. An indictment for rape upon a child 
 jlcss than ten years of age need not allege 
 ithat the ofiense was committed "with 
 iforce," and " against the will" of the child, 
 ithe averment that she was of tender years 
 Ibeiug equivalent. State v. Black, 63 Maine, 
 
 jWo. 
 
 v^3. Name of person injured. Where 
 an indictment alleged that a rape was com- 
 mitted on Ellen Frances Davis, and it was 
 proved that her true name was Helen Fran- 
 
 ^'ces Davids, but that she went as much by 
 one name as the other, it was held that the 
 variance was immaterial. Taylor v. Com. 20 
 
 KGratt. 825.
 
 EAPE. 
 
 521 
 
 Indictment. 
 
 Evidence. 
 
 34. Averment of sex. In an indictment 
 for rape, the pronoun "her" sufficiently in- 
 dicates the sex, without expressly averring 
 that the person injured was a female; and 
 the indictment need not state that the per- 
 son injured was more than ten years of age. 
 Hill V. State, 3 Heisk. 317. 
 
 35. Where an indictment for rape did not 
 charge that the offense was committed on a 
 female, but the person was spoken of as 
 " Ellen Frances " and the personal pronoun 
 *' her " was twice used in the indictment, in 
 relation to such person, it was held sufficient. 
 Taylor y. Com. 20 Gratt. 825. 
 
 36. An indictment which alleged that 
 the prisoner ' ' with force and arms, in and 
 upon one Mary Ann Taylor, in the peace of 
 the State, violently and feloniously did 
 make an assault, and her the said Mary Ann 
 Taylor then and there, violently and against 
 her will, feloniously did ravish and carnally 
 know," charges with sutficient certainty 
 that the person assaulted was a female. 
 State V. Farmer, 4 Ired. 224. 
 
 37. In North Carolina, it was held that an 
 indictment under the statute (1 R. S. ch. 34, 
 § 5), for abusing and carnally knowing a 
 female child under the age of ten years, 
 need not describe the infant as " a female 
 child," nor apply to her the name of " spin- 
 ster." State V. Terry, 4 Dev. & Batt. 152. 
 
 38. In Virginia, where the indictment 
 instead of charging in the language of the 
 statute, that the offense was committed on 
 a woman child, alleged that the rape was 
 committed upon A. B.,a female child, it was 
 held good. Com. v. Bennett, 2 Va. Cas 
 235. 
 
 39. Description of female. An indict- 
 ment against A. and B., charging them 
 jointly with having carnal knowledge of C, 
 forcibly and against the will of the said C, 
 she "not being the daughter or sister of 
 them the said A. and B.," is not a sufficient 
 negative averment, for the reason that not- 
 withstanding such averment, tlie said C. may 
 be the daughter or sister of one of them. 
 Howard v. State, 11 Oliio, N. S. 328. 
 
 40. Averment of age. An indictment 
 for rape need not allege tliat the defendant 
 is fourteen years of age, nor that the person 
 
 upon whom the rape was committed, was 
 not the wife of the defendant. Com. v. 
 Scannel, 11 Cush. 547. 
 
 41. As rape may be committed upon a 
 female of any age, the averment that the 
 injured person is over the age of ten years, 
 is unnecessary and need not be proved. But 
 in a prosecution for the violation of a child 
 under ten, the age is material and must be 
 averred and proved. Mobley v. State, 4G 
 Miss. 501; State v. Farmer, 4 Ired. 224; 
 Bowles V. State, 7 Ohio, 243 ; People v. Ah 
 Yek, 29 Cal. 575 ; State v. Storkey, 63 N. 
 C. 7. 
 
 42. In Massachusetts, the allegation in an 
 indictment of having by force and against 
 her will, ravished and carnally known a fe- 
 male, is a sufficient description of the of- 
 fense ; and it is only necesssry to allege her 
 age when it is not alleged that the act was 
 against her will. Com. v. Sugland, 4 Gray, 7. 
 
 43. Charging different offenses. In Ten- 
 nessee, an indictment was held bad which 
 joined a count charging a negro with carnal 
 knowledge of a white female child under ten 
 years of age, with a count alleging the com- 
 mission of a rape upon a white female, the 
 offenses being different. State v. Cherry, 
 1 Swan, 160. 
 
 44. An indictment which charges a rape, 
 and an assault with intent to commit a rape, 
 is not bad as charging two ofienses. People 
 V. Tyler, 35 Cal. 553. 
 
 45. When barred. A conviction of an 
 attempt to commit a rape will bar an indict- 
 ment for rape ; the former offense being nec- 
 essarily included in the latter. State v. 
 Shepard, 7 Conn. 54. 
 
 5. Evidence. §/ 
 
 46. Of prosecutrix through interpreter. 
 
 Where the female is of sufficient age, and of 
 competent, though weak understanding, and 
 can communicate and receive ideas only by 
 signs, she may be sworn as a witness, and 
 examined through the medium of a person 
 who can understand her, who must be sworn 
 to interpret between her and the court and 
 jury. People v. McGee, 1 Denio, 19. 
 
 47. Proof of force. To convict of rape, 
 it need not be proved that the force em-
 
 522 
 
 EAPE. 
 
 Evidence. 
 
 ployed was sucb as to create a reasonable ap- 
 prehension of death on the part of the 
 ■woman. Waller v. State, 40 Ala. 325. 
 
 48. The following instruction on a trial for 
 rape was held appropriate and correct: 
 That the act of the defendant must have 
 been without the woman's consent, and there 
 must have been sufficient force used by him 
 to accomplish his purpose; that the jury 
 must be satisfied that there was no consent 
 during any part of the act ; and that the de- 
 gree of resistance was frequently an essen- 
 tial matter for them to consider in determin- 
 ing whether the alleged want of consent was 
 honest and real ; but that there was no rule 
 of law requiring a jury to be satisfied that 
 the woman, according to their measure of 
 her strength, used all the physical force in 
 opposition, of which she was capable. Com. 
 V. McDonald, 110 Mass. 405; s. c. 3 Green's 
 Crim. Eeps. 267. 
 
 49. If the female yield from terror, or the 
 dread of greater violence, the intimidation 
 is deemed equivalent to force. Where the 
 accused threw the woman several times upon 
 the floor, and then upon the bed, stripped her 
 clothes over her head, smothered her with 
 them, and attempted to gratify his passion 
 upon her, it was held that the court properly 
 refused to instruct the jury that in order to 
 convict the prisoner they must be satisfied 
 that when he had hold of her, he intended 
 to accomplish his purpose at all events, and 
 notwithstanding any resistance on her part. 
 Pleasant v. State, 8 Eng. 360. 
 
 50. The following evidence on a trial for 
 rape was held to have made out no ofiense 
 against the prisoner: That the defendant, 
 who was a physician, while attending the 
 plaintift' in a professional capacity, told her 
 that she had a disease of the womb, and that 
 a physical examination was necessary; that 
 she submitted with much reluctance; that 
 he had carnal connection with her on two oc- 
 casions while professing to be making such 
 examination ; that she was a single woman 
 thirty years of age; that the foregoing oc- 
 curred in the parlor of her brother's house 
 in the day time while the wife of her brother 
 was in an adjoining room; that she made no 
 outcry; that she believed that while the 
 
 plaintiff in error was doing these acts, he 
 was making a medical examination in the 
 usual way; and that she made no revelation 
 of these occurrences until after she had been 
 told that she was pregnant. Walter v. Peo- 
 ple, 50 Barb. 144. 
 
 51. The question whether or not a rape 
 could have been committed without resort 
 to other means than the exercise of the or- 
 dinary physical power of the prisoner, can 
 be answered by the jury without the aid of 
 an expert. Woodin v. People, 1 Parker, 
 464. 
 
 52. Proof of resistance. In New York, 
 to convict of rape under the statute (2 K. S. 
 663, § 22), it must be proved that there was 
 the utmost reluctance and resistance on the 
 part of the prosecutrix. People v. Morrison, 
 1 Parker, 625. 
 
 53. On a trial for rape, e\ndence that the 
 prosecutrix at the time of the outrage was in 
 feeble health, is admissible on the question 
 of her ability to make resistance, and also 
 the muscular power of her assailant. State 
 V. Knapp, 45 New Hamp. 148. 
 
 54. The force necessary to constitute rape, 
 and the resistance required, must depend 
 upon the mental and physical strength of 
 the parties, and the circumstances surround- 
 ing them. When the prosecution has shown 
 the idiocy of the prosecutrix, and force on 
 the part of the prisoner, and there is noth- 
 ing to show consent on her part, the offense 
 will be deemed to have been committed 
 against her will. State v. Tarr, 28 Iowa, 
 397, Cole, Ch. J., dissenting. 
 
 55. Proof of penetration. In Wiscon- 
 sin, on the trial of an indictment under the 
 statute (R. S. ch. 164, § 40), for unlawfully 
 knowing and abusing a female child under 
 ten years of age, penetration may be proved 
 from circumstances. Brauer v. State, 25 
 Wis. 413. 
 
 56. Guilty intent. On a trial for rape, 
 solicitations by the defendant more than six 
 months previous to the act charged, are ad- 
 missible in evidence, as showing a lustful in- 
 tent. State V. Knapp, supra. 
 
 57. Notwithstanding force is used, yet if 
 the assailant leave off upon resistance being 
 made by the woman, and not because of au
 
 EAPE. 
 
 523 
 
 Evidence. 
 
 interruption, it cannot be said that his in- 
 tention was to commit rape. Pleasant v. 
 State, 8 Eng. 360. 
 
 58. Age of female. Where on a trial for 
 carnally knowing and abusing a female 
 child, the exact age of the child was not 
 known, it was held proper to take the 
 opinion of medical experts as to her age. 
 State V. Smith, Phil. N. C. 302. 
 
 59. Place of transaction. On the trial 
 of an indictment for rape, a plan of the in- 
 terior of the house, drawn by the district 
 attorney from information derived from a 
 person conversant with the house, and au- 
 thenticated by the prosecutrix wlio lived in 
 the house, is admissible to enable her to 
 describe the localities. State v. Jerome, 83 
 Cona 265. 
 
 60. The place where a rape was alleged to 
 have been committed, having been changed 
 by an agent of the prosecution, immediately 
 before the place was viewed by the jury, it 
 was held that the burden was upon the 
 State to satisfy the court that the defendant 
 was not prejudiced by the change. State v. 
 Knapp, 45 New Hamp. 148. 
 
 61. Complaint of female. On a trial for 
 rape, the request of the female to the wit- 
 ness, to go before a magistrate and report 
 the offense, is competent evidence to prove 
 complaint made. Smith v. State, 47 Ala. 
 540. 
 
 62. The fact that a female complaining 
 that a rape was committed upon her, did 
 not make known the outrage until a long 
 time after its alleged occurrence, does not 
 raise a presumption of law that the charge 
 is false, but an inference of fact to be passed 
 upon by the jurj'. State v. Peter, 8 Jones, 
 19. Mere lapse of time cannot therefore be 
 made the test of the admissibility of evidence 
 on this point. State v. Niles, 47 Vt. 82. 
 
 63. On a trial for rape, it was proved that 
 the prosecutrix arrived in the city of New 
 York an entire stranger, and that having 
 lost her baggage, she was inveigled into a 
 basement under the promise of recovering it, 
 and there ravished ; that when she regained 
 the street she met a woman, who asked her 
 what was the matter, and a policeman who 
 took her to the station house, to neither of 
 
 whom she disclosed what had occurred ; but 
 that shortly after arriving at the station 
 house she stated the facts to the police cap- 
 tain, and the accused was arrested. Held 
 not error in the court to refuse to charge 
 that the disclosure was not sufficiently 
 prompt. Higgins v. People, 58 N. Y. 877. 
 
 64. On the trial of an indictment for rape, 
 the prosecutrix, who was the only witness, 
 testified that the offense was committed 
 about nine o'clock in the morning, near a 
 road which was being continually traveled ; 
 that the wife and mother-in-law of the de- 
 fendant were in sight; that the prosecutrix 
 did not make an outcry ; that she got up,. 
 finished getting wood, and went to washing 
 near the defendant's house ; that she told 
 no one until four days afterward, when she 
 informed her sister-in-law; and that her 
 father was not told until after she discov- 
 ered she was pregnant. Held that there 
 was not sufficient evidence to sustain a con- 
 viction. Crockett v. State, 49 Ga. 185. 
 
 65. Whether proof of a complaint made 
 more than three weeks after the alleged out- 
 rage, especially when forced from the prose- 
 cutrix by her mother, after the daughter 
 had once declared that her injury was due 
 to a fall, should have been received — query. 
 Baccio V. People, 41 N. Y. 265. 
 
 66. Particulars of complaint of female, 
 not admissible. The fact that the woman 
 made complaint soon after the offense was 
 committed, is admissible in evidence; but 
 not the particulars of her complaint, and she 
 can only be permitted to name the prisoner 
 as the person who committed the injury, for 
 the purpose of his arrest. Stephen v. State, 
 11 Ga. 225. 
 
 67. The rule is, that it is competent to- 
 prove that the person upon whom a rape is 
 alleged to have been committed, made a 
 complaint, without giving the particulars, 
 and that an individual, without naming 
 him, was charged with its commission. 
 State V. Niles, 47 Vt. 82 ; Baccio v. People, 
 sxtpra; Lacy v. State, 45 Ala. 80 ; State v. 
 Richards, 33 Iowa, 420 ; State v. Shettle- 
 worth, 18 Minn. 208. 
 
 68. It is usual to ask the prosecutrix on 
 her direct examination, whether she made
 
 ,524 
 
 EAPE. 
 
 Evidence. 
 
 complaint, and to receive in answer simply 
 yes or no. Such statement is only corrobo- 
 rative of her testimony, and not evidence 
 upon which the jury can predicate a verdict 
 of guilty ; and when she is not a witness it 
 Is inadmissible. Thompson v. State, 38 Ind. 
 39. 
 
 ■" "B9. Reasons for delay in making com- 
 plaint. On a trial for rape it is proper to 
 show the reasons for delay on the part of 
 the i^rosecutrix, in making complaint ; 
 whether caused by the threats of the pris- 
 oner, inability by reason of the violence, 
 want of opportunity, or the fear of injury 
 hj the communication to the only persons 
 at hand. State v. Knapp, 45 New Hamp. 
 148. 
 
 ~^0. On the trial of an indictment for rape, 
 evidence as to the appearance of the prose- 
 cutrix nearly two weeks after the alleged 
 outrage, and that she seemed " to be down 
 hearted and gloomy, as though there was 
 something she wanted to tell, but dare not," 
 may be admissible in connection with other 
 facts to excuse her delay in making com- 
 plaint; and where the bill of exceptions 
 does not purport to state all the testimony, 
 it will be presumed that there was testimony 
 which rendered such evidence admissible. 
 State V. Shettle worth, siqrra. 
 
 71. Reason of complaint. Where on a 
 trial for rape, a witness testified that the 
 prosecutrix made complaint soon after the 
 offense was alleged to have been committed, 
 it was held error to exclude on his cross- 
 examination testimony tending to show that 
 between the time the offense was alleged to 
 have been committed and the time of the 
 complaint, the prosecutrix had been told 
 that the act of sexual intercourse, consti- 
 tuting the alleged crime, had been seen by 
 other persons. McFarland v. State, 24 Ohio, 
 K S. 329. 
 
 72. Admissions acd declarations of 
 prosecutrix. On a trial for rape, mere 
 admissions of the prosecutrix, which are 
 not part of the res gestae^ are hearsay and 
 not competent evidence to prove the fact of 
 illicit intercourse by her with the defend- 
 ant or others. State v. Shettleworth, 18 
 Minn, 208. 
 
 73. Upon the trial of an indictment for 
 rape, the declarations of the prosecutrix im- 
 mediately after the alleged outrage, are not 
 admissible to prove the offense; and it is 
 the same, though it appear that the female 
 is incompetent to testify on account of im- 
 mature age, idiocy, or other mental defect. 
 People V. McGee, 1 Denio, 19. 
 
 74. The declarations of the prosecuting 
 witness made immediately or soon after the 
 commission of an alleged rape, are admissi- 
 ble in evidence, not as evidence of the guilt 
 of the defendant, but to remove from the 
 testimony of the prosecuting witness, siis- 
 picion that might otherwise rest upon it. 
 Laughlin v. State, 18 Ohio, 99; Johnson v. 
 State, 17 lb. 593 ; McCombs v. State, 8 Ohio, 
 K S. 643 ; Burt v. State, 23 lb. 394 ; s. c. 2 
 Green's Crim. Reps. 543. 
 
 75. Where on a trial for rape, the guilt of 
 the accused rests on the oath of the prose- 
 cutrix, the testimony of a witness that she 
 showed witness a garment with blood and 
 mud on it, which she said was worn by her 
 at the time of the rape (the witness not 
 knowing whether or not the garment was 
 worn as stated), is only admissible as a part 
 of the complaint. Leoni v. State, 44 Ala. 
 110. 
 
 76. Declarations of husband of prose- 
 ecutrix. Where on a trial for rape, it ap- 
 peared that the husband of the woman was 
 present at the outrage, and also the next 
 morning when she related to a third per- 
 son what had occurred, it was held com- 
 petent to prove by the husband that he told 
 such third person M'bat had happened, with- 
 out giving in evidence the details of the 
 conversation. Conkey v. People, 5 Parker, 
 31 ; affi'd 1 N. Y. CtAi^p. Decis. 418. 
 
 77. Where on a trial for rape, the female 
 is examined as a witness, the acts and decla- 
 rations of her husband are not admissible in 
 evidence to discredit her. State v. Jeffer- 
 son, 6 Ired. 305 ; McCombs v. State, 8 Ohio, 
 K S. 643. 
 
 78. Presumptions. The facts that the 
 prosecutrix immediately made complaint, 
 her appearance, and whether she bore u pon 
 her person marks of violence, are important; 
 and any evidence showing that she feared
 
 EAPE. 
 
 525 
 
 Evidence. 
 
 danger to life or limb if she resisted, is ad- 
 missible, although it show a distinct outrage 
 of a similar character previously committed. 
 Strang v. People, 24 Mich. 1. 
 
 79. The fact that an alleged rape was 
 not communicated to any one for a long 
 time, affords a strong presumption that the 
 charge is false. Higgius v. People, 8 N. Y. 
 Supm. N. S. 307 ; 58^N. Y. 377. 
 
 80. On a trial for rape, the relationship 
 between the prosecutrix and defendant is 
 material, as bearing upon the reasonableness 
 of the woman's story, and upon the proba- 
 bility of the resistance having been all that 
 was to have been expected. Strang v. Peo- 
 ple, supra. 
 
 81. In Mississippi, on the trial of a guard- 
 ian for rape upon his ward, it was held 
 that the entire record of his proceedings as 
 guardian, in the probate court, including his 
 accounts and settlements and appropriations 
 of the ward's property, was admissible ; and 
 that if any portion of the record was irrele- 
 vant, objection must be made to that part, 
 and not to the whole. Sharkey, 0. J., dis- 
 senting, held that such evidence was inad- 
 missible as calculated to prejudice the jury 
 against the prisoner, by showing that he 
 had squandered the property of his ward. 
 Tenney v. State, 8 Smed. & Marsh. 104, 
 
 82. On a trial for rape, the conduct of the 
 prisoner immediately after the perpetration 
 of the offense, is admissible in evidence to 
 show that his connection with the woman 
 was effected by violence and threats calcu- 
 lated to alarm and terrify her. Conkey v. 
 People, 5 Parker, 31 ; affi'd 1 N. Y. Ct. of 
 Appeals Decis. 418; Strang v. People, 
 supra. 
 
 83. A female under the age of ten years 
 is presumed incapable of consenting to an 
 act of carnal knowledge, or an assault with 
 intent to commit the act. The evidence to 
 rebut this presumption need not show her 
 ability beyond a reasonable doubt. A pre- 
 ponderance of evidence is sufficient. O'Meara 
 V. State, 17 Oliio, N. S. 515; Moore v. State, 
 lb. 521. In Michigan, it has been held that 
 in case of the carnal knowledge of a female 
 under ton years of age, no evidence will be 
 
 received to repel the presumption of force 
 and want of consent. People v. McDonald, 
 9 Mich. 150. 
 
 84. On the trial of an indictment for rape 
 alleged to have been committed by a negro 
 on a white woman, it was held error in the 
 court to refuse to charge that the jury should 
 acquit the prisoner unless the prosecution 
 proved to their satisfaction that the person 
 upon whom the assault was committed was 
 a white woman, and that the fact that the 
 jury had seen her, or been acquainted with 
 her, or heard her testify, would not dispense 
 with such proof. But in the same case, it 
 was held that the jury might infer that the 
 prosecutrix was a white woman, from her 
 appearance on the stand and from her refer- 
 ence during her examination as a witness, to 
 her domestic relations. Charles v. State, (> 
 Eng. 389. 
 
 85. On the trial of a negro for rape, the 
 prisoner's counsel asked the court to charge 
 the jury that in order to convict, the prose- 
 cution must prove that the prisoner was a 
 negro, and that though he was black, their 
 seeing him was no proof that he was a 
 negro. Held that as the instruction asked 
 for assumed that the prisoner was black, the 
 presumption that he was a negro would pre- 
 vail, and that the instruction was properly 
 refused. Ibid. 
 
 86. Bad character of prosecutrix. On 
 a trial for rape, the character of the prose- 
 cutrix for chastity cannot be impeached by 
 evidence of particular acta of unchastity, 
 but only by general evidence in that respect. 
 Nor can evidence be given as to jjrevious 
 sexual intercourse with persons other than 
 the accused. McCombs v. State, 8 Ohio, 
 K S. 643; McDermott v. State, 13 lb. 332; 
 People V. Jackson, 3 Parker, 391, overruling- 
 People V. Abbott, 19 Wend. 192; State v. 
 Knapp, 45 New Hamp. 148; Com. v. Regan, 
 105 Mass. 593. 
 
 87. But where on a trial for rape the 
 prosecutrix testified that she became in- 
 sensible and did not know whether the 
 accused consummated the act or not, and 
 the prosecution introduced a medical wit- 
 ness who swore that he examined her three 
 weeks after the alleged outrage, and that
 
 52C 
 
 RAPE. 
 
 Evidence. 
 
 she then bore the marks of having had 
 previous carnal intercourse with some man, 
 it was held competent for the defense in re- 
 buttal to prove either a previous voluntary 
 connection with the accused or particular 
 instances of unchastity with any other man. 
 Shirwin v. People, 69 111. 55. 
 
 88. On a trial for rape, the accused may 
 introduce evidence to show that the com- 
 plainant was in the habit of receiving men 
 at her house for the purpose of promiscuous 
 intercourse with them. Whether evidence 
 of particular acts of unchastity by her is 
 competent — query. Woods v. People, 55 
 N. Y. 515; 1 N. Y. Supm. N. S. 610; s. c. 1 
 Green's Grim. Reps. 659. See People v. 
 Abbott, supra ; Campbell v. State, 3 Kelly, 
 417. 
 
 89. In Michigan, on a trial for rape, it is 
 competent to prove criminal intercourse be- 
 tween the prosecutrix and a person other 
 than the defendant for purposes of impeach- 
 ment, but not particular facts from which 
 such intercourse may be inferred. Strang 
 V. People, 24 Mich. 1. In Galifornia, evi- 
 dence of particular acts of lewdness on the 
 part of the prosecutrix is admissible for the 
 purpose of disproving the allegation of 
 force. People v. Benson, 6 Gal. 221. 
 
 90. In Alabama, where the parts of a child 
 upon whom it was charged the piisoner 
 attempted to commit a rape were shown to 
 be bruised and infected with the venereal 
 disease, proof of sexual intercourse between 
 her and other persons before and near the 
 time of the commission of the alleged 
 offense was held competent as tending to 
 weaken the force of these circumstances. 
 Nugent V. State, 18 Ala. 521. 
 
 91. In Vermont, it has been held that on 
 a trial for rape or incest, the prosecutrix 
 may be asked on her cross-examination 
 whether she did not have sexual intercourse 
 with other men both before and after the 
 alleged oflfense. State v. Johnson, 28 Vt. 
 512, Benui'tt, J., dissenting; approved in 
 State V. Reed, 39 Vt. 417. 
 
 92. In North Carolina, it was held on a 
 trial for rape that the defendant might 
 prove that the woman had been his concu- 
 bine, or that he had been allowed to take 
 
 indecent liberties with her, but not that she 
 had had criminal intercourse with one or 
 more particular individuals. State v. Jeffer- 
 son, 6 Ired. 305. 
 
 93. In the same State, it was held proper 
 on a trial for rape to ask the prosecutrix if 
 she had not been delivered of a bastard 
 child, and if she had not had sexual inter- 
 course with other men, and the error of ex- 
 cluding such testimony is not cured by per- 
 mitting the prisoner to show the same by 
 other witnesses. State v. Murray, 63 N. C. 
 31. See Higgins v. People, 8 N. Y. Supm. 
 N. S. 307; 58 N. Y. 377. 
 
 94. On a trial for rape, the defendant 
 sought to lay the foundation for an infer- 
 ence of voluntary intercourse between him 
 and the prosecutrix while she lived at the 
 house of his father, by inquiring of the latter 
 as to her habits of following the defendant 
 around the house. The judge in ruling out 
 the evidence said : " I do not think it com- 
 petent, and even if she did follow him, it 
 would not show that she wanted a rape 
 committed upon her." Held that the evi- 
 dence was competent and the remark of the 
 judge improi^er. Shirwin v. People, 69 111. 
 55. 
 
 95. The magistrate before whom the com- 
 plaint was made is not a competent witness 
 to prove what the prosecutrix swore to before 
 him as to her having had previous inter- 
 course with other men, unless the inquiry is 
 made for the purpose of impeaching her 
 testimony. People v. Abbott, 19 Wend. 
 192. 
 
 96. Where on a trial for rape, a witness 
 swore that he had heard three or four per- 
 sons who lived in an adjoining town speak 
 of the character of the prosecutrix for chas- 
 tity, but did not know what the people in 
 her neighborhood said, it was held that the 
 evidence was properly rejected. Conkey v. 
 People, 5 Parker, 31 ; affi'd 1 N. Y. Ct. of 
 App. Decis. 418. 
 
 97. On a trial for rape, it was held com- 
 petent for the defendant to prove, as tending 
 to show the general immoral character of 
 the prosecutrix, that she was a woman of 
 drunken and dissipated habits, sleeping 
 generally in the hallway of a tenement
 
 RAPE. 
 
 527 
 
 Evidence. 
 
 house, and accustomed to go in tbere at two 
 or three o'clock in the morning. Brennan 
 V. People, 14 N. Y. Supm. N. S. 171 ; citing 
 Woods V. People, 55 N. Y. 171. ■ 
 
 98. On a trial for rape, the defendant, for 
 the purpose of impeaching the character of 
 the prosecutrix, asked her on cross-examina- 
 tion whether she did not go with him to a 
 liquor shop and drink, and whether she did 
 not go to a lumber yard with him and there 
 solicit him to have carnal intercourse with 
 her. The judge ruled that the cross-exam- 
 ination in this respect was upon matters 
 immaterial to the issue, and that there could 
 be no contradiction of the replies. Held 
 error. Brennan v. People, supra. 
 
 99. It is not a ground of exception that 
 the court, on a trial for rape, refused to 
 permit the prosecutrix to be asked, on cross- 
 examination, whether she had been at some 
 previous time a common seller of intoxicat- 
 ing liquor in violation of law. Com. v. Mc- 
 Donald, 110 Mass. 405; s. c. 2 Green's Crim. 
 Reps. 267. 
 
 100. Good character of prosecutrix. On 
 a trial for rape, proof of the good character 
 of the prosecutrix is admissible to sustain 
 her credibility. Tenney v. State, 8 Smed. & 
 Marsh. 104. 
 
 101. On a trial for rape, it is not compe- 
 tent for the prosecution to rebut proof of the 
 general reputation of the prosecutrix, by 
 showing that some of the reports prejudicial 
 to her were false ; for the reason that such 
 testimony would raise collateral issues, and 
 would not show that such reports were not 
 in general circulation, or that they were not 
 generally accredited. McDermott v. State, 
 13 Ohio, N. S. 332. 
 
 102. On the trial of an indictment for 
 rape charged to have been committed on 
 board a vessel, the defendant attempted to 
 discredit the testimony of the complainant 
 by showing that her story was improbable 
 in itself, inconsistent with her conduct on 
 board the vessel, and contradicted by state- 
 ments made by her out of court. Ueld that 
 this was not an attack upon the complain- 
 ant's general character, and therefore that 
 evidence of her good character was not ad- 
 
 missible. People V. Hulse, 3 Hill, 309, Cowen, 
 J., dissenting. 
 
 103. Character of defendant. Where, 
 on a trial for rape, the defendant introduced 
 witnesses as to his reputation for morality 
 as well as chastity, it was held proper, 
 on cross-examination, to inquire as to the 
 defendant's reputation for selling liquor 
 without license. State v. Knapp, 48 New 
 Hamp. 145. 
 
 104. Identity of defendant. Where, on 
 a trial for rape, the prosecution seeks to show 
 the identity of the prisoner with the person 
 who committed the offense, by evidence of a 
 fresh pursuit from a description of the of- 
 fender by the prosecutrix, and of inquiries 
 made by the pursuer for him by describing his 
 dress, the prisoner may show what inquiries 
 were made, and that the dress described was 
 different from the one worn by him. Com. 
 V. Reardon, 4 Gray, 420. 
 
 105. Consent of female. On a trial for 
 rape the defense may ask the prosecution, on 
 cross-examination, whether the treatment 
 complained of " was with her consent or 
 against her will." Woodin v. People, 1 
 Parker, 464. 
 
 106. In Iowa, the offense of forcible de- 
 filement, under the Code (§ 2582), lies in 
 doing the act against the will of the other 
 person, with force, menace, or duress. . The 
 defendant is not obliged to prove consent; 
 but the prosecution must show that there 
 was dissent and repulsion. Pollard v. State, 
 2 Clarke, 567. 
 
 107. Weight of evidence. On the trial 
 of an indictment for rape, the question of 
 guilt or innocence is not to be measured by 
 the character of the proof, whether positive 
 or negative, but the jury should be left to 
 consider the whole evidence. Innis v. State, 
 42 Ga. 473. 
 
 108. On a trial for rape, the prosecutrix 
 testified that as soon as practicable after the 
 outrage slie told her husband, her mother, 
 and others ; and she was corroborated by the 
 testimony of her husband as to the disclos- 
 ures made by her to him. Held that the 
 court properly charged the jury that it was 
 not necessary for the prosecution to call the 
 other persons referred to as witnesses, if the
 
 528 
 
 EAPE. 
 
 Evidence. Verdict. Assault with Intent to Commit F^ape. 
 
 What Deemed. 
 
 jury -were satisfied that the prosecutrix or 
 her husband had testified truly in regard to 
 the complaint made by her. Woodin v. 
 People, 1 Parker, 464. 
 
 109. On the trial of an information for 
 carnally knowing and abusing a female 
 child nine years of age, the testimony of the 
 child need not be corroborated by proof of 
 an examination of her person at the time of 
 the outrage, or by medical testimony. State 
 V. Lattin, 39 Conn. 389. 
 
 6. Verdict. 
 
 110. Where different .grades of offense 
 are charged. The charges in an indictment 
 were : 1st, rape against C. and H. ; 2d, rape 
 against C, and against H. for assisting C. 
 in committing a rape ; 3d, assault and bat- 
 tery against C. and H.,with intent to commit 
 a rape. The jury rendered the foUomug 
 verdict : " We find the prisoners at the bar 
 guilty of the offense charged in the indict- 
 ment." Held that it was competent for the 
 court to pass judgment on the count charg- 
 ing the highest grade of offense. Conkey v. 
 People, 5 Parker, 31 ; affi'd 1 N. Y. Ct. of 
 AjDp. Decis. 418. 
 
 ill. For lesser offense. Under an in- 
 dictment for rape, the prisoner may be 
 convicted of an attempt to commit rape. 
 Com. V. Cooper, 15 Mass. 187. It will not, 
 therefore, vitiate the verdict to swear the 
 jury to try the prisoner for the attempt, as 
 well as for the rape. Stephen v. State, 11 
 Ga. 225. 
 
 112. In Massachusetts, where a nolle 
 prosequi is entered on an indictment for 
 rape, the defendant may, under the statute 
 (Gen. Stats, ch. 173, § 16), be convicted of a 
 simple assault, but not of an assault not 
 connected with the rape originally charged. 
 Com. V. Dean, 109 Mass. 349 ; s. c. 1 Green's 
 Crim. Reps. 195, See Com. v. Drum, 19 Pick. 
 479. 
 
 113. Where, on a trial for rape, the jury 
 find the prisoner guilty of an assault with 
 attempt to commit a rape, it is tantamount 
 to a verdict of guilty of an assault with 
 intent to commit a rape. Prince v. State, 35 
 Ala. 867. 
 
 114. For different offense. In Massachu- 
 
 setts, under the statute (E. S. ch. 137, § 11), 
 a person indicted for a rape upon his daugh- 
 ter may be convicted of incest. Com. v. 
 Goodhue, 2 Mete. 193. 
 
 7. Assault with lntent to commit rape. 
 {a) What deemed. 
 
 115. Must have been rape if the pur- 
 pose had been accomplished. To sustain 
 an indictment for an assault with intent to 
 commit a rape, it must be shown that the 
 offense would have been rape, if the defend- 
 ant had carried his intention into effect. 
 Sullivant v. State, 3 Eng. 400. 
 
 116. Intention to employ force requisite. 
 A negro entered a room where a school-girl 
 was sleeping, partly undressed himself, and 
 tried to get on her; she awoke, screamed, 
 and he ran away. Having been found 
 guilty of an assault with intent to commit 
 rape, a new trial was granted on the ground 
 that it did not ajopear that the prisoner in- 
 tended to accomjjlish his purpose by force. 
 Charles v. State, 6 Eng. 389. 
 
 117. In Virginia, on th^. trial of an indict- 
 ment against a free negro, it was proved that 
 the prisoner, not intending to have carnal 
 knowledge of the woman by force but while 
 she was asleep, got into bed with her, and 
 pulled up her night dress which waked her, 
 but used no force. Held not an attempt to 
 commit rape within the meaning of the 
 statute. Field's Case. 4 Leigh, 648. 
 
 113. Leaving off on account of resist- 
 ance will not excuse. Where a person 
 intended forcibly to know a woman carnal- 
 ly, and against her will, and made an effort 
 to accomplish his purpose, the mere desist- 
 ing from further effort on account of resist- 
 ance, inability to overcome resistance, or 
 from fear, will not relieve him from the guilt 
 of an assault with intent to commit rape. 
 Taylor v. State, 50 Ga. 79. 
 
 119. A negro in the night, entered a room 
 by raising a w'indow where a girl thirteen 
 or fourteen years of age was sleeping, and 
 got into l)ed with her. Upon her making 
 an outcry which was responded to from 
 another room where her uncle slept, the ne- 
 gro fled through the window. Held that 
 a conviction for an assault with intent to
 
 EAPE. 
 
 529 
 
 Assault with Intent to Commit Rape. 
 
 Who may Commit. 
 
 Indictment. 
 
 commit a rape was proper. Sharpe v. State, 
 48 Ga. 16. 
 
 120. Consent of female. The subsequent 
 yielding and consent of the womaa to the 
 sexual intercourse is not a legal excuse to 
 the consummated offense of an assault with 
 an intent to commit a rape. State v. Har- 
 tigan, 33 Vt. 607. 
 
 121. But where, on a trial for an assault 
 with intent to commit a rape, it appears 
 that the woman consented without being 
 induced to do so by force or fear, the accused 
 cannot be convicted. Hull v. State, 22 Wis. 
 580. 
 
 122. There is no such crime known to the 
 law of Ohio, as an assault with iutent to 
 carnally know and abuse a child under ten 
 years of age with her consent. O'Meara v. 
 State, 17 Ohio, N. S. 515. 
 
 (5) Who WMy commit. 
 
 123. Boy under fourteen. An infant 
 under the age of fourteen, may be convicted 
 of an assault with intent to commit rape. 
 Com. V. Green, 2 Pick. 380. See ante, sub. 
 20. 
 
 124. Person standing by. On the trial 
 of an indictment for an attempt to commit 
 rape, it is error to refuse to charge the juiy, 
 that if the defendant stood by when the of- 
 fense was committed, but did no act to aid, 
 assist, or abet the same, he could not be 
 found guilty. People v. Woodward, 45 Cal. 
 293. 
 
 (c) Indictment. 
 
 ^ 125. Description of female. An indict- 
 /ment charging that "A. B., late of said 
 county, in and upon C. D. (she the said C. D. 
 then and there being a female child under the 
 age of ten years), feloniously did make an as- 
 sault, and her the said C. D. did then and 
 there feloniously abuse, in the attempt car- 
 nally to know," is bad in not describing with 
 sufficient certainty the person upon whom 
 the attempt was made. Nugent v. State, 19 
 Ala. 540. 
 
 126. Where an indictment charged that 
 "A. Hunt, in and upon P. Harvey, did make 
 and assault, and her the said A. Hunt, then 
 and there did beat, wound and ill treat, 
 with an intent her the said P. Harvey to 
 34 
 
 ravish," it was held that the words " her the 
 said A. Hunt then and there," might be re- 
 jected as surplusage. Cora. v. Hunt, 4 Pick. 
 252. 
 
 127. Must charge that force was used. 
 An indictment for an assault with an intent 
 to commit a rape which for the words "l)y 
 force," substitutes the word "violently " is 
 fatally defective. State v. Blake, 39 Maine, 
 322. 
 
 128. An indictment alleged that the de- 
 fendant did unlawfully and feloniously as- 
 sault one H. D., Avith intent to outrage her 
 person, by throwing her on her back and 
 attempting to have sexual intercourse with 
 her. Held that it did not charge an assault 
 with intent to commit rape, but only an as- 
 sault. People v. O'Neil, 48 Cal. 257. 
 
 129. An indictment for an assault with 
 intent to commit rape is good which alleges 
 that " A. B., with force and arms, in and 
 upon one J. D., a female twenty-one years of 
 age, and not the wife of the said A. B., fe- 
 loniously did make an assault with intent 
 then and there to commit an act of sexual 
 intercourse with the said J. D., by force and 
 violence against her will ; " without charg- 
 ing that the force and violence were against 
 her resistance. People v. Brown, 47 Cal. 
 447; s. c. 2 Green's Crim. Reps. 456. 
 
 130. In Connecticut, under the statute 
 (R. S. tit. 6, § 18), providing that "every 
 person who shall, with actual violence, make 
 an assault upon the body of any female with 
 intent to commit a rape shall suffer impris- 
 onment," &c., any language in the informa- 
 tion, which expressly, or by necessary im- 
 plication, imports and charges the exertion 
 of physical force upon the female is suffi- 
 cient. State V. Wells, 31 Conn. 210. 
 
 131. Technical averments. An indict- 
 ment for an assault with intent to commit a 
 rape, must contain the technical word " rav- 
 ished," and state that it was attempted to 
 be done forcibly and against the will of the 
 female. SuUivant v. State, 3 Eng. 400. 
 
 132. But in Virginia, under the statute, 
 an indictment for an attempt to commit a 
 rape is sufficient which charges an attempt 
 "feloniously carnally to know," omitting 
 the word "ravish." Christian v. Com. 23
 
 530 
 
 EAPE. 
 
 Assault with Intent to Commit Rape, 
 
 Indictment. 
 
 Evidence. 
 
 Gratt. 954, Anderson and Moncure, JJ., 
 contra ; s. c. 3 Green's Crim. Reps. 659. 
 
 133. An indictment for an assault with 
 intent to commit a rape, which alleges that 
 tlie defendant made the assault with intent 
 feloniously to ravish, is bad. It ought to 
 charge that the assault was made feloniously. 
 Williams v. State, 8 Humph. 585. 
 
 134. An indictment for an assault on a 
 child under ten years of age "with intent 
 feloniously to ravish and carnally know," 
 was held good ; as the words "to ravish," 
 might be regarded as surplusage. McComas 
 v. State, 11 Mo. 116. 
 
 135. An indictment for an assault and 
 battery with intent to commit a rape, which 
 omits the word "unlawfully" or "felo- 
 niously," although bad as to the intent 
 charged, may be sustained as to the assault 
 and battery. McGuire v. State, 50 Ind. 284. 
 
 136. Unnecessary averments. In Ten- 
 nessee, it has been held that an indictment 
 for an assault with intent to commit a rape, 
 need not allege that the assault was felo- 
 niously committed. Jones v. State, 3 Heisk. 
 445. 
 
 137. An indictment for abusing a female 
 child, which alleges that she was under ten 
 years of age, is sufficient without the words 
 " she then and there being" after the first 
 mention of the name. Com. v. Sullivan, 6 
 Gray, 477. 
 
 138. In an indictment for an assault with 
 intent to commit a rape, there need not be 
 an averment as to the age of the female, 
 although she is under ten years of age. 
 O'Meara v. State, 17 Ohio, N. S. 515. 
 
 ((7) Evidence. 
 
 139. Prosecutrix need not be a witness. 
 An assault and battery with intent to com- 
 mit a rape, may be proved without the 
 testimony of the injured party. People v. 
 Bates, 2 Parker, 27. 
 
 140. Proof of violence. Where there is 
 evidence of no act of violence, struggle, or 
 outcry, and of no attempt to restrain or 
 confine the person of the prosecutrix, the 
 prisoner cannot be convicted of an assault 
 with intent to commit a rajie. Com. v. 
 Merrill, 14 Gray, 415. 
 
 141. On the trial of an indictment for an 
 assault with intent to commit a rape, it was 
 held that evidence that the defendant, who 
 was a colored man, ran after a white woman 
 who was traversing a road through a lonely 
 wood, and called out to her several times to 
 stop, the distance between them being about 
 seventy yards, was sufficient to sustain a 
 conviction. State v. Neely, 74 N. C. 425. 
 
 142. Proof of resistance. Upon a trial 
 for an assault with intent to commit a rape, 
 on the question of resistance, it is proper 
 for the jury to consider the age, strength, 
 and capacity of the person ujjou whom the 
 ofi^ense is alleged to have been committed. 
 People V. Lynch, 29 Mich. 274. 
 
 143. Where the defendant was convicted 
 of an assault with the intent to commit a 
 rape on a child imder ten years of age, upon 
 the uncorroborated testimony of the child, 
 who not only made no outcry, but im- 
 mediately went about her daily duties, as 
 though nothing unusual had occurred, and 
 neglected for two years to disclose the facts 
 even to her mother, and it appeared that 
 no flow of blood followed the alleged out- 
 rage, and that the child did not sufier or 
 complain of any pain, it was held that there 
 must be a new trial. People v. Hamilton, 
 46 Cal. 540; s. c. 2 Green's Crim. Reps. 
 432. 
 
 144. Although where there was consent 
 on the part of the prosecutrix, the prisoner 
 cannot be convicted of an assault with intent 
 to commit a rape, yet where it is clearly 
 shown that the assault was made with the 
 intent to commit the oifense, the jury may 
 convict, though not satisfied that there was 
 such want of consent as to constitute the 
 higher crime. The absence of outcries and 
 complaints is not conclusive; and the mere 
 submission of a girl fifteen years of age, in 
 the power of a strong man, does not; neces- 
 sarily imply consent. State v. Cross, 12 
 Iowa, 66. See State v. Tomlinson, 11 lb. 
 401. 
 
 145. Complaint of female. On the trial 
 of an indictment for an attempt to commit 
 a rape, a complaint made soon after the 
 assault, by the woman assaulted, is admis- 
 sible in evidence, but not the particulars
 
 KAPE. 
 
 531 
 
 Assault with Intent to Comniit Rape. 
 
 Evidence. 
 
 of the transaction, as detailed at that time, 
 by the prosecutrix. State v. Ivins, 36 N. J. 
 233; s. c. 2 Green's Crim. Reps. 591. 
 
 146. Declarations of female. On the 
 trial of an indictment for an assault with 
 intent to commit a rape, the declarations of 
 the prosecutrix are not admissible either for 
 or against the defendant as independent 
 evidence. To render them competent, the 
 foundation must be laid by tirst calling her 
 attention to them when she is examined as 
 a witness, and if she denies making them, 
 they can then be proved to contradict her. 
 State V. Emeigh, 18 Iowa, 123. 
 (147. On the trial of an indictment for an 
 assault upon a girl six years of age, with 
 intent to commit a rape, the child being 
 interrogated as a witness, and not being 
 able to give a connected history of the affair, 
 the mother of the child was called and 
 asked, " Did the child tell you how this 
 occurred at the time ? " which she answered 
 in the affirmative. Held error. People v. 
 Graham, 21 Gal. 261. 
 
 148. On the trial of an indictment for as- 
 sault and battery, with intent to commit a 
 rape, the injured party, who was about six 
 years of age, not being allowed to testify 
 for want of sufficient understanding, the 
 court admitted in evidence her declarations 
 made not in the presence of the defendant, 
 elicited by questions put to her by her 
 parents soon after the transaction. Held 
 error. Weldon v. State, 32 Ind. 81. 
 
 149. Appearance of female. On a trial 
 i for an assault with intent to commit a rape, 
 
 a witness may testify as to the appearance of 
 the woman immediately after the outrage, 
 but not as to what she said, except in con- 
 firmation of her testimony, after an attempt 
 to impeach it. Pleasant v. State, 15 Ark. 
 624. 
 
 150. Guilty intent. On the trial of an 
 indictment for an assault with intent to com- 
 mit a rape, evidence of j^revious acts of the 
 defendant is admissible on the question of 
 guilty intent. AVilliams v. State, 8 Humph. 
 585. 
 
 151. Where, on a trial for an assault with 
 intent to commit a rape, the jury were 
 charged that if thev believed from the evi- 
 
 dence that the defendant attempted to com- 
 mit a rape they ought to find a verdict of 
 guilty, it was held error. Preisker v. People, 
 47 111. 382. 
 
 152. Character of prosecutrix. On a 
 trial for an assault with intent to commit a 
 rape, the prosecutrix cannot be compelled to 
 answer as to her criminal connection with 
 other men, nor can particular acts of un- 
 chastity be proved, though general evidence i 
 may be given of her reputation in that re- 
 spect. Pleasant v. State, 15 Ark. 624. 
 
 153. Corroboration of charge. On the 
 trial of an indictment for an attempt to 
 commit a rape, before any effort had been 
 made to discredit the testimony of the pros- 
 ecutrix, otherwise than by her cross-exami- 
 nation, the district attorney introduced a 
 witness to prove that she had previously 
 told to the witness the same story which she 
 had now sworn to in court. Held admissible 
 to show constancy in the declarations of the 
 prosecutrix, and thus to confinn her testi- 
 mony. State V. De Wolf, 8 Conn. 93. 
 
 154. After it had been proved by the de- 
 fense, on a trial for an attempt to commit a 
 rape, that the prosecutrix, who was deaf 
 and dumb, had given different accounts of 
 the transaction, and after she had sworn 
 that she concealed the transaction more than 
 a year, giving as a reason for so doing the 
 threats and influence of the prisoner, and 
 fear of him, the prosecution proposed to 
 show, by an instructor of the deaf and 
 dumb, who had been the teacher of the 
 prosecutrix, that the deaf and dumb gen- 
 erally have a sense of inferiority to other 
 people, and as a class are easily intimidated; 
 that they are credulous, sincere, and sub- 
 missive, and that from his acquaintance 
 with the witness, he believed such to be 
 her character. Held, that such evidence was 
 inadmissible. Id. 
 
 155. Weight and sufficiency of proof. 
 Upon a trial for an assault with intent to 
 commit a rape, the prisoner may be found 
 guilty upon proof that a rape was actually 
 committed. State v. Shepard, 7 Conn. 54; 
 State V. Smith, 43 Vt. 324; State v. Archer, 
 54 New Hamp. 465. 
 
 156. On the trial of an indictment for an
 
 ooi: 
 
 EAPE.— RECEIYING STOLEN PROPEETY 
 
 Assault with Intent to Commit Rape. 
 
 Punishment. Offense when Committed. 
 
 assault with intent to ravish, it is improper 
 to permit the prosecutrix to testify that the 
 defendant " attempted to ravish her," or a 
 witness to say that the prosecutrix, in mak- 
 ing complaint to him, used that language. 
 Scott V. State, 48 Ala. 430. 
 
 157. On the trial of an indictment for an 
 attempt to commit a rape, tlie fact that the 
 prisoner burglariously entered a room where 
 a young lady was sleeping, and grasped her 
 ankle, without any effort at explanation, is 
 evidence for the consideration of the jury. 
 State V. Boon, 13 Ired. 244. 
 
 158. Where there is evidence tending to 
 prove that a person charged with an assault 
 with intent to commit a rape was, at the 
 time, in a greatly debilitated condition from 
 a previous debauch, it is a circumstance for 
 the consideration of the jury in determining 
 whether he was physically capable of com- 
 mitting the offense. Nugent v. State, 18 
 Ala. 521. 
 
 159. On a trial for an assault with intent 
 to commit a rape, in order to impeach a 
 witness who had testified through an inter- 
 preter in respect to the time of seeing the 
 defendant in a certain place, and who, on 
 cross-examination, denied that he had said 
 to any one that he saw him at an earlier 
 and different time, the defendant offered 
 one L. to prove that at an interview with 
 the witness he stated to him, through an 
 interpreter, that he met the defendant an 
 hour earlier than he had testified. Held 
 that the evidence of L. was inadmissible, 
 and that the interpreter should be called, as 
 he alone could know and understand what 
 the witness had said. State v. Noyes, 36 
 Conn. 80. 
 
 (e) Verdict. 
 
 160. Need not negative higher offense. 
 A verdict was as follows: "We, the jury, 
 find the prisoner guilty of an attempt to 
 commit a rape." Held sufScient, and that 
 it was not necessary to negative the charge 
 of rape, that being the legal effect of the 
 finding. Stephen v. State, 11 Ga. 225. 
 
 (/) Punishment. 
 
 161. Under former statutes in relation 
 
 to slaves. In Arkansas, the statute (Dig, 
 ch. 51, pt. 4, art. 4, § 9), punishing with 
 death an attempt by a negro to commit a 
 Tape on a white woman, included the case 
 of such an attempt upon a white female 
 under the age of puberty. Charles v. State, 
 6 Eng. 389. 
 
 162. In Mississippi, the statute (Hutch. 
 Dig. 918, § 21), providing that no person 
 shall be convicted of an attempt to commit 
 an offense where it appeared that the offense 
 was actually committed, did not apply to the 
 case of rape by a slave upon a white woman. 
 There was no law punishing a slave for rape 
 committed on a white woman ; but the at- 
 tempt to commit rape was made a capital 
 offense. Wash v. State, 14 Smed. «fc Marsh.. 
 120. 
 
 163. The statute of Tennessee of 1839, ch. 
 19, § 10, punishing a slave with death for 
 an assault with intent to commit rape on a 
 free white woman, did not include the case 
 of a female under ten years of age. Sidney 
 V. State, 3 Humph. 478. But in Virginia, 
 a white girl under twelve, and not having 
 attained to the age of puberty, was deemed 
 a white woman within the meaning of the 
 statute making it a capital offense for a slave, 
 free negro, or mulatto to attempt to ravish 
 a white woman. Watts' Case, 4 Leigh, 672. 
 
 ilccciDiug Stolen Propcrtn. 
 
 1. Offense when committed. 
 
 2. Indictment. 
 
 8. Place of trial. 
 
 4. Evidence. 
 
 5. Charge of judge. 
 
 6. Verdict and judgment. 
 
 1. Offense when committed. 
 1. What constitutes charge of conceal- 
 ment. Swearing in an afl3.davit that certain 
 goods of a specified value, have been stolen 
 by some person or persons unknown, and 
 that from i^robable cause, the owner suspects 
 that said goods are concealed in a trunk be- 
 longing to A. and B., does not constitute a 
 charge of larceny, but of knowingly con- 
 cealing stolen goods. Field v. Ireland, 21 
 Ala. 240.
 
 EECEIYING STOLEN PROPERTY. 
 
 533 
 
 Offense when Committed. 
 
 2. Construction of statute. A statute 
 •which prohibits the " buying, receiving, 
 concealing, or aiding in the concealment of 
 stolen goods," specifies four distinct oflfenses, 
 and the disjunctive or applies to each of the 
 preceding verbs. State v.Murphy,6 Ala.845. 
 
 3. As bank notes are not ' ' goods or chat- 
 tels," the receiver of stolen bank notes can- 
 not be indicted under the statute of New 
 Jersey, making it a misdemeanor to receive 
 stolen " goods or chattels." State v. Calvin, 
 2 Zabr. 207. 
 
 4. "What constitutes a receiving. Where 
 a person allowed a trunk of stolen goods to 
 be placed on board a vessel destined for 
 J^orth Carolina, as a part of his luggage, it 
 was held that he might be convicted of 
 receiving stolen goods. State v. Scovel, 1 
 Mills, 274. 
 
 5. In California, where on a trial for grand 
 larceny it was proved that the defendant 
 was not in the county where the oflense was 
 committed at the time of its commission, and 
 "did not participate in the theft, but after- 
 ward, knowing that the property was stolen, 
 received it in the county where he resided, 
 and aided in selling, it was held that he 
 could not be convicted of larceny in the 
 first mentioned count, and that he was not 
 an accessory after the fact, but liable as a 
 receiver of stolen goods. People v. Stakem, 
 40 Cal. 599. 
 
 6. The defendant agreed with a small boy 
 that the latter should take his grandfather's 
 money and hide it at the stable, and that 
 the defendant should go at night and tap on 
 the door, and the boy would run out and 
 ehoot at him for a blind. This arrangement 
 was carried out, but the boy could not find 
 the money. Several days afterward, the boy 
 took the money to a place two and a half 
 miles distant, and gave it to the defendant. 
 Held, that a conviction of the defendant as 
 principal was error. Able v. Com. 5 Bush, 
 Ky. 698, Robertson, .J., dissenting. 
 
 7. A conviction for knowingly receiving 
 stolen goods was sustained upon proof that 
 the defendant received them from the servant 
 of a carrier, and concealed them, and that 
 t he servant furtively acquired them. State 
 •V. Teideman, 4 Stroljli. 300. 
 
 8. In South Carolina, to make the receiver 
 of stolen goods liable under the statute 
 of 1769, the goods must have been taken by 
 burglary, or house breaking. State v. San- 
 ford, 1 Nott & McCord, 512. 
 
 9. Possession not necessary. On the 
 trial of an indictment for receiving and 
 aiding in concealing stolen property, it is 
 not necessary to prove that the defendant 
 had actual possession of it, and concealed it 
 with his own hands. If he was present, 
 knew that it was stolen, saw it hid, kept 
 silent, and refused to give information to the 
 officers searching for it, such conduct unex- 
 plained will warrant his conviction. State 
 V. St. Clair, 17 Iowa, 149. See State v. 
 Turner, 19 lb. 144. 
 
 10. May be owner of property. Where 
 goods have been stolen from the bailee of the 
 owner, the owner may make himself crimin- 
 ally liable by fraudulently receiving them 
 from the thief. People v. Wiley, 3 Hill, 
 194. 
 
 11. By agent. Where a person directs 
 another to receive property lost or stolen, 
 the latter who receives the property from the 
 thief, knowing it to be stolen, is liable to 
 indictment. Caskells v. State, 4 Yerg. 149; 
 Wright V. State, 5 lb. 154. 
 
 12. The statute of Michigan in relation 
 to the offense of receiving stolen property, 
 knowing the same to have been stolen, has 
 enlarged the common-law ofibuse, by making 
 those who aid the principal felon equally 
 guilty with him. People v. Reynolds, 2 
 Mich. 422. 
 
 13. Where there is a pretense of 
 agency. Funds having been stolen from 
 a bank in Maryland, A., a police justice, in- 
 vited the agents of the bank to an interview, 
 and undertook to procure a restoi'ation of 
 the property upon condition that the bank 
 would pay'therefor at the rate of ten per 
 cent, on the amount, saying that his em- 
 ployer would not take less. After several 
 days spent in negotiating, during which A. 
 professed to be acting in accordance with 
 the views and wishes of the thief, it was 
 finally agreed that the property should be 
 restored for less than was first demanded, 
 and a place was designated for carrying out
 
 53-1 
 
 EECEIVING STOLEN PROPERTY. 
 
 Offense when Committed. 
 
 Indictment. 
 
 the agreement. A. brought the property to 
 the appointed place and delivered it to the 
 agents of the bank, who thereupon paid him 
 what they agreed. Held that A. might be 
 convicted as a receiver of stolen goods. 
 People v. Wiley, supra. If A. had only de- 
 manded such a sum as was insisted on by 
 the thief before surrendering the goods, to- 
 gether with a fair compensation for his own 
 trouble, the case might have been different. 
 Ibid. 
 
 14. Receiver not an accessory. The re- 
 ceiving of stolen goods knowing them to be 
 stolen does not constitute the receiver an 
 accessory, because he renders no aid to the 
 principal felon, but is in itself a distinct 
 offense. Loyd v. State,42 Ga. 221. 
 
 15. The offense of receiving stolen goods 
 is not merged in that of being an accessory 
 before the fact to the larceny, the less being 
 merged in the greater offense only when 
 both result from the same act or continuing 
 transaction. State v. Coppenburg, 2 Strobh. 
 273. 
 
 16. In Connecticut, under the statute of 
 1830, the receiver of stolen goods knowing 
 them to have been stolen may be prosecuted 
 as a principal. State v. Weston, 9 Conn. 
 527. 
 
 17. Accomplice. The thief is not an ac- 
 comf)lice of the person who receives the 
 stolen goods knowing them to have been 
 stolen, but guilty of a different offense. 
 People V. Cook, 5 Parker, 351. 
 
 18. Must have been fraudulent intent. 
 To constitute the offense of receiving stolen 
 goods knowing them to have been stolen, 
 the stolen goods must have been received 
 feloniously, or with intent to secrete them 
 from the owner, or in some other way to 
 defraud him of them. People v. Johnson, 
 1 Parker, 564. 
 
 19. It is erroneous to charge the jury that 
 if the defendant received the goods knowing 
 them to have been stolen he is guilty of 
 crime, without also stating that he must 
 have fraudulently intended to deprive the 
 owner of them. Rice v. State, 3 Heisk. 215 ; 
 s. c. 1 Green's Crim. Reps. 306. 
 
 20. To obtain a reward. A person may 
 be convicted of receiving stolen goods, under 
 
 the statute of New York, who with guilty 
 knowledge receives a receipt designed as a 
 means of depriving the owner of the Avhole 
 or part of the goods, although the purpose 
 be not to deprive him of the specific goods, 
 but to defraud him into the payment of a 
 reward for the restoration of them. People 
 V. Wiley, 3 Hill, 194. 
 
 21. Need not have been expectation of 
 benefit. It is no defense to a prosecution 
 under a statute for receiving or aiding in 
 the concealment of stolen goods, knowing 
 the same to have been stolen, that the de- 
 fendant received the goods as a friendly act 
 to the thief, without any benefit or expecta- 
 tion of benefit. Com. v. Bean, 117 Mass. 
 141. 
 
 22. A person received stolen goods know- 
 ing them to have been stolen, not intending 
 to make them his own, or to derive any 
 profit from them, but simply to aid the thief 
 as a friendly act. Held that he was rightly 
 convicted of receiving stolen goods knowing 
 them to have been stolen. State v. Bush- 
 ing, 69 N. C. 29 ; s. c. 1 Green's Crim. Reps. 
 
 372. 
 
 2. Indictment. 
 
 23. When it will lie. In general, a per- 
 son cannot be convicted of receiving stolen 
 goods until after the conviction of the thief. 
 But in Massachusetts, under the statute of 
 1784, ch. 50, § 9, the receiver may be in- 
 dicted for a misdemeanor, although the prin- 
 cipal is not prosecuted or known. Com. v. 
 Andrews, 3 Mass. 126. 
 
 24. Description of property. An indict- 
 ment for receiving stolen goods must de- 
 scribe the goods with certainty, and a 
 variance in respect to them will be fatal. 
 People V. Wiley, 3 Hill, 194. 
 
 25. An indictment alleged that the de- 
 fendant received " sundry pieces of silver 
 coin, made current by law, usage and cus- 
 tom within the State of Alabama, amount- 
 ing together to the sura of five hundred and 
 thirty dollars and fifteen cents." Held in- 
 sufficient in not specifying the number and 
 denomination of the coin. State v. Murphy, 
 6 Ala. 845. 
 
 26. An indictment for receiving stolen 
 goods which describes the stolen property
 
 RECEIVING STOLEN" PROPERTY 
 
 535 
 
 Indictment. 
 
 as so mauy yards of cloth of a certain value, 
 is sufficiently definite, and will be sustained 
 by proof that they were pieces of any kind 
 of cloth. Com. V. Campbell, 103 Mass. 436. 
 
 27. Need not state value. In Rhode 
 Island, the common-law distinction between 
 grand and petit larceny having been abol- 
 ished, an indictment for receiving stolen 
 goods need not allege their value. State v. 
 Watson, 8 R. I. 114. 
 
 28. Name of owner. In Maine, it has 
 been held that an indictment against a re- 
 ceiver of stolen goods which does not allege 
 the ownership of the property stolen, or that 
 the principal has been duly convicted, is 
 fatally defective. State v. Mcxiloon, 40 
 Maine, 133. 
 
 29. Bank bills complete in form, but not 
 issued, are the property of the bank, and 
 may be so desci'ibed in an indictment for 
 receiving them knowing them to have been 
 stolen. People v. Wiley, 8 Hill, 194. 
 
 30. Where goods which are the joint 
 property of three persons are stolen from one 
 of them, who has them in his custody for 
 sale, an indictment for receiving the goods 
 knowing them to be stolen, may allege that 
 they are his property. Com. v. Maguire, 
 108 Mass. 469. 
 
 31. An indictment for receiving stolen 
 goods may describe them as the property of 
 the person from whom they were taken, al- 
 though as against the true owner his posses- 
 sion was tortious. Com. v. Finn, 108 Mass. 
 466. 
 
 32. Where the offense charged is felo- 
 niously receiving goods which have been 
 stolen from an incorporated company, it is 
 necessary to allege in the indictment, and 
 also to prove at the trial, that the injury was 
 done to an existing corporation. Cohen v. 
 People, 5 Parker, 330. 
 
 33. Name of thief. In general, an in- 
 dictment for receiving stolen goods know- 
 ing them to be stolen, need not state the 
 name of the person who stole them ; and the 
 allegation that his name is unknown to the 
 grand jury is equally immaterial. People v. 
 Avila, 43 Cal. 196; State v. Cojjpenburg, 2 
 Strobh. 373; Swaggerty v. State, 9 Yerg. 
 338 ; State v. Hazard, 3 R. I. 474 ; State v. 
 
 Murphy, 6 Ala. 845: Com. v. State, 11 Gray, 
 60; State v. Smith, 37 Mo. 58; Shriedley v. 
 State, 33 Ohio, N. S. 130 ; s. c. 3 Green's 
 Grim. Reps. 530. Nor need the indictment 
 allege any consideration passing between the 
 thief and the receiver. Hopkins v. People, 
 12 Wend. 76. 
 
 34. But in North Carolina, an indictment 
 for receiving stolen goods must name the 
 person for whom the goods were received, so 
 as to show that the defendant received them 
 from the principal felon, the statute not ajj- 
 plying if he received them from any one 
 else. State v. Ives, 13 Ired. 833 ; State v. 
 Beatty, Phil. N. C. 53. 
 
 35. A receiver of stolen goods, charged 
 with receiving the property of persons to the 
 jury imknown, stolen by a person to the 
 jury unknown, will not be entitled to ac- 
 quittal because the same grand jury have 
 found a bill imputing the same larceny to a 
 person named. Com. v. Hill, 11 Cush. 137. 
 
 36. Unnecessary averment. An indict- 
 ment for receiving stolen goods, knowing 
 the same to have been stolen, need not add 
 the words "taken and carried away." Com. 
 V. Lakeman, 5 Gray, 82. 
 
 37. Charging offense disjunctively. In 
 Alabama, the offense of concealing, or aid- 
 ing to conceal, a stolen horse or mare, 
 knowing the same to have been stolen, and 
 buying or receiving a stolen liorse or mare, 
 knowing the same to have been stolen, can- 
 not be charged disjunctively in the same 
 count. Barber v. State, 34 Ala. 313. 
 
 38. Averment of intent. The indict- 
 ment should allege that the stolen goods 
 were received with intent to deprive the 
 owner of them. Hurell v. State, 5 Humjih. 
 68. 
 
 39. An indictment for receiving stolen 
 goods which does not charge that the, pris- 
 oner received them for the purpose of de- 
 frauding the owner, will be bad, and the 
 defect may be taken advantage of by de- 
 murrer, writ of error, or motion in arrest of 
 judgment. Pelts v. State, 3 Blackf. 38; 
 People V. Johnson, 1 Parker, 564. 
 
 40. An allegation in an indictment that 
 the defendants feloniously bought, or re- 
 ceived two horses, of the value of one
 
 53C 
 
 EECEIYING STOLEN" PROPERTY 
 
 Indictment. 
 
 Place of Trial. 
 
 Evidence. 
 
 hundred dollars each, the personal property 
 of S. "W., which said horses had before then 
 been feloniously taken and carried away, 
 they, the said defendants, well knowing that 
 the said horses had been feloniously taken 
 and carried away, is a sufficient averment of 
 guilty knowledge on the part of the defend- 
 ants. Huggins V. State, 41 Ala. 393. 
 
 41. Compelling prosecution to elect. 
 "Where the indictment contains two counts, 
 the first charging the defendant with the 
 larceny of certain goods, and the second 
 with receiving the same goods, knowing 
 them to have been stolen, the court may 
 proceed to ti'ial upon both counts, or com- 
 pel the prosecution to elect upon which 
 count it will proceed. State v. Hazard, 2 
 R. I. 474. 
 
 3. Place op trial. 
 
 42. With reference to the county. Tn 
 
 New York, a person may be tried and con- 
 victed of receiving and having stolen prop- 
 erty in any county where the prisoner either 
 received the property at first, or at any time 
 afterward had it. Wills v. People, 3 Park- 
 er, 473. 
 
 43. A. stole cotton in W. county, which 
 he delivered to B. in M. county, the latter 
 knowing at the time that it had been stolen. 
 Subsequently B. sent some of the cotton 
 through W. county. Held that the offense 
 of receiving stolen goods was complete in M. 
 county, and that its subsequent removal to 
 W. county did not constitute a second of- 
 fense of receiving stolen goods. Roach v. 
 State, 5 Cold. Tenn. 39. 
 
 44. "Where the goods were stolen in 
 another State. In Maine, an instruction 
 of the jury that if they believed from the 
 evidence that the defendant bought, re- 
 ceived, or aided in concealing property as 
 set forth in the indictment, he at that time 
 knowing the same to have been stolen, it 
 would be their duty to convict, notwith- 
 standing the original larceny was committed 
 in Massachusetts, was held correct under 
 the statute (R. S. ch. 156, § 10). State v. 
 Stimpson, 45 Maine. 608. / 
 
 4. Evidence. w 
 
 45. Must support charge. Although an 
 
 indictment for receiving stolen goods need 
 not name the person by whom the larceny 
 was committed, yet if alleged it must be 
 proved. Where, therefore, the indictment 
 charged larceny at common law by one M., 
 and that the defendant received and aided 
 in the concealment of the property, know- 
 ing the same to have been stolen, and the 
 larceny by M. as charged was not proved, 
 it was held that the conviction could not be 
 sustained. Com. v. King, 9 Cush. 284. 
 
 46. The record of the conviction of a thief 
 on his plea of guilty to an indictment 
 against him for stealing certain property, is 
 not admissible in evidence to prove the 
 theft on the trial of the receiver of that 
 property upon an indictment against him 
 alone, which does not aver that the thief 
 has been convicted. Com. v. Elisha, 3 
 Gray, 460. 
 
 47. Where an indictment charges the de- 
 fendant with receiving stolen goods jointly 
 with two other persons, he may l^e convicted, 
 although the evidence shows only a sepa- 
 rate act of receiving by him. State v. Smith, 
 37 Mo. 58. 
 
 48. An indictment under the statute of 
 Michigan (R. S. 1846, ch. 154, § 20), for aid- 
 ing in the concealment of any articles, money, 
 goods, or property, knowing the same to be 
 stolen, is sustained by proof that the defend- 
 ant assisted the thief in converting the prop- 
 erty to his use, or aided him in preventing 
 its recovery by the owner, without showing 
 that the property was secreted. People v. 
 Reynolds, 2 Mich. 422. 
 
 49. On a trial for receiving stolen goods, 
 knowing that they were stolen, it is not 
 competent for the prosecution to prove that 
 the defendant's house was the resort of 
 thieves, who went there to dispose of their 
 booty. People v. Pieqjont, 1 Wheeler's 
 Crim. Cas. 139. 
 
 50. Admissions and declarations of de- 
 fendant. On the trial of an indictment for 
 receiving stolen goods, evidence is admissible 
 of a conversation between the defendant and 
 the principal in the larceny. Com. v. Jen- 
 kins, 10 Gray, 485. 
 
 51. On a trial for receiving goods know- 
 ing them to have been stolen, it was proved
 
 EECEIYING STOLEN PROPERTY". 
 
 537 
 
 Evidence. 
 
 that the goods were stolen by the clerk of 
 the complainant, and sold or pawned to the 
 prisoner, and that previous to the particular 
 act charged there had been a series of simi- 
 lar transactions between the clerk and the 
 prisoner, in which the latter had received 
 from the clerk goods belonging to the com- 
 plainant similar to those described in the 
 indictment. Held that conversations had 
 between the accused and the clerk at the 
 time of such transactions were admissible as 
 tending to prove guilty knowledge. Cop- 
 perman v. People, 15 N. Y. Supm. N. S. 199; 
 8 lb. 15; affi'dSG N. Y. 591. 
 
 52. "Where husband and wife are jointly 
 indicted for receiving stolen goods, the 
 declarations of the wife, though criminating 
 both, are admissible in evidence against her. 
 Com. V. Briggs, 5 Pick. 429. 
 
 53. On a trial for receiving stolen goods 
 knowing them to have been stolen, the defend- 
 ant offered to prove that during the week 
 previous to receiving the goods he stated 
 publicly his expectation that he would get 
 the goods. Held not admissible. People v. 
 Wiley, 3 Hill, 194. 
 
 54. Declarations of confederate. Where 
 a person receives stolen goods, knowing 
 that they were stolen, and sells them, it will 
 be presumed that the transaction was on 
 joint account; and it is competent to prove 
 the declarations of either party made before 
 the sale relative to the common enterprise. 
 People V. Pitcher, 15 Mich. 397. 
 
 55. Admissions and declarations of thief. 
 On the trial of a woman for receiving stolen 
 goods, it was proved that the goods had 
 been stolen by a brother of the defendant, 
 and that they were found with a large 
 amount of other stolen property in the de- 
 fendant's house, no person being at the 
 time in the house but the defendant and one 
 K. K. being introduced by the defendant, 
 she proposed to ask him what was said by 
 the brother at an interview between them, 
 after the goods were stolen, relative to send- 
 ing his trunks to her house. Held that the 
 question was proper as a part of the res 
 gesta: Durant v. People, 13 Mich. 351. 
 
 56. Presumption from possession. The 
 mere possession of stolen goods is not evi- 
 
 dence that the party in whose possession 
 they are found received them knowing they 
 had been stolen. Durant v. People, swpra. 
 
 57. Where an indictment alleged the re- 
 ceiving or aiding in the concealment of a 
 sheep and of honey in the comb, which had 
 been stolen, it was held that the fact that 
 strained honey, and the cloth through which 
 it was strained, and mutton tallow and 
 scraps, were found on the defendant's prem- 
 ises, was admissible in connection witli evi- 
 dence tending to show that a sheep was 
 killed and honey in the comb taken there. 
 Com. V. Slate, 11 Gray, 60. 
 
 58. On the trial of an indictment for re- 
 ceiving goods, knowing them to have been 
 stolen, evidence is admissible that other 
 stolen goods were found in the possession of 
 the defendant, to show guilty knowledge. 
 Devoto V. Com. 3 Mete. Ky. 417. 
 
 59. Proof of other similar acts. On the 
 trial of an indictment for receiving goods 
 knowing them to be stolen, the prosecution 
 may give in evidence a series of other acts 
 of the like character, to show the knowledge 
 or scienter of the accused, or to rebut any 
 presumption of innocent mistake. But the 
 prisoner cannot prove the declarations of 
 the persons from whom he received the 
 stolen goods. People v, Rando, 3 Parker, 
 335 ; Wills v. People, lb. 473. 
 
 60. On a trial for receiving property 
 knowing it to be stolen, it is competent 
 upon the question of guilty knowledge to 
 prove that the accused had frequently re- 
 ceived from the thief the same kind of 
 property knowing that he had stolen it from 
 the same person or place ; and conversations 
 between the thief and the accused upon 
 previous occasions when property was re- 
 ceived are admissible as part of the res gestm 
 and to show knowledge. Cojjperman v. 
 People, 56 N. Y. 591 ; Shriedley v. State, 23 
 Ohio, N. S. 130; s. c. 2 Green's Crim. Reps. 
 530. 
 
 61. Upon a trial for receiving property 
 knowing it to have been stolen, the prosecu- 
 tion, for the purpose of showing guilty 
 knowledge, cannot prove that the accused 
 has received otlicr property from other per-
 
 538 
 
 EECEIVING STOLEN PROPERTY. 
 
 Evidence. 
 
 sons knowing the same to have been stolen. 
 Coleman v. People, 55 N. Y. 81. 
 
 62. Proof that goods were bought for 
 less than they were worth. Where, on a 
 trial for receiving goods knowing them to 
 have been stolen, it is proved that the price 
 paid by the accused for the goods was much 
 less than their value, it is not error for the 
 court to charge the jury that it is material 
 for them to determine whether the transac- 
 tion was a sale or a pawn to secure a loan. 
 Copperman v. People, 3 N. Y. Supm. N. S. 
 199; 8 lb. 15; 56 N. Y. 591. 
 
 63. On the trial of an indictment for re- 
 ceiving brass couplings, knowing them to 
 have been stolen, the stolen couplings were 
 not produced, but a similar coupling exhib- 
 ited. If the couplings received by the 
 defendant were adapted to present use, a 
 pi'esumption of guilt arose from the flict 
 that the price he paid for them was far less 
 than their value. Witnesses were called to 
 prove that they were machinists and brass 
 finishers, and that without close inspection, 
 it could not be told whether couplings simi- 
 lar to the one shown in the case were of any 
 use except as old brass, to melt over. Held 
 that the testimony was admissible as having 
 a tendency to destroy the presumption aris- 
 ing from inadequacy of price. Jupitz v. 
 People, 34 111. 51G. 
 
 64. On the trial of an indictment for 
 receiving stolen goods knowing them to 
 have been stolen, to prove the scienter evi- 
 dence is admissible of a stealing by the 
 same thief from the same owner of goods of 
 a similar description but a short time before 
 the transaction under investigation, and the 
 purchase of those goods by the accused for 
 an inadequate price, with knowledge that 
 they were stolen. Coleman v. People, 58 
 N. Y. 555 ; affi'g s. c. 4 N. Y. Supm. ^. S. 
 61. 
 
 65. On the trial of an indictment for 
 receiving and having stolen property, a wit- 
 ness testified that he called on the defend- 
 ants and found that they had the stolen 
 property ; that he bought it of them for a 
 great deal less than it was worth ; and that 
 he had a memorandum of the property in 
 question with him at the time. Held proper 
 
 to show that the witness had previously 
 received the memorandum and the money 
 with which he bought the stolen property, 
 from the owner. Wills v. People, 3 Parker, 
 473. 
 
 66. Opportunity to commit offense. On 
 the trial of an indictment for receiving 
 stolen goods, evidence of the kind of shop 
 which the defendant kept, and the business 
 which he there carried on, is admissible to 
 show his opportunity to commit the offense 
 charged. Com. v. Campbell, 103 Mass. 436. 
 
 67. Presumption from conduct of ac- 
 cused. Where most of the stolen property 
 was found stored in Williamsburg, but a 
 portion of it used as samples was exhibited 
 to the witness, and offered for sale to him in 
 the city of New York within fifteen min- 
 utes after one of the defendants left the 
 witness to get it, it was held that there was 
 sufficient proof that the defendents had 
 received or had the property in question, 
 within the city and county of New York. 
 Wills V. People, 3 Parker, 473. 
 
 68. On the trial of an indictment for 
 receiving and aiding in the concealment of 
 stolen goods, proof that B. and D., who 
 were alleged to have stolen the goods, about 
 the period of the larceny were often seen in 
 company going out in the evening and re- 
 turning home together is admissible; and 
 the prosecution need not prove the precise 
 days named by the witnesses as those on 
 which they saw B. and D. together. Cora. 
 V. Hills, 10 Cush. 530. 
 
 69. On a trial for receiving stolen goods 
 knowing them to have been stolen, evidence 
 was admitted tending to show that some 
 time after the sale of the stolen property by 
 the defendant, and before either he or the 
 thief had been prosecuted, the defendant 
 was anxious that the thief should run away. 
 Held competent. People v. Pitcher, 15 
 Mich. 397. 
 
 70. Time of receiving goods. Where un- 
 der an indictment charging in a single count, 
 A., B. and C. with receiving stolen goods 
 knowing that they were stolen, it is proved 
 that A. received some of the goods at a 
 particular time, it is not competent for the 
 prosecution to show that B. and C. received
 
 EECEIVING STOLEN PROPERTY. 
 
 539 
 
 Evidence. 
 
 Charge of Judge. 
 
 Verdict and Judgment. 
 
 the rest of the goods at another time. 
 People V. Green, 1 Wheeler's Crim. Cas. 
 152. 
 
 71. Testimony of accomplice. On tlie 
 trial of an indictment for feloniously receiv- 
 ing stolen goods, the defendant may be 
 convicted ujDon the testimony of an accom- 
 plice which is corroborated by proof of the 
 possession of the goods by the defendant, 
 although such possession was not proved by 
 the accomplice. Com. v. Savory, 10 Cush. 
 535. 
 
 72. Impeachment of witness for prose- 
 cution. On the trial of an indictment for 
 receiving stolen goods knowing that they 
 were stolen, a witness for the prosecution 
 denied, on cross-examination, that he had 
 any knowledge of a letter shown to him 
 purporting to have been written by him to 
 the defendant, stating that he knew nothing 
 whatever relative to the accusation against 
 the defendant. Held that the letter was ad- 
 missible in evidence to impeach the witness, 
 prima facie proof having first been given 
 that the letter was written and sent by the 
 witness to the defendant. Shriedley v. 
 State, 23 Ohio, N. S. 130; s. c. 3 Green's 
 Crim. Reps. 530. 
 
 5. Charge op judge. 
 
 73. Assuming that proof of certain facts 
 would show guilty knowledge. The court 
 should, as a general rule, instruct the jury 
 hypothetically, and not assume a conclusive 
 effect to circumstances, or assume that thoy 
 are proved. Where, on the trial of an in- 
 dictment for receiving stolen goods, the 
 court charged the jury that a guilty knowl- 
 edge on the part of the defendant might be 
 shown by proving that he bought the goods 
 very much under their value, or denied their 
 being in his possession, or the like, it was 
 held error, such facts not constituting a le- 
 gal conclusion of guilt. People v. Levison, 
 16 Cal. 98. 
 
 74. But a charge to the jury that if the 
 prisoner received stolen goods under such 
 circumstances that any reasonable man of 
 ordinary obseiTation would have known 
 that they were stolen, and concealed them, 
 
 they would be justified in finding that he 
 
 knew they had been stolen, is unobjection- 
 able. Collins V. State, 33 Ala. 434. 
 
 6. Verdict and judgment. 
 
 75. "Where the indictment has a sepa- 
 rate count for larceny. Where the indict- 
 ment contains two separate counts, one for 
 larceny, and the other for receiving stolen 
 goods, a verdict of " guilty as charged in 
 the second count, to wit, of receiving stolen 
 goods, knowing them to be stolen," will 
 support a conviction under the second 
 count. Oxford v. State, 33 Ala. 416. 
 
 76. Need not name thief. Under an in- 
 dictment which charges the receiving ot 
 stolen goods from the thief, naming him, 
 a conviction will be sustained which does 
 not find by whom the goods were stolen. 
 People V. Caswell, 21 Wend. 86. 
 
 77. Where the proof differs from 
 charge. In Alabama, although under an 
 indictment for buying or receiving stolen 
 property, the defendant cannot be convicted 
 of concealing or aiding in the concealment 
 of the property, yet the court may prop- 
 erly refuse to instruct the jury that on 
 such proof, "they cannot find him guilty 
 as charged in the indictment," since 
 such proof does not negative the buying 
 or receiving. Huggins v. State, 41 Ala. 
 393. 
 
 78. Where there is a plea of guilty of 
 part of charge. An indictment alleged 
 that the defendant received various articles 
 of stolen property, knowing them to have 
 been stolen, and described and stated the 
 value of each article. The defendant 
 pleaded that he was "guilty of receiving 
 fifty dollars' worth of said property in man- 
 ner and form as set forth in the indict- 
 ment." Held that judgment could not be 
 rendered against him on the plea. O'Con- 
 nell V. Com. 7 Mete. 460. 
 
 Kcco9ui;ancc. 
 
 See Bail and recognizance.
 
 540 
 
 KELIGIOUS MEETING, DISTURBANCE OF. 
 
 Character of OfTense. 
 
 Indictment. 
 
 Kcligiou0 iHccting, B\b- 
 turbancc of. 
 
 1. Character of offense. 
 3. Indictment. 
 3. Evidence. 
 
 1. Character op offense, 
 
 1. How regarded. The willful disturb- 
 ance of a religious meeting is an indictable 
 offense at eommon law. People v. Degey, 
 2 Wheeler's Crim. Cas. 135; State v. Smith, 
 5 Harring. 490. 
 
 2. In Tennessee, it is an indictable offense 
 to disturb a congregation assembled for 
 -worship, at any time before they have ac- 
 tually dispersed. Williams v. State, 3 
 Sneed, 313; and the disturbance of a relig- 
 ious congregation met to transact business 
 connected with their interests as a church, 
 is indictable. Hollingsworth v. State, 5 lb. 
 518. 
 
 3. In Connecticut, a singing school for 
 instruction in sacred and church music, is 
 within the statute of 1857, p. 29, making it 
 a crime to disturb any district school, pub- 
 lic, private, or select school, while the same 
 is in session. State v. Gager, 26 Conn. 607. 
 But a complaint for such offense, which does 
 not allege that the school was in session, is 
 fatally defective ; and it must appear that 
 the school had a teacher, s.c. 28 Conn. 233. 
 
 4. The violent and rude disturbance of 
 citizens lawfully assembled in town meeting 
 is an indictable offense at common law. 
 Com. V. Hoxey, 16 Mass. 385. 
 
 5. The malicious disturbing of a meeting 
 of school directors, lawfully assembled, is 
 indictable at common law. Campbell v. 
 Com. 59 Penn. St. 266. 
 
 6. What deemed a disturbance. In 
 Alabama, to constitute the offense of dis- 
 turbing religious worship, within the mean- 
 ing of the statute (Code, § 3357), there must 
 be an actual interruption or disturbance of 
 an assemblage of people met for religious 
 worship, by noise, profane discourse, rude 
 or indecent behavior, or by some other act 
 or acts of like character, at or near the 
 place of worship. It is not enough, how- 
 
 ever, that the act was reckless or careless. 
 It must be willful or intentional. Harrison 
 V. State, 37 Ala. 154 ; Brown v. State, 46 lb. 
 175. It is not necessary that the interrup- 
 tion or disturbance was during the progress 
 of the religious services. It is sufficient 
 that it occurred after the close of the serv- 
 ices, and while a portion of the people were 
 still in the house, and before a reasonable 
 time had elapsed for their dispersion. Kin- 
 ney V. State, 38 Ala. 224. 
 
 7. What not deemed an offense. The 
 defendant was indicted for disturbing a con- 
 gregation while engaged in divine worship, 
 which disturbance consisted in his singing 
 in so peculiar a manner as to excite mirth 
 in one portion of the congregation and in- 
 dignation in the other. It appeared from 
 the evidence that at the end of each verse 
 his voice was heard after all the other sing- 
 ers had got through, and that the disturb- 
 ance was decided and serious ; that the 
 church members had remonstrated with 
 him, to which he replied that he would 
 worship his God, and that as a part of his 
 worship, it was his duty to sing. It was 
 further proved that the defendant was a 
 strict member of the church, and a man of 
 exemplary deportment, and that he had no 
 intention or purpose to disturb the con- 
 gregation, but was conscientiously taking 
 part in the religious services. Held, that 
 the prosecution could not be sustained. 
 State V. Linkaw, 69 N. C. 214; s. c. 1 
 Green's Crim. Reps. 288. 
 
 8. A church regulation, that no one shall 
 leave the church during the services, is 
 illegal. People v. Browne, 1 Wheeler's 
 Crim. Cas. 124. 
 
 2. Indictment. 
 
 9. Averment of place. An indictment 
 for disturbing public worship must charge 
 that the acts causing the disturbance were 
 committed at or near the place where the 
 assembly met for worship. State v. Doty, 
 5 Cold. Tenn. 33. 
 
 10. Description of meeting. In North 
 Carolina, an indictment for disturbing "a 
 religious assembly, commonly called a quar- 
 terly meeting conference," was held bad in
 
 KELIGIOUS MEETING.— EE VENUE LAW.— REVOLT. 541 
 
 Indictment. 
 
 Evidence. Burden of Proof. Restraint of Master. 
 
 not charging that the assembly had met 
 "for diviue worship," "divine service," 
 " religious worship," or "service," or some- 
 thing of the same import. State v. Mitch- 
 ell, Sired. 111. 
 
 11. An indictment for disturbing a re- 
 ligious ■ meeting need not allege that the 
 congregation was at the time engaged in 
 worship. State v. Yarborough, 19 Texas, 
 161. 
 
 12. Description of disturbance. In Ar- 
 kansas, an indictment, under the statute 
 making the disturbing of a congregation or 
 private family assembled for religious wor- 
 ship a misdemeanor, must describe the dis- 
 turbance. State V. Minyard, 7 Eng. 156. 
 
 13. An indictment charged that J. H. did 
 contemptuously disturb a congregation of 
 people assembled for religious worship, by 
 profanely swearing, and by laughing and 
 talking aloud. Held not bad for duplicity. 
 State V. Horn, 19 Ark. 578. 
 
 14. In Virginia, it was held that an in- 
 dictment for disturbing a reKgious congre- 
 gation need not allege the means by which 
 the disturbance was eflected. Com. v. 
 Daniels, 3 Va. Cas. 403. 
 
 3. Evidence. 
 
 15. Place. Under an indictment for dis- 
 turbing a religious congregation assembled 
 for worship in a church, or other place, the 
 place of assembly being descriptive of the 
 oflfense, must be proved as charged. Strat- 
 ton V. State, 8 Eng. 688. 
 
 16. An indictment for disturbing a re- 
 ligious congregation assembled in a certain 
 church is not supported by proof that the 
 defendant disturbed a congregation as- 
 sembled in the open air. Id. 
 
 17. Specific acts. An indictment alleging 
 that the defendant disturbed a congregation 
 by using indecent gestures and threatening- 
 language in the presence and hearing of 
 such congregation is not supported by proof 
 that while the minister w'as preaching, the 
 defendant, who was a clergyman of another 
 denomination, interrupted his discourse by 
 declaring " the doctrines you advance are 
 untrue and false ! I hold the Word of God 
 in my hand, and am prepared to defend it 
 
 at all times," the defendant being excited, 
 and producing confusion in the congrega- 
 tion, but using no gestures or threatening 
 language. Stratton v. State, supra. 
 
 18. Proof of disturbance by others. Ev- 
 idence that other persons had been guilty of 
 a similar disturbance in the same church, 
 without objection or notice on the part of 
 the members of the congregation, is irrele- 
 vant. Harrison v. State, 37 Ala. 154. 
 
 19. Proof of character. Under an in- 
 dictment for disturbiug religious worship, 
 the defendant may prove his good character, 
 but until he has done so the prosecution 
 cannot show his bad character as a disturb- 
 er of public worship. Id. 
 
 Kcsistiug Process. 
 
 See Officer, tit. Indictmekt, mb. 37. 
 
 Hcucnuc £aiii,biolatiau of. 
 
 1. Indictment. The offense of effecting 
 an entry, and of aiding in effecting an entry 
 of goods, may be charged conjunctively in 
 one count, against the same person, and the 
 proof of either will sustain the charge. U. 
 S. v. Bettilini, 1 Woods. 654. 
 
 2. Burden of proof. Where an indict- 
 ment charges the defendant with violating- 
 the revenue law, in doing business without 
 a license and without paying a special tax, 
 and in failing to keep books, the burden of 
 proof is on the defendant to show that he 
 had a license, paid the tax, and kept the 
 books. U. S. V. Devlin, 6 Blatchf. 71. 
 
 Kcuolt 
 
 1. Restraint of master. To constitute 
 a revolt, the confining the master of the 
 vessel may be by means of moral restraint, 
 by threats of violence, or by physical re- 
 straint of his person. U. S. v. Thompson, 
 1 Sumner, 168. 
 
 2. Attempt to commit. A combination 
 by the crew of a vessel to resist the lawful
 
 542 
 
 EEVOLT.— RIOT. 
 
 Proof of Ownership of Vessel. 
 
 What Constitutes. 
 
 commands of the master to make sail and 
 go to sea, is an attempt to commit a revolt. 
 But they may lawfully refuse to go to sea in 
 the vessel if they have reasonable cause to 
 believe, and do believe, that the vessel is 
 unseaworthy ; and the burden of proof is on 
 them to show this. U. 8. v. Nye, 2 Curtis 
 C. C. 225. 
 
 3. Proof of ownership of vessel. On 
 the trial of an indictment for an attempt to 
 commit a revolt on board of an American 
 vessel in a foreign port, the ownership of 
 the vessel by an American citizen may be 
 jsroved orally. U. S. v. Seagrist, 4 Blatchf. 
 420. 
 
 Riot. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Trial. 
 
 4. Evidence. 
 
 5. Verdict. 
 
 1. What constitutes. 
 
 1. How defined. A riot is a tumultuous 
 disturbance of the peace by three or more 
 persons assembled of their own authority, 
 with intent mutually to assist each other 
 against any person who shall oppose them, 
 and afterward putting the design into exe- 
 cution in a terrific and violent manner, 
 whether the object be lawful or unlawful. 
 State V. Brazil, 1 Rice, 257; State v. Gon- 
 nolly, 3 Rich. 337; Com. v. Runnels, 10 
 Mass. 518; State v. Cole, 2 McCord, 117; 
 Pennsylvania v. Craig, Addis. 190; State v. 
 Brooks, 1 Hill, S. C. 3G1 ; State v. Russell, 
 45 New Hamp. 83. 
 
 2. In Georgia, the statute defines a riot 
 to be where "any two or more persons, 
 either with or without a common cause of 
 quarrel, do an unlawful act of violence, or 
 any other act, in a violent and tumultuous 
 manner." Prince v. State, 30 Ga. 27. 
 
 3. What assemblage requisite. In 
 Maine, if persons upon being lawfully as- 
 sembled conspire to cause a breach of the 
 peace, they are guilty of riot. State v. 
 Snow, 18 Me. 34G. In Illinois and South I 
 
 Carolina, a riot may be committed in doing 
 a lawful act in a violent and tumultuous 
 manner. Dougherty v. People, 4 Scam. 
 180; State v. Brooks, 1 Hill, S.O. 361 ; State 
 V. Connolly, 3 Rich. 337 ; State v. Blair, 13 
 lb. 93. In Missouri, the common-law offense 
 of riot does not exist. To constitute riot 
 under the statute of that State, the act done 
 or attempted must be unlawful. Smith v. 
 State, 14 Mo. 147. In North Carolina, 
 where the assembly is lawful, the subsequent 
 illegal conduct of the persons so assembled, 
 will not make them rioters. State v. Stal- 
 cup, 1 Ired. 30. To constitute a riot it is 
 not necessary that the facts charged should 
 amount to a distinct and substantive indict- 
 able ofiense. An attempt to commit an act 
 of violence which, if completed, would be 
 an indictable ofl>3nse, is sufficient. State v. 
 York, 70 N. C. 66. 
 
 4. Acts amounting to. Where persons 
 go through the street of a city, crying fire, 
 blowing horns, and shooting guns, it is a 
 riot. And a riot may be committed by 
 kicking a foot ball in a noisy and tumul- 
 tuous manner, calculated to excite terror 
 among the inhabitants of a town. If a num- 
 ber of persons go to a theater with the 
 intention of rendering the performance in- 
 audible, they may be guilty of a riot, though 
 they commit no acts of violence. State v. 
 Brazil, 1 Rice, 257. 
 
 5. In Massachusetts, it was held that an 
 unlawful and tumultuous assembly, disturb- 
 ing the selectmen of a town in the exercise 
 of their duty on a public day in a public 
 place, and obstructing the inhabitants of a 
 town in the exercise of their constitutional 
 right to vote, was an aggravated riot. Com. 
 V. Runnels, 10 Mass. 518. 
 
 6. In Pennsylvania, where a liberty jjole 
 was raised contrary to law in a riotous man- 
 ner, and United States commissioners in- 
 sulted, it was held that such acts were in- 
 dictable. Pennsylvania v. Morrison, Addis. 
 274. 
 
 7. By trespassers. The disturbance of 
 another in the enjoyment of a right which 
 would ordinarily constitute a trespass, when 
 done by numbers unlawfully combined is a 
 riot. Com. v. Runnels, 10 Mass. 520.
 
 RIOT. 
 
 543 
 
 What Constitutes, 
 
 Indictment. 
 
 8. Four persons went by agreement at 
 midnight for a frolic to the stable of another 
 and shaved his horse's tail, at the same time 
 making a noise which aroused the owner of 
 the horse and alarmed his family. Held 
 that they were guilty of riot. State v. 
 Alexander, 7 Rich. 5. 
 
 9. Three persons went in company where 
 one Brown w^as at work. One of them pro- 
 cured a club in the presence of the other 
 two, used threatening language to Brown, 
 and commanded his associates to cut up 
 Brown's house logs, which they did. Held 
 that these acts constituted a riot. State v. 
 Montgomery, 1 Spear, 13. 
 
 10. Destruction of one's own property. 
 A man may lawfully pull down his own 
 house in a tumultuous manner, and with a 
 great concourse of people, and if it be ac- 
 companied with no circumstances calculated 
 to excite terror or alarm in others, it will not 
 constitute a riot. State v. Brazil, 1 Rice, 
 257. 
 
 11. Aiding and encouraging others in 
 the commission of unlawful acts. To 
 make a person a rioter, he need not be 
 actively engaged in the riot, but only present 
 giving countenance, support or acquiescence. 
 Williams v. State, 9 Mo. 368 ; State v. Straw, 
 33 Maine, 554. 
 
 12. The following charge was held cor- 
 rect : " If a crowd of three or more persons 
 engaged in the attack on H. with the pre- 
 concerted intent to commit an assault and 
 battery upon him, and accomplished the 
 unlawful act, and the defendants, or any of 
 them, participated in the unlawful proceed- 
 ing, they were guilty of riot." People v. 
 White, 55 Barb. 606. 
 
 13. A riot may be committed where only 
 two persons are actively engaged, while a 
 third is present aiding and abetting them. 
 State V. Straw, 33 Maine, 554. 
 
 14. But where an individual is engaged 
 in acts of violence, and others stand by in- 
 citing him to commit them, it is not a riot. 
 Scott V. U. S. 1 Morris, 142. 
 
 15. A person who commences a riot, but 
 abandons it before it is finished, is liable for 
 the whole. State v. Blair, 13 Rich. 93. 
 
 16. Neglecting to suppress. In Penn- 
 
 sylvania, a justice of the peace was held 
 liable to indictment for not trying to sup- 
 press a riot. Resp. v. Montgomery, 1 Yeates, 
 419. 
 
 2. Indictment. 
 
 17. Must state facts. An indictment 
 for riot must set out fully and clearly all the 
 facts constituting the offense. Whitesides 
 V. People, Breese, 4. 
 
 18. Must charge unlawful assemblage. 
 An indictment for a riot cannot be sustained 
 where it contains no proper allegations of 
 the assembling of three or more persons. 
 Com. V. Gibney, 2 Allen, 150. 
 
 19. The indictment must allege an unlaw- 
 ful assembly or set forth circumstances 
 showing that such was its character. State 
 V. Stalcup, 1 Ired. 30; Mc Waters v. State, 
 10 Mo. 167. It need not be alleged that the 
 acts were to the terror of the people when 
 there is a charge of unlawful acts riotously 
 committed. Com. v. Runnels, 10 Mass. 518. 
 It is sufficient to charge that the defendants 
 assembled " with force and arms," and being 
 so assembled committed acts of violence, 
 without repeating the words force and arms, 
 lb. 
 
 20. An indictment for riot need not al- 
 lege that a proclamation under the riot act 
 was made, or that the defendants assembled 
 to aid each other in the execution of an act 
 of a private nature, or that tlie act for which 
 they assembled was consummated, or that 
 they assembled to do the act which it is 
 averred they did do. An indictment is not 
 bad for duplicity which charges a riotous 
 assembly and an act of violence. State v. 
 Russell, 45 New Hamp. 83. 
 
 21. Names of the defendants. The riot 
 need not be charged to have been com- 
 mitted by three persons named. It is suffi- 
 cient to name those who are known, and to 
 allege that the others are unknown. State 
 V. Brazil, 1 Rice, 257; State v. Calder, 2 
 McCord, 462. 
 
 22. Description of property. An indict- 
 ment for a riot in pulling down a dwelling- 
 house, and for breaking and entering the 
 house, must state whose house it is. If a 
 person occupy a dwelling-house as the wife,
 
 544 
 
 EIOT. 
 
 Indictment. 
 
 Trial. 
 
 Evidence. 
 
 guest, servant or part of the family of an- 
 other, it is in law the occupation of such 
 other person, and must be so charged in the 
 indictment. State v. Martin, 3 Murj)hy, 533. 
 
 23. Averment of violence. An indict- 
 ment for a riot with with "an intent to 
 make an assault," must allege that it was 
 "with force and violence." It is not suffi- 
 cient to charge it to have been " with force 
 and aiTas," Martin v. State, 9 Mo. 283. 
 
 24. Averment of terror. Where the in- 
 dictment charges the going about armed 
 without committing any acts of violence, the 
 words " to the terror of the people " are neces- 
 sary, the offense in such case consisting in 
 terrifying the people. State v. Brazil, 1 
 Rice, 257. 
 
 25. Averment of purpose. An indict- 
 ment for riot is sufficient which does not 
 charge any other unlawful purpose than that 
 of disturbing the peace. State v. Renton, 
 15 New Hamp. 169. 
 
 26. Indorsement of name of prosecutor. 
 In Missouri, when the name of the prosecutor 
 is not indorsed on an indictment for a riot, 
 the objection may be first raised in the Su- 
 preme Court on appeal. Mc Waters v. State, 
 10 Mo. 167. 
 
 3. Trial. 
 
 27. Defendants not entitled to be tried 
 separately. In South Carolina, where sev- 
 eral were jointly indicted for riot and 
 assault, the court refused to permit them 
 to be tried separately. State v. Berry, 1 
 Bay, 316. It was otherwise in Tennessee. 
 State V. Allison, 3 Yerg. 428. 
 
 28. In New Yorii, where an indictment 
 against several charges a riot and riotous 
 assault and battery, tlie accused are not 
 entitled to demand separate trials, but it is 
 in the discretion of the court to try them 
 jointly or separately. Such acts do not 
 amount to felony at common law, but to a 
 misdemeanor, and are not within the statute 
 (3 R. S. 5th ed. 970, § 24), which applies 
 to persons who shall assault, &c., "with 
 knife, dirk, dagger or other sharp dangerous 
 weapon. People v. White, 55 Barb. 606. 
 
 4. Evidence. 
 
 29. Order of proof. In proving the guilt 
 
 of the defendants on an indictment for riot, 
 the regular way is first, to show the combi- 
 nation, and then what was done in pursuance 
 of the unlawful design. But it is discre- 
 tionary with the judge to prescribe the order 
 of proofs in each particular case, and if he 
 deems it expedient to permit the prosecution 
 first to prove the riotous acts, it will only be 
 aftej the whole case on the part of the State 
 has been openly stated, and the prosecution 
 has undertaken to connect the defendants 
 with the acts done. It will, however, be 
 sufficient to fix the guilt of any defendant, 
 if it be proved that he joined himself to the 
 others after the riot began, or encouraged 
 them by words, signs, or gestures, or other- 
 wise took part in their proceedings. Peo- 
 ple V. White, 55 Barb. 606. 
 
 30. Burden of proof. The following in- 
 struction is erroneous : That in riotous and 
 tumultuous assemblies, all who are present 
 and not actually assisting in the suppression 
 in the first instance, are in presumption of 
 law participants, and bound to prove their 
 non-interference. State v. McBride, 19 Mo. 
 239. 
 
 31. Proof of possession. Under an in- 
 dictment for a riot and forcible trespass in 
 entering a man's dwelling-house, he being 
 in the actual possession thereof, and taking 
 therefrom his personal proj)erty, it need 
 not be proved that the prosecutor had a 
 right to the property ; and evidence tending 
 to show his possession is admissible. State 
 V. Bennett, 4 Dev. & Batt. 43. 
 
 32. An indictment for a riot and forcible 
 trespass on the land of a person, will not be 
 supported by proof that he is the owner of 
 the land, but that it was then in the posses- 
 sion of his tenant. The indictment should 
 charge that the offense was committed on 
 land in the possession of the tenant. State 
 V. Wilson, 1 Ired. 33. 
 
 33. An indictment for riot charged " the 
 pulling down, breaking, removing and de- 
 stroying the dwelling-house of one L. S., 
 the said L. S. being in the peaceful posses- 
 sion thereof." It was proved on the trial 
 that L. S. was a married woman, but that 
 her husband did not live with Iier. The de- 
 fendants having been found guilty, a new
 
 RIOT.— IIOBBERY 
 
 545 
 
 Evidence. 
 
 Verdict. 
 
 What Constitutes. 
 
 trial was granted. State v. Martin, 3 Mur- 
 phey, 533. 
 
 34. On the trial of an indictment for a 
 riot, the possession of the prosecutor may be 
 proved by parol. State v. Wilson, 1 Ired. 
 32. 
 
 35. SuflBciency of proof. On the trial of 
 an indictment for riot, a verdict of guilty 
 will be sustained, althougli the evidence 
 only showed an unlawful assembly. State 
 V. Brazil, 1 Rice, 257. 
 
 36. On a trial for a riot, whether the other 
 rioters were named in the indictment or not, 
 proof of a riot in which any two other per- 
 sons joined with the defendant, is sufRcient. 
 Com. V. Berry, 5 Gray, 93. 
 
 5. Verdict. 
 
 37. Where the charge is for riot and as- 
 sault. A verdict of guilty of riot, under 
 an indictment for a riot and assault, is only 
 a partial finding, and therefore bad. State 
 V. Creighton, 1 Nott & McCord, 256. 
 
 33. On the trial of an indictment for 
 riot and riotous assault and battery by four 
 persons, one of them may be found guilty of 
 assault and battery and the others acquitted. 
 Shouse V. Com. 5 Barr, 83. 
 
 llobbmj, 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 4. Verdict. 
 
 1. What coNsTiTurES. 
 
 1. At commDn law. Feloniously taking 
 the property of another in his presence and 
 against his will, by putting him in fear of 
 immediate personal injury, is robbery at 
 common law. Com. v. Holland, 1. Duvall, 
 Ky. 183. 
 
 2. Need not have been a putting in fear. 
 Robbery may be committed by the felonious 
 and forcible taking of property from the 
 person of another without putting him in 
 fear. State v. Gorham, 55 New Hamp. 
 152. 
 
 3. Must have been force or intimida- 
 tion. To constitute robbery, the property 
 
 must be taken by violence to the person be- 
 yond a simple assault and battery. The 
 violence must be sufRcient to force the j)er-' 
 son to part with his property, not only against 
 his will, but in spite of his resistance. Where 
 the proof showed that the prisoner took 
 money from the prosecutor while they were 
 walking together in a friendly manner, no 
 more force being used than sufficient to pull 
 the money out of the prosecutor's pocket; 
 that the men had been drinking; and the 
 prosecutor at the time of the act evidently 
 considered and treated the prisoner's con- 
 duct as a joke, it was held not to be rob- 
 bery but larceny. McCloskey v. People, 5 
 Parker, 299. 
 
 4. On a trial for robbery, the following 
 charge to the jury was held not to be erro- 
 neous: "If you believe C.'s statement to 
 be true, that the prisoner put his arm 
 around his neck, and violently and forcibly 
 jerked him back, and forcibly and feloni- 
 ously took from his person his pocket-book 
 and money, it was a robbery with a felonious 
 intent and accompanied by violence." Ma- 
 honey V. People, 5 N. Y. Supm. N. S. 329 ; 
 affi'd 59 K Y. 659. 
 
 5. Merely snatching a watch from another 
 is not robbery. People v. Hall, 6 Parker, 
 642. But where the prisoner, while walking 
 at night with a stranger in a city, suddenly 
 snatched the stranger's watch from his vest 
 pocket, breaking the guard chain about his 
 neck, exclaiming, "Damn you, I will have 
 your watch," and then ran away with the 
 watch, followed by the stranger, it was held 
 tJiat the threat, accompanied by the force, 
 made the offense robbery, although surprise 
 aided the force to enable the prisoner to ac- 
 complish his purpose. State v. McCune, o 
 R. I. 60. 
 
 6. The forcible capture of a citizen's horses 
 by military order, on neutral ground, oc- 
 cupied and controlled by rebel military au- 
 thority, was held a belligerent act, and not 
 robbery. Com. v. Holland, 1 Duvall, Ky. 
 182. 
 
 7. In Georgia, by the penal code, robbery 
 may be committed either by force or intimi- 
 dation. By force is meant actual personal 
 violence, a struggle, and personal outrage.
 
 54G 
 
 ROBBERY. 
 
 What Constitutes. 
 
 Whea the offense is committed by putting 
 in fear, it is robbery, though the property 
 be taken under color of a gift; but the 
 taking must be against the will of the owner. 
 The pi'operty need not have been delivered 
 coteniporaneously with the assault. It is 
 sutficient that it was delivered afterward 
 during the continuance of the fear or ap- 
 prehension. Long v. State, 12 Ga. 293. 
 
 8. Construction of Act of Congress. The 
 word " rob," in the act of Congress of 
 1825, § 22, is used as at common law. 
 " Jeopardy " means a well grounded ap- 
 prehension of danger to life in case of refusal 
 or resistance. U. S. v. Wood, .S Wash. C. C. 
 410. Under an indictment for robbing the 
 mail and putting the life of the mail carrier 
 in jeopardy, a sword or pistol in the hand 
 of the robber, by the fear of which the 
 robbery was effected, is a "dangerous 
 weapon," although the sword is not drawn, 
 or the pistol presented. lb. Pistols are 
 " dangerous weapons," within the contem- 
 plation of the act, without proof that they 
 were loaded. TJ. S. v. Wilson, 1 Baldw. 
 78. 
 
 9. Threatening to accuse of crime. A 
 robbery may be committed by obtaining 
 personal property from the person, or in the 
 presence of the owner, by threats of a 
 groundless criminal accusation. People v. 
 McDaniels, 1 Parker, 198. But it has been 
 held that mere threats of a criminal prosecu- 
 tion, without force actual or constructive, 
 will not constitute robbery, unless the threat 
 be to prosecute for an unnatural crime. 
 Long V. State, supra. 
 
 10. In New York, where A. threatened 
 to arrest B. on a charge of having committed 
 the crime against nature (the charge being 
 without any foundation, and known to be 
 so by A.), and B., through fear of such 
 threatened arrest, was induced to give A. 
 twenty dollars, and a receipt for thirteen 
 dollars which A. owed B., and to promise 
 to pay A. twenty dollars more, it was held 
 that A. was guilty of robbery in the second 
 degree. People v. McDaniels, 1 Parker, 
 198. 
 
 11. To constitute robbery through intimi- 
 dation, by charging another with the crime 
 
 against nature, the charge need not have 
 been direct, or made in unequivocal lan- 
 guage. It is sufficient that the language 
 employed was designed to communicate 
 such a charge, and was so understood at 
 the time by the person threatened. lb. 
 
 12. Removal of property. In Massa- 
 chusetts, to constitute robbery under the 
 statute (R. S. ch. 125, § 15), the property 
 taken must have been carried away by the 
 assailant. Com. v. Clifford, 8 Cusb. 215. 
 
 13. Property need not be taken from 
 owner. To constitute robbery, the property 
 need not be taken from the person of the 
 real owner. It is sufficient if the party 
 robbed has a general or special property iu 
 or right to the possession of the goods taken. 
 State V. Ah Loi, 5 Nev. 99 ; Com. v. Clifford, 
 supra. 
 
 14. To constitute robbery in the first 
 degree, under the statute of New York, the 
 person from whom the property is taken, 
 need not be the owner of it. Brooks v.^ 
 People, 49 N. Y. 436. 
 
 15. Must be feloniotis intent. Tlie taking 
 must have been animo furandi. But force 
 or intimidation having been proved, the 
 animus furandi will be inferred. Long v. 
 State, 12 Ga. 293. 
 
 16. Where several persons make an assault 
 upon another, intending to rob him of his 
 property, and in the course of a scuffle be- 
 tween the parties, one of the assailants 
 snatches a pistol from him, their only object 
 in getting possession of the pistol being to 
 prevent its being used against them, their 
 subsequent caiTying it away and converting 
 it, would not constitute robbery; but other- 
 wise, if their intention at the time was to 
 deprive the prosecutor wholly of the pistol, 
 although on snatching it, they also intended 
 to prevent its being used against them. 
 Jordan v. Com. 23 Graft. 943. 
 
 17. In Massachusetts, under the statute of 
 1818, ch. 24, punishing a person who shall 
 rob, being armed with a dangerous weapon 
 with intent to kill or maim, or who being 
 armed, shall actually strike the person rob- 
 bed, it is sufficient that the robber had the 
 intent to kill and main as a means of effect- 
 ing the robbery, if it should become neces-
 
 ROBBEKY. 
 
 547 
 
 What Constitutes. 
 
 Indictment. 
 
 Evidence. 
 
 sary, although not an intent to kill or main 
 at all events; but an intent merely to terrify 
 would not be enough to constitute the chief 
 offense of the statute. Com. v. Martin, 17 
 Mass. 359. ' 
 
 18. All concerned are equally guilty. 
 Where several persons combine to commit 
 a robbery, and one only perpetrates the act, 
 all are constructively present, and equally 
 guilty. State v. Heyward, 2 Nott & Mc- 
 Cord, 312. 
 
 2. Indictment. 
 
 19. Averment of forca. An indictment 
 for robbery which alleges the stealing, &c., 
 by force and violence, is sufficient at common 
 law, without the averment that the party 
 robbed W3s put in fear. Com. v. Humphries, 
 7 Mass. 242. 
 
 20. An indictment for robbery is good 
 which alleges that the property of A. was 
 forcibly taken from the person of B. against 
 his will, without averring tliat It was taken 
 without the consent or against the will of 
 A. or stating the nature of B.'s possession. 
 People V. Shuler, 28 Cal. 400. 
 
 21. In an indictment for highway robbery, 
 it is sufficient to allege that the property was 
 taken from the person and against the will 
 of the owner, feloniously and violently. 
 State V. Cowan, 7 Ired. 2o9. 
 
 22. The averment, in an indictment for 
 robbery, of an intent to steal or rob is not 
 sufficiently made by the words feloniously 
 did seize, take, and carry away. Mathews 
 V. State, 4 Ohio, N. S. 539. 
 
 23. An indictment for robbery, Ijcing 
 armed with a dangerous weapon, need not 
 aver that the striking and wounding therein 
 charged were inflicted with the dangerous 
 weapon with which it was charged the de- 
 fendant was armed at the time of the rob- 
 bei'y. Com. v. Mo wry, 11 Allen, 20. 
 
 24. Must charge a taking from the 
 person. An indictment for robbery must 
 allege that the money was taken from the 
 person of another. Stegar v. State, 39 Ga. 
 583. 
 
 25. The following indictment was held 
 fatally defective: That the defendant " did 
 feloniously, forcibly, violently, unlawfully. 
 
 and with force of arms, and by force, threats, 
 and intimidation, take from another, to wit, 
 from one J. H., a leather bag and purse," 
 &c. People V. Beck, 21 Cal. 385. 
 
 26. An indictment for robbery which al- 
 leges that the defendant made an assault 
 upon A. and put him in fear of his life, and 
 did take, steal, and carry away feloniously 
 the money of said A., is insufficient in not 
 charging that the money was taken from the 
 person of A., and against his will. Kit v. 
 State, 11 Humph. 167. 
 
 27. Averment of place. An indictment 
 for highway robbery may allege either that 
 the robbery was committed in the highway, 
 or that it was committed near it. State v. 
 Anthony, 7 Ired. 234. 
 
 28. Description of property taken. An 
 indictment for robbery need not allege the 
 kind and value of the property taken. State 
 V. Burke, 73 N. C. 83. But describing the 
 property taken as " ten dollars in money of 
 the United States currency," was held too 
 indefinite. Crocker v. State, 47 Ala. 53. 
 
 29. Averment of ownership of property. 
 An indictment for robbery must state cor- 
 rectly the ownership of the property taken, 
 as well as the name of the person from whom 
 it was taken. Smedly v. State, 30 Texas, 214. 
 
 30. An indictment for robbery which 
 contains no allegation as to the ownership 
 of the property taken, nor states that it does 
 not belong to the defendant, is fatally de- 
 fective. People V. Vice, 21 Cal. 344. 
 
 / 
 
 3. Evidence. 
 
 31. Proof of violence. It is not neces- 
 sary to prove both violence and putting in 
 fear, proof of either being sufficient. State 
 V. Burke, 73 N. C. 83. 
 
 32. Proof of putting in fea.r. The 
 person robbed is a competent witness to 
 prove that at the time of the robbery he 
 was terrified. It is not necessary to prove 
 actual fear. It is sufficient to show that the 
 taking was under such circumstances as 
 would be likely to create an apprehension 
 of danger in the mind of a man of ordinary 
 experience, and induce him to part with his 
 property for the safety of his person. Long 
 V. State, 12 Ga. 293.
 
 548 
 
 ROBBERY 
 
 Evidence. 
 
 33. Proof of concert of action. Where 
 several are tried for robbery, it is not neces- 
 sary that it should be proved that they 
 actually met and agreed to commit the 
 offense. Concert of action may be shown 
 from circumstances; and if, irom all the 
 evidence, the jury are satisfied that the 
 defendants acted together, it is sufficient. 
 Miller v. People, 39 111. 457. 
 
 34. Place. Under an indictment charg- 
 ing that a robbery was committed in the 
 highway, the prosecution cannot prove that 
 it was near the highway. State v. Cowan, 
 7 Ired. 239. 
 
 35. Property taken. An indictment for 
 robbery charged tlie taking of certain money 
 and bank bills, '' to v.it, six dollars and 
 eighty-five cents in bank bill?, usually called 
 United States legal tender notes, as follows: 
 One bill of the denomination of five dollars, 
 one bill of the value of one dollar, and 
 eighty-five cents in currency, usually known 
 and called postal currency." The proof was 
 that the bills were national bank bills, and 
 not United States notes, nor legal tender 
 notes; and that the currency alleged to 
 have been stolen was what is called frac- 
 tional currency, issued imder the act of 
 Congress passed March 3d, 1863 (12 U. S. 
 Stats, at Large, 711, §4). Held that the 
 variance was fatal. People v. Jones, 5 Lans. 
 340. 
 
 36. Declarations of party injured. On 
 the trial of an indictment for robbery, a 
 statement by the prosecutor that he had 
 been robbed, made a few minutes after the 
 crime was committed, is admissible in evi- 
 dence as part of the res gestm. State v. 
 Ah Loi, 5 Isev. 99. Where, therefore, the 
 prosecutor swore to being knocked down and 
 robbed, and other witnesses who came up 
 immediately were allowed to testify that he 
 then told them he had been robbed, it was 
 lield proper. Lambert v. People, 29 Mich. 
 71. 
 
 37. Where, on a trial for robbery, the 
 person robbed testified that while walking 
 with the prisoner, he felt the prisoner's hand 
 in his pocket, and charged the prisoner with 
 robbing him, and that the witness had been 
 drinking, but was not so drunk as not to 
 
 know what occurred, it was held that the 
 witness's declaration to a third person, im- 
 mediately after the transaction in the pris- 
 oner's absence, that the latter had taken his 
 watch, was admissible in evidence to show 
 that he was not so much under the influ- 
 ence of liquor as not to be conscious of all 
 that took place. State v. Bryan, 74 N. C. 
 351. 
 
 38. Suspicious conduct of accused. It 
 is the proviuce of the jury to determine from 
 the acts of the defendant, and the surround- 
 ing circumstances, what the defendant's 
 purpose was, in stopping persons on the 
 public highway at eleven o'clock at night, 
 with a cocked and loaded revolver presented 
 at short range. Such an assault, if unex- 
 plained, would be sufficient to warrant a 
 conviction for an attempt to rob. Pco2)le v. 
 Woody, 47 Cal. 80. 
 
 39. The avowal of the prisoner before the 
 robbery was committed, of an intention to 
 rob D.; the fact that the prisoner used vio- 
 lence toward him on the night of the rob- 
 bery; and the further fact that apart of the 
 stolen property was found in the prisoner's 
 possession, are sufficient evidence of guilt 
 to sustain a conviction. Bloomer v. People, 
 1 N. Y. Ct. of App. Decis. 146; s. c. 3 
 Keyes, 9. 
 
 40. Attempt of prisoner to escape. On 
 the trial of four persons for robbery alleged 
 to have been committed in taking money 
 from the person of another, it appeared that 
 on the arrest of the defendants no portion 
 of the money was found in their joossession. 
 Held competent for the prosecution to prove 
 that one of them attempted to e.scape, and 
 was pursued by the officer some distance, as 
 tending to show that he might have dis- 
 posed of the money. People v. Collins, 48 
 Cal. 277. 
 
 41. Situation of party injured. Proof 
 that the complainant on the night of an 
 alleged robbery, had on his person money 
 and other valuables; that he became insen- 
 sible from intoxication ; that he was badly 
 injured in his person; and that when he 
 was restored to consciousness his property 
 was gone, and one of bis pockets turned 
 inside out, is evidence that his property had
 
 KOBBERY.— SEAKCH WARRANT. 
 
 549 
 
 Evidence. 
 
 Verdict. Can only be Issued upon Oath or Affirmation. 
 
 been taken from his person against his will. 
 Bloomer v. People, supra. 
 
 42. Testimony required to prove corpus 
 delicti. Where on a trial for highway rob- 
 bery, the court declined to instruct the jury 
 in regard to any separation between the 
 circumstances which tended to prove the 
 corpus delicti and those which went to iden- 
 tify the guilty party, or to tell them that 
 when the corpus delicti is attempted to be 
 shown by circumstantial evidence, it must 
 be so established that the combined circum- 
 stances produce the same degree of certainty 
 as positive proof, it was held a ground for 
 setting aside the verdict. State v. David- 
 son, 30 Vt. 377. 
 
 43. Determination of felonious intent. 
 On a trial for robbery, the cpiestiou whether 
 or not a felonious intent has been proved, is 
 to be determined by the jury. People v. 
 Hall, 6 Parker, 642. 
 
 4. Verdict. 
 
 44. Cannot find defendant guilty as ac- 
 cessory after the fact. In California, a 
 person charged in an indictment with the 
 commission of robbery, cannot be C(mvicted 
 as accessory after the fact to the robbery. 
 People V. Gassaway, 28 Cal, 404. 
 
 45. May be for assault and battery. In 
 Virginia, under an indictment for robbery 
 in the common form, the jury found the 
 defendants " not guilty of the felony 
 charged ; but guilty of an assault and 
 battery." Held that the verdict was good 
 under the statute (Code, ch. 208, § 27). 
 Hardy v. Com. 17 Graft. 592. And the 
 same was held where the charge was an 
 assault with intent to kill. Canada v. Com. 
 23 lb. 899. 
 
 See Larceny. 
 
 SabbatI), 
 
 See Sunday, 
 
 Scavcl) lUarraut. 
 
 1. Can only be issued upon oath or 
 
 affirmation. The provision in the Consti- 
 tution of the United States that " no war- 
 rant shall issue but upon probable cause 
 supported by oath or affirmation, and par- 
 ticularly describing the place to be searched, 
 and the persons or things to be seized," is in 
 terms re-enacted in the New York bill of 
 rights. Comfort v. Fulton, S9 Barb. 56. 
 
 2. In Maine, where it does not appear 
 upon the face of the proceedings, that before 
 the warrant was issued to search the defend- 
 ant's dwelling-house for intoxicating liquors, 
 the magistrate caused the testimony of the 
 witnesses to be signed and verified by oath 
 or affirmation, the warrant is fatally defect- 
 ive. State V. Carter, 39 Maine, 262. 
 
 3. Must be in strict conformity with 
 the statute. A search for, and seizure of 
 property not made in the cases and accord- 
 ing to the exact mode prescribed by statute, 
 is unlawful. As the direction of a warrant 
 is a material part of it, where the statute 
 contemplates that a search warrant shall 
 only be executed by the sheriff of the county, 
 or a constable or marshal of the town or city, 
 and it is directed to " any constable of the 
 county," it is void. People v. Holcomb, 3 
 Parker, 656. 
 
 4. In New York, it has been held ques- 
 tionable whether a search warrant can be ex- 
 ecuted, or will afford protection to an officer, 
 where it shows upon its face, that the party 
 who has the property alleged to be stolen is 
 charged with the larceny of it, and no war- 
 rant for his arrest accompanies or is incor- 
 porated in the search warrant. lb. 
 
 5. Description of place to be searched. 
 The search wairant must contain as specific 
 a description of the place to be searched as 
 would be required in a deed of land. The 
 complaint and warrant must be construed 
 together; and if the descriptive words are 
 sufficient to designate the place to be 
 searched independent of the repugnant 
 words, the latter Avill be rejected. State 
 V. Bartlett, 47 Maine, 388. 
 
 6. Where a search warrant stated that the 
 complainant " suspects that the stolen prop- 
 erty is concealed in the stable of C, on the 
 east side of the canal in the village of W., 
 in said county, known as the red barn," and
 
 550 
 
 SEARCH WARRANT.— SEDUCTION, 
 
 Right of Officer to enter Apartment of Third Person. Offense, when Committed. 
 
 directed the officer "to search the place 
 where the said property is suspected to be 
 concealed," it was held void in not desig- 
 nating particularly the place to be searched. 
 People V. Holcomb, supra. 
 
 7. The complaint prayed for process to 
 search " the store occupied by R., situated 
 on the northerly side of F. street, being 
 numbered 197 on said street. The warrant 
 directed the officer to search the store, giving 
 the same description, except that the num- 
 ber was stated to be 179. It was proved 
 that R. occupied only one store, and that 
 his store was on the northerly side of F. 
 street, number 197. Held that the descrip- 
 tion in the warrant was sufficient to justify 
 the search. State v. Robinson, 49 Maine, 
 385. 
 
 8. Right of officer to enter apartment 
 of third person. A., who occupied a house, 
 in which he kept liquors for sale in violation 
 of law, had a barrel of ale in a room of the 
 same house, which was occupied by B., but 
 with a faucet passing through a partition 
 into the apartments of A. A search warrant 
 liaving been issued to an officer, requiring 
 him to enter A.'s house and search for and 
 seize liquors, the officer entered B.'s room 
 and removed the barrel of ale. Held that 
 he was justified in so doing, and that 
 B., in resisting him, was guilty of assault 
 and battery. Com. v. Leddy, 105 Mass. 
 381. 
 
 9. Force and effect of officer's return. 
 Where the return upon a warrant shows that 
 the officer seized liquors and arrested the 
 defendant by virtue of it, the latter cannot 
 claim that his premises were searched with- 
 out a warrant, or that the i^roceedings 
 should be solely against the liquors. State 
 V. McCaflferty, 63 Maine, 223. 
 
 10. The officer's return upon search and 
 seizure process is admissible in evidence as 
 a part of the record of judgment; and the 
 record of conviction is proof that the de- 
 fendant had all the liquors described in the 
 officer's return, with the intention of selling 
 the same in violation of law. State v. Lang, 
 63 Maine, 215. 
 
 See Officer. 
 
 Scbuctiou. 
 
 1. Offense, when committed. 
 
 2. Indictment. 
 8. Evidence. 
 
 1. Offense, when committed. 
 
 1. Meaning of. The word "seduction," 
 used in reference to a man's conduct toward 
 a female, ex vi termini, implies sexual inter- 
 course between them ; and where a statute 
 provides that " every person who shall 
 seduce a female," «fcc., without mentioning 
 the word fornication, the latter will be im- 
 plied. State V. Bierce, 27 Conn. 319. 
 
 2. Must be promise, or deception. A 
 person cannot be convicted of seduction in 
 the absence of proof of any artifice, promise, 
 flattery or deception employed by him. 
 State v. Crawtord, 31: Iowa, 40. 
 
 3. Promise may be conditional. On the 
 trial of an indictment for seduction under 
 promise of marriage, it is not error in the 
 court to refuse to charge that if the promise 
 to marry was not an existing one, but de- 
 pendent upon the result of the illicit inter- 
 course as furnishing evidence that the female 
 had been previously virtuous, the accused 
 could not be convicted. Boyce v. People, 
 55 N. Y. 644, Church, Ch. J., and Rapallo, 
 J., dissenting. 
 
 4. Need not be pregnancy. A convic- 
 tion of seduction under promise of marriage, 
 may be had under the New York statute, 
 notwithstanding pregnancy did not result 
 from the intercourse. Cook v. People, 2 N. 
 Y. Supm. N. S. 404. 
 
 5. Chastity of female. The words " pre- 
 vious chaste character," in the statute of 
 New York to punish seduction, mean actual 
 personal virtue. People v. Kenycn, 5 Parker, 
 254 ; 26 N. Y. 203 ; Crozier v. People, 1 
 Parker, 453. A female is not a virtuous 
 woman within the meaning of the statute of 
 Georgia punishing seduction, whose mind is 
 corrupted and defiled by lustful desires and 
 unchaste wishes, although j^revious to her 
 seduction she never had carnal intercourse 
 with a man. "Wood v. State, 48 Ga. 192, 
 Warren, Ch. J., dissenting. 
 
 6. In Iowa, although the female may have
 
 SEDUOTIOK. 
 
 S51 
 
 Offense, when Committed. 
 
 Indictment. 
 
 had previous sexual intercourse with the 
 defendant, yet if she had reformed, and was 
 chaste in fact at the time of the seduction, 
 such latter ofl'ense is within the statute. 
 State V. Carron, 18 Iowa, 372. And in 
 Minnesota, on a tiial for seduction, the 
 following instruction was held proper: "If 
 the jury find that the defendant had carnal 
 intercourse with the prosecutrix at the time 
 and place charged in the indictment, under 
 a promise to marry, they may convict, al- 
 though she may have had carnal connection 
 with tlie defendant previously, provided she 
 had reformed and was chaste at the time of 
 the commission of the offense." State v. 
 Timmens, 4 Minn. 325. 
 
 7. Intention of defendant. It is no de- 
 fense to an information for seduction, that 
 the only inducement used by the defendant 
 to prevail on the female to surrender to him 
 iier chastity, was a promise of marriage on 
 his part sincerely made, and intended by 
 him to be performed ; nor that the female, 
 subsequent to the illicit connection between 
 her and the defendant, misconducted herself. 
 State V. Bierce, 27 Conn. 319. 
 
 8. In Iowa, on the trial of an indictment 
 for taking and enticing away an unmarried 
 female under the age of fifteen years, from 
 and without the consent of the person having 
 Ihe legal charge of her, for the purpose of 
 prostitution, it was held the duty of the 
 court to charge that "if the defendant only 
 intended to obtain the body of the female 
 for his own personal carnal enjoyment, and 
 no more, the act did not amount to her 
 prostitution in the eye of the law." State 
 v. Ruhl, 8 Iowa, 447. 
 
 9. Who may commit the offense. An 
 individual v/ho is old enough to be, and is 
 the father of a child begotten upon the body 
 of the prosecutrix under a promise of mar- 
 riage, is " a man " within the statute of New 
 York punishing seduction. People v. Ken- 
 yon, 5 Parker, 254 ; 26 N. Y. 203. 
 
 10. By married man. It is a good defense 
 to an indictment for the seduction of an 
 unmarried female under the statute of New 
 York of 1848, that at the time of committing 
 the acts charged, the defendant was, and 
 for five years previous thereto had been, a 
 
 married man, having a wife and family, with 
 whom he was then living, all of which, at 
 time of the alleged promise and seduction 
 was well known to the prosecutrix. People 
 V. Alger, 1 Parker, 333. 
 
 11. Custody of female. Under an in- 
 dictment for enticing an unmarried female 
 under the age of fifteen years away from 
 the jjerson having legal charge of her, for 
 the purpose of prostitution, if her parents 
 are dead and no guardian has been appoint- 
 ed, those with whom she resides as a mem- 
 ber of the family, and who have her under 
 their care and protection, will be deemed to 
 have " the legal charge of her person." 
 State V. Ruhl, 8 Iowa, 447. 
 
 12. Statute of limitations. The defend- 
 ant was tried on an information charging 
 him with having on the 3d of March, 1862, 
 seduced and debauched one M. T,, an un- 
 married woman; the statute providing that 
 no prosecution shall be commenced after 
 one year from the time of committing the 
 offense. It was proved that the first sexual 
 intercourse between the parties took place 
 July 8th, 1860 ; that the complainant yielded 
 in consequence of the defendant's promise to 
 marry her; that the promise of marriage 
 was renewed at every act of intercourse ; 
 that the improper intercourse was afterward 
 repeated at short intervals, but was twice 
 suspended during several months, and finally 
 renewed and continued until April, 1862; 
 and that she became pregnant from an in- 
 tercourse which occurred on or about the 
 day charged in the information. Held that 
 the prosecution was not barred by the statute 
 of limitations, and that the defendant was 
 properly convicted*. People v. Millspaugh, 
 11 Mich. 278, Martin, Ch. J., dissenting. 
 
 13. But in New York, where the illicit 
 intercourse began four or five years before 
 the finding of the indictment, and continued 
 until witbin two years, it was held not to be 
 a seduction within two years before the 
 finding of the indictment within the statute 
 of 1848. Saftbrd v. People, 1 Parker, 474. 
 
 2. Indictment. 
 
 14. Must aver that female was seduced. 
 In Georgia, an indictment under the statute
 
 552 
 
 SEDUCTION. 
 
 Indictment. 
 
 Evidence. 
 
 punishing seduction, is not good, which 
 simpl}' charges that the defendant had, by 
 persuasion and promise of marriage, pro- 
 cured a virtuous unmarried woman to have 
 illegal sexual intercourse with him. It must 
 be alleged that the woman has been " se- 
 duced and. induced to submit to the lustful 
 embraces of the seducer, and to allow him 
 to have carnal connection with her." Wood 
 V. State, 48 Ga. 193. 
 
 15. Need not allege a valid promise- 
 An indictment for seduction, under the 
 statute of New York of 1648, is sufficient, 
 which avers that the female was seduced 
 under promise of marriage, without alleging 
 a mutual or valid promise; and the defend- 
 ant may be convicted, although the promise 
 was in fact a false pretense, and one which 
 the seducer knew it was not in his power to 
 perform. Crozier v. People, 1 Parker, 454. 
 
 3. Evidence. \^ 
 
 16. Promise of marriage. The seduced 
 female is competent to prove that the prom- 
 ise of marriage was the inducement to the 
 illicit intercourse. Where nothing appears 
 to the contrary, the defendant will be 
 deemed to have been of full age so far as 
 may affect his promise. Kenyon v. People, 
 26 N. Y. 203. 
 
 17. On the trial of an indictment for 
 seducing a female under promise of mar- 
 riage, the following charge to the jury is 
 unobjectionable: That if they were fully 
 satisfied from the evidence, that the defend- 
 ant promised to marry the prosecutrix if she 
 would have carnal connection with him, and 
 she believing and confiding in such promise, 
 and intending on her part to accept such 
 oifer of marriage, did have such carnal con- 
 nection, it is a sufficient promise of marriage 
 under the statute. Kenyon v. People, supra; 
 s. p. Boyce v. People, 55 N. Y. 644. A 
 mutual promise on the part of the female 
 seduced, is implied, if she yields to the 
 solicitations of the seducer, made under his 
 promise to marry. lb. 
 
 18. Corroboration of prosecutrix. In 
 New York, on the trial of an indictment for 
 seduction under promise of marriage, it is 
 only necessary that the female should be 
 
 corroborated as to the facts constituting the 
 crime, and not as to her having been unmar- 
 ried and of previous chaste character. Ken- 
 yon V. People, 26 N. Y. 203 ; s. c. 5 Parker,, 
 254. There need not be direct and positive 
 corroborative evidence as to any of the 
 material facts ; but it is sufficient, if the 
 female seduced is corroborated by circum- 
 stances. Boyce v. People, 55 N. Y. 644, 
 Where the defendant was a frequent visitor 
 at the house of the mother of the prosecu- 
 trix, waited on her to balls and parties, fre- 
 quently took her to ride, and when the 
 mother spoke to him about keeping com- 
 pany with her daughter, said his motives 
 were good, it was held that there was 
 evidence tending to show that he had made 
 her a promise of marriage. And it having- 
 also been proved that she was delivered of 
 a child, and that there was opf>ortunity for 
 the defendant to have become the father of 
 it if there were such promises as she had 
 sworn to, it was held that the fact of the 
 illicit connection was sufficiently establish- 
 ed. People V. Kenyon, supra. 
 
 19. But in Minnesota, a conviction cannot 
 be had under the statute against seduction,, 
 upon the testimony of the woman seduced, 
 unless she is corroborated upon every mate- 
 rial point, to wit: the promise to marry, the 
 seduction under such promise, and the 
 previous chaste character of the female.. 
 State V. Timmins, 4 Minn. 325. 
 
 20. Repetition of offanse. On the trial 
 of an indictment for seduction under prom- 
 ise of marriage, after the prosecutrix had 
 testified to the commission of the offense 
 on the 2d of July, as charged in the 
 first count of the indictment, the prosecu- 
 tion was permitted, against the objection of 
 the defendant, to prove the offense charged 
 in the second count of the indictment to 
 have been committed on the 19th of August. 
 Held error, it being impossible that the 
 offense should have been twice committed 
 against the same female. Cook v. People, 3 
 N. Y. Supm. N. S. 404. 
 
 21. Moral character of prosecutrix. 
 On a trial for seduction, it is not error in the 
 court to refuse to allow the defendant to 
 prove that the reputation of the prosecutrix
 
 SEDUCTION.— SENTENCE. 
 
 553 
 
 Evidence. 
 
 Duty of Court to Pronounce. 
 
 for morality and virtue in the neighborhood 
 where she resides, is bad; for the reason 
 that her reputation in that regard, would be 
 injuriously affected by the seduction itself. 
 People V. Brewer, 27 Mich.i 134 ; s. c. 2 
 Green's Crim. Eeps. 562. 
 
 22. On the trial of an indictment for 
 seduction under promise of marriage, the 
 defendant cannot show that the character 
 of the prosecutrix for chastity was bad, by 
 general reputation. He must prove specific 
 acts. And the same as to the house of the 
 mother of the prosecutrix; its character 
 cannot be proved by general reputation, but 
 only by specific acts. People v. Kenyon, 5 
 Parker, 254 ; 30 N. Y. 203. See Safford v. 
 People, 1 Parker, 474. 
 
 23. In Iowa, under the statute jiunishing 
 seduction (Code, § 2586), it is not necessary 
 in order to establish the unchaste character 
 of the female, to prove that she had been 
 previously guilty of sexual intercourse, but 
 only to show that she was lewd in her 
 behavior. Andre v. State, 5 Iowa, 389. 
 But in the absence of proof to the contrary, 
 the chastity of the female will be presumed, 
 lb. See Boak v. State, lb. 430; State v. 
 Higdon, 32 lb. 263. 
 
 24. On the trial of an indictment for 
 seduction under promise of marriage, evi- 
 dence is inadmissible to show that after the 
 alleged seduction she had been guilty of 
 fornication with another person. Boyce v. 
 People, 55 N. Y. 644. 
 
 25. Interrogation of prosecutrix as to 
 previous acts. On the trial of an indict- 
 ment for seduction, the prosecutrix may be 
 interrogated on her cross-examination as to 
 her prior unchaste acts and connection 
 before the date of the alleged offense with 
 men other tlian the defendant. State v. 
 Sutherland, 30 Iowa, 570. 
 
 26. Testimony to impeach prosecutrix. 
 On the trial of an indictment for seduction 
 under promise of marriage, the prosecutrix 
 testified that she had never had any sexual 
 intercourse with any other person than the 
 defendant. UeUl that the defendant had a 
 right to contradict her, either directly l)y 
 proof of such intercourse with others, or by 
 facts from which the jury might infer the 
 
 same, and that for the latter purpose it was 
 proper to show wanton or lewd acts. Peo- 
 ple v. McArdle, 5 Parker, 180. 
 
 27. It is error to refuse to charge the jury 
 on a trial for seduction, that one reason for 
 disbelieving the prosecutrix is the fact that 
 in her testimony on the trial she disclosed 
 acts done, and habits of life pursued by her, 
 which exhibited moral turpitude. Wood v. 
 State, 48 Ga. 193. 
 
 28. Although on a trial for seduction the 
 admission of the prosecutrix that she had 
 had sexual intercourse with another person 
 than the defendant, may be used as im- 
 peaching testimony after the proper founda- 
 tion has been laid for its introduction, yet 
 such evidence is not admissible when not 
 offered in connection with other proofs to 
 show a habit of lewd talk and conversation, 
 but for the inferences which might be 
 drawn from the single fact 6f the admission 
 that she was not at the time in the path of 
 virtue. People v. Brewer, 27 Mich. 134; 
 s. c. 2 Green's Crim. Rei^s. 562. 
 
 29. Proof of good character of prosecu- 
 trix. On the trial of an indictment for se- 
 duction, three or four witnesses for the 
 defendant testified to acts of lewdness on the 
 part of the prosecutrix ; and one witness 
 stated that on two occasions he had sexual 
 connection with her. Held competent for 
 the prosecution to prove that the prosecu- 
 trix had a good character for chastity, was 
 correct and modest in her deportment, and 
 that until the occurrence with the defend- 
 ant she was considered virtuous. State v. 
 Shean, 32 Iowa, 88, Dey, J., dissenting. 
 
 See Abduction ; Incest ; Lasciviotjsness. 
 
 0clf- defense. 
 
 See Assault and battery; Homicide. 
 
 Sentence. 
 
 1. Duty of court to pronounce. Where 
 a general verdict of guilty is rendered, the 
 court must either pronounce sentence on the 
 verdict, or grant a new trial. It cannot set
 
 554 
 
 SENTENCE. 
 
 Competency of Court. 
 
 Delaying Sentence. 
 
 aside the verdict and direct a judgment of 
 acquittal to be entered for the defendant. 
 State V. Curtis, 6 Ired. 247. 
 
 2. Competency of court. Sentence of 
 death being about to be passed on the pris- 
 -oner by a judge holding the United States 
 Circuit Court alone, in the absence of his as- 
 sociate, it was objected by the prisoner's 
 counsel that this could not be done, for the 
 reason that the trial had been conducted be- 
 fore both judges. Held that it was com- 
 petent for the court to pass the sentence 
 Avhen held by a single judge. U. S. v. 
 Gordon, 5 Blatchf 18. 
 
 3. In California, at the close of the testi- 
 mony on a trial for murder, the district 
 judge of the 14th district, who had thus far 
 presided at the trial, was obliged to go 
 home on account of dangerous illness in his 
 family. It was thereupon agreed by the 
 })arties that the judge of the 6th judicial 
 district might sit during the remainder of 
 that trial. The latter accordingly held the 
 court, heard the argument, charged the 
 jury, and received the verdict. Before the 
 day appointed for passing sentence, the 
 judge of the 6th judicial district resumed 
 his seat on the bench and pronounced the 
 judgment of the court. Held not improiier. 
 People V. Henderson, 28 Cal. 465. 
 
 4. Delaying sentence. If, after verdict 
 and before sentence, the prisoner becomes 
 insane, it is good cause for staying sentence. 
 State V. Brinyea, 5 Ala. 241. 
 
 5. In New York it has been held that the 
 Court of Oyer and Terminer ought not to 
 delay the sentence in order to have the de- 
 cision reviewed by certiorari, except in 
 cases of great doubt and difficulty, but 
 should leave the prisoner to his writ of er- 
 ror. Colt V. People, 1 Parker, 611. 
 
 6. In New York it can seldom become 
 necessary to delay the sentence, for the rea- 
 son that the governor is authorized, upon 
 conviction of the prisoner for a capital of- 
 fense, to take the opinion of the attorney- 
 general, and of the high judicial ofBcers of 
 the State, before he permits the execution cf 
 the sentence, and to suspend it if there are 
 doubts as to its legality, until the case can 
 
 be taken to the Supreme Court on a writ of 
 error. Colt v. People, supra. 
 
 7. In Massachusetts, where a juror did 
 not agree to find the prisoner guilty of 
 murder, but only of manslaughter, and 
 through mistake assented to a verdict for 
 murder, it was held no cause for delaying 
 sentence. Com. v. Drew, 4 Mass. 391. 
 
 8. In Alabama, the statute of 1836 pro- 
 vided that in capital cases, whenever points 
 were reserved as novel and difficult for the 
 decision of the court, the execution of the 
 judgment should be postjjoned to a time not 
 less than twenty-five, nor more than forty 
 days after the commencement of the next 
 succeeding term of the Supreme Court. 
 Held that a prisoner who was sentenced un- 
 der such circumstances was entitled to the 
 delay given by the statute, and that a sen- 
 tence fixing an earlier day for his execution 
 was erroneous. John v. State, 2 Ala. 290. 
 
 9. Postponement of sentence after plea 
 of guilty. A prisoner pleaded guilty to an 
 indictment, and the prosecuting attorney 
 did not move for sentence, but the indict- 
 ment was filed and the defendant permitted 
 to go at large on a recognizance to appear 
 when sent for. After several intervening 
 terms of the court the prosecuting attorney 
 moved for sentence, which it was held 
 might then be passed. Com. v. Chase, 
 Thach. Crim. Cas. 267. 
 
 10. Original indictment not necessary. 
 Possession of the original indictment is not 
 essential to the sentencing of the prisoner. 
 Where the indictment has been stolen from 
 the files, its place may be supplied by a 
 copy. Mount v. State, 14 Ohio, 295. 
 
 11. When accused must be present. To 
 sustain a conviction for felony, the record 
 must affirmatively show that the prisoner 
 was personally present in court when he was 
 ti'ied, and when sentence was pronounced 
 against him. Graham v. State, 40 Ala. 659. 
 
 12. Judgment for corporal punishment 
 cannot be rendered against the prisoner in 
 his absence, and the record must affirma- 
 tively show that he was present in court. 
 Young V. State, 39 Ala. 357; Peters v. 
 State, lb. 681 ; Gibson v. State, lb. 693. But 
 it is not necessary that the fact that he was
 
 SENTENCE. 
 
 555 
 
 Defendant's Presence Unnecessary. 
 
 When Prisoner need not be Interrogated. 
 
 present should be stated in express terms iu 
 the record. It is sufficient if it can be col- 
 lected therefrom by fair intendment. West 
 V. State, 2 Ala. 212; Cole v. State, 5 Eng. 
 318 ; PeoiDle v. Winchell, 7 Cow. 524. The 
 following recitals in the judgment entry are 
 not enough : " This day came the solicitor 
 and the defendant, and it is therefore con- 
 sidered by the court that the prisoner be 
 taken hence to the jail of the county," &c. 
 Eliza V. State, 39 Ala. 693. 
 
 13. In California, if the prisoner objects 
 that he was absent at the time of trial or 
 rendition of verdict, or passing of sentence, 
 he must prove it. People v. Stuart, 4 Cal.218. 
 
 14. When presence of defendant not 
 necessary. It is not error for tlie court to 
 name the day for passing sentence when the 
 defendant is not in court. People v. Gal- 
 vin, 9 Cal. 115. 
 
 /^15. The prisoner need not be present in 
 court when judgment is pronounced, unless 
 corporal puuishment is to be inflicted. Son 
 V. People, 12 Wend. 344. 
 
 16. Where it is iu the discretion of the 
 court to sentence the prisoner to corporal 
 punishment, it does not follow that he must 
 be present, though the rule is that such a 
 sentence shall not be imposed in his absence. 
 
 ^But where the sentence is a fine merely, the 
 defendant's presence is not necessary. Peo- 
 ple v. Taylor, 3 Denio, 91. 
 
 17. In Iowa, under the statute (Code, sec. 
 3059), where the offense charged is a mis- 
 demeanor, judgment may be rendered in 
 defendant's absence. Hughes v. State, 4 
 Iowa, 554; State v. Shepard, 10 lb. 126. 
 
 18. Asking prisoner if h.e has anything 
 to say. On every trial for felony, before 
 the prisoner is sentenced, the court should 
 demand from him what he has to say why 
 judgment should not be pronounced against 
 him, and the fact that he was present and 
 that such demand was made of him ought 
 to appear upon the record. Safford v. Peo- 
 ple, 1 Parker, 474. 
 
 19. In cases of felony, it is error to omit 
 to ask the prisoner, before passing sentence, 
 if he has anything to say why sentence 
 should not be awarded against him. Mul- 
 len V. State, 45 Ala. 43. 
 
 L 
 
 20. In New York and Mississippi, in cap- 
 ital cases, it is indispensable that the record 
 show that the prisoner was asked why 
 sentence should not be pronounced upon 
 him. Messner v. People, 45 N. Y. 1, Peck- 
 ham, 3. , dissenting ; James v. State, 45 Miss. 
 572. 
 
 21. In Alabama, under an indictment for 
 felony, the record need not affirmatively 
 show that the prisoner was asked by the 
 court before sentence if he had anything to 
 say in arrest of judgment. But it will be 
 presumed that the question was asked unless 
 the record affirmatively shows the contrary. 
 Aaron v. State, 39 Ala. 684; Robin v. State, 
 40 lb. 72; Taylor v. State, 42 lb. 531. 
 
 22. Whan prisoner need not be interro- 
 gated. It is only in capital cases that the 
 coui't is required to demand of the prisoner 
 whether he has anything to say why sen- 
 tence should not be passed upon him. 
 West v. State, 2 Ala. 212; Grades v. State, 
 2 Ga. 253. 
 
 23. In Massachusetts, it is only in capital 
 trials that there need be a recital on the 
 record that the defendant was asked what 
 he had to say why judgment should not pro- 
 ceed against him. Jeifries v. Com. 12 Allen, 
 145. 
 
 24. In Georgia, it has been held that in 
 tbe minor felonies the neglecting to ask the 
 prisoner if he has anything to say why 
 sentence should not be pronounced against 
 him is not a sufficient ground for reversing 
 the judgment, provided it appears that he 
 and his counsel were both iu court when 
 the sentence was pronounced, and urged 
 nothing in arrest of judgment or in mitiga- 
 tion of the prisoner's guilt. Grady v. State, 
 11 Ga. 253. 
 
 25. In New York, the objection that it 
 does not appear that the prisoner after con- 
 viction of burglary was asked why sentence 
 should not be passed upon him, is not 
 ground for reversal, though it would be in 
 a capital case. In the absence of any state- 
 ment, objection or exception upon the record, 
 it will be implied that the usual formalities 
 were observed. People v. McGeery, 6 Par- 
 ker, 653. 
 
 26. In Iowa, where the defendant is con-
 
 55G 
 
 SENTENCE. 
 
 Upon Overruling Demurrer. 
 
 In Case of Repeal of Statute. 
 
 yicted of a misdemeanor, the record need 
 not sliow th:it he was asked if he had any 
 reason to state why judgment should not be 
 pronounced against him. State v. Stiefle, 
 13 Iowa, 603. 
 
 27. Upon overruling demurrer. Judg- 
 ment having been rendered in favor of the 
 defendant on demurrer to an indictment for 
 a misdemeanor, amJ the judgment reversed 
 on error, it was held that the appellate court 
 must give a final judgment for the prosecu- 
 tion on the demurrer and pass sentence on 
 the defendant, and that he could not with- 
 draw the demurrer and plead. People v. 
 Taylor, 3 Denio, Dl. 
 
 28. Under pleas of former conviction 
 and acquittal. In Iowa, after the issues 
 under the pleas of former conviction and 
 acquittal were determined against the de- 
 fendants by the verdict of the jury, the court 
 proceeded to judgment without trying the 
 defendants again on the question of their 
 guilt. Held proper under the statute (^Re- 
 vision, § 4833.) State v. Green, 16 Iowa, 
 239. 
 
 29. In case of escape. Where after con- 
 viction the prisoner escapes, and cannot be 
 produced on the day fixed for his sentence, 
 he may be sentenced at a subsequent term 
 of the court. State v. Pierce, 8 Nev. 291. 
 
 30. In Massachusetts, under the statute 
 (R. S. ch. 143, § 49), where a person sen- 
 tenced to the house of correction for suc- 
 cessive terms of imiDrisonment on sevei'al 
 convictions, breaks prison and escapes be- 
 fore the expiration of the sentence on his 
 first conviction, he may, upon being found 
 guilty of such escape, I)e sentenced to the 
 State prison for the unexpired term to whicli 
 he was sentenced on all the previous con- 
 victions. Stevens v. Com. 4 Mete. 360. 
 
 31. Where defendant violates condition 
 of pardon. Where a prisoner having been 
 pardoned on condition that he shall leave 
 the State and not return, violates the con- 
 dition, he is remitted to his original sen- 
 tence, and when brought before the court 
 to have it repronounced, and another day 
 assigned for its execution, he may show 
 cause why it should not be passed. State 
 Chancellor, 1 Strobh. 347. 
 
 32. In case of repeal of statute. Where 
 a penal statute is repealed without a saving 
 clause as to prosecutions previously com- 
 menced, a prisoner found guilty of an 
 offense created by such statute, cannot be 
 sentenced. Com. v. Kimball, 21 Pick. 373 ; 
 Heald v. State, 3G Maine, 63. Where the 
 prisoner who had been sentenced to be hung 
 was not executed on the day named in the 
 sentence, and was brought before the court 
 at a subsequent term to be resentenced, it 
 was held that the repeal of the law under 
 which he was convicted and sentenced, sub- 
 sequent to the original sentence, made it nec- 
 essary to discharge him. Aaron v. State, 
 40 Ala. 306, Walker, Ch. J., dissenting. 
 
 33. As the statute of New York prescrib- 
 ing the punishment of death was only de- 
 clatory of the common law, where a prisoner 
 after the repeal of the statute was sentenced 
 to suffer the punishment of death, it was 
 held that he was sentenced to be executed in 
 the mode required by the common law. 
 Done V. People, 5 Parker, 364. 
 
 34. Under joint indictment. Where 
 several are convicted under a joint indict- 
 ment, they must be separately sentenced. 
 State v. Gay, 10 Mo. 440; Waltzer v. State, 
 3 Wis. 783. 
 
 35. Where two persons jointly indicted 
 are convicted, and their common surety con- 
 fesses judgment on the conviction, a sepa- 
 rate judgment should be rendered against 
 each, with his surety, for the amount of the 
 fines and costs. McLeod v. State, 35 Ala. 
 395. 
 
 36. Under indictment containing several 
 counts. Where an indictment containing 
 several counts, charges an oflense embraced 
 in one transaction, it is error in the court to 
 sentence on each count separately. Wood- 
 ford V. State, 1 Ohio, N. S. 427. 
 
 37. But in Pennsylvania, where an indict- 
 ment contains two counts, the first, for will- 
 fully and maliciously breaking and entering 
 a storehouse or shop, with intent feloniously 
 to steal, take and carry away goods and chat- 
 tels, and the second for simple larceny, 
 enumerating the goods, and the defendant 
 having been found guilty was sentenced to 
 separate and distinct terms of imprisonment
 
 SENTENCE. 
 
 557 
 
 Under Indictment Containing Several Counts. 
 
 Under Two Indictments. 
 
 on each count, it was held proper. Com. v. 
 Birdsall, 69 Penn. St. 482. 
 
 38. On a general verdict of guilty, under 
 an indictment containing counts for burg- 
 lary, larceny, and receiving stolen goods 
 knowing them to have been stolen, the 
 prisoner may be sentenced for the highest 
 offense charged. People v. McGeery, 6 
 Parker, 653 ; People v. Bruno, lb. 657. 
 
 39. Where one count of an indictment is 
 good, and another defective, and there is a 
 general verdict of guilty, it is not error to 
 render judgment on the good count, unless 
 there is some matter of aggravation alleged 
 in the defective count which may be sup- 
 posed to have influenced the judgment and 
 sentence. Arlen v. State, 18 New Ham2).563. 
 
 40. Where the clerk of the court under- 
 took to number the counts of the indict- 
 ment on the margin, but by mistake, com- 
 menced the numbering with the second 
 count, and the mistake was continued 
 through the whole of the counts, and the 
 jury returned a verdict of guilty on the 
 seventh and eighth counts as numbered, it 
 was held error for the court to sentence the 
 prisoner on the seventh and eighth counts of 
 the indictment, they being numbered six and 
 seven. Woodford v. State, 1 Ohio, N.S. 427. 
 
 41. Under indictment charging distinct 
 offenses. Where there is a general verdict 
 of guilty on an indictment charging several 
 distinct offenses, a single sentence is legal, 
 if it do not exceed the sum of the several 
 sentences which may be awarded. Carleton 
 V. Com. 5 Mete. 532. 
 
 42. In Massachusetts, where the defendant 
 is charged with breaking and entering a 
 dwelling-house with an intent to steal, and 
 stealing therefrom, and there is a general 
 verdict of guilty, he is to be sentenced for 
 house-breaking and not for larceny. Com. 
 v. Hope, 22 Pick. 1. But if a breaking and 
 entering with intent to steal be proved, and 
 a larceny committed at another time be also 
 proved, the prisoner may be sentenced for 
 both offenses. Kite v. Com. 11 Mete. 581. 
 See Murray v. Com. 13 Mete. 514. 
 
 43. In the same State, under the statute 
 (R. S. of Mass. ch. 126, § 19), where a per- 
 son is convicted of three distinct larcenies 
 
 at the same term of the court, there must be 
 a consolidated judgment against him as a 
 common and notorious thief Haggett v. 
 Com. 3 Mete. 457. 
 
 44. Under two indictments. Where the 
 prisoner is found guilty on two separate in- 
 dictments at the same term of the court, he 
 may be sentenced on both, the second to 
 commence upon the expiration of the first. 
 State V. Smith, 5 Day, 175. 
 
 45. Where there are distinct punish- 
 ments. Where the prisoner is liable to two 
 distinct and independent punishments, he 
 cannot allege for error, that only one of the 
 punishments is adjudged against him. Kane 
 V. People, 8 Wend. 203. 
 
 46. Under verdict finding less than 
 amount charged. Where the value laid in 
 an indictment for larceny is over one hun- 
 dred dollars, the jury may in their verdict 
 find the value less than the amount charged, 
 and then the prisoner is sentenced in the 
 same manner as if the indictment had laid 
 the value under one hundred dollars. Cora. 
 V. Griflan, 21 Pick. 523. 
 
 47. Under statute punishing common- 
 law offense. Where an oflense is a misde- 
 meanor at common law, punishable by fine 
 and imprisonment in the discretion of the 
 court, and a statute is passed punishing by 
 a -fine of five hundred dollars, the court, in 
 passing sentence, cannot exceed the punish- 
 ment imposed by the statute. State v. 
 Thompson, 3 Strobh. 12. 
 
 48. Before expiration of previous sen- 
 tence. Where a prisoner, under an unex- 
 pired sentence, commits an offense, he may 
 lawfully be convicted thereof, and the suc- 
 ceeding period of imprisonment will com- 
 mence on the termination of the period next 
 preceding. State v. Connell, 49 Mo. 282. 
 
 49. For successive terms of imprison- 
 ment. Where a person is found guilty and 
 sentenced to imprisonment for one oflense, 
 and during the same term is found guilty of 
 others, he may be sentenced on the latter, 
 each term of imprisonment to commence at 
 the expiration of the other. State v. Smith, 
 5 Day, 175 ; Com. v. Leaths, 1 Va. Cas. 
 151 ; JRussell v. Com. 7 Serg. & Rawle, 489 ; 
 Kite v. Com. 11 Mete. 581.
 
 558 
 
 SENTENCE. 
 
 To Additional Punishment. 
 
 Directing Mode and Place of Imprisonment. 
 
 £0. To additional punishment. A sen- 
 tence to additional punishment on an infor- 
 mation cliargiug three previous convictions 
 and sentences, ■will be sustained, if two of 
 those sentences were valid, although one of 
 them has been reversed for error. Newton 
 V. Com. 8 Mete. 535. See Wilde v. Com. 2 
 Mete. 408. 
 
 51. In New York, under the statute (Sess. 
 42, ch. 246, § 4), providing that a person a 
 second time convicted of petit larceny shall 
 be imprisoned in the State prison, to justify 
 a sentence for the increased penalty, the 
 second offense must have been committed 
 after a conviction for the first. It is not 
 sufficient that the prisoner committed two 
 successive petit larcenies which were sever- 
 ally and successively prosecuted to convic- 
 tion, though the second indictment charged 
 the first conviction as a part of the oflense. 
 People V. Butler, 3 Cow. 347. 
 
 52. Designating time of imprisonment. 
 
 A sentence is defective which does not state 
 the date at which the imprisonment shall 
 commence. Kelly v. State, 3 Smed. & 
 Marsh. 518. 
 
 53. Where the statute provides that the 
 term of imprisonment shall begin upon and 
 include the day of conviction, a sentence 
 that the defendant be imprisoned in the 
 State prison for one year, and that until 
 taken there he be confined in the county 
 jail, sufficiently defines the term of imprison- 
 ment in the State prison. State v. Gaskins, 
 65 N. C. 320. 
 
 54. In Connecticut, where a justice of the 
 peace sentenced the defendant to the work- 
 house until released by order of law, it was 
 held error, such a sentence being for an in- 
 definite time. Wash v. Belk, 3 Conn. 302. 
 
 55. In New York, at a Court of Special 
 Sessions, the defendant was convicted of 
 petit larceny, and sentenced to pay a fine and 
 to imprisonment for thirty days, and in case 
 the fine was not paid, to imprisonment for 
 the term of four months. Held that as the 
 Special Sessions under the statute (Sess. 36, 
 ch. 104, § 4), could imprison not to exceed 
 thirty days for the non-payment of a fine, the 
 sentence was good for the thirty days, but 
 
 void for the four months. Matter of Sweat- 
 man, 1 Cow. 144. 
 
 56. The requirements of a statute that a 
 sentence shall be so made that the imprison- 
 ment shall expire between IVIarch and No- 
 vember, is merely directory, and a failure to 
 comply with such requirement does not 
 render the sentence void. Miller v. Finkle, 
 1 Parker, 374. 
 
 57. Directing mode and place of im- 
 prisonment. In New York, the sentence of 
 a prisoner to confinement in the State 
 prison is necessarily a sentence of imprison- 
 ment at hard labor. Done v. People, 5 
 Parker, 364 ; and the omission to designate 
 in the sentence the prison in which the con- 
 vict is to be confined is not error. Weed 
 V. People, 31 N. Y. 465. 
 
 58. In Massachusetts, under the statute 
 (R. S. ch. 139, § 8), providing that a sen- 
 tence to imprisonment in the State prison 
 shall be partly to solitary confinement and 
 partly to confinement at hard labor, a sen- 
 tence which directs no solitary confinement 
 will be erroneous. Stevens v. Com. 4 Mete. 
 360. 
 
 59. Where a statute provided that an of- 
 fense might be punished by imprisonment in 
 the penitentiary or county jail, it was held 
 that a sentence to imprisonment in the 
 county jail at " hard labor," was void, not- 
 withstanding " hard labor " made a part of 
 a sentence to the penitentiary under the 
 statute. Daniels V. Com. 7 Barr, 371. 
 
 60. Designating execution of prisoner 
 at a time not fixed by law. A sentence 
 which directs the execution of a person con- 
 victed of murder at a time beyond the 
 period prescribed by the statute, is not void ; 
 but such designation may be rejected as sur- 
 plusage. State V. Summers, 9 Nev. 269. 
 
 61. Where the court below improperly 
 sentenced the prisoner to be executed on a 
 certain day, and he procured a stay of pro- 
 ceedings until the day of execution had 
 passed, it was held that as the error had, by 
 his own act, become immaterial, he was not 
 entitled to a reversal of the judgment. Low- 
 enberg v. People, 27 N. Y. 336, Balcom, 
 Wright, and Emott, JJ., dissenting. 
 
 62. Cannot be upon agreed case. The
 
 SENTENCE. 
 
 55f> 
 
 Amendment of Sentence. 
 
 Correction of Sentence on Appeal. 
 
 defendant cannot be sentenced upon facts 
 agreed upon by the parties. State v. Cross, 
 34 Maine, 595. 
 
 63. Must not be conditional. The sen- 
 tence must be absolute, and not have an- 
 nexed to it a condition for its subsequent 
 remission. State v. Bennett, 4 Dev. & Batt. 
 43. 
 
 64. Amendment of sentence. Where the 
 court in passing sentence lias overlooked a 
 requirement of the statute, it may correct 
 the judgment at the same term, before the 
 sheriff has executed it, by vacating the first 
 sentence and passing a new one. Miller v. 
 Finkle, 1 Parker, 374; Drew v. Com. 1 
 Whart. 279. 
 
 65. In Alabama, under the statute (Code, 
 §§ 3663-64), where the judgment of convic- 
 tion in a capital case does not name the day 
 of execution, the appellate court on afBrm- 
 ing the judgment will specify the day. 
 Russell V. State, 33 Ala. 866. 
 
 66. In California, where the court after 
 conviction of murder, sentenced the prisoner 
 to be executed, but afterward caused him to 
 be again brought into court, and amended 
 the sentence by shortening the time, it was 
 held proper. People v. Thompson, 4 Cal. 
 238. 
 
 67. In Virginia, where the defendant was 
 sentenced in the court below to the peniten- 
 tiary for a shorter time than was authorized 
 by law, it was held that the Circuit Court 
 might, upon proper proceedings had before 
 that court, correct the error, and sentence 
 the defendant for tlie shortest period fixed 
 by the statute for the offense of which he 
 was convicted. Logan's Case, 5 Graft. 
 692. 
 
 68. Where a statute provides that an 
 offense shall be punished by fine or im- 
 prisonment, and the court having sentenced 
 the offender to pay a fine, and also to im- 
 prisonment ; the fine has been paid, it cannot 
 amend the judgment by imposing imprison- 
 ment instead of the former sentence. Em 
 joarie Lange, 18 Wallace, 163. 
 
 69. Correction of sentence on appeal. 
 Where no objection is made to the verdict, 
 but the sentence is defective, the judgment 
 will be reversed without disturbing the 
 
 verdict, and the cause remanded with di- 
 rections to pronounce the proper sentence. 
 Kelly V. State, 3 Sraed. & Marsh. 518. 
 
 70. Where the prisoner was not present 
 when sentence of corporal punishment was 
 pronounced, a new trial will not necessarily 
 be granted, but the judgment will be re- 
 versed, and the cause remanded, with in- 
 structions to the court below to proceed to 
 pronounce sentence upon the prisoner ac- 
 cording to law. Cole v. State, 5 Eng. 318. 
 
 71. A defendant having been convicted of 
 felony, appealed from the judgment on the 
 ground that the facts stated in the indict- 
 ment did not constitute felony. The Su- 
 preme Court reversed the judgment for this 
 error, and directed the court below to give 
 judgment for a misdemeanor, that being the 
 judgment which should have been there 
 rendered. State v. Upchurch, 9 Ired. 454. 
 
 72. In New York, where a murder was 
 committed after the passage of a certain act, 
 and the indictment, trial and conviction 
 were had subsequent to the enactment of a 
 law changing the mode of punishment, but 
 the latter statute declared that no offense 
 committed previous to the time when it 
 took effect should be aflected by it, and the 
 court notwithstanding, sentenced the pris- 
 oner to the punishment prescribed by it, the 
 court directed the record to be remitted to 
 the Oyer and Terminer pursuant to the laws 
 of 1863,ch.226, with directions to pronounce 
 the judgment prescribed by the first men- 
 tioned act. Ratzky v. People, 29 JST. Y. 
 124; s. p. McKee v. People, 32 N. Y. 239. 
 
 73. In Alabama, where the court below, 
 on a trial for larceny, pronounces a wrong 
 sentence, the appellate court will reverse 
 the sentence and pronounce judgment in 
 conformity with the statute. Oliver v. 
 State, 5 How. Miss. 14. And see Sword v. 
 State, 5 Humph. 102; Logan's Case,5 Graft. 
 692. 
 
 74. In Arkansas, when the court in pass- 
 ing sentence does not comply with the 
 statute, it will not be ground for the reversal 
 of the judgment, but a compliance with the 
 statute will be directed. Brown v. State, 8 
 Eng. 96. 
 
 75. In Tennessee, where a statute provid-
 
 560 
 
 SENTENCE. 
 
 Presumption in Favor of Sentence. 
 
 Execution of Sentence. 
 
 cd that the defendant on conviction should 
 be fined and imprisoned, and the Circuit 
 Court sentenced him merely to pay a fine, it 
 was held that the Supreme Court might, 
 under the statute of 1800, ch. 49, order his 
 imprisonment. Sword v. State, 5 Humph. 
 102. 
 
 76. Presumption in favor of sentence. 
 The appellate court will not presume that 
 the prisoner was tried and sentenced with- 
 out an indictment, simply because the entries 
 showing the trial, conviction, and sentence 
 are copied from the minutes into the tran- 
 script before the indictment. Cawley v. 
 State, 37 Ala. 153. 
 
 77. Where the indictment contains sev- 
 eral counts, each charging a distinct offense, 
 and a general verdict of guilty is rendered, 
 it will be presumed that the judge who 
 tried the case pronounced judgment for the 
 ofi'ense to which the evidence was directed 
 and was applicable. People v. Shotwell, 
 37 Cal. 394. 
 
 78. Where there is a general verdict and 
 a general judgment upon an indictment 
 charging in one count a rape, and in another 
 an assault and battery with intent to com- 
 mit a rape, it will be intended that the pris- 
 oner was sentenced lor the rape. Cooke v. 
 State, 4 Zabr. 843. 
 
 79. Execution of sentence. The time at 
 which the sentence shall be carried into 
 efl'ect, forms no part of the judgment of the 
 court. State v. Cockerham, 2 Ired. 204. 
 
 80. Where a person having been convicted 
 of an assault, Avas sentenced to be imprisoned 
 for two calendar months "from and after 
 first day of November next," but he was not 
 imprisoned according to the sentence, and at 
 a subsequent term of the court it was di- 
 rected that the sentence for two months' 
 imprisonment should be immediately carried 
 into efi"ect, it was held proper. Ooton v. 
 State, 5 Ala. 463. 
 
 81. Where the defendant is sentenced to 
 imprisonment for a certain term, and until 
 he shall pay the costs, if payment is not 
 made, the continued imprisonment, after the 
 expiration of the term, is of the same char- 
 acter as that before. Riley v. State, 16 
 Conn. 47. 
 
 82. Where a prisoner, being sentenced to 
 imprisonment for a term to commence imme- 
 diately after the expiration of a previous 
 sentence, the first sentence is reversed, the 
 term of the second sentence begins to run 
 from the time of the reversal of the first. 
 Brown v. Com. 4 Rawle, 2o9. 
 
 83. Where there are two sentences of im- 
 prisonment, the second imprisonment to 
 commence when the first terminates, if the 
 latter is shortened by a reversal of the judg- 
 ment or a pardon, it then expires, and the 
 other sentence takes'etfect the same as if the 
 previous one had expired by lapse of time. 
 Kite V. Com. 11 Mete. 581. 
 
 84. Although a prisoner who was con- 
 victed in Philadelphia, and sentenced to 
 imprisonment in the jail and penitentiary of 
 that city, ought, upon the sale of the prison, 
 to have been removed to the Eastern Peni- 
 tentiary instead of to the Moyaraensing 
 Prison, as was done, it was held that he 
 could not be discharged on habeas corpus on 
 account of the mistake. Reddill's Case, 1 
 Whart. 445. 
 
 85. A jjerson having been sentenced to 
 imprisonment at hard labor for a specified 
 number of years in the jail and penitentiary 
 for the city- and county of Philadelphia, and 
 confined, in pursuance of the sentence, in 
 the Walnut street prison, upon its sale, was 
 removed, with other prisoners, to the Arch 
 street prison, and kept there without being 
 put to hard labor. Held that he was not en- 
 titled to be discharged on habeas corjius. 
 Pember's Case, 1 Whart. 439. 
 
 86. In cases where, before the expiration 
 of the term of imprisonment, the jmsoner 
 escapes, no new award of execution is neces- 
 sary or proper. The prisoner can be re- 
 taken at any time and confined under the 
 authority of the original judgment until his 
 term of imprisonment has been accomplished. 
 If an order be made awarding execution of 
 the sentence, it will not conclude the pris- 
 oner on habeas corpus, neither is it reviewable 
 on writ of error, Haggerty v. People, 53 
 N. y. 476 ; s. c. 6 Lans. 332. 
 
 87. In Massachusetts, sentences of death 
 are carried into effect by a warrant from the 
 executive, at a time therein directed, in the
 
 SENTENCE.— SL AYE TRADE. 
 
 561 
 
 Effect of Sentence on Rights of Prisoner. 
 
 Unlawful Participation in. 
 
 mode and at the place faxed by law, and the 
 court does not fix the time or place or issue 
 ■any warrant to the sheriff directing the exe- 
 cution. Webster v. Com. 5 Cush. 386. 
 
 88. A sentence was as follows: "That 
 you, A. B., be removed from this place and 
 detained in close custody in the prison in 
 this county, and thence taken at such time 
 AS the executive government of this com- 
 monwealth may, by their warrant appoint, 
 to the place of execution, and there be hung 
 by the neck until you are dead." The follow- 
 ing entry was made in the record : " Where- 
 upon, all and singular the premises being 
 seen and understood, it is considered by the 
 court that the said A. B. be taken to the 
 jail from whence he came, and thence to 
 the place of execution, and there be hanged 
 by the neck until he be dead." Held that, 
 as the sentence in the form in which it was 
 entered, did not undertake to direct the 
 place where it should be executed, it was 
 not erroneous. lb. 
 
 89. The sentence may be carried into ef- 
 fect, notwithstanding a repeal of the law, or 
 the enactment of a mitigated punishment. 
 State V. Addington, 2 Bail. 516 ; contra, 
 Com. V. Kimball, 21 Pick. 373. 
 
 90. Effect of sentence on rights of pris- 
 oner. The effect of a sentence by which all 
 the civil rights of the prisoner are suspended, 
 commences, as docs likewise the time of 
 imprisonment, from the time of 2:)assing sen- 
 tence. Miller v. Finkle, 1 Parker, 374. 
 
 ■ 91. The consequence of vacating a sen- 
 tence and pronouncing a new sentence dur- 
 ing the same term, is the same as to the 
 civil rights of the defendant, as if the first 
 judgment had been reversed on error, and 
 the defendant had been again convicted on 
 a second trial. lb. 
 
 92. Where, according to a sentence, the 
 term of imprisonment in the State prison 
 would expire in December, and afterward, 
 at the same term, the sentence was vacated 
 and a new sentence pronounced making it 
 expire in October, and the prisoner, subse- 
 quent to the first sentence and before the 
 second sentence, executed an assignment of 
 his book accounts, it was held tiiat such as- 
 signment was valid. lb. 
 
 93. Assignment of error upon. The de- 
 fendant may assign error upon a sentence 
 which is not conformable to the statute, al- 
 though the sentence is less severe than that 
 which the law prescribes. Haney v. State, 
 5 Wis. 529. 
 
 94. Evidence in mitigation of. The 
 court will permit the prisoner to offer evi- 
 dence in mitigation of sentence, after the 
 plea of guilty. Com. v. Horton, 9 Pick. 
 206. 
 
 01)0111. 
 
 See Theatrical performance. 
 
 Slauc Srabc. 
 
 1. UnlawfuIi participation in. 
 
 2. Seizure and forfeiture of vessel. 
 
 3. Indictment. 
 
 4. Evidence, 
 
 1. Unlawful participation in. 
 
 1. How regarded. The slave trade is not 
 piracy, unless made so by treaty or law of 
 the nation where the party belongs. The 
 Antelope, 10 Wheat. 67. 
 
 2. The slave trade is repugnant to the law 
 of nations, and a claim based upon it will 
 be disregarded in any court where it is 
 asserted, unless the trade is legalized by the 
 nation to which the claimant belongs. La 
 Jeune Eugenie, 2 Mason, 409 ; The Antelope, 
 supra. 
 
 3. Acts of Congress in relation to. The 
 offense prohibited by the act of Congress of 
 May 10th, 1800, consists in carrying persons 
 from one foreign country to another for the 
 purpose of selling them as slaves. The 
 offense is committed as soon as the vessel 
 reaches her place of destination, whether 
 the slaves are sold or not. U. S. v. Smith, 
 4 Day, 121. 
 
 4. The act of Congress of March 2d 
 1807, § 7, which prohibits the importation 
 of slaves into any port or place within the 
 jurisdiction, &c., does not embrace the 
 offense of importing persons to be held as
 
 562 
 
 SLA YE TRADE. 
 
 Unlawful Participation in. 
 
 Seizure and Forfeiture of Vessel. 
 
 slaves, but of hovering on the coast with 
 such an intent ; and although it forfeits the 
 vessel, it is silent as to the disposition of 
 the negroes on board, any further than 
 handing them over to the proper authorities. 
 U. S. V. Preston, 3 Pet. 65. 
 
 5. The acts of Congress of May 10th, 
 1800, and April 20th, 1818, prohibit both 
 the carrying of slaves on freight, and the 
 transportation of them from one port to 
 another of the same foreign country, as well 
 as from one foreign country to another. 
 The Merino, 9 Wheat. 402. 
 
 6. The offense of sailing from a port with 
 intent to engage in the slave trade in viola- 
 tion of the act of Congress of April 20th, 
 1818, ch. 86, 5§ 2, 3, is not committed unless 
 the vessel leaves the port. U. S. v. La Coste, 
 2 Mason, 129. 
 
 7. The language of the act of Congress 
 of March 20th, 1818, prohibiting the slave 
 trade, is not applicable to colored persons 
 who were domiciled in the United States, 
 and reconveyed there after a temporary 
 absence. The Ohio, 1 Newberry Adm. 409. 
 
 8. Both intent and acts which have a 
 tendency to reduce some person to slavery 
 are essential vinder the act of Congress of 
 1820, ch. 113, to make a person guilty of a 
 capital offense ; though under other acts of 
 Congress a misdemeanor may be committed 
 by merely transporting slaves from one place 
 to another abroad. U. S. v. Libby, 1 "Wood- 
 bury & Minot, 221. 
 
 9. It is not a violation of the slave trade 
 act of 1820, ch. 113, § 4, for a person to 
 transport slaves for hire from port to port, 
 without any interest in, or power over the 
 negroes so as to impress upon them the 
 future character of slaves. To constitute 
 the offense, the negroes need not have been 
 free when they were seized or received on 
 board the vessel. To make a negro a slave 
 within the meaning of the act, that charac- 
 ter must have been fixed upon him for the 
 future. U. S. v. Battiste, 2 Sumner, 240. 
 
 10. State courts have not jurisdiction. 
 The courts of the several States could not 
 exercise jurisdiction in cases of the violation 
 of the laws prohibiting the slave trade, un- 
 less authorized by act of Congress; and all 
 
 jurisdiction over the subject was taken from 
 them by the 4th section of the act of Con- 
 gress approved March 3d, 1819. State v.- 
 Caroline, 20 Ala. 19. 
 
 2. Seizure and forfeiture of vessel. 
 
 11. Vessel, when to be seized. Under 
 the act of Congress of 1794, ch. 187, § 1, a 
 seizure of the vessel might be made before 
 the vessel went to sea, as soon as the inten- 
 tion of " preparing,'" &c., or of "causing to 
 sail," &c., was apparent. The Emily and 
 The Caroline, 9 Wheat. 381. 
 
 12. Forfeiture of vessel, when incurred. 
 The act of Congress of 1800, ch. 51, § 1,. 
 prohibits not only the transportation of 
 slaves, but the being engaged in the slave 
 trade. Consequently, a vessel employed in 
 such trade, is liable to forfeiture, although 
 no slaves have been taken on board of her. 
 The Brig Alexander, 3 Mason, 175; U. S. v. 
 Morris, 14 Pet. 464. 
 
 13. Untler the act of Congress of May 
 10th, 1800 (Stats, at Large, vol. 2, p. 70), 
 providing that "it shall be unlawful for 
 any citizen of the United States or other 
 person residing within the United States, 
 directly or indirectly to hold or have any 
 right or property in any vessel employed or 
 made use of in the transportation or carry- 
 ing of slaves from one foreign country or 
 place to another; and any right or property 
 belonging as aforesaid, shall be forfeited," 
 &c., if the master knew that negroes had 
 been taken on board his vessel by the super- 
 cargo, on the coast of Africa, in order to 
 be conveyed to Brazil, and they are convey- 
 ed there ; and the vessel is forfeited, not- 
 withstanding the master may not have 
 known or believed that such persons were 
 slaves. The Porpoise, 2 Curtis, 307. 
 
 14. Where a vessel is used as a tender to 
 slavers which procure and convey slaves 
 from Africa to Brazil, it is employed in the 
 transportation of slaves within the meaning 
 of the above act, though no slaves were con- 
 veyed on board the tender. Ibid. 
 
 15. A vessel on her voyage to Africa to 
 procure a cargo of slaves, is ''employed or 
 made use of " for the transportation or car- 
 rying of slaves, within the above act, before
 
 SLAVE TKADE. 
 
 5()3 
 
 Seizure and Forfeiture of Vessel. 
 
 Indictment, 
 
 any slaves are taken on board. And if the 
 outward voyage was planned and under- 
 taken with the understanding that the 
 ownership and national character of the 
 vessel were to be changed when she reached 
 the coast of Africa, and that she was then 
 to be employed in the transportation of 
 slaves, the vessel comes within the mischief 
 and true intent of the act. U. S. v. Schooner 
 Catharine, 2 Paine C. C. 721. 
 
 16. In such case the penalty of forfeiture is 
 incurred from the commencement of the voy- 
 age, and follows the vessel wherever she may 
 go or into whatever hands she may fall. lb. 
 
 17. In order to work a forfeiture of a 
 vessel under the act of Congress of April 
 20th, 1818, for being employed in the slave 
 trade, a criminal intent must exist in the 
 mind of the person who is lawfully entitled 
 to direct the employment of the vessel. If 
 he places her under the control of a factor 
 or master who builds or equips her with such 
 unlawful intentions, having at the time 
 authority from the owner to direct the 
 employment of the vessel, the offense is 
 committed. But if the guilty purpose was 
 entertained by the owner, for whom the 
 vessel was built or equipped, it is" imma- 
 terial whether the person who builds her or 
 equips her as factor or master was apprised 
 of it or not. Strohm v. U. S. Taney C. C. 413. 
 
 18. Wliere a vessel having been partly 
 equipped for the slave trade in a port of the 
 United States, aud then taken to a foreign 
 port for the completion of her equipment, is 
 afterward driven iu the course of her voy- 
 age into a port of the United States, she is 
 liable to seizure and condemnation. In 
 such case a condemnation may be had on 
 evidence which is wholly circumstantial. 
 The Slavers, 2 Wall. 350. 
 
 19. Remission of forfeiture. Under the 
 act of Congress proliibiting the importation 
 of negroes after Jan. 1st, 1808, it was hehl 
 that a forfeiture might be remitted by the 
 District Court under circumstances of ex- 
 treme hardship. U. S. v. Schooner Kitty, 
 Bee, 252. 
 
 20 When vessel not to be condemned. 
 Under the act of Congress of A[)ril 18th, 
 1818, a vessel was not liable to condemna- 
 
 tion where slaves were transported from the 
 United States to Europe and reconveyed to 
 the United States, in which they were again 
 held to service. U. S. v. Skiddy, 11 Pet. 7:^. 
 
 21. Disposal of negroes. Where Afri- 
 cans, having been captured by a belligerent 
 privateer fitted out in violation of our neu- 
 trality, or by a pirate, are recaptured and 
 brought into the ports of the United States 
 under circumstances which make it proba- 
 ble that a violation of the slave trade acts 
 was contemplated, they will not be restored 
 without conclusive evidence of the propri- 
 etary interest. The Antelope, 10 Wheat. 67. 
 
 22. Under the act of Congress of May 10th, 
 1800, ch. 205, § 4, the owner of the slaves 
 carried away cannot reclaim them iu a court 
 of the , United States, notwithstanding they 
 may be held to service according to the laws 
 of their own country, unless at the time of 
 their capture by a commissioned vessel the 
 offending ship was in the possession of a 
 non-commissioned captor who had made a 
 seizure for the same offense. The Merino, 9 
 Wheat. 402. 
 
 23. Effect of taking negro to Africa. 
 An African negro or mulatto, upon being 
 taken to the coast of Africa by an American 
 citizen, or by any person belonging to an 
 American ship, ceases to be a slave. U. S. 
 V. Battiste, 2 Sumner, 240. 
 
 3. Indictment. 
 
 24. Against master of vessel. Under 
 the act of Congress of May 10th, 1800, the 
 master of a vessel is properly charged with 
 serving on board a vessel employed in carry- 
 ing slaves in violation of the act. U. S. v. 
 Kennedy, 4 Wash. C. C. 91. 
 
 25. Joinder of offenses. Under the act 
 of Congress of May 15th, 1820, for the sup- 
 pression of the slave trade, the receiving of 
 the negroes on the coast of Africa, the con- 
 fining and detaining of them, and aiding 
 and abetting iu tlieir confinement and de- 
 tention, form one transaction, and may be 
 joined in the indictment; but not the charge 
 of the sale and delivery of the negroes on 
 the coast of Cuba, which forms a separate 
 and distinct transaction. U. S. v. Darnaud, 
 3 Wall. Jr. 143.
 
 564 
 
 SLAVE TRADE. 
 
 Indictment. 
 
 Evidence. 
 
 26. Averment of intent. An indictment 
 under tlie slave trade act of 1818 which 
 charges that the offense was committed 
 "with the intent that the vessel should be 
 employed," is fatally defective, the words 
 of the act being " with intent to employ the 
 vessel." U. S. v. Gooding, 12 Wheat. 4G0. 
 
 4. Evidence. ^^ 
 
 27. Ownership of vessel. To maintain 
 an indictment under the 4th and 5th sec- 
 tions of the act of Congress of May loth, 
 1820, for the suppression of the slave trade, 
 the vessel must either have been owned by a 
 citizen of the United States, or the accused 
 must have been such citizen. U. S. v. 
 Darnaud, 3 Wall. Jr. 143. Such ownership 
 must be aflirmatively and distinctly estab- 
 lished by competent evidence. The custom 
 house registry of the vessel, under the acts 
 of Congress, is not sufBcieut proof of such 
 ownershij). lb. 
 
 28. Where a foreigner claims a vessel 
 which has been seized for being engaged 
 in the slave trade, and his title is derived 
 from American owners, he must show 
 affirmatively that the case has no admixture 
 of American property. La Jeune Eugenie, 
 2 Mason, 400. 
 
 29. Equipment of vessel. An indict- 
 ment under the slave trade act of 1818 will 
 be supported by proof that the vessel was 
 fitted out with the intent to employ her in 
 the illegal voyage, although her equipments 
 for a slave voyage were not actually on 
 board. U. S. v. Gooding, 12 Wheat. 4G0. 
 
 30. Evidence that the owner of the vessel 
 commanded, authorized, and superintended 
 her equipment through an agent, the owner 
 not being personally present, will support 
 an indictment under the slave trade act of 
 1818, which charges that "he did fit out 
 for himself as owner," &c. U. S. v. Good- 
 ing, 12 Wheat. 460. The declarations of 
 the master as to his suspicions that the 
 object of the voyage was unlawful, are 
 competent evidence. U. S. v. The Isle de 
 Cuba, 2 Cliff. 295. 
 
 31. Procuring negroes with intent to 
 make them slaves. On the trial of an in- 
 dictment under the act of Congress of May 
 
 15th, 1820 (3 U. S. Stats, at Large, 601), 
 for forcibly confining and detaining on board 
 of a vessel, owned or navigated for a citizen 
 of the United States, certain negroes, with 
 intent to make them slaves, proof that the 
 vessel was built in and owned by citizens of 
 the United States, fixes her national char- 
 acter and ownership, until they are shown 
 to have been changed ; and the burden of 
 proof to show such change is on the de- 
 fendant. U. S. V. Gordon, 5 Blatchf. 18. 
 
 32. Evidence that the negroes were taken 
 on board in the Congo river some distance 
 from its mouth, but where it is several 
 miles broad, and in fact an arm of the sea, 
 will support an allegation in the indictment 
 that the offense was committed on waters 
 within the admiralty and maritime jurisdic- 
 tion of the United States, and within the 
 jurisdiction of the court. Ibid. 
 
 33. Although to sustain the indictment 
 in such case, it must be proved that the 
 negroes were forcibly confined and detained 
 on board of the vessel, yet the word " forci- 
 bly," in the act, does not mean physical or 
 manual force. It is sufficient if they were 
 under moral restraint and fear. Ibid. 
 
 34. A vessel owned by a citizen of the 
 United States sailed from there under in- 
 structions to correspondents in Rio to sell 
 or charter her. The consignees chartered 
 her to a citizen of Brazil for one year, at the 
 customary rate of freight, not to be employed 
 in carrying merchandise or passengers which 
 were unlawful. Rum, cotton goods, brass 
 rings, and gunpowder, suitable for sale or 
 exchange in Africa for slaves, were put on 
 board, and these articles, with their owner, 
 conveyed to the eastern coast of Africa, and 
 landed at slave factories. Held that this 
 and other acts of the captain, such as 
 witnessing the purchase of slaves by the 
 owner of the goods, the shipment of them 
 to Brazil in other vessels, and his going 
 there in company with persons who had 
 an interest in the slave trade, were circum- 
 stances from which the jury might infer that 
 the captain was also interested and co-opera- 
 ting in such trade; but that to make him 
 guilty of a capital oflense committed on 
 board his own vessel, it must be shown that
 
 SLAVE TRADE.— SODOMY.— SPIRITUOUS LIQUORS. 5G5 
 
 Evidence. 
 
 When Committed. 
 
 Under what Circumstances Illegal. 
 
 he did so co-operate and drive, force, or 
 receive some African on board with intent 
 to make him a slave. U. S. v. Libby, 1 
 Woodbury & Minot, 221. 
 
 35. In such case, it was proved that two 
 negroes whom the captain knowingly re- 
 ceived on board aud took to Brazil, had 
 manumission papers which were attested 
 and sealed by persons who purported to be 
 Portuguese notaries public, and who had 
 officiated as such in other matters. Held 
 that if the captain believed that the papers 
 were genuine, though they were not so in 
 fact, and took the negroes on board sup- 
 posing that they were free, he could not be 
 convicted. Ibid. 
 
 36. To show the intent of the captain, his 
 acts on the voyage and near the time of the 
 alleged offense are admissible in evidence ; 
 but not what was done by him on a previous 
 voyage. lb. 
 
 37. A passenger is not one of the crew or 
 ship's company within the meaning of the 
 act of Congress of 1820, ch. 113. U. S. v. 
 Libby, 1 Woodbury & Minot, 221. 
 
 38. Burden of proof. Where a vessel is 
 bound to the western coast of Africa, under 
 strongly suspicious circumstances that she 
 is about to engage in the slave trade, it is 
 incumbent on the persons connected with 
 her to explain the circumstances under pain 
 of forfeiture of the vessel. The Slavers, 2 
 Wall. 3.50; lb. 375. 
 
 See PrRACY. 
 
 Smuggling. 
 
 What is. The clandestine importation of 
 dutiable goods, with intent to defraud the 
 revenue, constitutes the offense of smug- 
 gling ; and not the non-payment of, or not 
 accounting for the duties, prior to their 
 importation. U. S. v. Thomas, 4 Benedict, 
 370; 2 Abb. 114. The offense is complete, 
 as soon as the goods are clandestineh' in- 
 troduced. Ibid. 
 
 See Revenue law, violation of. 
 
 Sobomn. 
 
 1. When committed. Tlie penetration of 
 
 a beast by a man against the order of nature, 
 without emission, constitutes the offense of 
 sodomy. Com. v. Thomas, 1 Va. Cas. 307. 
 As the criminal code of Texas leaves the 
 crime against nature undefined, such crime 
 is not punishable in that State; the code 
 providing that no person shall be punished 
 for any act or omission, as a jienal offense, 
 unless the same is expressly defined, and the 
 penalty affixed. Fennell v. State, 32 Texas, 
 378, Hamilton and Caldwell, 3 3., dissenting ; 
 and see Frazier v. State, 39 Texas, 390. 
 
 2. Indictment. An indictment for the 
 crime against nature is sufficient, which 
 avers that the defendant " against the order 
 of nature carnally knew," omitting the 
 words " had a venereal affair." Lambertson 
 V. People, 5 Parker, 200. 
 
 3. Testimony of accomplice. On the 
 trial of an indictment for sodomy with one 
 S. the defendant contended that as S. denied 
 his voluntary participation in the crime, 
 and as the district attorney admitted that S. 
 was in fact in the situation of an accomplice, 
 it followed that he knowingly and willfully 
 testified falsely, and that therefore the de- 
 fendant could not be convicted upon the 
 testimony of S. Held that the refusal of the 
 court so to instruct the jury was j^roper. 
 Com. V. Snow, 111 Mass. 411. 
 
 0pintiuni0£tquov0,Salcof. 
 
 1. Under what circumstances illegal. 
 
 2. Complaint. 
 
 3. Indictment. 
 
 4. Evidence. 
 
 5. Verdict. 
 
 6. Seizure and condemnation of liquors. 
 
 1. Under what circumstances illegal. 
 
 1. Constitutionality of statutes. A stat- 
 ute requii'ing a license to sell spirituous 
 liquors in small quantities, is not in deroga- 
 tion of sections eight and ten of the Con- 
 stitution of the United States. Smith v. 
 People, 1 Parker, 583. And see City Coun- 
 cil v. Ahrens, 4Strobh. 241; Austin v. State, 
 10 Mo. 591. 
 
 2. The act of New York of April !), 1855,
 
 566 
 
 SFIEITUOUS LIQUOKS, SALE OF. 
 
 Under what Circumstances Illegal. 
 
 for the prevention of intemperance, pauper- 
 ism and crime, prohibiting the sale of liquor, 
 is not unconstitutional. "Wynhamer v. Peo- 
 ple, 20 Barb. 5G7. 
 
 3. But in Pennsylvania, the statute of 
 1846, which authorized the citizens of cer- 
 tain counties to decide by vote whether the 
 sale of spirituous liquors should be continued 
 in said counties, and imposing a penalty for 
 the sale of such liquors, where the vote was 
 against the sale, was held unconstitutional. 
 Parker v. Com. 6 Barr, 507. 
 
 4. Construction of city charter. A city 
 was empowered by its charter to pass ordi- 
 nances for numerous specified purposes, and 
 among others to prohiljit the selling or giv- 
 ing away of ardent spirits by certain persons 
 named, and to forbid the selling or giving 
 away of such spirits to certain persons, and 
 to " make any other by-laws and regulations 
 which may seem for the well-being of the 
 city," &c. Held that the authority of the 
 city to enact ordinances on the subject of 
 the sale of spirituous liquors was limited by 
 the special provisions of the charter, and 
 that the general clause conferring power to 
 make any other by-laws and regulations did 
 not enlarge the power. State v. Ferguson, 
 33 New Hamp. 424. 
 
 5. What deemed spirituous liquor. In 
 New York, under the statute (1 R. S. 680, 
 § 15), against selling liquors by retail with- 
 out license, ale is included in the term 
 " strong and spirituous liquors." Nevin v. 
 Ladue, 3 Deuio, 437. A.nd it is the same in 
 Missouri, under the statute of 1851. State 
 V. Lemp, 16 Mo. 389. 
 
 6. The word "beer," in its ordinary 
 sense, denotes a beverage which is intoxicat- 
 ing, and is within the meaning of the words 
 "strong or spirituous liquors" used in the 
 New York statutes. People v. Wheelock, 3 
 Parker, 9. 
 
 7. Sale of imported liquor. To give the 
 right to sell imported liquor under the laws 
 of the United States, it must remain in the 
 hands of the importer and be sold in the 
 condition in which it is imported ; and all 
 other sales are subject to the regulation of 
 State laws. Wynhamer v. People, 20 Barb. 
 567. 
 
 8. Unlawful granting of license. An 
 
 indictment may be maintained against com- 
 missioners of excise for willfully and cor- 
 ruptly granting a license to a person to sell 
 spirituous liquors as an innkeeper, knowing 
 that he is not possessed of the requisite 
 qualifications. People v. Norton, 7 Barb. 
 477. 
 
 9. Protection afforded by license. A 
 tavern license is a personal privilege which 
 is not transferable ; nor does the license pass 
 with a lease of the tavern. Com. v. Rucker, 
 9 Dana, 310; State v. Prettyman, 8 Barring. 
 570. The same is true of a grocery license. 
 Lewis v. U. S. 1 Morris, 199. 
 
 10. The terms " inn, tavern, or hotel, "men- 
 tioned in the act of New York of 1857, in 
 relation to the granting of a license to sell 
 liquor, are used synonymously to designate 
 what is ordinarily and popularly known as 
 an inn or tavern, or place for the entertain- 
 ment of travelers, and where all their wants 
 can be supplied. People v. Jones, 54 Barb. 
 311. 
 
 11. A person selling spirituous liquor in a 
 room of an inn by permission of the land- 
 lord, is protected by the license of the inn. 
 Duncan v. Com. 2 B. Mon. 281. 
 
 12. But where A. obtained a license 
 to keep a tavern, and B. agreed to pay 
 for the license, and sold liquors in an ad- 
 joining room, which he rented from A., it 
 was held that B. was not protected by A.'s 
 license, but was lial^le for keeping a tippling 
 house. Com. v. Branamon, 8 B. Mon. 374. 
 
 13. A United States license and payment 
 of the revenue tax constitute no defense to 
 the sale of intoxicating liquors in the State 
 contrary to the law of the same. State v. 
 Delano, 54 Maine, 442 ; McGuire v. Com. 3 
 Wallace, 387. 
 
 14. License only applicable to single 
 place. A person who has a license to retail 
 has no right to conduct the business in more 
 than one place. State v. Walker, 16 Maine, 
 241. 
 
 15. A person who had a license to sell in- 
 toxicating liquors at his stand at the corner 
 of A. and B. streets, owned another stand 
 adjoining this, with an internal communica- 
 tion between the two, and sold liquors in
 
 SPIEITUOUS LIQUORS, SALE OF. 
 
 5G7 
 
 Under what Circumstances Illegal. 
 
 both. Held that his license only applied 
 to the place first named. State v. Frede- 
 ricks, 16 Mo. 383. 
 
 16. Validity of license. In New Hamp- 
 shire, under the statute (R. S. ch. 117, § 5), 
 giving selectmen power to license retailers 
 of liquor, a license to sell spirituous liquors 
 for medicinal purposes only, is valid. State 
 V. Emerson, 16 New Hamp. 87. 
 
 17. Keeping liquors for sale. In Maine, 
 a person charged with keeping intoxicating 
 liquors for unlawful sale, cannot be convicted 
 under the statute (of 1858, ch. 48), simply 
 for the fact that the liquors were found in 
 his possession, or that they were intended 
 for sale by somebody; but only by his hav- 
 ing possession with an intent on his part to 
 sell the same in the State in violation of 
 law, or with the intent that the same shall 
 be so sold by some other person, or with the 
 intent to aid some other person in such un- 
 lawful sale. State v. Learned, 47 Maine, 
 426; State v. Miller, 48 lb. 570. 
 
 18. Sale of liquor for medicinal purposes. 
 It is no defense to a sale of spirituous 
 liquor without a license, that, at the time 
 of such sale, there was no druggist or other 
 person licensed to sell spirituous liquors in 
 the county, that the sale was made upon the 
 prescription of a physician, and that the 
 liquor sold was necessary for the buyer's 
 use, either as a medicine or for the preserva- 
 tion of his health. Com. v. Sloan, 4 Cush. 
 52; State v. Keys, 15 Vt. 405. 
 
 19. But in Indiana, it was held that a 
 ■druggist, on a proper occasion and with due 
 caution, might retail liquor, to be used only 
 as a medicine, without being guilty of an 
 offense against the statute. Dowell v. State, 
 2 Carter, 658. 
 
 20. What constitutes a sale. A sale 
 may be without words. If a customer goes 
 to a store, helps himself openly to what he 
 wants, and places within reach of the sales- 
 man a satisfactory price, it is a sale. State 
 V. Wiggin, 20 New Ilamp. 449. 
 
 21. In Massachusetts, it has been held un- 
 der the statute (R. S. ch. 47) that, where A., 
 not being licensed to sell spirituous liquor, 
 takes money of B. for some other article 
 %vhic]i B. receives from him, and B. there- 
 
 upon takes A.'s spirituous liquor without 
 any words concerning it, it is a sale of 
 liquor. Com. v. Thayer, 8 Mete. 525. 
 
 22. In Indiana, where there was an agree- 
 ment for the sale of a quart of liquor, the 
 price of a quart paid, a pint taken away by 
 the purchaser, and the other pint left in the 
 cask with other liquor, it was held to be a 
 sale of less than a quart within the meaning 
 of the statute. Murphy v. State, 1 Carter, 
 366; s. c. 1 Smith, 201. 
 
 23. Place of sale. A place where beer is 
 sold by the glass or drink is a tippling house 
 within the statute of Illinois. Koop v. Peo- 
 ple, 47 111. 327. 
 
 24. A city ordinance which prohibits the 
 using or keeping of intoxicating liquors in 
 any refreshment saloon or restaurant in the 
 city is constitutional ; and it is a violation 
 of such an ordinance to keep liquor in a 
 cellar underneath an eating house or restau- 
 rant. State V. Clark, 28 New Hamp. 176. 
 But it is not a violation of a city ordinance 
 which provides that " no intoxicating liquors 
 shall be used or kept in any refreshment 
 saloon or restaurant within the city for any 
 purpose whatever," to keep a shop for the 
 manufacture and sale of tobacco, snuff and 
 cigars, and strong beer by the glass. State 
 V. Hogan, 30 New Hamp. 268. 
 
 25. In Alabama, the defendant's buggy in 
 which he carried liquor for sale at a public 
 administrator's sale in the country, was held 
 to constitute '' his premises " within the 
 statute (Code, § 1058). Pearce v. State, 40 
 Ala. 420; approving Brown v. State, 31 lb. 
 353 ; Easterling v. State, 30 lb. 46, and Pat- 
 terson V. State, 36 lb. 298. 
 
 26. Where a person kept a few goods for 
 sale in order to evade the law against 
 tippling shops, and it appeared that his 
 principal business was selling liquor, and 
 that the liquor was drunk on his premises, 
 it was held that he was not within the pro- 
 visions of the statute which excepted mer- 
 chants selling liquor to be used away from 
 their premises. Com. v. McGeorge, 9 B. 
 Mon. 3. 
 
 27. A citizen of New Hampshire agreeing 
 to sell to a citizen of Vermont part of a cask 
 of brandy, which was then in the latter
 
 568 
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 Under what Circumstances Illegal. 
 
 Complaint. 
 
 State in transit from New York to New 
 Hampshire, the purchaser carrieti the cask 
 to his house, where he drew out what he 
 Avanted, and took the bah^nce with the cask 
 to the vendor's store in New Hampshire. 
 Held that the vendor was guilty of a viola- 
 tion of the statute of Vermont of 1853 to 
 prevent the traffic in intoxicating liquors. 
 State V. Comings, 28 Vt. 508. 
 
 28. Sale to several persons at the same 
 time. One who retails spirituous liquors to 
 two different persons at the same time and 
 place, is guilty of two offenses. Com. v. 
 Dow, 2 Va. Oas. 26. In Verniont, however, 
 where liquor is furnished in answer to a 
 single call, at the same time, and by a 
 single act, it constitutes but one act of fur- 
 nishing, and the party incurs but one penalty, 
 notwithstanding it may be drank by more 
 than one person. But where the liquor is 
 furnished either on a single call or more, if 
 it be done at different times and by separate 
 acts, no matter how closely these several acts 
 may follow each other in point of time, 
 each act of furnishing constitutes a separate 
 offense, and subjects the party to a separate 
 penalty, whether the liquor be all drank by 
 the same person or by different i^ersons. 
 State V. Barron, ;« Vt. 57. 
 
 29. Sale by clerk or agent. It is no de- 
 fense to an indictment for selling liquor 
 contrary to law, that the accused did so as 
 clerk or agent of the person jointly indicted 
 with him, and by his direction. French v. 
 People, 3 Parker, 114; Hays v. State, 13 
 Mo. 246; State v. Bryant, 14 lb. 340; 
 Schmidt V. State, lb. 137; Thompson v. 
 State, 5 Humph. 138. 
 
 30. In Vermont, where the owner of a 
 store at which spirituous liquors were sold 
 resided out of the State, and the business of 
 the store was managed by his general agent, 
 it was held that such general agent was 
 liable to the penalty imposed by the statute, 
 although the liquors were in fact sold by 
 the clerks. State v. Dow, 21 Vt. 484. And 
 in IVIassachusetts, a mere hired agent who 
 had no interest in tlie profits, and acted in 
 the presence and under the direction of his 
 employer, was held liable under the statute 
 (R. S. ch. 47, §§ 1, 2). Com. v. Hadley, 11 
 
 Mete. 6G. And see State v. Brown, 31 
 Maine, 520. 
 
 2. Complaint. 
 
 31. Averment of time. A complaint 
 which charges a single sale of spirituous 
 liquor to have been made on the 23d and 
 29th of July, is fatally defective for uncer- 
 tainty as to time. Com. v. Adams, 1 Gray, 
 481. 
 
 32. In Connecticut, the complaint of a 
 grand juror for a violation of the statute (of 
 1846, § 2) regulating the sale of wines and 
 spirituous liquors, charged that the offense 
 was committed "on or about the 24th day 
 of May, 1847." Held not bad for uncertainty 
 as to time, nor because it was expressed in 
 figures. Rawson v. State, 19 Conn. 292; 
 approved in State v. Fuller, 34 lb. 280. 
 
 33. Description of place. In Vermont, a 
 complaint under the statute (G. S. ch. 94, 
 § 22), for the search of premises and seizure 
 of liquors, which designates the place as the 
 American Hotel and the adjacent outbuild- 
 ings appurtenant to it, designates a single 
 establishment, and is sufficiently specific. 
 State V. Liquor, 38 Vt. 387. 
 
 34. Charging offense in the alternative. 
 A complaint which alleged that the defend- 
 ant sold wine, spirituous liquor, or other in- 
 toxicating beverage to R., he being a com- 
 mon drunkard, was held bad in charging 
 the offense in the alternative. Smith v. 
 State, 19 Conn. 493. 
 
 35. Duplicity in. All substantive allega- 
 tions should be specific and definite. Where 
 a complaint charged that certain liquors 
 were kept or deposited by P., or by some 
 other person with his consent, and were in- 
 tended for sale in violation of law, it was 
 held that as the keeping and depositing, 
 and consent to keep and deposit intoxicat- 
 ing liquors, were distinct and different acts, 
 the complaint Avas bad. State v. ]Moran, 40 
 Maine, 129. 
 
 36. Where a complaint for keeping in- 
 toxicating liquors, with intent- to sell them 
 contraiy to law, alleged that they were kept 
 at the defendant's " store, shop, and dwell- 
 ing-house adjacent thereto, with intent to 
 sell, furnish, and give away the same with-
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 5G9 
 
 Complaint. 
 
 Indictment. 
 
 out," «&c., it was held not bad for duplicity, 
 and that the words the same referred with 
 sufficient directness to the intoxicating 
 liquors previously mentioned. State v. 
 Clark, 44 Vt. 636. 
 
 37. In Massachusetts, a complaint under 
 the statute (R. S. cli. 47, § 3), which al- 
 leged that the defendant did presume to be 
 a retailer, and did sell to a person named 
 therein spirituous liquor, was held not bad 
 for duplicity, or defective in not showing 
 what kind of li(.uor the defendant sold, to 
 whom it was delivered, or by whom it was 
 carried away. Com. v. Wilcox, 1 Cush. 
 503. 
 
 38. Unnecessary averments. In Maine, 
 a complaint alleging that intoxicating 
 liquors were kept by the defendant in a 
 place described, he " not being then and 
 there authorized to sell said liquors within 
 said P." and that the same were "intended 
 for sale in this State in violation of law," 
 without alleging that they were unlawfully 
 kept, and deposited, or negativing the au- 
 thority of the defendant to sell intoxicating 
 liquors within the State, was held sufficient. 
 State v. Connelly, 63 Maine, 212. 
 
 39. In Massachusetts a complaint under 
 the statute (R S. ch. 47, § 2), alleged that 
 the defendant not being first duly licensed 
 according to law, as an innholder or com- 
 mon victualler, and without any authority, 
 &c., then and thei'e sold to A. intoxicating 
 liquor, to be used in and about his, the said 
 defendant's, dwelling-house, &c. Held that 
 the averment that the defendant was not li- 
 censed as an innholder or common victualler 
 might be rejected as surplusage, and the de- 
 fendant convicted upon proof of the other 
 averments. Com. v. Baker, 10 Cush. 405. 
 
 40. In a complaint for selling intoxicating 
 liquors in violation of law, the words ' ' being 
 a second glass of intoxicating liquor to said 
 L. S. then and there sold and delivered at 
 said B. to said N. T.," are not descriptive, 
 but may be rejected as surplusage. State 
 V. Staples, 4.') lAIaine, 820, 
 
 41. Conclusion. Where a complaint al- 
 leged not only that the defendant on divers 
 days and times had been drunk and intoxi- 
 cated by the voluntary and excessive use of 
 
 spirituous and intoxicating liquors, but that 
 on a day named she was a common drunk- 
 ard, it was held sufficient without conclud- 
 ing " to the common nuisance of all the 
 citizens." Com. v. Boon, 2 Gray, 74. 
 
 3. Indictment. 
 
 42. Not barred by previous conviction. 
 A conviction for retailing to one person will 
 not bar an indictment for retailing to 
 another previous to the finding of the in- 
 dictment on which the conviction was had. 
 State v. Cassety, 1 Rich. 90. 
 
 43. Not taken away by action. Where 
 a statute prohibits an act under a penalty to 
 be enforced by indictment, and a later 
 statute gives a qui tarn action for such pen- 
 alty, the latter docs not take away the 
 remedy by indictment. Bush v. Republic, 
 1 Texas, 455. In New York, the offense of 
 selling strong and spirituous liquors and 
 wines without license, under ch. 628 of laws 
 of 1857, is indictable, though not among 
 the offenses specially declared misdemean- 
 ors. Behan v. People, 17 N. Y. 516. 
 
 44. Joinder of parties. Two or more 
 persons may be jointly indicted for selling 
 spirituous liquors without license. Com. v. 
 Sloan, 4 Cush. 53; Com. v. Harris, 7 Graft. 
 600 ; State v. Caswell, 2 Humph. 399. 
 
 45. Allegation of time. An indictment 
 which alleges that the defendant was a 
 common seller of spirituous liquor on the 
 first day of December, and on divers days 
 and times between that day and " the day 
 of the finding, jjresentment and filing of the 
 indictment," is bad for uncertainty. Com. 
 V. Adams, 4 Gray, 27. 
 
 46. Where an indictment for selling 
 liquors without license alleged that the of- 
 fense was committed on the 1st of August, 
 1857, and "on divers other days and times 
 between that day and the day of the find- 
 ing of the indictment, to wit, the 1st day of 
 July, 1857," it was held that the continuando 
 might be rejected as surplusage. People v. 
 Gilkinson, 4 Parker, 26. 
 
 47. In an indictment charging the sale of 
 spirituous liquors on Sunday, the day of the 
 month is immaterial. People v. Ball, 42 
 Barb. 324; State v. Eskridge, 1 Swan, 413.
 
 570 
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 Indictment. 
 
 48. Charging sale. Where an indict- 
 ment for selling spirituous liquors without 
 license, to be drank on the premises of the 
 seller, charged the sale of liquor by the de- 
 fendant, to be drank on his premises, " with- 
 out having obtained a license therefor as a 
 tavern-keeper, or without being in any way 
 authorized to sell the same as aforesaid," it 
 was held that the word oi' did not vitiate 
 the statement of the offense, but tliat all 
 that followed the word o?' was surplusage. 
 People V. Gilkinson, 4 Parker, 2G. 
 
 49. An indictment under a statute pro- 
 hibiting the sale of intoxicating liquor " to 
 be used in or about the house of " the 
 vendor, is sufficient which alleges that the 
 liquor was sold to be " used, consumed, and 
 drunk in the dwelling-house by the said M., 
 then and there used and occupied." Com. 
 V. Moulton, 10 Cush. 404. 
 
 50. In Maine, an indictment under the 
 statute (R. S. ch. 17, § 1). which alleged that 
 the defendant kept a shop for the illegal 
 sale of intoxicating liquors, and that he 
 there sold liquors contrary to law, and for 
 tippling purposes, is sufficient without neg- 
 ativing the defendant's authority to sell. 
 State V. Lang, 63 Maine, 215. 
 
 51. An indictment charging that J. B. 
 and P. B., "not being then and there a 
 licensed taverner or retailer," did sell spir- 
 ituous liquors, &c., is good ; it being equiv- 
 alent to the allegation that J. B., not being 
 a licensed taverner, &c., and P. B., not being 
 a licensed taverner, &c., did sell, &c. State 
 V. Burns, 20 New Ham p. 550. 
 
 52. Where a statute imposes a penalty for 
 selling any intoxicating liquor, an indict- 
 ment is sufficiently definite which charges 
 the sale of " two glasses" of such liquor. 
 State V. Rust, 35 New Hamp. 438. 
 
 53. An indictment for being a common 
 seller of intoxicating liquors is sufficient 
 which alleges that the defendant during a 
 fixed period of time sustained that charac- 
 ter, without averring specific acts of sale. 
 Com. V. Wood, 4 Gray, 11. 
 
 54. The charge in an indictment of being 
 a common seller of spirituous liquors, in- 
 cludes a charge of making actual sales. 
 Three difierent sales on the same day would 
 
 authorize a conviction for being a common 
 seller. State v. Day, 37 Maine, 244. 
 
 55. Description of liquor. An indict- 
 ment charging the sale of rum, brandy and 
 gin, need not allege that they were spiritu- 
 ous liquors. State v. Munger, 15 Vt. 290. 
 In Indiana, it was held that the indictment 
 need not specify the kinds of liquor sold. 
 State V. Mullinix, 6 Blackf. 544. In Mis- 
 souri, an indictment for keeping a dram 
 shop must allege the kind, quantity and 
 price of the liquor sold. Neales v. State, 10 
 Mo. 488. 
 
 56. An indictment which charges that the 
 defendant sold spirituous liquors without 
 license, in quantities less than the revenue 
 laws allowed to be imported, need not state 
 whether or not the liquors were imported. 
 State V. Crowell, 30 Maine, 115. 
 
 57. An indictment under the act of Con- 
 gress of .July 13, 1866, § 23 (14 Stats. 153), 
 for conducting the business of a distiller of 
 spirits without the payment of the special 
 tax, need not allege particular acts of dis- 
 tilling or the kinds of spirit. Charging that 
 the defendant did ''then and there distill and 
 manufacture spirits to a very large amount, 
 to wit, to the amount and number of one 
 thousand gallons of proof spirit," is sufficient. 
 U. S. V. Fox, Low. 199. 
 
 58. An indictment for retailing liquor 
 without license, which uses the word '• spir- 
 itual " instead of " spirituous," is not for 
 that reason defective. State v. Clark, 3 
 Ired. 451. 
 
 59. Averment of place of sale. An in- 
 dictment under a statute prohibiting the 
 sale of liquor within two miles of any re- 
 ligious assembly, at " a booth, tent, wagon, 
 huckster shop, or other place erected, 
 brought, kept, continued or maintained," 
 alleged a selling within half a mile of a re- 
 ligious assembly, but did not state that the 
 liquor was sold at a booth, tfrc, kept, &c. 
 Ee/d insufficient. Bonser v. State, Smith, 
 Ind. 408. 
 
 60. Naming person to whom sale was 
 made. An indictment for selling liquor to 
 divers persons without license, must name 
 the persons to whom the liquor was sold, or
 
 SPIRITUOUS LIQUOES, SALE OF. 
 
 571 
 
 Indictment. 
 
 state that they are unknown. State v. Stuck j', 
 2 Blackf. 289. 
 
 61. In New York, Vermont, and Missouri, 
 an indictment for selling spirituous liquor 
 without license need not give the name of 
 the person to whom the sale was made. 
 People V. Adams, 17 Wend. 475; State v. 
 Hunger, 15 Vt. 290 ; State v. Ladd, 15 Mo. 
 430. The contrary seems to have been held 
 in Delaware and North Carolina. State v. 
 Walker, 3 Harring. 597; State v. Faucett, 4 
 Dev. & Batt. 107. 
 
 62. In Massachusetts, an indictment under 
 the statute (of 1852, ch. 322, §12), for being 
 a common seller of spirituous liquor, need 
 not contain an allegation as to particular 
 sales, or describe the persons to whom the 
 sales were made, or allege that the liquors 
 sold " were not imported in original jDack- 
 ages," or that " they were not cider for other 
 purposes than that of a beverage,'' &c. 
 Com. V. Hart, 11 Cush. 130. See Com. v. 
 Wilson, lb. 412. 
 
 63. Where an indictment for the sale of 
 spirituous liquors contrary to law, described 
 the person to whom the sale was made as 
 Mary Garland, and it was proved that al- 
 though that was her name at the time of 
 the sale, yet that when the indictment was 
 found, she had acquired by marriage the 
 name of Mary Morrison, it was held that the 
 variance was fatal. Com. v. Brown, 2 Gray, 
 358. 
 
 84. Where the sale of spirituous liquor 
 without license is made to an agent, an in- 
 dictment therefor may charge the sale to 
 have been made either to the principal or 
 agent. State v. Wentworth, 35 New Hamp. 
 442. 
 
 65. In Virginia, it was held that an in- 
 dictment for selling spirituous liquor with- 
 out a license, might charge the sale to two 
 persons in the same count. Peer's Case, 5 
 Gratt. 674. 
 
 66. Charging distinct sales. It is not a 
 ground for arresting judgment that the in- 
 dictment contained in addition to a count 
 charging the defendant with being a com- 
 mon seller, other counts charging distinct 
 sales to particular persons. Com, v. Moore- 
 house, 1 Gray, 470. 
 
 67. An indictment which alleges that the 
 defendant sold at retail to divers citizens of 
 the State, and to divers persons to the jurors 
 unknown, strong and spirituous liquors, to 
 wit: three gills of brandy, three gills of 
 rum, three gills of gin, «fec., is not bad for 
 uncertainty and duplicity. Osgood v.People, 
 39 N. Y. 449. 
 
 68. The refusal in such case of the request 
 of the defendant's counsel, that the district 
 attorney be required to elect as to the kind 
 of liquor sold, furnished no ground for re- 
 versal, it being a matter of discretion on the 
 conduct of the trial, and affording no basis 
 for an exception. lb. 
 
 69. In Maine, an indictment was held to 
 charge but one offense, which alleged that 
 the defendant " did take upon himself, and 
 presume to be a common retailer of wine," 
 &c., without license, and "did then and 
 there, as aforesaid, sell, and cause to be sold, 
 to divers persons to the jurors unknown, 
 divers quantities of strong liquor." State 
 V. Stimson, 17 Maine, 154. 
 
 70. In the same State, an indictment 
 which charged the defendant with being a 
 common seller of intoxicating liquors, on 
 the 1st of July, 1858, and on divers days 
 and times between that day and the finding 
 of the indictment, the following October, is 
 not bad for duplicity, although offenses 
 committed prior to the 15th of July were 
 punishable by the act of 1856, and those 
 committed subsequent to that date by the 
 act of 1858. Held further, that the words, 
 "and on divers days," &c., might be re- 
 jected as surplusage, and a nol: pros, be en- 
 tered as to offenses which were committed 
 after the law of 1858 took effect. State v. 
 Pillsbury, 47 Maine, 449. 
 
 71. In the same State, it was held that an 
 indictment was not bad for duplicity which 
 alleged that the defendant, on a certain day 
 and on certain other days and times, be- 
 tween that day and the finding of the in- 
 dictment, kept a shop which he used for the 
 illegal keeping and sale of intoxicating 
 liquors, and then, and on said other days 
 and times, resorted to for tippling purposes, 
 with the knowledge and consent of the de- 
 fendant, and in which said shop intoxicat-
 
 572 
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 Indictment. 
 
 Evidence. 
 
 iiig liquors were then, on said other days 
 and times, sold by the defendant, contrary 
 to law, for tippling purposes, to be drunk in 
 said shop, and then and on said other days 
 and times were actually drunk therein, with 
 the knowledge and consent of the defendant, 
 to the damage and common nuisance of all 
 citizens of said State, &c. State v. Lang, 
 G3 Maine, 215. 
 
 72. But, in Maine, under the statute (R. S. 
 ch. 27, § 20), the " carrying for sale, or offering 
 for sale, or offering to obtain, or obtaining or- 
 ders for the sale or delivery of any spirituous, 
 intoxicating, or fermented liquors," are dis- 
 tinct and independent offenses, and the join- 
 der of them in the same count is ground of 
 demurrer. State v. Smith, 61 Maine, 386. 
 
 73. In Massachusetts, where an indict- 
 ment charged that the defendant sold spirit- 
 uous liquor without license on a day named, 
 " and on divers other days and times, " it 
 was held that the latter allegation might be 
 rejected as surplusage, and the defendant be 
 convicted of a single act of selling. Cora. v. 
 Bryden, 9 Mete, 137. 
 
 4. Evidence. •^ 
 
 74. Maintaining building for sale of 
 liquor. An indictment which alleges that 
 the defendant kept and maintained a tene- 
 ment in a building for the illegal sale of 
 intoxicating liquors, is supported by proof 
 that he used the cellar in his dwelling-house 
 for that purpose. Com. v. Welch, 2 Allen, 
 510. 
 
 75. In Massachusetts, an indictment charg- 
 ing a party with maintaining a building for 
 the illegal sale of intoxicating liquors, under 
 the statute (of 1855, cb. 405), is not sup- 
 ported by proof that the defendant occupied 
 only a part of the building, the residue being 
 occupied by other persons. Com. v. Mc- 
 Caughey, 9 Gray, 296. But it is otherwise 
 where the defendant occupies the entire 
 premises, using only a part for the illegal 
 purpose. Com. v. Godley, 11 lb. 454. 
 
 76. Keeping liquor for sale. Under an 
 indictment for keeping liquor for sale, it is 
 unnecessary to prove an oifer or an attempt 
 to sell. State v. McGlynn, 34 New Ham]). 
 422. 
 
 77. Giving liquor away. Evidence of 
 giving away spirituous liquor is admissible 
 under an information against a person for 
 furnishing it. State v. Freeman, 37 Vt. 
 520. 
 
 78. On the trial of an indictment for sell- 
 ing liquor without a license, it is proper for 
 the court to instruct the jury to inquire 
 whether the language used by the parties to 
 the alleged sale, and their accompanying 
 acts, were employed by them to effect a sale 
 of the liquor under such disguises as would 
 render detection difficult; or whether it was 
 the purpose of the defendant to bestow, and 
 of the others to receive, the liquors as a gift. 
 State V. Simons, 17 New Hamp. 83. 
 
 79. Sale by servant or agent. An un- 
 lawful sale of spirituous liquor by the 
 servant or agent of the owner would only 
 be prima facie evidence of the assent of the 
 latter to the sale. Com. v. Nichols, 10 
 Mete. 259. 
 
 80. On the trial of an indictment for the 
 illegal sale of intoxicating liquor, a sale of 
 liquor was proved at the defendant's public 
 house, by his servant. Held competent to 
 prove that the defendant was at that time 
 engaged in such tratfic, as tending, with 
 other proofs, to establish the authority of 
 the servant to make the sale in question. 
 State V. Bonney, 39 New Hamp, 206. 
 
 81. Sale to agent. Under a complaint 
 for selling intoxicating liquor contrary to 
 law, evidence of a sale to an agent, and that 
 the agent informed the defendant that she 
 was acting for other parties, will not sustain 
 an allegation of a sale to the agent. Com. 
 V. Remby, 2 Gray, 508. 
 
 82. Sale to minor. On a charge of sell- 
 ing spirituous liquor to a minor, knowing 
 him to be such, delivery of the liquor is 
 sutEcient evidence of sale; and it is no 
 defense that a person to whom the liquor 
 might lawfully have been sold sent the 
 minor for it, with the money, and that the 
 defendant was so told when he let the 
 minor have it. State v. Faii-field, 37 Maine, 
 517. 
 
 83. Proof that the liquor sold was in- 
 toxicating. The question whether the 
 liquor sold was intoxicating is one of fact
 
 SPIEITUOUS LIQUOES, SALE OF. 
 
 573 
 
 Evidence. 
 
 fur the jury. State v. Wall, 34 Maine, 165 ; 
 State V. McCafferty, 63 lb. 223 ; State v. 
 Barron, 37 Vt. 57. 
 
 84. It is not erroneous to instruct the jury 
 that they may infer that gin is intoxicating, 
 ■without any evidence other than that of its 
 proijerties or qualities. Com. v. Peckham, 
 2 Gray, 514. 
 
 85. An indictment for selling spirituous 
 liquors to A. is supported by proof that he 
 sold that he sold to A. brandy or gin mixed 
 with sugar and water. Com. v. White, 10 
 Mete. 14. 
 
 86. Where the indictment charged the 
 sale of " strong and spirituous liquors," to 
 wit, "one pint of strong beer," and it was 
 proved that the defendant sold "Dutch 
 beer," it was held that there was no material 
 variance. People v. Wheelock, 3 Parker, 9. 
 
 87. A witness who has been in the habit 
 of drinking fermented liquors, and who can 
 distinguish them by their taste, though he 
 has no special knowledge of chemistry, is 
 competent to give his opinion as to whether 
 lager beer is or is not a fermented liquor. 
 Merkle v. State, 37 Ala. 139. 
 
 88. Quantity of liquor sold. An indict- 
 ment charging that the defendant sold a 
 pint of spirituous liquor without license, is 
 supported by proof that he sold half a pint. 
 State V. Cooper, 16 Mo, 551 ; or that he sold 
 two glasses of such liquor. State v. Con- 
 nell, 38 New Hamp. 81. And under an 
 indictment alleging that the defendant sold 
 a pint of rum, it is sufficient to prove that 
 he sold a quart. State v. Moore, 14 New 
 Hamp. 451 ; Burke's Case, 6 Leigh, 634. 
 
 89. Person to whom ths sale was made. 
 A complaint for a sale of intoxicating 
 liquors contrary to law, to " George E. 
 Allen," is not supported by proof that the 
 liquor was sold to George Allen; unless it 
 be proved that the vendee was known by 
 the latter name. Com. v. Sliearman, 11 
 Cush. 546. 
 
 90. Where the indictment charged a sale 
 of intoxicating liquor to " Cornelius E. 
 Maloney," and tiie sale was proved to have 
 been made to " Dr. Maloney," the variance 
 was held immaterial. Com. v. Dillane, ] 
 Gray, 483. 
 
 91. A complaint which alleges the unlaw- 
 ful sale of intoxicating liquor to a person 
 unknown, is sustained by proof of a sale to 
 a certain person, and that he was not 
 known to the complainant when lie made 
 the complaint. Com. v. Hendrie, 2 Gray, 503. 
 
 92. Where the indictment charged that 
 spirituous liquor was sold without license, 
 to persons to the grand jury unknown, it 
 was held that evidence that the persons 
 were known to the grand jury constituted 
 no variance. State v. Ladd, 15 Mo. 430; 
 Halstead's Case, 5 Leigh,- 724. 
 
 93. In Alabama, on the trial of an indict- 
 ment for selling spirituous liquor to a free 
 person of color, it was held that the prose- 
 cution might show the status of the person 
 to whom the liquor was sold, by hearsay 
 and general reputation. Tucker v. State, 24 
 Ala. 77. 
 
 94. Time of sale. When the indictment 
 charges a single sale of intoxicating liquor, 
 the time need not be proved as laid. Com. 
 V. Dillane, 1 Gray, 483. And where a sale 
 is alleged to have been made on a particular 
 day of the month, there is no presumption 
 that it was after the finding of the indict- 
 ment, lb. 
 
 95. On the trial of an indictment for the 
 sale of intoxicating liquor on the first day 
 of March, it is sufficient to prove a sale on 
 the seventeenth of that month. Com. v. 
 Kelly, 10 Cush. 69. 
 
 96. Where several complaints charged the 
 defendants with unlawful sales of intoxicat- 
 ing liquor on diff'erent days, it was held 
 that as the day alleged was immaterial, the 
 defendant having been proved guilty on 
 one of the complaints might be sentenced 
 thereon, and a new trial be granted on the 
 others. Com. v. Remby, 2 Gray, 508. 
 
 97. Place of sale. In South Carolina, 
 where on the trial of an indictment for re- 
 tailing spirituous liquor without a license, 
 the evidence did not show that the defend- 
 ant's store was in the district laid in the 
 indictment, it was held that the jury might 
 infer that it was in such district, from facts 
 within their own knowledge. State v. 
 Williams, 3 Hill, S. C. 91. 
 
 98. Under a statute providing that
 
 574 
 
 SPIPJTUOUS LIQUORS, SALE OF. 
 
 Evidence. 
 
 "when an offense shall be committed on the 
 boundary of two counties or within five 
 hundred yards of such boundary, an indict- 
 ment for the same may be found, and a trial 
 and conviction thereon may be had in 
 either of such counties," an indictment for 
 selling siDirituous liquors without a license 
 charged that the offense was committed " at 
 the town of R., in the county of S., and 
 on the boundaries of the two counties of S. 
 and Y. aforesaid, and within five hundred 
 yards of such boundary." The proof showed 
 that the ofteuse was committed in the town 
 of R., in S. county, and within less than five 
 hundred yards of the boundary line between 
 the counties of Y. and S., but not precisely 
 on such dividing line. Held that there 
 was no vavjance. People v. Davis, 45 Barb. 
 494. 
 
 99. Place of drinking. Although in 
 general, it is a question of fact for the jury 
 whether the place of the drinking of the 
 liquor was " about the premises," of the 
 seller, yet when it is proved that the drink- 
 ing took place in the public highway in 
 front of the seller's store in full view and 
 within the distance of twenty steps of it, 
 the court may instruct the jury that the 
 liquor was drunk ''about the premises." 
 Brown v. State, 31 Ala. 353. 
 
 ICO. Where it is shown tliat the liquor 
 sold by the defendant was drunk "in an 
 alleyway five or six feet wide, which led 
 from the main street between his house and 
 that of an adjoining proprietor; that the 
 defendant had no control over such alley- 
 way, and could not see drinking there from 
 his front door; and that it did not lead into 
 his back yard, nor was there any window 
 opening from his storehouse into it; " these 
 facts alone, without explanation, do not 
 authorize the court to instruct the jury that 
 the place where the liquor was drunk, was 
 " about the defendant's premises." Daly v. 
 State, 33 Ala. 431. 
 
 101. Where it was proved that the de- 
 fendant sold two bottles of whisky which 
 the purchaser " carried out into the public 
 road five or ten steps in front of the de- 
 fendant's store, and that the liquor was 
 drunk by a crowd of persons between the 
 
 store and the road and in the road," and 
 the court charged the jury that " it was the 
 defendant's duty if he sold the whisky to 
 prevent it from being drunk on or about his 
 premises, and that if the liquor was drunk 
 as stated they should find the defendant 
 guilty," it w^as held that the instruction 
 was correct, although it was also proved 
 that at the time of the sale the defendant 
 told the purchaser that he must carry the 
 whisky out of the house and away from the 
 premises, and that the purchaser promised 
 to do so. Christian v. State, 40 Ala. 376. 
 
 102. Proof of distinct violations of law. 
 In Vermont, under an indictment containing 
 several counts for violations of the license 
 law by the sale of spirituous liquors, the 
 prosecution after giving evidence tending 
 to prove as many distinct breaches of the 
 law by the defendant, within the time 
 covered by the indictment, as there are 
 counts in the indictment, may prove other 
 sales within the same period of time. State 
 V. Smith, 22 Vt. 74 ; State v. Crotean, 23 
 lb. 14. In New York, it has been held that 
 the prosecution can only be permitted to 
 prove as many distinct offenses as there are 
 counts in the indictment. Hodgman v. 
 People, 4 Denio, 235. 
 
 103. In Vermont, under one complaint, 
 information or indictment for disposing of 
 spirituous liquor contrary to law, the prose- 
 cutor may show any number of offenses, 
 being bound, if required, to give the de- 
 fendant before trial a specification of the 
 nature of the offenses which he intends to 
 prove. But the defendant cannot be con- 
 victed of giving away liquor under a count 
 for selling, or vice versa. State v. Freeman, 
 27 Vt. 523. 
 
 104. Where the evidence tends to prove 
 a sale of spirituous liquor by the defendant 
 at a public administrator's sale in the county, 
 and that the liquor was drunk by the pur- 
 chaser on or about the premises, proof of 
 another sale of liquor by the defendant to 
 other persons at the same public sale and 
 under similar circumstances is competent 
 evidence for the prosecution on the question 
 of guilty knowledge and intent. Pearce v. 
 State, 40 Ala. 720.
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 575 
 
 Evidence. 
 
 105. Proof that defendant is common 
 seller. In Massachusetts, a person may be 
 convicted of being a common seller of in- 
 toxicating liquor under the statute (of 1852, 
 ch. 322, § 12) on proof of the sale of tliree 
 glasses of such liquor the same evening, 
 each of "which was drunk and paid for when 
 delivered. Com. v. Eumrill, 1 Gray, 388. 
 
 106. Under an indictment for being a 
 common seller of intoxicating liquors, it is 
 not necessary to prove that the offense was 
 committed during the whole time charged, 
 although a conviction or acquittal would 
 bar a prosecution for the same offense during 
 the entire time alleged. Com. v. Wood, 4 
 Gray, 11; Com. v. Putnam, lb. 16. 
 
 107. \Yhere an indictment for being a 
 common seller of intoxicating liquor limits 
 the time within wliich the acts were done to 
 a particular day, evidence is not admissible 
 of sales before or after that day. Com. v. 
 Elwell, 1 Gray, 463. Therefore, on the trial 
 of an indictment alleging that the defendant 
 presumed to be and was a common seller of 
 wine, brandy, &c., on a day named and on 
 divers subsequent days, evidence of his pre- 
 suming to be such seller on a day prior to 
 that which was specified was held not ad- 
 missible. Com. V, Briggs, 11 Mete. 573. 
 
 108. The defendant being indicted as a 
 common seller of spirituous and intoxicating 
 liquors, was furnished before trial by order 
 of court with a list of the names of the per- 
 sons to whom the alleged sales were made. 
 Held that evidence of sales not mentioned 
 in the list was inadmissible. Com. v. Giles, 
 1 Gray, 466. 
 
 109. Where on the trial of an indictment 
 for being a common seller of intoxicating 
 liquor, evidence was admitted against the 
 defendant's objection that he kept an inn, 
 and had thereon a tavern keeper's sign, it 
 was held ground for reversal. Com. v. Mad- 
 den, 1 Gray, 486. 
 
 110. In Maine, no particular number of 
 sales is necessary to be proved in order to 
 convict a person as a common seller of 
 intoxicating liquors under the statute of 
 1858, but the jury must be satisfied from 
 the evidence that selling intoxicating liquors 
 was the defendant's common and ordinarv 
 
 business. State v. O'Conner, 49 Maine, 
 594. 
 
 111. Under an indictment charging the 
 defendants with being common sellers of 
 spirituous liquors, evidence of sales of ale, 
 porter and cider is not admissible. State v. 
 Adams, 51 New Hamp. 568. 
 
 112. Sale by partners. On the trial of 
 an indictment which alleged that tlie de- 
 fendants, being joint grocers, sold spiritu- 
 ous liquors without license, it was held 
 competent in order to prove the partnership 
 to show that one of them was often in the 
 store which, the defendants had formerly- 
 occupied as partners; that he was accus- 
 tomed, as before the supposed dissolution, 
 to buy, sell and barter there; that he ex- 
 amined the books aud made charges in 
 them; that he went to Boston and made 
 purchases, and that the sign of the old firm 
 remained upon the building. State v. Wig- 
 gin, 20 New Hamp. 449. 
 
 113. Sale by married woman. On the 
 trial of an indictment against a married 
 woman for the unlawful sale of intoxicating 
 liquor, the following instruction was held 
 proper: That if the defendant, in the ab- 
 sence of her husband, sold intoxicating 
 liquor under such circumstances as proved 
 her to be a common seller, and if there was 
 no evidence that she sold it by his command^ 
 or that in selling it she was under any coer- 
 cion or influence of his, she should be found 
 guilty. Com. v. Murphy, 2 Gray, 510. But 
 if the husband was near enough for the wife 
 to act under his influence and control, 
 though not in the same room, she would 
 not be liable. Com. v. Burk, 11 lb. 437. 
 
 114. To convict a husband for the unlaw- 
 ful sale by his wife of spirituous liquor in 
 his store in his absence, the jury must be 
 satisfied beyond a reasonable doubt that her 
 illegal act was done by his authority. Mere 
 proof that she was his clerk or agent is not 
 sufficient. Seibert v. State, 40 Ala. 60. 
 
 115. Sale to common drunkard. On a 
 trial for selling liquor to a person alleged to 
 be a common drunkard, evidence is admis- 
 sible to show that he was habitually intoxi- 
 cated for several weeks after the sale. 
 Barnes v. State, 20 Conn. 232 ; and also that
 
 576 
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 Evidence. 
 
 the defendant had for a long time before the 
 sale charged been accustomed to sell liquor 
 to such person to be taken by him to excess. 
 Wickwire v. State, 19 lb. 477; also that such 
 person had during the preceding year bought 
 liquor at other places than the defendant's 
 and become drunk thereon. Smith v. State, 
 lb. 493. 
 
 116. In Alabama, it was held on a trial for 
 retailing liquor without a license (Code, 
 § 1059), that evidence that the intemperate 
 habits of the person to whom the liquor was 
 sold, were generally known in the commu- 
 nity, was irrelevant. Stanley v. State, 26 
 Ala. 26. But, in a subsequent case, it was 
 held that the fact that the intemperate 
 habits of the person to whom the liquor was 
 sold were notorious where the defendant 
 lived, was proper for the consideration of 
 the jury, in determining whether his habits 
 were known to the defendant. Stallings v. 
 State, 33 Ala. 425. 
 
 117. Whether the defendant knew of the 
 intemperate habits of the person to whom 
 he sold the liquor, should be left to the de- 
 cision of the jury upon the evidence. A 
 charge which assumes that such knowledge 
 was brought home to him, is erroneous. 
 Elam V. State, 35 Ala. 53. 
 
 118. In Connecticut, it has been held that 
 to sustain a prosecution for selling liquor 
 to a common drunkard, the State need not 
 prove that the defendant knew that the per- 
 son to whom the liquor was sold was a com- 
 mon drunkard. Barnes v. State, 19 Conn. 
 398. 
 
 119. Proof of second conviction. In 
 Massachusetts, to render the defendant 
 liable to the aggravated punishment pre- 
 scribed for a second conviction by the stat- 
 ute (of 1852, ch. 322, § 7), it must be proved 
 that the sale charged was made subsequently 
 to the previous conviction. Com. v. Daley, 
 4 Gray, 209. 
 
 120. Burden of proof on defendant. On 
 a charge of retailing liquor without a license, 
 the burden is on the defendant to show a 
 license. Haskill v. Com. 3 B. Mon. 342; 
 Schmidt v. State, 14 Mo. 137 ; State v. Wood- 
 ward, 34 Me. 293 ; State v, Morrison, 3 Dev. 
 290; Genig v. State, 1 McCord, 573; State 
 
 V. Crowell, 25 Me. 171 ; State v. Foster, 3 
 Foster, 348; Shearer v. State, 7 Blackf. 99. 
 
 121. In New York, where a person is 
 charged with selling liquor by retail with- 
 out license, he must show not only that it 
 was bought under the direction and pre- 
 scription of a licensed physician, but also 
 that it was prescribed for medicinal pur- 
 poses. People v. Safford, 5 Denio, 112. 
 
 122. No one but the importer of intoxicat- 
 ing liquors has the right to sell, except as 
 allowed by the laws of the State; and he 
 can sell only in the original packages. The 
 power of the State is plenary to regulate or 
 prohibit all sales except such as are made by 
 the importer himself; and the burden of 
 proof is on him to show that he was the 
 importer. State v. Robinson, 49 Me. 285. 
 
 123. Proof in justification. On a ijrose- 
 cution for selling liquor to a minor, it is 
 competent for the defendant to prove that 
 the person was a stranger to him, that from 
 his appearance any one of common observa- 
 tion would believe him to be an adult, that 
 he represented that he was such, and that 
 he was so treated by his parents and the 
 community. State v. Kalb, 14 Ind. 403. 
 
 124. Where, on a prosecution for selling 
 spirituous liquor to a person in the habit of 
 getting drunk, it was proved that he was 
 a stranger to the defendant ; that the latter 
 had no knowledge of his habits; that he 
 was sober at the time, and had no appear- 
 ance of one accustomed to intoxication ; it 
 was held that the defendant was entitled to 
 acquittal. Deveny v. State, 47 Ind. 208. 
 
 125. Where a license has been granted to 
 a man to keep a tavern, and he has removed 
 from it, another man who is indicted for re- 
 tailing liquor in the house may show, in de- 
 fense, that he did it as the agent or partner, 
 and under the license of him to whom the 
 license was granted. Barnes v. Com. 2 
 Dana, 388. 
 
 126. Irrelevant testimony. The excep- 
 tion taken in the first section of the act of 
 April 9, 1855, for the prevention of intem- 
 perance, pauperism and crime, as to the right 
 to sell given "by any law or treaty of the 
 United States," is not applicable to liquor 
 held by one v/ho has bought it from the iui-
 
 SPIRITUOUS LIQUORS, SALE OF. 
 
 577 
 
 Evidence. 
 
 Verdict. 
 
 Seizure and Condemnation of Liquors. 
 
 porter in the origiual packages, and who re- 
 tails it from such packages ; and evidence 
 in behalf of the defendant on the trial of an 
 indictment under the act, that it was so 
 sold, is immaterial. Wynehamer v. People, 
 20 Barb. 5G7; s. c. 13 N. Y. 378. 
 
 127. On the trial ©f a complaint for ille- 
 gally transporting intoxicating liquors in- 
 tended for sale, evidence is not admissible 
 to show the result of a prosecution against 
 the party for keeping with intent to sell in 
 A'iolation of law, the liquor which the de- 
 fendant is accused of having transported t© 
 him. Com. v. Waters, 11 Gray, 81. 
 
 128. On the trial of an indictment for sell- 
 ing and furnishing intoxicating liquors, 
 several witnesses testified that they had 
 drank liquor in rooms in the defendant's 
 house, on public occasions, when asked to 
 do so by parties occupying such rooms, but 
 did not know where the liquor came from. 
 Held, that evidence on the part of the de- 
 fendant, that travelers were in the habit of 
 carrying liquor with them, was irrelevant. 
 State V. Barron, 37 Vt. 57. 
 
 129. Under an indictment for selling 
 spirituous liquor without a license, the ac- 
 cused cannot be convicted on proof that hav- 
 ing a tavern-keeper's license, he sold a glass 
 of liquor on Sunday, which was drank on 
 the premises. People v. Brown, 6 Parker, 
 666. 
 
 130. Although a license from the United 
 States authorities is not a justification for a 
 violation of a State law which prohibits the 
 sale of spirituous liquor, yet such a license 
 does not raise a presumption of guilt. State 
 V. Stutz, 20 Iowa, 488. 
 
 5. Verdict. 
 
 131. In case of several acts of sale. In 
 
 Vermont, on the trial of an information for 
 selling spirituous liquor without a license, 
 it was held not improper for the court to 
 instruct the jury "to return a verdict of 
 guilty for each act of selling." State v. 
 Paddock, 24 Vt. 312. 
 
 132. In Massachusetts, three several sales 
 of spirituous liquor being charged in the in- 
 dictment and proved, there may be convic- 
 tions thereon, notwithstanding the defend- 
 
 37 
 
 ant might have been charged and convicted 
 as a common seller. Com. v. Tuttle, 12 
 Gush. 505. 
 
 133. Discharge of defendant. Where 
 on the trial of an indictment for selling 
 spirituous liquors without a license the de- 
 fendant has been convicted and sentenced 
 to pay a fine and the costs of prosecution, 
 the court cannot discharge him and order 
 execution to issue against his jjroperty. 
 State v. Robinson, 17 New Hamp. 263. 
 
 6. Seizure and coNDEirNATiON of liquors. 
 
 134. Course of procedure. In Maine, 
 
 (L. of 1858, ch. 33, § 12), where an officer 
 seizes intoxicating liquors upon a warrant 
 issued therefor, he is required also to arrest 
 the person in whose custody they are alleged 
 in the complaint to be, and to have both the 
 person and the liquors before the magisti'ate 
 who issued the warrant. The person is put 
 on trial for having had such liquors in his 
 possession with intent to sell the same in the 
 State in violation of law ; and the liquors 
 are libeled. The acquittal of the person 
 does not entitle him to a restoration of the 
 liquors; nor does a condemnation of the liq- 
 uors necessarily result in a conviction of the 
 person. The hearing may be at the same 
 time, but there must be a separate decree and 
 judgment ; and cither may be appealed with- 
 out the other. State v. Miller, 48 Maine, 
 576. In a prosecution against the person, it 
 is no defense that the seizure was illegal. 
 State V. McCann, 61 Maine, 116. 
 
 135. Subject of inquiry. On the trial of 
 a libel against intoxicating liquors, the 
 court being asked to charge the jury that 
 they should find " the item of ten barrels of 
 rum were not rum, but a difi"erent article, 
 the libel could not be maintained for that if 
 item," instructed them to confine their in- 
 quiries to the liquors which were specified in 
 the claim and libel ; that if liquors were 
 seized and not libeled, the owner must seek 
 his remedy in another suit ; and if liquors 
 were libeled and not claimed, the law would 
 provide for their disposal. Held that the 
 claimant had no ground of complaint. 
 State V. Smith, 54 Maine, 33.
 
 578 SPIEITUOUS LIQUOES, SALE OF.— STATUTES. 
 
 Seizure and Condemnation of Liquors. 
 
 How Proved. 
 
 136. Proof of possession and destruc- 
 tion of liquor. In Maine, uudor the statute 
 (L. of I808, cb. 33, § 14), the fact that the 
 liquors described in the complaint were 
 found in tlie defendant's possession in the 
 place searched, must be proved before the 
 magistrate by evidence under oath, and not 
 by the return of the officer. Under section 
 20, of the same statute, authorizing the ar- 
 rest of the defendant, if the liquors be de- 
 stroyed by him, and requiring the officer to 
 make return upon his warrant that he was 
 prevented from seizing the liquors by their 
 destruction, and to state in his return the 
 quantity destroyed ; the fact of such destruc- 
 tion must be proved by testimeuy under 
 oath; but the return need not be made pre- 
 vious to the arrest. State v. Stevens, 47 
 Maine, 357. 
 
 137. Proof of ownership of liquor. 
 Where on the trial of a libel for the con- 
 demnation of intoxicating liquors, the judge 
 told the jury that it would be unnecessary 
 to inquire into the ownership of the liquors 
 if intended for sale within the State in vio- 
 lation of law, it was held error; such inquiry 
 being material on the question of illegal in- 
 tent. State V. Intoxicating Liquors, 63 
 Maine, 12L 
 
 138. Warehouseman's lien. In Maine, 
 the lien of a warehouseman does not affect 
 the liability of liquors to forfeiture. If the 
 liquors be designed by the owners when they 
 shall reach their destination for unlawful 
 sale in the State, they will be liable to for- 
 feiture, though the warehouseman had no 
 unlawful intent. State v. Intoxicating Liq- 
 uors, .50 Maine, 506. 
 
 139. Officer's return. Where the officer 
 did not return that he found any intoxicat- 
 ing liquors on the premises of the defend- 
 ant, but that he found a " demijohn contain- 
 ing one gallon more or less, of what I called 
 St. Croix rum," it was held that as the de- 
 fendant by destroying the liquors render- 
 ed it impossible for the officer to deter- 
 mine with certainty their quality, he could 
 not object to the return as not suffi- 
 ciently certain. State v. Stevens, 47 Maine, 
 357. 
 
 See License. 
 
 Statutes, 
 
 1. How proved. The statutes of another 
 State must be proved by an authenticated 
 copy. People v. Lambert, 5 Mich. 349. 
 Statute books purporting to be published 
 under the authority of another State, are 
 competent proof of its statute law. State 
 V. Abbey, 29 Vt. 60. 
 
 2. Unconstitutionality of. An act which 
 requires a party charged with crime to be 
 tried by a court without a jury, is unconsti- 
 tutional. Wynehamer against People, 13 N. 
 Y. 378. 
 
 3. The act of New York of 1855, p. 340, 
 for the prevention of intemperance, pauper- 
 ism and crime, which substantially destroys 
 property in intoxicating liquor owned and 
 possessed in the State when the act took 
 effect, is unconstitutional. Wynehamer 
 against People, supra. 
 
 4. The following portions of the act of 
 New York of April 9, 1855, " for the pre- 
 vention of intemperance, pauperism and 
 crime" declared unconstitutional : So much 
 of section 1 as provides that intoxicating 
 liquor shall not be sold or kept for sale, or 
 with intent to be sold, except by the persons 
 and for the sijecial uses mentioned in the 
 act ; so much of sections 6, 7, 10 and 12 as 
 provide for its seizure, for forfeiture and de- 
 struction ; so much of the 16th section as de- 
 clares that no jDerson shall maintain an ac- 
 tion to recover the value of any liquor sold 
 or kept by him which shall be purchased, 
 taken, detained, or injured, unless he prove 
 that the same was sold according to the pro- 
 visions of the act, or was lawfully kept and 
 owned by him ; so much of section 17 as de- 
 clares that upon the trial of any complaint 
 under the act, proof of deliveiy shall be 
 proof of sale, and i:)roof of sale shall be 
 sufficient to sustain an averment of unlawful 
 sale ; and so much of section 25 as declares 
 that intoxicating liquor kept in violation of 
 any of tlie provisions of the act, shall be 
 deemed to be a public nuisance. People v. 
 Toynbee, 20 Barb. 168. 
 
 5. A statute (Laws of Mich, of 1873), pro- 
 vided, in substance, that, when the defense 
 of insanity was set up in certain cases, the
 
 STATUTES. 
 
 579 
 
 When Deemed Constitutional. 
 
 When Deemed Ex Post Facto. 
 
 jury should find specially whether the pris- 
 oner was insane when the alleged crime was 
 committed, and if acquitted on that ground, 
 the verdict should so declare. In such case, 
 the court was to sentence him to confine- 
 ment in the insane asylum in the State prison 
 until discharged. This could only be done 
 when the prison inspectors summoned the 
 circuit judge of the circuit from which he 
 was sent, and the medical superintendent of 
 the insane asylum, who were thereupon to 
 examine into his condition, and if they 
 certified that he was not insane, the governor 
 was to discharge him. Held unconstitu- 
 tional. Underwood v. People, 32 Mich. 1. 
 
 6. A statute prohibiting the intermarriage 
 of white persons and negroes who are 
 citizens, and forbidding the performance of 
 the marriage ceremony, is unconstitutional. 
 Burns v. State, 48 Ala. 195. 
 
 7. "When deemed constitutional. It is 
 not an infringement of the provision of the 
 Constitution that " trial by jury in all cases 
 in which it has been heretofore used, shall 
 remain inviolate forever," for the Legisla- 
 ture to confer upon Courts of Special Ses- 
 sions power to try oflenses which are not 
 "capital or otherwise infamous crimes." 
 Plato V. People, 3 Parker, 586. 
 
 8. A statute giving to a Court of Special 
 Sessions exclusive power to hear, try and de- 
 termine all cases of petit larceny not charged 
 as a second ofi'ense arising within the county, 
 is constitutional ; and the court having ex- 
 clusive jurisdiction of the ofi'ense is bound 
 to try it, and has no right to take bail. 
 Peojile V. Rawson, 61 Barb. 619. 
 
 9. The New York statute, that " on any 
 trial for anj^ ofi'ense iDunishable with death 
 or imprisonment in the State prison for the 
 term of ten years or for a longer term, the 
 people shall be entitled peremptorily to 
 challenge five of the persons drawn as jurors 
 for such trial, and no more " (Laws of 1858, 
 ch. 333, § 1), is constitutional. Walter v. 
 People, 33 N. Y. 147; affi'g G Parker, 15. 
 
 10. A statute prohibiting citizens of other 
 States from taking oysters in the navigable 
 waters of Rhode Island, is not repugnant to 
 the constitutions of the State and United 
 States, or the charter of Charles 3d to the 
 
 colony of Rhode Island. State v. Medbury, 
 3 R. L 138. 
 
 11. A statute (to be in force only in those 
 towns in which it is adopted in town meet- 
 ing), which provides that bowling alleys 
 within twenty-five rods of a dwelling-house 
 shall be deemed nuisances, is constitutional. 
 State V. Noyes, 30 New Hamp. 379. 
 
 12. A statute which forbids bowling al- 
 leys to be used later than six o'clock Satur- 
 day afternoon, is constitutional. Com. v. 
 Colton, 8 Gray, 488. 
 
 13. The denial to females of the right to 
 vote by the Constitution and laws of New 
 York is not a violation of the provision of 
 the 14th Amendment of the Constitution of 
 the United States, that " no State shall 
 make or enforce any law which shall abridge 
 the privileges or immunities of citizens of 
 the United States." U. S. v. Anthony, 11 
 Blatch. 200. 
 
 14. "When deemed ex post facto. A law 
 is ex post facto when it punishes the ofi'ense 
 in a different manner, or by a difl'erent kind 
 of punishment than it was punishable with 
 when con^mitted. Shepherd v. People, 35 
 N. Y. 406; Hartung v. People, 36 N.Y. 167; 
 s. c. 28 lb. 400. 
 
 15. Judgment was reversed after convic- 
 tion of murder and sentence, because the 
 Legislature had subsequently enacted a stat- 
 ute which forbade the execution of such 
 sentence, and had required that such con- 
 victs should be subjected to imprisonment 
 at hard labor for one year, and thereafter be 
 executed if the governor should issue his 
 warrant for that purpose; the statute being 
 deemed ex j)ost facto^ because it attempted 
 to change the punishment which the law 
 had attached to the ofi'ense when it was 
 committed. Hartung v. People, supra. 
 
 16. Before the passage of the act of New 
 York of April 14th, 1860, entitled "An act 
 in relation to capital punishment, and to 
 provide for the more certain punishment of 
 the crime of murder," J. K. murdered his 
 wife by poisoning her. After that act went 
 into efi'ect he was tried, convicted and sen- 
 tenced to be executed j)ursuant to its pro- 
 visions. On writ of error, the only question 
 was as to tlie illegality of the judgment.
 
 580 
 
 STATUTES. 
 
 When not Regarded as Ex Post Facto. 
 
 Effect of Repeal of Statute, 
 
 Held that, as the act was ex post facto so far 
 as the oflense in question was concerned, 
 the prisoner must be discharged. Kuckler 
 V. People, 5 Parker, 212. 
 
 17. A city ordinance provided that no 
 awning should be placed or continued over 
 any sidewalk, unless the same should be 
 constructed of cloth or canvas, and sup- 
 ported by iron rods. Ueld the continuance 
 of a wooden awning, erected previous to the 
 passage of the ordinance, was not a violation 
 of it. State v. Cleaveland, 3 R. I. 117. 
 
 18. When not regarded as ex post facto. 
 Where, after the commission of an offense, 
 a statute is passed lessening the punishment, 
 it is not open to the objection of being an ex 
 2)ost facto law. State v. Kent, 65 N. C. 
 311. 
 
 19. A statute prescribing an alternative 
 punishment for an offense, in mitigation of 
 the punishment prescribed by a fomier law, 
 is not ex 2>ost facto as to offenses already 
 committed. Turner v. State, 40 Ala. 21. 
 
 20. It is competent for the Legislature, by 
 a general law, to remit any seijarable jDor- 
 tion of the prescribed punishment. And 
 any change which should be referable to 
 prison discipline, or penal administration, 
 as its primary object, might also be made to 
 take effect upon past as well as future of- 
 fenses. Hartung v. People, 26 N. Y. 167; 
 s. 0. 28 lb. 400. 
 
 21. "When doctrine in relation to ex post 
 facto law not applicable. The doctrine 
 that no ex post facto law is valid, has no ap- 
 plication to the rules of evidence or the de- 
 tails of the trial. These may be changed as 
 to prior, equally with subsequent offenses. 
 Stokes V. People, 53 K Y. 164. 
 
 22. Effect of repeal of statute. The 
 prisoner cannot be convicted after the re- 
 peal of the law, unless the repealing act 
 contains a provision for that purpose. Tay- 
 lor V. State, 7 Blackf. 93 ; Mayers v. State, 2 
 Eng. 68. 
 
 23. A party cannot be convicted after the 
 law under which he may be prosecuted has 
 been repealed, although the offense may 
 have been committed before the repeal; and 
 this principle is applicable where the law is 
 repealed or expires pending an appeal on a 
 
 writ of error from a judgment of an inferior 
 court. Keller v. State, 12 Md. 322. 
 
 24. Where a statute creating an offense 
 has been repealed, or has expired previous 
 to the finding of an indictment, a prosecu- 
 tion cannot be sustained ; and if after con- 
 viction there can be no sentence. Com. v. 
 Pennsylvania Canal Co. 66 Penn. St. 41 ; 
 Wall V. State, 18 Texas, 682 ; Greer v. State, 
 22 lb. 588. 
 
 25. When the repeal of a statute is in ex- 
 press terms, and without a saving clause as 
 to offenses committed in violation of the 
 repealed statute, an indictment previously 
 found under it will be quashed on motion. 
 U. S. V. Finlay, 1 Abb. 364; GrifBnv. State, 
 39 Ala. 541. 
 
 26. Where the act which imposes a pen- 
 alty is repealed after conviction, the judg- 
 ment is arrested; and when it is repealed 
 subsequent to judgment, the judgment may 
 be reversed on writ of error. Hartung v. 
 People, 22 N. Y. 95 ; rev'g 4 Parker, 319. 
 
 27. The repeal of a penal statute oper- 
 ates as a pardon of all crimes committed 
 before that time, except when the repealing 
 statute contains a provision expressly saving 
 the right to prosecute. Wharton v. State, 5 
 Cold. Tenn. 1. 
 
 28. If an offense is committed against a 
 statute, and afterward and before sentence 
 the statute is repealed, any proceedings un- 
 der it which were not closed are arrested the 
 same as if the statute had never existed. 
 State V. Daley, 29 Conn, 272; State v. 
 Grady, 34 Conn. 118, 
 
 29. On the trial of an indictment for 
 manslaughter, it appeared that at the time of 
 the commission of the offense the following 
 statute was in force : "Eveiy person who shall 
 commit manslaughter shall forfeit and pay a 
 fine .not exceeding one thousand dollars, and 
 suffer imprisonment in the State prison for a 
 term not less than two nor more than ten 
 years." Subsequently the following statute 
 rei^ealing the fonner one, was jjassed: 
 " Every person who shall commit man- 
 slaughter and be duly convicted thereof, 
 shall forfeit and pay a fine not exceeding 
 one thousand dollars, and suffer imprison- 
 ment in the State prison or county jail for a
 
 STATUTES. 
 
 581 
 
 Revival of Statute. 
 
 Creating and Regulating Courts. 
 
 term not exceeding ten years." The latter 
 act took effect previous to the trial and con- 
 viction of the prisoner. Held on motion in 
 arrest of judgment that the prisoner could 
 not be convicted or sentenced under either 
 of the statutes. State v. Daley, 29 Conn. 272. 
 
 30. The statute which existed at the time 
 a theft was committed provided for the pun- 
 ishment by imprisonment in a common jail, 
 in all cases of larceny where the value of the 
 jiroperty did not exceed the sum of $50, and 
 imprisonment in the State prison not ex- 
 ceeding five years, where the value of the 
 property stolen exceeded the sum of $50. 
 Afterward a statute was enacted repealing 
 so much of the former statute as was incon- 
 sistent with it, and providing that if the 
 value of the property stolen should exceed 
 the sum of $2,000, the punishment should 
 be imprisonment in the State j)rison for a 
 term not exceeding twenty years. Held that 
 so much of the prior statute as related to the 
 stealing of less than $2,000, was not repealed 
 by the subsequent statute. State v. Grady, 
 34 Conn. 118. 
 
 31. Revival of statute. The repeal of a 
 repealing statute revives the original statute, 
 although the repeal was only by implica- 
 tion. People V. Davis, 61 Barb. 456. 
 
 32. Operation of statute of limitations. 
 A statute of limitations does not operate as 
 a bar to the prosecution ©f offenses commit- 
 ted before it went into effect. Martin v. 
 State, 24 Texas, 61. (Wheeler, Ch. J., dis- 
 senting, held that such a statute ought to be 
 construed to relate to past as well as to fut- 
 ure offenses, when its operation was bene- 
 ficial to the accused, unless the Legislature 
 had plainly declared that it was not to re- 
 ceive such a construction.) 
 
 33. Statute imposing no penalty. Where 
 the defendant was convicted under a statute 
 which prescribed no penalty, on motion in 
 arrest of judgment, the court discharged 
 him. State v. Ashley, Dudley, Ga. 188. 
 
 34. In relation to freedmen. In Ala- 
 bama, since the abolition of slavery, the 
 general criminal statutes of the State are 
 applicable to offenses committed by freed- 
 men, although they were not so applicable 
 at the time they were enacted. Eliza v. 
 
 State, 39 Ala. 693 ; Aaron v. State, lb. 684 ; 
 Witherby v. State, lb. 702 ; Ferdinand v. 
 State, lb. 706 ; Miller v. State, 40 Ala. 54 ; 
 Stephen v. State, lb. 67 ; Tempe v. State, 
 lb. 350. 
 
 35. Creating and regulating courts. A 
 court derives its authority to take cognizance 
 of ci'iminal proceedings not from special 
 statutes, but from the act constituting it a 
 court. State v. Wilbor, 1 R. I. 199. 
 
 36. That which concerns the administra- 
 tion of public justice (like legislation re- 
 specting a court, though it be of limited 
 jurisdiction, and though its sittings be con- 
 fined to a certain specified locality), is a 
 pul)Iic law — a law which affects, and in 
 which the public generally are interested. 
 Within this rule, a statute creating or regu- 
 lating the Court of Special Sessions of the 
 city and county of New York, as it affects 
 the public, is not local within the meaning 
 of the Constitution. People v. Davis, 61 
 Barb. 456. 
 
 37. State laws do not control in criminal 
 proceedings in the United States courts, 
 either in the mode or form of charging the 
 offense, in the rules of evidence, or in the 
 manner of conducting the trial; but the 
 proceedings are according to the course of 
 the common law except so far as has been 
 otherwise provided by act of Congress or 
 by constitutional provision. U. S. v. Shep- 
 ard, 1 Abb. 431. 
 
 38. City ordinances. Where a city charter 
 declares that the violation of the ordinances 
 of the city which may be made on certain 
 subjects within certain limitations shall be a 
 misdemeanor, and may be prosecuted as 
 such, and such ordinances are passed, they 
 have the authority of a statute. State v. 
 Tryon, 39 Conn. 183. 
 
 39. Effect of statute imposing penalty. 
 Where an act wliich is not criminal at com- 
 mon law is prohibited by statute, and a penal- 
 ty is imposed in the same statute declaring 
 such prohibition, the act is not indictable. 
 But where the act was criminal at common 
 law or already i^rohibited by a former statute, 
 the imposition of a civil penalty does not 
 take away the power to punish by indict- 
 ment; so, where the statute itself contains
 
 582 
 
 STATUTES. 
 
 Legalizing Obstruction of Highway. 
 
 When to be Liberally Construed. 
 
 any provisions slioM'ing that the Legislature 
 did not intend that the ciAdl penalty should 
 constitute the only punishment, the remedy 
 by indictment is not taken away. Behan y. 
 People, 17 N. Y. 516 ; People v. Shea, 3 
 Parker, 562. 
 
 40. When a statute revises the whole 
 subject of an offense, making that a qualified 
 offense which was before absolute, or chang- 
 ing the time or mode of prosecution, or the 
 degree of punishment, it may be a repeal of 
 the common law. A statute is not of this 
 character which prescribes a penalty for 
 using without license a building in the dense 
 part of a town as a slaughter-house. State 
 V. Wilson, 43 New Hamp. 415. 
 
 41. Legalizing obstruction of highway. 
 The defendant having been convicted of a 
 nuisance in unlawfully constructing a rail- 
 road in a highway, before sentence could be 
 pronounced, a statute was passed confirming 
 the location of 'the defendant's road. Ileld 
 that such confirmation was no ground for 
 arresting judgment ; the effect of the statute 
 being to prevent a subsequent encroachment 
 from being deemed a nuisance, but not acts 
 committed prior to its passage. Com. v. 
 Old Colony, &c. R. R. Co. 14 Gray, 93. 
 
 42. General rule of constmiction. In 
 the construction of a statute, the language 
 may be qualified by reference to other parts 
 of the same statute, and to the circumstances 
 and facts to which it relates, as well as by 
 reference to cotemporaneous legislation. 
 Smith V. People, 47 N. Y. 330. 
 
 43. When there are employed in a later 
 statute, the terms used in an earlier one 
 which has received a judicial construction, 
 that construction is to be given to the later 
 statute. Com. v. Hartnett, 3 Gray, 450. 
 
 44. Statutes in pari materia are to be read 
 together, for the reason that it is to be 
 presumed that a code of statutes relating to 
 one subject is governed by the same spirit, 
 and intended to be harmonious and con- 
 sistent. Statutes enacted at the same session 
 of the Legislature are within the reason of 
 this rule. Smith v. People, supra. 
 
 45. It is only when an exception is found 
 in the enacting clause of a statute, that it 
 becomes necessary to show by averment 
 
 that the offense does not fall within the 
 exception. Mathews v. State, 24 Ark. 484. 
 
 46. "When to be liberally construed. 
 In giving construction to a statute for the 
 purpose of imprisoning or justifying the 
 imprisonment of a party as a punishment 
 for an offense, a humane interj^retation 
 should prevail. People v. Kelly, 35 Barb. 
 444, per Potter, J. 
 
 47. Meaning of word offender. The 
 term "offender," in the New York Revised 
 Statutes defining the term " felony," is not 
 used as a word of limitation making it de- 
 pendent upon the personal status of the 
 criminal, or his exemption from a particular 
 punishment by reason of age or mental in- 
 capacity, where the offense for which he is 
 convicted is a felony ; but a word of general 
 application, and means any crime which is 
 punishable by death or by imprisonment in 
 State prison, without reference to the per- 
 sonal exemptions or exceptions of the 
 criminal. People v. Park, 41 N. Y. 21, 
 Lott, J., disserding ; afii'g 1 Lans. 263. 
 
 48. When it includes persons not named 
 in it. In general, where a statute creates a 
 felony and prescribes a punisliment therefor, 
 or where a statute provides a punishment 
 for a common-law felony by name, those 
 who were present, aiding and abetting in 
 the commission of the crime, are held to be 
 included by the statute, although not men- 
 tioned as such in the statute. But where 
 the punishment is imposed by the statute 
 upon the person alone who actually com- 
 mitted the acts constituting the offense, 
 and not in general terms upon those who 
 were guilty of the offense, mere aiders and 
 abettors will not be deemed to be within the 
 act. Stamper v. Com. 7 Bush, Ky. 612. 
 
 49. Construction in case of repeal. 
 Where a statute is in part repealed or altered, 
 the original apd amendatory acts must be 
 considered together. Where the amendatory 
 act i^rescribes a different mode of distrib- 
 uting the penalty from that directed by the 
 original act, the amendment does not affect 
 the offense or the penalty, but only changes 
 the form of the judgment. State v. Wilbor, 
 1 R. L 199. 
 
 50. A clause in a statute purporting to
 
 SUMMAEY CONYICTION.— SUNDAY. 
 
 583 
 
 Is Regulated by Statute. 
 
 Right to Enforce the Observance of. 
 
 repeal other statutes is subject to the same 
 rules of interpretation as other enactments, 
 and the intent must prevail over literal 
 construction. Smith v. People, 47 N. Y. 
 330. 
 
 0ubovnation of Pcrjunj, 
 
 See Perjury and stiBORNATiON of per- 
 jury. 
 
 Siimmanj Coiunctiou. 
 
 1. Is regulated by statute. The power 
 of summary conviction being in derogation 
 of the common law, it must be confined to 
 special statutes from which its force is de- 
 rived. People V. Phillips, 1 Parker, 95. 
 
 2. When statute must be strictly fol- 
 lowed. Where a statute prescribes the form 
 of summary conviction, it must be strictly 
 followed. But it is otherwise when the 
 statute is merely directory. Com. v. Hardy, 
 1 Ashm. 410. 
 
 3. Proceedings. Where the proceedings 
 are according to the course of the common 
 law, every ingredient in the oifense must be 
 repeated in the proof on the record, and 
 cannot be supplied by reference to the accu- 
 sation. Ibid. 
 
 4. There must be an information or charge, 
 and the defendant summoned. All of the 
 proceedings, including the evidence, convic- 
 tion, judgment and execution, must be 
 according to the course of the commen law 
 in trials by jury, unless otherwise directed 
 by statute. There must be a record, other- 
 wise the magistrate will be liable as a tres- 
 passer. The record must show : the circum- 
 stances of the offense; the plea; the names 
 of the witnesses; that the testimony was 
 given in the presence of the defendant; the 
 evidence; and the adjudication. In the 
 absence of appeal, the remedy of the de- 
 fendant is by habeas corpus or certiorari. 
 People V. Phillips, vqyra. 
 
 5. When it will be sustained. Where 
 the proceedings are at common law, and the 
 justice is bound to send up the evidence as 
 
 part of his record, his conclusions will be 
 sustained if the evidence be such as might 
 have been left to a jury. Com. v. Hardy, 
 supra. 
 
 6. Statute in relation to, when void. 
 The charter of a city authorizing the passing 
 of ordinances, the punishment for the viola- 
 tion of which shall be imprisonment ou 
 summary conviction, is unconstitutional and 
 void. Barter v. Com. 8 Penn. 253; Pitts- 
 burgh V. Young, 3 Watts, 363. 
 
 Sunbai). 
 
 1. Right to enforce the observance of. 
 
 The Christian religion is a part of the com- 
 mon law, and statutes for the punishment of 
 Sabbath breaking are not in derogation of 
 liberty of conscience. Shover v. State, 5 
 Eng. 259. 
 
 2. Conduct which has a tendency to bring 
 religion into contempt, is punishable at 
 common law, and the Legislature has the 
 constitutional light to pass laws for the pro- 
 tection of the Christian Sabbath, and to 
 prohibit dramatic performances on Sunday. 
 Lindeumuller v. People, 33 Barb. 548. 
 
 3. Construction of statute. A statute 
 against keeping open on Sunday, " a shop, 
 house, store, saloon, or other building in 
 which it is reputed that spirituous and in- 
 toxicating liquors, ale and lager beer are 
 exposed for sale," does not include an in- 
 closed park of four acres within which is an 
 open uncovered platform for dancing, from 
 which lager beer is sold. State v. Barr, 39 
 Conn. 40. 
 
 4. Labor upon, when not prohibited. 
 In North Carolina, it is not an indictable 
 oflfense to labor on Sunday. State v. Wil- 
 liams, 4 Ired. 400. 
 
 5. In New Jersey, the sale of liquor by a 
 tavern-keeper, on Sunday, is not within the 
 statute against the profanation of the Lord's 
 day, for the reason that lie is compelled by 
 his occupation to keep a house of enter- 
 tainment at all times. Hall v. State, 4 
 Harring. 132. 
 
 6. In Indiana, it was held tliat the manu- 
 facture of malt beer on Sunday was not a
 
 584 
 
 SUNDAY, 
 
 Work of Necessity. 
 
 What Evidence Sufficient to Show Violation of. 
 
 desecration of the Salibath. Crocket v. 
 State, B3 Ind. 416. 
 
 7. Work of necessity. On the trial of 
 an information for the violation of the Sab- 
 bath, it appeared that the defendant was 
 engaged on Sunday in gathering and boiling 
 on his premises sap for maple sugar; that it 
 was a good day for the flowing of the sap; 
 that his troughs were full and running over ; 
 and that he had no way of saving the sap 
 but by gathering and boiling it. Held a 
 work of necessity. Morris v. State, 31 Ind. 
 189. 
 
 8. In Arkansas, on the trial of an indict- 
 ment for laboring on the Sabbath, the fol- 
 lowing instruction was held erroneous : 
 That the defendant had a right to preserve 
 his property from waste on the Sabbath; 
 and if it was going to waste, and likely to 
 be lost, by any unforeseen or unavoidable 
 circumstance, he was justified in labor- 
 ing to preserve it. State v. Gofi", 20 Ark. 
 289. 
 
 9. Complaint. In Massachusetts, a com- 
 plaint was held sufficient under the statute 
 (Genl. Sts. ch. 84, § 1), which alleged that 
 the defendant did, on a certain day, " that 
 day being the Lord's day, and between the 
 midnight preceding and the midnight suc- 
 ceeding the said day, at," &c., " keep open 
 liis shop there situate, for the purpose 
 of doing business therein, the same not 
 being then and there works of necessity 
 or charity." Com. v. Wright, 12 Allen, 
 187. 
 
 10. Indictment. An indictment for keep- 
 ing a grocery open on Sunday, need not 
 charge a criminal intent, or that the defend- 
 ant is the owner. Shover v. State, 5 Eng. 
 259 ; Brittin v. State, lb. 299. See Hall v. 
 State, 3 Kelly, 18. 
 
 11. In Indiana, an indictment for the des- 
 ecration of the Sabbath, was held sufficient 
 which charged that the defendant, being 
 over fourteen years of age, was found on 
 Sunday unlawfully at common labor, en- 
 gaged in his usual avocation, to wit, selling 
 and delivering to J. O. two quarts of beer, 
 and receiving from him twenty-five cents 
 in payment therefor. Eitel v. State, 33 
 Ind. 201. 
 
 12. What evidence sufficient to show 
 violation of. In Massachusetts, a complaint 
 under the statute (E. S. ch. 50, § 1). for 
 keeping a shop open on Sunday for business, 
 is supported by j^roof that the door was 
 suffered to remain unlatched in order that 
 persons might pass in and out on business. 
 Com. V, Lynch, 8 Gray, 384. 
 
 13. Proof that though the outer entrances 
 were closed, yet if the defendant permitted 
 general access to his shop through the 
 dwelling-house to any one that pleased to 
 enter for the purpose of traffic, will support 
 a complaint for keeping open a shop on the 
 Lord's day. Com. v. Harrison, 11 Gray, 
 308. It may be left to the jury to determine 
 the time when the sun set on the day of the 
 offense. lb. 
 
 14. Burden of proof. On the trial of a 
 complaint for doing business in a saloon in 
 A^olation of the statute for the observance 
 of the Lord's day, the persons who did the 
 business being unknown, and no connection 
 having been shown between them and the 
 defendant, the court charged that "the 
 jury had a right to consider whether it was 
 probable that a mere stranger to the defend- 
 ant would or could get access to, and pos- 
 session of the saloon in the day time and 
 continue to do so for the length of time 
 spoken of by the witnesses." Held errone- 
 ous: the burden being on the prosecution 
 to establish the fact that the persons who 
 made the sales were agents of the defend- 
 ant, and a probability of guilt not being 
 sufficient to authorize a conviction. Com. 
 V. Mason, 12 Allen, 185. 
 
 15. Reasonable doubt. Where the dese- 
 cration consists in the alleged sale of an 
 article, if there is a reasonable doubt as to 
 whether the transaction was a sale or a gift, 
 there can be no conviction. Mayer v. State, 
 33 Ind. 203. See Foltz v. State, lb. 215 ; 
 Voglesongv. State, 9 lb. 112. 
 
 16. Is not a day of the term of a court. 
 Sunday being dies non juridieus, it is not 
 one of the days of the term of a court. 
 Read v. Com. 22 Graft. 924 ; s. c. 1 Green's 
 Crim. Reps. 267; referring to Michie v. 
 Michie's Adm'r, 17 Graft. 109. 
 
 See Religious meeting.
 
 THEATRICAL.— THREATENmG TO ACCUSE. 
 
 585 
 
 Indictment for Unlawful Exhibition of. 
 
 What Constitutes. 
 
 S^l)catvical IJcrformaucc. 
 
 Indictment for unlawful exhibition of. 
 
 An indictment Ti'liich alleges that the de- 
 fendant " unlawfully exhibited a theatrical 
 performance " should state the facts which 
 show that it was unlawful. Pike v. Com. 2 
 Duvall, Ky. 89. 
 
 Sljvcatcmug to Accuse of 
 
 1. What constitutes. On the trial of an 
 information for threatening to accuse an- 
 other of crime with intent to extort money, 
 it appeared that the threatening letter stated 
 that one A. would commence proceedings 
 against E. if the prosecuting attorney did 
 not, and would also bring an action for 
 damages, in both of which suits he intended 
 defendant for chief witness, whose testi- 
 mony would be sufficient to convict ; and it 
 demanded of E. whether he would stand 
 trial and be sent to State prison for a term 
 of years, or pay defendant a sufficient sum 
 to enable him to leave that part of the 
 country, and not appear against him. Held 
 by Cooley, J., and Christiaucy, J., sufficient 
 under the statute of Michigan (Comp. L. 
 1871, § 7538), to authorize a conviction; 
 but by Graves, Ch. J., and Campbell, J., 
 that in order to satisfy the statute, the ac- 
 cusation menaced must be threatened as 
 one to come from the author of the threat, 
 and not from a third person. People v. 
 Braman, 30 Mich. 460. 
 
 2. In Maine, the offense of obtaining 
 property of another by means of threats, 
 consists in maliciously threatening to accuse 
 one of an offense or to injure his person or 
 property with intent to extort money or 
 pecuniary advantage or with intent to com- 
 pel him to do an act against his will, 
 whether the threats did or did not produce 
 the desired effect. State v. Bruce, 20 Maine, 
 71. 
 
 3. "What does not amount to. The fol- 
 lowinsr communication was held not to be a 
 
 threatening letter within the statute of Ohio, 
 although at a subsequent meeting between 
 the parties, verbal threats were made which 
 resulted in the person threatened giving to 
 the other his note for a hundred dollars : 
 " Dear sir: Upon examining the excise law, 
 1 find that note you made me require stamp, 
 and that you are liable to fine of two hun- 
 dred dollars for not stamping it. You will 
 please call immediately, and make satisfac- 
 tion, and save yourself trouble. Yours with 
 respect. W. A. Brabham." Brabham v. 
 State, 18 Ohio, N. S. 485. 
 
 4. Indictment. In Massachusetts, an in- 
 dictment under the statute (Gen. Stats, ch. 
 160, § 28), for attempting to extort money 
 by the threat of a criminal accusation, need 
 not set out the precise words of the threat. 
 Com. V. Moulton, 108 Mass. 307. And the 
 indictment need not name the offense threat- 
 ened. The averment that the defendant 
 falsely stated that a warrant had been issued 
 to arrest a person for a crime, which would 
 be served unless money was paid to stay the 
 process, was held sufficient. Com. v. Mur- 
 phy, 13 Allen, 449. 
 
 5. An indictment charged thatO., C. and 
 H.,on,&c., "intending fraudulently and mali- 
 ciously to deprive B. of his good name and 
 character, and to subject him, without any 
 cause, to punishment for the crime of adul- 
 tery, and to extort from him money to the 
 amount of," &c., "did falsely, unlawfully, 
 wickedly and maliciously combine, conspire, 
 confederate, and agree together to entrap, 
 seduce and insnare, and falsely charge and 
 accuse him said B. of the crime of adultery, 
 and thereby and by the means aforesaid, to 
 extort," &c., Held that the indictment was 
 not bad on the ground that it set forth an 
 executed conspiracy; nor on the ground 
 that it was double, vague, uncertain, and 
 contradictory. Com. v. O'Brien, 13 Cush. 
 84. 
 
 6. An indictment charged that the de- 
 fendant willfully and maliciously threatened 
 E. to accuse him of committing the crime 
 of fornication and adultery, with intent then 
 and there by such threat to extort money, 
 to wit: the sum of $1,000, from him. The 
 words of the threat as set forth were:
 
 586 THREATENING TO ACCUSE.— TOLL.— TREASON. 
 
 Indictment. 
 
 Indictment for Exacting. 
 
 What Constitutes. 
 
 " Halloo, old fellow, I want yon ; you have 
 seduced this girl ; she will swear you have ; 
 her oath will stand twice as strong as yours, 
 and send you to the State prison for twenty 
 years. Go with lue ; I am Detective Jones, 
 and if you will give me a thousand dollars 
 I will let you go." It was objected that the 
 language used did not import a threat to 
 accuse of crime, but assumed a state of facts 
 upon which an accusation had already been 
 made, and amounted to an offer to com- 
 pound the offense for money; and further, 
 that the word " seduced " did not imply a 
 criminal offense accomplished. Held, after 
 verdict, that the objection was insufScient. 
 Com. V. Dorus, 108 Mass. 488. 
 
 7. In Tennessee, an indictment under the 
 statute (Code, § 4623), providing that, " If 
 any person, either verbally or by written or 
 jjrinted communication, shall maliciously 
 threaten to accuse another of a crime or 
 offense, or to do any injury to the person or 
 property of another, with intent thereby to 
 extort any money, property, or pecuniary 
 advantage whatever, or to compel the per- 
 son so threatened to do any act against his 
 will, he shall, on conviction, be punished," 
 tfec, is sufHcient which charges that the de- 
 fendant "maliciously threatened one B. 
 that he should suffer the consequences 
 (meaning that he would kill him, or do him 
 some great bodily harm, then and there 
 pursuing the said B. with a pistol), unless 
 the said B., against his will, should leave 
 Smith's Cross Roads immediately, with in- 
 tent thereby to compel the said B. to leave 
 Smith's Cross Eoads against his will, from 
 fear of injury to his person, so menaced and 
 threatened by the defendant." State v. 
 Morgan, 3 Heisk. 262 ; s. c. 1 Green's Crim. 
 Reps. 521. 
 
 8. Evidence. An indictment charging the 
 defendant with maliciously threatening to 
 enter a complaint against M. to an officer for 
 adultery is supported by proof that the de- 
 fendant having discovered M. in a suspicious 
 position with a woman, after some conversa- 
 tion between the three as to the commission 
 of adultery by M. with her, took M.'s note 
 for iy.'jO, and afterward told M. that if the 
 note was not paid in three days he would 
 
 have him arrested for adultery. Com. v. 
 Carpenter, 108 Mass. 15. 
 See Libel. 
 
 Indictment for exacting. In Alabama, 
 an indictment against the keeper of a public 
 bridge for exacting illegal toll (Code,§ 1199), 
 must allege that the bridge was licensed, 
 and the prescribed rates of toll must be 
 specified. An averment that the bridge 
 ''was chartered," and that "the defendant 
 being employed as the keeper of said 
 bridge, did demand and collect from B. F. 
 P. larger toll than is authorized by said 
 charter," is not sufficient. Lewis v. State, 
 41 Ala. 414. 
 
 1. What constitutes. 
 
 2. Indictment. 
 
 3. Jury. 
 
 4. evipenge. 
 
 1. What constitutes. 
 
 1. Entering the service of the enemy. 
 Enlisting in the service of the enemy is 
 treason, and it can only be justified by the 
 fear of immediate death. Resj}. v. McCarty, 
 2 Dall. 8G. 
 
 2. Persuading another to join the 
 enemy. The person persuaded to join the 
 enemy must have enlisted in order to make 
 the persuader liable for treason. Robert's 
 Case, 1 Dall. 39. 
 
 3. Restoring prisoners. Giving up pris- 
 oners and deserters to the enemy is treason. 
 U. S. V. Hodges, 2 Wheeler's Crim. Cas. 
 477, Houston, J., dissenting. 
 
 4. Resisting act of Congress. To con- 
 stitute treason against the United States, in 
 resisting an act of Congress, there must be 
 a conspiracy to resist it generally and pub- 
 licly by force or by intimidation of num- 
 bers, and not a conspiracy to resist such law 
 in particular instances only for u personal or 
 private purpose. U. S. v. Hanway, 2 Wal- 
 lace, Jr. 139.
 
 TREASON. 
 
 587 
 
 What Constitutes. 
 
 Indictment. 
 
 Jury. 
 
 Evidence. 
 
 5. "What deemed a levying of war. 
 
 To constitute a levying of war there must 
 be an assemblage for the purpose of accom- 
 plishing by force a treasonable purpose. 
 The enlistment of men to serve against the 
 government is not enough. Ex 2jarte Boll- 
 man, 4 Cranch, 75. 
 
 6. An assemblage of men for the purpose 
 of revolutionizing by force the government 
 established by the United States in any of 
 its territories, constitutes a levying of war. 
 The meeting, and then marching from 
 places of partial to places of general rendez- 
 vous, is such an assemblage. But the travel- 
 ing of individuals to the place of rendez- 
 vous is not sufficient. Ibid. 
 
 7. The promotion of a rebellion will not 
 sustain a conviction for treason under the 
 clause of the Constitution in relation to 
 adhering to enemies giving them aid and 
 comfort. But aiding a rebellion constitutes 
 a levying of war; and the buying of a ves- 
 sel, guns, and ammunition, and getting her 
 ready for service in a rebellion, constitute 
 overt acts of treason, whether or not the 
 vessel actually sails, or makes a successful 
 cruise. U. S. v. Greathouse, 3 Abb. 364. 
 
 8. As to what constitutes treason in levy- 
 ing war against the United States, and the 
 evidence by which it is to be shown. U. S. 
 V. Vigol, 2 Dall. 346 ; U. S. v. Mitchell, lb. 
 348. 
 
 9. Who regarded traitors. In case of 
 the levying of war, all persons who take any 
 part in it, however small, or however remote 
 from the scene of hostilities, and who are 
 leagued in the general conspiracy, are 
 deemed traitors. Kv jMvte BoUman, 4 Cranch, 
 75. 
 
 10. What not deemed treason. Forcibly 
 resisting the execution of a law of the 
 United States for a private purpose is not 
 treason. U. S. v. Hoxie, 1 Paine, 265. 
 
 11. Going from an enemy's squadron to 
 the shore with the intention, peaceably, to 
 procure provisions for the enemy, was held 
 not to amount to an act of treason. But if 
 the intention of the defendant had been to 
 obtain provisions for the enemy and to join 
 him in hostilities against the citizens of the 
 United States, his going toward the shore 
 
 would have been an overt act of favoring 
 the enemy, though no other act were com- 
 mitted. U. S. V. Poyer, 3 Wash. C. C. 234. 
 
 12. State courts have not jmisdiction of 
 treason against the United States, and 
 therefore the giving aid and comfort to the 
 public enemies of the United States is not 
 treason against a State. People v. Lynch^ 
 11 Johns. 549. 
 
 2. Indictment. 
 
 13. Need not be specific as to the num- 
 ber engaged. The fact that the overt act 
 was not committed by the number of in- 
 surgents alleged in tbe indictment is im- 
 material. U. S. v. Vigol, 2 Dall. 346. 
 
 14. Nature of intelligence sent must 
 be alleged. Charging that the defendant 
 sent intelligence, without stating the nature 
 of it, is not sufficient. Carlisle's Case, 1 
 Dall. 35. 
 
 3. Jury. 
 
 15. Composition of. As to the number 
 and addition of jurors to be returned, and 
 the form of the panel in a trial for high 
 treason in the United States Circuit Court. 
 U. S. V. Insurgents, 2 Dall. 335. 
 
 y 
 
 4. Evidence. 
 
 16. Place of offense. After an overt act 
 of treason has been proved to have been 
 committed in the county where the indict- 
 ment is found, evidence may be given of an 
 overt act in another county. Malin's Case, 
 1 Dall. 33. 
 
 17. Presumption from authority of de- 
 fendant. Proof that a city being in pos- 
 session of the insurgents, the defendant had 
 authority to grant passes, is competent, but 
 not conclusive evidence that he held a com- 
 mission under the enemy. Carlisle's Case, 
 1 Dall. 35. 
 
 18. Proof of distinct offense. On a trial 
 for treason, a felonious act for which the 
 defendant is held on another indictment, is 
 not admissible in evidence. U. S. v. Mit- 
 chell, 2 Dall. 348. 
 
 19. Admissions and declarations of de- 
 fendant. The language of the prisoner 
 showing his intention to join the enemy, is
 
 588 
 
 TEEASOK— TRESPASS. 
 
 Evidence. 
 
 Meaning, 
 
 admissible in evidence on the question of 
 guilty motive. Resp. v. Malin, 1 Dall. 33. 
 As to the admissibility of the defendant's 
 confession, see Robert's Case, 1 Dall. 39 ; 
 Resp. V. ]\rcCartY, 2 Dall. 86. 
 
 20. Defendant as witness. Where two 
 persons are sejiarately indicted for treason, 
 one is a competent •witness for the other. 
 U. S. V, Hanway, 2 Wallace, Jr. 139. 
 
 <LVC£ipaS5. 
 
 1. Meaning. The word trespass when 
 used iu the criminal code, has a technical 
 and definite meaning. It is descriptive of 
 offenses of a lower grade only, and is in- 
 cluded in the term misdemeanor. U. S. v, 
 Flanakin, Hemp. 30. 
 
 2. Invading another's premises. Where 
 four men went upon another's premises, un- 
 der proceedings before a justice of the 
 peace, which were a nullity, ejected the occu- 
 pant and his family from the house, and 
 canied away his effects, it was held that 
 they were guilty of trespass. State v. Yar- 
 borough, 70 N. C. 250. 
 
 3. On the trial of an indictment for tres- 
 pass, it was proved that the defendants, 
 armed with a stone, a stick, a cowhide and 
 a pistol, iu a violent manner and threatening 
 language, demanded of the prosecutor to 
 come out and take a whipping. This was 
 at a gate within forty feet of his house. 
 Held that a con\'iction was proper. State v. 
 Buckner, Phil. N. C. 558. 
 
 4. The defendants from near dark until 
 eleven o'clock at night rode back and forth 
 on the highway in front of the prosecutor's 
 house, who owned the land on both sides of 
 the highway, dancing, singing, cursing and 
 firing off two shots, the prosecutor's wife 
 being at the time seriously ill, and refused 
 to desist upon being requested. Held that 
 they were guilty of forcible trespass. State 
 V. Widenhouse, 71 N. C. 279; approving 
 State V. Buckner, supra. 
 
 5. In taking personal property. Al- 
 though a person may wrongfully take the 
 goods of another, yet unless he intended to 
 assume the property in them, and to con- 
 
 vert them to his own use, it wiU be trespass 
 and not robbery. State v. Sowls, Phil. N. 
 C. 151 ; State v. Deal, 64 N. C. 270. 
 
 6. At common law, a trespass in relation 
 to personal property was not an indictable 
 offense without a breach of the peace, or un- 
 less the act complained of directly and 
 manifestly tended to it by being done in the 
 presence of the owner, or to his terror, or 
 against his will. State v. Phipps, 10 Ired. 
 17. 
 
 7. Forcibly taking from another his horse, 
 is not indictable. State v. Farnsworth, 10 
 Yerg. 261. But it is otherwise as to a tres- 
 pass which is accompanied with a breach of 
 the peace. State v. Batchelder, 5 New 
 Hamp, 549. 
 
 8. To constitute an indictable trespass in 
 taking tlie personal property of another, 
 there need not have been an actual putting 
 in fear. It is only necessary that the force 
 be such as is calculated to intimidate or 
 alarm or involve or tend to a breach of the 
 peace. State v. Pearman, Phil. N. C, 371. 
 
 9. Two white men went to the house of a 
 colored man, and one of them claiming a 
 cow which was there, said that he intended 
 to take her away. The colored man insisted 
 upon his right to the cow, and went to a 
 neighbor's to get a witness to prove his 
 title. While he was gone the men took pos- 
 session of the cow ; but when he returned, 
 he forbade them to drive her oft', which how- 
 ever they did. Held that they were guilty 
 of trespass. State v. McAdden, 71 N, C. 
 207. 
 
 10. Destruction of personal property. 
 In Maine, to constitute the wrongful de- 
 struction of personal property within the 
 statute (R. S. ch. 162, § 13), it makes no 
 difference whether the defendant's posses- 
 sion was rightful or wrongful. State v. 
 Pike, 33 Maine, 361. 
 
 11. Right of entry. One who has been 
 in the employ of another, has a right to go 
 on to his former employer's premises to de- 
 mand his wages, but if ordered to leave he 
 cannot lawfully remain. Peoj^le v. Osborn, 
 1 Wheeler's Crim. Cas. 97. 
 
 12. Right to expelintruder. Where a per- 
 son enters peaceably on the laud of another.
 
 TRESPASS. 
 
 589 
 
 Right of Landlord to Resume Possession, Averment of Act Constituting Offense. 
 
 and is committing no violence, there must 
 be a request to depart and refusal before the 
 owner can expel him by force. State v. 
 Woodward, 50 New Hamp. 527. 
 
 13. A person may lawfully go to an inn as 
 a guest, or for the purpose of selling, any- 
 thing. He has a right to remain there as a 
 guest so long as he behaves himself properly 
 and pays for his entertainment. If he goes 
 there to sell articles, when that is done he is 
 to leave, if the owner of the house desires 
 him; and if he refuse, the innkeeper may 
 expel him with so much force as is neces- 
 sary. If the party refuse to go, and arm 
 himself, threatening to resist, the innkeeper 
 is not bound to commence his removal by 
 such gentle modes as would be ineffectual 
 and dangerous to himself. State v. Whitby, 
 5 Harring. 494. 
 
 14- The authority ©f a person to expel an 
 intruder is not confined to the walls of his 
 house, but extends to the pavement or walk 
 before the door. Ibid. 
 
 15. Right of landlord to resume posses- 
 sion. When a tenant's right of possession 
 is at an end, the landlord may resume pos- 
 session without process, if he can do so 
 without a breach of the peace ; but when re- 
 sisted, he cannot lawfully take out the 
 windows and doors, and remove the ten- 
 ant's property. Com. v. Haley, 4 Allen, 318. 
 
 16. Unjustifiable force in retaking per- 
 sonal property. The owner of personal 
 property, in attempting to retake it from a 
 trespasser, will not be justified in using a 
 deadly weapon, although in consequence of 
 the superior strength of the trespasser he 
 cannot otherwise get possession of it ; nor 
 will he be justified in resorting to such force 
 as even amounts to a breach of the peace. 
 Kunkle v. State, 32 Ind. 220. 
 
 17. When an indictment will lie. A 
 forcible entry on laud is indictable at com- 
 mon law. State v. Morris, 3 3Io. 127. 
 
 18. To render a trespass on land indict- 
 able, it must have been committed in a man- 
 ner which amounts to a breach of the peace, 
 or which would have led thereto if the per- 
 son in possession had resisted the entry. 
 State V. Ross, 4 .Tones, 315 ; State v. Cov- 
 ington, 70 N. C. 71. 
 
 19. An act which is only a private tres- 
 pass, cannot be made indictable by being 
 charged to have been committed with force 
 of arms, maliciously, without claim of right, 
 or without any motive of gain. Therefore, 
 an indictment charging that the defendant 
 " with force and arms, unlawfully, willfully, 
 and maliciously, did break in pieces and 
 destroy two windows in the dwelling-house 
 of A., to the great damage of the said A., 
 and against the peace," &c., does not state 
 an indictable offense. Kilpatrick v. People, 
 5 Denio, 277. 
 
 20. Averment of act constituting of- 
 fense. An indictment which alleges that 
 the defendant entered the premises of the 
 prosecutor with a strong hand, he being 
 then and there present, sufficiently charges a 
 forcible trespass. State v. Buckner, PhiL 
 N. C. 558. 
 
 21. An indictment at common law for 
 " unlawfully and injuriously taking a horse 
 with force and arms," does not charge a 
 breach of the peace. Israel's Case, 4 Leigh, 
 675. 
 
 22. Description of place. In an indict- 
 ment for willfully cutting timber on the 
 land of another, under the statute of New 
 York, the close or lot on which the timber 
 was cut must be described with reasonable 
 certainty. People v. Carpenger, 5 Parker, 
 228. 
 
 23. An indictment alleged that the de- 
 fendant did unlawfully cut down and re- 
 move on and from the land belonging to 
 M. S., in said county, a tree, the property 
 of M. S., &c. Held that the description of 
 the lands where the trespass was committed 
 was sufficient. Newland v. State, 30 Ind. 
 111. 
 
 24. Trial. Where several are indicted 
 for trespass, one of the defendants cannot 
 claim, as matter of right, that the jury shall 
 be required to pass upon the guilt or inno- 
 cence of the others first. Such a course, 
 although in the discretion of the court, is 
 rarely pursued, unless there is no evidence 
 against one of the defendants, or the court is 
 satisfied that he was joined in the indict- 
 ment to prevent his being a witness. State 
 V. Bogue, 9 Ired. 3G0.
 
 590 
 
 TRESPASS.— TRIAL. 
 
 Evidence. 
 
 Matters Preliminary to. 
 
 25. Evidence. An indictment for forcible 
 trespass to jDersonal property is not sustained 
 by proof of carrying away rails from a fence ; 
 the fence, when constructed, becoming a 
 part of the land. State v. Graves, 74 N. C. 
 396. 
 
 26. The intent with which a child, under 
 twelve years of age, is forcibly taken from 
 its parents, is a question of fact to be deter- 
 mined by the jury. Oliver v. State, 17 Ala. 
 588. 
 
 See Forcible trespass. 
 
 £riaL 
 
 1. Matters preliminary to. 
 
 2. Impaneling jury. 
 
 {a) Excusing jurors. 
 
 (b) Of challenges in general. 
 
 (c) Grounds of principal cliallenge to the 
 polls. 
 
 (d) Grounds of challenge to the polls for 
 favor. 
 
 (e) Peremptory challenge. 
 (/} Completion of jury. 
 
 3. Initiatory proceedings in the case. 
 
 4. Proceedings in the conduct op the 
 case. 
 
 (a) Introduction of evidence, 
 (h) Ruling of court. 
 
 (c) Deportment of the jury lohile tlie case 
 is before them. 
 
 (d) Summing up of counsel. 
 
 (e) Charge 'of judge. 
 
 0. Proceedings subsequent to submitting 
 CASE TO jury. 
 
 6. Record of conviction. 
 
 1. Matters preliminary to. 
 
 1. Right of prisoner to speedy trial. 
 A person charged with crime has the con- 
 stitutional right to a speedy and impartial 
 trial. Nixon v. State, 3 Smed. & Marsh. 
 497. 
 
 2. Place of trial vp-here offense is com- 
 mitted on vessel. In Missouri, the statute 
 providing that the trial of a person guilty 
 of felony on board of a vessel, might be had 
 in any county through which such vessel 
 should pas?, or at which such voyage should 
 
 terminate, was held constitutional. Steer- 
 man V. State, 19 Mo. 503. 
 
 3. Summoning jury and filing jury lists. 
 Where a sherift" is directed to summon a 
 jury, he may do it himself, or direct it to be 
 done by a constable or deputy. People v. 
 McGeery, 6 Parker, 653. The statute of 
 New York as to the date of the jury lists, 
 and the time they shall be filed is directory. 
 Such lists are valid, though made and filed 
 at later dates than those mentioned in the 
 statutes. Gardiner v. People, 6 Parker, 155. 
 Nor is it essential to the validity of a list of 
 jurors, that the town clerk was present when 
 it was signed. lb. When the list as re- 
 returned is valid on its face, it is conclusive 
 upon the prisoner as to its regularity. lb. 
 
 4. Serving prisoner with copy of in- 
 dictment and venire. Where a statute 
 provided that in capital cases the prisoner 
 should have a copy of the indictment and 
 of the venire two entire days before the 
 trial, it was held the duty of the court to 
 see that it was done, and that the sheriff 
 was the proper person to serve such co])y. 
 Friar v. State, 3 How. Miss. 422. 
 
 5. In Alabama, it was held that in comput- 
 ing the two days before the trial within which 
 the prisoner in a capital case was entitled to 
 be furnished with a list of the jurors, the 
 day of delivery, and the day of trial were 
 to be excluded. State v. McLendon, 1 Stew. 
 195. In South Carolina, where the iDrisoner 
 was entitled to three days in which to pre- 
 pare for trial, it was held that the time in- 
 cluded the day on which the prisoner moved 
 for a copy of the indictment. State v. 
 Briggs, 1 Brev, 8. 
 
 6. Waiver of right to copy of indict- 
 ment. Where the prisoner is entitled by 
 law to a copy of the indictment and venire 
 before trial, he waives the right by plead- 
 ing not guilty. State v. Johnson, Walker, 
 392. 
 
 7. In Georgia, it was held that although 
 a prisoner might refuse to be arraigned un- 
 til furnished with a copy of the indictment 
 and a list of the witnesses who testified be- 
 fore the grand jury, yet, that the neglect of 
 the prisoner to demand such copy and list 
 ou the arraignment, was a waiver of the
 
 TRIAL. 
 
 591 
 
 Matters Preliminary to. 
 
 right, and left it discretionary with the 
 prosecuting attorney whether or not -he 
 would afterward furnish them. State v. 
 Calvin, R. M. Charlt. 142. In New Hamp- 
 shire, it was held not error in the court on 
 the trial of an indictment for carnally know- 
 ing and abusing a female child under the 
 age of ten years, to refuse to instruct the 
 jury that they could only convict the defend- 
 ant of a simple assault because a copy of the 
 indictment was not furnished to him before 
 he was arraigned. Lord v. State, 18 New 
 Hamp. 173. 
 
 8. Employment of counsel by prose- 
 cution. In Massachusetts, where additional 
 counsel are employed by the prosecution, it 
 must be at the request of the district attor- 
 ney, and under some stringent reason arising 
 in the particular case ; and the control and 
 direction of the case must remain with the 
 public prosecutor. Com. v. Williams, 2 
 Cush. 583. 
 
 9. Compelling bill of particulars. The 
 court may, when justice cannot otherwise be 
 done, compel the production of a bill of 
 particulars. Com. v. Snelling, 15 Pick. 
 321. 
 
 10. Release of prisoner for want of 
 trial. The New York statute which pro- 
 vides that unless the prisoner shall be brought 
 to trial before the end of the next court 
 held in the county after indictment found, 
 he shall be entitled to be discharged, is not 
 a statute of limitations, but a failure to 
 comply with it is a mere irregularity. Peo- 
 ple v. Ruloff, 5 Parker, 77. In Alabama, it 
 was held under the statute of that State, 
 that if the prisoner in a capital case was not 
 indicted and tried before the second term of 
 the court after his commitment, he must be 
 discharged, notwithstanding the trial was 
 unavoidably postponed, unless the postpone- 
 ment was on the prisoner's application, or 
 with his consent. State v. Phil, 1 Stew. 
 31. 
 
 11. In Missouri, it was held that the stat- 
 ute which provided that persons indicted 
 and imprisoned should be discharged in 
 case they were not tried during the second 
 term after the indictment was found, was 
 applicable to a pending indictment only, 
 
 and that where the defendant had been im- 
 prisoned under an indictment which had 
 been quashed, the time of such imjirisou- 
 ment could not be added to the time of his 
 imprisonment under a second indictment for 
 the same offense. Fanning v. State, 14 Mo. 
 386. 
 
 12. Moving case for trial. In New 
 York, a case cannot be moved out of its 
 order on the calendar by the prisoner's comi- 
 sel, unless the notice of argument states his 
 intention to bring it on out of its order. 
 Barron v. People, 1 Barb. 136. 
 
 13. In Tennessee, where the prisoner was 
 put upon his trial on the presentment of the 
 grand jury, instead of an indictment, it was 
 held that this practice had been so long pur- 
 sued in that State, its legality could not be 
 questioned, although it might not be sanc- 
 tioned by established principles. Smith v. 
 State, 1 Humph. 396. 
 
 14. The judge has no power to order the 
 names of any of the defendants to be erased 
 from the indictment. State v. Lendon, 5 
 Strobh. 85. 
 
 15. Separate trial in discretion of court. 
 Where several are jointly indicted for a fel- 
 ony,they are not entitled to sejoarate trials as a 
 matter of right, although they sever in their 
 pleas; but the court may, in its discretion, 
 allow them to be tried separately. People 
 V. Stockham, 1 Parker, 424 ; U. S. v. Gibert, 
 2 Sumner, 19; State v. Lendon, 5 Strobh, 
 85 ; Com. v. Eastman, 1 Cush. 189, It was 
 therefore held not ground of exception that 
 before the jury were impaneled for the 
 trial of i^ersons jointly indicted for murder, 
 they moved that they be allowed separate 
 trials, which motion was denied. State v. 
 Conley, 39 Me. 78, referring to State v. So- 
 per, 16 lb. 293, and U. S. v. Merchant, 12 
 Wheat. 480. In New York, where prisoners 
 are jointly indicted and they elect to have 
 separate trials, the district attorney may de- 
 termine which of them he will first put 
 upon his trial, and a refusal of the court to 
 interfere with his discretion forms no ground 
 of exception. Patterson v. People, 46 Barb. 
 025. And see Jones v. State, 1 Kelly, 610. 
 
 16. Arraignment of prisoner. When 
 the prisoner was not arraigned, tlie judg-
 
 592 
 
 TEIAL. 
 
 Matters Preliminary to. 
 
 ment "will be reversed. Powell v. U. S. 1 
 Morris, 17. If a deaf and dumb person be 
 arraigned, the indictment must be explained 
 to liim by a sworn interpreter. Com. v. 
 Hill, 14 Mass. 207. When the prisoner has 
 been arraigned in the court where the indict- 
 ment -R-as found, it is not necessary that he 
 be arraigned at the court to which the case 
 is removed, the arraignment not being part 
 of the trial. Price v. State, 8 Gill, 395. 
 But his second arraignment would not be 
 error, Gardiner v. People, 3 Scam. 83. 
 
 17. Where the prisoner is discharged upon 
 an indictment, he cannot afterward be ar- 
 raigned or tried imder that indictment. 
 But another indictment may be found for 
 the same otFense. State v. Garthwaite, 3 
 Zabr. 143. 
 
 18. Prisoner standing mute. Where a 
 prisoner upon being arraigned stands mute, 
 and it is suggested that he is deaf and 
 dumb, a jury should be impaneled to try 
 the fact, and if the finding be in the affirma- 
 tive, and that he is incapable of understand- 
 ing the nature and incidents of a trial, the 
 court should order it to be so certified, to 
 the end that provision may be made for his 
 safe keeping in an asylum for the insane, or 
 otherwise according to law. State v. Har- 
 ris, 8 Jones, 136. 
 
 19. A prisoner arraigned for larceny stood 
 mute ; and a jury having found that he 
 stood mute fraudulently, willfully and de- 
 liberately, he w^as sentenced as upon con- 
 viction. Com. V. Moore, 9 Mass. 402. 
 
 20. A conviction before a magistrate will 
 be sustained by a record showing that the 
 defendant upon being asked whether he was 
 guilty or not guilty, fraudulently and will- 
 fully stood mute, and that after the examin- 
 ation of witnesses, and a full hearing of the 
 case, he was adjudged guilty and sentenced 
 to imprisonment. Elleuwood v. Com. 10 
 Mete. 233. 
 
 21. Waiver of arraignment. In misde- 
 meanor, the prisoner may waive a formal ar- 
 raignment. Kluget V. State, 1 Kansas, 365. 
 
 22. A person accused of murder, having 
 been served with a copy of the indictment 
 according to law, went with the prosecut- 
 ing attornev and his own counsel before the 
 
 court, personally waived an arraignment, 
 and entered such waiver and his plea of not 
 guilty on the indictment. Held that he 
 could not object after conviction, that he 
 had not been arraigned. Goodin v. State, 
 16 Ohio, K S. 344. 
 
 23. When the defendant is present in per- 
 son and by counsel states that he is ready 
 for trial, and is tried by a jury regularly im- 
 paneled and sworn, he waives the failm-e 
 to arraign him, and to enter a formal plea 
 of not guilty. State v. Cassacfy, 12 Kansas, 
 550. 
 
 24. The record is sufficient when, al- 
 though it does not state that the defendant 
 was arraigned, yet states that he aj)peared, 
 moved by his counsel to quash the indict- 
 ment, which being overruled, he pleaded 
 not guilty. Sohn v. State, 18 Ind. 389. 
 
 25. On the trial of an indictment for an 
 assault with intent to kill, the defendant 
 being present and announcing that he was 
 ready, a jury was impaneled. After the 
 prosecution had examined in chief the first 
 witness, it was discovered that the defend- 
 ant had not been arraigned. This was then 
 done and the defendant pleaded not guilty. 
 The defendant thereupon objected to any 
 further proceedings, and moved that he be 
 discharged, which motion was overruled. 
 The jury were then resworn, and the trial 
 begun de novo. Held that there was no er- 
 ror. State V. Weber, 32 Mo. 333. 
 
 26. Plea in abatement. The prisoner 
 when first arraigned, though at a subsequent 
 term of the court, may plead in abatement 
 that the grand jurors who found the indict- 
 ment were not selected conformably to the 
 statute. Vattier v. State, 4 Blackf. 73. 
 
 27. Advantage of the misnomer of the 
 defendant's christian name, sirname, or ad- 
 dition, must be taken by motion to quash or 
 l^lea in abatement on his arraignment. And 
 if there be no addition, and the party ap- 
 pear and plead not guilty, he will be deemed 
 to have waived the defect. State v. Mc- 
 Gregor, 41 New Hamp. 407. 
 
 28. Plea of non-identity. This plea 
 which is made ere tenus at the bar of the 
 court, is never allowed, unless the prisoner 
 has escaped after verdict and before judg-
 
 TRIAL. 
 
 593 
 
 Matters Preliminary to. 
 
 Impaneling Jury. 
 
 Of Challenges in General, 
 
 nient or execution. Joseph v. State, 5 How. 
 Miss. 20. 
 
 29. Proof of identity. The fact that the 
 prisoner has been arraigned and pleaded to 
 the indictment, is sufficient proof of his 
 identity. Hendrick v. State, 6 Texas, 341. 
 
 30. Replication to plea. A replication 
 to a plea of former conviction m these 
 words: "Arrest of judgment," is bad on 
 demurrer. The replication ought to show 
 that the former indictment was insufficient, 
 or that the defendant could not be convicted 
 for the offense charged in the second indict- 
 ment. Henry v. State, 33 Ala. 389. 
 
 31. Where two defective special pleas in 
 bar, substantially the same, are interposed 
 by the prisoner, and issue is taken on one 
 of them, the failure of the court to require 
 the prosecution to demur, reply, or take 
 issue on the other, is not ground of objection 
 on error. Ibid. 
 
 32. Plea of guilty. This will not be re- 
 ceived in a capital case until after the court 
 has advised the prisoner of its effect, and 
 upon proof that it is done freely, and that 
 the prisoner is sane. Com. v. Batris, 1 Mass. 
 95 ; Kinney v. People, 2 Gilman, 540. 
 
 33. Determination of question as to in- 
 sanity of prisoner. Although when the 
 insanity of the prisoner is alleged or sus- 
 ])ected, the most prudent method of deter- 
 mining the question is a trial by jury, yet 
 other modes may be adopted, in the dis- 
 cretion of the court. Freeman v. People, 4 
 Denio, 9. 
 
 34. Plea of not guilty. Where a pris- 
 oner on a trial for murder pleads not guilty, 
 and for his trial "puts himself upon his 
 country," it is sufficient without saying " on 
 God and his country." State v. Reeves, 8 
 Ired. 19. 
 
 35. The prisoner, by pleading not guilty, 
 admits the name by which he is described 
 in the indictment, and is estopped from 
 afterward denying it. Uterburgh v. State, 
 8 Blackf. 202. 
 
 36. Waiver of objection to grand juror. 
 After a ])lea to the nieiits, the dctendant 
 cannot object that one of the grand jurors 
 ■who found the indictment was an alien, 
 although he had no knowledge of the dis- 
 
 38 
 
 qualification until after the filing of the 
 plea. Byrne v. State, 12 Wis. 519; Grubb 
 V. State, 14 lb. 434. 
 
 37. Refusal to plead. When the defend- 
 ant refuses to plead, the plea of not guilty 
 should be entered. Kinney v. People, 2 
 Gilman, 540; Thomas v. State, 6 Mo. 457; 
 Meader v. State, 11 lb. 363. 
 
 38. After the ]5risoner's plea of once in 
 jeopardy was overruled, he was required by 
 the court to plead over to the indictment, 
 and on refusing so to plead, a plea of not 
 guilty thereto was entered on the indict- 
 ment by order of the court. Held that this 
 was proper under the statute (3 N. Y. R. S. 
 5th ed. p. 1022, § 74.) Gardiner v. People, 
 6 Parker, 155. 
 
 39. Remanding prisoner. Where the 
 prisoner is infected with the small-pox, a 
 trial demanded by him may be refused, 
 although the statute requires that he be 
 tried at the second term of the court after 
 the finding ®f the indictment. Com. v. 
 Jailer, 7 Watts, 866. 
 
 40. Where at the first term of the court 
 after the finding of the indictment, a wit- 
 ness for the prosecution who was under re- 
 cognizance to attend fraudulently neglected 
 to do so, it was held that the prisoner might 
 be remanded, although it did not appear 
 that he had anything to do with keeping 
 the witness away. Com. v. Carter, 11 Pick. 
 277. 
 
 2. Impaneling jury. 
 {n) Excusing jurors, 
 
 41. Authority of court in. The court 
 may excuse jurors in a capital ease, upon 
 their application, for any reasonable cause. 
 State V. Craton, 6 Ired. 164. 
 
 (I) Of challenges in general. 
 
 42. In United States courts. The act of 
 Congress of July 20th, 1840 (5 Stats, at 
 Large, 394), confers upon the courts of the 
 United States the power to regulate the 
 challenges of jurors, except in capital cases, 
 and in those the act of 1790 gives the right 
 of peremptory challenge. U. S. v. Shackle- 
 ford, 18 How. U. S. 588. 
 
 43. Challenge to the array. Objections 
 to the mode of summoning the jury are
 
 594 
 
 TRIAL. 
 
 Impaneling Jury. 
 
 Of Challenges in General. 
 
 made by a challenge to the array, or by 
 motion to quash the indictment. Stone v. 
 People, 2 Scam. 326. 
 
 44. The irregular drawing and summon- 
 ing of jurors, without fraud or corruption on 
 the part of the officers or prejudice to the 
 prisoner, is not a ground of challenge to the 
 array, Ferris v. People, 48 Barb. 17; affi'd 
 35 N. Y. 125. I 
 
 45. That the court excused a majority of 
 the jurors drawn from attendance without 
 reasonable cause is not a ground of chal- 
 lenge to the array. lb. 
 
 46. The formation or expression of an 
 opinion by the sheriff" as to the guilt or 
 innocence of the prisoner is not a ground 
 of challenge to the array. Some other 
 fact must be alleged in the challenge, as 
 that the sheriff had intentionally emitted 
 to summon some juror, or had stated his 
 opinion to some juror. lb. 
 
 47. The venire or list of jurors summoned 
 in a capital case will not be quashed because 
 one of the persons summoned was a member 
 of the grand jury which found the indict- 
 ment. Birdsong v. State, 47 Ala. 68. 
 
 48. The fact that the officer whose duty 
 it is to summon jurors has expressed an 
 opinion as to the guilt or innocence of the 
 prisoner is not ground of challenge to the 
 array. Friery v. People, 2 N. Y. Ct. of 
 Appeals Decis. 215; affi'g 54 Barb. 319; s. 
 c. 2 Keyes, 424. 
 
 49. The district attorney need not verify 
 his answer to a challenge to the array. 
 Gardiner v. People, 6 Parker, 155. 
 
 50. Order of challenge to the polls. 
 Challenges to petit jurors are first made by 
 the prisoner, and afterward by the prosecu- 
 tion. .Jones V. State, 2 Blackf. 475. 
 
 51. Challenge in case of joint defendants. 
 Each defendant in a joint trial under a joint 
 indictment may challenge the entire number 
 of jurors that he would be entitled to if tried 
 separately. Bristcr v. State, 26 Ala. 107. 
 
 52. Right to interrogate juror. Neither 
 side has a right to interrogate a juror before 
 he is challenged. State v. Flower, Walker, 
 318 ; Com. v. Webster, 5 Cush. 295 ; State 
 Y. Zellers, 2 Halst. 220; King v. State, 5 
 How. Miss. 730. 
 
 53. Counsel has no right to interrogate 
 the jurors with a view of showing their 
 bias or prejudice, by facts drawn out by a 
 cross-examination. Com. v. Gee, 6 Cush. 
 174. 
 
 54. The prosecution cannot ask a juror 
 whether he has so made up his mind that it 
 cannot be changed on the trial ; the prisoner 
 not being obliged to take upon himself the 
 burden of altering the juror's mind. Whit- 
 man's Case, 2 Wallace, Jr. 147. 
 
 55. But where a juror is challenged to 
 the favor and called as a witness in sup- 
 port of the challenge to show a bias derived 
 from what he has heard or read on the sub- 
 ject, he may be asked on his cross-examina- 
 tion, his opinion as to the character and 
 extent of the supposed bias, and whether 
 he thinks it will influence him after hearing 
 the evidence. People v. Knickerbocker, 1 
 Parker, 302. 
 
 56. The testimony of a juror on the chal- 
 lenge to him for favor which is taken after 
 a challenge for principal cause, cannot be 
 considered on the question whether the 
 challenge for principal cause was properly 
 decided. Cancemi v. People, 16 N. Y. 501. 
 
 57. Mode of determining challenge to 
 the polls. It is the duty of counsel to state 
 the ground of challenge. People v. Freeman, 
 4 Denio, 9. If the grounds stated are such 
 as in law render the juror incompetent, the 
 challenge is for principal cause. When the 
 causes assigned do not, in and of themselves 
 render the juror incompetent, but are such 
 as indicate partiality or bias, or other in- 
 competency, but are not conclusive of it, the 
 challenge is to the favor. The opposite 
 counsel may demur, or deny the truth of the 
 matter alleged, and put the challenger to 
 proof of them. If he demurs, the facts are 
 admitted, and the question is one ©f law, 
 and the decision may be reviewed on writ of 
 error. If the facts are denied, and they are 
 heard by the court or' triers, and are found 
 not to be true, the decision, as a question of 
 fact, is final. People v. Mallon, 3 Lans. 
 224 ; People v. Allen, 43 N. Y. 28. 
 
 58. It is competent for either party to 
 challenge first for principal cause ; and fail- 
 ing to sustain it, he may then challenge to
 
 TKIAL. 
 
 595 
 
 Impaneling Jury. 
 
 Of Challenges in General. 
 
 the favor, and submit the same evidence to 
 the triers that had been given on the chal- 
 lenge for principal cause; and the triers 
 may, upon the same evidence, find the juror 
 incompetent because of prejudice or partial- 
 ity. People V. Mallon, svpra. 
 
 59. Where the prisoner's counsel did not 
 specify any ground of challenge, but the 
 juror was examined as to whether he had 
 formed or expressed an opinion, it was held 
 that that must be assumed to be the ground 
 of challenge, and also that it was for princi- 
 pal cause, that being the most favorable 
 ground for the prisoner. lb. 
 
 60. Trial of challenge by court. The 
 legal mode of trial of a question of fact on 
 a challenge for principal cause, in the ab- 
 sence of consent to a different mode, is by 
 triers appointed by the court. It is comije- 
 tent however, for the parties by consent, to 
 subinit to the court the trial of this question 
 of fact. Stout V. People, 4 Parker, 133. 
 In the absence of objection or exception, 
 after the question has been determined by 
 the court, the consent of counsel on both 
 sides will be presumed, s. c. lb. 71 ; 
 O'Brien v. People, 36 N. Y. 276. 
 
 61. In Maine, the court is the only tri- 
 bunal which the statute has provided for 
 the trial of challenges of jurors. State v. 
 Knight, 43 Maine, 11. 
 
 62. In New Hampshire, the order of 
 challenge, and the determination of it is 
 for the judge at the trial ; and his finding is 
 not the subject of exception. State v. Pike, 
 49 New Hamp. 399. 
 
 63. Consent that court try challenge, 
 cannot be revoked. Where on a trial for 
 felony, the prisoner by his counsel, consents 
 to substitute the court for triers, upon chal- 
 lenges to jurors, such consent cannot after- 
 ward be revoked. People v. Rathbun, 21 
 Wend. 509. 
 
 64. Triers, how sworn. It is not enough 
 that the triers of a challenge for favor are 
 sworn to find whether the juror is indifferent 
 " upon the issue joined." They must also 
 be sworn to find whether the juror is impar- 
 tial between the parties. Freeman v. Peo- 
 ple, 4 Denio, 9. 
 
 65. Written instructions to triers not 
 
 proper. Where a juror has been put upon 
 triers at the request of the prisoner, and 
 they have retired to their room, it is not 
 proper for the defendant's counsel to move 
 the court to send written instructions to 
 the triers to put to the juror a particular 
 question. Whaley v. State, 11 Ga. 123. 
 
 66. Testimony on trial of challenge. 
 Where a challenge for principal cause is 
 tried by the court, it must be upon the 
 testimony of the juror alone on his xoir 
 dire — if by triers, then by other evidence 
 to the exclusion of the oath of the juror. 
 Stewart v. State, 8 Eng. 720. Upon such 
 trial, the party may object to the admission 
 of evidence, or to the instructions of the 
 court. lb. 
 
 67. Juror not bound to criminate him- 
 self. In examining a jiu-or as to his having 
 formed and expressed an opinion, he ought 
 not to be required to criminate himself. 
 State V. Benton, 2 Dev. & Batt. 196; 
 Sprouce v. Com. 3 Va. Cas. 375. Where 
 the challenge of a juror tends to his infamy, 
 it must be supported by extrinsic proof. 
 Hudson V. State, 1 Blackf. 317. 
 
 68. Examination of witnesses. Although 
 as a general rule, after putting a juror upon 
 his voir dire, a want of impartiality cannot 
 be proved by witnesses, yet, where a cause 
 of challenge exists which could not be 
 known to the juror, it is otherwise. Com. 
 v. Wade, 17 Pick. 395. 
 
 69. Prisoner bound by his challenge. 
 Where the prisoner challenges a juror for 
 favor, and the prosecutor admits the cause 
 assigned to be true, the prisoner is bound 
 by his challenge, and cannot afterward have 
 the matter tried. State v. Creasman, 10 
 Ired. 395. 
 
 70. Where the court improperly sets aside 
 a competent juror, on the application of the 
 prisoner, the latter cannot afterward object 
 to it as error. McAllister v. State, 17 Ala. 
 434. 
 
 71. Challenge after previous challenge 
 overruled. A juror may be challenged to 
 tlic iavor, after a challenge for princijial 
 cause has been tried and overruled. Carnal 
 V. People, 1 Parker, 273. 
 
 72. Waiver of challenge. Where the
 
 596 
 
 TRIAL. 
 
 Impaneling Jury. Of Challenges in General. Grounds of Principal Challenge. 
 
 prisoner waived liis right to object to a 
 juror against -whom he had good cause of 
 challenge, it was held that the prosecution 
 could not insist upon having the juror ex- 
 cluded under an agreement that all should 
 be regarded as being challenged by both 
 sides. People v. Mather, 4 Wend. 229. 
 
 73. If the juror is accepted by both the 
 prosecution and the prisoner, the State's 
 right of challenge on the ground of a fixed 
 opinion of the juror is lost, and cannot be 
 again revived, against the objection of the 
 prisoner, although the existence of the cause 
 of challenge was unknown when the juror 
 was accepted. Stalls v. State, 28 Ala. 25. 
 
 74. If the court improperly set aside a 
 juror for a cause of challenge on the part of 
 the prosecution which has been lost by pre- 
 viously accepting him, and the prisoner ex- 
 cepts, the error entitles him to a reversal of 
 the judgment. lb. 
 
 75. When challenge too late. After a 
 juror is sworn in the case, it is too late to 
 challenge him for any cause which existed 
 at the time he was put on the prisoner. 
 State V. Morea, 2 Ala. 275 ; Ward v. State, 
 1 Humph. 253; Gillespie v. State, 8 Yerg. 
 507. 
 
 76. After the jury were impaneled on a 
 trial for murder, and three days had been 
 spent in the introduction of evidence, the 
 defendant objected to going on with the 
 trial, for the reason that several of the 
 jurors had, before the trial commenced, 
 expressed opinions that the defendant was 
 guilty. Held that the objection was rightly 
 overruled. State v. Howard, 17 New Hamp. 
 171. 
 
 77. Decision of court. Where a juror is 
 challenged for cause, by the prosecution, the 
 court need not render an immediate decision, 
 but may wait until the panel is gone through. 
 State V. Overton, 6 Ired. 165. 
 
 78. Review of decision. A challenge 
 for principal cause being a part of the record, 
 a certiorari will lie to review it. Ex parte 
 Vermilyea, 6 Cow. 555. 
 
 79. A bill of exceptions may be maintained 
 for refusing triers, or upon any question 
 arising upon a challenge to jurors in a case 
 where triers may be demanded. People v. 
 
 Rathbun, 21 Wend. 509: State v. Shaw, 3 
 Ired. 532; People v. Bodine, 1 Denio, 281, 
 
 80. The fact that the prisoner did not avail 
 himself of a peremptory challenge to exclude 
 a juror who was found competent upon a 
 challenge for cause, will not prevent him 
 from taking advantage of an error com- 
 mitted on the trial of the challenge for 
 cause, though his peremptory challenges 
 were not exhausted when the jury was 
 completed. People v. Bodine, supra. 
 
 81. The improper rejection of a juror is 
 not ground for a reversal of the judgment, 
 if the defendant obtains an impartial jury 
 of his own selection. Henry v. State, 4 
 Humph. 270. 
 
 82. Right of court to set juror aside 
 after he is sworn. Where after a juror is 
 sworn, and has taken his seat, he is dis- 
 covered to be incompetent, the court may 
 set him aside at any time before evidence is 
 given. People v. Damon, 13 Wend. 351. 
 
 (c) Grounds of principal challenge to the polls. 
 
 83. That a juror is not qualified to 
 serve. The non-possession of any natural 
 faculty stands in respect to a juror in the 
 same category with alienage, or infancy, or 
 sex, and must be taken advantage of before 
 verdict, and by challenge. U. S. v. Baker, 
 3 Benedict, 68. 
 
 84. On a trial for grand larceny, a juror 
 upon challenge for principal cause testified 
 that he had been a farmer; had sold his 
 farm the previous spring and taken back a 
 mortgage; that he could not tell whether 
 or not he was assessed for personal projierty 
 this year; that he was not assessed last year 
 for personal property but was for real estate. 
 Held that the challenge was properly sus- 
 tained. Armsby v. People, 2 N. Y. Supm. 
 N. S. 157. 
 
 85. It is not a good ground of challenge 
 for cause, that the juror was challenged 
 peremptorily by the prisoner on a former 
 trial of the same case. State v. Henley, R. 
 M. Charlt. 505. 
 
 86. The objection that persons returned 
 by the sheritf have not the proper qualifica- 
 tions of jurors must be made before the
 
 TKIAL. 
 
 597 
 
 Impaneling Jury. 
 
 Grounds of Principal Challenge to the Polls. 
 
 jurors are placed on the panel. Com. v. 
 Gee, 6 Cusli. 174. 
 
 87. That a juror is of kin to party. 
 Where a juror was challenged for cause on 
 the ground that his wife was cousin to the 
 prisoner's deceased wife, who left no chil- 
 dren, it was held not a cause of challenge, 
 the affinity having ceased with her death. 
 State V. Shaw, 3 Ired. 532. 
 
 88. Conscientious scruples of juror. It 
 is a good ground of challenge that a juror 
 has conscientious scruples against finding a 
 a verdict of guilty. U. S. v. Wilson, 1 Bald. 
 78; Gross T. State, 3 Carter, 329; Com. v. 
 Lesher, 17 Serg. & Rawle, 155; Williams v. 
 State, 3 Kelly, 453 ; Lewis v. State, 9 Sm. & 
 Marsh. 115; People v. Mather, 4 Wend. 229; 
 People v. Damon, 13 lb. 351 ; Willis v. 
 State, 12 Ga. 444; Wade v. State, lb. 25; 
 Payne v. State, 3 Humph. 375; Neely v. 
 People, 13 111. 687; State v. Jewell; 33 Me. 
 583 ; Walter v. People, 32 N. Y. 147. 
 
 89. Where the accused may be punished 
 capitally or by confinement in the penitenti- 
 ary, it is good ground of challenge for cause 
 by the prosecution that a juror has a fixed 
 opinion against capital or penitentiary pun- 
 ishment. Stalls v. State, 28 Ala. 25. 
 
 * 90. It is good ground of challenge for 
 cause, that a juror is opposed to capital 
 punishment, and that his opinion will influ- 
 ence his verdict. Martin v. State, 16 Ohio, 
 364. 
 
 91. It is not only the right, but the duty 
 of the court, apart from any statute, on a 
 trial for murder, to permit an inquiry to be 
 made whether persons returned to serve as 
 jurors are opposed to capital punishment. 
 State V. Howard, 17 New Ilamp, 171 ; Pierce 
 V. State, 13 lb. 556. 
 
 92. Where a juror, upon challenge for 
 principal cause, testified that he had consci- 
 entious scruples in finding a verdict where 
 the penalty was death, but that his scruples 
 would not prevent him from finding a ver- 
 dict of guilty of murder if the evidence re- 
 quired him to do it, it was hold that he was 
 properly rejected. O'Brien v. People, 48 
 Barb. 274; s. c. 36 N. Y. 276; 2 N. Y. 
 Trans, of App. 5. 
 
 93. A juror is disqualified where he is not 
 
 opposed to the policy of the law inflicting 
 capital punishment, but his scruples consist 
 in tender feelings toward the prisoner — a 
 fear that he shall do him wrong. lb. 
 
 94. A juror in a capital case having been 
 challenged for principal cause, was declared 
 competent and sworn. Some time after- 
 ward, but before any evidence had been 
 given, he stated to the court that he had 
 misunderstood the previous question, and 
 given a wrong answer, and desired to cor- 
 rect himself and say that he could not, 
 under any circumstances, convict on a 
 charge of murder. The challenge to him 
 was thereupon opened, and having repeated 
 his last statement, he was set aside. Held 
 proper. People v. Wilsen, 3 Parker, 199. 
 
 95. A juror testified that he had no con- 
 scientious scruples against finding a man 
 guilty of an offense punishable with death 
 where the proof was positive, but no amount 
 of circumstantial evidence would induce 
 him to render such a verdict. Another 
 juror said that he should be very reluctant 
 to render a verdict of guilty of a capital 
 offense, even if his judgment was convinced 
 of the prisoner's guilt ; that he would prolj- 
 ably be the last juror to agree to such a 
 verdict, but he did did know but that 
 he might be starved to render it ; he thought 
 he should hang the jury and thus defeat a 
 verdict of guilty. On challenge for cause, 
 these jurors were set aside. Gates v. Peo- 
 ple, 14 111. 433. 
 
 96. In Alabama, a juror in a capital case 
 who has a fixed opinion against capital pun- 
 ishment may be challenged for cause by the 
 prosecution (Penal Code, § 630), or be set 
 aside by the court, although he also states 
 in answer to questions by the prisoner, " that 
 if he were on the jury and the law required 
 him to convict, he would do so." Waller v. 
 State, 40 Ala. 325. 
 
 97. On a trial f®r counterfeiting, the 
 prosecution may ask a person presented as a 
 juror whether he has taken an oath to ac- 
 quit all counterfeiters. He may, however, 
 decline to answer. Fletcher v. State, 6 
 Humph. 240. 
 
 98. Juror competent although opposed 
 to capital punishment. A juror who is
 
 598 
 
 TKIAL. 
 
 Impaneling Jury. 
 
 Grounds of Principal Challenge to the Polls. 
 
 ojiposed to capital punishment is competent, 
 it" he believe he can give a verdict according 
 to the evidence. Com. v. Webster, 5 Cush.295. 
 
 99. Where on a trial for murder, a juror 
 upon being challenged by the prosecution, 
 testified that he was opposed to the punish- 
 ment of death, but that he should, if sworn 
 as a juror, and the evidence of guilt was 
 clear, find the accused guilty, it was held 
 that he was competent. People v. Wilson, 
 3 Parker, 199. 
 
 100. On a trial for murder, a jm-or was 
 asked if he entertained such conscientious 
 opinious where the ofi'ense charged was pun- 
 ishable with death, as would preclude him 
 from finding the defendant guilty; to which 
 he replied, that he was ojoposed to capital 
 punishment on principle. A challenge for 
 cause by the prosecution was sustained. 
 Held error. People v. Stewart, 7 Cal. 140. 
 
 101. On a trial for murder, the court 
 ruled that if a juror upon being interro- 
 gated, answered merely that " he was op- 
 posed to capital punishment," he was in- 
 competent to sit. Held error. Atkins v. 
 State, 16 Ark. 568. 
 
 102. Prejudice of juror against a cer- 
 tain class. On the trial of citizens of 
 ^Mexico for an assault with intent to murder, 
 it was held error in the court to rule out 
 the following questions put to a juror: 1. 
 Are you not a member of a secret and mys- 
 terious order known as, and called Kuow- 
 Xothings, which has imposed on you an 
 oath or obligation, beside which an oath 
 administered to you in a court of justice, if 
 in conflict with that oath or obligation, 
 would be by you disregarded ? 2, Are you 
 a member of any secret association, political 
 or otherwise, by your oaths or obligations 
 to which, any prejudice exists in your mind 
 against Catholic foreigners ? 3. Do you 
 belong to any secret political society known 
 as, and called by the people at large in the 
 United States, Know-Nothings; and if so, 
 are you bound by an oath or other obliga- 
 tion, not to give a prisoner of foreign birth, 
 in a court of justice, a fair and impartial 
 trial ? 4. Have you at any time taken an 
 oath, or other obligation of such a charac- 
 ter, that it has caused a prejudice in your 
 
 mind against foreigners ? 5. Are you under 
 any obligations not to extend the same 
 rights, protection, and support to men of 
 foreign birth as to native born American 
 citizens ? 6. Have you any prejudice what- 
 ever against foreigners ? People v. Reyes, 
 5 Cal. 347. 
 
 103. A person who states that he would 
 convict a colored man on less evidence than 
 he would a white man for the same oflfense, 
 is incompetent to sit as a juror on the trial 
 of an indictment against a colored man. 
 Milan v. State, 24 Ark. 346. 
 
 104. Opinion of juror that law is uncon- 
 stitutional. A juror is incomjietent to sit 
 who states that he has formed such an 
 opinion of the unconstitutionality of the 
 statute on which the prosecution is founded, 
 that he could not find a verdict of guilty,, 
 whatever might be the evidence. Cora. v. 
 Austin, 7 Gray, 51. 
 
 105. Opinion of juror as to guilt or 
 innocence of prisoner. Where a juror has 
 expressed an opinion against the prisoner, 
 from his knowledge of the case, and not 
 from any favor or ill will, it is a principal 
 cause of challenge; and the same is true 
 when the opinion is founded on the infor- 
 mation of others. Ex 2Mrte Vermilyea, 6 
 Cow. 555; People v. Rathbun, 21 Wend. 
 509 ; Sprouce v. Com, 2 Va. Cas. 375 ; Lit- 
 tlejohn V. Com. lb. 297; Freeman v. Peo- 
 ple, 4 Denio, 9 ; Ned v. State, 7 Porter, 187 ; 
 Quesenberry v. State, 3 Stew. & Port. 308 ; 
 People V. Alather, 4 Wend. 229 ; U. S. v. 
 Wilson, 1 Bald. 78. In New Jersey, it has 
 been held that a juror who has formed and 
 expressed an opinion of the guilt of the 
 prisoner, founded on his knowledge of the 
 facts or upon information supposed to be 
 true, is not thereby disqualified. State v. 
 Fox, 1 Dutch. 566. 
 
 106- On the trial of a challenge, the pris- 
 oner's counsel put this question: "If the 
 defense in this case should be the insanity 
 of the defendant, have you formed or ex- 
 pressed an opinion on the subject ? " Held 
 improper; the investigation being confined 
 to the general question of opinion as to the 
 guilt or innocence of the prisoner. State v. 
 Arnold, 12 Iowa, 479.
 
 TRIAL. 
 
 590 
 
 Impaneling Jury. 
 
 Grounds of Principal Challenge to the Polls. 
 
 107. Where upon a trial for murder, it 
 appeared that the mind of a juror on his 
 being challenged for principal cause, was 
 preoccupied with an opinion upon the issues 
 to be tried, which it would require evidence 
 to remove, it was held that he was incom- 
 petent. Cancemi v. People, 16 N. Y. 501. 
 
 108. It is not a good cause for principal 
 challenge on the trial of an indictment for 
 murder, that a juror had formed an opinion 
 that the prisoner killed the deceased; 
 as he might have killed him and still not 
 have committed any crime. Lowenberg v. 
 People, 37 K Y. 336; 5 Parker, 414. And 
 in the same case on a challenge for favor, 
 the court refused to charge the triers that 
 they should find the challenge true, if they 
 found that the juror believed that the per- 
 son alleged to have been murdered was 
 killed by some one. In Tennessee, on a 
 trial for murder, jurors stated that from 
 rumors and reports in their neighborhood 
 they had heard that a man had been killed, 
 that the prisoner was accused of the murder, 
 and had attempted to make his escape, and 
 that upon the facts and circumstances, they 
 had formed and expressed an opinion. 
 Held that they were competent. Payne v. 
 State, 3 Humph. 375. 
 
 109. The statute of New York (Laws of 
 1872, ch. 475), which provides that an 
 opinion as to the guilt or innocence of the 
 accused shall Dot be ground of challenge 
 for principal cause if the juror declare on 
 oath that he can render an impartial ver- 
 dict, and the court is satisfied that he has 
 not such a present opinion as would influ- 
 ence his verdict, is constitutional. Stokes 
 V. People, 53 N. Y. 164. 
 
 110. The fact that a juror has expressed 
 an opinion respecting the case before he 
 was summoned, is not necessarily a ground 
 of principal challenge. But if the evidence 
 shows also malice, ill-will, interest, or a 
 fixed opinion, that raises a legal presump- 
 tion against the indifference of the juror. 
 State V. Howard, 17 New Hamp. 171. In 
 New Jersey, it was held not cause of prin- 
 cipal challenge to a juror, that he had 
 formed an opinion relative to the matter 
 to be tried, if it was not done through ill- 
 
 will or malice. State v. Spencer, 1 Zabr. 
 196. 
 
 111. Opinion to exclude, must be ab- 
 solute. To disqualify a juror upon chal- 
 lenge for principal cause, on the ground 
 that he has formed and expressed an opinion, 
 his mind must be at rest as to the prisoner's 
 guilt, or the question to be tried. The 
 opinion must be fixed and unconditional, 
 one that has been deliberately formed, and 
 is still entertained, and which in an undue 
 measure, shuts out a diflerent belief State 
 V. Kingsbury, 58 Me. 238 ; Staup v. Com. 74 
 Penn. St. 458 ; O'Mara v. Com. 75 lb. 424. 
 Upon a challenge for favor, to be determined 
 by triers, the rule is different. The triers 
 may find the existence of bias, although 
 there is no direct proof that the juror has 
 formed or expressed such an opinion as 
 necessarily constitutes a legal disqualifica- 
 tion. People V. Stout, 4 Parker, 71 ; lb. 132. 
 
 112. Upon a trial for murder, a juror, upon 
 being challenged for principal cause, testified 
 that he thought he had an impression ; he 
 rather thought he had formed an opinion : 
 hepresumed he had expressed it, and thought 
 he retained it; that he had formed an opin- 
 ion, if the newspaper accounts of the trans- 
 action (of which he had read only a part) 
 were true ; that he rather thought they were 
 true, and that so far as he read, he gave 
 them credence, but did not arrive at a 
 definite opinion. Held that he was com- 
 petent, lb. 
 
 113. Upon a challenge for principal cause 
 on a trial for murder, the juror said he had 
 read an article in a newspaper concerning 
 the homicide, and that although he had an 
 impression that a homicide was committed, 
 he had none as to the guilt or innocence of 
 the prisoner. The challenge being overruled 
 and the juror challenged for favor, he again 
 testified that he had read the statement in 
 the newspaper wilhout any impression re- 
 maining on his mind as to the guilt or in- 
 nocence of the prisoner, and that " it would 
 require evidence either the one way or the 
 other to make him convinced of the prisoner's 
 guilt or innocence." The judge declined to 
 charge that the challenge was well taken, 
 and the triers found the juror competent.
 
 000 
 
 TRIAL. 
 
 Impaneling Jury. 
 
 Grounds of Principal Challenge. 
 
 Challenge for Favor. 
 
 Held that there was no error. O'Brien v. 
 People, 48 Barb. 274 ; affi'd 36 N. Y. 276 ; 
 3 X. Y. Trans, of App. 5. 
 
 114. "Where on a trial for murder, a juror 
 upon being challenged for cause, said that 
 he had formed an opinion, which it would 
 require some evidence or explanation to re- 
 move, that the piisoner killed the deceased, 
 that such opinion had been formed from 
 rumor and newspaper accounts, and that he 
 believed that he could sit and decide the case 
 with the same impartiality as if he had never 
 heard of the case, it was held that he was 
 competent. State v. Lawrence, 38 Iowa, 51. 
 
 115. On a trial for murder, a juror stated 
 that he had heard as rumor what purported 
 to be the facts in the case, but not from a 
 witness, nor from a person professing to 
 have knowledge of such facts, and from 
 what he had heard had "foiToed an opinion 
 as t© the guilt or innocence of the accused; " 
 that he had no reason to doubt what he had 
 heard, and at the time believed it ; and if 
 the facts turned out the same as he had heard 
 them, his " opinion was formed." Held that 
 the juror was not disqualified. People v. 
 Williams, 17 Cal. 142. 
 
 116. Where upon a trial for murder, a 
 juror upon being challenged for principal 
 cause, testified that he had read about the 
 homicide in a newspaper, and had formed an 
 opinion as to the guilt or innocence of the 
 accused, which had not been changed, and 
 for the removal of which evidence would 
 be required ; and that, from the facts he 
 had heard, he could not sit exactly indiffer- 
 ent. Upon cross-examination, he testified 
 that if he was on the jury, he would try to 
 be governed by the evidence, but would have 
 a little prejudice ; that he read the evidence 
 at the time in the newspapers, and assuming 
 the statements to be true, he had formed an 
 opinion, but that the. opinion thus formed, 
 would not affect his mind in determing the 
 case on the evidence. Held that the juror 
 was incompetent. People v. Mallon, 8 Lans. 
 224. 
 
 117. Opinion which is not relative to 
 the issue. Where a juror, without forming 
 or expressing any opinion as to the issue, 
 had formed an opinion that the laws had 
 
 been outraged, it was held that he was com- 
 petent. Brinton's Case, 2 Wallace, Jr.. 149. 
 
 118. Where a juror upon being interrogat- 
 ed, stated that he was not satisfied that he 
 was perfectly impartial; that he had par- 
 tiality in his mind ; that he did not person- 
 ally know the prisoner or the facts of the 
 case, and had no prejudice against him as an 
 individual, but that he was prejudiced in all 
 such cases, because of the offense; it was 
 held that he was competent to sit. Parker 
 V. State, 34 Ga. 262. 
 
 119. On the trial of an indictment for a 
 nuisance in maintaining a dam, a juror upon 
 being challenged,* stated that he had formed 
 and had an opinion, that mill dams generally 
 in that part of the country were nuisances, 
 but that he was not much acquainted with 
 the dam in question, and had not formed or 
 expressed any opinion regarding it. Held 
 that the juror was not competent. Crippen 
 V. People, 8 Mich. 117. 
 
 120. Juror member of grand jury. It 
 is a good challenge for cause that the juror 
 was one of the grand jury by whom the in- 
 dictment was found, and if the challenge is 
 disallowed, and the defendant excepts, and 
 then challenges him peremptorily, the de- 
 fendant is entitled to the benefit of his ex- 
 ception although his peremptory challenges 
 be not exhausted before the jury is com- 
 pleted. Birdsong v. State, 47 Ala. 68. 
 
 121. Juror sworn on previous trial. 
 Where there are separate trials on a joint in- 
 dictment, it is not a ground of challenge 
 that a juror was sworn on the first trial, 
 M'hich terminated in a verdict of guilty, 
 though it is sufficient ground to submit his 
 indifference to triers. U. S. v. Wilson, 1 
 Bald. 78. 
 
 122. Juror witness on former trial. It 
 is not a cause of challenge, that a juror was 
 called as a witness for the prosecution, on a 
 former trial of the same indictment, to testify 
 against the character of the prisoner. Fel- 
 low's Case, 5 Maine, 333. 
 
 {d) Grounds of clinllenge to the polls for favor. 
 
 123. Unsettled opinion. A settled opin- 
 ion of the guilt or innocence of the accused 
 need not be shown where the challenge is
 
 TRIAL. 
 
 COl 
 
 Impaneling Jury. 
 
 Grounds of Challenge to the Polls for Favor. 
 
 for favor. People v. Bodine, 1 Denio, 281. 
 If the juror lias an opinion which it will re- 
 quire testimony to remove, he is disqualified, 
 although the opinion be founded on rumor 
 alone. People v. Mather, 4 Wend. 229; 
 Reynolds v. State, 1 Kelly, 232; Boon v. 
 State, lb. 631 ; contra, Moses v. State, 11 
 Humph. 233; Nelms v. State, 13 Sm. & 
 Marsh. 500 ; Sam v. State, lb. 89. But not 
 ■where the juror's mind is free to act upon 
 the testimony. King v. State, 5 How. Miss. 
 730; State V. Ellington, 7 Ired. 61; Smith 
 V. Com. 7 Gratt. 593; People v. Bodine, 
 supra ; commented on and explained, Peo- 
 ple V. Honeyman, 3 Denio; 121. 
 
 124. Where it appeared on a trial for 
 treason that a juror had formed but not ex- 
 pressed an opinion as to the nature of the 
 offense, but not as to the guilt of the pris- 
 oner, the court thought he had better be 
 withdrawn. Smith's Case, 2 Wallace, Jr., 
 150; Walsh's Case, lb. 143. But see Lyon's 
 Case, lb. 149 ; Reynold's Case, lb. 145. 
 
 125. A merely hypothetical opinion is not 
 cause for principal challenge, but of chal- 
 lenge to the favor. State v. Benton, 2 Dev. 
 «fc Batt. 196 ; Freeman v. People, 4 Denio, 9. 
 
 126. Where on a trial for burglary, a juror 
 stated that he had no bias or prejudice, and 
 could give the defendants a fair trial ac- 
 cording to the law and the evidence ; that 
 he believed the statements in the newspapers 
 that there had been a housebreaking, and if 
 the prisoners were the persons named in the 
 newspapers he had an opinion of their guilt 
 or innocence, it was held that he was in- 
 competent to sit. Gray v. People, 26 111. 
 344. 
 
 127. Opinion founded on report. It is 
 not a sufficient objection to a juror that he 
 has heard about the case, if he has formed 
 no opinion, and is sensible of no bias. State 
 V. Howard, 17 Xew Plamp. 171. 
 
 128. Where a juror before a trial for mur- 
 der was talking about the circumstances of 
 the homicide, and in reply to the remark of 
 a person replied that " if that were so the 
 prisoner ought to he hung," it was held that 
 he was not incompetent. Mercer v. State, 
 17 Ga. 146. 
 
 129. Hostility or prejudice cannot as a 
 
 rule be inferred from an opinion formed and 
 expressed simply from reading or hearing 
 stated as current news of the day the fact of 
 a homicide and the circumstances attending 
 it. There should be found some other cir- 
 cumstances acting at the same time upon 
 the mind, and giving it a bias, or the juror 
 should be accepted. State v. Wilson, 38 
 Conn. 126. 
 
 130. A juror in a capital case is not dis- 
 qualified who states that he has a faint 
 recollection of hearing of the occurrence 
 through the newspapers, which left no 
 particular impression on his mind as to the 
 guilt of the person named, except as a news- 
 paper statement; that he believed a homi- 
 cide had been committed, and by the person 
 named. O'Brien v. People, 36 N. Y. 276. 
 
 131. A juror, upon being challenged for 
 favor, said that " he had read part of the 
 statements in the papers at the time of the 
 homicide, and had formed a preconcived 
 idea in regard to the prisoner's guilt or inno- 
 cence, but had no bias one way or the other ; 
 that his preconceived idea or impression 
 would in no way influence his verdict, but 
 he Avould be governed entirely by the evi- 
 dence produced on the stand." Held that 
 the juror wac competent. Sanchez v. Peo- 
 ple, 4 Parker, 535; 22 N. Y. 147. 
 
 132. A juror testified that he had formed 
 and expressed an opinion as to the defend- 
 ant's guilt from report, but that he had 
 heard no witness speak of the transaction ; 
 that he lived 18 miles from the defendant, 
 and had not been in the defendant's neigh- 
 borhood since the occurrence. Held that 
 there was no ground of challenge. Mc- 
 Gregg V. State, 4 Blackf. 101. 
 
 133. Opinion of prisoner's character. 
 The mere statement of a juror that he has 
 formed an opinion that the general character 
 of the prisoner is bad, does not jier se dis- 
 qualify him. People v. Allen, 43 N. Y. 28 ; 
 57 Barb. 338. 
 
 134. Opinion derived from proceedings 
 in court. Where on the challenge of a juror 
 to the favor, the court ruled that an impres- 
 sion of the guilt of the prisoner which the 
 juror had formed from the proceedings in 
 court was not a subject of inquiry, it w^as
 
 002 
 
 TRIAL. 
 
 Impaneling Jury. 
 
 Challenge to the Polls for Favor. Peremptory Challenge. 
 
 held error. Thompson v. People, 3 Parker, 
 4G7. I 
 
 135. A juror who had heard the testi- 
 mony, and then formed an opinion upon it, 
 and did not know whether he had expressed 
 the opinion or not, hut thought it most 
 2>robable that he had done so, but who 
 stated that at that time he had no prejudice 
 against the prisoner, and believed he could 
 give him as fair a trial as if he had not 
 heard anything on the subject, was held 
 competent. Pollard v. Com. 5 Rand. 659. 
 And see Brown's Case, 2 Leigh, 769 ; State 
 V. Dorr, 10 Ired. 469 ; Baldwin v. State, 12 
 Mo. 223 ; Moran's Case, 9 Leigh, 651 ; State 
 V. Potter, 18 Conn. 166 ; Smith v. Com. 6 
 Gratt. 696 ; Trimble v. State, 2 Greene, 404. 
 
 136. Statement of juror that he can de- 
 cide impartially, notwithstanding a fixed 
 opinion. A juror is incompetent to sit who 
 states that he has formed and expressed an 
 opinion which it will take direct evidence 
 to remove, although he further says he 
 thinks he can do justice between the State 
 and the prisoner, and that the opinion he 
 has formed will not influence his mind as a 
 juror. State v. Bunger, 11 La. An. 607. 
 
 137. Where on a trial for murder, a juror 
 stated that he had formed an opinion as to 
 the commission of the offense and as to the 
 guilt or innocence of the prisoner, but had 
 coniidence in his ability to decide the case 
 impartially, it was held that he was incom- 
 petent. Fouts V. State, 7 Ohio, N. S. 471. 
 
 138. Where a person was present at the 
 scene soon after a murder, and formed an 
 opinion of the prisoner's guilt from informa- 
 tion derived from persons who assumed to 
 have knowledge of the facts attending the 
 homicide, it was held that he was incompe- 
 tent to serve as a juror, and that his statement 
 that he had no opinion, was not of itself 
 sufficient to remove the objection to his 
 competency. Norfleet v. State, 4 Sneed, 340. 
 
 139. On a trial for grand larceny, a juror on 
 his direct examination said : "I have formed 
 a fixed decided opinion in regard to the guilt 
 or innocence of the defendant. My opinion 
 is such that I would be willing to act upon 
 it in the ordinary affairs of life. I have 
 reached a conclusion or conviction such as I 
 
 would be willing to act upon in my business 
 transactions. I believe what I heard. I 
 heard what purported to be the facts of the 
 case. I believe what I heard now. It will 
 require evidence to remove the opinion now 
 existing in my mind." On cross-examin- 
 ation he said: "My opinion is not an un- 
 qualified one. I could try the case and ren- 
 der a verdict according to the evidence, not- 
 withstanding any opinion previously formed 
 by me in regard to the case." Held that the 
 juror was not competent. People v. Weil, 
 40 Cal. 268. 
 
 {e) Peremptory challenge. 
 
 140. When to be made. The right of the 
 prisoner to challenge a juror peremptorily, 
 remains until the jm-or is sworn. Morris v. 
 State, 7 Blackf. 607; Lindsley v. People, 6 
 Parker, 233. 
 
 141. It is error in the court to compel the 
 prisoner to exhaust his peremptory chal- 
 lenges before challenging for cause. State 
 V. Fuller, 39 Vt. 74. 
 
 142. Questions upon. A juror may be 
 asked by the defense whether he has formed 
 an opinion, in order to determine as to a 
 peremptoiy challenge. State v. Godfrey, 
 Brayt. 170. 
 
 143. Jurors were challenged for principal 
 cause first, and then for favor upon the 
 ground that they had formed or expressed 
 an opinion, and upon the trier's finding 
 against the challenges, they were challenged 
 peremptorily by the prisoner. Held that the 
 questions raised previous to the peremptory 
 challenges were not open for examination at 
 the instance of the prisoner. Friery v. Peo- 
 ple, 54 Barb. 319; affi'd 2 N. Y. Ct. of Ap- 
 peals Decis. 215. 
 
 144. Efi'ect of peremptory challenge. 
 A party who challenges a juror peremptorily 
 when he is not obliged to do so, waives his 
 exception. Stewart v. State, 8 Eng. 720. 
 
 145. But if the court err in overruling the 
 prisoner's challenge to a juror for favor, and 
 then the prisoner peremptorily challenges the 
 juror, the error ^of the court is not cured, 
 although the prisoner had not exhausted his 
 peremptory challenges when the jury was 
 completed. Dowdy v. Com. 9 Gratt. 727.
 
 TRIAL. 
 
 G03 
 
 Impaneling Jury. 
 
 Peremptory Challenge. 
 
 Completion of Jury. 
 
 146. In Tennessee however, where incom- 
 petent jurors were admitted by the court, 
 and peremptorily challenged by the prisoner, 
 it was held that this was no ground of re- 
 versal, the jury being completed before he 
 had exhausted, his challenges. Carroll v. 
 State, 3 Humph. 315. 
 
 147. And in New York it has been held 
 that, where on the trial of a challenge to 
 the favor, improper evidence is admitted, and 
 the triers find the juror indifferent, and he is 
 then challenged peremptorily, and it appears 
 the prisoner had not exhausted all his per- 
 emptoiy challenges when the jury was com- 
 pleted,the prisoner canuotafterward object to 
 the admission of such incompetent evidence. 
 People V. Knickerbocker, 1 Parker, 302. 
 
 148. Waiver of peremptory challenge. 
 B. having been called as a juror and exam- 
 ined as to his bias, and no reason to except 
 to him on that account appeai'ing, the coun- 
 sel for the prisoner were told by the court 
 that they could then challenge B. peremp- 
 torily if they wished. They declined to do 
 so, however, and B. was directed to take his 
 seat as one of the jurors. After the panel 
 was full, the peremptory challenges not hav- 
 ing been exhausted, the prisoner's counsel 
 claimed the privilege to challenge B. per- 
 emptorily. Held that in the absence of any 
 reason for a peremptory challenge then, 
 which did not exist before, it was too late. 
 State v. Potter, 18 Conn. 1G6. 
 
 149. Where after the prisoner's challenge 
 of a juror had been overruled, the court 
 informed the prisoner that the juror should 
 stand aside and not sit in the case if he 
 desired it, and that what had occurred 
 should not diminish his number of per- 
 emptory challenges, and the prisoner stood 
 mute, though told by the court that it 
 would regard his silence as a consent on his 
 part to the sitting of the juror, it was held 
 that whatever irregularity or error had been 
 committed in permitting the juror to sit in 
 the case was cured. Gardiner v. People, 6 
 Parker, ISj. 
 
 if) Completion of jury. 
 
 150. Number of jurors required in case 
 of felony. Upon an indictment for felony, 
 
 it is not competent for the prisoner by 
 waiver or stipulation to authorize his trial 
 by a jury of a less number than twelve. 
 State V. Mansfield, 41 Mo. 470. Where 
 therefore, on a trial for murder, the fact that 
 one of the jurors was an alien was not 
 known to the prisoner or his counsel until 
 after the verdict, it was held that he was 
 entitled to a new trial. Hill v. People, 16 
 Mich. 351. 
 
 151. Upon a conviction for murder, the 
 postea embraced in the formal record of 
 judgment, and the bill of exceptions showed 
 that the trial was had by twelve jurors. 
 The return to the writ of error included a 
 certificate of the judge before whom the 
 indictment was tried, stating that after the 
 jury were sworn, one of the jurors was 
 withdrawn by consent, and the trial pro- 
 ceeded with eleven jurors. An order of the 
 court at special term recited the aforesaid 
 certificate, and stated that the general term or- 
 dered that the fact so certified should appear 
 as a reason for a motion in arrest of judg- 
 ment made by the prisoner, and directed 
 the certificate and reason for arrest of judg- 
 ment founded thereon to be annexed to the 
 record. Held that the conviction of the 
 prisoner by eleven jurors was illegal. Can- 
 cemi V. People, 18 N. Y. 128. 
 
 152. Less number than twelve jurors, 
 when permitted. On a trial for a misde- 
 meanor, where the punishment is a fine, an 
 agreement by the defendant to be tried by a 
 less number than twelve jurors is valid. 
 Murphy v. Com, 1 Mete. Ky. 365 ; Tyra v. 
 Com. 2 lb. 1. 
 
 153. When on a trial for a misdemeanor, 
 a juror is necessarily withdrawn by the 
 consent of the counsel on both sides, and 
 the trial proceeds with eleven jurors, a ver- 
 dict of guilty will not be set aside on that 
 ground. Com. v, Dailey, 12 Cush. 80. 
 
 154. But where on a prosecution for mali- 
 cious trespass, the defendant's attorney con- 
 sented to a trial by a jury of eleven, and the 
 defendant though present was not consulted 
 and did not know that he could object to 
 the act of his attorney, it was held that the 
 defendant was not bound by the consent. 
 Brown v. State, 16 Ind. 496.
 
 604 
 
 TKIAL. 
 
 Impaneling Jury. Completion of Jury. 
 
 Initiatory Proceedings in the Case. 
 
 155. So likewise, where tlie record showed 
 that the defendant was tried for assault and 
 battery by a jury of six men, and it did not 
 also appear that be consented thereto, it 
 was held ground for reversal. State v. 
 Van Matre, 49 Mo. 2G8. 
 
 3. Initiatory proceedings in the case. 
 
 156. Swearing jury. The court has the 
 power before the jurors are sworn, to dis- 
 charge one of their number upon his refusal 
 to take the oath; but not to recall him 
 afterward. Isaac v. State, 3 Head, 458. 
 The jury should be sworn for the trial of 
 each particular case, and not the whole 
 panel be sworn to try all the causes for the 
 term. Barney y. People, 33 111. 160 ; contra, 
 People V. Albany Common Pleas, G Wend. 
 550. 
 
 157. In Arkansas, where issue is joined 
 on two or more counts, it has been held 
 error to impanel and swear the jury to try 
 the issue to a single count. Adams v. State, 
 6 Eug. 466. But in Maryland, although a 
 prisoner has pleaded generally to an indict- 
 ment containing two counts, yet the jury 
 may be sworn and charged as to one of the 
 counts only. Burk v. State, 3 Har. & Johns. 
 436. 
 
 158. Form of oath to jury. In Arkansas, 
 it has been held that the jury should be 
 sworn to try the case according to the law 
 as well as the evidence. Patterson v. State 
 2 Eng. 60 ; Sandford v. State, 6 Ilx 328. In 
 Alabama, they are sworn a true verdict to 
 render according to the evidence. State v. 
 Jones, 5 Ala. 666. In Iowa, where they 
 were sworn ' ' the truth to speak on the issue 
 joined," it was held insufficient. Warren v. 
 
 State, 1 Greene, 106 ; Harriman v. State, 3 
 lb. 270. 
 
 159. Reswearing of jury by consent 
 of parties. Where on the trial of an indict- 
 ment for a felony after the impaneling of the 
 jury, the prisoner stated that he desired to 
 make a motion to quash the indictment, and 
 the judge said that if all parties would con- 
 sent that what had been done should be 
 treated as null, he would entertain the 
 motion, and if it should be overruled the 
 jury would be sworn over again, and the 
 
 required consent being given, the motion 
 was heard and overruled, the court ad- 
 journed, and the prisoner tried and con- 
 victed at a subsequent term, it was held that 
 he had no cause of exception on the ground 
 that he had been once in jeopardy. Com, 
 V. Sholes, 13 Allen, 554. 
 
 160. Recital in the record, that the 
 jury were sworn. In capital cases and 
 other felonies, unless the record shows that 
 the jury were duly sworn, the judgment will 
 be reversed. Johnson v. State, 47 Ala. 10, 
 63 ; Bugg V. State, lb. 51 ; Horton v. State, 
 lb. 58 ; Smith v. State, lb. 540 ; Stephens v. 
 State, lb. 696 ; Lockett v. State, lb. 43. 
 
 161. Where the record shows that the 
 oath which the statute requires has not 
 been administered to the jury, it will be 
 ground for reversing the judgment. But 
 where the record states that the jury were 
 duly sworn, it will be presumed that the 
 proper oath was administered to them. 
 Arthur v. State, 3 Texas, 403 ; Bell v. State, 
 5 Eng. 536. If however, it nowhere appears 
 from the record, that the jury were sworn, 
 the defect will be fatal. Nels v. State, 3 
 Texas, 280. 
 
 162. Where the oath administered to the 
 jury is set out in the minute entry of the 
 trial, an omission of an essential part of it j> 
 will render the conviction erroneous. But 
 
 if the entry does not purport to set out the 
 oath, but states that the juiy "was duly 
 sworn according to law," or was ' ' duly 
 sworn," it will be sufficient. Gardner v. 
 State, 48 Ala. 263. 
 
 163. There is no precise form in which 
 the court is required to make its minutes at 
 the trial. The minute entry, after reciting 
 that the jury were impaneled well and 
 truly to try the issue joined between the 
 State and the defendant, and that the trial 
 not being finished, the court adjourned and 
 reassembled on the following morning, con- 
 tinued as follows : " Thereupon also came 
 the defendant and his counsel, as also the 
 counsel for the State, together with the jurj^ 
 that had been impaneled and sworn as 
 aforesaid, and the trial of said cause was 
 resumed ; and after the evidence of all the 
 witnesses had been given in, and the argu-
 
 TEIAL. 
 
 G05 
 
 Initiatory Proceedings in the Case. 
 
 ment of counsel had been heard, the jury 
 received the charge of the court and retired 
 in the charge of the sheriff to make up their 
 verdict, and now return into court and on 
 their oaths do say," &c. Held that the 
 record sufficiently showed that the jury was 
 sworn before the testimony was heard. 
 Crist V. State, 21 Ala. 137. 
 
 164. Amendment of minutes as to swear- 
 ing of grand jury. Where the minutes of 
 the court omit to mention that the grand 
 jury was sworn, upon proof that it was done, 
 and that the omission was inadvertent, the 
 minutes may be amended. State v. Folke, 
 2 La. An. 744. 
 
 165. Presence of accused necessary on 
 trial for felony. In prosecutions for felony, 
 the defendant must be personally present 
 whenever any step is taken by the court in 
 his case, and this must be affirmatively 
 shown by the record. Sperry's Case, 9 Leigh, 
 623; McQuillan v. State, 8 Sm. & Marsh. 
 587 ; Dougherty v. Com. 69 Penn. St. 286 ; 
 Brown v. State, 24 Ark. 620; Osborn v. 
 State, lb. 629 ; Helton v. State, 2 Fla. 500 ; 
 Gladden v. State, 12 lb. 562. 
 
 166. A motion to set aside fhe verdict as 
 contrary to evidence was made on one day 
 and overruled on a subsequent day. The 
 record stated that the prisoner appeared on 
 both days by attorney, and there was nothing 
 to show that the prisoner was present. Held 
 error. Hooker v. Com. 13 Graft. 763. 
 
 167. On a trial f©r burglary, the judge 
 directed tlie jury and witnesses for the 
 prosecution who had testified to visit and 
 inspect the premises where the burglary was 
 alleged to have been committed. But the 
 prisoner was not allowed to accompany 
 them, and the witnesses were directed to 
 point out to the jury the places marked on 
 a diagram of the premises. Held error. 
 State V. Bertin, 24 La. An. 46. 
 
 168. Presumption as to the presence of 
 the accused. In general it will not be in- 
 ferred that because the record shows that 
 the prisoner was present in court on one 
 day, he was therefore present on the follow- 
 day. State v. Cross, 27 Mo. 332 ; State v. 
 Schoenwald, 31 lb. 147. 
 
 169. But in Illinois, it has been held that 
 
 where the record does not show affirma- 
 tively that the defendant was present in 
 court when the verdict was rendered and 
 judgment pronounced, and no interval ap- 
 pears between the arraignment, trial, ver- 
 dict and judgment, it will be presumed that 
 the prisoner was personally present during 
 the whole time, including the moment when 
 sentence was passed upon hiin. Schirmer 
 V. People, 33 111. 270. 
 
 170. Prisoner's right to be present can- 
 not be waived. The right of a prisoner 
 indicted for felony to be present in court at 
 his trial cannot be waived either by himself 
 or his counsel, by consent or otherwise. 
 Paine v. Com. 18 Penn. St. 108 ; Dunn v. 
 Com. 6 Barr, 384. 
 
 171. Communications made by the court 
 to the jury after they have retired to de- 
 liberate upon their verdict, in answering 
 questions proposed by them relating to the 
 case, are a proceeding upon the trial within 
 the meaning of a statute which provides that 
 the prisoner shall be personally present dur- 
 ing the trial. Maurer v. People, 43 N. Y. 1. 
 
 172. The reading of evidence taken by 
 deposition, although done after the jury 
 have retired, is a part of the trial within the 
 rule requiring the presence of the prisoner. 
 People v. Kohler, 5 Cal. 72. 
 
 173. Temporary absence of prisoner not 
 improper. A prisoner indicted for felony 
 may waive the right to be present, so far at 
 least as to be temporarily absent from the 
 room during some portion of the trial, and 
 the burden is on him to show that he was 
 deprived of the right to be preseot. Hill v. 
 State, 17 Wis. 675. 
 
 174. Removal of prisoner from court- 
 room for interrupting counsel. On a trial 
 for i^erjury, the defendant was present dur- 
 ing the impaneling of the juiy and during 
 a portion of tiie opening of the case by the 
 district attorney, when he commenced in- 
 terrupting the district attorney and denying 
 his statements in a loud voice, although 
 admonished by the court to desist. The 
 action of the prisoner continuing to be such 
 as to make it impossible to proceed with the 
 trial, he was ordered to be removed from 
 the court room and to be detained in an
 
 (300 
 
 TRIAL. 
 
 Initiatory Proceedings in the Case. 
 
 adjoining room with liberty of access for 
 his counsel. At the conclusion of the open- 
 ing, the trial was postponed to the next 
 day, when it was continued in the presence 
 of the prisoner, and concluded without fur- 
 ther disturbance. Held that no error was 
 committed. U. S. v. Davis, 6 Blatchf. 4G4. 
 
 175. When presence of accused not re- 
 quired. In Pennsylvania, in felonies not 
 capital, the record need not show that the 
 prisoner was present when the verdict was 
 rendered, but his presence will be presumed 
 unless the contraiy aj^pears. Holmes v. 
 Com. 25 Penn. St. 221. 
 
 176. In Arkansas, in Indictments for slight 
 misdemeanors, the accused may be tried 
 without being personally present. Sweeden 
 V. State, 19 Ark. 205 ; Warren v. State, lb. 
 214. 
 
 177. In Vermont, where conviction is not 
 followed l)y imprisonment, the accused may 
 appear by counsel, and having done so, the 
 trial may proceed without regard to the 
 continued presence of either the accused or 
 his counsel. Ex parte Tracy, 25 Vt. 93. 
 
 178. Presumption as to demand for trial. 
 A demand to be tried may be by acts or 
 words, or both. Where the prisoner ap- 
 peared and ratified the act of his counsel in 
 setting dowu the cause for trial, challenged 
 jurors, produced and examined witnesses, 
 and summed up, it was held equivalent to a 
 formal demand to be tried. People v. Frost, 
 5 Parker, 52. 
 
 179. Continuance of cause need not be 
 shown. The record need not show how the 
 cause was continued from the first day of 
 the term to the day of the trial. Berrian v. 
 State, 2 Zabr. 9. 
 
 180. Death of prosecutor. Under the 
 law of Tennessee requiring some citizen to 
 act as prosecutor, his death does not dis- 
 charge the accused. State v. Loftis, 8 Head, 
 500. 
 
 181. Proceedings upon original indict- 
 ment after indictment which was substi- 
 tuted for it has been quashed. An indict- 
 ment for an assault with intent to inflict 
 bodily injury was supposed to be lost, and 
 another indictment presented for the same 
 ofiense. The second indictment being de- 
 
 fective, was quashed. In the mean time, the 
 lost indictment was found, and upon this, 
 the defendant was tried, and found guilty. 
 Held no error. Keddan v. State, 4 Greene, 
 137. 
 
 182. Effect of dismissal of sufficient in- 
 dictment. Where the indictment is sufli- 
 cient, and the accused is arraigned, pleads, 
 and the jury is impaneled and sworn, a dis- 
 missal of the indictment without his con- 
 sent operates as an acquittal. Lee v. State, 
 26 Ark. 260. 
 
 183. Prosecution when compelled to 
 elect. Where the same ofi'ense is charged in 
 different forms in several counts, it is in the 
 discretion of the court to compel the prose- 
 cution to elect on which count he will pro- 
 ceed. State V. Jackson, 17 Mo. 544. 
 
 184. A motion of the prisoner's counsel 
 that the prosecutor be compelled to elect on 
 which count in the indictment he will pro- 
 ceed, will not be entertained by the court 
 until after the jury are sworn and charged 
 with the case. Stephen v. State, 11 Ga. 
 225. 
 
 185. Accused not confined to one of 
 several pleas. The prisoner cannot be 
 compelled to select and rely upon one of 
 several pleas submitted by him. State v. 
 Greenwood, 5 Porter, 474. 
 
 186. Retrial after conviction upon one 
 of several counts. Where under an indict- 
 ment containing two counts the defendant 
 having been found guilty on but one, obtains 
 a new trial, he may be tried again on both 
 counts. State v. Commissioners, 3 Hill, S. 
 C. 289. 
 
 187. Issue on special plea to be tried 
 first. Where issue is joined on the pleas of 
 not guilty and autrefois acquit or convict, 
 the issue on the special plea must be first tried 
 and decided; and if both issues be sub- 
 mitted to the jury at the same time, in- 
 jury will be presumed unless the record 
 shows otherwise. The failxire of the prisoner 
 to object, will not be a waiver of the irregu- 
 larity ; nor is a bill of exceptions necessary 
 when the error appears of record. Foster 
 V. State, 29 Ala. 229 ; Lee v. State, 26 Ark. 
 260. In Alabama, it has been held that al- 
 though if the defendant in a case of misde-
 
 TRIAL. 
 
 007 
 
 Proceedings in the Conduct of the Case. 
 
 Introduction of Evidence. 
 
 meaner goes to trial on both issues at the 
 same time without objection, he thereby 
 waives the irregularity; yet if the jury find 
 a verdict without finding upon the special 
 plea, no judgment can be rendered against 
 the defendant. Dominick v. State, 40 Ala. 
 
 680. 
 
 4. Proceedings 
 
 ^ 
 
 IN THE 
 
 CASE. 
 
 CONDUCT OF THE 
 
 (a) Introduction of evidence. 
 
 188. What notice sufficient. Notice to a 
 person to produce a telegram received by 
 him, is reasonable, if given before the com- 
 meucement of the trial. State v. Litchfield, 
 58 Maine, 267. 
 
 189. Objection that witnesses' names 
 have not been furnished to defendant. 
 In New Hampshire, it is competent for the 
 defendant when indicted for an offense, the 
 punishment of which may be death or con- 
 finement at hard labor for life, to except to a 
 witness that he is not named in the list of 
 witnesses furnished pursuant to the statute 
 (R. S. ch. 225, § 3), unless the exception ap- 
 plies to the whole list of witnesses, in which 
 case, he must make the objection when the 
 case is called, or it will be deemed waived. 
 There is no particular formality required in 
 designating the places of abode of the wit- 
 nesses in the list. Naming the town and 
 State after the name of each witness is 
 sufficient. Lord v. State, 18 New Hamji. 
 173. To render admissible the testimony of 
 a witness whose name has not been furnished 
 to the defendant before the trial, the defend- 
 ant must have offered evidence of new mat- 
 ter, or the testimony proposed to be intro- 
 duced must go to discredit that of the de- 
 fendant. State V. Hartigan, 19 New Hamp. 
 248. 
 
 190. In Illinois, the prosecution is not re- 
 stricted to the witnesses whose names are in- 
 dorsed on the indictment and furnished 
 previous to the arraignment ; but the court 
 in the exercise of a sound discretion, may 
 permit such other witnesses to be examined 
 as the justice of the case may seem to re- 
 quire. Gardner v. Peopk', 3 Scam, 83. 
 
 191. Requiring counsel to state what 
 they expect to prove. It is discretionary 
 
 with the court whether or not to require 
 counsel to disclose what they expect to show 
 by a witness before he is examined. In such 
 case, counsel will be required to state the 
 substance of what they expect to prove. 
 People V. White, 14 Wend. 111. 
 
 192. Inquiry as to the competency of 
 proof. When a preliminary examination is 
 instituted by the court into the circumstances 
 under which a confession was obtained, the 
 judge may direct the prosecuting officer to 
 conduct it; and the course and extent of it, 
 and its eflfect, are to be determined by the 
 judge. Com. v. Morrell, 99 Mass. 542. 
 
 193. Upon the question whether a written 
 instrument is sufficiently proved to have 
 been written by the defendant to allow it to 
 be submitted to the jury as a standard of 
 comparison, the judge at the trial must pass 
 in the first instance; and so far as his 
 decision is of a question of fact merely, it 
 must be final if there is any proper evidence 
 to support it. Com. v. Coe, 115 Mass. 481. 
 
 194. When witness must be objected to. 
 Objections to the competency of a witness 
 must be made before his examination, if 
 known to the party objecting. When this 
 knowledge is first acquired after the ex- 
 amination of the witness has commenced, the 
 objection will be waived if the witness is 
 suflfered to proceed after the discovery. 
 State V. Damery, 48 Maine, 327. 
 
 195. Objection to evidence, how made. 
 When objections are made to the admission 
 of evidence, they must be specifically set 
 forth. State v. Bowe, 61 Maine, 171 
 
 196. Where part of a question is legal 
 and proper, if the other part is objectionable, 
 the objection to be available must be specif- 
 ically pointed out. Hochrieter v. People, 2 
 N. Y. Ct. of App. Decis. 363 ; s. c. 1 Keyes, 
 66. 
 
 197. But where evidence is prima facie 
 improper, the party objecting to it need not 
 state the ground on which the objection is 
 founded. Davis v. State, 17 Ala. 415. 
 
 198. Objecting to mode of proof. An 
 objection to the mode of proving a fact, 
 and not to the proof of the fact itself (as 
 that a written instrument cannot be proved 
 by parol), must be distinctly placed upon
 
 COS 
 
 TRIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Introduction of Evidence. 
 
 that ground. Murphy v. People, 6 N. Y. 
 Supm. N. S. 369. 
 
 189. Objections and rulings were made 
 and exceptions taken to certain questions 
 put to witnesses, but not to their answers, 
 which were directly responsive to the ques- 
 tions. Held that the defendant was entitled 
 to raise the points and review the erroneous 
 rulings. Shaw v. People, 5 N. Y. Supm. 
 K S. 439. 
 
 200. Admitting evidence witliout ob- 
 jection. An exception cannot be taken to 
 an answer which is responsive to a question 
 put without objection. State v. Nutting, 
 39 Maine, 359. 
 
 201. Where immaterial evidence has been 
 admitted without objection, it is too late 
 afterward to object to its effect. Stephens 
 V. People, 4 Parker, 390; atfi'd 19 N. Y. 
 549. 
 
 202. But after a letter offered by the pros- 
 ecution, has been examined by the defend- 
 ant's counsel, put in evidence, and partly 
 read with his consent, the refusal of the 
 court to entertain an objection to its ad- 
 mission is within its discretion. Com. v. 
 Marks, 101 Mass. 31. 
 
 203. Answer not responsive to question. 
 When the party examining a witness is will- 
 ing to accept an answer not responsive to 
 his question which he would have had a 
 right to elicit, the opposite party cannot 
 complain. The rule may be different in the 
 case of testimony taken by deposition. 
 Hamilton v. People, 29 Mich. 173. 
 
 204. Witness testifying without being 
 sworn. The prosecution having but one 
 witness, he gave his evidence without being 
 sworn. The summing up being closed, de- 
 fendant's counsel moved the court to instruct 
 the jury to acquit, as there was no evidence 
 before them. This motion was overruled, 
 aud the witness was sworn and permitted to 
 testify over again. Held error. Thompson 
 V. State, 37 Texas, 121. 
 
 205. Evidence given in absence of judge. 
 On a trial for murder, the court was com- 
 posed of a circuit judge, county judge, and 
 two justices of the sessions. While the evi- 
 dence was being given, one of the justices of 
 sessions absented himself from the court 
 
 during an entire day, but resumed his seat 
 on the bench the next day, and the trial 
 proceeded without his having read the evi- 
 dence given in his absence. Held error 
 which could not be waived by the prisoner. 
 Shaw V. People, 5 N. Y. Supm. N. S. 439. 
 
 206. Admission of hearsay. Where on 
 a trial of an indictment for robbery, the 
 prosecutor was allowed to testify that he 
 gave to the police olficers a description of 
 the persons who assaulted him, and the 
 officers were also permitted to testify that 
 by means of that description they recognized 
 the defendants as assailants, it was held 
 error. Com. v. Fagan, 108 Mass. 471. 
 
 207. Proof of part only of transaction 
 not proper. The prosecution cannot claim a 
 conviction, U2wn submitting evidence of a 
 part only of an entire transaction, unless 
 evidence of the rest is not attainable ; and 
 the prosecution should examine all their wit- 
 nesses to the transaction before the accused 
 is put to his defense. Hurd v. People, 25 
 Mich. 405; Wellar v. People, 30 lb. 16. 
 
 208. Jury viewing premises. The court 
 may permit the jury in a capital case to 
 view the premises, accompanied by an offi- 
 cer of the court and by the respective coun- 
 sel. Com. V. Webster, 5 Cush. 295. 
 
 209. Purpose for which premises may 
 be viewed. The jury are permitted to view 
 premises, not for the purpose of furnish- 
 ing evidence upon whicli a verdict is to be 
 rendered, but in order to enable them bet- 
 ter to understand and apply the evidence 
 which is given in court. Chute v. State, 19 
 Minn. 271 ; s. c. 1 Green's Crim. Reps. 571. 
 
 210. Where on a trial for larceny the 
 court permitted the jury to go out and in- 
 spect the animal alleged to have been stolen, 
 for the purpose of determining the question 
 of identity and ownership, it was held error. 
 Smith V. State, 42 Texas, 444. 
 
 211. Latitude of proof allowed one of 
 several defendants. On the trial of an 
 indictment against several jointly charged 
 with the commission of the same crime, each 
 is entitled to pursue his own line of defense, 
 although in so doing he may introduce evi- 
 dence which is injurious to his codefend- 
 ants. Com. v. Robinson, 1 Gray, 555.
 
 TKIAL. 
 
 609 
 
 Proceedings in the Conduct of the Case. Evidence. 
 
 Ruling of Court, 
 
 212. When testimony should be stricken 
 out. Where the opposite party has lost, 
 ■without his own fault, neglect or consent, 
 the opportunity to cross-examine, the evi- 
 dence on the direct examination should be 
 stricken out. On the close of her direct 
 examination, A., who had been under great 
 nervous excitement during the time she was 
 testifying, fainted away. She had convul- 
 sions during the night, and was incapable 
 of being cross-examined on the next day. 
 The prisoner's counsel insisting on his right 
 to cross-examine the witness, requested the 
 court to strike out her evidence, to post- 
 pone the trial, or discharge the prisoner, 
 each of which requests was refused. Held 
 error. Cole v. People, 43 N. Y. 508 ; affi'g 
 2 Lans. 370. 
 
 213. Admitting testimony after case 
 is closed. In Massachusetts, the admis- 
 sion of additional evidence in behalf of the 
 prosecution after the defendant has closed 
 his case is a matter of judicial discretion, 
 and not the subject of exception. Com. v. 
 Arrance, 5 Allen, 517. And whether the 
 defendant will be permitted to introduce 
 further evidence after both sides have rested, 
 and the prisoner's counsel has made his 
 closing address, and the prosecuting attor- 
 ney has nearly finished his reply thereto, is 
 likewise in the discretion of the court. 
 Com. V. Dower, 4 lb. 297. 
 
 214. In Georgia, it has been held, that 
 after the case had been submitted to the 
 jury on both sides, the prosecution will not 
 be permitted to introduce further evidence. 
 Judge V. State, 8 Ga. 173; but that the rule 
 does not apply where no motion has been 
 made, or testimony tendered by the defense, 
 or the witnesses discharged. Haskins v. 
 State, 11 lb, 93. "Where on a trial for mur- 
 der, after the evidence for the prosecution 
 had closed, and the prisoner's counsel had 
 stated that he would not introduce any 
 testimony, a witness who had been sworn 
 and examined in the case, corrected his 
 testimony in a private interview with the 
 judge, which correction the judge announced 
 in the presence and hearing of the jury, it 
 was held error. Crawford v. State, 13 Ga.l43. 
 
 215. In Missouri, the court may allow 
 
 39 
 
 witnesses to be recalled and examined at 
 any time before the jury retire, in order to 
 supply testimony that has been omitted. 
 Freleigh v. State, 8 Mo. C06. But in that 
 State, where on the trial of a capital case, 
 after the close of the evidence in behalf of 
 the prosecution, none being offered by tlie 
 defense, the jury were allowed by consent 
 of parties, to go home until morning, and 
 upon the reopening of the court, the prose- 
 cution reexamined witnesses, and introduced 
 some additional testimony, it was held 
 error. Mary v. State, 5 Mo. 71. 
 
 216. In New York, the court may permit 
 the prosecution to introduce further evi- 
 dence after the summing up has commenced. 
 Kalle V. People, 4 Parker, 591 ; and it is in 
 the discretion of the court to reject testi- 
 mony offered by the prisoner after the close 
 of the proof and the summing up of the 
 case to the jury. Wilke v. People, 53 N. Y. 
 525. In Vermont, it has been held that 
 proof of a former conviction for the pur- 
 pose of increasing the penalty, need not be 
 submitted to the jury, but may be given 
 after the verdict. State v. Haynes, 36 Vt. 
 667. 
 
 (b) Ruling of court. 
 
 217. As to intercourse with the bench. 
 Unless the rights of the parties are affected, 
 the court will not direct as to the manner 
 of intercourse between the bench and the 
 bar, during the trial. Long v. State, 13 
 Ga. 293. 
 
 218. Refusing to hear argument. The 
 court is not obliged to hear argument upon 
 a question of law, if its opinion is already 
 formed. Howell v. Com. 5 Gratt. 664. 
 
 219. Giving prosecution the benefit of 
 legal doubts. Where the presiding judge 
 remarked, on determining certain motions 
 to quash an indictment, that he had doubts 
 about the law, and would give the State 
 the benefit of them because the State was 
 not allowed to carry the case to the Supreme 
 Court, it was held to be neither an error 
 nor an irregularity. Cook v. State, 1 1 Ga. 53. 
 
 220. Judge expressing an opinion as to 
 the evidence. It is error in the court to 
 tell the jury tljat a fact is positively estab-
 
 CJO 
 
 TEIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Ruling of Court. 
 
 lished. Hill v. State, 17 Wis. 675. Although 
 the judge may with propriety correct coun- 
 sel when they mistake the evidence, yet he 
 has no right to express an opinion as to the 
 facts of the case. Bill v. People, 14 111. 433. 
 But see Conraddy v. People, 5 Parker, 234. 
 
 221. It is error for the judge to say in the 
 hearing of the jury, "never mind reading 
 over the testimony taken down on cross- 
 examination, it does not amount to much 
 any way." Crawford v. State, 12 Ga, 142. 
 
 222. On the trial of an indictment for 
 rape, the accused offered to prove that the 
 Ijrosecutrix had said that another person 
 committed the offense. The court in ex- 
 cluding the evidence remarked that "it 
 amounted to nothing." Held error. Ken- 
 nedy V. People, 44 111. 283. 
 
 223. On a trial for murder, the State's 
 attorney asked a witness what the condition 
 of the mind of the deceased was towards 
 the prisoners after the mortal wounds were 
 given, whethe^r kind or malevolent. The 
 judge in ruling out the question remarked 
 that " H. (the deceased) had a right to be 
 mad." Held error. Home v. State, 37 Ga. 80. 
 
 224. Where the court on a trial for mur- 
 der referred to the deceased as " a victim," 
 it was held that it had no right to make use 
 of such an expression, it being nearly equiv- 
 alent to characterizing the defendant as a 
 criminal. People v. Williams, 17 Cal. 142. 
 
 225. It is error to rule that a witness is 
 not to be regarded as an accomplice unless 
 "an admitted accomplice or proved to be 
 so, beyond a reasonable doubt;" the ques- 
 tion being one of fact for the jury. Com. 
 V. Ford, 111 Mass. 394; Com. v. Glover, lb. 
 395. 
 
 226. It is not error for the court to ex- 
 press an opinion upon the evidence, when 
 the jury are afterward instructed that they 
 are the judges of all questions of fact. 
 Stephens V. People, 4 Parker, 396; 19 N. 
 Y. 549. Contra, State v. Ah Tong, 7 Nev. 
 148 ; State v. Harkin, lb. 377. 
 
 227. InBtructing jury to disregard evi- 
 dence. It is error to admit illegal evidence, 
 although the court afterward irfetructs the 
 jury to disregard it. State v. Mix, 15 Mo. 
 153; State v. Wolf, lb. 169-. 
 
 228. On the trial of an indictment for mur- 
 der, the prosecution was permitted to read 
 in the presence of the jury a written state- 
 ment purporting to have been sworn to be- 
 fore the coroner's jury by a witness on the 
 stand, for the purpose of refreshing her mem- 
 ory. The witness who was the daughter 
 of the defendant, denied all knowledge or 
 recollection of such a statement; and the 
 court said to the jury : " You are not to al- 
 low her testimony in the slightest degree to 
 influence you against the defendant." Held 
 that there was no error. Harvey v. State, 
 40 Ind. 516. 
 
 229. Admitting evidence previously ex- 
 cluded. The error of excluding evidence is 
 cured by its subsequent admission. Coats 
 V. People, 4 Parker, 662. 
 
 230. An error in permitting evidence to 
 be given that a witness had on a certain oc- 
 casion made statements inconsistent with his 
 testimony, without first calling the attention: 
 of the Avitness to such statements, was held 
 cured by the defense afterward calling the 
 witness and his denying the statements. U. 
 S. V. McHeury, 6 Blatch. 503. 
 
 231. Setting aside juror. After a juror 
 is accepted and sworn, he cannot be dis- 
 charged without the consent of the prisoner, 
 for any cause which existed when he was 
 sworn, although the cause may have been 
 discovered after he was impaneled. State v. 
 Williams, 3 Stew. 454. 
 
 232. On the trial of a felony, it is error 
 for the court, against the objection of the ac- 
 cused, to discharge a juror, because since 
 such juror Avas summoned, and before he was 
 drawn, he had been convicted of an assault, 
 and at the time of the trial was confined in 
 the county jail. Boggs v. State, 45 Ala. 30. 
 
 233. On a trial for murder, a juror having 
 been accepted and sworn, informed the court 
 that he was legally exempt from serving on 
 juries, and asked to be discharged. The 
 court said this could not be done ; whereupon 
 the juror stated that he would discharge 
 himself, and left the court room. The 
 court then, without discharging the juror, 
 caused another juror to be selected in his 
 place without the consent of the prisoner.
 
 TRIAL. 
 
 Gil 
 
 Proceedings in the Conduct of the Case. 
 
 Ruling of Court. 
 
 Held cause for a new trial, Powell v. State, 
 48 Ala. 154. 
 
 234. On a trial for murder, a jury having 
 been selected and sworn, and a witness ex- 
 amined, one of the jurors announced to the 
 court that he then recollected that he was a 
 member of the grand jury that found the in- 
 dictment against the prisoner. Thereupon, 
 the court set the juror aside, and substituted 
 another juror in his jilace, to which the de- 
 fendant objected. Held that such action of 
 the court operated as an acquittal. O'Brian, 
 T. Com. 9 Bush, Ky. 333 ; s. c. 6 lb. 563. 
 
 235. Discharging jury. If the court dis- 
 charge the jury without necessity therefor, 
 the prisoner may plead it in bar of another 
 trial. McCauley v. State, 26 Ala. 135. 
 Sickness of jurors, when it can be remedied 
 by refreshment, is not such necessity. Com. 
 V. Clue, 3 Rawie, 498 ; Ned v. State, 7 Por- 
 ter, 187; Williams' Case, 2 Graft. 567; 
 Judge V. State, 8 Ga. 173; State v. Ephraim, 
 2 Dev. «& Batt. 162. Insanity of a juror 
 would be a sufficient cause for discharging 
 the jury. U. S. v. Haskell, 4 Wash. C. C. 
 102. The mere opinion of the judge that 
 the evidence shows the defendant to be 
 guilty of a higher degree of crime, is not 
 such a necessity as justifies the discharge of 
 thejuiy. People v. Hunckeler, 48 Cal. 331. 
 A court of the United States has authority 
 to discharge a jury from giving a verdict, 
 without the consent of the defendant, when- 
 ever, in its opinion, there is a manifest ne- 
 cessity for the act, and to do so with the 
 consent of the defendant in a case which 
 falls short of being one of manifest neces- 
 sity. But the fact that the court regarded 
 the defendant as consenting to such dis- 
 charge, will not, in the absence from the 
 miimtes of the court of any statement to 
 that eifect, conclude him. Where the jury 
 was discharged and the trial postponed on 
 account of the illness of the district attor- 
 ney, and it did not appear from the minutes 
 that such illness occurred after the jury was 
 sworn, or that the assistant district attorney 
 might not have conducted the trial, or that 
 the defendant consented to the postpone- 
 ment, it was held equivalent to an acquit- 
 tal. U. S. V. Watson, 3 Benedict, 1. 
 
 236. On the trial of several for murder, 
 the court decided that each defendant was 
 entitled to be examined for the others, where- 
 upon the solicitor for the State appealed; 
 and on motion of the solicitor, and against 
 the objection of the defendants, the court 
 discharged the jury. Held that such dis- 
 charge operated as an acquittal. State v. 
 Prince, 63 N. C. 529. 
 
 237. Where on a trial for murder, one of 
 the jurors becoming ill, requested to be dis- 
 charged, but made no statement under oath 
 as to his condition, and no medical evidence 
 was submitted in his behalf, and the jury 
 were discharged by the court without the 
 prisoner's consent, it was held a bar to a re- 
 trial. Rulo V. State, 19 Ind. 298. And 
 where in a capital case, the jury at the close 
 of the evidence, were placed in the custody 
 of two bailiffs, who were instructed by the 
 court to keep them in a room, and not per- 
 mit them to communicate with any one, and 
 the bailiff who had charge of them, took 
 them into a public square, left them, and 
 went to the grocery of the defendant, who 
 was out on bail, and there procured from his 
 bar-keeper a pitcher of beer, which the jury 
 drank, and the court, contrary to tlie de- 
 fendant's objection, discharged the jury, it 
 was held that such discharge operated as an 
 acquittal. State v. Leunig, 42 Ind. 541. 
 
 238. After a trial for bigamy had gone on 
 some time, it was discovered that the de- 
 fendant had not been arraigned or asked to 
 plead to the indictment. The defendant 
 was then arraigned and the indictment read 
 to him. The defendant objected to any 
 further proceedings being taken. The ob- 
 jection was overruled, and on request, the 
 defendant pleaded not guilty. The defend- 
 ant again objected to any further proceed- 
 ings, and the court discharged the jury. 
 Held not a bar to further trial. King v. 
 People, 12 N. Y. Supm. N. S. 297. 
 
 239. Where on the trial of an indictment 
 for selling spirituous liquors without a li- 
 cense, the prisoner consented, in order to 
 avoid a postponement of the case on ac- 
 count of the intoxication of a material wit- 
 ness for the prosecution, that the cause 
 might be withdrawn from the jury if it ap-
 
 012 
 
 TKIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Summing up of Counsel. 
 
 peared in the progress of the trial that the 
 witness was too much intoxicated to testify 
 intelligibly, which proved to be the case, it 
 was held that the court might discharge the 
 jury against the prisoner's objection. Hughes 
 V. State, 35 Ala, 351. 
 
 (c) Deportment of tlie jurrj ichile the case is he- 
 fore them. 
 
 240. Juror leaving box. Tlie court may 
 allow a juror to leave the jury box for a 
 brief time, even during the trial of a capital 
 case. State v. Anderson, 2 Bail. 565. 
 
 241. Juror talking with bystander. 
 When a juror during the trial talks with a 
 bystander, or leaves the court room without 
 the permission of the court, he is guilty of 
 a misdemeanor, for which he is liable to pun- 
 ishment. Barlow v. State, 2 Blackf. 114. 
 
 242. Separation of jury. After the trial 
 had been partly had, the court adjourned. 
 During the adjournment, one of the jui'ors 
 separated from his fellows, and when the 
 court met, the juror was dismissed and 
 another person substituted. Held error. 
 Grable v. State, 2 Greene, 559. 
 
 243. In South Carolina, it is discretionary 
 with the court to permit the jury to sepa- 
 rate during the adjournment from day to day 
 during the trial. State v. Anderson, 2 Bail. 
 565. 
 
 244. In Missouri, where both sides consent 
 to the separation of the jury before verdict, 
 it is not error for the court to permit it. 
 State V. Mix, 15 Mo. 153. But it has been 
 held in that State, that the jury, after they 
 are sworn, should not be allowed to separate 
 until they have rendered their verdict, and 
 that if permitted to do so, the judgment will 
 be reversed. McLean v. State, 8 Mo. 153. 
 
 245. In Indiana, it appeared from the 
 record in a capital case, that after the jury 
 were sworn the court adjourned until the 
 next day, but not that tlie jury were legally 
 disposed of during the adjournment. Held 
 error. Jones v. State, 2 Blackf. 475. 
 
 246. Where the jury through inadvertence 
 separated and mingled with the crowd, but 
 the court was satisfied that the prisoner was 
 not prejudiced thereby, it was held that the 
 
 verdict would not be disturbed. Roberts v. 
 State, 14 Ga. 8. 
 
 247. Where jurors slept apart, distributed 
 iu five different rooms in the third story of a 
 hotel, opening upon a common passage 
 which communicated with the street below 
 by flights of stairs, the doors of their cham- 
 bers being unlocked during the night, and 
 there being no doors or other fastenings at 
 either end of the passage, it was held that 
 it was not equivalent to a separation. 
 Thompson v. Com. 8 Gratt. 637. 
 
 248. In Alabama, it has been held that if, 
 after the evidence is closed, the jury are 
 permitted to separate, such separation is not 
 ground for the prisoner's discharge, but that 
 it will be considered a very strong reason for 
 granting a new trial in all felonies. Wil- 
 liams V. State, 45 Ala. 57. 
 
 {d) Summing up of counsel. 
 
 249. Right to open and close. The party 
 having the afhrraative is entitled to open, 
 and close. Doss v. Com. 1 Gratt. 557. 
 
 250. On the trial of an indictment for 
 murder, the defense of insanity, under the 
 plea of not guilty, does not give the affirma- 
 tive to the defendant and entitle him to 
 open and close. Loeffner v. State, 10 Ohio, 
 N. S. 598. 
 
 251. The order in which counsel shall ad- 
 dress the jury is in the discretion of the 
 court. On the trial of an indictment for an 
 assault with intent to kill, after the evi- 
 dence was submitted, the prosecuting attor- 
 ney opened the case to the jury. After he 
 had got through, the prisoner's counsel de- 
 clined to address them, whereupon the court 
 permitted the assistant of the prosecuting 
 attorney to address them. Held no error. 
 State V. Waltham, 48 Mo. 55. 
 
 252. Right and duty of judge to direct 
 as to the remarks of counsel. It is error 
 in tlie court, when objection is made, to 
 allow counsel to comment in their argument 
 to the jury on facts not proved. Mitchum 
 V. State, 11 Ga. 615. But where incom- 
 petent evidence has been given without ob- 
 jection, counsel may rightfully comment 
 upon it in summing up. Free v. State, 1 
 McMullan, 494.
 
 TRIAL. 
 
 Gi; 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 253. On a trial for murder, counsel for the 
 prosecution commented on the frequent 
 occurrence of murder in the community, 
 and the formation of vigilance committees 
 and mobs, remarking that the same were 
 caused by the laxity of the administration 
 of the law, and stating to the jury that they 
 ought to make an example of the defendant. 
 The defendant objected to such comments 
 because there was no evidence of such mat- 
 ters before the jury, but the court said they 
 "were proper subjects for comment. Held 
 error. Ferguson v. State, 49 Ind. 33. 
 
 254. The permitting an irrelevant argu- 
 ment is not ground for exception unless the 
 jury were erroneously instructed in relation 
 to it. Com. V. Byce, 8 Gray, 461. 
 
 255. A judge has a right to stop counsel 
 who, in remarking upon the evidence, grossly 
 abuses a witness. State v. Williams, 65 N. 
 C. 505. 
 
 256. Reading books by counsel. The 
 court may refuse to permit counsel to read 
 from law books in their argument to the 
 jury. Murphy v. State, 6 Ind. 499. 
 
 257. It is not error for the court to per- 
 mit counsel to read extracts from a law work 
 as a part of his argument, the court inform- 
 ing the jury that such extracts are not to be 
 regarded by them as evidence. Harvey v. 
 State, 40 Ind. 516. 
 
 258. Although it is permissible for coun- 
 sel, by way of illustration, to read to the 
 jury reported cases or extracts from text 
 books, yet it is the duty of the court to 
 check promptly any effort of counsel to in- 
 duce the jury to take the law of the case 
 from the books rather than from the court. 
 People v. Anderson, 44 Cal. 65. 
 
 259. Counsel remarking upon refusal to 
 answer or omission of witness. Where a 
 witness was asked on cross-examination 
 whether he had not been convicted and 
 punished for an infamous crime, and he 
 declined to answer, it was held that such 
 refusal might be urged by counsel in ad- 
 dressing the jury as warranting the infer- 
 ence that the witness was unworthy of 
 credit. State v. Garrett, Busbee, 357. But 
 the mere omission of a witness on a trial for 
 murder to state a fact, or stating it less fully 
 
 before the coroner, is not a subject for com- 
 ment to the jury, unless the attention of the 
 witness was particularly called to it at the 
 inquest. Com. v. Hawkins, 3 Ga. 46-3. 
 
 260. Correction of misstatements. Coun- 
 sel has a right to correct misstatements of 
 the evidence made by his adversary, and it 
 is improper for the court not to allow the 
 correction to be made. Long v. State, 13 
 Ga. 293. 
 
 {e) Charge of judge. 
 
 261. To be given when the case is sub- 
 mitted. After the testimony on a trial for 
 assault and battery was closed, the court 
 called the next case on the docket, which 
 was against another defendant for misde- 
 meanor, the same jury were sworn, and after 
 the testimony in the second case was finished 
 the jury were instructed as to the law of the 
 first case. Held error. State v. Devlin, 25 
 Mo. 174. 
 
 262. How to be construed. The language 
 of the charge of the court is to be construed 
 in the light of the evidence to which it was 
 applied, and as it w^ould naturally be under- 
 stood by the jury. People v. Bransby, 33 
 N. Y. 525. 
 
 263. Must embrace whole case. Where 
 the case has several aspects, some favorable 
 to the prisoner, it is error in the court to 
 present to the jury only the view unfavora- 
 ble to him. State v. Gentry, 3 Jones, 406. 
 Where the instructions on a material point 
 are contradictory, there should be a new 
 trial. People v. Anderson, 44 Cal. 65. 
 
 264. Where an instruction grouped to- 
 gether certain prominent facts which the 
 evidence conduced to prove, and irrespec- 
 tive of others, stated them hypothetically 
 to the jury, as constituting sufl3cient grounds 
 for finding the defendant guilty of murder, 
 it was held error. Williams v. Com. 9 
 Bush, Ky. 274. 
 
 265. But where on a trial for grand lar- 
 ceny, the court grouped together and recited 
 to the jury facts all of which bore against 
 the defendant, it was held that the instruc- 
 tion was not necessarily erroneous, as it 
 was competent for the defeodant to ask and 
 have given an instruction embodying the
 
 C14 
 
 TEIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 facts in his favor. State v. Carnahan, 17 
 Iowa, 356. 
 
 266. To be confined to actual facts. It is 
 error for tlie court to state to the jury a 
 purely hypothetical case, and ask them what 
 is the presumption in such a case. McAlpine 
 V. State, 47 Ala. 78. 
 
 267. Should present the case in all its 
 aspects. If the facts proved are capable of 
 two constructions, or if in one view of the 
 evidence a particular intent might be found, 
 and yet the facts might justify the finding 
 of an intent involving another degree of 
 guilt, the court is bound upon the request 
 of the prisoner, to declare the rule of law 
 applicable to the case in either aspect. Fos- 
 ter V. People, 50 N. Y. 598. 
 
 268. Omissions in. The omission to instruct 
 the jury that the evidence does not prove 
 the offense laid in the indictment, is ground 
 of exception. Com. v. Merrill, 14 Gray, 
 415. 
 
 269. It is not error in the court to omit 
 to charge the jury as to the rules of law 
 applicable to circumstantial testimony. That 
 is a matter in the discretion of the court, 
 and no error is committed unless it gives 
 instructions which may mislead. State v. 
 Eoe, 12 Vt. 93. 
 
 270. On the trial of an indictment upon 
 a statute, the coui't need not instruct the 
 jury whether the charge could be sustained 
 at common law. State v. Hart, 34 Maine, 36. 
 
 271. Omitting to charge as to degree 
 of ofiense. It is proper that the judge 
 should instruct the jury as to what consti- 
 tutes the several degrees of crime included 
 in the indictment ; but the mode and extent 
 of doing it is in his discretion. State v. 
 Conley, 39 Maine, 78. 
 
 272. Where on a trial for murder, the 
 judge in charging the jury did not instruct 
 them as to the various degrees of murder 
 in the second degree and .of manslaughter, 
 but told them if they had doubt as to which 
 degree of murder the defendant was guilty 
 they should convict of the lesser degree, and 
 if they had doubts of the intent to take life 
 they could convict of one of the lesser de- 
 grees, it was held that although if the defi- 
 nition of the ofi"euse had been o-iven to the 
 
 jury, they would more clearly have seen the 
 distinction between it and murder, yet that 
 there was no error. Manuel v. People, 48 
 Barb. 548. 
 
 273. Attention of court must be called 
 to omission. Where the charge of the 
 court is correct as far as it goes, if the pris- 
 oner desires a more full instruction on any 
 point, he must ask for it. Dow v. State, 23 
 Ala. 23. But if the court withdraw from 
 the jury material evidence, it will be error. 
 Holmes v. State, 23 Ala. 17. 
 
 274. If the court in admitting evidence 
 for a specific purpose, omit to limit it to 
 such purpose, it is the duty of counsel to 
 call attention to the fact and to request a 
 proper charge on the point ; otherwise, all 
 objection will be waived. People v. Col- 
 lins, 48 Cal. 277 ; State v. Conley, supra. 
 
 275. No omission or failure of the judge 
 to charge the jury upon a particular point of 
 law, will be sustained as error, unless his at- 
 tention be specially called to it. Cato v. 
 State, 9 Fla. 163 ; State v. Reed, 63 Maine, 
 129 ; State v. O'Neal, 7 Ired. 251. 
 
 276. Refusal to charge as to reasonable 
 doubt. The refusal of the court to charge 
 the jm-y that the evidence must satisfy them 
 beyond a reasonable doubt of every fact 
 necessary to establish the j)risoner's guilt, 
 will be ground for a new trial. Walker v. 
 State, 49 Ala. 398. 
 
 277. The court is not required to select 
 each fact constituting an offense, and to 
 charge the jury if they have a reasonable 
 doubt of that fact, they must acquit — but 
 only to charge generally that they must 
 acquit, if on the whole case they have a rea- 
 sonable doubt of the prisoner's guilt. State 
 V. Dunn, 18 Mo. 419. 
 
 278. AVhen the facts showing the guilt of 
 the accused are clearly established, it is not 
 error in the court to refuse to charge the 
 jury as to the legal efl'ect of a doubt. Pil- 
 kenton v. State, 19 Texas, 314, 
 
 279. Where there is positive evidence 
 against the accused, it is proper for the 
 court to refuse to charge that the case 
 being one of circumstantial evidence, the 
 jury must acquit unless the circumstances 
 excluded any other hypothesis except that
 
 TRIAL. 
 
 615 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 of the prisoner's guilt, as that would assume 
 that the positive evidence was unworthy of 
 credit. People v. Kaatz, 3 Parker, 129. 
 
 280. Refusal to charge as to effect of 
 false testimony. A refusal to charge the 
 jur}- as follows, held error: "If the jury be- 
 lieve from all the evidence that the witness ! 
 M. has testified falsely in respect to any ma- ' 
 terial fact, it is their duty to disregard the i 
 whole of her testimony." Campbell v. State, 
 3 Kansas, 488. 
 
 281. Refusal to instruct just as re- 
 quested. When a proper and legal request 
 is made to the court to charge the jury, the 
 party making such request has a right to 
 have the instructions prayed for given to 
 the jury in the manner requested. Davis v. 
 State, 10 Ga. 101. 
 
 282. The prisoner is entitled to have writ- 
 ten instructions asked for by him, given in 
 the very terms asked, if correct ; and it is 
 error to refuse them, though charges similar 
 in principle have already been given. Wil- 
 liams V. State, 47 Ala. 659. 
 
 283. On a trial for robbery, the evidence 
 tended to establish the alleged offense ; but 
 the prisoner gave testimony in his own be- 
 lialf which, if believed by the jury, would 
 have justified a conviction for a lesser oftense. 
 At the close of the charge, to which no ex- 
 ceptions were taken, the counsel for the 
 prisoner requested the court " to charge the 
 jury that they can render a verdict of guilty 
 of larceny from the person, or of an assault 
 and battery."' To this request the court 
 re.sponded by saying : " It is in your power 
 to find this man guilty of arson in setting 
 :fire to the City Hall ; you are only to find 
 such a verdict as the facts that have been 
 proven before you will justify." Held, that 
 as the charge must be deemed adverse to the 
 prisoner, and therefore legally injurious to 
 him, he was entitled to a nevv trial. Murphy 
 V. People, 5 N. Y. Supm. K S. 303. 
 
 284. When request to charge is only in 
 part correct. It is not error in the judge 
 to refuse to charge as requested, when a 
 part of the request is right and a part wrong. 
 Tomlinson v. People, 5 Parker, 313. 
 
 285. When an exception is relied upon for 
 refusing to charge as requested, the request 
 
 must be proper as an entjrety. If it em- 
 braces an idea or view which ought not to 
 be presented, it destroys the value of the 
 exception, although a part of the legal prop- 
 osition embraced, if detached and presented 
 sejiarately, might be proper. People v. 
 Holmes, 6 Parker, 25. 
 
 286. It is not the duty of the court to 
 eliminate the errors in a requested instruc- 
 tion — to select a portion and refuse the 
 residue. Where on the trial of a married 
 woman for being a common seller of intoxi- 
 cating liquors, the judge was asked to charge 
 the jury that "if any of the sales were 
 made by the wife in the presence of her 
 husband, she would be presumed to act 
 under the coercion, compulsion, or direction 
 of her husband, and would not be liable for 
 such sales," it was held that the instruction 
 was properly refused ; the presumijtion that 
 the wife committed the ofiiense by the 
 coercion of the husband being slight and 
 susceptible of rebuttal. State v. Cleaves, 
 59 Maine, 298. 
 
 287. Refusing to charge the same prop- 
 osition over again. If the court refuses 
 a charge once clearly given, on the ground 
 that it has already given it in difi'erent terms, 
 it should distinctly inform the jury that 
 this is the reason for the refusal ; otherwise, 
 the refusal will be error. People v. Harley, 
 8 Cal. 890; affi'd. People v. Ramirez, 13 lb. 
 172; People v. Williams, 17 lb. 142. 
 
 288. Refusing to charge abstract prop- 
 osition. The court may refuse to instruct 
 the jury on an abstract proposition of law. 
 Daniel v. State, 8 Smed. & Marsh. 101; 
 Corbin v. Shearer, 3 Gilman, 482; Pate v. 
 People, lb. 644; Long v. State, 12 Ga. 293; 
 and where an instruction, as asked, requires 
 a qualification, or explanation, it may be 
 refused. Swallow v. State, 22 Ala. 20; 
 Baxter v. People, 3 Gilman, 368; Preston v. 
 State, 25 Miss. 383 ; State v. Rash, 12 Ired. 
 382. 
 
 289. The request to charge an abstract 
 proposition should be refused, although the 
 proposition itself be correct. Murray v. 
 State, 18 Ala. 727 ; People v. Cunningham, 
 1 Denio, 524 ; Morris v. State, 25 Ala. 57. 
 
 290. It is not erroneous in the judge to
 
 GIG 
 
 TRIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 refuse to charge that if the grand jury knew 
 at the finding of the indictment whom the 
 prisoner intended to defraud, he could not 
 be convicted of an intent to defraud persons 
 unknown, when there is no evidence in the 
 case to show that the grand jury had any 
 such knowledge. People v, Noakes, 5 
 Parker, 291. 
 
 231. Instruction need not be given as to 
 what is obvious. The court is not required 
 to instruct the jury as to matters of which 
 they are su^jposed to possess a competent 
 knowledge. It was therefore held proper 
 for the court on a trial for assault and battery 
 to refuse to charge, that an unloaded pistol, 
 and a pistol without a cap was not a deadly 
 weapon. Flournoy v. State, 16 Texas, 31. 
 
 292. Charging as to probabilities. When 
 the jury being unable to agree come into 
 court for further instructions, it is not error 
 for the judge to remark, that it is more 
 probable the recollection of a majority of 
 the jury is correct than that of the minority. 
 State V. Blackwell, 9 Ala. 79. 
 
 293. But it is not proj)er to charge the 
 jury that upon the doctrine of chances, it is 
 more probable that the defendants are guilty 
 than that they are innocent, even if the 
 probabilities are as one million, or any in- 
 definite number, in favor of their guilt to 
 one in favor of their innocence. Lyons v. 
 People, 68111. 371. 
 
 294. Presenting to jury considerations 
 of public policy. The following instruction 
 on a trial for murder, was held erroneous : 
 That " cases of murder were fearfully 
 numerous; that a conviction on a charge of 
 murder, had ceased to be a cause of excite- 
 ment, and had become a common aflair of 
 almost daily occurrence ; that confinement 
 in the State penitentiary for life was no 
 adequate jjunishment for the crime of mur- 
 der, and that juries had no right to qualify 
 their verdict unless there were mitigating 
 circumstances; that convicts in the peni- 
 tentiary seldom served out their term when 
 confined there for life ; that a late governor 
 had pardoned almost every body, and that 
 convicts were always in the hope that after 
 a few years they would appeal to a clement 
 executive, and that nothing but capital 
 
 punishment would put a stop to the practice 
 now common of man and woman killing ; 
 that he the judge, had been told by prisoners 
 in the penitentiary, that they hoped in a 
 short time to get out." State v. Melvin, 11 
 La. An, 535. 
 
 295. On a trial for murder, under a statute 
 permitting the jury to qualify their verdict 
 by adding thereto "without capital punish- 
 ment," the following instruction was held 
 erroneous: "Murder is of very frequent 
 occurrence in this community, and when a 
 jury has a case of murder which is clearly 
 made out, the court believes it necessary for 
 a jury to bring in an unqualified verdict, in 
 order to deter others from crime." State v. 
 Shields, 11 La. An. 395. 
 
 296. Where, on a trial for grand larceny, 
 the prisoner not having put his character 
 in issue, there was no evidence tending to 
 show that he had committed other crimes, 
 the following instruction was held erro- 
 neous : '' It is but wise and judicious that 
 you should inquire what manner of criminal 
 he is. Is he young in crime as he is in 
 years ? Has he been seduced, and led into 
 this crime ? Or is he young in years and 
 old in crime — well versed in all the cunning 
 and shrewdness of an old criminal ? "If so, 
 you owe a duty to society to remove from 
 its midst a dangerous criminal." Barker v. 
 State, 48 Ind. 163. 
 
 297. Charging as to punishment. The 
 following charge to the jury, on a trial for 
 robbery, was held no ground for a new trial : 
 "A crime of this kind is generally perpe- 
 trated at night ; but this was in broad day- 
 light, at half-past ten o'clock, in one of our 
 public thoroughfares; a child taken into an 
 alley, knocked down, and robbed. If the 
 prisoners are guilty, they deserve a severity 
 of pmiishment greater than any imposed at 
 this term on any person tried. There is 
 some excuse at night when an attack of that 
 kind is made, but it is a much graver of- 
 fense, and requires graver consideration, 
 where they are so desperate as to make it 
 in broad daylight." McGrory v. People, 48 
 Barb. 466. 
 
 298. Whei'e, on a trial for murder, the 
 judge, after telling the jury that the gov-
 
 TRIAL. 
 
 017 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 ernor of New York had not issued any 
 warrant of execution under the law of 18G0, 
 and that the Court of Aj)peals had advised 
 that it was inexpedient, instructed them 
 that "they had. nothing to do with the 
 question of punishment which followed their 
 verdict of conviction of murder ; that that 
 belonged to the law, and not to them, to 
 decide," it was held there was no error. 
 Done V. People, 5 Parker, 364. 
 
 299. Referring jury to their personal 
 experience. It is not erroneous to charge 
 the jury that in arriving at a correct vei'- 
 dict, they may consult their general knowl- 
 edge and experience. Roseubaum v. State, 
 33 Ala. 854. But it is not proper to charge 
 them that they may rely upon their ex- 
 perience as proof. On a trial for keeping 
 intoxicating liquors for illegal sale, it ap- 
 peared that the complaint and warrant al- 
 leged that the liquors were kept and de- 
 posited in a certain south store, and the 
 evidence tended to show they were found 
 by the ofBcer serving the warrant in the 
 second story of the building. The judge 
 charged the juiy that they must be satisfied 
 beyond a reasonable doubt that said second 
 story was a part of said south store, and 
 that they would judge from the evidence in 
 the case, with their knowledge or experience 
 as practical men, as to how rooms or stores 
 on the ground floor, and rooms above in the 
 second story are generally used by mer- 
 chants — whether said second story was, in 
 point of fact, a part of said south store. 
 Held, that as the instruction might be con- 
 strued as authorizing the jury to act on their 
 own knowledge or experience as evidence, 
 it was erroneous. State v. Bartlett, 47 
 Maine, 388. 
 
 300. Calling attention to character of 
 wound. On a trial for mayhem of a slave, 
 it was proved that the defendant shot the 
 slave in the leg, rendering its amputation 
 necessary, and that the shot seemed to go 
 together, making a continuous wound. The 
 court charged the jury that as there was no 
 proof of the distance between the prisoner 
 and the slave when the wound was inflicted, 
 they miglit look to the character of the 
 wound, for the purpose of determining 
 
 whether the prisoner fired the gun with the 
 view of striking and disabling the leg. Esk- 
 ridge v. State, 2-5 Ala. 30. 
 
 301. Charging erroneous legal proposi- 
 tions. Where the court charged the jury 
 that the words " knowingly and willfully " 
 were the equivalents of "purposely and 
 maliciously," and that if the defendant 
 shot H. knowingly and willfully, with the 
 intent and design to kill him, he was no^ 
 only guilty of an assault and battery, but of 
 an intent to murder, it was held error, as it 
 excluded the idea that one may knowingly 
 and willfully kill another in self-defense. 
 Long V. State, 46 Ind. 582. 
 
 302. An instruction on a trial for ri^pe 
 which characterizes a statement made by 
 the defendant the next morning after the 
 occurrence, that he had sexual intercourse 
 with the prosecutrix the night before, as a 
 confession, is erroneous. Hogan v. State, 
 46 Miss. 274. 
 
 303. Where the court charged the jury 
 that contradictory statements in dying dec- 
 larations were not governed by the same 
 rules of evidence as similar statements made 
 by a witness in court, it was held error. 
 McPherson v. State, 9 Yerg. 279. 
 
 304. Where the court charged the jury 
 that a man who takes property, claiming it 
 for himself or another, commits no lar- 
 ceny, it was held that the instruction was 
 inaccurate, a mere false claim of property 
 not being sufficient to negative the criminal 
 intent. State v. Ware, 10 Ala. 814. 
 
 305. A charge of the court which may be 
 divided into two propositions not neces- 
 sarily connected, either of which, when so 
 separated, is applicable to the evidence, is 
 erroneous. Martin v. State, 47 Ala. 504. 
 
 306. Where charge, though erroneous, 
 can do no harm. Where, on a trial for 
 rape on a child less than ten years old, the 
 court ruled that the jury were not at liberty 
 to find the prisoner guilty of assault and 
 battery, it was held that whether this ruling 
 was correct or not, as it merely precluded 
 the State from holding him for the minor, if 
 it failed to establish against him the major 
 offense, it was not a ground of exception. 
 State V. Black, 63 Maine, 210.
 
 618 
 
 TRIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 307. Charging as to presumptions. The 
 
 followiug instruction Avas held erroneous : 
 " If j-ou believe from the evidence that the 
 defendant and J. S. were together the day 
 before the larcenj^ was committed, and kept 
 together up to eight o'clock the night the 
 horses were stolen, you have a right to infer 
 the larceny was committed by them jointly." 
 Hall V. State, 8 Ind. 439. 
 
 308. It is erroneous to charge the juiy on 
 a trial for receiving stolen goods, that the 
 discovery of the goods in possession of the 
 defendant shortly after they were missed, 
 and his denial that he had them, is presump- 
 tive evidence that he received them know- 
 ing them to have been stolen. Sartorius v. 
 State, 24 Miss. 602. 
 
 309. It is erroneous for the court to charge 
 the jury that if the prisoner has omitted to 
 avail himself of evidence within his reach, 
 which might have explained that which was 
 against him, it is a presumption that the 
 charge is well founded. Doty v. State, 7 
 Blackf. 427. 
 
 310. Where an instraction proceeds upon 
 the supposition that there were other facts 
 in the case exculpatory in their character, 
 and then states that the jury may regard the 
 failure of the defendant to prove such facts 
 as evidence of guilt, it is error. Clem v. 
 State, 43 Ind. 420. 
 
 311. The following instruction was held 
 erroneous, in being too broad, in not having 
 added to it the words " unless corrobora- 
 ted:" " If the jury believe, from the evi- 
 dence, that the defendant, or any other wit- 
 ness, has intentionally sworn falsely as to one 
 matter, the jury may properly reject his 
 whole statements as unworthy of belief." 
 Peak V. People, 76 111. 289. 
 
 312. On the trial of an information for an 
 aggravated assault, an instruction that if the 
 authorities who were concerned in a former 
 prosecution for the same offense got it up 
 imder the belief that a bench warrant had 
 been issued for the arrest and trial of the de- 
 fendants for the same offense for the purpose 
 of screening them from punishment, the pro- 
 ceedings were fraudulent and void ; was held 
 •erroneous, it not being intimated that there 
 was any privity between the public authori- 
 
 ties and the defendants, or any fraud on the 
 part of the latter. State v. Reed, 26 Conn.202. 
 
 313. Instruction as to eflfect of proof of 
 good charactsr. It is error to charge the 
 jury that where the question is one of great 
 and atrocious criminality, evidence of good 
 character and of a man's habitual conduct 
 under common circumstances, must be con- 
 sidered far inferior to what it is in accusa- 
 tions of a lower grade. The attending cir- 
 cumstances must determine the degree of 
 force which evidence of good character 
 should have ; and it is not, in ordinary cases, 
 affected by the grade of the offense. Can- 
 cemi V. People, 16 N. Y. 501. 
 
 314. Instruction based on insufficient 
 proof. It is erroneous to instruct the jury 
 to find the defendant guilty without deter- 
 mining whether the offense was committed 
 within the county in which the indictment 
 was found, and within the period of time 
 covered l)y the indictment. Farrall v. State, 
 32 Ala. 557. 
 
 315. Where the evidence as set forth in the 
 bill of exceptions did not show that the 
 venue was proved, it was held that an in- 
 struction that if the jury believed the evi- 
 dence, they must find the defendant guilty, 
 was erroneous. Brown v. State, 27 Ala. 47 ; 
 approved, Huffman v. State, 28 Ala. 48; 
 Spaight V. State, 29 lb. 32. 
 
 316. Misleading jury. Where the evi- 
 dence against the accused is wholly circum- 
 stantial, charging the jury that "they are 
 bound to acquit the defendant if there is a 
 single hnk wanting in the chain of evi- 
 dence," is calculated to confuse or mislead 
 the jury, and for that reason should be re- 
 fused. Tompkins v. State, 32 Ala. 569. 
 
 317. On a trial for murder, the following 
 instruction was held improper, as calculated 
 to mislead the jury, and induce them to be- 
 lieve that the facts and circumstances point- 
 ing to the defendant's guilt had been proved : 
 " It matters not, that the evidence is circum- 
 stantial, or made up from facts and circum- 
 stances, provided the jury believe such facts 
 and circumstances pointing to the defend- 
 ant's guilt to have been proved beyond a 
 reasonable doubt."' Otmer v. People, 76 111. 
 149.
 
 TRIAL. 
 
 C19 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 318. Charging as to reasonable doubt. 
 It is not erroneous for the court to charge 
 the jury that a reasonable doubt " is a doubt 
 which a reasonable man of sound judgment, 
 ■without bias, prejudice, or interest, after 
 calmly, conscientiously, and deliberately 
 •weighing all the testimony, would entertain 
 as to the guilt of the prisoner." State v. 
 Reed, 62 Maine, 129. 
 
 319. It is erroneous to charge the jury 
 that a reasonable doubt must be founded on 
 irreconcilable evidence. Mackey v. Peo- 
 ple, 2 Col. 13. 
 
 320. It is erroneous to charge the jury 
 on a trial for murder, that to warrant them 
 in finding a verdict of guilty, there must be 
 that degree of certainty in the case, that 
 they would act on it in their own grave and 
 important concerns. Jane v. Com. 2 Mete. 
 Ky. 30. 
 
 321. It is improper to charge the jury that 
 unless they believe from the evidence to a 
 moral certainty that the defendant is guilty, 
 they cannot convict him. McAlpine v. State, 
 47 Ala. 78. 
 
 322. Referring question of law to jury. 
 Instructing the jury that "if the prisoner's 
 confessions were extorted from him by any 
 soil of fear or hope of favor, they must dis- 
 regard such confessions," refers to the jury a 
 question of law, and is improper. Bob v. 
 State, 32 Ala 560. 
 
 323. Requiring the jury to receive the 
 law from the court. In a case where the 
 jury are judges of 'the law as well as the 
 fact, it is not erroneous for the court to 
 charge them that the safer and better way 
 in ordinary criminal cases is to take the law 
 from the court, and that they are always 
 justified in doing so. State v. McDonnell, 
 32 Vt. 491. 
 
 324. Where the jury were charged that 
 although they were the judges of the law, 
 yet it was their duty to believe it as laid 
 down by the court, it was held proper. 
 Carter v. State, 2 Carter, 617. 
 
 325. The jury were instructed that it was 
 their duty to apply the law as given by the 
 court to the facts of the case, -that they 
 might determine the law for themselves, but 
 that they ought to be well satisfied in their 
 
 own minds of the incorrectness of the law as 
 given by the court before assuming the re- 
 sponsibility of determining it for themselves. 
 Held error, as the jury might be compelled 
 to bring in a verdict not in accoi'd with 
 their own judgment of the law. Clem v. 
 State, 31 Ind. 480. 
 
 326. Charging as to the degree of guilt. 
 
 An instruction that the defendant and an- 
 other person "might both be guilty of this 
 murder," is erroneous, as it intimates that 
 the offense is murder, which is a question 
 of fact for the jury. Home v. State, 1 Kan- 
 sas, 42. 
 
 327. A judge concluded his charge to the 
 jury as follows: "I would not be satisfied 
 with a verdict of murder in the first degree, 
 nor would I be satisfied with anything less 
 than a verdict of murder in the second de- 
 gree. If I were on the jury, I would bring- 
 in a verdict of murder in the second degree." 
 Held a usurpation of the province of the jury. 
 Warren v. State, 4 Cold. Teun. 130. 
 
 328. The following charge was held er- 
 roneous in taking from the jury their right to 
 decide for themselves : "The life or death of 
 this man is in your hands. There is no middle 
 course. He must be convicted of murder of 
 the first degree or acquitted of everything. 
 If your verdict is guilty of murder, you 
 must state of the first degree. If not guilty, 
 you say so and no more." Lane v. Com. 59 
 Penn. St. 371. 
 
 329. The judge, when asked by the defense 
 to charge the jury as to the form of the ver- 
 dict, in a case in which there is any doubt 
 as to the guilt or grade of guilt, should not 
 say in the hearing of the jury : " I can't con- 
 ceive how the jury could find such a verdict 
 upon such a state of facts, but if they re- 
 quest it I will instruct them." Stephens v. 
 State, 47 Ala. 696. 
 
 330. Judge improperly commenting on 
 evidence. In Missouri, it is error for the 
 court to comment on the evidence, unless 
 asked to do so by both parties. State v. 
 Dunn, 18 Mo. 419. 
 
 331. In Tennessee, where the court charged 
 the jury in respect to matters of fact in a 
 criminal case, it was held to be a breach of
 
 020 
 
 TKIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 the prisoner's constitutional rights. Clayton 
 V. State, 2 Humph. 181. 
 
 332. Judge assuming the proof of facts. 
 A charge which assumes a fact to be proved 
 without referring it to the jury is erroneous. 
 Thompson v. State, 47 Ala. 37. 
 
 333. Where the judge not only charged 
 the jury as to the law of the case, but ex- 
 pressed his opinion in regard to the facts, so 
 that there was nothing left for the solution 
 of the jury, it was held error. State v. 
 Green, 5 Rich. N. S. 65. 
 
 334. A charge that the jury must find the 
 defendant guilty, when the evidence consists 
 of the testimony of a single witness, is er- 
 roneous. Huffman v. State, 29 Ala. 40. 
 
 335. Where the evidence is circumstantial 
 and not inconsistent with the innocence of 
 the accused, it is error to charge the jury 
 that it is their duty to convict. Breen v. 
 People, 4 Parker, 380. 
 
 336. It is erroneous to charge the jury 
 that " the guilt of the defendant rests upon 
 what is known as circumstantial evidence," 
 thereljy assuming the defendant's guilt. 
 State V. Duffy, 6 Nev. 138. 
 
 337. It is error in the court to tell the jury 
 that the evidence on the part of the prosecu- 
 tion is sufficient to convict, and that on the 
 part of the defense insufficient to entitle the 
 accused to an acquittal. Benedict v. State, 
 14 Wis. 423. 
 
 338. When the evidence is conflicting, a 
 charge based upon the State's evidence, and 
 indicating that the jury may look to it alone 
 in passing on the guilt or innocence of the 
 defendant, is improper. Dill v. State, 25 
 Ala. 15 ; Williams v. State, 47 lb. 659. 
 
 339. It is error in the court to charge the 
 jury that the evidence of an accomplice is 
 corroborated, that being a question for the 
 jury. Nolan v. State, 19 Ohio, 131. 
 
 340. An instruction is erroneous which as- 
 sumes that confessions been proved to have 
 been made by the defendant, thereby with- 
 drawing from the jury the duty of determin- 
 ing whether any confessions had in fact been 
 made by him. Cunningham v. Com. 9 Bush, 
 Ky. 149. 
 
 341. Where on the trial of an indictment 
 for defacing and marking a school-house, the 
 
 court charged that the prosecution had 
 proved all that was necessary with reference 
 to the school district, it was held error. 
 Houston V. State, 4 Greene, 437. 
 
 342. Where on a trial for rape the judge 
 expressed indignation that persons within 
 hearing did not rush to the rescue of the 
 woman, and his wish for an opportunity to 
 punish them for their cowardice, it was held 
 that as he thereby intimated his opinion that 
 the violence was committed, the prisoner 
 was entitled to a new trial. State v. Brown, 
 67 N. C. 435. 
 
 343. On a trial for murder, the judge 
 charged the jury that " in order to make a 
 killing under such circumstances as have 
 been proved, justifiable homicide, it must 
 appear that the party killing had retreated 
 as far as he safely could at the time, and in 
 good faith declined further contest, and was 
 compelled to kill his adversary in order to 
 save himself from death or great bodily 
 harm, which to a reasonable man would 
 appear imminent." Held that as it assumed 
 the proof of material facts, it was errone- 
 ous. State V. Kennedy, 7 Xev. 374. 
 
 344. Court improperly determining 
 weight of evidence. When the evidence 
 is conflicting, an instruction that if the jury 
 believe the evidence, they must find the de- 
 fendant guilty, is erroneous. Arnold v. 
 State, 29 Ala. 46. 
 
 345. It is error in the court to single out 
 one of several witnesses, and charge the jury 
 that if they believe him, the homicide set 
 forth in the indictment is mmxier. And it 
 is error to compliment a w'itness. Pound v. 
 State, 43 Ga. 88. 
 
 346. Where, on a trial for murder, the 
 judge charged the jury that if they believed 
 from all the evidence, that the defendant 
 had knowingly sworn falsely in regard to 
 any material point in the case, they ought 
 to disregard his testimony on all material 
 points, excepting so far as he was corrobo- 
 rated by other evidence in the case, it was 
 held error, in usurping the province of the 
 jury in determining the effect of the evi- 
 dence. Otmer v. People, 76 111. 149. 
 
 347. Where the judge charged the jury 
 that evidence of the good character of the
 
 TRIAL. 
 
 G21 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 prisoner should have great weight in deter- 
 mining as to his guilt or innocence, "if the 
 jury believed there was any doubt as to his 
 guilt," it was held error, the qualification 
 amounting to a declaration by the judge, 
 that there was no doubt of the prisoner's 
 guilt. Jupitz V. People, 34 111. 516. 
 
 348. The following instruction was held 
 erroneous, as assuming that the defendants 
 made an assault with intent to murder: 
 " If the jury believe from the evidence that 
 A. and B. were together, and acted in con- 
 cert at the time the assault to murder was 
 made, they should find them equally guilty." 
 Bond V. People, 39 111. 2G. 
 
 349. On a trial for an assault with intent 
 to commit a rape, two witnesses testified 
 that the defendant upon being asked previ- 
 ous to the occurrence if the prosecutrix was 
 an unchaste woman, said that he did not 
 know, " but he was goiijg over to tiy her, 
 and if it was all right, he would tell them." 
 The defendant asked the court to charge the 
 jury that if he used this language " in rant, 
 fun, jest or badinage, the jury ought to dis- 
 regard it as a circumstance tending to show 
 his guilt." The court refused to give the 
 instruction as asked, but gave it with the 
 following addition after the word " guilt : " 
 " but may be considered by the jury as 
 evidence tending to show that the thought 
 of criminal intercourse with the prosecuting 
 witness was in the defendant's mind." Held 
 that the words " criminal intercourse " in 
 the instruction, were improper, and ground 
 for a new trial. State v. Warner, 25 Iowa, 
 200. 
 
 350. An instruction that the evidence 
 points to the existence of the acts and intent 
 as charged in the indictment, beyond a rea- 
 sonable doubt, is tantamount to a charge 
 that it establishes the crime beyond a rea- 
 sonable doubt, and a violation of the Con- 
 stitution of Nevada (art. 6, § 12), under 
 which the court has no right to charge the 
 jury as to the weight of evidence. State v. 
 McGinnis, 5 Nev. 337. See State v. Duffy, 
 6 Ilj. 138. 
 
 351. The provision of the Constitution of 
 California (art. G, § 17), that "judges shall 
 not charge juries with respect to matters of 
 
 fact, but may state the testimony and de- 
 clare the law," is violated whenever a judge 
 so instructs as to force the jury to a particu- 
 lar conclusion upon the whole or any part 
 of the case, or to take away their exclusive 
 right to weigh the evidence. This was held 
 to be the case where the court instructed 
 the jury that if the dying declarations of 
 the deceased were true, they should find the 
 defendant guilty ; the evidence connecting 
 the defendant with the offense, being mainly 
 circumstantial. People v. Ybarra, 17 Cal. 
 166. 
 
 352. An instruction on a trial for murder, 
 that the dying declarations of the deceased 
 with regard to the circumstances which pro- 
 duced his death, are to be received with the 
 same degree of credit as the testimony of 
 the deceased would be, if examined under 
 oath as a witness, is erroneous ; it being the 
 province of the jury to determine the weight 
 to be attached to them. State v. McCanon, 
 51 Mo. 160. 
 
 353. Ttie court charged the jury that 
 "the declarations of a dying man are 
 worthy of more credence under such cir- 
 cumstances than if made under the sanctity 
 of an oath duly administered according to 
 law." And after stating the rules as to the 
 admissibility of a dying declaration, the 
 court added : " If these facts appear from 
 the evidence, under the foregoing rules of 
 law, it becomes the highest testimony 
 known, and must receive full faith and 
 credit by the jury." Held erroneous; it 
 being the province of the jury alone to say 
 what credit shall be given to such a decla- 
 ration. Walker v. State, 37 Texas, 366. 
 
 354. After the jury on a trial for murder 
 had been out several hours, they returned 
 into court for further instructions. The 
 judge told them that if they believed the 
 witnesses, they should convict of man- 
 slaughter, but it was for them to say in 
 what degree. Ueld error ; it being a ques- 
 tion of fact for the jury as to whether man- 
 slaughter had been proved. Pfomer v. Peo- 
 ple, 4 Parker, 558. 
 
 355. It is error to charge that " to reduce 
 a homicide upon provocation, it is essential 
 that the fatal blow shall have been given
 
 G22 
 
 TRIAL. 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge, 
 
 immediately upon tlie provocation given ; 
 for if there be time sufficient for the passion 
 to subside, and the person provoked kill the 
 other, this will be murder, and not man- 
 slaughter." It should be left to the jury to 
 determine whether the passions had actually 
 been quieted. Ferguson v. State, 49 Ind. 
 33. 
 
 356. On a trial for murder, according to 
 prisoner's testimony the deceased had per- 
 sisted in following the prisoner from street 
 to street in the night, with thleats and 
 abusive language, and finally seized him by 
 the throat, choked him almost to suffoca- 
 tion, and refused to let go after being 
 warned. The judge charged that the hom- 
 icide was not justifiable even if the jury be- 
 lieved that the facts and circumstances at 
 the time and before the fatal shot were as 
 stated by the prisoner. Held error, as it 
 withdrew the question fi"om the jury. Bur- 
 dick V. People, 58 Barb. 51. 
 
 357. On the trial of a boy twelve years of 
 age for murder, the court charged as fol- 
 lows: "If the shooting took place under 
 circumstances showing that the defendant, 
 from his youth, was incapable of cool reflec- 
 tion; that his mind was agitated so as to 
 preclude the idea that he was aware of the 
 enormity of his rash act, and the serious 
 consequences thereof, then his crime is 
 manslaughter. Held erroneous in withdraw- 
 ing from the jury the question of responsi- 
 bility, excepting so far as it tended to reduce 
 murder to manslaughter. Held, further, that 
 that there was error in another jjart of the 
 charge which placed the responsibility of 
 the defendant on the fact that his capacity 
 was as good as that of boys generally of his 
 age, without proof that such boys had 
 sufficient discretion to understand the nature 
 of the act with wliich the defendant was 
 charged. Wusing v. State, 33 Texas, 651. 
 
 358. It is erroneous to charge the jury on 
 a trial for murder that if they believe that 
 the accused voluntarily confessed his agency 
 in the murder, they ought to find him 
 guilty, the jury being the judges, from all 
 the facts, as to w'hether the confession is 
 true. Butler v. Com. 2 Duvall, 435. 
 
 359. Where the issue is as to the sanitv of 
 
 the prisoner, it is erroneous to charge the 
 jury that they are to determine whether 
 the prisoner knew right from wrong, ajid if 
 he did, he is to be considered sane. Free- 
 man V. People, 4 Denio, 9. 
 
 360. The following charge of the judge 
 to the jury was held ground for a new trial: 
 "It is my opinion that you can infer from 
 the defendant's admission that the pistol 
 which he shot had a ball in it, inasmuch as 
 he undertook to point out the place where 
 the ball struck, whether that was the place 
 or not." Grant v. State, 45 Ga. 477. 
 
 361. An instruction on a trial for assault 
 and battery that a certain instrument is a 
 dangerous weapon, is erroneous, whether or 
 not it was such, being a question of fact for 
 the jury. Doering v. State, 49 Ind. 56. On 
 a trial for murder by stabbing, it was lield 
 that an instruction was erroneous which 
 assumed as pi'ovedthat the knife used was 
 a dangerous weapon, and that it was con- 
 cealed from the deceased. BeiTy v. Com. 
 10 Bush, 15. 
 
 362. An instruction, on the trial of an 
 information against a county treasurer for 
 embezzling public funds in the county 
 treasury, that when it has been proved that 
 the funds reached the hands of the officer, 
 and that the same were not forthcoming- 
 when demanded, the law presumes the il- 
 legal conversion of such funds, and the 
 burden of proving the contrary is on the 
 officer, is erroneous, for the reason that it 
 usurps the province of the jury, who are to 
 determine from the facts whether or not the 
 accused converted the funds to his own use. 
 State V. Smith, 13 Kansas, 274; State v, 
 Graham, Tb. 299. 
 
 363. An indictment for murder contained 
 but one count, which alleged that the kill, 
 ing was effected by shooting the deceased 
 with a pistol in the head. The j^roof tended 
 to show that the plaintiff in error fired the 
 pistol two or three times at the deceased, 
 inflicting thereby two wounds, one upon the 
 head and one upon thebody,eitlier of which 
 would have been mortal, but failed to show 
 which was first inflicted, or which actually 
 caused the death. It was held no error in 
 the refusal of the judge to charge the jury
 
 TKIAL. 
 
 623 
 
 Proceedings in the Conduct of the Case. 
 
 Charge of Judge. 
 
 that if the proof failed to show -which 
 wound it was that actually caused the death, 
 the case was not made out according to the 
 indictment. Real v. People, 43 N. Y. 270. 
 
 364. Charging as to character of evi- 
 dence. The court charged the jury that 
 " an alibi is a species of defense often set up 
 in criminal cases, and one which seems to 
 figure somewhat in this." Held error, the 
 language used being calculated to convey to 
 the minds of the jury the impression that 
 the court regarded that particular defense 
 as a pretense. Walker v. State, 37 Texas, 
 3G6. 
 
 365. In Massachusetts, the judge in charg- 
 ing the jury told them that in many of the 
 cases which had been tried at that term of 
 court, " policemen had been the principal 
 witnesses, and he thought the jury would 
 agree with him in the opinion that in all 
 these cases they had manifested great intel- 
 ligence, and testified with apparent candor 
 and impartiality." Held a violation of the 
 statute (Genl. Stats, ch. 115, § 5), and that 
 the verdict must be set aside. Com. v. 
 Barry, 9 Allen, 276. 
 
 366. It is proper for the court to caution 
 the jury to take care that no pretended case 
 of insanity be iiermitted to shield the de- 
 fendant from the ordinary consequences of 
 his act. People v. Bumberger, 45 Cal. 650. 
 
 367. Judge qualifying his remarks as 
 to character of evidence. The court, in 
 charging the jury, spoke of certain things 
 relied on for the defense as " little matters " 
 (as had also been done by the prisoner's 
 counsel in his argument to the jury). But 
 the judge added that in using the expres- 
 sion ''it was far from the intention of the 
 court to characterize them as small or 
 insufficient, or to indicate in what light they 
 were to be considered and weighed by the 
 jury." Held no ground for reversal of the 
 judgment, llosenbaum v. State, 33 Ala. 
 354. 
 
 368. On a trial for forging a check on a 
 bank, the recorder charged the jury in 
 
 'substance that the evidence of the prisoner's 
 guilt was irresistible to his mind, laying out 
 of view the evidence of the prisoner in his 
 own behalf, but that his opinion had notli- 
 
 ing to do with their deliberations, and they 
 must judge for themselves, irrespective of 
 his opinion. Held, that although it would 
 have been better for the recorder to have 
 omitted the expression of an opinion, yet, 
 that the whole subject was so submitted, the 
 jury must have decided the case indepen- 
 dently. Watson V. People, 64 Barb. 130. 
 
 369. Calling attention of jury to con- 
 tradiction in testimony. Improbabilities 
 in the testimony of witnesses, or their con- 
 tradictory statements, are matters for the 
 jury to consider, and it is improper for the 
 court to comment upon them. State v. 
 Breeden, 58 Mo. 507. 
 
 370. But when a witness has sworu 
 differently upon the same point on a former 
 occasion, his testimony shoiild be left to the 
 jury, under such prudential instructions as 
 may be given by the court. Where the court 
 called the attention of the jury to the self- 
 contradiction of the principal witness, and 
 said that it was a strong circumstance 
 tending to discredit her testimony on that 
 trial, but that the amount of credit due to 
 that testimony was a question for them to 
 determine, adding, that if a reasonable 
 doubt arose in their minds, it was their duty 
 to acquit, it was held that the charge was 
 right. Dunn v. People, 29 N. Y. 523. 
 
 371. Charging as to construction of evi- 
 dence. Where a physician testified that he 
 made a professional examination of a wound 
 in the prosecutor's hand, but did not " ex- 
 amine " another wound in his side, it was 
 held that an instruction, that the jury might 
 consider "whether the witness, in saying 
 that he did not examiiie the wound in the 
 side, meant that he did not examine it as a 
 physician, or that he did not see or look at 
 it at all," was not 'erroneous. Rosenbaum 
 V. State, 33 Ala. 354. 
 
 372. Instruction as to conclusiveness of 
 proof. Where the proof is wholly positive, 
 is not error in the court to charge the jury 
 that if they believe the witnesses, it is their 
 duty to find a verdict of guilty. Duffy v. 
 People, 5 Parker, 821 ; affi'd 26 N. Y. 588. 
 
 273. It is the duty of the court to state 
 the legal effect of a record which is offered 
 to sustain the plea of autrefois acquit or
 
 €24 
 
 TKIAL. 
 
 Conduct of the Case. 
 
 Charge of Judge. 
 
 Subsequent Proceedings. 
 
 discontinuance, and the record itself cannot 
 l)e impugned hj parol evidence; and the 
 court may instruct the jury that the pleas 
 are not sustained by the proof, if it is the 
 fact. Martha v. State, 26 Ala. 72. 
 
 374. Charging jury how to interpret 
 instructions. It is error to instruct the 
 jury that if they find that there is a conflict 
 between the special instructions asked for 
 by the defendant and given, and the main 
 charge,- the latter must prevail. If such a 
 conflict exist, the court should either with- 
 draw that portion of the main charge which 
 conflicts with the special charge asked or 
 refuse the special charge. Spivey v. State, 
 26 Ala. 00. 
 
 375. Charging jury as to their duty. 
 The following instruction on a trial for 
 murder, was held erroneous : " Do simply 
 that duty which naturally presents itself as 
 you act under your oath, and the law and 
 the testimony before you, and you cannot 
 greatly err, whatever your verdict." State v. 
 Ah Tong, 7 Nev. 148. 
 
 376. It is erroneous for the court to charge 
 the jury that it is their duty to find an un- 
 qualified verdict, if the case is clear ; for the 
 reason that if the case is not clear they can- 
 not find any verdict against the prisoner. 
 State V. Obregon, 10 La. An. 799. 
 
 377. It is error to charge the jury that if 
 any one or more of them diflered from the 
 majority, as to the guilt or innocence of the 
 prisoner, they might properly waive their 
 convictions and agree with the majority, 
 but were not obliged to do so. Swallow v. 
 State, 20 Ala. 30. 
 
 378. Correction of charge. An erroneous 
 instruction is not cured by a correct instruc- 
 tion on the same point. Mackey v. People, 
 2 Col. 13. Where however, the judge in his 
 charge to the jury lays down erroneous prop- 
 ositions, but afterward, upon his attention 
 being called to them, lays down the correct 
 rule, no error is presented for review. Eggler 
 V. People, 56 N. Y. 043. On a trial for 
 murder, the judge in the course of his charge 
 twice alluded to the fact that the accused 
 was not sworn as a witness in his own be- 
 half — once in connection with the question 
 of identity, and the narration of the in- 
 
 cidents of the homicide, and again, in con- 
 nection with the circumstances claimed to 
 be suspicious. The judge afterward told 
 the jury that the prisoner was not bound to 
 be sworn, and that the prosecution must 
 make out their case; but he did not say 
 that the prisoner's omission to be a witness 
 should not create any presumption against 
 him. The judge however, upon his attention 
 being called to his previous remarks, told 
 the jury that there was no law requiring 
 the prisoner to be sworn, and that no infer- 
 ence was to be drawn against him from the 
 fact of his not being sworn. Held that the 
 error was cured by the subsequent explana- 
 tion. Kuloft" v. People, 45 N. Y. 213. 
 
 379. An erroneous instruction cannot be 
 corrected by another instruction which 
 states the law accurately, unless the erro- 
 neous instruction be thereby plainly with- 
 drawn from the jury. Bradley v. State, 31 
 Ind. 492; Kingen v. State, 45 lb. 519. See 
 Clarke v. State, 53 lb. 67. 
 
 380. Waiver of objection to charge. 
 When the prisoner asks the court to charge 
 the jury upon a point of law, he cannot after- 
 ward object to the court's charging them 
 on that point, although the instruction is 
 unfavorable to him. State v. Madison, 33 
 Maine, 267. 
 
 381. Presumption in favor of charge. 
 When an affirmative instruction is given 
 which states a correct abstract proposition 
 of law, it will be presumed on error or 
 appeal, to have been justified by the proof, 
 unless the evidence is set out in the bill of 
 of exceptions. Morris v. State, 25 Ala. 57. 
 
 382. Time of excepting to charge. Ex- 
 ceptions to the judge's charge must betaken 
 at the close of the charge, and before the 
 jury retire. State v. Clark, 37 Vt. 471. 
 
 5. Proceedings subsequent to submitting 
 CASE TO jury. 
 
 383. Jury in retiring to deliberate tak- 
 ing with them, or sending for, books. As 
 
 a rule, the jury should not be permitted to 
 take with them a law book when they retire, 
 but they may be permitted to do so when 
 the paragraph applying to tlie case is sepa-
 
 TKIAL. 
 
 625 
 
 Proceedings Subsequent to Submitting Case to Jury. 
 
 rately marked out, as in the case of a statute. 
 Hardy v. State, 7 Mo. 607. 
 
 384. Where the judge declined to allow 
 the jury to take with them to their room 
 the Revised Statutes, and the requests for in- 
 structions by the defendant (such requested 
 instructions not having been given any fur- 
 ther than the same were embraced in the 
 general charge), it was held j^roper. State 
 v.. Kimball, 50 Maine, 409. 
 
 385. Where after the conviction of the 
 defendant on the trial of an indictment for 
 the violation of a statute, it appeared that 
 the jury after retiring to deliberate procured 
 through an oflicer in attendance upon them 
 a copy of the Revised Statutes, without the 
 knowledge or consent of the court or coun- 
 sel, or of the defendant, it was held ground 
 for a new trial. State v. Smith, G R. I. 33. 
 
 386. After the jury had retired to deliber- 
 ate on their verdict, they applied to the 
 officer in charge of them to furnish them 
 with several directories of the city of New 
 York, which he did. The circumstance 
 being made known to the court, the jury 
 were recalled and directed by the court to 
 retire to their room and banish from their 
 minds any information they might have ob- 
 tained from the books, and to disregard 
 such information in arriving at their verdict. 
 Held that the irregularity was not ground 
 for a new trial. U. S. v. Horn, 5 Blatch. 
 102. 
 
 387. Jury taking out with them documen- 
 tary and other evidence. The jury should 
 not be permitted to take with them any por- 
 tion of the written evidence when they retire 
 to deliberate, unless the whole of it is given 
 to them. Rainforth v. People, 61 111. 365. 
 
 388. Where the jury when they retire to 
 deliberate improperly take out with them a 
 j^aper, it will not be ground for a new trial 
 unless it appear that they were thereby im- 
 properly influenced. State v. Bradley, G 
 La An. 554. 
 
 389. The fact that the jury on a trial for 
 assault and battery took with them when 
 they retired to deliberate on their verdict 
 the papers in the case, held not a ground 
 for the reversal of the judgment, when it 
 was not shown that any of the jurors ex- 
 
 40 
 
 amined the papers, or that the defendant 
 was thereby prejudiced. State v. Gibson, 
 29 Iowa, 295. 
 
 390. It is not error to permit the jury on 
 a trial for murder, after their return into 
 into court for further instructions, to take 
 out with them, at their own request, papers 
 which had been proved and commented on 
 at the trial. Udderzook v. Com. 76 Penn. 
 St. 340. 
 
 391. Where on a trial for murder, a dia- 
 gram of the relative situation and distances 
 from each other of several places near the 
 scene of the homicide was introduced, it 
 was held not improper for the court to per- 
 mit the jury to take it with them in their 
 retirement. Campbell v. State, 23 Ala. 44. 
 
 392. On the trial of an indictment which 
 charged several with feloniously taking an 
 iron safe belonging to an express company 
 from the cars of the New York and New 
 Haven Railroad Company, with bank bills 
 and other valuables contained in it, the 
 prosecution produced a dark wooden box 
 made to resemble the safe, with counterfeit 
 bank bills concealed in it, and claimed to 
 have been used in the perpetration of the 
 theft. After the judge had charged the 
 jury, this box was by his order delivered to 
 them, and taken by them to their room 
 when they retired to deliberate. Held prop- 
 er. State V. Stebbins, 29 Conn. 463. 
 
 393. Where the judge allowed the jury to 
 take to their room a bottle of liquor which 
 was introduced in evidence, not as the 
 liquor seized, but as manufactured and sold 
 by the same person under the same name 
 coupled with the instruction not to consider 
 the qualities of such liquor, unless they 
 should find from the evidence in the case 
 that it was the same kind as that seized, it 
 was held not improper. State v. McCatferty, 
 63 Maine, 223. 
 
 394. Jury taking out with them or send- 
 ing for proof which was not given on the 
 trial. After conviction of murder, it ap- 
 peared that while the jury were deliberating 
 on their verdict, the testimony which was 
 given on the coroner's inquest, and which 
 was not oflered in evidence on the trial, was 
 accidentally taken by the jury to their room.
 
 626 
 
 TRIAL. 
 
 Proceedings Subsequent to Submitting Case to Jury. 
 
 Held not a ground for a new trial. State v. 
 Tindall, 10 Eich. 213. 
 
 395. On a trial for murder, the prisoner 
 was defended upon the theory that the de- 
 ceased shot himself with a pistol. After the 
 jury had retired to deliberate, a pistol was 
 sent to them, without the knowledge of the 
 prisoner, his counsel or the court, as being 
 the same pistol with which the killing had 
 been done, though it had not been fully 
 identified as the one which was found near 
 the deceased, and which it had been proved 
 belonged to the prisoner. "With this pistol 
 the jury experimented, which resulted in 
 their finding a verdict of guilty, they having 
 been up to that time equally divided. Held 
 grouutl for a new trial. Yates v. People, 38 
 in. 527. 
 
 396. Jury procuring a copy of the in- 
 structions. Where, after the jury had re- 
 tired to deliberate, they sent for the judge's 
 charge, a copy of which was sent to them 
 with one word omitted, it was held error. 
 Holton V. State, 2 Fla. 476. 
 
 397. Officer in jury room. There is no 
 rule which prohil>its the constables sworn to 
 attend the jury, from being present with the 
 jury in the jury room during their deliber- 
 ation, though the practice is not to be com- 
 mended. People V. Hartung, 4 Parker, 256, 
 per Harris, J. 
 
 398. Judge communicating with jury 
 privately. After the jury have retired to 
 deliberate, the judge has no more right to 
 communicate with them than any other per- 
 son, except in open court, in the presence of, 
 or after due notice to the prosecuting attor- 
 ney, and the prisoner, or his counsel. Ho- 
 berg v. State, 3 Minn. 263. 
 
 399. In Vermont, it has been held that all 
 communications between judge and jury 
 after a case has been submitted, and while 
 the jury have it under consideration, must be 
 in open court ; and it is error for the court 
 to furnish them a copy of the statutes. 
 State V. Patterson, 45 Vt. 308. 
 
 400. In Ohio, it was held not imjjroper for 
 the judge on a trial for murder to send to the 
 jury at their request, the statutes of the 
 State with a reference to certain sections 
 
 which he had just previously read to them. 
 Gandolfo v. State, 11 Ohio, N. S. 114. 
 
 401. A written communication from the 
 court to the jury may be justified by the 
 consent of the prisoner's counsel that the 
 jury may ask instructions " respecting the 
 law, or any evidence given in court." State 
 V. Bullard, 16 New Hamp. 139. 
 
 402. Where the judge, through the bailiflf, 
 in the absence of the defendant and his 
 counsel during a recess of the court, with- 
 drew erroneous instructions which had been 
 submitted to the jury in writing, and taken 
 by them to their room, it was held improper. 
 Hall V. State, 8 Ind. 439. 
 
 403. Jury returning into court for in- 
 formation. It is not proper for the court to 
 permit any one of the jurors while they are 
 deliberating to leave the jury room and come 
 into court and hold a conversation with the 
 court; but the jury should be brought into 
 court in a body. Fisher v. People, 33 111. 
 283. ■ 
 
 404. The court has no right in the absence 
 of the prisoner, and without the consent of 
 his counsel, to call the jury to the court 
 room after they have retired to deliberate, 
 and read over to them the written testimony 
 as taken down by the court. Wade v. State, 
 13 Ga. 25. 
 
 405. Where the jury after retiring to de- 
 liberate, are called back into court to be fur- 
 ther instructed, the defendant is entitled to 
 the presence of his counsel, and if the in- 
 struction be given in the absence of such 
 counsel, it will be ground for a new trial. 
 Martin v. State, 51 Ga. 567. 
 
 406. Where after argument of counsel on 
 a trial for arson, and charge by the court, 
 the jury retired to deliberate, but subse- 
 quently came into court, and asked for 
 further instructions, which were given in the 
 absence of the defendant's counsel, the de- 
 fendant being present, it was held that the 
 eiTor was fatal. People v. Trim, 37 Cal. 
 374. 
 
 407. In Alabama, it was held that the fact 
 that the presiding judge left the bench while 
 the jury were deliberating on their verdict; 
 that the counsel engaged in the case left the 
 court room under an agreement that the clerk
 
 TRIAL. 
 
 627 
 
 Proceedings Subsequent to Submitting Case to Jury. 
 
 might receive the verdict of the jury ; and 
 that the court on tlie request of the jury for 
 further instructions, afterward gave them an 
 additional charge in the presence of the 
 prisoner, but in the absence of his counsel, 
 and without the knowledge or consent of 
 said counsel, was not a ground for the re- 
 versal of the judgment. Collins v. State, 33 
 Ala. 434. 
 
 408. When the jury, after retiring to de- 
 liberate, return into court and ask the judge 
 as to a fact, it is within the discretion of the 
 court to admit testimony respecting the 
 matter of such inquiry. Com. v. Ricketson, 
 5 Mete. 412. 
 
 409. On the trial of an indictment for re- 
 tailing intoxicating liquors, after the jury 
 had deliberated on their verdict four hours 
 and a half, they came into court and stated 
 that they could not understand alike the 
 testimony. The judge then sent for a wit- 
 ness and told the jury to examine him. 
 The witness thereupon repeated his testi- 
 mony as near as he could. The judge would 
 not allow counael to interrogate the witness, 
 ruling that it was for the jury alone to do 
 so. The counsel then became involved in a 
 dispute about the testimony of the witness, 
 whereupon the judge stated that the witness 
 had before sworn that it was within the year 
 that the liquor was sold, and that it was so 
 down on his minutes. Held that there was 
 no error. Herring v. State, 1 Iowa, 205. 
 
 410. Persons talking to jurors. Where 
 on the trial of an indictment for rape, the 
 jury while deliberating on their verdict, were 
 taken by the officer who had them in charge 
 to a hotel for dinner, and while there the pro- 
 prietor of the hotel told some of the jurors 
 to convict the defendant, it was held that as 
 this was a mere passing remark of the pro- 
 prietor of the hotej, it did not constitute 
 misconduct of the jury entitling the defend- 
 ant to a new trial. People v. Brannigan, 21 
 Cal. 337. 
 
 411. The fact that on a trial for murder 
 the oflScer having charge of the jury was 
 absent some minutes from the room in 
 which he had placed them, it not appearing 
 that they were allowed to separate; that 
 some person outside the jury room spoke to 
 
 a juror, and that some of the jurors spoke 
 to two persons outside, it not appearing 
 what was said, or that it had any reference 
 to the trial; and that after the jury had 
 agreed on their verdict, and were brought 
 into the court room, they were allowed to 
 remain there in the presence of other per- 
 sons while the officer went to the porch in 
 front of the court room, and waited some 
 minutes for the judge, it not appearing that 
 any communication was had with the jury 
 in the mean time, are not sufficient grounds 
 for a new trial. People v. Boggs, 20 Cal. 
 432. See People v. Symonds, 22 lb. 348. 
 
 412. Improper' separation of jury. 
 When the jury after retiring to deliberate, 
 separate without leave of the court, the 
 prisoner will be entitled to a new trial un- 
 less it be affirmatively shown by the prose- 
 cution that he was not thereby prejudiced. 
 People V. Brannigan, 21 Cal. 337 ; People v. 
 Symonds, supra. 
 
 413. In New York, where the jury sepa- 
 rated without being legally discharged, 
 after the cause was committed to them, and 
 before rendering or agreeing upon a verdict, 
 it was held that the court properly dis- 
 charged them. People v. Reagle, 60 Barb. 
 527. 
 
 414. Consent of parties to separation of 
 jury, when presumed. Where the court 
 directs the jury to bring in a sealed verdict, 
 and gives them permission to separate after 
 agreeing upon the same, the parties will be 
 deemed to have consented to such permis- 
 sion, if no objection be made. Friar v. 
 State, 3 How. Miss. 422. 
 
 415. Eight of court to discharge jury. 
 When the jury have deliberated so long 
 without finding a verdict as to preclude a 
 reasonable expectation that they will agree, 
 unless compelled to do so by famine or 
 exhaustion, they may be discharged, and the 
 prisoner be tried by another jury. People 
 V. Goodwin, 18 Johns. 187; People v. 01- 
 cott, 2 Johns. Cas. 301 ; U. S. v. Coolidge, 3 
 Gallison, 364; Com. v. Roby, 12 Pick. 496. 
 In all such cases, the facts upon which the 
 court exercised its discretion in discharging 
 the jury, should be spread upon the record; 
 otherwise a court of review w'ill pre-
 
 628 
 
 TRIAL. 
 
 Proceedings Subsequent to Submitting Case to Jury. 
 
 sume that the inferior court performed its 
 duty. State v. Waterhouse, 1 Mart. & Yerg. 
 278. 
 
 416. Courts have a discretionary power in 
 all cases, to discharge the jury after they 
 have deliberated so long without coming to 
 an agreement as to satisfy the court that 
 further attempts to agree will be unavailing. 
 Com. V. Townsend, 5 Allen, 216. 
 
 417. Where the jury, on a trial for mur- 
 der, had been kept together ^line days with- 
 out agreeing, and the health of one of the 
 jurors was suffering from confinement, while 
 the personal attendance of another juror 
 was required by the illness of his wife, and 
 the court discharged them, it was held 
 proper. Fell's Case, 9 Leigh, 613. 
 
 418. Where on a trial for grand larceny, 
 the jury were not able to agree up to the 
 last moment of the term of the court, it was 
 held that they might be discharged, and the 
 prisoner be remanded to jail for trial at the 
 next term. State v. Moor, Walker, 134. 
 And see State v. Brooks, 3 Humph. 70. 
 
 419. It has been held that in misde- 
 meanor, the court may discharge the jury 
 without the consent of the defendant. Peo- 
 ple V. Denton, 2 Johns. Cas. 275 ; State v. 
 Morrison, 3 Dev. & Batt. 115; Dye v. Com. 
 7 Graft. 663 ; State v. Weaver, 13 Ired. 203; 
 People V. Ellis, 15 Wend. 371. 
 
 420. Improper discharge of jury. 
 Where a person has been given in charge, 
 on a legal indictment, to a regular jury, and 
 that jury unnecessarily discharged, he has 
 been once put in jeopardy, and the dis- 
 charge is equivalent to a verdict of acquit- 
 tal. Wright V. State, 5 Ind. 290; Miller v. 
 State, 8 lb. 325; State v. Wamire, 16 lb. 
 357 ; State v. Callendine, 8 Iowa, 288. 
 
 421. In Ohio, it has been held that where 
 the jury is discharged without the consent 
 of the defendant, unless the record shows 
 the necessity for such discharge, the defend- 
 ant will be exonerated from liability to fur- 
 ther answer to the indictment. Hines v. 
 State, 24 Ohio, N. S. 134. 
 
 422. The fact that the jury after twelve 
 hours' consultation, report that they cannot 
 agree, does not constitute such a necessity 
 as justifies their discharge. Miller v. State, 
 
 snpra. See Reese v. State, 8 Ind. 416 ; State- 
 V. Walker, 26 lb. 846. 
 
 423. On a trial for murder, the case was 
 committed to the juiy on Saturday evening 
 of the first week of the term, and the jury 
 being unable to agree, were discharged the 
 Monday evening following, after a delibera- 
 tion of about forty-five hours. Held that 
 the prisoner could not be tried again. State 
 V. Alman, 64 N. C. 364. 
 
 424. On a trial for forgery, the judge 
 received a note from some one, it did not 
 appear whom, saying that the jury could 
 not agree, and that one of them whose name 
 was not given, was not a citizen. They 
 were thereupon brought into court, and 
 without being asked whether they had 
 agreed or could agree, or whether any of 
 them lacked the necessary qualifications, 
 and without any statement by them to the 
 court, they were discharged. Held tanta- 
 mount to an acquittal. Poage v. State, 3 
 Ohio, N. S. 229. 
 
 425. Discharging jury. On a trial for 
 murder, the case having been given to the 
 jury on Tuesday, the judge went home, 
 instructing the clerk to inform him by 
 telegraph of the agreement or failure to 
 agree of the juiy. On the Saturday night 
 following, the clerk telegraphed to the judge 
 that the jury could not agree, and he in- 
 structed the clerk by telegraph to discharge 
 the jury and remand the prisoner. Held 
 error, and that the prisoner must be dis- 
 charged. State V. Jefi"erson, 66 N. C. 309. 
 
 426. In New York, the presiding justice 
 has no authority to discharge the jury in 
 the absence of his associates, whose pres- 
 ence is necessary to constitute a court of 
 Oyer and Terminer; the only thing he has 
 power to do in the absence of his associates 
 touching the business of the court being to 
 take recognizances and bail. People v. 
 Reagle, 60 Bnrb. 527. 
 
 427. Discharge of jury in absence of 
 prisoner. In Indiana, where the jury, being 
 unable to agree, are discharged in the ab- 
 sence of the prisoner, such discharge 
 operates as an acquittal. State v. Wilson, 
 50 Ind. 487. 
 
 428. In Iowa, on a trial for forgery, the
 
 TRIAL. 
 
 629 
 
 Proceedings Subsequent to Submitting Case to Jury, 
 
 court being satisfied that the jury could 
 not agree, discharged them. The defendant 
 was at the time confined in jail, and had no 
 knowledge ©f the proceedings until after 
 the jury were discharged. His counsel was 
 present, but otherwise engaged, and did not 
 know what was being done. The defendant 
 moved to be released, on the groimd that 
 he had been " once in jeopardy." Held that 
 his motion was properly overruled. State 
 V. Vaughan, 29 Iowa, 286. 
 
 429. Expiration of term of court before 
 verdict. When the jury fail to return a 
 verdict in consequence of the expiration of 
 the term of the court, the prosecuting at- 
 torney may, without special leave of the 
 court, cause a capias to be issued, and the 
 prisoner to be again put upon his trial. 
 State V. Tilletson, 7 Jones, 114. 
 
 430. The prisoner to be present when 
 the verdict is rendered. At common law? 
 in capital cases, the verdict must be received 
 in open court, and in the presence of the 
 prisoner. HoUiday v. People, 4 Gilman, 
 111; People v. Perkins, 1 Wend. 91. 
 
 431. Where the court, at a recess, gave 
 additional instructions to the jury, received 
 their verdict, and discharged them in the 
 absence of the prisoner's counsel, it was held 
 error if no attempt to give them notice was 
 made, but that it would be sufficient notice 
 to call them at the court house door or 
 other place as witnesses and other persons 
 are usually called. McNeil v. State, 47 
 Ala. 498. 
 
 432. On a trial for felony, it is error for 
 the clerk to receive the verdict, during a 
 recess of the court, in the absence of the 
 prisoner, even though it be done with the 
 consent of his counsel ; and it is also error 
 to allow an amendment of the verdict, un- 
 less the record affirmatively shows that the 
 prisoner was present in the court at the 
 time. Waller v. State, 40 Ala. 325. 
 
 433. When the prisoner will not come 
 into court to hear the verdict, the court may 
 order a mistrial. State v. Battle, 7 Ala. 
 259. 
 
 434. If the verdict is received and read 
 aloud in open court when the prisoner is 
 absent, and the jury discharged, the court 
 
 may recall them before they have left the 
 bar, and if tliis is done immediately upon 
 the discovery of the absence of the prisoner, 
 and the papers in the case handed back to 
 them, the prisoner cannot complain on er- 
 ror of the action of the court. Brister v. 
 State, 26 Ala. 107. 
 
 435. In Mississippi, it has been held that 
 although a person on trial for felony has a 
 right to the rendition of the verdict in open 
 court, in his presence, yet if he is not held 
 in custody and voluntarily absents himself 
 when the verdict is rendered, he cannot 
 complain. Price v. State, 35 Miss. 531. 
 
 436. In California, on the trial of an in- 
 dictment for grand larceny, the prisoner was 
 absent when the jury came into court and 
 announced their verdict, and while the 
 same was being recorded by the court, but 
 returned before the jury were discharged, 
 knew what the verdict was, and had an 
 opportunity to demand the polling of the 
 juiy. Held not a ground for setting aside 
 the verdict. People v. Miller, 33 Cal. 99. 
 
 437. Refusal of court to interrogate 
 jury. After verdict of guilty on a trial for 
 murder, the omission of the judge to ask 
 the jury if they found the name of the per- 
 son killed as alleged in the indictment, 
 when requested to do so, is not a ground of 
 exception. State v. Conley, 39 Maine, 78. 
 
 438. Polling jury. In Massachusetts, the 
 prisoner's counsel is not permitted to poll 
 the jury. Com. v. Roby, 12 Pick. 496. In 
 that State it has never been the right of a 
 party in any case to have the jury polled. 
 Com. V. Costley, 118 Mass. 1. 
 
 439. Verdict must be freely and unani- 
 mously rendered. The court should re- 
 fuse to receive a verdict not freely and 
 unanimously concurred in. Where one of 
 the jury entertained doubts of the defend- 
 ant's guilt, and made tlie fact known to the 
 court when the jury were polled, but after 
 some conversation with the court was in- 
 duced to assent to the verdict, it was held 
 ground for a new trial. State y. Austin, 6 
 Wis. 205. And see Rothbaucr v. State, 22 
 lb. 468. 
 
 440. Upon tlie trial of an indictment for 
 an aifray, after the jury had come into court,
 
 630 
 
 TRIAL. 
 
 Proceedings Subsequent to Submitting Case to Jury. 
 
 Record of Conviction. 
 
 before announcing their verdict they inti- 
 mated that they intended to acquit one of 
 the defendants. The court told them that 
 if they believed the evidence, both of the 
 defendants were guilty. The attorney for 
 the prosecution directed the clerk to enter 
 a verdict of guilty as to both, which was 
 done, and the juiy being asked if that was 
 their verdict, made no direct assent, but by 
 a nod from each of them. Held that there 
 must be a new trial. State v. Anthony, 10 
 Led. 153. 
 
 441. Reconsideration of verdict. The 
 court has a right to direct the jury to recon- 
 sider their verdict before it is recorded, and 
 it is its duty to do so, when satisfied that 
 there has been a palpable mistake. Peo- 
 ple V. Bush, 3 Parker, 552. 
 
 442. Where on a trial for grand larceny, 
 the jury have rendered a verdict of guilty, 
 they may, before they have left their seats, 
 with the consent of both sides, hear addi- 
 tional testimony and reconsider their verdict. 
 People V. Smith, 1 Wheeler's Crim. Cas. 
 119. 
 
 443. A consent of counsel for the iDrisoner 
 that the jury may return their verdict to the 
 clerk, implies a consent that they may dis- 
 perse after having done so; and if their 
 verdict is for manslaughter, not specifying 
 the grade, it is not error in the court to re- 
 assemble them, and submit the verdict to 
 them again, in order that they may specify 
 the grade of manslaughter, unless the 
 prisoner can show that his case has in some 
 way been prejudiced by the dispersion. 
 Jackson v. State, 45 Ga. 198. 
 
 444. Amendment of verdict. When the 
 verdict is informal, the jury may, on the mo- 
 tion of the prosecuting attorney, with the 
 consent of the court, amend it so as to give 
 it the form of a general verdict of guilty. 
 McGregg v. State, 4 Blackf. 101 ; Nelson v. 
 People, 5 Parker, 39. 
 
 445. On the trial of an indictment for 
 feloniously removing a dead body from the 
 grave for the purpose of dissection or sale, 
 the jury rendered the following verdict: 
 "We find the prisoner guilty of receiving 
 and dissecting," which was entered by the 
 clerk. Upon a suggestion of the district at- 
 
 torney that the verdict was informal, the- 
 clerk, by direction of the court, changed the 
 form of the verdict to that of guilty under 
 the fourth coimt. The jury upon being 
 polled, disagreed. They then retired again 
 by direction of the court, and returned with 
 a verdict of "guilty under the fourth 
 count." Held that there was no error. Peo- 
 ple V. Graves, 5 Parker, 134. 
 
 446. When too late to change verdict. 
 When a jury is asked if they have agreed on 
 their verdict, and they reply that they have, 
 and the same is recorded, and the whole 
 jianel being called upon to hearken to it as 
 the court hath recorded it, and no objection 
 is made, either by any of the jury or the 
 counsel, it is too late for the jury to alter or 
 amend it, and also too late to poll the panel. 
 Ford V. State, 12 Md. 514. 
 
 447. An addition made to the verdict by 
 the court after the discharge of the jury, is 
 irregular, and will be disregarded. Guen- 
 ther V. People, 24 N. Y. 100. 
 
 448. Where the jury on a trial for larceny 
 under an agreement of counsel that they 
 might seal their verdict, place it in the 
 hands of the ofBcer having them in charge, 
 and separate, returned a sealed verdict which 
 was defective in not finding the value of the 
 property stolen, and the court thereupon di- 
 rected the sheriff to recall the jury and re- 
 quire them to come into court and amend 
 their verdict, which they did three days af- 
 ter they had separated, it was held error. 
 Williams v. People, 44 111. 478. 
 
 449. On the trial of an indictment for 
 threatening to accuse another of crime, the 
 jury upon retiring, were told by the court 
 that they might bring in a sealed verdict. 
 On coming into court the next morning, it 
 transpired that they had agreed on a verdict 
 and separated during the night, but had not 
 put their verdict in writing. The judge 
 thereupon directed them to retire and re- 
 duce their verdict to writing and return it 
 as agreed upon the night before, without 
 further deliberation. Held that the verdict 
 was void. Com. v. Dorus, 108 Mass. 488. 
 
 6. Record op conviction. 
 
 450. What it ought to contain. After'
 
 TRIAL.— UNWHOLESOME PROYISIONS, SALE OF. 63L 
 
 Record of Conviction. 
 
 When Seller Liable. 
 
 Indictment. 
 
 the caption stating the time and place of 
 holding the court, the record should consist 
 of the indictment jjroperly indorsed, as 
 found by the grand jury ; the arraignment 
 of the prisoner and his plea ; the impanel- 
 ing of the jury; the verdict and the judg- 
 ment. Harriman v. State, 2 Iowa, 270; 
 McKinney v. People, 2 Oilman, 541. 
 
 451. The record of an indictment should 
 show not only that the court was held for 
 the proper county, but that it was held at 
 the proper place in the county. Carpenter 
 V. State, 4 How. Miss. 163 ; Clark v. State, 1 
 Smith, 161; s. c. 1 Carter, 253. In New 
 Jersey, the record of conviction need not 
 state where the trial was had, but it will be 
 presumed to have been at the place designa- 
 ted by law. West v. State, 2 Zabr. 212. 
 
 452. A conviction will not be sustained 
 when the record does not show that a grand 
 jury was impaneled, and returned the indict- 
 ment into court according to law. Conner v. 
 State, 19 Ind. 98 ; 18 lb. 428 ; Springer v.State, 
 19 lb. 180. But the court may, during the 
 term at which the trial is had, make the en- 
 try of record necessary to show such facts. 
 Bodkin v. State, 20 Ind. 281 : Jackson v. 
 State, 21 lb. 79 ; Hale v. State, lb. 268. 
 
 See Bill op exceptions; Certioraki; 
 Contempt ; Continuance ; Evidence ; For- 
 mer ACQUITTAL OR CONVICTION; INDICT- 
 MENT ; Judgment ; Jurisdiction ; Jury ; 
 New trial ; Nolle prosequi ; Sentence ; 
 Venue, change op; Verdict; Witness; 
 Writ op error. 
 
 0alc of. 
 
 1. When seller liable. 
 
 2. Indictment. 
 
 3. Evidence. 
 
 1. When seller liable. 
 
 1. What constitutes the offense. In 
 
 North Carolina, it has been held that to 
 sustain an indictment for knowingly selling 
 unwholesome provisions, tlie provisions sold 
 must be in such a condition as that if eaten 
 
 they would by their unwholesome and dele- 
 terious qualities have injured the health of 
 those who were to have used them. State 
 V. Norton, 2 Ired. 40. 
 
 2. But in New York, on the trial of an 
 indictment for selling unwholesome pro- 
 visions, it was held correct to charge that 
 the accused was guilty if the animal sold 
 was diseased, the disease known to the 
 accused, and the nature and tendency of it 
 such as to taint the flesh of the entire ani- 
 mal in any degree, although the taint was 
 imperceptible to the senses, and the eating of 
 the flesh produced no apparent injury. 
 Goodrich v. People, 19 N. Y. 574; affi'g s. 
 c. 3 Parker, 622. 
 
 3. In Tennessee, it has been held that if a 
 person sell unsound meat when he might 
 have known of its unsoundness by ordinary 
 care and diligence, he will be liable to in- 
 dictment. Hunter v. State, 1 Head, 160. 
 
 4. The sale of unwholesome beef for the 
 food of men to a wholesale dealer in the mar- 
 ket, the vendor knowing it to be such, is in- 
 dictable. It is not error therefore in the judge 
 to refuse to charge the jury that the indict- 
 ment could not be sustained if they should 
 find or believe that the beef was purchased 
 as an article of merchandise and not for 
 domestic consumption. People v. Parker, 
 38 N. Y. 85. 
 
 2. Indictment. 
 
 5. Averment of sale. An indictment for 
 selling unwholesome provisions which al- 
 leges that the accused " sold to divers citi- 
 zens five hundred pounds of beef as good 
 and wholesome beef and food," and that it 
 was unwholesome and not fit to be eaten by 
 man, sufficiently avers a sale of the beef to 
 the citizens to be eaten by them. Goodrich 
 V. People, supra. 
 
 6. An indictment which charges that the 
 defendant " did unlawfully keep, ofier for 
 sale and sell" adulterated milk, is not bad 
 for duplicity. Com. v. Nichols, 10 Allen, 
 199. 
 
 7. Averment of guilty knowledge. 
 Where the gist of the offense under a 
 statute (R. S. of Mass. ch. 131, § 1), was the 
 guilty knowledge of a party in selling meat
 
 632 
 
 UNWHOLESOME PROVISIONS, SALE OF. 
 
 Evidence. 
 
 unfit for food, it was held that the indict- 
 ment must aver that the defendant at the 
 time of the alleged sale knew that the meat 
 sold by him was diseased. Com. v. Boynton, 
 13 Cush. 499. 
 
 3. Evidence. 
 
 8. Proof of sale in the market sufficient. 
 
 Under an indictment charging the sale of 
 diseased meat without making the same 
 known to the buyer, it is suificient for the 
 prosecutibn to show that the defendant 
 knowingly sold the meat in the market, and 
 the burden is on the defense to prove that 
 the condition of the meat was disclosed to 
 the buyer at the time of the sale. Seabright 
 V. State, 2 West Va. 591. 
 
 9. Proof of possession for sale by serv- 
 ant. On the trial of an indictment for sell- 
 ing adulterated milk, in order to charge the 
 master where the milk is found in the 
 possession of a servant, in addition to the 
 proof of possession for sale or exchange by 
 the servant, there should be evidence that 
 the servant in having it so for sale or ex- 
 change was acting for and in pursuance of 
 the will of the master. State v. Smith, 10 
 R. I. 258. 
 
 10. Proof of sale to wife. Where an in- 
 dictment alleged that the defendant sold 
 adulterated milk to a woman named, and 
 it was proved that in making the pur- 
 chase she acted as the agent of her 
 husband, but that the defendant had no 
 notice that she acted as the agent of any 
 person, it was held that the variance was 
 not material. Com. v. Farren, 9 Allen, 
 489. 
 
 11. Testimony of experts. On the trial 
 of an indictment for selling unwholesome 
 beef, the prosecution may prove by physi- 
 cians that the eating of diseased meat does 
 not always cause apparent sickness, and 
 show by them from the account given of the 
 condition of the animal by other witnesses 
 the nature of the disease, that it would 
 cause a fever, and render the flesh of the 
 animal unwholesome. Goodrich v. People, 
 3 Parker, 623 ; affi'd 19 N. Y. 574. 
 
 12. Where on the trial of an indictment 
 
 for selling adulterated milk a witness was 
 allowed to testify that he had had much 
 experience with a lactometer in testing milk, 
 and that he had thus tested the milk sold 
 by the defendant, and to state the result, it 
 was held proper, the value of the test being 
 a question for the jury. Com. v. Nichols, 10 
 Allen, 199. 
 
 13. Proof that the defendant knew that 
 the provisions were unwholesome. In 
 order to convict a person for selling diseased 
 meat, the accused need not be shown to be 
 a person of skill in order to have a guilty 
 knowledge that the disease which the ani- 
 mal had would render its flesh unwholesome 
 for food. Goodrich v. People, supra. 
 
 14. On the trial of an indictment for sell- 
 ing unwholesome beef, what the defendant's 
 wife said to him about the unwholesomeness 
 of the meat is competent evidence on the 
 question whether the defendant knew or 
 believed the meat was bad when he dis- 
 posed of it. Ibid. 
 
 15. The statute of New York (of 1862), 
 entitled " An act to prevent the adulteration 
 of milk, and to prevent the traffic in impure 
 and unwholesome milk," does not prevent 
 any one from mixing milk and water, unless 
 it is done with the intent of offering it for 
 sale or exchange. Such intent may be in- 
 ferred from the quantity of milk, the mode 
 of carrying it, the employment of the pris- 
 oner, or his declarations ; but there must be 
 some evidence both of adulteration and of 
 the purpose of the prisoner as to the sale of 
 the adulterated article before he can be con- 
 \dcted. People v. Fauerback, 5 Parker, 
 311. 
 
 16. In Massachusetts, under an indict- 
 ment for selling adulterated milk in viola- 
 tion of the statute (of 1864, ch. 122, § 4), 
 it need not be proved that the defendant 
 knew that the milk was adulterated ; and 
 if such knowledge be averred in the indict- 
 ment, it may be rejected as surplusage ; nor 
 need it be alleged or proved that the milk 
 was cow's milk. Com. v. Farren, 9 Allen, 
 489. Approved in Com. v. Nichols, 10 lb. 
 199, and in State v. Smith, 10 R. I. 258. 
 Such statute is constitutional. Com. v. 
 Waite, 11 Allen, 264.
 
 USURY.— VAGRANT. 
 
 633 
 
 Offense when Committed. 
 
 Who Deemed. 
 
 Itsun). 
 
 1. Offense when committed. In New 
 York, to constitute usury there must be 
 either a payment or an agreement by which 
 the party taking it is entitled to receive 
 more than seven per cent. If tlie payment 
 is conditional, and the condition is within 
 the power of the debtor to perform, so that 
 the creditor may by the debtor's ^ct, be 
 deprived of any extra payment, it is not 
 usurious. Sumner v. People, 29 N. Y. 337. 
 
 2. The gist of the offense of usury under 
 the statute of Tennessee, is the reception of 
 the money ; the mere agreement for the 
 payment of more than the legal rate of 
 interest not being of itself while unexe- 
 cuted the subject of a criminal prosecution. 
 Where, therefore, the contract was made in 
 Kentucky, and the money paid in Tennessee, 
 it was held indictable in the latter. But 
 when a lona fide contract for the payment 
 of money is entered into in another State, 
 the rate of interest will be governed by the 
 law of that State, and the payment of the 
 money in Tennessee will not be usury, 
 though the rate of interest exceed that 
 allowed by the law of Tennessee. Murphy 
 V. State, 3 Head, 249. 
 
 3. Distinct offenses. Whether a bargain 
 for illegal interest, and a subsequent receiv- 
 ing of the interest thus bargained for, con- 
 stitute distinct offenses, so that a prosecu- 
 tion barred as to the one will lie for the 
 ©ther — query. Swinney v. State, 14 Ind. 315. 
 
 4. Description of contract. In New 
 Hampshire, an information under the stat- 
 ute for making a usurious contract, is suffi- 
 cient which sets forth the corrupt bargain 
 generally ; and it need not state how much 
 of the money alleged to have been received 
 was over and above the lawful interest. 
 State V. Tappan, 15 New Hamp. 91. In 
 Tennessee, the usurious contract need not be 
 particularly described in the indictment. 
 Gillespie v. State, 6 Humph. 1G4. 
 
 5. Averment of place. An indictment 
 for usury in receiving more than legal inter- 
 est on a note which does not allege the place 
 where the note was made, is fatally defect- 
 ive. State V. Williams, 4 Ind. 234. 
 
 6. Averment of intent. An information 
 for usury must charge a corrupt intent. 
 Brock V. State, 14 Ind. 425. 
 
 7. Proof of time of agreement. In New 
 Hampshire, it has been held that to sustain 
 an indictment for usury, it need not be 
 proved that the corrupt agreement was en- 
 tered into at the time of executing the con- 
 tract. State V. Tappan, sujyra. 
 
 ba%xanl 
 
 1. "Who deemed. A common prostitute 
 is not a vagrant within the statute of New 
 York, merely because she is an idle per- 
 son : but it is otherwise if she have no law- 
 ful means of support. People v. Forbes, 4 
 Parker, 611. 
 
 2. In Massachusetts, on the trial of a com- 
 plaint under the statute (Gen. Sts. ch. 165, 
 § 23), for being an idle and disorderly per- 
 son, it was held that it was correct to charge 
 the jury that if the defendant was under a 
 necessity to work for the support of himself 
 or persons dependent upon him, and though 
 able, and having opportunities to work, 
 neglected all lawful business, and habitually 
 frequented houses of ill-fame, gaming 
 houses, and tipijling shops, he might be 
 convicted, and that the court need not ex- 
 plain to the jury what constituted a mis- 
 spending of his time. Com. v. Sullivan ; 
 Same v. Daniels, 5 Allen, 511. 
 
 3. Indictment. In North Carolina, an 
 indictment for vagrancy under the statute, 
 must allege that the defendant was able to 
 work, and neglected to devote himself to 
 any honest pursuit; and where it is charged 
 that he was trying to support himself by un- 
 lawful means, the unlawful means must be 
 specilied. State v. Custer, 65 N. C. 339. 
 
 4. In Alabama, an indictment for vagrancy 
 under the statute (Rev. Code, § 3630), which 
 alleges that the defendant " having a family, 
 abandoned and left them in danger of be- 
 coming a burden to the public," should 
 also allege the ability of the defendant to 
 contribute to the support of his family, by 
 his means, or being an able bodied person 
 by his industry. Boulo v. State, 49 Ala, 22.
 
 634 
 
 VAGKANT.— YENUE, CHANGE OF. 
 
 Record of Conviction. 
 
 Grounds for. 
 
 5. A. was arrested as a vagrant, in pur- 
 suance of a city ordinance, and released 
 upon his promise to leave the city within a 
 stipulated time, which promise he violated, 
 and his rearrest was ordered by the city 
 marshal. In attempting to rearrest him 
 without warrant, B., a policeman, was killed, 
 and A. was committed for murder. Held 
 that it was not necessary to allege in the in- 
 dictment that A. was a vagrant, or that B. 
 was a i^olice officer, as it would have been if 
 the indictment had been for resisting an 
 officer in the discharge of his duty. State 
 V. Eoberts, 15 Miss. 28. 
 
 6. Record of conviction. Where there is 
 a commitment in case of vagrancy, the rec- 
 ord and commitment must state the grounds 
 on which the charge was based. People v. 
 Forbes, 4 Parker, 611 ; co)it?n, People v. 
 Gray, lb. 616. 
 
 7. The statute of New York (Laws of 
 183o, p. 353, § 1), authorizing a general form 
 for a record of conviction in case of va- 
 grancy is constitutional. Morris v. People, 
 1 Parker, 441. 
 
 8. Inquiry on habeas corpus. Where a 
 person committed as a vagrant is brought up 
 on hcibeas corpus^ the only inquiry should be 
 whether the justice had jurisdiction of the 
 prisoner and committed him for an offense 
 defined in the statute. People v. Gray, 
 supra. 
 
 llcnuc, Cliangc of, 
 
 1. Grounds for. That a fair and impar- 
 tial trial cannot be had in the county, is 
 sufficient cause for a change of venue. Peo- 
 ple V. Long Island R. R. Co. 4 Parker, 602. 
 
 2. But the affidavit of the accused that 
 be cannot have an impartial trial in the 
 county where he is indicted, is not alone 
 sufficient to authorize a change of the place 
 of trial; nor the fact that thirty or forty 
 persons upon being solicited have contrib- 
 uted ^mall sums to defray the cost of em- 
 ploying counsel to assist the prosecuting at- 
 torney. People V. Graham, 21 Cal. 261 ; 
 People V. Lee, 6 lb. 353, questioned. 
 
 3. It is the right of the prosecution as well 
 as the prisoner to have the trial take place in 
 
 the county where the crime is alleged to have 
 been committed. To entitle an accused per- 
 son to change the place of ti'ial, he must 
 show that by reason of popular passion or 
 prejudice, he cannot have a fair trial in the 
 county where the venue is laid. The belief 
 that a fair trial cannot be obtained, is not 
 sufficient ; facts and circumstances must be 
 shown. Where the facts established were 
 that gjpat excitement existed in the county, 
 and that the newspapers had contained arti- 
 cles more or less expressing the popular pas- 
 sion, but it was not shown that any passion 
 or prejudice existed as to the guilt of any par- 
 ticular person, it was held that no sufficient 
 case was made out to change the place of trial. 
 People V. Sammis, 6 N. Y. Supm. K S. 328. 
 
 4. Prejudice of the judge is not a proper 
 ground for a change of the place of trial. 
 People V. Mahoney, 18 Cal. 185; People v. 
 Williams, 24 lb. 33; People v. Shuler, 28 lb. 
 490. 
 
 5. The venue cannot be changed to 
 another county against the defendant's ob- 
 jection, on the ground that the presiding 
 judge has been of counsel for the prosecu- 
 tion. But notwithstanding such order of 
 transfer is void, if the cause is taken from 
 the docket in consequence of it, and kept off 
 for several years, the prosecution is thereby 
 discontinued. Ex parte Rivers, 40 Ala. 712. 
 
 6. Defendant entitled to. In Arkansas, 
 when the prisoner's application for a change 
 of venue is in conformity with the statute, 
 he is entitled to it as a matter of right, and 
 it is the duty of the court to grant it with- 
 out inquiring as to tlie truth of the cause 
 assigned or any consideration as to its ex- 
 pediency. Edwards v. State, 25 Ark. 444. 
 
 7. In case of several defendants. Where 
 two or more are jointly indicted, the trial of 
 one may be removed to another court on his 
 application, without removing the trial of 
 the others. State v. Martin, 2 Ired. 101. In 
 such case, he must be tried on a copy of the 
 indictment, the original remaining in the 
 court below. John v. State, 2 Ala, 290, 
 
 8. In Illinois, where an indictment was 
 found in one county against several jointly, 
 and the venue changed to another county on 
 motion of one of the defendants, without
 
 VENUE, CHANGE OF. 
 
 635 
 
 In Case of Several Defendants. 
 
 When Change of Venue will be Presumed. 
 
 the consent of the others, where he was 
 tried, and afterward the indictment was sent 
 back to the original county where the others 
 were tried, it was held proper. Hunter v. 
 People, 1 Scam. 453. 
 
 9. In case of several defendants, the place 
 of trial may be changed as to all upon 
 enough being shown to make a change jDroper 
 as to one, notwithstanding it is a case in 
 which each defendant is entitled to a sepa- 
 rate trial. People v. Baker, 3 Parker, 181. 
 
 10. And if in such case, the defendants 
 have a large number of witnesses who are 
 poor, and the defendants themselves are des- 
 titute, the district attorney will be compelled 
 to make an arrangement for the payment by 
 the county from which the indictment is re- 
 moved, of the necessary expenses of the de- 
 fendants' indigent witnesses attending at 
 any court where the trial shall not be post- 
 poned at their instance. lb. 
 
 11. May be ordered by court to which 
 indictment is removed. In New York, 
 where an indictment is removed by certiorari 
 from the Oyer and Terminer to the Supreme 
 Court, the latter may, at special term, order 
 the trial to be had in some other county, for 
 the reason that a fair trial cannot be had in 
 the county in which the indictment was 
 found. People v. Baker, supra. 
 
 12. Place to which the trial should be 
 changed. Ordinarily, where the place of 
 trial is changed, an adjoining county should 
 be selected. But if the necessity which 
 may require any change should call for a 
 more remote county, that should be selected. 
 Ibid. 
 
 13. Order of court. It is no objection 
 that an order to transmit a criminal case 
 from Baltimore City Court to Howard dis- 
 trict, says to Howard District Court, instead 
 of the Howard District of Anne Arundel 
 County. Rawlings v. State, 1 Md. 137. 
 
 14. It is not ground of reversal, that the 
 order for a change of venue does not follow 
 the statute. If there be cause of objection 
 to such order, it must be stated in the court 
 below. Brown v. State, 8 Eng. 9G. 
 
 15. Entry of record. Wlicre the venue 
 is changed upon its appearing that an im- 
 partial trial cannot be had in the county 
 
 where the offense is laid, the court will 
 order a suggestion of this fact to be entered 
 on the record, and a venue is then awarded 
 to the sheriff of another county. Peojile v. 
 Vermilyea, 7 Cow. 108. 
 
 16. When change of venue will be pre- 
 sumed. Where an indictment is tried in a 
 different county from the one in which it 
 was found, but the record does not show a 
 change of venue, such change will be pre- 
 sumed. Doty V. State, G Blackf. 529. 
 
 17. Order changing venue presumed 
 regular. An order changing the venue of 
 an indictment will be conclusive of its own 
 regularity, unless the record shows the con- 
 trary. McCauley v. U. S. 1 Morris, 486. 
 
 18. Presumption as to regularity of 
 proceedings in court below. The court into 
 which a cause is removed will presume that 
 all things were regular before the change of 
 venue was ordered, and it is incumbent on 
 the prisoner to show the contrary. State v. 
 Williams, 3 Stewart, 454. 
 
 19. Transcript of record. Where the 
 indictment is removed to an adjoining 
 county for trial, a transcript of the record 
 must be sent to the court to which it is re- 
 moved. Price v. State, 8 Gill, 295. 
 
 20. Where the venue is changed, the 
 original indictment should remain in the 
 office of the clerk in the county in which it 
 is found. A copy only should be included 
 in the transcript of the record and proceed- 
 ings. Ruby V. State, 7 Mo. 206. 
 
 21. The failure of the clerk, after a 
 change of venue is ordered, to send a tran- 
 script to the clerk of the court to which the 
 trial is removed, and the neglect of the 
 latter to have the cause entered on the 
 docket at the next term after the order of 
 removal, is not a discontinuance. Harrall 
 V. State, 2G Ala. 52. 
 
 22. In Alabama, when the venue is 
 changed on the defendant's application 
 (Code, § 3615), a certified copy of the in- 
 dictment becomes so far an original in the 
 court to which the trial is removed that 
 where a copy of it is delivered to the 
 prisoner it will be a sufficient compliance 
 with the statute. Brister v. State, 26 Ala. 
 107.
 
 636 
 
 YENUE, CHANGE OF.— YERDICT. 
 
 Verification of Clerk's Certificate, 
 
 Right and Duty of Jury in Determining. 
 
 23. Verification of clerk's certificate. 
 
 In Alabama, on a change of venue (Code, 
 § 3613), it is not necessary that each paper, 
 order, etc., found in the trauscrijit should 
 be verified by name in the clerk's certificate. 
 If his certificate states " that the foregoing 
 pages contain a full, true, and complete 
 transcript of the indictment and all papers 
 on file in his office, and of all the entries 
 relating to the case as found in his office," 
 it is sufficient. Ward v. State, 28 Ala, 53. 
 
 24. Presumption from clerk's certificate. 
 When papers are sent from one county to 
 another by a change of venue, it -will be 
 presumed from the clerk's certificate, in the 
 absence of objection raised in the court be- 
 low, that the clerk has transmitted the 
 proper papers. State v. Greenwood, 5 
 Porter, 474. 
 
 25. Certiorari. Where, in a case of 
 change of venue, the transcript sent is im- 
 perfect, the circuit attorney should suggest 
 a diminution of the record, and move for a 
 writ of certiorari directed to the court of 
 the county from which the venue was taken, 
 to send up the record. Laport v. State, 6 
 Mo. 308. 
 
 26. In Alabama, under the code (§ 3615), 
 the court to which the trial is removed may 
 issue a certiorari to the clerk of the court in 
 which the indictment was found, requiring 
 him to transmit certified copies of any and 
 all papers and entries in the cause, and may 
 order the original papers to be returned to 
 him. Harrall v. State, 26 Ala. 52, 
 
 27. Jurisdiction of court how shown. 
 In case of a change of venue, the jurisdic- 
 tion of the court that tries the case must be 
 shown by a statement in the nature of a 
 caption to its proceedings, that the indict- 
 ment is there filed, and that the prisoner 
 was tried upon it, and the indictment must 
 constitute a part of the record of the court. 
 Doty V. State, 7 Blackf. 427. 
 
 28. Trial to be had on transcript. In 
 Alabama, under the code (§ 3613), when the 
 transcript furnished by the clerk on change 
 of venue has been duly certified by him to 
 contain a copy of the indictment, with all 
 the indorsements thereon, and all the entries 
 and orders made in relation to the cause, in- 
 
 cluding the order for the removal of the 
 trial, the defendants may be tried on such 
 transcript. Brister v. State, 26 Ala. 107. 
 
 29. Prisoner need not be arraigned. 
 Where the venue has been changed after 
 arraignment and plea, the prisoner need not 
 be again arraigned, nor required to plead 
 anew, Vance v. Com. 2 Va. Cas. 162. 
 
 30. Disposal of indictment. Upon a 
 change of venue, the indictment need not 
 be recorded in the court where it was found. 
 Beauchamp v. State, 6 Blackf 299. 
 
 31. Remedy for denial of motion. In 
 Indiana, it has been held that the refusal to 
 change the venue cannot be assigned for 
 error. Findley v. State, 5 Blackf. 576; 
 Spence v. State, 8 lb. 281, Formerly in 
 Alabama, the granting of an application for 
 a change of venue in a criminal case (Code, 
 §§ 3608, 3609), is discretionary with the 
 court to which the application is made. 
 Ex parte Banks, 28 Ala. 28. But now it 
 seems, if the motion is denied in a proper 
 case, it is error for which, after conviction, 
 the judgment will be reversed, or before 
 trial the defendant may obtain the benefit 
 of his application by mandmnus. Birdsong 
 V. State, 47 Ala. 68 ; s. c. 1 Green's Crim. 
 Reps. 728, 
 
 See Inbictment, tit. 3; Jurisdiction, 
 tit. 2. 
 
 llcvbict 
 
 1. Right and duty of jury in deter- 
 
 mining. 
 
 2. Nature and requisites. 
 
 {a) General verdict, 
 {b) Special verdict. 
 
 3. How REGARDED. 
 
 4. Validity. 
 
 5. When evidence. 
 
 1. Right and duty of jury in deter- 
 mining. 
 
 1. Jury to decide as to credibility of 
 witness. The credit to be given to a wit- 
 ness whose general reputation for truth has 
 been proved to be bad is to be determined 
 by the jury. Com. v. Bosworth, 22 Pick, 
 397.
 
 VEEDICT. 
 
 G37 
 
 Right and Duty of Jury in Determining. 
 
 2. A telegraphic message being material 
 to the issue, the operator testified to receiv- 
 ing the telegram, and of having a faint rec- 
 ollection of delivering it to the defendant. 
 Held that the degree of credit to be given to 
 the operator's memory was a question for 
 the jury. State v. Litchfield, 58 Maine, 2C7. 
 
 3. Questions of fact to be determined 
 by jury. "Whether two names are sounded 
 alike is a question of fact for the jury, and 
 leaving it to them to suppose that the 
 difference between the names is to be en- 
 tirely disregarded by them is ground for a 
 new trial. Com, v. Mehan, 11 Gray, 321; 
 Com. V. Gill, 14 lb. 400 ; Com. v. Donovan, 
 18 Allen, 571. 
 
 4. On a trial for murder, it is competent 
 for the jury to determine whether spots 
 testified to by witnesses are blood, although 
 there has been no chemical test or micro- 
 scopic examination. Gaines v. Com. 50 
 Penn. St. 319. 
 
 5. Jury must decide without reference 
 to their private knowledge. Although 
 the weight and credit to be given to the 
 evidence should be judged of by the jury 
 in the light of their own experience, yet 
 that should be done without any addition 
 to or modification of it arising out of the 
 peculiar scientific acquirements or knowl- 
 edge of the facts in controversy by any one 
 or more of their number. People v. Zeiger, 
 G Parker, 355. 
 
 6. How far jury judges of the law. In 
 Maine, the jury are bound by the instruc- 
 tions of the court in matters of law to 
 the same extent in crinjinal as in civil cases. 
 State V. Wright, 53 Me. 328 ; State v. Stevens, 
 lb. 548; contra, State v. Snow, 18 lb. 346. 
 In Vermont, the jury are the judges of the 
 law as well as the fact in criminal cases. 
 State V. Croteau, 23 Vt. 14. The same 
 seems to have been held in Alabama. State 
 V. Jones, 5 Ala. 666, but afterward denied. 
 Batre v. State, 18 lb. 119. But although in 
 Vermont the jury in criminal cases are the 
 judges of the law, yet it is the duty of the 
 court to instruct them as to the law, and if 
 in rendering a verdict against the accused 
 they disregard the instructions or mistake 
 the law, the court may set the verdict aside. 
 
 State V. Barron, 37 Vt. 57. In New Hamp- 
 shire, the jury are bound to adopt the in- 
 structions of the court as to the law. Lord 
 V. State, 16 New Hamp. 325. In Massa- 
 chusetts, the jury are to decide all points of 
 law involved in the question of the guilt or 
 innocence of the prisoner, but not other 
 questions of law arising in the progress of 
 the trial. Com. v. Knapp, 10 Pick. 477. 
 The Legislature cannot constitutionally give 
 to juries in criminal cases authority to de- 
 termine questions of law. Com. v. Anthes, 
 5 Gray, 185. 
 
 7. In New York, the jury in criminal 
 cases have a right to determine both the 
 law and the facts, and they may disregard 
 the instruction of the court upon questions 
 of law, especially in favor of life. People 
 v. Thayer, 1 Parker, 596 ; People v. Videto, 
 lb. 603 ; contra, Carpenter v. People. 8 Barb. 
 603. And see People v. Pine, 2 lb. 566 ; 
 Safford v. People, 1 Parker, 474. But it is 
 the duty of the jury to be governed by the 
 instructions of the court upon questions of 
 law. Duffy v. People, 26 N. Y. 588. 
 
 8. In South Carolina, in the trial of capi- 
 tal felonies, the jury are not the judges of 
 the law. State v. Drawdy, 14 Rich. 87. In 
 Missouri, the juiy must take the law from 
 the court. Hardy v. State, 7 Mo. 607. In 
 Georgia, the jury are bound by the law as it 
 is expounded to them by the court. Smith 
 V. State, 49 Ga. 482. But in the latter State 
 it has been held that the jury may acquit 
 the prisoner, notwithstanding the judge 
 tells them if they find certain facts to be 
 proved he is guilty, and althougli they find 
 such facts to be proved. McGuffie v. State, 
 17 Ga. 497 ; McPherson v. State, 22 lb. 478 ; 
 McDaniel v. State, 30 lb. 853. 
 
 9. In Indiana, it has been held that the 
 court instructs juries, in criminal cases, not 
 to bind their consciences, but to inform 
 their judgments, and that while great defer- 
 ence should be paid by the jury to the 
 opinion of the court, they are not bound to 
 adopt it. Lynch v. State, 9 Ind. 541, ap- 
 jiroting Stocking v. State, 7 lb. 326, and 
 dovUing Carter v. State, 2 lb. 617. But see 
 Townsend v. State, 2 Blackf. 151. 
 
 10. In Illinois the jury may disregard the
 
 i)3S 
 
 YERDICT. 
 
 Right and Duty of Jury in Determining. Nature and Requisites. General Verdict. 
 
 instructions of the court ; and it is erroneous 
 to charge them that if they do so it will be 
 the duty of the court to set aside their ver- 
 dict. Falk V. People, 42 111. 333. See 
 Schnier v. People, 23 lb. 17 ; Adams v. Peo- 
 ple, 47 lb. 376. 
 
 11. In Michigan the jury are the judges 
 of the law in a restricted sense. Hamilton 
 V. People, 29 Mich. 173, In Louisiana the 
 jury are judges of the law in criminal cases, 
 in a limited sense, but have the power to 
 disregard the law as laid down by the court. 
 State V. Ballerio, 11 La. An. 81; State v. 
 Scott, lb. 429 ; 12 lb. 386. But see State 
 V. Saliba, 18 lb. 35; State v. Tally, 23 lb. 
 677. In the United States courts the jury 
 are not the judges of the law in criminal 
 trials. U. S. v. Morris, 1 Curtis C. C. 23. 
 
 12. "When court to direct verdict. After 
 the trial has been commenced, the court can- 
 not grant a motion to discharge the prisoner 
 on the ground that the corpus delicti has not 
 been proved; but the court may direct as to 
 the verdict. Where a question of law only 
 is presented, the court may instruct the jury 
 to acquit; and a refusal to give such in- 
 struction in a proper case, is error. People 
 V. Bennett, 49 K Y. 137. 
 
 13. The court has the power, and it is its 
 duty, to direct a verdict of guilty whenever 
 the facts constituting guilt are not disputed. 
 U. S. v. Anthony, 11 Blatcli, 200; contra, 
 Howell V. People, 13 N. Y. Supm. N. S. 620. 
 
 14. Determining verdict by experiment- 
 The jury cannot lawfully arrive at their ver- 
 dict by experiments, such as sending the 
 constable out of the room, closing the door, 
 and then talking, with a view to learn 
 whether their voices can be heard outside; 
 or running, with a view to ascertain whether 
 their tracks will be longer or shorter than 
 when walking, and the like. Jim v. State, 
 4 Humph. 289. 
 
 15. Jury entertaining doubt. A doubt 
 to justify an acquittal, must be reasonable, 
 and arise from a candid and imijartial in- 
 vestigation of all the evidence in the case. 
 Unless it is such that were the same kind of 
 doubt interposed in the graver transactions 
 of life, it would cause a reasonable and pru- 
 dent man to hesitate, it is insufficient to au- 
 
 thorize a verdict of not guilty. Miller v. 
 People, 39 111. 457 ; May v. People, 60 lb. 
 119. 
 
 2. Nattjre akd kequisites. 
 
 (a) General verdict. 
 
 16. Must respond to charge. No find- 
 ing of the jury can enlarge the ofiense 
 charged in the indictment. By finding the 
 prisoner " guilty as he stands indicted," the 
 jury make the indictment a part of the ver- 
 dict, and it is the same as finding a special 
 verdict stating the facts as set forth in the 
 indictment. State v. Cleveland, 58 Maine, 
 564 ; Fitzgerald v. People, 49 Barb. 122. 
 
 17. If the prosecution is able to prove the 
 defendant guilty of a criminal ofi"ense plain- 
 ly charged in the indictment, he should be 
 convicted of that ofl"ense, though other facts 
 are stated which, if proved, would show him 
 guilty of an ofiense of a different, or even of 
 a higher grade. White v. People, 32 N. Y. 
 465. See Henley v. State, 6 Ohio, 400. 
 
 18. On the trial of an indictment for as- 
 sault and battery with intent to kill and 
 murder, the verdict was guilty of assault 
 with intent to commit manslaughter. Held, 
 that the variance was fatal. Mormau v. 
 State, 24 Miss. 54. 
 
 19. On the trial of an indictment for 
 breaking open a storehouse and stealing 
 therefrom goods to the value of four dollars, 
 the defendant was found guilty of grand 
 larceny. Held that no judgment could be 
 entered on the verdict. Com. v. Smith, 2 
 Va. Cas. 327. 
 
 20. A general verdict of guilty in prose- 
 cutions where value constitutes an essential 
 element in the definition of the crime, and 
 the mode of punishment, is a finding upon 
 the whole indictment, including the aver- 
 ment of value. State v. White, 25 Wis. 369. 
 
 21. To authorize a conviction under part 
 of an indictment for felony, the part of 
 which the prisoner is found guilty must of 
 itself constitute a felony. Com. v. Newell, 
 7 Mass. 245. 
 
 22. Under indictment charging dis- 
 tinct offenses. A general verdict of guilty 
 under an indictment charging two offenses, 
 properly joined in different counts, will au-
 
 VERDICT. 
 
 639 
 
 Nature and Requisites. 
 
 General Verdict. 
 
 thorize a verdict and sentence for the pun- 
 ishment prescribed for one of the offenses. 
 Cawley v. State, 37 Ala. 153. 
 
 23. When the indictment charges distinct 
 offenses in separate counts, the jury must 
 pass upon each count separately, and apply 
 to it the evidence bearing upon the defend- 
 ant's guilt of the offense therein charged; 
 and if they fail to do so, their verdict can- 
 not be sustained. Com.v.Carey,103 Mass.314. 
 
 24. In Ohio, it has been held that when 
 the indictment charges distinct offenses, 
 subject to different degrees of punishment, 
 the verdict must affirm or negative each 
 charge. Wilson v. State, 30 Ohio, 36. 
 
 25. In Illinois, where an indictment 
 charges a burglary in one count and a lar- 
 ceny in another count, and the defendant is 
 found guilty generally, and a punishment is 
 imposed which is by law authorized to be 
 inflicted for the offense charged in either 
 count, the verdict will be sustained. Lyons 
 V. People, 68 111. 371. 
 
 26. For part of offense. In Maine, the 
 defendant may, by the statute (ch. 166, § 7), 
 be acquitted of a part of the offense for 
 which he is indicted, and found guilty of 
 the residue. State v. Payson, 37 Maine, 361. 
 
 27. For offense consisting of different 
 degrees. Where one and the same crime is 
 •charged in different counts, alleging the 
 commission of different grades of the same 
 offense, a general verdict of guilty will be 
 held to apply to the offense of the highest 
 grade. State v. Hood, 51 Maine, 363; Cur- 
 tis V. State, 36 Ark. 439. 
 
 28. AVhere the offense described in the 
 indictment comprehends various circum- 
 stances, each of which is an offense, a de- 
 fendant charged with a greater offense thus 
 described may be convicted of one of lesser 
 degree contained in it. Swinney v. State, 8 
 Smed. & Marsh. 576. Under an indictment 
 for assaulting and obstructing an officer in 
 the service of civil process, the defendant 
 may be convicted of assault and battery. 
 State V. Webster, 39 New Hamp. 98. 
 
 29. Where the evidence creates a doubt in 
 the minds of the jury as to the degree of 
 murder of which the prisoner is guilty, it is 
 their duty to find a verdict for the lesser 
 
 degree. People v. Lamb, 3 Keyes, 360, per 
 Smith, J. ; affi'g 54 Barb. 342. 
 
 30. The defendant was charged with an 
 assault and battery, with the additional 
 averment that " the said assault and bat- 
 tery was not committed with intent to com- 
 mit any other offense, nor with a weapon 
 dangerous to life." It was, however, proved 
 that the assault was committed with a 
 weapon dangerous to life. Held, after con- 
 viction of simple assault, that the defend- 
 ant had no ground of exception. Com. v. 
 Burke, 14 Gray, 100. 
 
 31. When the act for which the accused 
 is indicted is the same for which he is con- 
 victed, the conviction of a lower degree is 
 proper, although the indictment contains 
 averments constituting the offense of the 
 highest degree of the species of crime, and 
 omits to state the particular intent and 
 circumstances characterizing a lower degree 
 of the same crime. Keefe v. People, 40 
 N. Y. 348; People v. Thompson, 41 lb. 1. 
 
 32. On the trial of an indictment for forg- 
 ing a* note, the jury found the defendant 
 guilty of attempting to pass the note, know- 
 ing that it was forged. Held that the ver- 
 dict was good. State v. Fuller, 1 Bay, 245. 
 
 33. J. S. was indicted for maiming J. E., 
 under a statute making it felony, but pro- 
 viding that where the parties fought by 
 mutual agreement it should be a less offense. 
 The verdict was: "We, the jury, do find 
 the within named J.S. not guilty as charged 
 in the within indictment, but find that he 
 and the within named J. E. fought by 
 mutual agreement. Held that although the 
 verdict ought to have stated more explicitly 
 that the accused was not guilty as charged, 
 but that he and J. E. fought by mutual 
 agreement, whereby the latter was maimed, 
 yet that as it would bear that construction, 
 it was sufficient. Strawu v. State, 14 Ark. 
 549. 
 
 34. Under an indictment for a felony, 
 the accused may be convicted of a misde- 
 meanor when both offenses belong to the 
 same generic class, and the indictment for 
 the higher offense contains all the averments 
 necessary to let in proof of the luisdemeanor. 
 Cameron v. State, 8 Eug:. 713.
 
 640 
 
 VERDICT. 
 
 Nature and Requisites. 
 
 General Verdict. 
 
 35. In North Carolina, the rule of the 
 common law prevails, that under an indict- 
 ment for a felony there cannot be a convic- 
 tion of a minor offense included in it, if 
 such minor offense be a misdemeanor. State 
 V. Durham, 72 N. C. 447. 
 
 36. In Iowa, it has been held that when 
 the accused is prosecuted for a higher 
 offense than he can be convicted for under 
 the indictment, he cannot be legally con- 
 victed of a lower grade of the offense, not- 
 withstanding the indictment is good as to 
 the latter. State v. Boyle, 28 Iowa, 522; 
 approving State v. Tweedy, 11 lb. 350, 
 Williams, J., dissenting ; State v. Knouse, 29 
 lb. 118; State v. McNally, 32 lb. 580. 
 
 37. Under indictment containing sev- 
 eral counts. There may be a general ver- 
 dict of guilty where the evidence is appli- 
 cable to either count of the indictment. 
 Bennett v. State, 8 Humph. 118; and one 
 good count is sufficient. Com. v. Hawkins, 
 3 Gray, 463 ; State v. Burke, 38 Maine, 574 : 
 State V. Mayberj', 48 lb. 218; Guenther v. 
 People, 24 N. Y. 100. 
 
 38. Where an indictment contains good 
 and bad counts, a general verdict will be 
 referred to the former. West v. State, 2 
 Ala. 212; Shaw v. State, 18 Ala. 547; 
 Brown v. State, 5 Eng. 607 ; Turk v. State, 
 7 Ohio, 240 ; State v. Jennings, 18 Mo. 435 ; 
 Curtis V. People, Breese, 197; Harris v. 
 Purdy, 1 Stewart, 231 ; State v. Hooker, 17 
 Vt. 658; Bently v. State, 13 lb. 468; Wash 
 V. State, 14 Smed. & Marsh. 120; Frazier v. 
 State, 5 Mo. 536 ; Roberts v. State, 14 Ga. 
 8 ; Baron v. People, 1 Parker, 246 ; People 
 V. Wiley, 3 Hill, 194; State v. Anderson, 1 
 Strobh. 455; State v. Sutton, 3 Gill, 194; 
 People V. Davis, 45 Barb. 494. 
 
 39. When all the counts of an indictment 
 are substantially for the same offense, and 
 differ only in the description of the means 
 used to accomplish it, a general verdict may 
 be rendered. State v. Wright, 53 Maine, 
 328. And the judge is not bound to direct 
 the jury to bring in separate findings. State 
 V. Lang, 63 lb. 215. But the defendant is 
 entitled to a verdict upon each and all the 
 substantive charges in the indictment, and 
 it is the duty of the court to require the jury 
 
 to respond distinctly to the several counts 
 contained therein. When the verdict is 
 guilty on one of several counts, and silent 
 as to the rest, it is tantamount to an acquit- 
 tal as to the latter. State v. Phinney, 42 
 lb. 384; State v. Watson, 63 lb. 128; Mar- 
 tin V. State, 28 Ala. 71. 
 
 40. On the trial of an indictment contain- 
 ing twenty counts, the verdict was : ' ' We, 
 the jury, find the defendant guilty on ten 
 counts," on which the court rendered judg- 
 ment. Held error. The verdict should have 
 specified the counts on which the jury found 
 the defendant guilty. Day v. People, 76 
 111. 380. 
 
 41. Under indictment against several. 
 Where the indictment charges several with 
 a joint offense, they cannot be found guilty 
 separately of separate parts of the charge. 
 Hall V. State, 8 Ind. 439. 
 
 42. Though several concerned in the same 
 offense may be jointly indicted and tried, 
 yet the verdict and judgment should be 
 several. Straughan v. State, 16 Ark. 37. 
 
 43. Where the indictment is against two 
 or more, the charge is several as well as 
 joint, so that if one is found guilty verdict 
 and judgment may be rendered against him. 
 The exceptions to the rule are where the 
 agency of two or more is of the essence of 
 the offense, as in conspiracy and riot, and 
 perhaps in some other cases. Com. v. 
 Griffin, 3 Cush. 523. 
 
 44. Although several are jointly indicted 
 for distinct offenses, which are not sus- 
 ceptible of being committed by more than 
 one person, yet if the defendant on trial is 
 charged with committing an offense, he may 
 convicted. Weatherford v. Com. 10 Bush, 
 Ky. 196. 
 
 45. Except in indictments for offenses 
 necessarily joint, joint defendants may be 
 convicted of different degrees of criminality 
 in the same offense. Where therefore two 
 are jointly indicted for the same larceny, one 
 of them may be convicted of an attemjit 
 to commit it and the other of the full 
 crime. Klein v. People, 31 K Y. 229. Or 
 some of the defendants may be convicted 
 and others acquitted, except in cases where 
 the conviction is of an offense to constitute
 
 YEEDICT. 
 
 641 
 
 Nature and Requisites. Special Verdict. How Recorded. 
 
 Validity. 
 
 which all must have participated. People 
 v. White, 55 Barb. 606. 
 
 46. Where several are jointly iuclicted and 
 tried for murder, the court, upon the con- 
 clusion of the evidence for the prosecution 
 may, in the exercise of its discretion, submit 
 to the jury the cases of any of the prisoners, 
 and if the evidence against them be slight 
 may advise the jury to acquit, and if the 
 jury concur with the court in this opinion, 
 they may at once return a verdict of not 
 guilty. But this is a matter resting wholly 
 in the discretion of the court. State v. 
 O'Brien, 7 R. I. 336. 
 
 47. Need not find malice. Where an 
 offense consists in doing acts prohibited by 
 a statute, the jury need not find that the 
 defendant was actuated by express malice, 
 but only that he was guilty of the act. 
 People V. Reed, 47 Barb. 235. 
 
 48. Must be oral. A written verdict, 
 unless directed by the court, is irregular and 
 may be rejected. Lord v. State, 16 New 
 Hamp. 825. 
 
 49. Sealed verdict. If the jury separate 
 after being sent out, the fact that they 
 agreed before they separated must be shown 
 by a verdict sealed up and brought into 
 court, where it must be opened and read, 
 and their verdict after such separation can- 
 not be otherwise received. Com. v. Durfee, 
 100 Mass. 146. See Com. v. Doru?, 108 
 Mass. 488. 
 
 50. The jury on a trial for larceny were 
 told that if they agreed tliey might bring in 
 a sealed verdict, and the following form was 
 handed to them : " In case of Common- 
 wealth V. , the jury find defendant 
 
 guilty or not guilty, as the case may be." 
 The foreman of the jury upon their agreeing 
 added the word " guilty " to the foregoing, 
 and signed his name. Afterward when 
 their verdict sealed up was brought by 
 them into court it was handed by the fore- 
 man to the clerk, and opened by the latter 
 and read to the jury, and they were then 
 asked if their verdict was that the defend- 
 ant was guilty, to which they replied in the 
 affirmative. The court thereupon ordered 
 the paper to be filed as a verdict, and the 
 
 41 
 
 clerk to record a verdict of guilty. Held 
 proper. Com. v. Carrington, 116 Mass. 37. 
 
 51. Recommending to mercy. A recom- 
 mendation of the prisoner to mercy is ad- 
 dressed exclusively to the court, and is no 
 part of the verdict. People v. Lee, 17 Cal. 
 76. 
 
 (5) Special verdict. 
 
 52. Must be definite. Where a special 
 verdict does not state that the jury find in 
 one way or another according to the law as 
 determined by the court, it will be insuffi- 
 cient, and there will have to be a new trial. 
 State V. Wallace, 3 Ired. 195. 
 
 53. Must ascertain facts. A special ver- 
 dict must find facts, and not merely the evi- 
 dence from which they may be inferred. 
 State V. Watts, 10 Ired. 369. And the facts 
 found must be of an unequivocal character, 
 otherwise the com't cannot determine the 
 guilt or innocence of the defendant as a 
 question of law. State v. Curtis, 71 N. C. 
 56 ; s. c. 2 Green's Crim. Reps. 748. 
 
 54. Must find that offense was com- 
 mitted in county. A special verdict which 
 finds the defendant guilty of the acts 
 charged, but not finding that they were 
 committed in the county where the venue is 
 laid, is bad. Com. v. Call, 21 Pick. 509. 
 
 55. Consequences of being set aside. 
 Where a special verdict is set aside, the 
 court cannot enter a general verdict, but the 
 case must be sent to a new jury. State v. 
 Moore, 7 Ired. 228. 
 
 3. How RECORDED. 
 
 56. Must be in English. In Louisiana, 
 the verdict must be recorded in the English 
 language, and where it is in French the 
 court cannot, after the jury are discharged, 
 order it to be translated into English. State 
 V. Walters, 15 La. An. 648. 
 
 4. Validity. 
 
 57. Must be delivered. A verdict has 
 no validity until delivered by the jury in 
 court. State v. Mills, 19 Ark. 476. 
 
 58. Must have been arraignment and 
 plea. A verdict where there has been 
 •neither arraignment or plea is a nullity, and
 
 642 
 
 VERDICT.— VESSEL.— VOTING. 
 
 Validity. When Evidence. Adding to Equipment. Disfranchisement of Citizen. 
 
 the defect is not cured by the defendant's 
 moving for a separate trial, or the introduc- 
 tion of witnesses by him, or by the argu- 
 ment on his behalf to the jury. People v. 
 Corbett, 28 Cal. 328. 
 
 59. Inaccuracies. A name so badly 
 spoiled as to change the sound, will not 
 vitiate a verdict. State v. Floroz, 5 La. An. 
 429. 
 
 60. An indictment for murder charged 
 the accused by the name of James B. Boggs. 
 The verdict was as follows : " We find the 
 defendant, J. M. Boggs, guilty of man- 
 slaughter." Held that the verdict was suffi- 
 cient, the words " J. M. Boggs," being sur- 
 plusage. People V. Boggs, 20 Gal. 432. See 
 People V. All Kim, 34 Ih. 189. 
 
 61. Misconduct of jury. In Virginia, it 
 has been held that the use by the jury of ar- 
 dent spirits in moderation is not such an ir- 
 regularity as will vitiate the verdict. 
 Thompson v. Com. 8 Gratt. 637. 
 
 62. The misconduct of jurors being estab- 
 lished, it imposes on the prosecution the 
 neeessity of removing suspicion by showing 
 that the offending jurors were not influenced 
 adversely to the defendant, or in any respect 
 rendered less capable of discharging their 
 duties. Creek v. State, 24 Ind. 151. 
 
 63. Jurors not permitted to impeach 
 verdict. The testimony of jurors is not 
 admissible to explain the grounds of their 
 decision, or to impeach the validity of their 
 finding. Com. v. Skeggs, 3 Bush, ] 9 ; Peo- 
 ple v. Hartung, 4 Parker, 256 ; Reins v. 
 People, 30 III. 256; State v. McLeod, 1 
 Hawks, 344; Bishop v. State, 9 Ga. 121. 
 Contra, State v. Freeman, 5 Conn. 348. 
 
 64. After a conviction for murder, a juror 
 stated that " he did not agree to the verdict, 
 but suffered it to be brought in, because he 
 could not control the rest of the jury." 
 Held that he could not be allowed in this 
 way to impeach his verdict. Mercer v. 
 State, 17Ga. 146. 
 
 65. Testimony of jurors to sustain ver- 
 dict. The affidavits of the jurors themselves 
 in answer to a charge of irregularity or 
 abuse, are usually received, though not re- 
 regarded as entitled to a great deal of 
 weight. Eastwood v. Peojjle, 3 Parker, 25. 
 
 66. Tlie affidavits of the jurors are com- 
 petent evidence to prove that they did not 
 read or hear read any papers before their 
 verdict. State v. Hascall, 6 N. Hamp. 352. 
 
 5. When evidence. 
 
 67. Under plea of former acquittal. 
 
 On a plea of fonner acquittal, the former 
 verdict may be given in evidence without 
 judgment thereon. West v. State, 2 Ala. 
 212. 
 
 68. On trial of principal in second de- 
 gree. The indictment, judgment, and ver- 
 dict against the principal in the first degree, 
 may be given in evidence on the trial of the 
 principal in the second degree. Studstill v. 
 State, 7 Ga. 2. 
 
 See Judgment; Trial. As to setting 
 aside verdict, see New trial. For verdict 
 in the several offenses, see the titles of those 
 offenses. 
 
 bcsscl. 
 
 1. Adding to equipment. Adding to the 
 number or size of the guns of a belligerent 
 vessel which was armed when she .arrived at 
 the United States, or adding to her any war- 
 like equipment, was held indictable under 
 the fourth section of the act of Congress of 
 June 5th, 1794. U. S. v. Grassin, 3 Wash. 
 C. C. 65. 
 
 2. Destruction. On the trial of an indict- 
 ment for casting away and destroying a 
 vessel with the intention of injuring the 
 underwriters, the prosecution must prove a 
 valid insurance. U. S. v. Johns, 1 Wash. C. 
 C. 363. 
 
 botiug. 
 
 1. Disfranchisement of citizen. 
 
 2. Illegal voting. 
 
 {a) Offense in general, 
 (i) Indictment. 
 {(i) Evidence. 
 
 3. Betting at election. 
 
 1. Disfranchisement of citizen. 
 1. On account of desertion. A citizen of
 
 YOTING-. 
 
 643 
 
 Disfranchisement of Citizen. Illegal Voting. Offense in General. Indictment. 
 
 the State cannot be deprived of the right of 
 suffrage, or any right of citizenship under 
 the act of Congress (ch. 79, § 21, approved 
 March 2d, 1865), on the ground of desertion, 
 until after trial, conviction and sentence by 
 a court martial, and the approval of the 
 same by the proper authority. State v. 
 Symonds, 57 Maine, 148. 
 
 2. By striking name from list of voters. 
 In New Hampshire, where selectmen in the 
 honest and diligent discharge of their duties, 
 erased the name of a legal voter from the 
 list, and refused to insert it, it was held that 
 they were not liable. State v. Smith, 18 
 New Hamp. 91. 
 
 2. Illegal voting. 
 (a) Offense in general. 
 
 3. How regarded. Voting more than 
 once at the same election is an indictable 
 offense at common law. Com. v. Silsbee, 9 
 Mass. 417. 
 
 4. What constitutes. When a person 
 votes knowing at the time the existence of 
 facts which disqualify him in point of law, 
 he is guilty of a misdemeanor. McGuire v. 
 State, 7 Humph. 54. But to make a person 
 voting or attempting to vote, liable, he must 
 know at the time that he is not a qualified 
 voter. Com. v. Aglar, Thach. Crim. Cas. 
 412. Such knowledge will generally be pre- 
 sumed. Com. V. Wallace, lb. 592 ; Com. v. 
 Bradford, 9 Mete. 268. 
 
 5. Voting at illegal election. It is not 
 a defense to an indictment for illegal voting 
 that the election was conducted illegally. 
 State V. Cohoon, 12 Ired. 178. 
 
 6. If a supervisor acting as a member of 
 the board, knowingly, corruptly, unlawfully 
 and partially, votes that an account present- 
 ed against the county as a county charge be 
 allowed and made a charge against the 
 county, he is guilty of a misdemeanor ; and 
 it is no defense that the i)oard acted without 
 jurisdiction. People v. Stocking, 6 Parker, 
 263. 
 
 7. Aiding and abetting illegal voting. 
 To make a person a willful aider and abettor 
 in illegal voting under the statute of Massa- 
 chusetts, he must know at the time that the 
 person was disqualified as a voter, and he 
 
 must have done or said something which 
 was designed and calculated to encourage 
 the party to vote. Com. v. Aglar, Thach. 
 Crim. Cas. 412. 
 
 8. AVhere a son resisted by threats a 
 demand made upon his father by the judges 
 of an election to answer certain questions 
 which the judges had no right to ask, he 
 was held not liable to an indictment under 
 the election law of Pennsylvania. Com. v. 
 Gibbs, 4 Ball. 253. 
 
 9. Preventing persons from voting. On 
 the trial of an indictment for preventing 
 voters from exercising the right of suffrage 
 it was proved that whilst the room at which 
 the election was held was well filled with 
 colored voters, waiting for an ojjportunity 
 to cast their ballots, a violent attack was 
 made upon them by the defendant and 
 others, driving them forcibly from the room 
 into the street and closing or attempting to 
 close the door against them, but that they 
 subsequently went back and voted, lleld 
 sufficient to sustain a conviction under the 
 act of Congress of May 31, 1870, § 19 (16 
 Stats, at Large, 144). U. S. v. Souders, 2 
 Abb. 456. 
 
 (b) Indictment. 
 
 10. Must aver the grounds of the de- 
 fendant's disability. Where a person is 
 charged with voting at an election without 
 being qualified, the indictment must show 
 the grounds of his disqualification. People 
 V. Standish, 6 Parker, 111; State v. Moore, 
 3 Dutch. 105; State v. Tweed, lb. Ill; 
 Quinn v. State, 35 Ind. 485. 
 
 11. Unnecessary averments. An in- 
 dictment under the statute of New York, 
 for a misdemeanor in voting at a general 
 election after conviction of crime, need 
 not contain the words " knovvingly, will- 
 fully and corruptly," and if inserted they 
 will be regarded as surplusage ; the word 
 " unlawfully " being all that is necessary. 
 Hamilton v. People, 57 Barb. 625. 
 
 12. An indictment for illegal voting at a 
 town meeting is sufficient, which states that 
 the meeting was duly holden, without setting 
 forth the authority by which the meeting
 
 644 
 
 VOTING. 
 
 Illegal Voting. 
 
 Indictment. 
 
 Evidence. 
 
 was called, or the manner of calling it. 
 State Y. Marshall, 45 New Harap. 281. 
 
 13. Form of indictment. In Maine, the 
 following indictment for double voting at a 
 State election (R. S. ch. 4, §61), was held 
 good : " That on the 14th day of September, 
 18G8, at, &c., a meeting of the inhabitants 
 of &c., for the election of (certain State and 
 county officers specified), and representatives 
 of the Legislature for said, &c., was then 
 and there duly held; and at said election, 
 a list of the voters of, &c., was necessary; 
 that the defendant did then and there at the 
 meeting and election aforesaid, willfully, 
 knowingly, and unlawfully cast and give in 
 more than one vote, ballot and list of persons 
 then and there to be elected and chosen into 
 the said ofiices at one balloting, at the 
 choice and selection aforesaid, against the 
 peace,'' &c. State v. Boyington, 56 Maine, 
 513. 
 
 (c) Ecidence. 
 
 14. In behalf of prosecution. The essence 
 of the ofl'euse of illegal voting is, that the 
 defendant voted knowing that he was dis- 
 qualified. Under the indictment, any dis- 
 ability may be shown ; or the jirosecution 
 may prove from the admissions of the defend- 
 ant or otherwise that he knew he was disqual- 
 ified, and was in fact disqualified, without 
 showing in what the disqualification con- 
 sisted. State v. Douglass, 7 Iowa, 413. 
 
 15. Where an indictment for illegal vot- 
 ing at an election for State officers, did not 
 allege that the defendant was a deserter from 
 the United States army, it was held that 
 the fact of such desertion could not be 
 proved on the trial, by the admissions of the 
 defendant, nor by the roll of the company 
 to which he belonged. State v. Symonds, 
 57 Maine, 148. 
 
 16. For defense. "Where on the trial of 
 an indictment for a misdemeanor for voting 
 at a general election, after conviction of 
 felony, the prosecution introduces no proof 
 beyond the act itself, to show that the con- 
 duct of the accused was willful or corrupt, 
 the latter need not prove the absence of will- 
 fulness or corruption. Hamilton v. Peojjle, 
 57 Barb. 625. 
 
 17. On the trial of an indictment under a 
 statute making it a felony for any person 
 other than an inspector of elections to know- 
 ingly and willfully jjut, or cause to be put 
 ballots into a ballot box at an election, the 
 defendant admitted that he was not an. 
 inspector, and that he did put ballots into a 
 ballot box at an election ; but he sought to 
 prove that he was acting as inspector instead 
 of one C, who had by power of attorney 
 appointed the defendant to act in his place. 
 Held that the evidence was properly rejected. 
 Hogau V. People, 2 N. Y. Supm. N. S. 535. 
 
 18. On the trial of an indictment for 
 fraudulent voting, the defendant's state- 
 ments under oath at the polls, on being 
 challenged, and the decision of the judgesof 
 election in favor of his right to vote, are not 
 competent evidence in his behalf. Morris 
 V. State, 7 Blackf. 607. 
 
 19. Although ignorance of the law will 
 not excuse, yet a person may be excused for 
 having committed an act by reason of his 
 ignorance of facts, which ignorance of facts 
 he may prove to rebut the presumption of 
 knowledge, and to show an innocent intent. 
 Hamilton v. People, 57 Barb. 625. 
 
 20. On the trial of an indictment for a 
 misdemeanor for voting at a general elec- 
 tion, after conviction of felony, contrary to 
 the statute of New York, the following evi- 
 dence was deemed equivalent to an offer to 
 prove ignorance of the law, and therefore 
 inadmissible : That before the accused was 
 discharged from State prison, he applied to 
 the governor for pardon, and that the gov- 
 ernor replied in writing that, on account of 
 the prisoner's being a minor at the time of 
 his discharge from prison, a pardon would 
 not be necessary in his case; that he then 
 stated his case to two counsel of the Su- 
 preme Court, and was advised by both of 
 them that the right of voting was not taken 
 away from him by the conviction, and that 
 on his coming of age he would have a per- 
 fect right to vote. lb. 
 
 21. It is no defense to an indictment for 
 illegal voting, that the defendant was ad- 
 vised by a respectable jjerson that he had a 
 right to vote. State v. Boyett, 10 Ired. 336. 
 But otherwise, if he made a true statement
 
 YOTING.— WAREANT. 
 
 645 
 
 Illegal Voting. Betting at Election. 
 
 Right and Duty of Magistrate to Issue. 
 
 of the facts of his case, to a person capable 
 of advising him coiTcctly. Com. v. Brad- 
 ford, 9 Mete. 268. 
 
 22. On the trial of an indictment for 
 voting twice at the same election, the de- 
 fendant may show that he was intoxicated 
 at the time. People v. Harris, 29 Cal. 678. 
 
 3. Betting at election. 
 
 23. What deemed a bet. A sale of prop- 
 erty to be paid for at its fair value, or at 
 more than its fair value, in a certain event 
 of a pending election, and not to be paid 
 for at all, or to be paid for at more or less 
 than its real value, as understood between 
 the parties in a different event of the same 
 election, constitutes a bet. Com. v. Shouse, 
 16 B. Mon. 325. 
 
 24. When not indicta,ble. In Tennessee, 
 betting on an election to be held in another 
 State, is not indictable ; and the same is true 
 as to betting on the result of an election in 
 Tennessee, after the election is over. State 
 V. McLelland, 4 Sneed, 437. 
 
 25. Prosecution when barred. When a 
 bet is made upon several different results of 
 the same election, the whole to be taken as 
 one l?et, a' conviction for one will bar a 
 prosecution for the rest. Ramsey v. State, 
 5 Sneed, G52. 
 
 26. Indictment. An indictment for bet- 
 ting on an election with reference to the 
 success or defeat of a certain person, must 
 allege that such person was a candidate, or 
 was proposed or voted for, for an office. 
 Com. v. Shouse, 16 B. Mon. 325. But it is 
 otherwise as to an indictment for bribery at 
 an election. Com. v. Stephenson, 3 Mete. 
 Ey. 226. 
 
 27. An indictment for betting on an elec- 
 tion for president and vice-i^resident of the 
 United States, is good, without referring to 
 the electors. Porter v. State, 5 Sneed, 358 ; 
 Somers v. State, lb. 438. 
 
 28. Evidence. An indictment for bet- 
 ting on the result of an election charged that 
 the bet was made before the election was 
 held. The proof showed that the bet was 
 made afterward, but before the result was 
 known. Held, that the variance w»as not 
 material. Miller v. State, 33 Miss. 356. 
 
 29. An indictment charged that the de- 
 fendant bet money on the result of an elec- 
 tion for State electors to vote for president 
 and vice-president of the United States. It 
 was proved that the defendant bet on the 
 result of the State election between the then 
 candidates for president and vice-president 
 of the United States. Held that the va- 
 riance was fatal. Gamble v. State, 35 Miss. 
 222. 
 
 30. Decision of inspectors of election as 
 to bet. Whether or not a person offering a 
 vote has bet on the result of the election, is 
 a mixed question of law and fact, in the de- 
 termination of which the inspectors act in a 
 quasi judicial capacity; and if, in deciding 
 it, they act honestly, and to the best of their 
 ability, they are not liable. Byrne v. State, 
 12 Wis. 519. 
 
 8ee Bribery ; Gajiing. 
 
 Id arrant 
 
 1. Right and duty of magistrate to is- 
 sue. A magistrate cannot lawfully issue a 
 warrant of arrest on a criminal charge, on 
 information and belief, when positive testi- 
 mony is accessible. Comfort v. Fulton, 39 
 Barb. 56. 
 
 2. A magistrate may issue a warrant on 
 view, but except in that case, it is his duty 
 before issuing it to require evidence on oath 
 amounting to a direct charge, or creating a 
 strong suspicion of guilt. Welch v. Scott, 
 5 Ired. 72. 
 
 3. Mere hearsay is not a ground for the 
 issuing of a warrant, and even if it be 
 alleged that the prisoner will escape before 
 the necessary affidavit showing his guilt 
 can be obtained, this will not be sufficient. 
 Connor v. Com. 3 Binn. 38. 
 
 4. The verification of a positive charge 
 by an oath will justify a magistrate in issu- 
 ing his warrant of arrest. State v. Hobbs, 
 39 Me. 212. Where the affidavit for a war- 
 rant stated in substance that the defendant 
 did designedly and l)y false pretenses obtain 
 from the complainant a sulky of the value 
 of $30 by falsely stating and representing to 
 him that his sulky was hard to ride in, and
 
 646 
 
 WAKEANT. 
 
 Statement of Time of Issuing. 
 
 How to be Directed. 
 
 that he wished the complainant's sulky to 
 ride to Albany, and would return it the next 
 week, but that he shipped it from Albany 
 to Fort Plain with intent to cheat and de- 
 fraud the complainant — Held that the evi- 
 dence upon which the warrant was issued 
 was colorable, and sufficient to call upon 
 the magistrate to exercise his judgment in 
 determining the propriety of issuing it. 
 Pratt V. Bogardus, 49 Barb. 89. 
 
 5. Statement of time of issuing. AVhere 
 a warrant bore date April 2d, and the certi- 
 ficate of the oath was dated May 2d, and 
 both were on the same piece of paper, and 
 the complaint alleged that the offense was 
 committed on the 30th of April, and the 
 warrant referred to the complaint, it was 
 held to be sufficient to show that the com- 
 plaint preceded the warrant. Donahoe v. 
 Shed, 8 Mete. 326. 
 
 6. Need not contain facts stated to 
 magistrate. The complaint or warrant 
 need not set forth the facts disclosed to the 
 magistrate on oath, unless the case be one 
 in which it is required by statute. State v. 
 Hobbs, 39 Maine, 212. 
 
 7. Necessary averments. A warrant of 
 arrest must specify the offense, the authority 
 under which it is issued, the person who is 
 to execute it, and the jjerson to be arrested. 
 Brady v. Davis, 9 Ga. 73. 
 
 8. Need not state the proof. A crimi- 
 nal warrant need not set out the evidence 
 by which the charge is to be supported, but 
 only " recite the accusation " in language 
 which indicates with reasonable certainty 
 the crime sought to be charged. Pratt v. 
 Bogardus, 49 Barb. 89; State v. Everett, 
 Dudley, S. C. 295. 
 
 9. Name of defendant. A warrant must 
 state the name of the party to be arrested if 
 known. If the name be unknown, the war- 
 rant must indicate clearly on whom it is to 
 be served, by stating his occupation, personal 
 appearance and peculiarities, the place of 
 his residence, and other circumstances by 
 which he can be identified. Com. v. Crotty, 
 10 Allen, 403. 
 
 10. Where a warrant described the person 
 to be arrested as " A. and his associates," it 
 
 was held void as to the latter. Wells v. 
 Jackson, 3 Munf. 458. 
 
 11. How to be directed. The warrant 
 must be directed to the sheriff or the con- 
 stables of the county or town, or some indi- 
 vidual officer, or to some other person by 
 name. Abbott v. Booth, 51 Barb. 546. 
 
 12. Directing to person not an officer. 
 At common law a warrant may be directed 
 to some iudifiierent person who is not an 
 officer, but a magistrate should not do this 
 when an officer can be conveniently found. 
 Ibid. 
 
 13. Substitution of person not an officer. 
 Where a warrant in the body of it was 
 directed to the sheriff or any constable of 
 the county, and the magistrate undertook 
 to confer an authority on a person who was 
 not an officer by an indorsement in the 
 nature of a permission t® make the arrest, it 
 was held not to be a valid warrant. Ibid. 
 
 14. Where a warrant was issued to bring 
 a person before the court to give sureties of 
 the peace, and the magistrate had desig- 
 nated an officer to execute it, it was held 
 that if such officer's name was erased and 
 some other person's name who . was not a 
 swoni officer inserted by the prosecutor, an 
 arrest made by such jjerson was void. Wells 
 V. Jackson, 3 Munf. 458. 
 
 15. Command. A warrant shouldcontaiu 
 a command or a requirement in the nature 
 thereof to the person to whom the warrant 
 is directed to make the arrest. A mere 
 authority in the nature of a license, or per- 
 mission to make the arrest is not sufficient. 
 Abott V. Booth, supra. 
 
 16. The mandatory part of the warrant is 
 that which gives it efficacy as process, and 
 under that the officer must justify. There- 
 fore a warrant which recites a complaint 
 against John R. Miller, and commands the 
 officer to arrest the said William Miller, will 
 be no protection to the officer in arresting 
 John R., although he was the person in- 
 tended. Miller v. Foley, 28 Barb. 630. 
 
 17. Must be under seal. As the common 
 law required a warrant to be under seal, the 
 same is essential in all cases in which war- 
 rants are not expressly authorized to be is-
 
 WAERANT.— WEIGHTS AND MEASURES.— WITNESS. 647 
 
 Must be under Seal. Fraud in the Use of. Persons who are Competent to Testify. 
 
 sued without seal. Peoj^le v. Holcomb, 3 
 Parker, 656. 
 
 18. Tn Maine, warrants issued for the ar- 
 rest or imprisonment of persons must be un- 
 der seal. State v. Drake, 36 Maine, 366. In 
 North Carolina, there must be a seal to every 
 warrant issued by a magistrate to arrest any 
 person upon a criminal charge, and if there 
 be no seal, the precept will afford no protec- 
 tion to the officer attempting to execute it. 
 State V. Worley, 11 Ired. 243; Welch v. 
 State, lb. 72. 
 
 19. To be shown and explained to party 
 arrested. Where au arrest is made by 
 virtue of a warrant, the warrant being de- 
 manded, should be produced. But the ar- 
 rest, the explanation, and the reading of the 
 warrant when demanded, are obviously suc- 
 cessive steps. In the case of a known offi- 
 cer, the explanation must follow the airest ; 
 and the explanation and perusal of the war- 
 rant must come after the authority of the 
 officer has been acknowledged. If the offi- 
 cer is not known as such, he should show 
 his warrant before making the arrest. U. 
 S. V. Jailer of Fayette County, 2 Abb. 265. 
 
 See Arrest ; Officer ; Search warrant. 
 
 Id 
 
 cajjons. 
 
 See Concealed weapons. 
 
 iDcigljts aui ittcasurcs. 
 
 Fraud in the use of. It is indictable at 
 common law to deprive another of his prop- 
 erty by using false w^eights or measures; 
 but not to get possession of another's goods 
 merely by falsehood without any other 
 fraudulent act. Com. v. Warren, 6 Mass. 
 72. 
 
 Il3ituc00, 
 
 1. Persons who are competent or in- 
 
 COMPEtENT to TESTIFY. 
 
 2. Procuring attendance. 
 
 3. Introducing. 
 
 y 
 
 4. Examination. 
 
 {a) In general. 
 
 (b) Attaching credibility of witness. 
 
 {c) Sustaining credibility of icitness. 
 
 1. Persons who are competent or in- 
 competent TO testify. 
 
 1. In general. All persons who are dis- 
 interested and not infamous, are competent 
 witnesses, and are presumed to be so until 
 the contrary is shown. Cornelius v. State, 
 7 Eng. 782. 
 
 2. On the trial of an indictment for per- 
 jury, a person who heard all but a small 
 portion of the alleged false testimony was 
 held to be a competent witness. Com. v. 
 Farley, Thach. Crim. Cas. 654. 
 
 3. A person who is acquainted with the 
 dividing line between two towns, has lived 
 near it, and run it when measuring his own 
 land, is competent to prove on which side 
 of the line a tenement is situated. Com. v. 
 Heffron, 102 Mass. 148. 
 
 4. Young child. A child under the age 
 of seven years, if it has sufficient knowledge 
 of the nature and circumstances of an oath, 
 may be a witness. This is to be determined 
 by the court. State v. Morea, 2 Ala. 275 ; 
 and it is not in general the subject of excep- 
 tion. Com. V. MuUins, 2 Allen, 295. On a 
 trial for murder, a girl seven or eight years 
 of age being offered as a witness and inter- 
 rogated to test her capacity, stated that 
 " if she told a story she would be put in jail 
 as a punishment." Held not error to permit 
 her to testify. Peterson v. State, 47 Ga. 524 ; 
 s. c. 1 Green's Crim. Reps. 576. 
 
 5. A child of any age that is capable of 
 distinguishing between right and wrong, 
 may be examined as a witness; and the 
 credit due to the testimony is to be left to 
 jury. State v. Whittier, 2 Mo. 341. 
 
 6. In South Carolina, the evidence of a 
 child of seven years which was corroborated 
 by circumstances, w'as held sufficient to sus- 
 tain a conviction. State v. Le Blanc, 3 Brev. 
 339. • 
 
 7. On the trial of an indictment for rape, 
 the prosecuting witness was a child six years 
 of age, and the offense was committed six- 
 teen months previous. The court examined
 
 C48 
 
 WITNESS. 
 
 Persons who are Competent or Incompetent to Testify. 
 
 the Avitness as to her competency, and 
 not being satisfied, appointed two persons 
 who retired with the child to a private room, 
 and after some time returned and reported 
 to the court that, " in their opinion, her tes- 
 timony ought to be heard, but received with 
 great allowance." Whereupon she was al- 
 lowed to testify against the defendant's ob- 
 jection. Held that the court should have 
 acted on its own judgment, and that the de- 
 fendant was entitled to a new trial. Simp- 
 son v. State, 31 Ind. 90. 
 
 8. A boy nine years old was called to 
 testify, who stated that he did not know 
 the nature of an oath or the obligations of 
 a witness, and had never been sworn. The 
 court ruled that he was not competent as a 
 witness, and declined to instruct him as to 
 the nature and obligations of an oath. Held 
 correct. Jones v. People, 6 Parker, 126. 
 
 9. Lunatic. The fact that a witness is a 
 lunatic is not enough jser se to exclude him. 
 If he has such a share of understanding as 
 enables him to remember the events of which- 
 he testifies, and gives him a knowledge of 
 right and wrong, he is competent. Coleman 
 V. Com. 25 Gratt. 865. 
 
 10. Persons disregarding order of court 
 excluding them from the court room. 
 Where the witnesses are sent out by order 
 of the court, and one of them, by accident 
 or design, gets back into the court room, 
 he is not for that reason to be prevented 
 from testifying; but it is a matter going to 
 his credit. Gregg v. State, 3 West Va. 705 ; 
 People V. Boscovitch, 20 Cal. 436. 
 
 11. Competency not aflfected by re- 
 ligious belief. A person who disbelieves ; 
 in a future state of rewards and punish- 
 ments, but that they are dispensed in this 
 life, is a competent witness. U. S. v. Ken- 
 nedy, 3 McLean, 175; Bennett v. State, 1 
 Swan, 411; Noble v. People, Breese, 29. 
 In California, the constitutional provision 
 (Const, art. 1, § 4), permitting a witness to 
 testify irrespective of his opinion on matters 
 of religious belief, is applicable to a person 
 who makes a dying declaration. People v. 
 Sanford, 43 Cal. 29, Crockett, J., dissenting; 
 s. c. 1 Green's Crim. Reps. 682. 
 
 12. In Virginia, a person is not disqualified 
 
 from testifying as a witness on account of 
 religious unbelief. Perry's Case, 3 Gratt. 
 632. 
 
 13. Persons interested. The officer who 
 arrested the prisoner is a competent wit- 
 ness, although liable as a trespasser, if the 
 arrest should prove to have been wrongful. 
 Com. V. Meriill, Thach. Crim. Cas. 1. 
 
 14. On a trial for murder, a person who 
 aided in arresting the prisoner, and received 
 a reward therefor, is a competent witness 
 for the prosecution. Baxter v. People, 3 
 Gilman, 368. 
 
 15. On a trial for forgery, the person 
 whose name was forged may testify to the 
 forgery, although actions are pending 
 against him, to which his only defense is 
 the forgery. Com. v. Peck, 1 Mete. 428. 
 And the person to whom the forged instru- 
 ment was passed is a competent witness, 
 State V. Nettleton, 1 Root, 308. But the 
 forged instrument should be produced. 
 Com. V. Hutchinson, 1 Mass. 7. 
 
 16. A person from whom goods have been 
 stolen may be a witness as to any facts with- 
 in his knowledge. Com. v. Moulton, 9 
 Mass. 30; State v. Cassados, 1 Nott & 
 McCord, 91. But not when he is entitled 
 to treble the value of the property stolen, 
 upon the conviction of the prisoner. State 
 V. Prey, 14 New Hamp. 464. 
 
 17. Prisoner's counsel. The attorney who 
 acted for the defendant on the preliminary 
 examination before the magistrate, but who 
 is not retained at the trial, may be sworn to 
 prove what a witness at such examination 
 testified, although he is obliged to refresh 
 his recollection from his minutes, and can- 
 not give the testimony verbatim. Com. v. 
 Goddard, 14 Gray, 402; s. c. 2 Allen, 148; 
 4 lb. 312. 
 
 18. Prosecutor. A prosecutor has been 
 held a competent witness for the State, not- 
 withstanding his liability for costs, in case 
 the prosecution fail. State v. Blannerhas- 
 sett. Walker, 7. But in Kentucky, it was 
 held otherwise as to one who had under- 
 taken to indemnify the prosecutor in case 
 he had the costs to pay. Com. v. Gore, 3 
 Dana, 475 
 
 19. Informer. An informer is a compe-
 
 WITNESS. 
 
 649 
 
 Persons who are Competent or Incompetent to Testify. 
 
 tent witness, although he is to receive part 
 of the j)enalty. U. S. v. Patterson, 3 Mc- 
 Lean, 53, 299. 
 
 20. Accomplice. An accomplice should 
 not be made a witness without an order 
 from the court ; and the application ought 
 to show that there is no other witness by 
 whom the oflFense can be proved ; that the 
 accomplice is not more guilty than the per- 
 son on trial, and that the testimony can be 
 corroborated. Ray v. State, 1 Greene, Iowa, 
 316; People v. Whipple, 9 Cow. 707; Byrd 
 V. Com. 2 Va. Cas. 493; U. S. v. Henry, 4 
 Wash. C. C. 428. 
 
 21. An accomplice, after conviction, and 
 before judgment, or after plea of guilty, may 
 be a witness for his codefeudant when they 
 are tried separately. Garrett v. State, 6 
 Mo. 1. The principal may be a witness 
 against the accessory. People v. Lohmau, 2 
 Barb. 216 ; 1 N. Y. 379. 
 
 22. An accomplice testifying as a witness 
 is not to be discredited from the mere fact 
 of his being such accomplice. U. S. v. Kep- 
 ler, 1 Baldw. 22. The prisoner may be con- 
 victed upon the uncorroborated testimony 
 of an accomplice. People v. Costello, 1 
 Denio, 86. But such testimony ought, in 
 general, to be corroborated. U. S. v. Troax, 
 3 McLean, 431. See ante, Evidence, tit. 13. 
 
 23. In Alabama, a partner of one of the 
 players in his winnings or losses in the 
 game in which the defendant played and 
 advanced money to the defendant, which 
 was used by him in betting on the game, is 
 an accomplice within the statute (Code, 
 § 3600), which forbids a conviction on the 
 uncorroborated testimony of an accomplice. 
 English v. State, 35 Ala. 428. 
 
 24. The testimony of one accomplice can- 
 not be corroborated by that of another ac- 
 complice. Johnson v. State, 4 Greene, 65. 
 
 25. It is for the jury to determine whether 
 or not a witness jointly indicted with the 
 defendant is an accomplice. State v. Schla- 
 gel, 19 Iowa, 169. 
 
 26. A detective is not an accomplice; and 
 the question whether a person acted in that 
 capacity is to be determined by the jury. 
 State V. McKean, 36 Iowa, 343. 
 
 27. Accomplice not privileged from tes- 
 
 tifying. When an accomplice testifies in 
 behalf of the prosecution, he cannot sliield 
 himself, on cross-examination, from making 
 a full disclosure of his connection with the 
 offense which is being tried. Foster v. 
 People, 18 Mich. 266. But he is not obliged 
 to disclose his criminality in other trans- 
 actions. Pitcher v. People, 16 lb. 142. 
 
 28. WhcTi a codefendant turns State's evi- 
 dence he has no right to claim any privilege 
 concerning any of the facts bearing upon the 
 issue ; and his waiver of privilege includes 
 confidential communications to counsel. 
 Hamilton v. People, 29 Mich. 173, referring 
 to Alderman v. People, 4 lb. 414, and Fos- 
 ter V. People, 18 lb. 266. 
 
 29. Accomplice not entitled to favor. 
 An accomplice who voluntarily gives his 
 evidence, is not thereby discharged from 
 punishment, nor is he entitled to a pardon. 
 His competency as a witness depends on the 
 ancient principles of the common law. 
 Sumpter v. State, 11 Fla. 247. 
 
 30. An accomplice, after testifying, may 
 be tried for another crime ; and the fact that 
 he is charged with a distinct felony is good 
 cause to reject him as a witness. People v. 
 Whipple, 9 Cow. 707. 
 
 31. Codefendant. In general, a defend- 
 ant cannot be a witness for his codefendant 
 until he has ceased to be a party to the pro- 
 ceeding, either by a verdict of acquittal, an 
 entry of a nolle jyrosequi as to him, or a 
 judgment against him upon his confession 
 or otherwise. State v. Young, 39 New 
 Hamp. 283; People v. Bill, 10 Johns. 95; 
 State V, Roberts, 15 Mo. 28; People v. 
 Williams, 19 Wend. 377; State v. Champ, 16 
 Mo. 385. 
 
 32. Where one of several jointly indicted 
 is found guilty, he may be a witness for the 
 others before sentence, or after sentence, if 
 not thereby rendered infamous. And it is 
 the same when he pleads guilty. State v. 
 Jones, 51 Maine, 125. 
 
 33. A defendant, in an indictment for a 
 felony where a separate trial is demanded 
 and allowed, is not entitled to have his co- 
 defendant, who is a party to the record, but 
 who is not on trial, sworn as a witness. Mc- 
 Intyre agst. People, 9 N. Y. 38. One jointly
 
 G50 
 
 WITNESS. 
 
 Persons who are Competent or Incompetent to Testify. 
 
 indicted with another is a competent witness 
 against his codefendant. Mackesey v. Peo- 
 ple, 6 Parker, 114. 
 
 34. When persons indicted are all jjut on 
 trial together, neither can be a witness for or 
 against the others. But when they are tried 
 separately, though jointly indicted, the 
 prosecution, with the permission of the 
 court, may call those not on trial, though 
 not convicted or acquitted, or otherwise dis- 
 charged. They cannot, howeyer, be called 
 as witnesses for each other, though separate- 
 ly tried, while the indictment is pending 
 against tliem. If acquitted, they may be ex- 
 amined, and even if convicted, unless for a 
 crime which disqualifies, and then sentence 
 must have followed conviction. Wixon v. 
 People, 5 Parker, 119, disapproving People 
 V. Donnelly, 2 Parker, 182. 
 
 35. Where the prosecution called one of 
 several defendants as a witness, which was 
 objected to, and the objection overruled, it 
 was held that this was tantamount to a for- 
 mal application for leave to swear the wit- 
 ness, and a determination by the court to 
 accede to the request. lb. 
 
 36. In Georgia, where one of several 
 jointly indicted is tried separately, a code- 
 fendant is a competent witness in his behalf. 
 Jones V. State, 1 Kelly, 610. In Mississippi, 
 where, under a joint indictment against 
 two, one of them is found guilty of an of- 
 fense not infamous, he may be a witness for 
 his codefendant; and where several are 
 charged with separate and distinct offenses 
 in the same indictment, they ai'e competent 
 witnesses for each other before conviction or 
 acquittal. Strawhern v. State, 37 Miss. 
 422. When several jointly indicted for the 
 same offense are tried separately, they are 
 competent witnesses against each other. 
 George v. State, 39 lb. 570. 
 
 37. Defendant testifying in his own be- 
 half. Altliough the defendant, when he 
 offers himself as a witness in his own behalf, 
 may be cross-examined, yet the prosecution 
 cannot make him its own witness against 
 his consent. State v. Cohn, 9 Nev. 179. 
 
 38. The fact that the defendant offers him- 
 self as a witness in his own behalf, does not 
 as to him, change or modify the rule as to 
 
 the proper limits of cross-examination, so 
 as to permit the prosecution to make him a 
 witness against himself. People v. McGun- 
 gill, 41 Cal. 429. 
 
 39. In Indiana, it has been held that the 
 defendant in his capacity of witness is en- 
 titled to the same rights and is subject to 
 the same rules as any other witness. Fletcher 
 V. State, 49 Ind. 124. But it has been de- 
 cided differently in New York. In the 
 latter State, on a trial for grand larceny, 
 the prisoner was examined as a witness in 
 his own behalf vmder the provisions of the 
 statute of May 7th, 1869 (Sess. Laws of 1869, 
 ch. 678), which provides that a party ac- 
 cused of crime shall at his own request, and 
 not otherwise, be deemed a competent wit- 
 ness in his own behalf. On his cross-exam- 
 ination, he was asked if he had been in the 
 State prison. He said he had, and served 
 out his term. The district attorney re- 
 quested the court to charge the jury to 
 disregard the defendant's testimony, on the 
 ground that having served as a felon he 
 was not competent to testify as a witness. 
 Held that such instruction was improper, the 
 law intending to allow the prisoner the 
 benefit of testifying, irresiDCctive of any 
 matter which could disqualify a witness 
 under ordinary circumstances, and the de- 
 gree of credit to which he was entitled being 
 for the jury and not the court. Newman v. 
 People, 63 Barb. 630. 
 
 40. In the United States courts the pris- 
 oner cannot testify in his own behalf, al- 
 though by the statute of the State in which 
 the offense is committed he may be per- 
 mitted to do so. U. S. V. Hawthorne, 1 
 Dillon C. C. 422. 
 
 41. Husband. Where the wife is a party 
 to the record, her husband is not a com- 
 petent witness against her particeps cHminis, 
 on his separate trial, although a 7ioUe pirese- 
 qui has been entered as to the wife, but if 
 she has been tried and acquitted it is other- 
 wise. People V. Colbern, 1 Wheeler's Crim. 
 Gas. 479. 
 
 42. Where two are jointly indicted, the 
 husband of one is not a competent witness 
 for the other before con^'iction or acquittal. 
 Puller V. People, 1 Doug. 48; Shoeffler v.
 
 WITNESS. 
 
 C51 
 
 Persons who are Competent or Incompetent to Testify. 
 
 State, 3 Wis. 823. But see Moffett v. State, 
 3 Humph. 99. 
 
 43. In Maine, under the statute (Laws of 
 1873, ch. 137, § 5) in criminal cases, a hus- 
 band or wife may be compelled to testify 
 either for or against the other. State v. 
 Black, 63 Maine, 210. 
 
 44. The rite^j of matrimony had never 
 been performed between an Indian man and 
 woman, but they had cohabited together as 
 man and wife iu accordance with an ancient 
 custom of their tribe, according to which 
 couples were recognized as husband and 
 wife, but could dissolve such relation at 
 pleasure. Held not to be marriage, and 
 that they could be compelled to testify 
 against each other. State v. Ta-cha-na-tah, 
 64 N. C. 614. 
 
 45. "Wife testifying in behalf of hus- 
 band. The act of New York of 1869 (ch. 
 678_), allowing persons charged with crime 
 to be witnesses in their own behalf, relates 
 only to the accused, and does not render his 
 wife competent to testify in his behalf. 
 People V. Reagle, 60 Barb. 527. 
 
 46. Under a statute permitting the wife 
 to testify for her husband, it is error to 
 charge the jury that " her testimony at all 
 events should be received with great cau- 
 tion," she being entitled to have her credi- 
 bility tested by the same rules that apply to 
 other witnesses. State v. Guyer, 6 Iowa, 
 263 ; State v. Rankin, 8 lb. 355, Wright, 
 Ch. J., dissoiting. And see State v. Nash, 
 10 lb. 81. 
 
 47. A woman who has cohabited with the 
 prisoner as his wife, but was never married 
 to him, is a competent witness in his behalf. 
 State V. Johnson, 9 La. An. 308. 
 
 48. Wife testifying against husband. 
 The wife of the prisoner is not a competent 
 witness against him. Wilke v. People, 53 
 N. Y. 525. But where the husband testified 
 in behalf of the prosecution, it was held that 
 his wife was a competent witness for the de- 
 fense to show that -he was prejudiced against 
 the defendant. Cornelius v. State, 7 Eng. 
 782. 
 
 49. In a proceeding by a wife against her 
 husband for abandonment without provid- 
 ing her with the means of support, she is a 
 
 competent witness. State v. Newberry, 43 
 Mo. 429. 
 
 50. In North Carolina, the wife cannot be 
 a witness against her husband to prove a 
 battery on her person by him, unless a last- 
 ing injury is inflicted or threatened to be 
 inflicted upon her. State v. Hussey, Busbee, 
 123. 
 
 51. Wife of accomplice. Where it is 
 proper to allow an accomplice to be sworn, 
 his wife is also a competent witness. Wix- 
 son V. People, 5 Parker, 119 ; State v. Moore, 
 25 Iowa, 128. 
 
 52. Although the wife of an accomplice 
 cannot corroborate his particular statements, 
 yet she is a competent witness to prove any 
 independent facts not sworn to by her hus- 
 band and not fonning any part of his acts, 
 although such facts fasten a guilty knowl- 
 edge on the defendant. U. S. v. Horn, 5 
 Blatchf. 102. 
 
 53. Wife of codefendant. On the trial 
 of several defendants jointly indicted, the 
 wife of one of them is not a competent wit- 
 ness for the others, and in such case it is 
 not material that the defendants asked for 
 and were denied separate trials. Com. v. 
 Robinson, 1 Gray, 555. 
 
 54. The fact that the husband is a party 
 to the record, does not of itself exclude the 
 wife as a witness on behalf of other parties ; 
 but the rule of exclusion is only to be ap- 
 plied to cases in which the interest of the 
 husband is to be affected by the testimony of 
 the wife. Thompson v. Com. 1 Mete. Ky. 13. 
 The wife cannot testify if the effect of her 
 testimony is to injure or benefit her husband ; 
 but it is otherwise when her husband can 
 derive no benefit, or receive any detriment 
 therefrom. State v; Waterman, 1 Nev. 543. 
 
 55. On the trial of an indictment for a 
 conspiracy to charge the wife of one of the 
 defendants with adultery, such wife is not a 
 competent witness. State v. Burlingham, 15 
 Maine, 104. 
 
 56. When several are jointly indicted for 
 an offense which may be committed by one 
 or more, and they are tried separately, the 
 wife of one defendant is a competent witness 
 for the others; and on separate trials, they 
 are entitled to the benefit of her testimony
 
 652 
 
 WITNESS. 
 
 Persons who are Competent or Incompetent to Testify. 
 
 in all cases except in conspiracy, or other 
 joint offenses. State v. Burnside, 37 Mo. 
 343; State v. McCarron, 51 lb. 27. 
 
 57. But where under a joint indictment 
 against two, one is tried separately, the wife 
 of the other is not a competent witness as to 
 matters tending to criminate her husband. 
 State V. Bradley, 9 Rich. 168. 
 
 58. "Where on the trial of a joint indict- 
 ment against two for an assault, a default is 
 entered against one, on his recognizance, his 
 wife is a competent witness for the others. 
 State V. Worthing, 31 Maine, 63. 
 
 59. Convicted criminal. A person con- 
 A'icted of an infamous crime is a competent 
 witness before sentence. U. S, v. Dickinson, 
 2 McLean, 325. To render him incompetent 
 there must have been a judgment. State v. 
 Valentine, 7 Ired. 225. 
 
 60. In Alabama, a person convicted of 
 libel in another State is not an incompetent 
 witness. Campbell v. State, 23 Ala. 44. 
 
 61. A person convicted of forgery in an- 
 other State is not a competent witness in 
 North Carolina. State v. Candler 3 Hawks, 
 393. 
 
 62. In New York, a person convicted of 
 perjury is not competent to be a witness, un- 
 til the judgment is reversed, although par- 
 doned. Houghtaling v. Kelderhouse, 1 Par- 
 ker, 241. 
 
 63. In New York, under the statute (Laws 
 of 1869, ch. 678), a person convicted of a 
 felony who has not been jjardoned, is a com- 
 petent witness in his own behalf upon a trial 
 on'au indictment subsequently found against 
 him for a criminal offense. Delamater v. Peo- 
 ple, 5 Lans. 332 ; Newman v. People, 6 rb.460. 
 
 64. The statute of New York (Laws of 
 1847, ch. 460), providing that a convict shall 
 be a competent witness against a fellow 
 prisoner for any offense actually committed 
 whilst in prison, permits convicts to testify 
 to facts material to the issue upon the trial 
 of any such offense, and is not restricted to 
 the particular acts constituting the crime. 
 Donohue v. People, 56 N. Y. 208. 
 
 65. In New York, a person convicted of 
 petit larceny as a first offense, is not incom- 
 petent to testify. Shay v. People, 22 N. Y. 
 317; 4 Parker, 353. 
 
 66. In Virginia, a person may be a witness 
 although he has been convicted of petit lar- 
 ceny in another State. TJhlv. Cora. 6 Graft. 
 706. In Massachusetts, the conviction of a 
 person before a justice of the peace of lar- 
 ceny, renders him incompetent to testify, 
 notwithstanding the complaint in the pro- 
 ceedings before the justice was defective. 
 Com. V, Keith, 8 Mete. 531. 
 
 67. Member of court. A court retains its 
 jurisdiction, notwithstanding one of its 
 members leaves the bench and is sworn and 
 testiiies as a witness. People v. Dohring, 59 
 N. Y. 374; overruling s.c. 2 N. Y. Supm. N. 
 S. 458. But his becoming a witness is 
 error which if objected to, will be ground 
 for I'eversing the judgment. lb, 
 
 68. Juror. ^Vheu facts are in the iDersonal 
 knowledge of a juror, they may be proved 
 by him. State v. Powell, 2 Halst. 244. 
 
 69. Grand jurors. The testimony of grand 
 jurors is admissible to prove that a witness 
 for the prosecution swore differently on his 
 examination before them. Com. v. Mead, 12 
 Gray, 167. 
 
 70. A grand juror is competent to testify 
 on the trial that a person w-as not a witness 
 before the grand jury. Com. v. Hill, 11 
 Cush. 137, And when necessary to promote 
 justice, a grand juror may be compelled to 
 testify what the witnesses before the grand 
 jury testiiied. State v. Wood, 53 New 
 Hamp. 484. 
 
 71. Where a person is charged with per- 
 jury before a grand jury, members of such 
 jury are competent to testify as to the facts 
 sworn to by the defendant before them. 
 Crocker v. State, 1 Meigs, 127. 
 
 72. Persons incompetent by statute. 
 The statute of California, which provides 
 that " no Indian, or person having one-half 
 or more Indian blood, or Mongolian, or 
 Chinese, shall be permitted to give evidence 
 in favor of or against any white man," is 
 not in conflict with the 14th Amendment of 
 the Constitution of the United States. Peo- 
 ple V. Brady, 40 Cal. 198. 
 
 73. Under a statute precluding negroes 
 and Indians from testifying either for or 
 against a white person, the indicium of color 
 cannot be relied on as an infallible test of
 
 WITNESS. 
 
 055 
 
 Persons Competent to Testify. 
 
 Procuring Attendance. 
 
 Introducing. 
 
 competency, but only wben it is so decided 
 as to leave no doubt of the particular race to 
 whicli the witness belongs. People v. Elyea, 
 14 Cal. 144. 
 
 74. Expert. There is no rule of law fixing 
 the precise amount of experience or degree 
 of skill necessary to constitute an expert. 
 The judge must in the first instance pass 
 upon the admissibility of the witness; and 
 if admitted, the juiy determine the credit 
 to be given to his testimony. Com. v. 
 Williams, 105 Mass. 62. 
 
 75. Where a physician called as a witness 
 on a trial for murder, to which the defense 
 of insanity was interposed, testified that he 
 had made the subject of mental disease a 
 study, but not a special study; that he had 
 considered the matter only so far in his 
 general practice as to determine whether a 
 patient was in such a condition as to require 
 treatment for insanity, it was held that he 
 was not competent to testify as an expert 
 uj)on a hypothetical case put to him. Com. 
 v. Rich, 14 Gray, 335. 
 
 76. There is no precise standard fixing the 
 degree of knowledge which a person must 
 possess of another's handwriting in order to 
 testify as to the authenticity of a particular 
 paper. The witness must have seen the 
 party write and acquired a knowledge more 
 or less perfect of the character of the hand. 
 Hartung v. People, 4 Parker, 319. 
 
 77. When a witness examined as an expert 
 has expressed an opinion based on facts as- 
 sumed by the party introducing him to have 
 been proved, or upon a hypothetical case put 
 by such party, the other party may cross- 
 examine him by taking his opinion based on 
 any other set of facts assumed by him to have 
 been proved, or upon a hypothetical case. 
 Davis V. State, 35 Ind. 496. For other de- 
 cisions relating to the testimony of experts, 
 see ante, Evidence, tit. 14. 
 
 78- Interpreter. Where a witness in con- 
 sequence of debility is not able to speak 
 loud enough to be heard by tlie court and 
 jury, the court may appoint a person to in- 
 terpret what tlie witness communicates to 
 him in wdiispers. Conner v. State, 25 Ga. 
 515. 
 
 2. PROCrRING ATTENDANCE. 
 
 79. Defendant's witnesses when to be 
 procured by prosecution. It is the duty of 
 the United States court, on the application 
 of the prisoner, to send for witnesses within 
 the jurisdiction of the court, at the expense 
 of the government, upon his showing that 
 he is poor, and unable to defray the expense. 
 U. S. V. Kenneally, 5 Bis. 122. 
 
 80. In Maine, the prosecution is not re- 
 quired to pay the expenses incurred by per- 
 sons accused of crime in procuring the 
 attendance of witnesses, but only to furnish 
 the process for summoning the witnesses. 
 State V. Waters, 39 Maine, 54. 
 
 81. Attachment. The issuing of an at- 
 tachment against a witness in behalf of the 
 prisoner, after his counsel has announced 
 that they have no other witnesses, and after 
 arrangements have been made for sum- 
 ming up the cause on both sides, is in the dis- 
 cretion of the court. Stephens v. People, 
 4 Parker, 396: afti'd 19 N. Y. 549. 
 
 82. Keeping witness away. It is a crime 
 at common law to induce a witness to absent 
 himself from a court where he is legally 
 bound to appear to give testimony upon a 
 criminal process there pending, and an at- 
 tempt to do so, though not accomplished, 
 will subject the offender to an indictment. 
 State V. Ames, 64 Maine, 386. 
 
 83. On the trial of an indictment for get- 
 ting a witness out of the way, it need not 
 be proved that the testimony of the witness 
 was material. State v. Early, 3 Harring.562, 
 
 3. Introducing. 
 
 84. Calling witness in discretion of 
 court. Where a witness disobeys the order 
 of the court to withdraw, and remains and 
 hears the testimony of the other witnesses, 
 it is in the discretion of the court whether 
 he shall afterward be permitted to testify in 
 the case. Laughlin v. State, 18 Ohio, 99 ; 
 Sartorius v. State, 24 Miss. 602. 
 
 85. The court has discretion to allow 
 witnesses to be examined at any time before 
 the verdict, notwithstanding they were re- 
 moved before their first examination, and 
 have since been together. State v. Silver, 3 
 Dev. 332.
 
 654 
 
 WITNESS. 
 
 Introducing 
 
 Examination. 
 
 In General. 
 
 86. When, on the trial of several jointly 
 indicted, there is evidence against one, the 
 court may deny the motion of his codefend- 
 ants to introduce liim as a witness, on the 
 ground that there was no evidence against 
 him to authorize him to be put on his de- 
 fense, and "to direct and allow the jury 
 to return a verdict of acquittal as to him, on 
 the ground that there was not suflacient evi- 
 dence of his guilt to require him further to 
 defend." Brister v. State, 26 Ala. 107. 
 
 87. The calling of a witness by the pros- 
 ecution, in corroboration of previous testi- 
 mony, is in the discretion of the court. 
 Stephens V. People, 4 Parker, 396; 19 N. Y. 
 549. 
 
 88. The prosecution, after resting, cannot 
 be compelled to call and examine other wit- 
 nesses. Peoi^le V. Cunningham, 6 Parker, 
 398. 
 
 89. Administering oath. In Illinois, an 
 oath administered with the uplifted hand, 
 no objection being made, was held valid, 
 although the witness did not state that he 
 had conscientious scruples against being 
 sworn on the Gospels. McKinney v. People, 
 3 Oilman, 540. 
 
 90. The provision of the statute of Mas- 
 sachusetts as to the form of administering 
 an oath is directory only, and, therefore, 
 when a commission issued in another State 
 to take a deposition in Massachusetts directs 
 the oath to be administered in a different 
 form, such oath will be valid. Com. v. 
 Smith, 11 Allen, 3i3 (Genl. Stats, ch. 131, 
 §8). 
 
 4. Examination, 
 
 (a) In general. 
 
 91. Right of court to control examina- 
 tion of witness. On the trial of an indict- 
 ment for assault with intent to murder, dur- 
 ing the cross-examination of one of the 
 State's witnesses, H., one of the defendant's 
 attorneys, asked the witness a question 
 which the court deemed improper, and so 
 told the attorney, to which he replied: 
 "This is a cross-examination, and if we 
 cannot examine our witness, he can stand 
 aside." The court directed D., another of 
 the defendant's attorneys, to cross-examine 
 the next witness, which he declined to do, 
 
 and it was thereupon demanded that H. be 
 permitted to cross-examine the witness, but 
 the court would not allow it. The judge 
 then proposed to ask the witness the proper 
 questions, to which the defendant objected, 
 and refused to have the witness cross-ex- 
 amined unless it was done by H., which the 
 judge would not permit. Held that the action 
 of the court was proper. Redman v. State, 
 38 Ind. 305. 
 
 92. The extent of the cross-examination 
 of a witness upon matters immaterial to the 
 issue, is in the discretion of the judge 
 before whom the trial is conducted. La 
 Beau V. People, 34 N. Y. 333. 
 
 93. The court may, in its discretion, per- 
 mit the re-examination of the witnesses as to 
 facts not in reply or rebuttal, Sartorius v. 
 State, 34 Miss. 603. 
 
 94. The court has the discretionary power, 
 on the application of either party, to require 
 the witnesses to be examined out of the 
 hearing of each other, McLean v. State, 16 
 Ala, 673; West v. State, 3 Zabr, 313. 
 
 95. Objecting to witness. A party who 
 objects to the competency of a witness may 
 examine him on his voir dire^ or prove the 
 alleged incompetency by evidence aliunde. 
 If he adopts the former mode, he makes the 
 witness his, so far as the question of com- 
 petency is concerned, and is concluded by 
 his testimony, unless it leaves the question 
 in doubt, in which case he may resort to 
 other evidence. If he adopt the latter mode, 
 and fails because his evidence is rejected as 
 inadmissible, he may still resort to the 
 former mode, and if he has two distinct 
 grounds of objection, he may adopt one 
 mode of proof as to one ground, and the 
 other mode as to the other ground. People 
 V. Anderson, 36 Cal. 139. 
 
 96. Leading questions. When a witness 
 appears adverse in interest to the party call- 
 ing him, the court usually permits such 
 l^arty to put to him leading questions, their 
 admission being in the discretion of the 
 court. State v. Lull, 37 Maine, 346 ; State 
 V. Benner, 64 lb, 367. An interrogatory 
 put to a witness by the judge cannot be 
 objected to as leading. Com. v. Galavan, 9 
 Allen, 371.
 
 WITNESS. 
 
 655 
 
 Examination. 
 
 In General. 
 
 S7. On a trial for murder, S., the mother 
 of the prisoner, upon her cross-examination 
 by the prosecution, was asked whether she 
 knew M., and whether she did not meet her 
 the next morning after the homicide and 
 make certain statements to her, to which S. 
 replied that she did not. M. was afterward 
 called to contradict her, and she was asked 
 whether she saw S. on the morning in ques- 
 tion. Held that the question was proper, 
 and not objectionable on the ground that it 
 was leading. Shufflin v. People, 6 N. Y. 
 Supm. N. S. 215. 
 
 98. The following questions were held 
 leading and improper : " State whether or 
 not you examined the horse tracks toward 
 Crogin's ;" and " State whether or not you 
 had any difficulty in following the tracks." 
 Hojiper V. Com. 6 Gratt. 684. 
 
 99. On the trial of an indictment for 
 rape, the following questions were held lead- 
 ing and improper: " Did the prisoner then, 
 or at any subsequent time, say anything to 
 you in relation to this matter to dissuade 
 you from disclosing it ? State when, where 
 and what he said. Did the prisoner, at 
 any time subsequent to the transaction, say 
 anything to you about what judgment the 
 law would inflict on you, or him, or both ? 
 If the prisoner in any of his antecedent 
 conversations oflFered property, or any other 
 advancement to you, in order to attach you 
 to him, say so." Turney v. State, 8 Smed. & 
 Marsh. 104, Clayton, J., disse7iting. 
 
 100. Witness refreshing his memory. 
 A witness may refre&h his recollection from 
 a memorandum made by another person, 
 but which the witness dictated. Hill v. 
 State, 17 Wis. 675. 
 
 101. Where a witness refreshes his memory 
 from a memorandum, the opposite party has 
 a right to inspect the memorandum, unless 
 it appears to the court that the party fur- 
 nishing the memorandum has a reasonable 
 ground of belief that he will suV)ject him- 
 self to personal injury by allowing it to be 
 examined. State v. Bacon, 41 Vt. 536. 
 
 102. A written memorandum signed with 
 the mark of a witness who can neither read 
 or write, which is used to refresh his rec- 
 ollection, sliould not be read in court, but 
 
 the witness should retire with one of the 
 counsel on each side, and the paper be read 
 to him without comment. Com. v. Fox, 7 
 Gray, 585. 
 
 103. Where the written deposition of a 
 witness had been previously taken, and she 
 was asked on cross-examination, whether 
 she at that time mentioned the name of one 
 M. — Held proper for the court to direct that 
 the witness be allowed to examine the de- 
 position before answering, although it ap- 
 peared that the name of M. was not in it. 
 State V. Taylor, 3 Oregon, 10. 
 
 104. Where a witness after examining a 
 memorandum made by him, as to a material 
 fact, stated that his memory was not so re- 
 freshed that he could then swear, from rec- 
 ollection, but that when the memorandum 
 was made, it was true, it was held that his 
 testimony was admissible. State v. Colwell, 
 3 R. I. 133. 
 
 105. Privileged communications. On a 
 trial for larceny, a witness from whom the 
 property is alleged to have been stolen need 
 not disclose the names of persons in his 
 employment who gave the information 
 which led him to take measures for the 
 detection of the thief. State v. Soper, 16 
 Maine, 293. 
 
 106. Where a witness privileged to answer, 
 testifies to part of a transaction, he is obliged 
 to testify as to the whole. State v. Foster, 
 3 Fost. 348; People v. Lohman, 3 Barb. 216. 
 
 107. Answer tending to criminate. 
 Where the answer to a question may furnish 
 evidence to convict the witness of a crime, 
 he is not bound to answer, unless exempt 
 from liability by statute. Floyd v. State, 7 
 Texas, 315 ; Wood v. State, 3 Mo. 98 ; 
 Murphy v. Com. 23 Gratt. 960; s. c. 3 
 Green's Crim. Reps. 662. 
 
 108. If a witness object to a question on 
 the ground that an answer would criminate 
 him, he must allege in substance, that his 
 answer would tend to prove him guilty of a 
 criminal offense. If it could not be used 
 against him, because forbidden by statute, 
 the witness is not privileged. People v. 
 Hackley, 24 N. Y. 74. 
 
 109. On a trial for seduction, the defendant 
 put a witness upon the stand and asked him
 
 65G 
 
 WITNESS. 
 
 Examination. 
 
 In General. 
 
 if he had ever had sexual intercourse with 
 the prosecutrix. The witness declined to 
 answer for the reason that it might tend to 
 criminate him. Held that the court did not 
 err in refusing to compel him to testify, al- 
 though a prosecution for seduction was 
 baiTed bj' the statute of limitations; it not 
 appearing that he had not already been 
 complained of, and a prosecution for rape 
 being not yet barred. People v. Brewer, 27 
 Mich. 134; s. c. 2 Green's Crim. Reps. 562. 
 
 110. A party cannot object that an answer 
 to the question asked may involve the 
 witness in a criminal prosecution. The 
 objection must come from the witness. It is 
 not the duty of the court, independently of 
 any objection on the part of the witness to 
 inform him that he is not obliged to crimi- 
 nate himself. Com. v. Shaw, 4 Cush. 594. 
 And the witness cannot claim such privilege, 
 when the question is necessary to understand 
 the facts already voluntarily stated. People 
 V. Carroll, 3 Parker, 73. 
 
 111. If a witness has stated part of a 
 transaction, or of a series of transactions, 
 which implicate the defendant, the latter 
 may show by a cross-examination of the 
 same witness, that the fault, and even the 
 criminality, were on the part of the witness, 
 and not of the accused. lb. 
 
 112. If a witness consents to testify so as 
 to criminate himself as well as the defendant, 
 
 ' he must answer all questions legally put to 
 him concerning that matter. Com. v. Price, 
 10 Gray, 472. And where the defendant 
 offers himself as a witness, he cannot object 
 to any question pertinent to the issue on the 
 ground that the answer may tend to crimi- 
 nate him. Com. v. Lannan, 13 Allen, 563; 
 Com. V. Mullen, 97 Mass. 545 ; Com. v. Bon- 
 ner, lb. 587. 
 
 113. The testimony of a husband wliicli 
 may tend to criminate his wife, or the testi- 
 mony of a wife which may tend to criminate 
 her husband, is admissible in a collateral 
 proceeding when it cannot afterward be 
 used against either. State v, Briggs, 9 R. I. 
 361. 
 
 114. Whether the answer may tend to 
 criminate the witness, is a point which the 
 court will determine under all the circum- 
 
 stances of the case, and without requiring 
 the witness to explain how he may be crimi- 
 nated by the answer. State v. Staples, 47 
 New Hamp. 113; Com. v. Brainard, Thach. 
 Crim. Case, 146; Ward v. State, 2 Mo. 98; 
 People V. Mather, 4 Wend. 231 ; Richmond 
 V. State, 2 Greene, 532. 
 
 115. An accomplice testifying in behalf 
 of the prosecution, is privileged equally 
 with other witnesses from answering ques- 
 tions tending to impute crime to him or to 
 disgrace him. State v. Staples, 47 New 
 Hamp. 113. 
 
 116. Although a witness in the United 
 States courts prior to the act of Congress of 
 Feb. 25th, 1868, (15 St. 37), could decline 
 to answer a question when the answer would 
 tend to criminate him, yet now he may be 
 compelled to answer when the inquiry is' 
 pertinent to any judicial proceeding; but the 
 testimony cannot be used against the wit- 
 ness. U. S. V. Brown, 1 Sawyer, 531. 
 
 117. Where a witness objects to testify on 
 the ground that it will criminate him, but 
 is erroneously compelled to testify, the de- 
 fendant may object that the conviction was 
 founded upon incompetent evidence. Com. 
 V. Kiml)all, 23 Pick. 366. 
 
 118. Answer tending to disgrace wit- 
 ness. The court may in its discretion allow 
 or disallow a question which tends not to 
 criminate but only to degrade or disgrace 
 the witness. State v. Blansky, 3 Minn. 24fi. 
 
 119. A witness is privileged to decline 
 to answer a question which tends to dis- 
 grace him unless the answer would bear 
 directly upon the issue. Lohman v. People, 
 1 Comst. 379 ; Howel v. Com. 5 Gratt. 604. 
 See People V. Rector, 19 Wend. 569; Clemen- 
 tine V. State, 14 Mo. 112; Barnes v. State, 
 19 Conn. 398. 
 
 120. To excuse the witness from answer- 
 ing, it is not sufficient that his answer will 
 have a tendency to expose him to infamy or 
 disgrace ; the question must be such that 
 the answer to it which he may be required 
 by the obligation of his oath to give will 
 directly show his infamy. People v. Mather, 
 4 Wend. 229. 
 
 121. A witness may be asked upon cross- 
 examination whether he has been in jail or
 
 WITNESS. 
 
 657 
 
 Examination. 
 
 In General. 
 
 Attacking Credibility of Witness. 
 
 State prison, or any other place tbat would 
 tend to impair his credibility, and how 
 much of his life he has passed in such 
 places. Real v. People, 43 N. Y. 270. 
 
 122. It is competent to ask a witness on 
 cross-examination, with a view to impeach 
 his general character and thereby aftect his 
 credibility, whether he has not been guilty 
 of adultery, and whether he has not had the 
 venereal disease since his marriage. If, 
 however, the question calls for facts wholly 
 collateral to the issue, the witness may re- 
 fuse to answer it, and no inference unfavor- 
 able to his character will be drawn from 
 such refusal. People v. Blakeley, 4 Parker, 
 176; La Beau v. People, 6 lb. 371, contra. 
 
 (Jb) Attaching credilnlity of witness.- 
 
 123. Value of affirmative testimony- 
 An affirmative witness of equal knowledge 
 and credibility is to be believed in prefer- 
 ence to many negative witnesses. Johnson 
 V. State, 14 Ga. 55. 
 
 124. Where witnesses testified to what 
 they saw on a certain starlight night, aided 
 by the light from neighboring houses, it 
 was held not competent to show by other 
 witnesses that on a similar starlight night 
 they made experiments between the same 
 hours and with the same degree of light, 
 and were unable to see objects distinctly at 
 the distance sworn to by the first witnesses. 
 Sealy v. State, 1 Kelly, 213, 
 
 125. Contradictory statements of wit- 
 ness. Wlien a witness upon being asked 
 whether he did not make certain statements, 
 replies that he has no recollection of having 
 made them, it may be proved that he did in 
 fact make them. Garret v. State, 6 Mo. 1 ; 
 Shriedley v. State, 23 Ohio, N. S. 130 ; s. 
 c. 2 Green's Crim. Reps. 530. 
 
 126. Before a witness can be impeached by 
 proof of previous contradictory statements, 
 he must first be given an opportunity to ex- 
 plain such statements, Powell v. State, 19 
 Ala. 577; Clementine v. State, 14 Mo. 112; 
 State V. Cazeau, 8 La. An. 109 ; People v. De- 
 vine, 44 Cal. 452 ; s. c. 2 Green's Crim. Reps. 
 405; Jackson v. Com. 23 Gratt. 919; s. c. 2 
 Green's Crim. Reps. 650. 
 
 42 
 
 127. A witness may be contradicted by a 
 person who heard him testify on a former 
 hearing, whether such person took minutes 
 of the testimony of the witness or not. 
 State V. Archer, 54 New Hamp. 465. 
 
 128. When a witness for the prisoner testi- 
 fies diflFerently from what he did before the 
 grand jury, a member of the grand jury 
 may be called to contradict him. State v. 
 Benner, 64 Maine, 267. 
 
 129. It is not competent for the purpose 
 of impeaching a witness to ask him as to 
 his testimony at a former time if that testi- 
 mony was inadmissible. Mitchum v. State, 
 11 Ga. 615. And a witness cannot be im- 
 peached by asking him questions irrelevant 
 to the issue in order to contradict his 
 answers. U. S. v. Dickinson, 2 McLean, 
 335. 
 
 130. When a witness after he has testified 
 declares that what be swore to was false, 
 such declaration may be given in evidence 
 to impeach him. People v. Moore, 15 Wend. 
 419. 
 
 131. When contradictory statements of 
 witness cannot be shown. Upon cross-ex- 
 amination, the prosecution may, for the 
 purpose of impairing the credit of a wit- 
 ness, interrogate him as to collateral matters, 
 but after asking and obtaining answers, 
 other witnesses cannot be called to prove 
 such answers false. Stokes v. People, 53 
 N. Y. 164 ; State v. Benner, 64 Maine, 267 ; 
 People V. Devine, supra. 
 
 132. Where a witness for the prosecution 
 was asked whether the public prosecutor 
 htd not paid him for coming from another 
 State to be a witness, and answered that he 
 had not, it was held that the defense could 
 not introduce witnesses to prove that he 
 had said that he had been so paid. State 
 v. Patterson, 3 Ired. 346. 
 
 133. When contradictory statements in 
 respect to collateral matters may be 
 shown. An exception to the rule that con- 
 tradictory statements of a witness in respect 
 to collateral matters testified to by him on 
 cross-examination cannoc be shown to im- 
 peach his credit, arises when the cross-exam- 
 ination is as to mutters which altliough 
 collateral tend to show the temper, disposi-
 
 G58 
 
 WITNESS. 
 
 Examination. 
 
 Attacking Credibility of Witness. 
 
 tion or conduct of the witness toward the 
 subject of inquiry or the parties. State v. 
 Patterson, supra. 
 
 134. A party may not contradict his 
 own witness. A party cannot discredit his 
 own witness by asking him whether he had 
 not sworn differently on a former occasion. 
 People V. Safford, 5 Denio, 112; Sanchez v. 
 People, 4 Parker, 535 ; 22 N. Y. 147. 
 
 135. When, however, the witness is hos- 
 tile to the party calling him, it is proper to 
 allow the direct examination to take the 
 character of a cross-examination. People v. 
 Mather, 4 "Wend. 231. Where a witness 
 testifies contrary to what the party intro- 
 ducing him had a right to expect, he may 
 be cross-examined by such party as to what 
 he had stated in regard to the matter on for- 
 mer occasions, and thus refresh the memory 
 of the witness and give him an opportunity 
 to set the party introducing him right before 
 tbe jury, but not for the purpose of dis- 
 crediting the witness. And the party is not 
 allowed to prove such contradictory state- 
 ments if denied by the witness. Howard v. 
 State, 32 Ind. 478. 
 
 136. Where the prosecution has called and 
 examined a witness, it cannot, upon the 
 witness being recalled by the defendant, 
 seek to impeach him on cross-examination. 
 Com. V. Hudson, 11 Gray, 64. 
 
 137. Testimony of defendant may be im- 
 peached. Where the prisoner takes the 
 stand as a witness in his own behalf, he is 
 subject to the same rules of examination as 
 any other witness, and may be contradicted. 
 It is therefore competent to show that his 
 testimony as to being unconscious of what 
 he did while committing the crime, and for 
 some time afterward, was not true. Fralich 
 V. People, 65 Barb. 48. 
 
 138. Where the prisoner testifies in his 
 own behalf, the court may interrogate him 
 as fully as may be needful, to test the truth 
 of his direct testimony. Gill v. People, 5 
 X. Y. Supm. N. S. 308. 
 
 139. Showing that witness is interested. 
 
 The defense may ask a witness whether any 
 person, on behalf of the prosecution, has 
 made the witness any offer of reward in re- 
 
 lation to the testimony which he might give 
 in a certain class of cases, including the case 
 on trial. Com. v. Sackett, 22 Pick. 394. 
 
 140. The fact that a witness for the prose- 
 cution has contributed funds to carry it on, 
 goes only to his credibility. People v. 
 Cunningham, 1 Denio, 524. 
 
 141. Showing hostility of witness. A 
 witness may be interrogated as to the state 
 of his feelings toward the prisoner in order 
 to show bias; but he cannot be asked the 
 cause of his hostility. Bishop v. State, 9 
 Ga. 121. 
 
 142. It is always proper to show the rela- 
 tions existing between a witness and the 
 party against, as well as the person for 
 whom he is called ; and the party against 
 whom a witness is called may show the hos- 
 tility of the witness by proving his declara- 
 tions ; as that the witness threatened to kill 
 the defendant before the commission of the 
 alleged offense, although the witness, on 
 cross-examination, denied having made such 
 threats. Starks v. People, 5 Denio, 106. 
 
 143. Showing defect of religious belief. 
 The want of religious belief, as affecting the 
 competency of a witness, must be established 
 by other means than an examination of the 
 witness on the stand. Com. v. Smith, 2 
 Gray, 516; Com. v. Burke, 16 lb. 33. Dis- 
 ability from such a cause is not to be pre- 
 sumed, but must 1)0 proved. The question 
 is to be decided by the court, and is not 
 subject to exception. Com. v. Hills, 10 
 Cush. 530. 
 
 144. Showing intoxication of witness. 
 It may be shown that the witness was 
 drunk at the time of the transaction relative 
 to which he testifies. Fleming v. State, 5 
 Humph. 564. 
 
 145. Attacking character of witness. 
 A witness may be discredited by showing 
 his bad moral character. State v. Shields, 
 13 Mo. 236; Deer v. State, 14 lb. 348. 
 
 146. When a person on trial puts his gen- 
 eral character in issue by his own act, he 
 takes the risk of its being proved bad, and 
 of every presumption which such proof le- 
 gitimately raises against him. And so, 
 where a prisoner testifies as a witness in bis 
 own behalf, he puts his general character
 
 WITNESS. 
 
 050 
 
 Examination. 
 
 Attacking Credibility of Witness. Sustaining Credibility. 
 
 and credibility in issue, and may be im- 
 peached the same as any other witness. 
 Burdick v. People, 58 Barb. 51. 
 
 147. Where the prisoner is a witness in 
 his own behalf, a record of his conviction of 
 petit larceny is admissible to impeach him. 
 People V. Satterlee, 12 N. Y. Supm. N. S. 
 167. 
 
 148. A witness cannot be impeached by 
 proving that he has been guilty of stealing. 
 Free v. State, 1 McMuUun, 494 ; Howel v. 
 Com. 5 Graft. 664 ; nor by proving that sev- 
 eral indictments for libel are pending against 
 him. Campbell v. State, 33 Ala. 44. 
 
 149. Method of impeaching character of 
 witness. The party impeaching a witness 
 should ask the attacking witnes^s whether 
 he has the means of knowing the general 
 character of the witness sought to be im- 
 peached. State V. O'Neal, 4 Ired. 88. 
 
 150. A witness examined as to the general 
 character of a person, in respect to his 
 habits, should first state that he is acquaint- 
 ed with that person's general character in 
 the particular to which he deposes ; but if 
 his testimony shows that fact, it will be 
 sufBcient. Elam v. State, 25 Ala. 53. 
 
 151. In order to impeach a witness, it is 
 not competent to prove his general bad 
 character disconnected from veracity. The 
 proper inquiry is what is his general charac- 
 ter for truth in the place where he resides, 
 and whether, from the witness' knowledge of 
 his general character, he would believe him 
 imder oath. U. S. v. Vansickle, 2 McLean, 
 219 ; State v. Bruce, 30 Maine, 71 ; Bucklin 
 V. State, 20 Ohio, 18; Uhl v. Com. 6 Graft. 
 706. 
 
 152. The proper question to be put to a 
 w'itness called to impeach another, is whether 
 he would believe him on oath; and the op- 
 posite party may then cross-examine as to 
 the grounds of the unfavorable opinion. 
 People V. Mather, 4 Wend. 231 ; Hamilton 
 v. People, 29 Mich. 173; Keator v. People, 
 32 lb 484. In New Hampshire the inquiry 
 is, what is the general reputation of the 
 witness as to truth, and whether, from such 
 general reputation, the person would believe 
 sucli witness un:ler oath, as soon as men in 
 
 general. State v. Howard, 9 New Hamp. 
 485. 
 
 153. In Ohio, in impeaching the credit of 
 a witness, the inquiry into the general repu- 
 tation, or character of the witness, is re- 
 stricted to his reputation for truth and 
 veracity, and does not extend to his entire 
 moral character. Craig v. State, 5 Ohio, 
 N. S. 605. In Tennessee, in impeaching a 
 witness, the inquiry is not restricted to gen- 
 eral reputation for veracity, but involves 
 the whole moral character of the witness. 
 Gilliam v. State, 1 Head, 38. 
 
 154. Where a person testifies that public 
 rumor gave a witness sought to be im- 
 peached, a bad moral character as to drink- 
 ing, fighting, murder, shooting at men, and 
 as to certain publications reputed false in 
 his newspaper, he cannot be asked, on re- 
 examination, " What other moral delin- 
 quencies public rumor attributed to him ; 
 nor what rumor said in regard to those pub- 
 lications ; nor whether he did not know, of 
 his own knowledge, that they were false." 
 Campbell v. State, 23 Ala. 44. 
 
 155. An unmarried woman may be asked„ 
 on cross-examination, subject to her privi- 
 lege to refuse to answer, whether she has any 
 children. Ibid. 
 
 156. For the purpose of impeaching the 
 credibility of the prosecuting witness, he 
 may be asked whether he did not ofler to 
 compound the felony. Pleasant v. State, 8 
 Eng. 360. 
 
 157. The prisoner is entitled to the same 
 right of cross-examination as if no ruling 
 had been made in regard to the number of 
 witnesses on the subject of impeachment; 
 otherwise the limit would be itself imisroptsr. 
 People V. Haynes, 55 Barb. 450. 
 
 (c) Sustaining credibility of witness. 
 
 158. Character of witness must have 
 been first assailed. A party cannot prove 
 the general good character of his own wit- 
 ness, until the character of the witness has 
 been attacked by the other side. Starks v. 
 People, 5 Denio, 106. 
 
 159. But where a witness is impeached,
 
 ceo 
 
 WITNESS. 
 
 Examination. 
 
 Sustaining Credibility of Witness. 
 
 either by witnesses called for that purpose 
 or CD his own cross-examination, the part}' 
 calling him may introduce testimony in sup- 
 port of his character for truth aud veracity. 
 People v. Rector, 19 Wend. 569. 
 
 160. After a witness has been impeached 
 by proof of statements made by him contra- 
 dictory to what he swore to, evidence is ad- 
 missible of his general good character. Clem 
 v. State, 33 lud. 418. 
 
 161. Who competent to testify as to 
 character of witness. When a witness has 
 been impeached, a person who is well ac- 
 quainted with him, and has never heard his 
 -character for truth and veracity called in 
 question, or spoken of, is competent to sus- 
 tain him. Lemons v. State, 4 West Va. 
 755. 
 
 1S2. Negativing imputed hostility of 
 witness. When a witness has been ex- 
 amined as to the part he has taken in the 
 prosecution, he may be asked, on re-exami- 
 nation, whether he feels so unfnendly to- 
 wards the prisoner as to wish to see an 
 innocent man convicted. Campbell v. State, 
 23 Ala. 44. 
 
 163. Where it is sought to be shown on 
 the cross-examination of the principal wit- 
 ness that the prosecution was the result of a 
 conspiracy, in which the witness was con- 
 cerned, it is competent to sustain the wit- 
 ness by proving that another person wrote 
 to the public authorities, and was the cause 
 of the prosecution being instituted. Loh- 
 man v. People, 1 Comst. 379. 
 
 164. Corroborating testimony of wit- 
 ness. Wliere a witness is impeached by 
 proof of previous statements contradicting 
 his evidence, he may be supported by show- 
 ing other statements corresponding with it. 
 Beauchamp v. State, 6 Blackf. 299. 
 
 165. Where a witness is asked on cross- 
 examination when he was first questioned 
 concerning what he has sworn to on his 
 direct examination, he may be asked on re- 
 examination if he did not previously relate 
 the same thing to others. Com. v. Wilson, 
 1 Gray, 337. 
 
 166. When the testimony of a witness is 
 impeached, his confession taken by the 
 magistrate on a complaint against another 
 person is admissible in evidence to sustain 
 his testimony and to impair the testimony 
 of the magistrate in the account given by 
 him of the facts testified to by the witness 
 on such complamt. People v. Moore, 15 
 Wend. 419. 
 
 167. Where an accomplice, on his cross- 
 examination, testified that the examining 
 magistrate told him that he should not be 
 prosecuted if he would disclose all he knew 
 of the transaction, it was held that the 
 testimony of the magistrate corroborating 
 this statement was admissible in evidence to 
 support the general credit of the accomplice. 
 Com. V. Bosworth, 22 Pick. 397. 
 
 168. Where it is proved that a witness 
 has made statements in conflict with his 
 testimony, he may, upon re- examination, 
 explain the circumstances under which such 
 statements were made. State v. Reed, 63 
 Maine, 129; s. c. 2 Green's Crim. Reps. 
 468. 
 
 169. When a witness has been cross- 
 examined as to his former statements, in 
 order to impeach him, he may be asked, 
 on re-examination in chief, his motive in 
 making those statements. Campbell v. State, 
 23 Ala. 44. 
 
 170. Credibility of witness to be de- 
 termined by jury. It is erroneous to in- 
 struct the jury that although a witness is 
 impeached, yet if his testimony is corrob- 
 orated by the testimony of witnesses unim- 
 peached, they are bound to believe his 
 testimony, the credibility of witnesses being 
 wholly a matter for the jury. People v. 
 Eckert, 16 Cal. 110. 
 
 171. In im'pe:iching the general character 
 of an accomplice, the jury are to determine 
 his credibility at the time he testifies, and 
 not whether he was truthful at the time of 
 the commission of the ofl'ense. People v. 
 Haynes, 55 Barb. 450. 
 
 See Evidence; Trial.
 
 WEIT OF ERROK. 
 
 OGl 
 
 When it will Lie. 
 
 llUit of ^iTor. 
 
 1. When it will lie. 
 
 2. When it will not lie. 
 
 3. Proceedings in obtaining. 
 
 4. What to contain. 
 
 5. Return. 
 
 6. Hearing. 
 
 1. When it will lie. 
 
 1. Must be judgment. A writ of error 
 can only be brought by a defendant to re- 
 yiew a final judgment rendered upon the 
 whole indictment. People agst. Merrill, 14 
 N. Y. 74. 
 
 2. The prisoner cannot review the pro- 
 ceedings upon his trial by a writ of error 
 until a record of judgment has been made 
 up and filed, unless the giving of judgment 
 has been stayed. Hill agst. People, 10 N. Y. 
 463. In New York, where there was nothing 
 brought before the Supreme Court but the 
 rough minutes of the arraignment and trial 
 of the plaintifl" in error in the Court of 
 Sessions, together with a copy of a memo- 
 randum, which was not a part of the 
 minutes, and a certificate that the indictment 
 could not be found, and the return did not 
 disclose the fact of any judgment or sen- 
 tence, the writ of error was quashed. Daw- 
 son V. People, 5 Parker, 118. 
 
 3. Where, after conviction for grand lar- 
 ceny in the New York General Sessions, 
 judgment was stayed, and the Supreme 
 Court ordered a new trial, but no judgment 
 on the indictment w^as given for the defend- 
 ant in either court, it was held that the 
 prosecution was not entitled to a writ of 
 error to review the order of the Supreme 
 Court granting a new trial. It is only judg- 
 ments for the defendant upon an indictment 
 to which the terms of the statute (N. Y. 
 Laws of 1852, ch. 82) extend. People v. 
 Nestle, 19 N. Y. 583. 
 
 4. What deemed a judgment. The re- 
 versal by the Supreme Court of a conviction 
 in the Oyer and Terminer, and granting a 
 new trial, is a judgment within the meaning 
 of the statute of New York (Laws of 1852, 
 p. 7G;, and a writ of error lies to review it. 
 People V. Bennett, 49 N. Y. 137. 
 
 5. To constitute a judgment record, it 
 must be signed by a judge of the court. The 
 statute of New York which authorizes a de- 
 fendant, who shall have been convicted or 
 acquitted, to require the district attorney to 
 make up a record of judgment, and provides 
 that on his neglect to do so, it may be done 
 by the defendant, does not dispense with 
 such necessity. Weed v. People, 31 N. Y. 
 465. 
 
 6. In case of decision on demurrer. 
 Exceptions cannot be taken to the judgment 
 or order of the court upon a demurrer, the 
 remedy for erroneous decisions upon demur- 
 ■rer in criminal cases being by a writ of 
 error. People v. Reagle, 60 Barb. 537. But 
 see Paige v. People, 6 Parker, 683. 
 
 7. Must have been exception. It is only 
 in a capital case, and where the minimum 
 punishment is imprisonment in the State 
 prison for life, that the accused is relieved 
 under the statute of New York (Laws of 
 1855, ch. 339, § 3), from the necessity of 
 taking an exception in the court in which 
 he is tried, in order that he may have the 
 right of review in an appellate court. 
 Wilke V. People, 53 N. Y. 525. 
 
 8. Objection once raised need not be 
 renewed. If a court, before the impanel- 
 ing of the juryj entertains and decides 
 material legal questions which belong to, 
 and are properly a part of the trial, and the 
 parties act upon them, such decisions are 
 to be deemed incoqjorated into the proceed- 
 ings on the trial, and it is unnecessary to 
 renew the objection afterward. Starin v. 
 People, 45 N. Y. 333. 
 
 9. Not taken away by appeal. The 
 remedy by appeal does not take away the 
 remedy by writ of error. Barnett v. State, 
 36 Maine, 198. 
 
 10. In behalf of prosecution. In In- 
 diana, wdiere the defendant pleaded guilty 
 to the first count of the indictment, and the 
 second count was quashed, it was held, after 
 judgment for the defendant, that a writ of 
 error in behalf of the prosecution might be 
 brought on the judgment quashing the 
 second count. State v. Dark, 8 Blackf. 
 526.
 
 GC2 
 
 WKIT OF ERROR. 
 
 When it will not Lie. 
 
 Proceedings in Obtaining. 
 
 2. When it will not lie. 
 
 11. In case of acquittal. A writ of error 
 cannot be maintained by the prosecution 
 after judgment for the pri-soner. People v. 
 Corning, 3 Comst. 1 ; Com. v. Cummings, 
 3 Cush. 212; Com. v. Harrison, 2 Va. Cas. 
 202; State v. Royal, 1 Scam. 557; State v. 
 Dill, lb. 257; contra, State v. Graham, 1 
 Ark. 428. 
 
 12. Where decision is on question of 
 practice. In Wisconsin, a writ of error will 
 not lie in behalf of the prosecution to re- 
 verse a judgment in favor of the defendant 
 upon a question of practice. State v. Kemp, 
 17 Wis. 669. 
 
 13. In case of objection to evidence. 
 Where an objection to evidence is sustained, 
 error will not lie if the objection is good 
 on any ground. And if the objection is one 
 that might have been removed if pointed 
 out, which is not done, but purposely 
 avoided, and other groundless objections 
 are raised, the farmer will be deemed to 
 have been waived, and cannot be insisted on 
 to sustain the ruling upon appeal. Haight 
 v. People, 50 N. Y. 391. A writ of error 
 will not lie for the improper admission of 
 evidence unless the evidence be objected to 
 ©n the trial. Clark v. State, 12 Ohio, 488. 
 
 14. Decision in relation to certiorari, 
 contempt, or continuance. A writ of error 
 cannot be obtained for the refusal of an in- 
 ferior court to grant a certiorari. State v. 
 Wood, 3 Zabr.560. Nor to an order punishing 
 for contempt. Johnston v. Com. 4 Bibb, 598. 
 Nor for the refusal of the court to grant a con- 
 tinuance. Holmes v. People, 5 Gilman, 478. 
 
 15. In New York, when an indictment is 
 brought into the Supreme Court by certiorari, 
 to take the advice of the court, and the pro- 
 ceedings are sent back to the court below, 
 with directions to proceed to judgment, a 
 writ of error will not lie to the Supreme 
 Court. People v. Stearns, 23 Wend. 634. 
 
 16. Misconduct of jury. Irregiilarities of 
 the jury in relation to their verdict cannot be 
 examined by writ of error. U. S. v. Gillies, 
 3 Wheeler's Crim. Cas. 308. 
 
 17. In case of discharge of jury. In New 
 York, it has been held that the discharge of 
 
 the jury upon their failure to agree, is not 
 subject to review upon writ of error. Peo- 
 ple V. Green, 13 Wend. 55. 
 
 3. Proceedings in obtaining. 
 
 18. In case of several defendants. 
 
 Prisoners jointly indicted, may uuite in a 
 writ of error. Sumner v. Com. 3 Cush. 521. 
 
 19. How objections which are the sub- 
 jects of, may be presented. The New York 
 Revised Statutes have in effect abolished 
 all assignments of error and allegations of 
 diminution on writs of error and certiorari in 
 criminal cases. When objections relate to 
 matters extrinsic of the judgment record, 
 tlie remedy is by motion. In most cases be- 
 fore con\dction, they can be presented either 
 by plea in abatement or bill of exceptions, 
 either of which would introduce them upon 
 the record and thus subject them to review 
 upon writ of error after judgment. Hayen 
 V. People, 3 Parker, 175 ; People v. McCann, 
 lb. 272. 
 
 20. By whom allowed. In New York, 
 by the Revised Statutes, a writ of error in a 
 capital case is allowed by a judge of the Su- 
 preme or Circuit Court, upon notice to the 
 prosecuting attornej\ But it is the duty 
 of the judge to disallow the writ when he 
 has no reason to doubt the legality of the 
 conviction. Colt v. People, 1 Parker, 617; 
 Carnal v. People, lb. 262. Under the judi- 
 ciary act of 1847, the power to allow the 
 writ and direct a stay of proceedings is ex- 
 tended to a judge of the Court of Appeais 
 and to a county judge. Where it is prob- 
 able that an error has been committed, or a 
 doubt is entertained as to the correctness of 
 the decision which is sought to be reviewed, 
 the writ is to be allowed and the order 
 granted ; but in no other case. Stout v. 
 People, 4 Parker, 132. 
 
 21. Stay of proceedings. A stay of pro- 
 ceedings after conviction, until a decision on 
 writ of error, is in the discretion of the 
 court. People v. Holmes, 3 Parker, 567. 
 
 22. In New York, a writ of error when 
 allowed, does not stay or delay the execu- 
 tion of the judgment or of the sentence 
 thereon, unless it is expressly directed in the
 
 WRIT OF ERROR. 
 
 663 
 
 What to Contain. 
 
 Return. 
 
 Hearing. 
 
 allowance that the writ shall operate as a 
 stay of proceedings. Stout v. People, 4 
 Parker, 133. 
 
 23. Considerations for the allowance of a 
 writ of error and stay of jDroceedings in a 
 <^apital case. Sullivan v. People, 1 Parker, 
 347 ; People v. Hendrickson, lb. 396. 
 
 4. What to contain. 
 
 24. Command. It is suiBcient if a writ of 
 error to remove a case from the New York 
 Court of Sessions to the Supreme Court 
 commands that the record and proceedings 
 {which include the judgment, if any be 
 given), be certified to the Supreme Court. 
 Phillips V. People, 57 Barb. 353 ; 43 N. Y. 
 200. 
 
 25. The objections to a writ of error that 
 it does not require the return of the judg- 
 ment below, or a return of the proceedings 
 on the indictment ''if judgment be there- 
 upon given," and that there is no return of 
 any record or judgment in the case, are 
 technical and without force. Ibid. 
 
 5. Return. 
 
 26. What brought up by. The return to 
 a writ of error brings up the indictment, the 
 pleas interposed by the defendant, and the 
 trial and judgment upon those pleas, 
 together with the bill of exceptions. Grant 
 V. People, 4 Parker, 537 ; Phillips v. People, 
 supra ; Gaflfney v. People, 50 N. Y. 416. 
 
 27. In New York, where the Court of 
 Oyer and Terminer, by its return to a writ of 
 certiorari, abided by the return made to a 
 writ of error as containing the only authentic 
 record of its judgment in the premises, and 
 declined in any way to alter and amend its 
 minutes, without the direction, order or per- 
 mission of the Supreme Court, because the 
 record of judgment was before the latter 
 court by the return to the writ of error, it 
 was held that the court of Oyer and Termi- 
 ner had mistaken the law and practice, the 
 record not being sent up on a writ of error, 
 but only a transcript, and for the purposes 
 of amendment, the record remaining in the 
 court below. Graham v. People, 03 Barb. 
 468. 
 
 28. Presumption from, that prisoner 
 was present during trial. Where the re- 
 turn to a writ of error ater conviction for 
 grand larceny, stated that the prisoner ap- 
 peared in his own proper person, and was, in 
 due form of law tried and convicted, it was 
 held that it would be presumed that he was 
 present during the whole of the trial. Hil- 
 debrand v. People, 3 N. Y. Supm. N. S. 83 ; 
 8 lb. 19. 
 
 29. Must state that the prisoner was 
 asked why judgment should not be pro- 
 nounced against him. Upon a writ of 
 error to the Court of Oyer and Terminer aft- 
 er conviction for murder, it must be dis- 
 tinctly stated in the record sent up as a part 
 of the return, that the accused was interro- 
 gated after he was found guilty why judg- 
 ment should not be pronounced against him. 
 Graham v. People, 63 Barb. 468. 
 
 30. Where the return made to WTitsof error 
 and certiorari differed in regard to the essen- 
 tial matter whether the prisoner was asked if 
 he had anything to say why sentence should 
 not be pronounced, it was held that as the 
 return to the writ of error was signed by the 
 judge of the Oyer and Terminer and the 
 district attorney, and showed that it had 
 been inspected by the court, while this was 
 not the case with respect to the return to the 
 certiorari, the return to the writ of error was 
 to be deemed to contain the authentic judg- 
 ment of the court below. lb. 
 
 31. Expunging interpolated matter. 
 Where the return of the court below shows 
 that a part of it is not the record, but is in 
 legal effect a forgery, the court of review 
 will regard the interpolated matter as having 
 been expunged. Graham v. People, supra. 
 
 32. A motion to amend the record of a 
 Court of Oyer and Terminer after a return 
 to a writ of error should not be made in the 
 Supreme Court. It is the duty of the former 
 court to expunge from its minutes matter 
 which has been interpolated without its au- 
 thority, and thus prevent the return of the 
 interpolated matter as part of its record. 
 
 lb. 
 
 0. Hearing. 
 
 33. Accused need not be present. Upon 
 a writ of error sued out by a person con-
 
 CG4 
 
 WRIT OF EREOR. 
 
 Hearing. 
 
 victed of a felony, his personal presence in 
 the appellate court is not necessary to give 
 jurisdiction. Donnelly v. State, 2 Dutch. 601. 
 
 34. Not to be had on reporter's minutes. 
 Where there is no bill of exceptions, the 
 Supreme Court upon the return of a writ of 
 error, cannot lawfully order the cause to be 
 heard on the reporter's minutes taken on the 
 trial, the prisoner objecting thereto. Messner 
 V. People, 45 N.Y. 1, Peck ham, J., dissenting. 
 
 35. Confined to questions of law. In 
 New York, a review upon writ of error (1 
 R. S. p. 736, § 23), is confined to questions 
 of law arising upon exceptions taken upon 
 the trial, and errors that appear in the rec- 
 ord. The testimony constitutes no part of 
 the record, and must be disregarded by the 
 court, except for the purpose of determining 
 the materiality of exceptions. People v. 
 Thompson, 41 N. Y. 1 ; Donohue v. People, 
 56 lb. 208 ; Eggler v. People, 3 N. Y. Supm. 
 N. S. 796. 
 
 36. Confined to causes of error assigned. 
 Where there is a general assignment of error, 
 and also an assignment of special causes of 
 error, the defendant cannot insist upon 
 other special causes under the general as- 
 signment. Crandall v. State, 10 Conn. 
 339. 
 
 37. Burden of proof. The burden of 
 showing error lies upon the plaintiff in error ; 
 and when the bill of exceptions does not 
 purport to contain all the evidence, it will 
 ordinarily be presumed, that if set forth it 
 would sustain the ruling and charge of the 
 court. Dillion v. People, 8 Mich. 357. 
 
 38. Proceedings in court below pre- 
 sumed regular. Where upon the return to 
 a writ of error, there was nothing before the 
 court excepting the indictment and the 
 clerk's minutes of the trial, which showed 
 the impaneling of the jury, the verdict 
 and sentence, it was held that the court 
 would not entertain the question of reversal 
 on the ground that it did not appear that 
 the defendant was present at the trial, or 
 when sentence was pronounced, or was asked 
 what he had to say why sentence should 
 not be pronounced against him. Thompson 
 V. People, 3 Parker, 208. 
 
 39. A return to a writ of error after con- 
 
 viction of burglary, contained the indict- 
 ment, the testimony, the charge of the court, 
 the verdict, and the sentence; but no record 
 was made up. It was urged that the judg- 
 ment should be reversed because it did not 
 appear that the prisoner was present on the 
 trial or that before sentence he was asked 
 what he had to say why judgment should 
 not be pronounced against him. Held that 
 as the case did not present the necessary 
 facts on which the prisoner's objections were 
 based, he could not avail himself of them. 
 Dent V. People, 1 N. Y. Supm. N. S. 655. 
 
 40. Where no record of the proceedings 
 was contained in the case, showing what 
 transpired between the conviction and sen- 
 tence, it was held that the objection, that 
 the prisoner was not asked if he had any- 
 thing to say why sentence should not be 
 pronounced against him, could not be enter- 
 tained. Hildebrand v. People, 3 N. Y. 
 Supm. N. S. 82; 8 lb. 19. 
 
 41. Where no objection was raised at the 
 trial in the New York Court of Sessions, 
 that the trial was had after the close of the 
 third week of the term, and it was raised 
 in the Supreme Court on writ of error, solely 
 on the ground that no order for the con- 
 tinuance of the term appeared on the record 
 of judgment, it was held that as every 
 intendment was in favor of the regularity of 
 the proceedings and the omission to in- 
 corporate the order in the proceedings did 
 not show that it was not duly entered on the 
 minutes of the court, there was nothing to call 
 for a new trial. Ferris v. People, 48 Barb. 
 17. 
 
 42. Evidence in court below presumed 
 sufficient. In the absence of all the evidence 
 given upon the trial, the appellate court 
 will assume that the evidence not returned 
 justified the verdict. Where therefore a 
 witness on the trial exhibited to the jury by 
 physical action, the mode and manner of a 
 robbery, it was held that the court on writ 
 of error would presume that the representa- 
 tion sufficiently proved the violence to bring 
 the prisoner within the statute. Mahoney 
 V. People, 5 N. Y. Supm. N. S. 329. 
 
 43. Error relieved against notwith- 
 standing no exception was taken. Where
 
 WRIT OF EREOR. 
 
 665 
 
 Hearing. 
 
 thereis a review of a judgment of the General 
 Sessions by tiie New York Supreme Court 
 upon writ of error, even if there were no 
 request or no exception, the court ought, 
 under the statute (Laws of 1855, ch. 337, 
 § 3), if they discover any error which might 
 have prejudiced the prisoner, to give him the 
 benefit of it. McNevins v. People, 61 Barb. 
 307. 
 44. Error which miglit possibly have 
 
 injured, ground of relief. The rule that 
 when although it appears to the appellate 
 court, that error has been committed, yet 
 that when the error could not have prej- 
 udiced the party complaining, it will not 
 be made a ground of reversal, is only ap- 
 plicable where the error could not by any 
 possibility have produced injury. Stokes. 
 V. People, 53 N. Y. 164. 
 
 See Appeal ; Bill op exceptions.
 
 ADDENDA. 
 
 (In arranging the work the Jollowing cases were accidentally omitted.) 
 
 When demandable as a right. In New 
 York, the right to be relieved from impris- 
 onment by means of the writ of habeas cor- 
 pus, is not a statutory right, but is a part of 
 the common law of the State. The writ, in 
 cases within the relief afforded by it as 
 known and used at common law. is placed 
 beyond the pale of legislative discretion, ex- 
 cept that it may be suspended when public 
 safety requires, as provided by the Constitu- 
 tion. The design of the various statutes of 
 the State has been to increase, rather than 
 to impair, the efficiency of the writ. People 
 ex rel. Tweed v. Liscomb, 60 N. Y. 559. 
 
 To bar the applicant from a discharge 
 from arrest by virtue of a judgment or de- 
 cree, or an execution thereon, under the 
 statute (3 R. S. 56B, § 22), the court in which 
 the judgment or decree is given, must have 
 had jurisdiction to render such judgment 
 under some circumstances. Ibid. 
 
 Nature and extent of injury. The pro- 
 hibition of the 42d section of the habeas cor- 
 2ms act (2 R. S. 568) forbidding an inquiry 
 by the court or officer into the legality or 
 justice of any previous judgment, decree or 
 execution specified in the 22d section, does 
 not deprive the court or officer of the power, 
 or relieve him from the duty, of determining 
 whether the judgment, decree or execution 
 emanated from a court of competent juris- 
 diction, and whether the court had the 
 power to render such judgment. The terms 
 '' legality and justice," as used in the statute, 
 were not intended to include questions of 
 jurisdiction or power. If the record shows 
 
 that the judgment is not merely erroneous, 
 but such as could not under any circum- 
 stances have been given, the case is not 
 within the exception of the statute, and the 
 prisoner must be discharged. Ibid. 
 
 Although errors of a court having power 
 to render judgment, committed prior to the 
 judgment, can only be reviewed by writ of 
 error, yet the fact that the court had juris- 
 diction of the person of the prisoner and of 
 the offense, is not alone conclusive. The 
 jurisdiction of the court to give the judg- 
 ment by virtue of which the prisoner is held, 
 is a proper subject of inquiry upon the return 
 of the writ of habeas corpus ; and the court 
 will determine upon the whole record, 
 whether the judgment was warranted by 
 law, and was within the jurisdiction of the 
 court. Ibid. 
 
 The presumption in favor of the jurisdic- 
 tion of a court of general jurisdiction, is one 
 of fact, and may be rebutted. Where, how- 
 ever, the jurisdiction depends upon the ex- 
 istence of certain facts, and the court has 
 passed upon those facts, the determination 
 is conclusive until the judgment has been 
 reversed. Ibid. 
 
 Duty of court when part of judgment is 
 void. Where the judgment exceeds the 
 jurisdiction of the com-t, it is void for the 
 excess ; and if the valid part of the judgment 
 has been executed, the court, upon writ of 
 habeas corpus, has power, and it is its duty 
 to discharge the prisoner. Ibid. 
 
 The relator was tried at a Court of Oyer 
 and Terminer upon an indictment contain- 
 ing 220 counts, each charging separate and 
 distinct misdemeanors of the same grade,
 
 ADDENDA. 
 
 and was found guilty upon 204 of the 
 counts. He was sentenced upon twelve of 
 the counts to as many successive terms of 
 imprisonment of one year each, and to fines 
 of $250 each ; and upon other counts, to fines 
 amounting in the aggregate to $12,500. The 
 extreme limit of punishment prescribed by 
 the statute under which he was indicted 
 for a single misdemeanor of the character 
 charged, was imprisonment for one year, 
 and a tine of |350. The relator having 
 served out one year's imprisonment, and paid 
 one fine of $250, made application upon 
 writ of habeas ccrrpus to be discharged. Held 
 that he was entitled to the relief asked. 
 Ibid. 
 
 8e.e post. Sentence. 
 
 When not proper remedy. Whether it 
 is error to join in the same indictment 
 counts for several distinct offenses, or 
 whether the court should have compelled 
 the prosecutor to elect between the several 
 counts, are questions which, as they do not 
 go to the jurisdiction of the court, cannot 
 be deteiTuined upon a writ of habeas corpus 
 to inquire into the legality of imprisonment 
 under the judgment rendered upon the trial 
 of the indictment. Ibid. 
 
 Effect of decision. A previous decision 
 iu a proceeding on habeas corpus will not 
 prevent the issuance of a new writ on the 
 application of a relator who is restrained of 
 his liberty ; and the refusal to discharge him 
 under one writ will not be an answer to a 
 second writ issued by another court or offi- 
 cer. People ex rel. Lawrence v. Brad^, 56 
 N. y. 182 ; citing ex parte Kaine, 3 Blatchf. 
 1 ; and distinguishing Mercein v. The Peo- 
 ple, 25 Wend. 64. 
 
 Sentence. 
 
 Under indictment containing several 
 counts. Where several separate and dis- 
 tinct offenses, each amounting to a misde- 
 meanor, are charged in one indictment, in 
 separate counts, and the prisoner put upon 
 
 his trial for all the alleged offenses at the 
 same time before the same jury, and a gen- 
 eral verdict of guilty rendered on all the 
 counts, or a verdict of guilty rendered on 
 various specified counts, the court has no 
 power to pronounce a sej)arate sentence on 
 each count upon which the prisoner is found 
 guilty, and thus aggregate sentences on a 
 single indictment and trial, in excess of the 
 maximum punishment prescribed by statute 
 for the grade of offense for which the prison- 
 er was indicted and tried. People ex rel. 
 Tweed v. Liscomb, 60 N. Y. 559. 
 
 The statute of New York (2 R. S. 700, 
 §11), directing that upon the conviction of 
 a person for two or more offenses, before 
 sentence shall have been pronounced upon 
 him for either, the imprisonment to which 
 he shall be sentenced upon the second or 
 subsequent conviction, shall commence at 
 the termination of the first or second term 
 of imprisonment, as the case may be, has 
 reference to separate convictions upon in- 
 dependent trials on distinct indictments. 
 Ibid. 
 
 iDitness. 
 
 Defendant testifying in his own behalf. 
 
 Where the intent constitutes the vital ele- 
 ment of the offense for which the prisoner is 
 on trial, it is competent for him, when ex- 
 amined as a witness in his own behalf, to 
 testify as to his intention in doing an act, 
 which act is claimed by the prosecution to 
 be a material circumstance bearing upon the 
 question of criminal intent. Where, there- 
 fore, on the trial of an indictment for an 
 assault with a deadly weapon (an axe), with 
 intent to kill, the prisoner, while testifying, 
 was asked by his counsel, " What was your 
 intention in taking the axe from the shed to 
 the house ? " and the question being object- 
 ed to, was ruled out on the ground that the 
 prisoner could only speak to his intent at the 
 time of striking the blow, it was held error. 
 Kerrains v. People, 60 N. Y. 221.
 
 TABLE OF CASES.
 
 A 
 
 TABLE OF THE CASES DIGESTED, 
 
 WITH REFERENCES TO THE PAGES OF THE REPORTS, AND TO THE 
 SUBJECTS OF THE WORK. 
 
 Title of Case and Report. 
 
 Aaron v. State, 37 Ala. 106 
 
 " " 31 Ga. 167 . 
 
 " " 39 Ala. 684 
 
 " " 39 Ala. 75 . 
 
 " " 39 Ala. 684 ; 40 lb. 307 
 
 Abbott V. Booth, 51 Barb. 546 
 Able V. Com. 5 Bush, Ky. 698 . 
 Abrahams v. State, 4 Clarke, Iowa, 541 ; 6 lb. 117 
 Abram v. People, 13 K Y. Supm. N. S. 493 
 Abram v. State, 25 Miss. 589 
 Ackley v. People, 9 Barb. 609 . 
 Adair v. State, 1 Blackf. 203 
 Adams v. People, 1 Comst. 173 . 
 
 " " 47 111. 376 
 
 Adams v. State, 43 Ind. 373 ; 2 Green's Crim. Rep; 
 
 " " 6 Eng. 466 . 
 
 Agitone v. State, 41 Texas, 501 . 
 Aiken v. State, 35 Ala. 399 . 
 Ailstuk's Case, 3 Gratt. 650 
 Albricht v. State, 6 Wis. 74 . 
 Alcott V. State, 8 Blackf, 6 
 Alderman v. People, 4 Mich. 414 
 Alexander v. State, 3 Heisk. 475 . 
 Alford V. State, 33 Ga. 303 . 
 Algheri v. State, 25 Miss. 584 
 Alkenbrack v. People, 1 Denio, 80 
 Allen V. Com. 2 Bibb, 210 
 Allen V. People, 57 Barb. 338 
 Allen V. State, 40 Ala. 334 
 " 10 Ga. 85. 
 
 " " 10 Ohio, N. S. 287 
 
 " " 5Yerg. 453 . 
 
 " " 5 Wis. 329 
 
 Subject and Page. 
 
 Evidence, 128, 144. 
 
 Homicide, 278. 
 
 Lai'ceny, 386. 
 
 Nolle prosequi, 466. 
 
 Sentence, 555, 556; Statutes, 581. 
 
 Warrant, 646. 
 
 Receiving stolen property, 533. 
 
 Lasciviousness, 419. 
 
 Larceny, 382. 
 
 Grand jury, 247. 
 
 Forgery and counterfeiting, 220. 
 
 Bail and recognizance, 70. 
 
 False jjretenses, 185. 
 . Homicide, 308, 319; Verdict, 638. 
 686. Evidence, 165. 
 . Trial, 604. 
 
 Assault and battery, 33. 
 . Jury, 371. 
 
 Homicide, 265. 
 
 Homicide, 313. 
 
 Peddlers, 496. 
 . Con?p'y,102,105; Ev.l50; Wit.649. 
 
 Homicide, 267. 
 , Homicide, 303. 
 
 Evidence, 129. 
 
 Larceny, 400. 
 
 Indictment, 328. 
 
 Grand jury, 247. 
 
 Burghiry, 86. 
 
 Continuance, 112, 113, 114. 
 
 Evidence, 159. 
 . Homicide, 308. 
 
 Indictment, 330.
 
 670 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Allison V. People, 45 111. 37 . 
 
 Allison V. State, 42 Ind. 354; 3 Green's Cr. Reps. 683. 
 
 Ambrose v. State, 6 Ind. 351 .... 
 
 Ames, Case of, 2 Maine, 365 
 
 Anable v. Com. 24 Gratt. 563 ... 
 
 Anderson v. Com. 5 Rand. 627 . 
 
 Anderson v. State, 3 Head, 455 
 
 " " 48 Ala. 665 ; 2 Green's Cr. Reps. 620. 
 
 " " 26 Ind. 89 . . . 
 
 " " 7 Ohio, 250 . 
 
 " " 5 Ark. 444 .. . 
 
 " " 14 Ga. 709 . 
 
 Andre v. State, 5 Iowa, 889 
 Andrews V. State, 3 Heisk. 165 ; 1 Green's Cr. Reps. 466. 
 
 " 2 Sneed, 550 . . . 
 
 Angel V, Com. 2 Va. Cas. 231 . 
 Angell V. State, 36 Texas, 542 ; 1 Green's Cr. Reps. 653. 
 Ann V. State, 11 Humph. 150 
 Anon. 31 Maine, 592 .... 
 
 " 2 Hayw. 140 . 
 " 1 Va. Cas. 139 . 
 " 1 Wash. C. C. 84 
 Anthony v. State, 13 Smeed. & Marsh. 263 
 
 " 4 Humph. 83 . . . 
 
 " " Meigs, 265 ; 13 Sm. & Marsh. 263 
 
 " 29 Ala. 27 
 Archer's Case, 6 Gratt. 705 
 Arden v. State, 11 Conn. 408 
 Arlen v. State, 18 New Hamp. 563 
 Armistead v. State, 18 Ga. 704 . 
 Armitage v. State, 13 Ind. 441 
 Armour v. State, 3 Humph. 379 . 
 Armsby v. People 2 N. Y. Supm. N. S. 157 
 Arnold v. State, 46 Ga. 455 
 
 " 29 Ala. 46 . 
 Arnold v. Steeves, 10 Wend. 514 . 
 Ashlock V. Com. 7 B. Mon. 44 
 Atkins V. State, 16 Ark. 568 
 Atzroth V. State, 10 Fla. 207 
 Austin V. Pickett, 9 Ala. 102 
 Austin V. State, 12 Mo. 893 . 
 
 " " 14 Ark. 555 
 
 " 10 Mo. 591 . 
 Austine v. People, 51 ill. 236 
 
 Bastardy, 75. 
 
 Malici. misc. 432 ; Nuisance, 472. 
 
 Former acquittal and convic. 224. 
 
 Forgery and counterfeiting, 196. 
 
 Larcenj', 377. 
 
 Adultery, 12; Conspiracy, 102. 
 
 Assault and battery, 36. 
 
 Burglary, 90. 
 
 Evidence, 149, 
 
 Forgery and counterfeiting, 208. 
 
 Homicide, 266, 268 ; New trial,442. 
 
 New trial, 444, 447, 456. 
 
 Seduction, 553. 
 
 Concealed weapons, 101. 
 
 Escape, 125. 
 
 Mayhem, 486. 
 
 Homicide, 259. 
 
 Homicide, 262, 268, 277, 285, 311. 
 
 Burglary, 95. 
 
 Homicide, 267. 
 
 Nolle prosequi, 466. 
 
 Perjury, 500. 
 
 Assault and battery, 50. 
 
 Gaming, 242, 243. 
 
 Homicide, 256, 257, 268. 
 
 Homicide, 266; Indictment, 343. 
 
 Bail and recognizance, 61. 
 
 Perjury, 499. 
 
 Sentence, 557. 
 
 Assault and battery, 39. 
 
 Forgery and counterfeiting, 217. 
 
 Burglary, 88. 
 
 Larceny, 387, 411; Trial, 596. 
 
 Assault and battery, 89. 
 
 Gaming, 24; Trial, 621. 
 
 Arrest, 21. 
 
 Gaming, 245. 
 
 Homicide, 269, 284, 307 ; Trial,598. 
 
 Larceny, 406. 
 
 Bastardy, 76. 
 
 Abatement, 1. 
 
 Evidence, 143. 
 
 Spirituous liquors, sale of, 565. 
 
 Evidence, 150. 
 
 Baalam v. State, 17 Ala. 451 
 Baccio V. People, 41 N. Y. 265 
 Badger v. State, 5 Ala. 21 
 
 B 
 
 Evidence, 155. 
 
 Rape, 523. 
 
 Bail and recognizance, 06.
 
 TABLE OF CASES. 
 
 671 
 
 Title of Case and Report. 
 
 Badgley, 
 Bagley v, 
 Bailey v. 
 Bailey v. 
 Baker v. 
 Baker v. 
 Baker v. 
 
 Baker v. 
 
 Subject and Page. 
 
 Ex parte, 7 Cow. 472 
 State, 1 Humph. 486 . 
 
 Bailey, 61 Maine, 361 
 
 State, 26 Ind. 422 
 
 Com. 10 Bush, 592 . 
 
 Cooper, 57 Maine, 388 . 
 
 People, 49 111. 308 . 
 2 Hill, 325 
 
 State, 23 Miss. 243 . 
 " 12 Ohio, N. S. 214 
 " 34 Ind. 104 . 
 " 4 Ark. 56 
 
 . " " 30 Ala. 521 . 
 
 Baldwin v. People, 1 Scam. 304 
 Baldwin v. State, 6 Ohio, 15 
 " " 12 Mo. 223 
 
 Bales V. State, 3 West Va. 685 
 Balkum v. State, 40 Ala. 671 
 Ball, Ex parte, 2 Gratt. 588 . 
 Ball V. State, 26 Ind. 155 
 
 " " 7Blackf. 242 . 
 
 Ball's Case, 5 City Hall Kec. 851 
 
 " " 8 Leigh, 726 
 
 Bamber v. Com. 10 Barr, 339 
 Banks, Ex parte, 28 Ala. 28, 89 
 
 Bankus v. State, 4 Ind. 114 
 
 Barber V. State, 13 Fla. 675; s. c. 1 Green's Crim. 
 Reps. 723 
 " " 34 Ala. 213 
 
 Barcus v. State, 49 Miss, 17 . 
 
 Barefield v. State, 14 Ala. 603 . 
 
 Barker v. Com. 2 Va. Cas. 122 
 
 Barker v. People, 3 Cow. 686 
 
 Barker v. State, 48 Ind. 163 . 
 
 Barkman v. State, 8 Eng. 703 
 
 Barlow v. State, 2 Blackf. 114 
 
 Barnes v. Com. 2 Dana, 388 
 
 Barnes v. State, 36 Texas, 356 ; 1 Green's Crim. Reps. 
 648 ; 41 Texas, 342 
 " " 20 Conn. 232; 19 lb. 398 
 
 " " 19 Conn. 398 .. . 
 
 Bamett v. People, 54 III. 325 . 
 
 Barnett v. State, 16 Ark. 530 .. . 
 
 " " 36 Maine, 198 . 
 
 Barney v. People, 22 111. 160 
 
 Barney v. State, 12 Sm. & Marsh. 68 
 
 Baron v. People, 1 Parker, 246 . 
 
 Habeas corpus, 253. 
 
 Gaming, 235. 
 
 Forcible e»itry and detainer, 192, 
 
 Larceny, 381. 
 
 Attorney, 58. 
 
 Forcible entry and detainer, 192. 
 
 Assault and battery, 50. 
 
 Bigamy, 78. 
 
 Abatement, 1 ; Jury, 370. 
 
 Assault and battery, 35, 47. 
 
 Assault and battery, 42. 
 
 Evidence, 158; Indictment, 340;. 
 
 Mayhem, 436. 
 Incest, 324. 
 Larceny, 398, 399. 
 Nuisance, 482. 
 Trial, 602. 
 Larceny, 384. 
 Assault and battery, 33. 
 Habeas corpus, 252. 
 Forcible entry and detainer, 194.. 
 Gaming, 241. 
 Arson, 24. 
 New trial, 462. 
 Bail and recognizance, 60. 
 Bail and recognizance, 60, 65 ; 
 
 Venue, change of, 636. 
 Homicide, 261. 
 
 False imprisonment, 173. 
 Receiving stolen property, 535, 
 Assault and battery, 52. 
 Bribery, 85. 
 Larceny, 398. 
 Dueling, 116. 
 Trial, 616. 
 Gaming, 234, 245. 
 Jury, 369; Trial, 612. 
 Spirituous liquors, sale of, 576. 
 
 Evidence, 129, 143. 
 
 Spirituous liquors, sale of, 575,576, 
 
 Witness, 656. 
 
 Ev. 135 ; Former acq. or conv. 229. 
 
 Bastardy, 74. 
 
 Writ of error, 661. 
 
 Trial, 604. 
 
 Grand jury, 247. 
 
 Accessory, 10; Verdict, 640.
 
 672 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Barring v. Com. 2 Duvall, Ky. 95 
 Barringer agst. People, 14 N. Y. 593 
 Barron v. People, 1 Bart). 136 
 Barter v. Com. 3 Penn. 253 
 Barton v. Keith, 2 Hill, S. C. 537 
 Barton v. State, 23 Wis. 587 
 
 " " 18 Ohio, 221 
 
 Bass V. State, 37 Ala. 469 . 
 Bassett v. State, 41 Ind. 303 
 Bates V. State, 31 Ind.. 72 
 Batre v. State, 18 Ala. 119 
 Baxter v. Columbia Township, 16 Ohio, 56 
 Baxter v. People, 2 Gilman, 578; 3 lb. 368 
 
 " 3 Gilman, 368 
 Seal V. State, 15 Ind. 378 
 Beasley v. State, 18 Ala. 535 
 Beauchamp v. State, 6 Blackf. 299 
 
 Bebee v. People, 5 Hill, 32 . 
 Bedford v. State, 5 Humph. 552 . 
 Beeman v. State, 5 Blackf, 165 
 Beets V. State, Meigs, 106 . . 
 
 Behan v. People, 17 N. Y. 516 
 Belcher v. State, 8 Humph. 63 . 
 Bell V. Clapp, 10 Johns. 263 . 
 Bell V. Com. 8 Gratt. 600 .. . 
 
 Bell V. State, 48 Ala. 684 ; 2 Green's Crim. Reps. 62 
 " " 5 Eng. 536 . 
 
 " " 5 Sneed, 507 .. . 
 
 " " 41 Ga. 589-, 42 Ind. 335 
 
 Bellair v. State, 6 Blackf. 104 . 
 Belote V. State, 36 Miss. 96 . 
 Ben V. State, 37 Ala. 103 . 
 
 " 22 Ala. 9 . . . 
 
 Benedict v. State, 14 Wis. 423 . 
 Benham v. State, 1 Clarke, Iowa, 542 
 Benjamin v. Garee, Wright, 450 . 
 Bennac v. People, 4 Barb. 164 
 
 " 4 Barb. 31 . . . 
 
 Bennett v. State, 8 Eng. 694 . 
 •" " 8 Humph. 118 . 
 
 1 Swan, 411 
 Bentley v. State, 33 Ala. 596 . 
 
 13 Vt. 468 
 Berrian v. State, 2 Zabr. 9 . . . 
 
 Berry v. Com. 10 Bush, 15 . 
 Berry V. State, 10 Ga. 511 
 
 Nuisance, 470. 
 
 Certiorari, 97. 
 
 Judgment, 363, 591. 
 
 Summary conviction, 583. 
 
 Bail and recognizance, 59. 
 
 Forgery and counterfeiting, 198. 
 
 Larceny, 397, 406, 415. 
 
 Grand jury, 247. 
 
 Abortion, 4. 
 
 Indictment, 343. 
 
 Verdict, 637. 
 
 Bastardy, 74. 
 
 Accessory, 9. 
 
 New trial, 444 ; Trial, 615 ; Wit. 648. 
 
 Larceny, 385. 
 
 Assault & batt. 49 ; Indict. 337, 346. 
 
 Homicide, 255, 277, 283, 299, 309; 
 
 Indictment, 329 ; Venue, change 
 
 of, 636 ; Witness, 660. 
 Evidence, 132. 
 New trial, 463, 463. 
 Bastardy, 72. 
 Homicide, 263, 297, 305. 
 Spirit, liq. sale of, 569 ; Stats. 583. 
 Adultery, 15. 
 Arrest, 21. 
 Indictment, 351, 352. 
 Burglary, 91, 95 ; Larceny, 387. 
 Forgery and counterfeiting, 206 ; 
 
 Indictment, 343; Trial, 604. 
 Gaming, 236. 
 Larceny, 391, 397. 
 Gaming, 243; Grand jury, 247. 
 Evidence, 148; Larceny, 409. 
 Homicide, 293, 298. 
 Indictment, 338. 
 Trial, 620. 
 
 Assault and battery, 41. 
 Bail and recognizance, 60. 
 Certiorari, 97; Evidence, 149. 
 Habeas corpus, 253. 
 New trial, 463. 
 Verdict, 640. 
 Witness, 648. 
 Gaming, 339. 
 Verdict, 640. 
 
 Indictment, 334; Trial, 606. 
 Homicide, 317; Trial, 633. 
 Evidence, 147; Larceny, 399, 400; 
 
 New trial, 458.
 
 TABLE OF CASES. 
 
 673 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Bersch v. State, 13 Ind. 434 . 
 
 Bickley v. Norris, 3 Brev. 253 
 
 Bielschofsky v. People, 5 K Y. Supra. N. S. 277 . 
 
 Bigby V. State, 44 Ga. 344 .. . 
 
 Biggs V. State, 29 Qa. 723 . 
 
 Bilbro V. State, 7 Humph. 534 . 
 
 Biles V. Com. 32 Penn. St. 539 
 
 Bill V. People, 14 111. 433 ... 
 
 Bions V. State, 46 lud. 311 .... 
 
 Birch, Ex parte, 3 Gilman, 134 
 
 Bird V. State, 14 Ga. 43 . 
 
 Birdg V. State, 31 Ind. 88 . . . 
 
 Birdsong v. State, 47 Ala. 68 ; I Green's Crim.Pteps.729. 
 
 Birge v. People, 5 Parker, 9 . 
 Bishop V. State, 30 Ala. 34 . . . 
 
 " 9 Ga. 121 . 
 
 Bittick V. State, 40 Texas, 117 
 Bivens v. State, 6 Eng. 455 
 Black V. State, 36 Ga. 447 . 
 Blackburn v. State, 39 Texas, 153 
 
 "23 Ohio, N. S. 146 ; 2 Green's Crim, 
 Reps. 534 
 
 " " 32 Ohio, N. S. 102; 1 Green's Crim, 
 
 Reps. 660 
 Bland v. People, 3 Scam. 364 
 Bland v. State, 2 Carter, 608. 
 Blanton v. State, 5 Blackf. 560 
 Bledsoe v. Com. 6 Rand. 673 
 Blemer v. People, 76 Ala. 265 
 Blend v. People, 41 N. Y. 604 . 
 Blimm v. Com, 7 Bush, Ky. 320 
 Blodget V. State, 3 Ind. 403 
 Blood V. Merrill, 17 Vt. 598 . 
 Bloomer v. People, 1 N. Y. Ct. of App. Decis. 146 
 
 3 Keyes, 9 . . . 
 
 Bloomer v. State, 3 Sneed. 66 
 BloomhufE v. State, 8 Blackf. 205 . 
 Bloss V. Tobey, 2 Pick. 320 
 Blount V. State, 49 Ala. 381 . 
 Bluff V. State, 10 Oliio, N. S. 547 
 Blunt's Case, 4 Leigh, 689 . 
 Boak V. State, 5 Iowa, 430 
 Bob V. State, 2 Yerg. 173 
 " " 33 Ala. 500 
 
 Bock V. State, 50 Ind. 381 . 
 Bodine v. People, 1 Denio, 381 . 
 Bodkin v. State, 20 Ind. 281 . 
 Boggs V. State, 45 Ala. 30 
 43 
 
 Forgery and counterfeiting, 233 -, 
 
 New trial, 460. 
 Forcible entry and detainer, 193. 
 False pretenses, 186. 
 Adultery, 13. 
 Assault and battery, 55. 
 Misdemeanor, 438. 
 Forgery and counterfeiting, 196. 
 Trial, 610. 
 
 Evidence, 165 ; Homicide, 293. 
 Pardon, 494. 
 
 Homicide, 274 ; Jury, 370. 
 Malicious mischief, 431. 
 Ev. 137; Trial, 594, 600; Venue, 
 
 change of, 636. 
 Bill of exceptions, 83. 
 Forgery & counterfeiting, 198, 217. 
 Ev. 168; New trial, 442, 445,448; 
 
 Verdict, 642 ; Witness, 658. 
 Assault and .battery, 50. 
 Homicide, 264, 277; New trial, 463. 
 Former acquittal and convic. 235. 
 Assault and battery, 40. 
 
 Homicide, 364. 
 
 Rape, 520. 
 
 Forgery and counterfeiting, 320. 
 
 Homicide, 305 ; New trial, 459. 
 
 Gaming, 244. 
 
 Continuance, 114. 
 
 Continuance, 113; Indict. 339. 
 
 Jurisdiction, 364. 
 
 Intox. as an excuse for crime, 361. 
 
 Indictment, 333. 
 
 Bastardy, 73. 
 
 Robbery, 548, 549. 
 
 Assault & bat. 41 ; False imp. 172. 
 
 Nuisance, 475, 470, 486. 
 
 Arson, 24. 
 
 Evidence, 155. 
 
 Forgery and counterfeiting, 230. 
 
 Larceny, 380. 
 
 Seduction, 553. 
 
 Certiorari, 96. 
 
 Evidence, 139, 143, 148 ; Trial, 619. 
 
 Malicious trespass, 434. 
 
 Homicide, 299, 303. 
 
 Trial, 631. 
 
 Trial, 010.
 
 674 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Bohannon v. Com, 8 Bush, 481 ; 1 Green's Crim 
 
 Eeps. 613 . 
 Boles V. State, 9 Smed. & Marsh. 284 
 
 " " 24 Miss. 445 
 
 " " 13 Smed. & Marsh. 398 
 
 Boling V. Luther, 2 Taylor, 202 . 
 Bellman Ex farte^ 4 Cranch, 75 
 Bond V. People, 39 111. 26 
 Bond V. State, 23 Ohio, N. S. 349 . 
 Bonds V. State, 1 Mart. & Yerg. 143 
 Bonfanti v. State, 2 Minn. 123 
 Bonsall v. State, 35 Ind. 460 
 Bonsell v. U. S. 1 Iowa, 111 . 
 Bonser v. State, Smith, Ind. 408 
 Booby V. State, 4 Yerg. Ill , 
 Boon V. State, 1 Kelly, 631 
 Bostick V. State, 24 Ala. 266 
 Boston, &c. R. R. v. State, 32 New Hamp. 215 
 Boswell V. Com. 20 Gratt. 860 
 • 
 
 Boswell V. State, 8 Ind. 499 . 
 Boulo V. State, 49 Ala. 22 
 Bovard v. State, 30 Miss. 600 
 Bower v. State, 5 Mo. 364 
 Bowers v. People, 17 HI. 373 
 Bowler v. vState, 41 Miss. 570 
 Bowles V. State, 7 Ohio, 243 . 
 Boyce v. People, 55 N. Y. 644 
 
 Boyington v. State, 2 Porter, 100 
 Boyle V. State, 37 Texas, 359 
 Boyles v. Com. 2 Serg. & Rawle, 40 . 
 Brabham v. State, 18 Ohio, N. S. 485 . 
 Bradford v. Paul, 18 Maine, 30 
 Bradley v. People, 56 Barb. 72 . 
 Bradley v. State, 31 Ind. 492 
 
 Bradshaw v. Com. 16 Gratt. 507 
 Brady v. Davis, 9 Ga. 73 
 Bramlett v. State, 31 Ala. 376 
 Brantly v. State, 13 Smed. & Marsh. 468 
 Braswell v. State, 42 Ga. 609 
 Bratton v. State, 10 Humph. 103 
 Brauer v. State, 25 Wis. 413 . 
 Breen v. People, 4 Parker, 380 . 
 Breese v. State, 12 Ohio, N. S. 146 . 
 Brennan v. People, 14 N. Y. Supm. K S. 171. 
 Brennon v. State, 25 Ind. 403 
 Brice v. State, 19 Ohio, 423 
 
 Briceland v. Com. 74 Penn. St. 463; 2 Green's Cr. 
 Reps. 523 ...... 
 
 Homicide, 315, 317, 321. 
 
 Homicide, 302. 
 
 Jury, 370. 
 
 New trial, 449, 451. 
 
 Perjury, 500. 
 
 Treason, 587. 
 
 Trial, 621. 
 
 Insanity, 359. 
 
 Indictment, 329. 
 
 Assault & bat. 53 ; Insanity, 359. 
 
 Evidence, 157 ; Larceny, 376. 
 
 Accessoiy, 9. 
 
 Spirituous liquors, sale of, 570. 
 
 New trial, 444, 461. 
 
 Trial, 601. 
 
 Forgery and counterfeiting, 205. 
 
 Corporation, 114. 
 
 Insanity, 357; Intoxication as an 
 
 excuse for crime, 362. 
 Malicious trespass, 435. 
 Vagrant, 633. 
 Insanity, 355. 
 Homicide, 300. 
 Officer, 490. 
 False pretenses, 185. 
 Rape, 621. 
 New trial, 450: Seduction, 550^ 
 
 552, 553. 
 Grand jury, 247. 
 Larceny, 392. 
 Bastardy, 77. 
 
 Threatening to accuse, 585. 
 Bastardy, 74, 
 Nuisance, 482. 
 Evidence, 129; Homicide, 277; 
 
 Insanity, 359 ; Trial, 624. 
 Indictment. 328. 
 Commitment, 93; Warrant, 646. 
 Homicide, 304. 
 Indictment, 349. 
 Assault and battery, 39. 
 Homicide, 257. 
 Rape, 522. 
 
 Evidence, 155 ; Trial, 620. 
 Burglary, 87, 91. 
 Rape, 527. 
 Larceny, 376, 
 Indictment, 331. 
 
 Evidence, 165; Jurisdiction, 365.
 
 TABLE OF CASES. 
 
 675 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Brinkerhoff V. Nelson, 13 Johns. 340 
 Briuton's Case, 3 Wallace, Jr. 149 
 Brister v. State, 26 Ala. 107 
 
 Bristow V. Com. 15 Gratt. 634 
 Britain v. State, 7 Humph. 159 
 
 " "11 Humph. 203 
 
 Britt V. State, 9 Humph. 31 . 
 Brittin v. State, 5 Eng. 299 
 Brock V. State, 26 Ala. 104 . 
 
 " " 14 Ind. 425 
 
 Brockway v. People, 2 Hill, 558 
 Brooks V. People, 49 N. Y. 436 
 Brooks V. State, 3 Humph. 25 
 Browder v. State, 9 Ala. 58 
 Brown v. Com. 8 Mass. 59 
 
 " 73 Penu. St. 321; 3 Greens C 
 
 Reps. 511 
 " 76 Penn. St. 319 
 " 78 Penn. St. 122 
 3 Va. Cas. 516 
 •• " 4Rawle,'259 
 
 Brown v. People, 66 111. 344 . 
 " 39 111. 407 
 29 Mich. 233 
 Brown v. State, 32 Miss. 433 
 " 46 Ala. 175 . 
 
 " " 24 Ark. 620 
 
 " 5 Eng. 607 . 
 
 " ;' 27 Ala. 47 . 
 
 " " 5 Yerg. 367 . 
 
 " 28 Ga. 199 . 
 
 " 9 Yerg. 198 
 
 " 7 Eng. 623 . 
 
 " 33 Texas, 134 . 
 
 " 35 Texas, 691 .. . 
 
 " 8 Blackf. 561 . 
 
 " 47 Ala. 47; 1 Greens Cr. Reps. 531 
 
 " " 8 Eng. 96 . . . 
 
 " 31 Ala. 353 . 
 
 " 16 Ind. 496 . 
 
 Brown v. Union Ins. Co. 5 Day, 1 . 
 Brown agst. U. S. McCahon's Kansas, 239 
 Brown's Case, 9 Leigh, 633 . 
 
 " "3 Leigh, 769 .. . 
 
 Bryan v. State, 45 Ala. 86 . 
 
 Forcible entry and detainer, 193. 
 
 Trial, 600. 
 
 Evi. 149 ; Judg. 363 ; Trial, 594, 
 
 639 ; Venue, change of, 635, 636 ; 
 
 Witness,' 654. 
 Homicide, 359. 
 Assault and battery, 47 ; Nolle 
 
 prosequi, 466. 
 Lasciviousness, 416. 
 False pretenses, 179, 186. 
 Indictment, 844 ; Sunday, 584. 
 Arson, 31 ; Evidence, 167. 
 Usury, 633. 
 Nuisance, 475. 
 Robbery, 546. 
 Homicide, 304. 
 Bail and recognizance, 65. 
 Forgery and counterfeiting, 204. 
 
 Evi. 135; Homi. 396; Jury, 371. 
 
 Evidence, 141 ; Homicide, 276, 396. 
 
 Insanity, 356. 
 
 Dueling, 117; New trial, 446. 
 
 Sentence, 560. 
 
 Forgery and counterfeiting, 317. 
 
 Homicide. 333. 
 
 Larceny, 389. 
 
 Evidence, 149; Homicide, 393. 
 
 Evidence, 151 ; Religious meeting^ 
 
 disturbance of, 540. 
 Evidence, 168; Trial, 605. 
 Former acquittal or convic. 234 » 
 
 Grand jury, 248 ; Verdict, 640. 
 Gaming, 339; Trial, 618. 
 Gaming, 245. 
 Homicide, 306. 
 Indictment, 327. 
 Jury, 370. 
 Larceny, 392. 
 Larceny, 403. 
 New trial, 444. 
 Perjury, 510. 
 Sentence, 559; Venue, change of„ 
 
 035. 
 Spirituous liquors, sale of, 567,574. 
 Trial, 603. 
 Barratry, 71. 
 Pardon, 494. 
 Evidence, 148. 
 Trial, 602. 
 Indictment, 341.
 
 G76 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Bryans v. State, 34 Ga. 323 
 Buck V. State, McCook, 61 . 
 Buckland's Case, 8 Leigh, 733 
 Buckley v. State, 2 Greene, Iowa, 183 
 Bucklin v. State, 20 Ohio, 18 . 
 Buford V. Com. 14 B. Mon. 24 
 Bugg V. State, 47 Ala. 51 . 
 Bullock V. State, 10 Ga. 46 . 
 
 Burdick v. People, 58 Barb. 51 . 
 
 Burdine v. State, 25 Ala. 60 . 
 
 Burgen v. Straughan, 7 J. J. Marsh. 583 
 
 Burgess v. Bosworth, 23 Maine, 735 
 
 Burgess v. Com. 2 Va. Cas. 483 . 
 
 Burgess v. State, 44 Ala. 190 
 
 Burk V. State, 2 Har. & Johns. 426 
 
 Burke v. People, 11 N. Y. Supm. N. S. 481 
 
 Burke's Case, 6 Leigh, 634 
 
 Burnett v. Com. 4 Monr. 106 . 
 
 Burnett v. State, 30 Ala. 19 
 
 Burns v. Erben, 40 N. Y. 463 
 
 Burns v. People, 1 Parker, 182 . 
 
 "59 Barb. 531; 5 Lans. 180 
 Burns v. State, 49 Ala. 379 
 
 " 35 Texas, 724 
 " 48 Ala. 195. 
 Burr V. Com. 4 Gratt. 534 . 
 Burrill v. State, 18 Texas, 713 . 
 Burrows v. State, 7 Eng. 65 . 
 Burt V. State, 2 Const. R. 489; 3 Brev. 413 
 
 " " 23 Ohio, N. S. 394 ; 2 Green's Cr. R 
 
 Bush V. Republic, 1 Texas, 455 . 
 Busick V. State, 19 Ohio, 19S 
 Butler V. Com, 2 Duvall, 435 
 Butler V. Foster, 14 Ala. 323 . . 
 
 Butler V. People, 4 Denio, 68 
 Butler V. State, 12 Smed. & Marsh. 470 
 
 " " 22 Ala. 43 
 
 " " 5 Blackf. 280 
 
 " " 3 McCord, 383 . 
 
 " "17 Ind. 450 . 
 
 Butman's Case, 8 Maine, 113 
 Buttram v. State, 4 Cold. Tenn. 171 . 
 Bynam v. State, 17 Ohio, N. S. 142 
 Byrd v. Com. 2 Va. Cas. 490 
 Byrd v. State, 1 How. Miss. 163 
 Byrne v. State, 13 Wis. 519 . 
 Bythwood v. State, 20 Ala. N. S. 47 
 
 543 
 
 Former acquittal and convic. 224. 
 
 Gaming, 236 ; Indictment, 330. 
 
 Forgery and counterfeiting, 204. 
 
 Forgery and counterfeiting, 207. 
 
 Witness, 659. 
 
 Gaming, 243. 
 
 Trial, 604. 
 
 Homicide, 303; Indictment, 336, 
 339 ; Larceny, 389, 404. 
 
 Trial, 622 ; Witness, 659. 
 
 Gaming, 239. 
 
 Bastardy, 72. 
 
 Bastardy, 74. 
 
 Indictment, 350. 
 
 Malicious mischief, 432. 
 
 Indictment, 340 ; Trial, 604, 
 
 Mayhem, 436. 
 
 Spirituous liquors, sale of, 573. 
 
 Bastardy, 73. 
 
 Gaming, 239. 
 
 Arrest, 20. 
 
 Former acquit, or convic 223, 230. 
 
 Perjury, 502, 504, 506. 
 
 Homicide, 290. 
 
 Larceny, 387. 
 
 Statutes, 579. 
 
 Larceny, 405. 
 
 Evidence, 170. 
 
 False pretenses, 181. 
 
 Forcible entry and detainer, 191. 
 
 Rape, 524. 
 
 Sjiirituous liquors, sale of, 569. 
 
 New trial, 445. 
 
 Trial, 622. 
 
 Bail and recognizance, 60. 
 
 Burglary, 90. 
 
 Bail and recognizance, 65. 
 
 Forg'y & counterf g, 213, 222; In- 
 dictment, 346. 
 
 Gaming, 241. 
 
 Indictment, 341. 
 
 Nuisance, 480. 
 
 Indictment, 347. 
 
 Laciviousness, 419. 
 
 Forgeiy and counterfeiting, 211. 
 
 Pardon, 494 ; Witness, 649. 
 
 Indictment, 329. 
 
 Indict. 339; Trial, 593; Vot'g,645. 
 
 Gaminjy. 241.
 
 TABLE OF CASES. 
 
 677 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 c 
 
 Cabbell v. State, 4G Ala. 195 . 
 
 Cable V. State, 8 Blackf. 531 
 
 Cadwell v. State, 17 Conn. 467 
 
 Cady V. State, 44 Miss. 332 
 
 Caesar Williams v. State, 44 Ala. 398 
 
 Cahoon v. Com. 31 Gratt. 823 
 
 Cain V. State, 30 Ala. 534 . 
 
 " " 13 Smed. & Marsh. 43G 
 
 " "18 Texas, 391 . 
 
 Caldwell v, Brindell, 1 Jones, 293 
 
 Caldwell v. State, 49 Ala. 34 . 
 
 Calkins v. State, 14 Ohio, N. S. 222 
 
 Callahan v. State, 21 Ohio, N. S. 306 
 " " 41 Texas, 43 . 
 
 Cameo v. State, 11 Mo. 579 . 
 
 Cameron v. State, 8 Eng. 712 
 " 14 Ala. 546 
 " 15 Ala. 383 . 
 
 Campbell v. Com. 59 Penn. St. 266 . 
 
 Campbell, Ex parte, 20 Ala. 89 . 
 
 Campbell v. People, 16 111. 17 
 " " 8 Wend. 636 
 
 Campbell v. State, 23 Ala. 44 
 
 " " 9 Yerg. 333 . 
 
 " " 17 Ala. 369 
 
 " " 11 Ga. 353 . 
 
 " " 16 Ala. 144 
 
 " " 3 Kelly, 417 
 
 3 Kansas, 484 . 
 Canada v. Com. 9 Dana, 304 
 
 " " 22 Gratt. 899 
 
 Canby v. Griffin, 3 Harring. 333 . ; 
 
 Cancemi v. People, 16 N. Y. 501 ; 18 lb. 128 
 
 Cannon v. State, 3 Texas, 31 , 
 
 Canter v. People, 1 N. Y. Ct. of App. Decis. 305 
 
 Cantor v. People, 5 Parker, 217 . 
 
 Cantrill v. People, 3 Gilman, 35G 
 
 Carberry v. State, 11 Ohio, N. S. 410 
 
 Cardell v. State, 22 lud. 1 . 
 
 Carico v. Com. 7 Bush, Ky. 124 . 
 
 Carlisle's Case, 1 Dall. 35 . 
 
 Carlton v. Com. 5 Mete. 532 . 
 
 Carlton, Matter of, 7 Cow. 471 
 
 Carmichael v. State, 12 Ohio, N. S. 553 . 
 
 Assault and battery, 54. 
 
 Nuisance, 475. 
 
 Nuisance, 482. 
 
 Evidence, 147. 
 
 Larceny, 395. 
 
 Evidence, 150. 
 
 Gaming, 241. 
 
 Gaming, 241. 
 
 Larceny, 386. 
 
 Bail and recognizance, 64. 
 
 Malicious mischief, 431. 
 
 Evidence, 133. 
 
 Evidence, 155. 
 
 Larceny, 401. 
 
 Assault and battery, 48. 
 
 As't & bat. 57 ; Indict. 332 ; Ver.639. 
 
 Evidence, 163. 
 
 Gaming, 236, 244. 
 
 Relig. meet'g, disturbance of, 540. 
 
 Bail and recognizance, 59. 
 
 Homicide, 290, 319. 
 
 Perjury, 500, 505, 508. 
 
 Evi. 138, 141, 163; Homicide, 275, 
 
 279, 281, 282, 309, 314 ; Wit. 
 
 652, 659, 660 ; Trial, 625. 
 Former acquittal or couvic'n, 225 ; 
 
 New trial, 442. 
 Gaming, 239. 
 Homicide, 292. 
 Nuisance, 486. 
 Rape, 526. 
 Trial, 615. 
 Misdemeanor, 439. 
 Robbery, 549. 
 Bail and recognizance, 68. 
 Certiorari, 97, 98; Trial, 594, 599, 
 
 603, 018. 
 New Trial, 442, 453. 
 Former acquittal or con, 224, 225. 
 Evidence, 127. 
 Indictment, 337. 
 Forgery and counterfeiting, 211. 
 Homicide, 267. 
 Homicide, 317. 
 Treason, 587. 
 
 Indictment, 310; sentence, 557. 
 Habeas corpus, 251. 
 Bigamy, 79.
 
 C78 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Carnal v. Peojile, 1 Parker, 272 
 
 Carrotti v. State, 42 Miss. 334 . 
 Carpenter v. People, 8 Barb. 603 
 "4 Scam. 197 
 Carpenter v. State, 4 How. Miss. 183 
 Carr v. State, 14 Ga. 358 
 Carrington v. People, 6 Parker, 336 . 
 Carroll v. State, 23 Ala. 28 
 
 "3 Humph. 315 
 Carter v. People, 2 Hill, 317 
 Carter v. State, 2 Carter, 617 
 
 " " 20 Wis. 647 
 
 "37 Texas, 362 
 
 " "46 Ga. 637 
 
 Carwile v. State, 35 Ala. 392 
 Casey v. State, 6 Mo. 646 
 Cash V. State, 2 Overt. 198 . 
 
 " " 10 Humph. Ill . 
 
 easily v. State, 32 IncL 62 . 
 Caskells v. State, 4 Yerg. 149 
 Cathcart v. Com. 37 Penn. St. 103 . 
 Cato V. State, 9 Fla. 163 . 
 Cawley v. State, 37 Ala. 152 . 
 Chahoon v. Com. 20 Gratt. 733 . 
 Chamberlain v. People, 23 N. Y. 85 . 
 Chambers v. People, 4 Scam. 351 
 Champ V. Com. 2 Mete. Ky. 17 
 Champer v. State, 14 Ohio, N. S. 437 
 Champlain v. People, 2 Comst. 82 
 Chancellor v. State, 47 Miss. 278 
 Chaney, Ex parte, 8 Ala. 424 
 Chaney v. State, 31 Ala. 342 
 Chapman v. Com. 5 Whart. 427 
 Chappel V. State, 7 Cold. Tenn. 92 
 
 " " 8 Yerg. 166 
 
 Charles y. People, 1 Comst. 180 . 
 Charles v. State, 6 Eng. 389 . 
 Chavaunah v. State, 49 Ala. 396 . 
 Cheek v. State, 35 Ind. 492 ,. 
 Cherry v. State, 7 Ohio, 222 
 Chess V. State, 1 Blatchf. 198 
 Chick V. State, 7 Humph. 161 . 
 Childs V. State, 15 Ark. 20 i 
 Chisholm v. State, 45 Ala. 66- 
 Choice V. State, 31 Ga. 424 . 
 
 Christian v. Cora. 23 Gratt. 954; 2 Green' 
 Christian \. State, 40 Ala. 376 
 Christian's Case, 7 Gratt. 681 . 
 
 Bill of exceptions, 82; Trial, 595; 
 
 Writ of error, 662. 
 Adultery, 13. 
 
 Abduction, 3 ; Verdict, 637. 
 Assault and battery, 57. 
 Perjury, 499 ; Trial, 631. 
 New trial, 459. 
 Conspiracy, 104. 
 Evidence, 142; Homicide, 321. 
 Homicide, 289, 299 ; Trial, 603. 
 Evidence, 170. 
 Abort. 7 ; Homi. 266 ; Indict. 847 ; 
 
 Trial, 619 ; Verdict, 637. 
 Arson, 29. 
 Evidence, 126. 
 Evidence, 129. 
 Affray, 17. 
 Evidence, 155. 
 Affray, 17, 18. 
 Indictment, 340. 
 False pretenses, 185. 
 Receiving stolen property, 533. 
 Homicide, 300. 
 Rape, 518; Trial, 614. 
 Sentence, 560; Verdict, 639. 
 Forgeiy and counterfeiting, 197. 
 Perjury, 498, 513. 
 Indictment, 334. 
 Evidence, 167. 
 Assault and battery, 43. 
 Bail and recognizance, 67, 68. 
 Incest, 324. 
 Habeas corpus, 251. 
 Evidence, 137. 
 Arson, 26, 27, 28, 29. 
 Evidence, 165. 
 Indictment, 327. 
 Libel, 423. 
 
 Rape, 518, 525, 528, 532. 
 Lottery, 426. 
 
 Homicide, 290; New trial, 453. 
 Larceny, 406. 
 
 Forgery and counterfeiting, 211. 
 Mayhem, 436. 
 Affray, IS. 
 Evidence, 129. 
 
 Evidence, 164; Insanity, 355; In- 
 tox'n as an excuse for crime, 360. 
 Cr. R. 659. Rape, 529, 530. 
 
 Spirituous liquors, sale of, 574. 
 Presentment, 516.
 
 TABLE OF CASES. 
 
 G79 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Chute V. State. 19 Minn. 271 ; 1 Green's Cr. Reps. 571. 
 
 City Council v. Alirens, 4 Strobh. 241 
 
 Clackner v. State, 33 Ind. 412 . 
 
 Clark V. Cleveland, 6 Hill, 344 . . . 
 
 Clark V. Cora. 16 B. Mon. 206 . 
 
 Clark, Matter of, 9 Wend. 312 
 
 Clark V. People, 2 Lans. 329 . 
 
 5 N. Y. Supm. N. S. 33 . 
 Clark V. State, 34 Ind. 436 .. . 
 
 '^ 13 Ga. 350 .... 
 " " 8 Humph. 671 . 
 
 " '• 23 Maine, 261 
 
 " " 12 Ohio, 483 
 
 " " Smith, Ind. 161 ; 1 Carter, 253 
 
 Clarke v. Com. 25 Gratt. 908 
 Clarke v. State, 8 Ohio, N. S. 630 . 
 " " 12 Ala. 492 
 
 " " 52 Ind. 67 . 
 
 Clayton v. State, 2 Humph. 181 . 
 Cleaveland v. State, 34 Ala. 254 
 Clem V. State, 42 Ind. 420 ; 2 Green's Cr. Eeps. 687. 
 
 " " 33 Ind. 418 
 
 " " 31 lad. 480 . 
 
 Clementine v. State, 14 Mo. 112 . 
 Click V. State, 3 Texas, 282 . 
 Cliflford V. State, 29 Wis. 327 . 
 Clifton V. State, 5 Blackf. 224 ... 
 
 Cluck V. State, 40 Ind. 263; 1 Green's Cr. Reps. 734. 
 Coats V. People, 22 N. Y. 245 
 
 " " 4 Parker, 662 . 
 
 Cobel V. People, 5 Parker, 348 .. . 
 
 Cobletz V. State, 36 Texas, 353 ; 1 Green's Cr. R. 646 
 Cochran v. State, 30 Ala. 542 
 
 " "7 Humph. 544 
 
 Cockburu v. State, 32 Texas, 359 
 Cocke Y. Com. 13 Gratt. 750 . . 
 
 Cody V. State, 3 How. Miss. 27 
 Coenhoven v. State, Coxe, 258 
 Coffman v. Com. 10 Bush, 495 
 Cohen v. People, 5 Parker, 330 . 
 Coker v. State, 20 Ark. 53 . 
 Cole V. People, 43 N. Y. 508 ; affi'g 2 Lans. 370 
 Cole V. State, 5 Eng. 318 . 
 
 Coleman v. Com. 25 Gratt. 865 . 
 Coleman v. Frum, 3 Scam. 378 
 Coleman v. People, 58 N. Y. 555 
 
 Nuisance, 480, 481, 483, 485, 486; 
 Trial, 608. 
 
 Spirituous liquors, sale of, 565. 
 
 Larceny, 409. 
 
 Arrest, 22; Bail and recogniz. 59. 
 
 Forgery and counterfeiting, 215. 
 
 Fugitives from justice, 235 ; Ha- 
 beas corpus, 252. 
 
 False pretenses, 180, 185. 
 
 Burglary, 94. 
 
 Assault and battery, 42. 
 
 Assault and battery, 57. 
 
 Homicide, 257, 274, 275, 305. 
 
 Indictment, 351. 
 
 Insanity, 358 ; Writ of error, 662. 
 
 Trial, 631. 
 
 Burglary, 87, 95. 
 
 Forgery and counterfeiting, 208. 
 
 Gaming, 240. 
 
 Trial, 624. 
 
 Trial, 620. 
 
 Extortion, 171. 
 
 Former acquittal or convic. 229, 
 231; Homicide, 304; Trial, 618. 
 
 Homicide, 262 ; Witness, 660. 
 
 Homicide, 277; Trial, 619. 
 
 Nuisance, 484; Witness, 656, 657. 
 
 Indictment, 351; Kidnapp'g, 371. 
 
 Indictment, 339. 
 
 Larceny, 395. 
 
 Homicide, 255,291 ; New trial, 453. 
 
 Embezzlement, 120. 
 
 Embezzlement, 121, 122, 123; Evi. 
 159; Indict. 353; Trial, 610. 
 
 Abortion, 4. 
 
 Larceny, 375. 
 
 Gaming, 239, 242. 
 
 New trial, 462. 
 
 Continuance, 113. 
 
 Forgery and counterf'g, 208, 223. 
 
 New trial, 445. 
 
 Forcible entry and detainer, 194. 
 
 Homicide, 264, 308, 317. 
 
 Receiving stolen pro2)erty, 535. 
 
 Homicide, 284, 285. 
 
 Trial, 609. 
 
 Assault and battery, 51, 52, 53; 
 New tri. 461 ; Sentence, 555, 559. 
 
 Witness, 648. 
 
 Bastardy, 76. 
 
 New trial, 447.
 
 080 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Coleman v. People, 55 N. Y. 81 ; 58 lb. 555 ; affi'g 4 
 
 N. Y. Supm. N. S. 61 . 
 Coleman v. State, 33 Ala. 581 . 
 
 " " 13 Ala. 603 ... 
 
 " " 8 Eng. 105 . 
 
 Collier V. State, 39 Ga. 31 . 
 " 8 Eng. 670 
 " " 30 Ark. 36 . 
 
 Collins V. Com. 3 Serg. & Rawle, 330 
 Collins V. People, 4 N. Y. Supm. N. S. 77; 8 lb. 610. 
 
 39 111. 333 . 
 Collins V. State, 14 Ala. 608 . 
 
 " " 3 Heisk. 14 ... 
 
 " " 33 Ala. 434 . 
 
 Colt V. People, 1 Parker, 611 ; 3 Hill, 433 
 
 Colvi 
 Com 
 Com 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Cora. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 
 " 1 Parker, 617 
 u T. State, 11 Ired. 361 
 V. Abbott, 13 Mete. 130 
 v. Adams, 7 Mete. 50 
 
 " 7 Gray, 43 . 
 1 Gray, 481 
 4 Gray, 37 . 
 V. Adcock, 8 Gratt. 661 
 V. Aglar, Thach. Crim. Cas, 
 V. Abl, 43 Penn. St. 53 
 V. Alden, 14 Mass. 388 
 V. Alderman, 4 Mass. 477 
 V. Alfred, 4 Dana, 495 
 V. Andrews, 97 Mass. 543 
 
 " 3 Mass. 136 
 
 V. Annis, 15 Gray, 197 
 V. Anthes, 5 Graj^, 185 
 V. Arlin, Thach. Crim. Cas. 
 V. Arrance, 5 Allen, 517 
 V. Ashley, 3 Gray, 356 
 V. Atee, 8 Dana, 38 
 V. Austin, 7 Gray, 51 
 V. Ayer, 3 Cush. 150 . 
 V. Bagley, 7 Pick. 340, 379 
 V. Bailey, 13 Allen, 541 
 
 " 1 Mass. 63 
 V. Bakeman, 105 Mass. 53 
 
 41'; 
 
 389 
 
 Com. V. Baker, 10 Cush. 405 
 Com. V. Baldwin, 11 Gray, 197 
 Com. V. Bangs, 9 Mass. 387 
 Com. V. Barbarick, 15 Mass. 103 
 Com. V. Barhight, 9 Gray, 113 
 Com. V. Barlow, 4 Mass. 439 . 
 
 Receiving stolen property, 538. 
 
 Concealed weapons, 101. 
 
 Gaming, 340. 
 
 New trial, 443. 
 
 Assault and battery, 49. 
 
 Homicide, 390. 
 
 Homicide, 397 ; New trial, 444. 
 
 Conspiracy, 106, 108. 
 
 Bigamy, 79. 
 
 Larceny, 414. 
 
 Adultery, 13. 
 
 Homicide, 373. 
 
 Receiving stolen property, 539;^ 
 
 Trial, 637. 
 Homicide, 377; Jury, 370; Sen- 
 tence, 554. 
 Writ of error, 663. 
 Forgery and counterfeiting, 313. 
 Jury. 370. 
 
 Forgery and counterfeiting, 313. 
 Larceny, 387, 398. 
 Spirituous liquors, sale of, 568. 
 " •• 569. 
 
 Indictment, 350. 
 Voting, 643. 
 Pardon, 495. 
 Perjury, 504. 
 
 Former acquit, or conviction, 337. 
 Indictment, 348. 
 Escape, 135. 
 
 Receiving stolen property, 534. 
 Larcenj', 400, 406, 410. 
 Verdict, 637. 
 
 Forgery and counterfeiting, 309. 
 Larceny, 403 ; Trial, 609. 
 Nuisance, 480, 481. 
 Misdemeanor, 438. 
 Evidence, 131 ; Trial, 598. 
 Forgery and counterfeiting, 301. 
 Extortion, 171; Imlictment, 333. 
 Fishery, 190. 
 
 Forgery and counter'g, 303, 305. 
 Former acquittal or conviction,. 
 
 331; Nuisance, 480,483,484. 
 Spirituous liquors, sale of, 569. 
 Forgery and counterfeiting, 198^ 
 Indictment, 337. 
 Lasciviousness, 430. 
 Complaint, 100. 
 Misdemeanor, 438.
 
 TABLE OF CASES. 
 
 681 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com, 
 Coin. 
 
 Com, 
 Com, 
 Com, 
 Com, 
 
 Com. 
 Com, 
 Com, 
 Com, 
 Com 
 Com 
 
 V. Barney, 10 Cush. 478 
 V. Barry, 116 Mass. 1 . 
 
 115 Mass. 146; 2 Green's Cr. R. 285 
 " 9 Allen, 276 
 V. Batchelder, Thacli. Cr. Cas. 191 
 V. Batris, 1 Mass, 95 
 V. Beaman, 8 Gray, 497 
 V. Bean, 11 Cush. 414 . 
 
 " 14 Gratt. 52 
 
 " 117 Mass. 141 . 
 V. Bearse, 108 Mass. 487 
 V. Beckley, 3 Mete. 330 
 V. Belgard, 5 Gray, 95 
 V. Benesh, Thacli. Cr. Cas. 684 
 V. Bennett, 2 Va. Cas. 235 
 X. Berry, 5 Gray, 93 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 
 (< 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 
 " 99 Mass. 428 
 Betton, 5 Cush. 427 . 
 
 Bigelow, 3 Pick. 31 . 
 Billings, 97 Mass. 405 
 Birdsall, 69 Penn. St. 482 . 
 Biron, 4 Dall. 125 ... 
 
 Blackburn, 1 Duvall, 4 
 Blaisdell, 107 Mass. 234 . 
 Blanding, 3 Pick. 304 
 Blood, 97 Mass. 538 . 
 Bolton, 1 Serg. & Rawle, 328 
 Bonner, 9 Mete. 410 . 
 
 " 97 Mass. 587 
 Boon, 2 Gray, 74 ... 
 
 Boott, Thach. Crim. Cas. 390 
 Bosworth, 22 Pick. 397 . 
 Bowdeu, 14 Gray, 103 
 Bowen, 13 Mass. 350 ; 2 Wheeler's Cr. Cas. 226 
 Bowman, 3 Barr, 202 
 Boyer, 7 Allen, 306 . 
 Boynton, 12 Cush. 499 . 
 Bradford, 9 Mete. 268 
 Bradley, 2 Cush. 553 
 Brady, 5 Gray, 78 ; 7 lb. 320 
 Brainard, Thach. Crim. Cas. 140 
 Branamon, 8 B. Mon. 374 
 Brettun, 100 Mass. 2G0 . 
 Briggs, 5 Mete. 559 . 
 
 5 Pick. 429 . 
 
 " 7 Pick. 177 . 
 " 11 Mete. 573 
 Brigham, 16 Pick. 10 
 Brooks, 9 Gray, 299 . 
 
 Brown, 14 Gray, 419 
 
 Arson, 24, 26, 29. 
 
 Embezzlement, 122; Larc'y, 375. 
 
 Evidence, 131. 
 
 Trial, 623. 
 
 Libel, 421, 424, 
 
 Trial, 593. 
 
 Larceny, 388, 400. 
 
 Malicious mischief, 431. 
 
 Nuisance, 472. 
 
 Receiving stolen property, 534. 
 
 Homicide, 269. 
 
 As'lt and bat. 43 ; Indict. 349, 
 
 Evidence, 137. 
 
 New trial, 441, 457, 459. 
 
 Rape, 520, 521. 
 
 Former acquittal or conviction, 
 
 223 ; Riot, 545. 
 Larceny, 875. 
 Arson, 29. 
 
 Forcible entry and detainer, 192. 
 Evidence, 130, 169. 
 Sentence, 557. 
 Homicide, 305. 
 Conspiracy, 104. 
 Nuisance, 471. 
 Libel. 421, 424 
 Adultery, 16. 
 Bail and recognizance, 65. 
 Libel, 421. 
 Witness, 656. 
 
 Officer, 489 ; Spir. liq. sale of, 569. 
 Dueling, 116, 117. 
 New tr, 447 ; Verd. 636 ; Wit. 660. 
 Burglary, 92. 
 Homicide, 263. 
 Nuisance, 472. 
 Bigamy, 81. 
 
 Unwholesomeprov'ns, sale of, 032. 
 Votmg, 643, 645. 
 Lasciviousness, 418, 
 Perjury, 490, 5I3. 
 Indictment, 348 ; Witness, 656. 
 Spirituous liquors, sale of, 566, 
 Larceny, 388. 
 Escape, 124, 
 
 New tr. 464 ; Rec stolen prop. 537, 
 Nolle prosequi, 466. 
 Spirituous liquors, sale of, 575. 
 Bail and recognizance, 64. 
 Evidence, 159. 
 Abortion, 4, 5, 7 ; Conspiracy, 108,
 
 682 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. Y. Brown, 3 Rawle, 207 . 
 15 Gray, 189 
 "4 Mass. 580 
 
 " " ISMetc. 3G5 
 
 '' "2 Gray, 358 
 
 Com. V. Bryden, 9 Mete. 137 
 Com. V. Buckingham, Tliach. Crim. Cas. 29 
 Com. V. Bugbee, 4 Gray, 206 
 Com. V. Bulman, 118 Mass. 456 . 
 Com. V. Burdick, 2 Barr, 163 
 Com. V. Burk, 11 Gray, 437 
 Com. V. Burke, 16 Gray, 32 . 
 
 " 12 Allen, 182 
 
 " " 105 Mass. 376 
 
 " " 14 Gray, 100 
 
 Com. V. Burns, 4 J. J. Marsb. 177 
 Com. V. Butterick, 100 Mass. 1 . 
 
 " " 100 Mass. 12 
 
 Com. 
 
 V. Butts, 2 Va. Cas. 18 . 
 
 Com. 
 
 V. Buxton, 10 Gray, 9 . 
 
 Com. 
 
 V. Byce, 8 Gray, 461 ... 
 
 Com. 
 
 V. Byron, 14 Gray, 31 . 
 
 Com. 
 
 V. Cabin, 12 Allen, 540 . 
 
 Com. 
 
 V. Cain, 102 Mass. 487 . 
 
 Com. 
 
 V. Calbert, 1 Bald. 350 . 
 
 Com. 
 
 T. Calef, 10 Mass. 153 . 
 
 Com. 
 
 V. Calbane, 110 Mass. 498 . 
 
 Com. 
 
 V. Call, 21 Pick. 509 . 
 
 Com. 
 
 V. Callagban. 2 Va. Cas. 460 ■ . 
 
 Com. 
 
 V. Calvert, 1 Va. Cas. 181 
 
 Com. 
 
 V. Campbell, 7 Allen, 541 . 
 
 u 
 
 " 103 Mass. 436 . 
 
 Com. 
 
 V. Canada, 13 Pick. 86 . . . 
 
 Com. 
 
 V, Carey, 12 Cusb. 246 
 
 u 
 
 " 2 Mass. 523 
 
 u 
 
 " 2 Pick. 47 . 
 
 u 
 
 " 103 Mass. 214 . 
 
 Com. 
 
 V. Carpenter, 108 Mass. 15 
 
 Com. 
 
 V. Carrington, 116 Mass. 37 
 
 Com. 
 
 V. Carter, 11 Pick. 277 
 
 Com. 
 
 V. Casey, 11 Cusb. 417 . 
 
 Com. 
 
 V. Castles, 9 Gray, 121 
 
 " 
 
 " 9 Gray, 123 . 
 
 Com. 
 
 V. Catlin, 1 Mass. 8 . . . 
 
 Com. 
 
 V. Cayton, 2 Dana. 138 . 
 
 Com. 
 
 V. Centr. Bridge Corp. 12 Cusb. 242 • 
 
 Com 
 
 V. Cbace, 9 Rich. 15 . . . 
 
 Com 
 
 V. Chandler, Thacb. Crim. Cas. 187 . 
 
 Burglary, 88, 91. 
 
 False pretenses, 184, 187. 
 
 Larceny, 374. 
 
 Nuisance, 483. 
 
 Spirituous liquors, sale of, 571. 
 
 Spirituous liquors, sale of, 572. 
 
 Libel, 423. 
 
 Assault and battery, 51. 
 
 Nuisance, 481. 
 
 False pretenses, 179. 
 
 Spirituous liquors, sale of, 575. 
 
 Former acquittal or conviction, 
 
 225; Witness, 658. 
 Larceny, 404. 
 Rape, 519. 
 Verdict, 639. 
 Gaming, 236. 
 
 Embezzlement, 118, 119, 122, 123. 
 Forgery and counterfeiting, 207, 
 
 208, 210, 213, 219. 
 Gaming, 244. 
 Nuisance, 475. 
 Trial, 613. 
 
 Evidence, 169 ; Perjury, 507. 
 Larceny, 404. 
 Nolle prosequi, 467. 
 Perjury, 499. 
 Lasciviousness, 417, 420. 
 Complaint, 100. 
 Adultery, 12; False pretenses, 173, 
 
 179, 182; Verdict, 641. 
 Bribery, 85. 
 Perjury, 499. 
 Homicide, 257. 
 
 Larc. 388 ; Rec. stol. prop. 535, 538. 
 Bail and recognizance, 59. 
 Arrest, 21 ; Homicide, 309. 
 Extortion, 171. 
 
 Forg'y and counter. 204, 205, 216. 
 Verdict, 639. 
 
 Tbreat'ng to accuse of crime, 586. 
 Verdict, 641. 
 Trial, 593. 
 Homicide, 296. 
 False pretenses, 188. 
 Forg'y and counterfeit^, 202, 203. 
 Lasciviousness, 419. 
 Bail and recognizance, 68. 
 Nuisance, 474, 480. 
 Larceny, 384. 
 Forg'y and counter. 196, 200, 219.
 
 TABLE OF CASES. 
 
 683 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Chaney, 7 Allen, 537 . 
 Chapia, 5 Pick. 199 
 Chapman, 1 Va. Cas. 138 
 
 " 11 Cush. 423 
 
 Chase, Thach. Crim. Cas. 267 . 
 Chathams, 50 Penn. St. 181 
 Chauncey, 2 Ashm. 90 
 Cheney, 6 Mass. 347 
 Chesley, 107 Mass. 223 . 
 Child, 10 Pick. 253 . 
 Choate, 105 Mass. 451 . ' 
 Chubb, 5 Rand. 715 
 Church, 1 Penn. St. 105 
 City of Boston, 97 Mass. 555 
 Clair, 7 Allen, 535 ... 
 
 Clanahan, 3 Mete. Ky. 8 
 Clap, 4 Mass. 163 
 Clapp, 5 Pick. 41 . 
 Clark, 3 Va. Cas. 401 . 
 
 " 3 Ashm. 105 . 
 
 " 14 Gray, 367 . 
 
 " 3 Brown, 233 
 
 " 6 Gratt. 615 . 
 Clifford, 8 Cush. 215 
 Clue. 3 Rawle, 498 . . . 
 
 Cobb, 14 Gray, 57 . 
 Coe, 115 Mass. 481 ; 2 Green's Crim. Reps. 
 
 292, 
 
 Com. V. Cole, 5 Mass. 517 
 Com. V. Collins, 12 Allen, 181 
 Com. V. Colton, 11 Gray, 1 
 
 " " 8 Gray, 488 
 
 Com. V. Concannon, 5 Allen, 503 
 Com. V. Conley, 1 Allen, 6 
 Com. V. Cook, 13 Mete. 93 . 
 Com. V. Cooley, 6 Gray, 350 
 
 " " 10 Pick. 37 
 
 Com. V 
 
 Com. V 
 Com. V 
 Com. V 
 Com. V 
 Com. V 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 " 1 Allen, 358 
 Cooper, 5 Allen, 495 
 15 Mass. 187 
 V. Costley, 118 Mass. 1 
 V. Craig, 6 Rand. 731 . 
 V. Crane, 1 Va. Cas. 10 
 V. Crawford, 9 Gray, 138 
 V. Creed, 8 Gray, 387 
 V. Crocker, 108 Mass. 464 
 V. Crotty, 10 Allen, 403 . 
 V. Crowinshield, 10 Pick. 497 
 V. Crupper, 3 Dana, 466 
 V. Cuffee, 108 Mass. 385 
 
 Forgery and counterfeiting, 311. 
 Nuisance, 474. 
 Bribery, 85. 
 
 Homicide, 368, 302. 
 
 Sentence, 554. 
 
 Larceny, 375. 
 
 Bill of excep's, 82; Grand jur. 248. 
 
 Bail and recognizance, 59. 
 Former acquittal or convic. 231. 
 
 New trial, 450. 
 
 Arson, 31; Evidence, 161, 105. 
 
 Lottery, 437. 
 
 Indictment, 353. 
 
 Nuisance, 468. 
 
 Former acquittal or conv'tu, 336. 
 
 Indictment, 344. 
 
 Libel, 434. 
 
 Lottery, 437, 428. 
 
 Abatement, 1. 
 
 Bastardj', 77 ; Indictment, 338. 
 
 Evidence, 154. 
 
 Grand jury, 247. 
 
 Indictment, 352. 
 
 Robbery, 546. 
 
 Trial, 611. 
 
 Adultery, 15, 16. 
 
 Evidence, 134; False preten. 176, 
 180, 183, 187, 188; Trial, 607. 
 
 Bastardy, 74. 
 
 Larceny, 877. 
 
 Indictment, 329. 
 
 Statutes, 579. 
 
 Embezzlement, 131, 123. 
 
 Common drunkard, 99. 
 
 Abduction, 3. 
 
 Arrest, 31 ; Assault and bat. 44. 
 
 Disinterring the dead, 115 ; Indict- 
 ment, 351, 437. 
 
 Officer, 493. 
 
 Homicide, 394, 398. 
 
 Rape, 538. 
 
 Evid. 139 ; Hom. 264 ; Trial, 629. 
 
 Bail and recognizance, 69. 
 
 Homicide, 264. 
 
 Complaint, 100. 
 
 Assault and battery, 49. 
 
 Evidence, 145. 
 
 Warrant, 646. 
 
 Conspiracy, 109. 
 
 Gaming, 342. 
 
 Evidence, 143.
 
 G81 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. 
 
 Com. 
 
 Com. 
 
 Com. 
 
 Com. 
 ti 
 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 
 Cora. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 
 CuUins, 1 Mass. IIG 
 Cummings, 3 Cush. 212 
 Cunningham, 5 Litt. 292 
 Curley, 101 Mass. 24 . 
 Curtis, 97 Mass. 574 
 
 Tbach. Cr. Cas. 20:; 
 Dacey, 107 Mass. 206 
 Daggett, 16 Mass, 447 
 Dailey, 110 Mass. 503 
 12 Cush. 80 . 
 Daley, 4 Gray, 209 
 Dallinger, 118 Mass. 489 
 Danels, 2 Va. Cas. 402 
 
 5 Allen, 511. 
 Dascom, 111 Mass. 404 
 Davenport, 2 Allen, 299 
 Davidson, 1 Cush. 33 
 Davis, 11 Pick. 433 . 
 
 " 9 Mass. 415 
 
 " 11 Gray, 4 . 
 
 " 104 Mass. 548 
 
 " 9 Cush. 283 . 
 Deacon, 8 Serg. & Rawle, 47 
 
 10 Serg. & Rawle, 125 
 Dean, 110 Mass. 04 ; 2 Green's Cr. Reps 
 
 " 1 Pick. 387 . 
 
 " 109 Mass. 349; 1 Green's Cr. 
 Dedham, 16 Mas-^. 141 
 Dennie, Thach. Crim. Cas. 165 
 Dennison, 9 Watts, 142 
 Densmore, 12 Allen, 535 . 
 Desmartean, 16 Gray, 1 
 Desmond, 5 Gray, 80 
 Devine, Thach. Crim. Cas. 1G5 
 Dewitt, 10 Mass. 154 . 
 Dillane, 1 Gray, 483 . 
 Doane, 1 Cush. 5 
 Dockham, Thach. Crim. Cas. 2S 
 Doherty, 10 Cush. 52 . 
 
 103 Mass. 443 
 Dole, 2 Allen, 105 
 Donovan, IG Gray, 18 
 
 13 Allen, 571 . 
 Doran, 14 Gray, 37 . 
 Dorsey, 103 Mass. 412 . 
 Dorus, 108 Mass. 488 
 Dougherty, 107 Mass. 243 
 
 6 Gray, 349 
 Douglass, 5 Mete. 241 
 Dower, 4 Allen, 297 . 
 Downey, 9 Mass. 520 
 
 Reps. 1 
 
 95 
 
 Larceny, 385. 
 
 Writ of error, 662. 
 
 Assault and battery, 42. 
 
 Escape, 125. 
 
 Adultery, 16; Evidence, 145. 
 
 Former acquittal or convict. 223. 
 
 Evidence, 128. 
 
 Bail and recognizance, 64. 
 
 Burglary, 93. 
 
 Trial, 603. 
 
 For. ac. or c. 231 ; Sp. liq. sale, 576. 
 
 Forgery and counterfeiting, 204. 
 
 Religious meeting, disturb, of, 541. 
 
 Vagrant, 633. 
 
 Former acquit, or convict. 227, 231. 
 
 Nuisance, 482, 485. 
 
 False pretenses, 187. 
 
 Barretry, 71, 72. 
 
 Conspiracy, 105. 
 
 Forg. and coun. 220; Indict. 336. 
 
 Larceny, 375. 
 
 Larceny, 393. 
 
 Arrest, 20, 21. 
 
 Fugitives from justice, 233. 
 
 False pretenses, 183; Indict. 345. 
 
 Gaming, 237. 
 
 Rape, 528. 
 
 Indictment, 350. 
 
 Extortion, 171, 172. 
 
 Bail and recognizance, 71. 
 
 Homicide, 313. 
 
 Evidence, 128; Homicide, 303. 
 
 Evidence, 159. 
 
 Extortion, 172. 
 
 Larceny, 386. 
 
 Spirituous liquors, sale of, 573. 
 
 Larceny, 413. 
 
 Abatement, 1. 
 
 Burglary, 91, 93. 
 
 Concealed weapons, 101. 
 
 Forgery and counterfeiting, 212. 
 
 Lasciviousness, 418. 
 
 Verdict, 637. 
 
 Complaint, 99. 
 
 Homicide, 278. 
 
 Thr. to ac.58G ; Tri.630 ; Verd.641. 
 
 Assault and battery, 38. 
 
 Complaint, 100. 
 
 Subornation of perjury, 513, 514. 
 
 Homicide, 285; Trial, 609. 
 
 Bail and recognizance, 64.
 
 TABLE OF OASES. 
 
 685 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Drew, 3 Cush. 277 . 
 " " 19 Pick. 179 
 
 " "4 xMass. 391 . 
 
 Com. V. Drum, 58 Penu. St. 9 . 
 
 " 19 Pick. 479 . 
 Com. V. Dudley, 10 Mass. 403 
 Com. V. Duffy, 11 Cush. 145 . 
 Com. V. Duncan, 4 Serg. & Rawle, 449 . 
 Com. V. Dunham, Thach. Crim. Cas. 519 
 Com. V. Durfee, 100 Mass. 146 
 Com. V, Eagan, 103 Mass. 71 . 
 Com. V. East Boston Ferry Co. 13 Allen, 589 
 Com. V. Eastern R. R. Co. 5 Gray, 473 
 Com. V. Eastman, 1 Cush. 189 . 
 
 " " 2 Gray, 76 
 
 Com. V. Eaton, 15 Pick. 273 . 
 Com. V. Eberle, 3 Serg. & Rawle, 9 
 Com. V. Eckert, 2 Browne, 249 
 Com. V. Eddy, 7 Gray, 583 
 Com. V. Edgerly, 10 Allen, 184 
 Com. V. Edwards, 1 Ashm. 46 
 Com. V. Elburger, 1 "Whart. 469 
 Com. V. Elisha, 3 Gray, 460 
 Com. V. Elliott, 2 Mass. 372 . 
 
 " "110 Mass. 104 ; 2 Green's Cr. Reps. 
 
 Com. V. Ervin, 2 Va. Cas. 337 
 Com. V. Essex Co. 1 3 Gray, 239 . 
 Com. V. Evans, 101 Mass. 25 . 
 Com. V. Eyre, 1 Serg. & Rawle, 347 
 Com. V. Fagan, 108 Mass. 471 
 Com. V. Fairbanks, 2 Allen. 511 . 
 Com. V. Falvey, 108 Mass. 304 
 Com. V. Farley, Thach. Cr. Cas. 654 
 
 Com. V. Farrell, 5 Allen, 130 
 
 " " 105 Mass. 189 . 
 
 Com. V. Farren, 9 Allen, 489 
 Com. V. Farris, 5 Rand. 691 
 Com. V. Feazle, 8 Gratt. 585 . 
 Com. V. Feeney, 13 Allen, 560 
 Com. V. Ferrigan, 44 Penn. St. 386 . 
 Com. V. Field, 13 Mass. 321 . 
 
 Com. V. Finn, 108 Mass. 466 . 
 Com. V. Fisher, 17 Mass. 46 , . . 
 
 Com. V. Fitchburg R. R. Co. 12 Gray, 180 . 
 
 " " 10 Allen, 189 
 
 Com. V. Flanagan, 7 Watts & Serg. 415] . 
 Com. V. Flynn, 3 Cush. 529 
 Com. V. Fogerty, 8 Gray, 489 
 
 Ab. 1 ; For. ac.or c. 223 ; Gam. 336. 
 
 False pretenses, 174, 178. 
 
 Horn. 259,277,310; New trial, 460, 
 
 462; Sentence, 554. 
 Homicide, 300, 316. 
 Rape, 528. 
 
 Forcible entry & detainer, 190, 191. 
 Larceny, 414. 
 Bastardy, 76. 
 Perjury, 497. 
 
 Adultery, 15 ; Verdict, 641. 
 Assault and battery, 44. 
 Homicide, 311. 
 Homicide, 311. 
 Conspir'y, 102,105; Evidence, 132, 
 
 133; Indict. 352; Trial, 591. 
 Larceny, 387. 
 Indictment, 339. 
 Evidence, 138. 
 Misdemeanor, 437. 
 Insanity, 359. 
 
 Forgery and counterfeiting, 218. 
 Malicious trespass, 435. 
 Nuisance, 485. 
 
 Receiving stolen property, 536. 
 Continuance, 111. 
 361. Evidence, 150. 
 
 Forgery and counterfeiting, 205. 
 
 Corporation, 114. 
 
 Homicide, 306. 
 
 Assault and battery, 34. 
 
 Trial, 608. 
 
 Evidence, 164. 
 
 Malicious mischief, 431. 
 
 Perjury, 497,503, 508, 510, 511; 
 
 Witness, 647. 
 Escape, 124. 
 
 Former acquittal or convict. 224. 
 Unwholesome provisions, sale, 632. 
 Nuisance, 481. 
 Gaming, 240. 
 Accessory, 9. 
 Homicide, 281. 
 Arrest, 20, 21. 
 
 Receiving stolen property, 535. 
 Forgery and counterfeiting, 201. 
 Corporation, 114. 
 Indictment, 344. 
 New trial, 445, 446, 459. 
 Arson, 24, 26. 
 Rape, 520.
 
 686 
 
 TABLE OF CASES, 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Foley. 99 Mass. 497 . 
 
 Com. V. Ford, 5 Graj-, 475 .... 
 
 Ill Mass. 394 . 
 Com. V. Fortune, 105 Mass. 592 
 Com. V. Foster, 1 Mass. 488 ... 
 
 107 Mass. 221. 
 Com. V. Fowler, 4 Call, 35 . . , 
 
 Com. V. Fox, 7 Gray, 585 . 
 Com. V. Francis, Thach. Crim. Cas. 240 . 
 Com. V. Franklin, 4 Dall. 316 
 Com. V. Frey, 50 Penn. St. 245 . 
 Com. V. Frye, 1 Va. Cas. 19 . 
 Com. V. Fuller, 8 Mete. 313 
 Com. V. Galavan, 9 Allen, 271 
 
 Com. V. Gale, 11 Gray, 320 .. . 
 
 Com. V. Gallagher, 1 Allen, 592 
 
 IG Gray, 240 . 
 Com. V. Gallic, 7 Serg. & Rawle, 423 
 Com. V. Gannett, 1 Allen, 7 . . . 
 
 Com. V. Gearing, 1 Allen, 595 
 Com. V. Gee, 6 Cush. 174. 
 Com. V. Gibbs, 4 Dall. 253 . 
 Com. V. Gibney, 2 Allen, 150 . . . 
 
 Com. T. Gibson, 2 Va. Cas. 70 . . . 
 
 Com. V. Giles, 1 Gray, 406 
 
 Com. V. Gill, 14 Gray, 400 . 
 
 Com. V. Gillespie, 7 Serg. & RaAvle, 478 . 
 
 " " " " 469 
 
 Com. V. Gleason,110 Mass. 66; 2 Green's Cr.Reps. 260. 
 Com. V. Glover, 111 Mass. 395 
 Com. y. Goddard, 2 Allen, 148 ; 4 Ilj.312 ; 14 Gray,40-^. 
 
 Com. y. Goding, 3 Mete. 130 
 
 Com. y. Godley, 11 Gray, 454 
 
 Com. V. Godsoe, 105 Mass. 464 . 
 
 Com. V. Goodenough, Thacli. Cr. Cas. 132 
 
 Com. y. Goodhue, 2 Mete. 193 . 
 
 Com. y. Goodrich, 13 Allen, 546 
 
 Com. V. Goodwin, 14 Gray, 55 
 
 Com. y. Gore, 3 Dana, 475 
 Com. y. Gould, 12 Gray, 171 
 Com. y. Gourdier, 14 Gray, 390 
 Com. y. Grant, 116 Mass. 17 
 Com. V. Greene, 1 Ashm. 289 . 
 " " 111 Mass. 392 . 
 
 " 17 Mass. 515 
 Com. y. Gregory, 7 Gray, 498 
 
 Bre'ch of peace,84 ; Com. drunk. 99. 
 
 Assault and battery, 38, 39. 
 
 Trial, 610. 
 
 Larceny, 387. 
 
 Arrest, 21. 
 
 Embezzlement, 118. 
 
 Pardon, 494. 
 
 Homicide,267, 279; Witness, 655. 
 
 Arson, 23. 
 
 Certiorari, 96. 
 
 False pretenses, 181. 
 
 Misdemeanor, 440. 
 
 Forgery and counterfeiting, 211. 
 
 Assault and battery, 49; Evi- 
 dence, 153; Witness, 654. 
 
 Evidence, 127. 
 
 Nuisance, 468, 477. 
 
 Larceny, 392, 414. 
 
 Homicide, 303, 304. 
 
 Nuisance, 475, 484. 
 
 Officer, 492. 
 
 Trial, 594, 597. 
 
 Voting, 643. 
 
 Riot, 543. 
 
 Homicide, 268 ; New trial, 405. 
 
 Bill of particulars, 83; Spirituous 
 liquors, sale of, 575. 
 
 Evidence, 128 ; Verdict, 637. 
 
 Conspiracy, 107. 
 
 Lottery, 429. 
 
 Indictment, 327. 
 
 Burglary, 87; Trial, 610. 
 
 False pretenses, 180, 185, 189,- 
 Evidence, 131 ; Former acquit- 
 tal orconvic. 227 ; Witness, 648. 
 
 Gaming, 238. 
 
 Spirituous liquors, sale of, 572. 
 
 Lasciviousness, 418. 
 
 Forgery and counterf'g, 197, 208. 
 
 Incest, 325 ; Rape, 528. 
 
 Cemetery, 95. 
 
 Arson, 30; Assault & battery, 45; 
 Evidence, 152. 
 
 Indictment, 328 ; Witness, 648. 
 
 Indictment, 352. 
 
 Gaming, 236. 
 
 Perjury, 498. 
 
 Jury, 370. 
 
 Larceny, 378. 
 
 New trial, 441, 447, 459, 464. 
 
 Judgment, 363. ,
 
 TABLE OF CASES. 
 
 687 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V 
 Com. V 
 
 Com. V. 
 Com. V. 
 
 Com. V. Griffin, 110 Mass. 181 
 " 3 Cusli. 523 
 " " 21 Pick. 523 
 
 Com. V. Grimes, 10 Gray, 470 
 Com. V. Gross, 1 Ashm. 281 . 
 Com. V. Guild, Thach. Crim. Cas. 329 . 
 Com. V. Hackett, 2 Allen, 136 
 Com. V, Hadley, 11 Mete. 66 
 Com. V. Haggerty, 4 Brewster, Pu. 326 ; 1 Green 
 
 Reps. 180. . 
 Com. V. Hailstock, 2 Gratt. 564 
 Com. V. Hale, 2 Va. Cas. 241 
 Com. V. Haley, 4 Allen, 318 . 
 Com. V. Hall, 97 Mass. 570 ; 4 Allen, 305. 
 " 9 Gray, 263 
 " 15 Mass. 240 
 Hamilton, 13 Gray, 480 
 Hancock Free Bridge Corp. 2 Gray, 58 
 Com. V. Hardy, 1 Ashm. 410 . 
 Com. V. Harley, 7 Mete. 506 
 "7 Mete. 462 . 
 Harlow, 110 Mass. 411 . 
 Harman, 4 Barr, 269 
 Com. V. Harmon, 2 Gray, 289 
 Com. V. Harney, 10 Mete. 442 
 Com. V. Harrington, 8 Pick. 26 . 
 Com. V. Harris, 8 Gray, 470 . 
 " " 101 Mass. 29 
 
 " " 7 Gratt. 600 . 
 
 Com. V. Harrison, 2 Va. Cas. 202. 
 Com. V. Hart, 6 J. .J. Marsh. 619 . 
 " " 10 Gray, 465 
 
 " " 11 Cush. 130; 2 Green's Cr. Rep 
 
 Com. V. Hartnett, 3 Gray, 450 
 Com. V. Harvey, 1 Gray, 487 
 Com. V. Harwood, 4 Gray, 41 
 Com. V. Hastings, 9 Mete. 259 . 
 Com. V. Hatfield, 107 Mass. 227 
 Com. V. Hathaway, 14 Gray, 392 
 Com. V. Haughey, 3 Mete. Ky. 223 . 
 Com. V. Hawkins, 3 Gray, 463 
 
 Com. V. Haynes, 2 Gray, 72 . 
 Com. V. Hays, 1 Va. Cas. 122 . 
 Com. T. Hayward, 10 Mass. 34 
 Com. V. Heath, 11 Gray, 303 
 Com. V. Heflfron, 102 Mass. 148 
 Com. V. Hendrie, 2 Gray, 503 
 Com. V. Ilensley, 2 Va. Cas. 149 
 Com. V. Uersey, 2 Allen, 173 
 
 Cr. 
 
 24^ 
 
 Homicide, 313. 
 
 Indictment, 333 ; Verdict, 640. 
 
 Sentence, 557. 
 
 Larceny, 395. 
 
 Continuance, 112. 
 
 Libel, 433. 
 
 Homicide, 264, 280. 
 
 Spirituous liquors, sale of, 568. 
 
 Pardon, 494. 
 
 New trial, 446. 
 
 Outlawry, 493. 
 
 Trespass, 589. 
 
 Forgery and counterfg, 215, 231. 
 
 Fugitives from justice, 234, 235. 
 
 Indictment, 337. 
 
 Arson, 28, 29 ; Indictment, 327. 
 
 Nuisance, 473. 
 
 Summary conviction, 583. 
 
 Consjiiracy, 108. 
 
 False pretenses, 187. 
 
 Evidence, 154. 
 
 Evi. 146, 167; Homicide, 305. 
 
 Libel, 423. 
 
 Arson, 26. 
 
 Misdem'r, 437 ; Nuis. 475, 477. 
 
 Bail and recognizance, 68. 
 
 Nuisance, 468. 
 
 Spirituous liquors, sale of, 569. 
 
 Writ of error, 662. 
 
 Dueling, 117. 
 
 Nuisance, 479. 
 
 Indictment, 344 ; Spirituous liq- 
 uors, sale of, 571. 
 
 Statutes, 582. 
 
 Evidence, 139. 
 
 Evidence, 136. 
 
 Arrest, 33. 
 
 Perjury, 498, 499,512. 
 
 Larceny, 387, 392. 
 
 False pretenses, 174. 
 
 Intoxicat'n as an excuse'for crime,. 
 360; Trial, 613; Verdict, 640. 
 
 Lasciviousness, 418. 
 
 Larceny, 394. 
 
 Indictment, 346. 
 
 Idiocy, 324. 
 
 Nuisance, 476 ; Witness, 647. 
 
 Spirituous liquors, sale of, 573. 
 
 Forgery and counterfeiting, 304. 
 
 Evi. 133; Homicide, 268, 282.
 
 688 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Hershell, Thach. Crim. Cas. 70 
 Com. V. Herty, 109 Mass. 348 ; 1 Green's Cr. Reps. 194. 
 Com. V. Hicks, 7 Allen, 573 .... 
 Com. V. Hill, 11 Mass. 136 
 
 " 4 Allen, 591 . 
 " " 14 Mass. 207 .. . 
 
 " " 14 Gray, 24 . 
 
 " 11 Cush. 137 .. . 
 
 Com. V. Hilliard, 2 Gray, 294 ... 
 
 Com. V. Hills, 10 Cusb. 530 
 
 Cora. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com 
 Com, 
 Com, 
 Com. 
 Com 
 
 Com. 
 Com. 
 Com. 
 
 u 
 
 Com, 
 
 V. Hinds, 101 Mass. 209 
 
 V. Hines, 101 Mass. 33 . 
 
 V. Holden, 9 Gray, 7 
 
 V. Holland, 1 Duvall, Ky. 183 
 
 V. Holliston, 107 Mass. 333 
 
 V. Holmes, 103 Mass. 440 
 
 " 17 Mass. 336 . 
 V. Homer, 5 Mete. 555 . 
 V. Hooper, Tliach. Crim. Cas. 400 
 V. Hope, 22 Pick. 1 
 V. Hopkins, 2 Dana, 418 
 V. Horton, 3 Gray, 354 
 
 " 2 Gray, 69 
 
 " 9 Pick. 206 
 V. Houghton, 8 Mass, 107 
 V. Howard, 3 Mete. Ky. 407 
 V. Howe, 9 Gray, 110 
 
 " 3 Allen, 153 . 
 V. Hoxey, 16 Mass. 385 
 
 Com. 
 
 V. 
 
 Hoye, 11 Gray, 463 . 
 
 Com. 
 
 V. 
 
 Hudson, 97 Mass. 565 
 
 11 Gray. 64 . . . 
 
 Com. 
 
 V. 
 
 Huflfey, 6 Barr, 348 . 
 
 Com. 
 
 V. 
 
 Hughes, 5 Rand. 655 
 
 5 Allen, 499 . 
 
 Com. 
 
 V. 
 
 Hulbert, 12 Mete. 446 .. . 
 
 Com. 
 
 V. 
 
 Humphries, 1 Mass. 242 . 
 
 Com. 
 
 V. 
 
 Hunt, 4 Pick. 252 .... 
 
 u 
 
 
 Thach. Crim. Cas. 809 . 
 " 4 Mete. Ill . 
 
 u 
 
 
 " 4 Gray, 421 .. . 
 " 4 Cush. 49 . 
 
 Com. 
 
 V 
 
 Hurley, 99 Mass. 433 . 
 14 Gray, 411 
 
 l( 
 
 
 7 Mete. 463 . 
 
 Com 
 
 V 
 
 Hussey, 111 Mass. 433 . 
 13 Mass. 331 . 
 
 Com. 
 
 V. 
 
 Hutchinson, 1 Mass. 7 . . . 
 
 False pretenses, 189. 
 
 Homicide, 304. 
 
 Nuisance, 484. 
 
 Forgery and counterfeiting, 198. 
 
 Jury, 369. 
 
 Larceny, 386 ; Trial, 593. 
 
 Lasciviousness, 418. 
 
 Receiving stolen property, 535; 
 Witness, 652. 
 
 Homicide, 298. 
 
 Larceny, 397 ; Receiving stolen 
 property, 558 ; Witness, 658. 
 
 Forgery and counterfeiting, 309. 
 
 Indictment, 329. 
 
 Larceny, 385. 
 
 Robbery. 545. 
 
 Evidence, 133. 
 
 Abortion, 7; Nolle prosequi, 467. 
 
 Libel, 425 ; Obscene pub. 487. 
 
 Escape, 124. 
 
 Dueling, 117. 
 
 Larceny, 380, 397 ; Sentence, 557. 
 
 Gaming, 246. 
 
 Adultery, 16. 
 
 Lottery, 428. 
 
 Sentence, 561. 
 
 Forgery and counterfeiting, 305. 
 
 Concealed weapons, 101. 
 
 Evidence, 143. 
 
 Evidence, 146, 148. 
 
 Indictment, 346; Religious meet- 
 ing, disturbance of, 540. 
 
 Indictment, 341. 
 
 Arson, 30. 
 
 Witness, 658. 
 
 Bail and recognizance, 66. 
 
 New trial, 446. 
 
 Perjury, 511. 
 
 False pretenses, 182. 
 
 Robbery, 547. 
 
 Assault and battery, 41 ; Rape, 539. 
 
 Conspiracy, 103, 109. 
 
 Conspiracy, 101, 105, 107. 
 
 Evidence, 168. 
 
 Lasciviousness, 417. 
 
 Assault and battery, 35. 
 
 Evidence, 155. 
 
 False pretenses, 188. 
 
 Embezziemenl, 118; Larceny, 414. 
 
 New trial, 444. 
 
 Forg. & coun. 314 ; Witness, 648.
 
 TABLE OF CASES. 
 
 689 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Huttbn. 5 Gray, 89 
 
 Core. V. Hyde, Thach. Crim. Cas. 19 
 
 Com. V. Ingrabam, 7 Gray, 4G 
 
 Com. V. Inhabs. of Deerfield, 6 Allen, 449 . 
 
 Com. V. Inhabs. of North Brookfield, 8 Pick. 46 
 
 Com. V. Inhabs. of Stockbridge, 11 Mass. 279 
 
 Com. V. Inhubs. of Taunton, 10 Gray, 228 . 
 
 Com. V. Irwin, 1 Allen, 587 
 
 Com. V. Isa&cks, 5 Rand. 634 
 
 Com. V. Jackson, 15 Gray, 187 . 
 
 2 Va. Cas. 50 1 
 Com. V. Jailer, 7 Watts, 366 
 Com. V. James, 1 Pick. 375 . 
 " " 99 Mass. 438 
 
 Com. V. Jeffries, 7 Allen, 548 
 Com. V. Jenkins, 10 Gray, 485 . 
 
 " " Thach. Crim. Cas. 118 . 
 
 Com. V. Johns, 6 Gray, 274 . 
 Com. V. Johnson, 3 Cush. 454 
 
 " " 26 Iowa, 407 
 
 " " Thach. Crim. Cas. 284 
 
 Com. V. Jones, 2 Dev. & Batt. 544 . 
 
 " " 2 Gratt. 555 
 
 Com. V. Kane, 108 Mass. 423 
 Com. V. Keeper of Prison, 2 Ashm. 227 . 
 
 " " 1 Ashm. 140 
 
 Com. V. Keger, 1 Duvall, Ky. 249 
 Com. V. Keith, 8 Mete. 531 . 
 Com. V. Kelcher, 3 Mete. Ky. 484 
 Com. V. Kelly, 10 Cush. 69 . 
 Com. V. Kendall, 113 Mass. 210 . 
 Com. V. Kenney, 12 Mete. 235 
 Com. V. Kent, 6 Mete. 221 
 Com. V. Keyes, 11 Gray, 323 
 Cora. V. Kidder, 107 Mass. 188 . 
 Com. V. Killiun, 109 3Iass. 345; 1 Green's 
 Reps. 192 , 
 
 Cora. V. Kiml)all, 7 Gray, 328 
 
 108 Mass. 473 . 
 
 " " 21 Pick. 373 
 
 " " 23 Pick. 366 . 
 
 Com. V. King, 9 Cush. 284 . 
 
 Com. V. Kingsbury, 5 Mass. 106 . 
 Com. V. Kinison, 4 Mass. 640 
 Com. V. Kinney, 2 Va. Cas. 139 . 
 Com. V. Kirby, 2 Cush. 577 . 
 
 44 
 
 Complaint, 99. 
 
 Gaming, 241. 
 
 Evidence, 138, 170. 
 
 Nuisance, 473. 
 
 Nuisance, 477. 
 
 Indictment, 347. 
 
 Nuisance, 485. 
 
 Officer, 488. 
 
 Adultery, 12. 
 
 Abortion, 5. 
 
 Former acquittal or conviction, 227„ 
 
 Trial, 593. 
 
 Evid. 130, 148 ; Larceny, 372, 374, 
 
 Homicide. 312. 
 
 Ev. 132, 140; False pre. 186, 188. 
 
 Evidence, 170; Receiving stolen 
 property, 586. 
 
 N«w trial, 452, 460. 
 
 Perjury, 506, 507, 509. 
 
 Bail and recognizance, 69. 
 
 Forgery and counterfeiting, 203. 
 
 Indictment, 327. 
 
 Larceny, 376. 
 
 Lasciviousness, 417. 
 
 Assault and battery, 44. 
 
 Bail and recognizance, 61 ; Homi- 
 cide, 257, 261. 
 
 Forcible entry and detainer, 190, 
 
 Indictment, 328. 
 
 Witness, 052. 
 
 Indictment, 331. 
 
 Spirituous liquors, sale of, 573. 
 
 Assault and battery, 45. 
 
 Evidence, 153; Larceny, 410. 
 
 Forg. and counterfeiting, 201, 218. 
 
 Evidence, 136. 
 
 Nuisance, 468. 
 
 Malicious trespass, 435 ; Railroad 
 train, unlawfully stopping, 518. 
 
 Nolle prosequi, 406 ; Nuis. 478, 48X\ 
 
 Perjury, 510. 
 
 Sentence, 556, 561. 
 
 Witness, 656. 
 
 Embezzlement. 119; Larceny, 399; 
 Receiving stolen property, 536. 
 
 Conspir. 104 ; Misdemeanor, 438. 
 
 Forgery or counterfeiting, 216. 
 
 Former acquittal or conv. 230. 
 
 Assault and battery, 40, 41.
 
 090 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Knapp, 10 Pick. 477 
 
 " " 9 Pick. 490 .... 
 
 Com. V. Knetlancl, 20 Pick. 206 
 
 " " Thach. Crim. Cas. 346 . 
 
 Com. V. Knight, 12 Mass 274 
 Com. V. Lafferty. 6 Gratt. 072 
 CoJTi. V. Laliey, 14 Gray, 91 
 
 Com. V. Lahy, 8 Gray, 459 .... 
 Com. v. Lakeman, 4 Gush. 597 . 
 
 5 Gray, 82 . . . 
 
 Com. V. Lamb, 1 Gray, 493 
 Com. v. Lambert, 12 Allen. 177 . . 
 
 Com. V. Lancaster, Thach. Crim. Cas. 428 
 Com. V. Lane, 113 Mass. 458 
 Com. V. Lang, 10 Gray, 11 
 Com. V. Lannan, 13 Allen, 563 
 Com. V. Lavery, 101 Mass. 207 . 
 Com. V. Lawless, 101 Mass. 32 . . . 
 
 " " 103 Mass. 425 
 
 Com. V. Lawrence, 9 Gray, 133 
 Com. V. Leaths, 1 Va. Cas. 151 . 
 Com. V. Leavitt, 12 Allen, 179 
 Com. V. Leddy, 105 Mass. 381 . 
 Com. V. Lee, 107 Mass. 207 . 
 Com. V. Lesher, 17 Serg. & Rawle, 155 . 
 Com. V. Lewis, 1 Me1:c. 151 .... 
 Com. V. Libby, 11 Mete. 64 . . . 
 
 Com. V. Lincoln, 110 Mass. 410 
 
 " " 11 Allen, 233 . 
 
 Com. V. Lindsay, 11 Cush. 415, note 
 Com. v. Linton, 2 Va. Cas. 476 . 
 
 " "2 Va. Cas. 205 
 
 Com. V. Litton, 6 Gratt. 091 
 Com. V. Livermore, 4 Gray, 18 
 
 Com.v.Lockwocd,109Mass.323; 1 Green's Cr. Rcp.168, 
 Com. V. Lodge, 2 Gratt. 579 
 
 Com. V. Long, 2 Va. Cas. 318 .. . 
 
 Com. V. Loud, 3 Mete. 328 . ' . 
 
 Com. V. Low, Thach. Crim. Cas. 477 
 
 " " 3 Pick. 408 
 
 Com. V. Lucas, 2 Allen, 170 .... 
 Com. V. Luckis, 99 Mass. 431 
 Com. V. Lufkin, 7 Allen, 579 
 Com. V. Lynch, 8 Gray, 384 
 
 Com. V. Lyon, 4 Dall. 302 .... 
 Com. V. Macomber, 3 Mass. 254 . 
 Com. V. Madan, 103 Mass. 1 ... 
 
 Com. Y. Madden, 1 Gray, 486 . 
 Com. V. Maguire, 108 Mass. 469 
 Com. V. Mahar, 10 Pick. 120 . 
 
 Accessory, 11 ; Evidence, 141 : New 
 
 trial, 444 ; Verdict, 037. 
 Evidence, 130. 
 Bill of exceptions, 81. 
 Blasphemy, 83; Libel, 421. 
 Perjury, 502, 504, 507. 
 Adultery, 12. 
 Adultery. 15. 
 
 Former acquit, or conv. 231. 
 Assault and battery, 38. 
 Receiving stolen property, 535. 
 Arson, 20; Indictment, 334. 
 Lasciviousness, 420. 
 False pretenses, 170. 
 Bigamy, 77. 
 
 Assault and battery, 58. 
 Witness, 650. 
 Larceny, 395, 400. 
 Forgery and counterfeiting, 212. 
 Larceny, 378, 404. 
 Evidence, 120. 
 Sentence, 557. 
 Nuisance, 484. 
 Search warrant, 550. 
 Officer, 492. 
 Trial, 597. 
 
 Abatement, 1 ; Indictment, 349. 
 Embezzlement, 120. 
 Evidence, 168. 
 False pretenses, 183. 
 Malicious mischief, 431. 
 Forgery and counterfeiting, 201. 
 Homicide, 205. 
 Perjury, 499. 
 Jury, 369. 
 Pardon, 493. 
 Perjury, 503. 
 Abatement, 2. 
 
 Former acquittal or couvic'n, 227. 
 Larceny, 377, 381. 
 Nuisance, 471. 
 Larceny, 405. 
 Larceny, 373. 
 Animals, 18. 
 Sunday, 584. 
 Certiorari, 96. 
 •Misdemeanor, 438. 
 Homicide, 284. 
 
 Spirituous liquors, sale of, 575. 
 Receiving stolen property, 535. 
 Indictment, 350.
 
 TABLE OF CASES. 
 
 691 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. 
 Cora, 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 
 u 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 V. Mauley, 12 Pick. 173 
 V. Mann, 116 Mass. 58 
 
 " 4 Gray, 213 . 
 V. Mansou, 2 Ashra. 131 
 V. Marks, 101 Mass. 31 
 V. Marshall, 15 Gray, 202 . 
 V. Martin, 17 Mass. 359 
 V. Mash, 7 Mete. 472 
 V. Mason, 3 A. K. Marsh. 456 
 " 2 Ashm. 31 
 " 105 Mass. 163 
 " 12 Allen, 185 
 V. McAfee, 108 Mass. 458 
 V. McAtee, 8 Dana, 28 
 V. McAvoy, 16 Gray, 235 
 V. McCann, 97 Allen, 580 . 
 V. McCaughey, 9 Gray, 296 
 V. McChord, 2 Dana, 242 . 
 
 V. McClanahan, 2 Mete. Ky. 8 . 
 V. McClellan, 101 Mass. 34 
 V. McCuUock, 15 Mass. 227 
 V. McDonald, 5 Cush. 365 
 
 " 110 Mass. 405 ; 2 Green's Cr. 
 
 V. McDowell, 1 Brown, 359 
 V. McGahey, 11 Gray, 194 . 
 V. McGeorge, 9 B. Mon. 3 . 
 V. McGinnis, 2 Whart. 117 
 V. McGuire, 1 Va. Cas. 119 
 V. McKee, 1 Gray, 61 . 
 V. McKinney, 9 Gray, 114 . 
 V. McLaughlin, 12 Cush. 615 . 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Cora. 
 Com. 
 Com. 
 
 Cora. 
 Com. 
 Com. 
 
 " 5 Allen, 507 
 
 " 105 Mass. 480 . 
 
 V. McLoon, 5 Gray, 91 . 
 V. McNamec, 112 Mas^ 285 
 V. McPike, 3 Cush. 181 . 
 V. McShane, 110 Mass. 502; 2 Green's Cr. R 
 V. Mead, 12 Gray, 167 . 
 V. Mehan, 11 Gray, 321 
 V. Merriara, 14 Pick. 418 
 V. Merrifield, 4 Mete. 468 . 
 V. Merrill, Thach. Cr. Cas. 1 . 
 
 " 8 Cush. 571 
 
 " 8 Allen, 545 
 
 " 14 Gray, 415 
 V. Messinger, 4 Mass. 40 2 
 V. Millard, 1 Mass. 6 
 V. Miller, 3 Cush. 243 . 
 " 5 Dana, 320 
 
 Larceny, 392. 
 
 Assault and battery, 45. 
 
 Nuisance, 483. 
 
 Indictment, 340; New trial, 448. 
 . Trial, 608. 
 
 Arson, 31. 
 
 Robbery, 547. 
 
 Bigamy, 78. 
 
 Bail and recognizance, 66. 
 
 Conspiracy, 107. 
 
 Embezzlement, 118; Larceny, 381. 
 
 Sunday, 584. 
 . Homicide, 306, 312. 
 
 Misdemeanor, 438. 
 
 Malicious mischief, 432. 
 
 Arson, 30. 
 
 Spirituous liquors, sale of, 572. 
 
 Former acquittal or conviction, 
 225; Indictment, 340, 
 
 Indictment, 344, 
 
 Animals, 18. 
 
 Barretry, 71 ; Malicious pros. 434, 
 
 Larceny, 395. 
 R. 267 Rape, 523, 527. 
 
 Larceny, 389. 
 . Officer, 488. 
 
 Spirituous liquors, sale of, 567, 
 
 Certiorari, 96. 
 
 Gaming, 242. 
 
 Assault and battery, 44. 
 
 Larceny, 414. 
 
 Arrest, 21 ; Assault and battery, 
 57 ; Indict. 340 ; Homi. 309. 
 
 Assault and battery, 47. 
 
 Malicious mischief, 482. 
 
 Complaint, 99. 
 
 Common drunkard, 99. 
 
 Homicide, 264, 292, 314. 
 279 Former acquittal or convic. 230. 
 . Homicide, 298, 312; Witness, 653. 
 
 Verdict, 637. 
 . Adultery, 16. 
 
 Embezzlement, 121. 
 . Burglary, 93 ; Witness, 648. 
 
 False pretenses, 176, 185. 
 
 Forraer acquittal or convic. 231. 
 
 New tr. 464; Rape, 530; Trial, 614. 
 
 Appeal, 19. 
 
 Continuance, 112. 
 
 Forgery and counterfeiting, 221, 
 
 Former acquittal or convic. 229,
 
 692 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. 
 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 Com. V. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 u 
 
 Com. 
 Com. 
 
 a 
 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Mitchell, 3 Bush, 25 
 
 1 Va. Cas. 116 
 
 " 3 Wheeler's Crim. Cas. 471 
 Monahan, 9 Gray, 119 . 
 Montgomery, 11 Mctc. 534 . 
 Mooar, Thach. Crim. Cas. 410 , 
 Mooney, 110 Mass. 99 
 Moore, 3 Pick. 194 
 
 " 2 Dana, 402 , 
 
 " 11 Cush. 600 
 
 " 9 Mass. 402 . 
 Moorehonse, 1 Gray, 470 
 Moran, 107 Mass. 239 
 Morey, 1 Gray, 461 
 Morgan, 107 Mass. 199 
 Morihan, 4 Allen, 585 
 Morler, 4 Barr, 264 . 
 Morrell, 99 Mass. 542 
 Morris, 1 Cush. 3'Jl . 
 
 " 1 Va. Cas. 176 . 
 Morrison, 16 Gray, 224 
 Morse, 2 Mass. 138 
 
 14 Mass. 217 . 
 Mortimer, 2 Va. Cas. 325 
 Moseley, 2 Va. Cas. 154 
 Mosler, 4 Barr, 264 
 Moulton, 4 Gray, 39 
 
 " 10 Cush. 404 . 
 
 " 9 Mass. 30 . 
 Mowry, 11 Allen, 20 
 Mullen, 97 Mass. 545 
 Mullins, 2 Allen, 295 
 Munsey, 112 Mass. 287 
 Murphy, 4 Allen, 491 
 
 " 11 Cush. 472 
 
 " " 2 Gray, 510 
 
 " 12 Allen, 449 
 Com. V. Murray, 2 Ashm. 41 
 Com. V. Murtagh, 1 Ashm. 272 
 Com. V. Mycall, 2 Mass. 136 
 Com. V. Myers, 1 Va. Cas. 188 
 Com, V. Nason, 9 Gray, 125 
 Com. V. Newell, 7 Mass. 247 . 
 
 Com. V. Nichols, 10 Mete. 259 
 " " 10 Allen, 199 
 
 Com. V. Nickerson, 5 Allen, 518 
 Com. V. Norcross, 9 Mass. 492 
 Com. V. Norton, 11 Allen, 110 
 "11 Allen, 266 
 
 Extortion, 171. 
 Homicide, 305. 
 Homicide, 307. 
 Perjury, 511. 
 Larceny, 407. 
 False pretenses, 187. 
 Evidence, 163. 
 Bastardy, 75. 
 'Gaming, 244. 
 Nuisance, 477. 
 Trial, 592. 
 
 Spirituous liquors, sale of, 571. 
 Arrest, 22. 
 Evidence, 14.o. 
 Libel, 423, 424. 
 Escape, 124; Officer, 489. 
 Homicide, 272. 
 Evidence, 135; Trial, 607. 
 Adultery, 16. 
 Libel, 424. 
 Abortion, 5. 
 False pretenses, 174. 
 Larceny, 392, 394. 
 Former acquittal or convic. 226. 
 Larceny, 390, 392. 
 Evidence, 142; Homicide, 255. 
 Evidence, 166. 
 
 Spirituous liquors, sale of, 570. 
 Witness, 648. 
 Robbery, 547. 
 Witness, 656. 
 Witness, 647. 
 Evidence, 156. 
 Assault and battery, 45. 
 Former acquittal or convic. 223; 
 
 Homicide, 269, 
 Spirituous liquors, sale of 575. 
 Threaten, to accuse of crime, 585. 
 Homi. 257, 295, 297 ; New tr. 459. 
 Bigamy, 80. 
 
 Forgery and counterfeiting, 209. 
 Former acquittal or convic. 231. 
 False pretenses, 182. 
 Burglary, 85, 88 ; Mayhem, 436 ; 
 
 Verdict, 638. 
 Spirituous liquors, sale of, 572. 
 Unwholesome pro. sale of, 631,632. 
 Assault and battery, 34, 35. 
 Adultery, 14. 
 Embezzlement, 121. 
 False pretenses, 174.
 
 TABLE OF CASES. 
 
 693 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Oaks, 113 Mass. 8 
 Com. V. Ober, 13 Cush. 493 . 
 Com. V. O'Brien, 107 Mass. 208 ' . 
 " " 12 Allen, 183 
 
 " " 13 Cush. 84 
 
 Com. V. O'Conuell, 13 Allen, 451 
 Com. V. O'Connor, 107 Mass. 319 
 
 " " 7 Allen, 583 
 
 Com. V. O'Hara, 10 Gray, 469 
 Com. Y. Old Colony, &c. R. R. Co. 14 Gray, 93 
 Com. V. O'Malley, 97 Mass. 584 . 
 Com. V. O'Neill, 6 Gray, 343 
 Com. V. Ordway, 13 Cush. 270 . 
 Com. V. Otis, 16 Mass. 198 . 
 Com. V. Parker, 9 Mete. 363 
 
 " Thach. Crim. Cas. 134 
 
 " '• 2 Pick. 550 
 
 " ' 4 Allen, 313 
 
 " " 3 Cush. 312 
 
 Com. V. Parmenter, 101 Mass. 311 
 5 Pick. 279 . 
 Com. V. Paulus, 11 Gray, 305. 
 Com. V. Pease, 16 Mass. 91 
 Com. V. Peck, 1 Mete. 438 . 
 Com. V. Peckham, 3 Gray, 514 . 
 Com. V. Pemberton, llS Mass. 36 
 Com. agst. Pennoek, 3 Serg. & Rawle, 199 
 Com. V. Pennsylvania Canal Co. 66 Penn. St 
 Com. V. Pereival, Thach. Crim. Cas. 393. 
 Com. V. Perdue and Dillon, 3 Va. Cas. 337 
 Com. V. Perkins, 1 Pick. 388 
 Com. V. Perris, 108 Mass. 1 . 
 Com. V. Peters, 13 Mete. 387 
 Com. V. Phelps, 11 Gray, 73 . 
 Com. V. Phillips, 16 Mass. 433 . 
 
 Com. V. Pickering, 8 Gratt. 638 
 Com. V. Pierce, 11 Gray, 447 
 Com. V. Pintard, 1 Browne, 59 
 Com. V. Poilard, 13 Mete. 335 
 Com. V. Pomeroy, 117 Mass. 143 
 Com. V. Pope, 3 Dana, 418 
 
 " " 103 Mass. 440 . 
 
 " " 13 Cush. 372 
 
 Com. V. Porter, 1 A. K. Marsh. 44 
 Com. V. Posey, 4 Call, 109 
 Com. V. Price, 10 Gray, 473 . 
 
 41 
 
 Com. V. Prius, 9 Gray, 137 
 Com. V. Profit, 4 Binn. 428 
 
 Nuisance, 468. 
 
 Peddlers, 496. 
 
 Assault and battery, 40. 
 
 Burglary, 91; Evidence, 159. 
 
 Conspiracy, 104; Threatening to 
 accuse of crime, 585. 
 
 Larceny, 387, 389, 391. 
 
 Adultery, 14. 
 
 Concealed weapons, 101. 
 
 Larceny, 393. 
 
 Statutes, 583. 
 
 Embezzlement, 120. 
 
 Jury, 369. 
 
 Assault and battery, 33. 
 
 Bail and recognizance, 59. 
 
 Abortion, 3. 
 
 False pretenses, 175. 
 
 Grand jury, 247. 
 
 Lasciviousness, 417. 
 
 Perjury, 497. 
 
 Burglary, 93. 
 
 Forg. and eountfg,314, 317, 330. 
 
 Larceny, 390. 
 
 Extortion, 171. 
 
 New trial, 442 ; Witness, 648. 
 
 Spirituous liquors, sale of, 573. 
 
 Homicide, 374. 
 
 Burglary, 89. 
 
 Statutes, 580. 
 
 Forgery and counterf g 197, 319. 
 
 Affray, 18. 
 
 Indictment, 331. 
 
 Burglary, 90. 
 
 Former acquittal or convie. 337. 
 
 Evidence, 135. 
 
 Accessory, 10; Bail and recogni- 
 zance, 63. 
 
 Perjury, 503. 
 
 Adultery, 15. 
 
 Bastardy, 73. 
 
 Perjury, 496, 507, 508, 511. 
 
 Insanity, 357. 
 
 Dueling, 117. 
 
 Evidence, 155. 
 
 Nuisance, 481. 
 
 Bail and recognizance, 63, 
 
 Arson, 37. 
 
 Evidence, 159 ; Forgery and coun- 
 terf'g, 314, 331; Witness, 656. 
 
 Conspiracy, 106. 
 
 Certiorari, 96.
 
 694 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. 
 
 V. 
 
 Com. 
 
 (1 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com. 
 
 V. 
 
 Com 
 
 V. 
 
 Com. 
 
 V. 
 
 Com 
 
 V 
 
 Com 
 
 V. 
 
 Com 
 
 V. 
 
 Propr's of New Bedford Bridge, 2 Gray, 339. 
 Putnam, 1 Pick. 130 
 
 " 29 Penn. St. 296 
 
 4 Gray, 16 
 Quann, 2 Va. Cas. 89 
 Quin, 5 Gray, 478 
 Rand, 7 Mete. 475 . 
 Randall, 4 Gray, 36 
 Ray, 3 Gray, 441 
 Read, Thach. Crim. Cas. 18( 
 Reardon, 6 Cusli. 78 . 
 
 " 4 Gray, 420 . 
 
 Regan, 105 Mass. 593 
 Remby, 2 Gray, 508 
 Reynolds, 14 Gray, 87 
 Rich, 14 Gray, 335 
 Ricketson, 5 Mete. 412 
 Ridgeway, 2 Ashm. 247 . 
 Riggs, 14 Gray, 376 
 Rigney, 4 Allen, 316 
 Riley, Thach. Cr. Cas. 67 
 
 " " " " " 471 
 
 Com. V. Roach, 108 Mass. 289 
 Com. V. Roberts, 108 Mass. 296 . 
 Com. T. Robinson, Thach. Cr. Cas. 230 
 
 " "1 Gray, 555 
 
 Com. V. Roby, 12 Pick. 49G . 
 
 " " 12 Pick. 508 
 
 Com. V. Rodes, 1 Dana, 595 . 
 Com. V. Rogers, 1 Serg. & Rawle, 124 . 
 Com. V. Roland, 97 Mass. 598 
 Com. V. Rourke, 10 Cush. 397 . 
 Com. V. Rowe, 105 Mass. 590 . 
 Com. V. Ruggles, 6 Allen, 588 . 
 
 ^' 10 Mass. 391 
 
 Com. V. Rumford Chemical Works, 16 Gray, 231. 
 Com. V. Rumrill, 1 Gray, 388 
 Com. V. Runnels, 10 Mass. 518 
 Com. V. Rush, 14 Penn. St. 186 . 
 Com. V. Ryan, 5 Mass. 90 . 
 Com. V. Sackett, 22 Pick. 394 . 
 Com. V. Samuel, 2 Pick. 103 . 
 Com. V. Sanford, 12 Gray, 174 . 
 Com. V. Savory, 10 Cush. 535 
 Com. V. Sawtelle, 11 Cush. 142 . 
 Cora. V. Scannel, 11 Cush. 547 
 Com. v. Scholes, 13 Allen, 554 
 Com. V. Sharpless, 2 Serg. & Rawle, 91 
 
 Corporation, 114. 
 
 Bigamy, 77. 
 
 Conspiracy, 102. 
 
 Spirituous liquors, sale of, 575. 
 
 Former acquittal or convic. 226. 
 
 Complaint, 99. 
 
 Larceny, 386. 
 
 Assault and battery, 36, 41. 
 
 Forgery and counterfg, 201, 212. 
 
 Evidence, 135. 
 
 Adultery, 12, 13, 14. 
 
 Rape, 527. 
 
 Rape, 525. 
 
 Spirituous liq. sale of, 572, 573. 
 
 Public justice, obstruction of, 518, 
 
 Witness, 653. 
 
 Trial, 627. 
 
 Consp'cy, 102; Larceny, 400, 404. 
 
 Indictment, 331. 
 
 Assault and battery, 35. 
 
 Forgery and counterfeiting, 215 ; 
 
 Indictment, 336. 
 Homicide, 305. 
 Assault and battery, 55. 
 Homicide, 294, 312, 313. 
 
 Evidence, 151 ; Larceny, 380. 
 
 Evi. 138 ; Trial, 608 ; Witness, 651. 
 
 Former acquittal or conviction, 
 223,224,227, 230; New trial, 
 452, 455 ; Trial, 627. 
 
 Misdemeanor, 440. 
 
 Information, 354. 
 
 Forcible entry and detainer, 194. 
 
 Indictment, 351. 
 
 Larceny, 384. 
 
 Evidence, 137. 
 
 Assault and battery, 36. 
 
 Nuisance, 474. 
 
 Nuisance, 479. 
 
 Spirituous liquors, sale of, 575, 
 
 Riot, 542, 543. 
 
 Nuisance, 472. 
 
 Jury, 369. 
 
 Evidence, 151; Witness, 658. 
 
 Peddlers, 496. 
 
 Homicide, 311. 
 
 Receiving stolen property, 539. 
 
 Larceny, 389, 391, 414. 
 
 Rape, 520, 521. 
 
 Indictment, 327. 
 
 Obscene publications, 487.
 
 TABLE OF CASES. 
 
 695 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Shaver, 3 Watts & Scrg. 338 
 Com. V. Sliiiw, 4 Allen, 308 
 
 4 Cush. 594 . 
 Com. V. Shearman, 11 Cusli. 546 . 
 Com. V. Shedd, 7 Cusli. 514 
 Com. V. Shepard, 1 Allen, 575 
 Com. V. Shepherd, 6 Binn. 283 
 Com. V. Sheriff, 16 Serg. & Rawle; 304 
 Com. V. Sherman, 105 Mass. 169 
 Cora. V. Sholes, 13 Allen, 554 
 Com. V. Shouse, 16 B. Mon. 325 
 Com. T. Silsbee, 9 Mas';. 417 
 Com. V. Sinionds, 11 Gray, 306 
 Com. V. Simpson, 9 Mete. 138 
 Com. V. Skeggs, 3 Bush, 19 . 
 Com. V. Skelley, 10 Gray, 464 . 
 Com. V. Slack, 19 Pick. 304 . 
 Com. V. Slate, 11 Gray, 60 
 Com. V. Sloan, 4 Cush. 52 
 Com. V. Smart, 6 Gray, 15 
 Com. V. Smith, 7 Pick. 137 . 
 
 " 6 Serg. & Rawle, 568 
 " "9 Mass. 107 . 
 
 " " 111 Mass. 429 . 
 
 " " 1 Mass. 245 . 
 
 " "6 Cush. 80 
 
 " "11 Allen, 243 
 
 " " 3 Va. Cas. 327 . 
 
 " " 2 Gray, 516 . 
 
 Com. V. Smyth 11 Cush. 473 
 
 14 Gray, 33 . 
 Com. V. Snell, 3 Mass. 82 
 Com. V. Snelling, 15 Pick. 337 
 
 15 Pick. 321 . 
 Com. V. Snow, 116 Mass. 47 . 
 
 " " 111 Mass. 411 
 
 Com. V. Soule, 2 Mete. 21 . 
 Com. V. Sowle, 9 Gray, 301 
 Com. V. Sparks, 7 Allen, 534 . 
 Com. V. Squire, 1 Mete. 258 
 Com. V. Squires, 97 Mass. 59 . 
 Cora. V. Stafford, 12 Cush. 019 . 
 Com. V. Stahl, 7 Allen, 304 . 
 Com. V. Stangford, 112 Mass. 283 
 Com. V. Starkweather, 10 Cush. 59 . 
 Com. V. Starr, 4 Allen, 301 
 Com. V. Stearns, 2 Mete. 343 
 " 10 Mete. 256 
 
 Com. V. Stebbius, 8 Gray, 492 
 
 Bribery, 85. 
 
 Larceny, 384. 
 
 Witness, 656. 
 
 Spirituous liquors, sale of, 573. 
 
 Conspiracy, 105. 
 
 Embezzlement, 120, 123. 
 
 Bastardy, 74. 
 
 Accessory, 10. 
 
 Larceny, 396. 
 
 Abortion, 5 ; Trial, 604. 
 
 Voting, 645, 
 
 Voting, 643. 
 
 Forgery and counterfeiting, 206. 
 
 Larceny, 398, 399. 
 
 Verdict, 642. 
 
 Nuisance, 477. 
 
 Disinterring the dead, 115. 
 
 Receiving stolen property, 535,537. 
 
 Spirituous liquors, sale of, 567,569. 
 
 Embezzlement, 121. 
 
 Forgery and counterfeiting, 200. 
 
 Forgery and counterfeit. 215, 216. 
 
 Grand jury, 246 ; Indictment, 326> 
 350. 
 
 Larceny, 380. 
 
 Larceny, 395. 
 
 Nuisance, 468, 479, 481. 
 
 Subornation of perjury, 514; Wit- 
 ness, 654. 
 
 Verdict, 638. 
 
 Witness, 658. 
 
 Homicide, 269. 
 
 Nuisance, 476. 
 
 Forgery and counterfeiting, 212. 
 
 Libel, 421, 424. 
 
 New trial, 450; Trial, 591. 
 
 Abortion, 5. 
 
 Evidence, 141; Sodomy, 565. 
 
 Malicious mischief, 432. 
 
 Malicious mischief, 431. 
 
 Adultery, 15. 
 
 Arson, 27; Indictment, 338. 
 
 Adultery, 16; Rape, 520. 
 
 Ploniicide, 208. 
 
 Gaming, 242. 
 
 False pretenses, 181. 
 
 Evidence, 167. 
 
 Forgery and counterfeiting, 218. 
 
 Erabezzlemont, lS-0. 
 
 Forgery and counterfeit. 206, 214. 
 
 Larceny, 381, 395, 403.
 
 C96 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Stedman, 12 Mete. 444 . 
 Com. V. Srcplienson, 3 Mete. Ky. 226 
 8 Pick. 354 
 " 11 Cush. 481 . 
 
 Com. V. Stevens, 1 Mass. 203 
 Com. V. Stewart, 1 Serg. & Rawle, 342 
 Com. V. Stoddard, 9 Allen, 280 . 
 Com. V. Stone, 4 Mete. 43 . 
 " 3 Gray, 453 
 " " Thaeh. Crim. Cas. 604 
 
 Com. V. Stout, 7 Monr. 247 . 
 
 Com. V. Stowell, 9 Mete. 572 
 Com. V. Strain, 10 Mete. 521 . 
 Com. V. Strupney, 105 Mass. £88 
 Com. V. Sturtivant, 117 Mass. 122 
 Com. V. Snglaud, 4 Gray, 7 . 
 Com. Y. Sullivan, 14 Gray, 97 . 
 " 104 Mass. 552 
 " " 6 Gray, 477 . 
 
 " 5 Allen, 511 
 Com. V. Sutherland, 109 Mass. 342 ; 1 Green's Crim 
 Reps. 189 
 
 Com. V. Sweney, 10 Serg. & Rawle, 173 . 
 Com. V. Swinney, 1 Va. Cas. 146, l.^O, 151, note 
 Com. V. Sylvester, 13 Allen, 247 
 Com. V. Symonds, 2 Mass. 163 
 Com. v. Talbot, 2 Allen, 161 
 Com. V. Tarbox, 1 Cush. 66 . 
 Com. V. Tarr, 4 Allen, 3J5 
 Com. v. Taylor, 5 Cush. 605 
 
 " " 14 Gray, 26 
 
 " "2 Binn. 277 . 
 
 Com. V. Temple, 14 Gray, 60 
 Com. V. Tenney, 97 Mass. 50 . 
 
 Com. V. Thaeher, 97 Mass. 533 
 Com. v. Thayer, 8 Mete. 525 
 Com. V. Thomas, 10 Gray, 483 
 
 1 Va. Cas. 307 
 Com. V. Thompson, 108 Mass. 461 
 
 " 6 Allen, 591; 11 lb. 23 
 
 " 99 Mass. 444 
 
 "• " 116 IMass. 346 
 
 "• •' 3 Litt. 284 
 
 " '• 9 Gray, 108 
 
 " '• Thach. Cr. Cas. 28 
 
 "" " Thach. Cr. Cas. 312 
 
 Nolle prosequi, 466. 
 
 Bribery, 85 ; Voting, 645. 
 
 Burglary, 86. 
 
 Forgery and counterfeiting, 199. 
 
 Forgery and counterfeit. 203, 205. 
 
 Nuisance, 478, 482. 
 
 Assault and batt. 40 ; Indict. 330. 
 
 False pretenses, 187, 188. 
 
 Indictment, 329. 
 
 Perjury, 511. 
 
 Indictment, 846. 
 
 Gaming, 236 ; New trial, 444. 
 
 False pretenses, 180, 182. 
 
 Burglary, 86. 
 
 Evidence, 131, 163; Homicide, 270. 
 
 Rape, 521. 
 
 Complaint, 99, 100. 
 
 Larceny, 397, 401. 
 
 Rape, 530. 
 
 Vagrant, 633. 
 
 Former acquittal or conviction, 
 
 226 ; Larceny, 386. 
 Libel, 422. 
 
 False pretenses, 184. 
 
 License, 426. 
 
 Indictment, 389. 
 
 Forgery and counterfeit. 202, 219. 
 
 Obscene publications, 487. 
 
 Adultery, 15. 
 
 Evidence, 143; Forgery and couu- 
 terfoiting, 205. 
 
 Gaming, 236. 
 
 Misdemeanor, 437. 
 
 Nuisance, 473. 
 
 False pretenses, 176 ; Forgery and 
 counterfeiting, 215 ; Former ac- 
 quittal or conviction, 226. 
 
 Lottery, 427. 
 
 Spirituous liquors, sale of, 567. 
 
 Forgery and counterfeiting, 204, 
 210; Larceny, 390. 
 
 Sodomy, 565. 
 
 Abortion, 5. 
 
 Adultery, 12. 
 
 Adultery, 15. 
 
 Assault and battery, 41. 
 
 Bail and recognizance, fi8, 71. 
 
 Burglary, 90. 
 
 Evidence, 134. 
 
 Homicide, 310.
 
 TABLE OF CASES. 
 
 697 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Thrasher, 11 Gray, 450 
 Com. V. Tibbetts, 2 Mass. 536 
 Com. V. Tiernan, 4 Gratt. 545 
 Com. V. Tilton, 8 Mete. 232 
 Com. V. Titus, 1 16 Mass. 42 . 
 Com. V. Tivnon, 8 Graj', 375 
 Com. V. Tobin, 108 Mass. 426 
 Com. V. Tolliver, 8 Gray, 386 
 Com. V. Tompson, 2 Cush. 551 
 Com. V. Townsentl, 5 Allen, 216 
 Com. V. TracY, 5 Mete. 536 . 
 
 Com. V. Trimmer, 1 Mass. 476 
 
 Com. V. Tryon, 99 Mass. 442 
 
 Com. V. Tuck, 20 Pick. 356 
 
 Com. V. Tucker, 110 Mass. 403 ; 2 Green's 
 
 Com. V. Tuckerraan, 10 Gray, 173 
 
 Com. V. Tuey, 8 Cush. 1 
 
 Com. V. Turner, 4 Dana, 511 
 
 " "8 Bush, 1; 1 Green's Cr. 
 
 Com. V. Tuttle, 12 Cush. 505 
 Com. V. Twitchell, 4 Cush. 75 
 Cora. V. Unknown, 6 Gray, 489 
 Com. V. Uprichard, 3 Gray, 434 
 Com. V. Upton, 6 Gray, 473 
 Com. V, Vandine, 6 Gratt. 689 . 
 Com. V. Van Schaack, 10 Mass. 105 
 Com. V. Van Tuyl, 1 Mete. Ky. 1 
 Com. V. Varney, 10 Cush. 402 
 Com. V. Vaughan, 9 Cush. 594 . 
 Com. V. Vt. & Mass. R. R Co. 108 Mass. 7 
 Com. V. Vt. & Mass. R. R. Corp. 4 Gray, 22 
 Com. V. Wade, 17 Pick. 395 . 
 
 Com. V, Waite, 5 Mass. 261 
 " "11 Allen, 264 
 
 Com. V. Walden, 3 Cush. 558 
 Com. V. Walker, 13 Allen, 570 
 " " 108 Mass. 300 . 
 
 Com. V. Wallace, 16 Gray, 221 
 " " 108 Mass. 13 . 
 
 " '' Thach. Crim. Ca.s. 592 
 
 Com. V. Walters, 6 Dana, 291 
 
 Com. V. Ward, 2 Mass. 397 . 
 
 Com. V. Warden, 11 Mete. 406 . 
 
 Com. V. Warren, G Mass. 72 . 
 
 Com. V. Waters, 7 Dina, 29 
 
 Adultery, 15. 
 
 Conspiracy, 105. 
 
 Presentment, 517. 
 
 Gaming, 236. 
 
 Larceny, 379. 
 
 Burglary, 91. 
 . Ass. and batt. 37, 44 ; Officer, 488. 
 
 Assault and battery, 43. 
 
 Adultery, 14. 
 
 Trial, 628. 
 
 Evidence, 139; Fugitives from 
 justice, 234. 
 
 Burglary, 86; Larceny, 386, 402. 
 
 Nuisance, 476. 
 
 Indictment, 339 ; Larceny, 397. 
 Cr. R. 266. Arson, 23. 
 
 Embezzlem't, 118, 123; Evid. 144. 
 
 Bill of exceptions, 82. 
 
 Bastardy, 76. 
 Reps. 293. Malicious mischief, 430. 
 
 Spirituous liquors, sale of, 577. 
 
 Indictment, 339. 
 
 Complaint, 100. 
 
 Larceny, 385. 
 
 Nuisance, 469. 
 
 Gaming, 241. 
 
 Arson, 23. 
 
 Jurisdiction, 365. 
 
 Indictment, 332; Libel, 423. 
 
 Evidence, 127. 
 
 Homicide, 311. 
 
 Nuisance, 472. 
 
 Arson, 29 ; Former acquittal or con- 
 viction, 223, 226 ; Nolle pros. 
 466 ; Trial, 595. 
 
 New trial, 459. 
 
 New trial, 448; Unwholesome pro- 
 visions, sale of, 632. 
 
 Malicious mischief, 429. 
 
 Evidence, 153. 
 
 False pret. 177, 182; Indict. 338; 
 Jurisdiction, 367. 
 
 Conspiracy, 105. 
 
 False pretenses, 181. 
 
 Voting, 643. 
 
 Indictment, 327. 
 
 Forgery and counterfeiting, 204. 
 
 Perjury, 509. 
 
 False pretenses, 174 ; Weights and 
 measures, 647. 
 
 Indictment, 342.
 
 G98 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Waters, 11 Gray, 81 . 
 Com. V. Weatherhead, 110 Mass. 175 
 Com. V. Webb, 6 Rand. 726 . 
 Com. V. Webster, 5 Cush. 395 
 
 Com. V. Welch, 2 Allen, 510 . 
 Com. V. Weld, Thacli. Cr. Cas. 157 
 Com. V. Wellington, 7 Allen, 299 . 
 Com. V. Welsh, 7 Gray, 324 
 
 " " 4 Gray, 535 . 
 
 " " 1 Allen, 1 . . . 
 
 Com. V. West, 1 Dana, 165 . 
 
 Com. V. Boston & Lowell R. R. Corp. 12 Cush. 254 
 Com. V. Wetherbee, 101 Mass. 214 . 
 Com. V. Wheeler, 2 Mass. 172 . 
 
 Com. 
 Com. 
 
 Com. 
 Com. 
 
 Com. 
 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 Com. 
 
 Com, 
 Com. 
 
 V. Whitcorab, 107 Mass. 480 . 
 V. White, 110 Mass. 407; 2 Green's Crim. Reps 
 209 
 " 11 Cush. 483 
 " 5 Mass. 261 . 
 " 10 Mete. 14 . . . 
 
 V. Whiting, Thach. Crim. Cas. 588 
 V. Whitman, 4 Pick. 233 . 
 V. Whitney, 5 Gray, 85 
 
 " Thach. Crim. Cas. 588 
 V. Whittemore, 11 Gray, 201 . 
 V. Wilcox, 1 Cush. 303 . 
 V. Wilde, 5 Gray, 83 . 
 V. Wilgus, 4 Pick. 177 . 
 
 T. Willard, 22 Pick. 476 
 V. Williams, 105 Mass. 62 . 
 " 2 Cush. 582 
 
 " 2 Ashm. 69 . 
 
 7 Gray, 337 
 " 9 Mete. 273 . 
 
 " 110 Mass. 401 ; 2 Green's Cr. Rep 
 
 265 . 
 13 Serg. & Rawle, 403 
 V. Williamson, 2 Va. Cas. 211 . 
 V. Wilson, 2 Cush. 590 
 " 1 Graj', 337 . 
 
 " " 2 Gray, 70 . . . 
 
 " " 11 Cush. 412 
 
 Com. V. Wing, 9 Pick. 1 ... 
 
 Com. V. Wise, 110 Mass. 181 ; 2 Green's Cr. Reps. 204. 
 Com. V. Wolcott, 10 Cush. 61 . . . 
 
 Com. V. Wood, 11 Gray, 85 . 
 
 Ill Mass. 408 ... 
 
 Spirituous liquors, sale of, 577. 
 
 Fishery, 190. 
 
 Nuisance, 469. 
 
 Evi. 133 151, 153; Homi. 254,255, 
 
 266, 271, 377, 302, 305, 309 ; 
 
 Trial, 594, 598, 608. 
 Spirituous liquors, sale of, 572. 
 Larceny, 381. 
 Cemetery, 95. 
 
 Assault and battery, 40, 45. 
 Grand jury, 248. 
 Nuisance, 477. 
 Bail and recognizance, 64. 
 Nuisance, 471. 
 Innkeeper, 355. 
 Former acquittal or convic. 224: 
 
 Nolle prosequi, 467. 
 False pretenses, 179, 
 
 Assault and battery, 32, 45. 
 
 Larceny, 376. 
 
 New trial, 458. 
 
 Spirituous liquors, sale of, 573. 
 
 Forgery and counterfeiting, 196. 
 
 Forgery and counterfeiting, 213. 
 
 Common drunkard, 99. 
 
 Forgery and counterfeit'g, 216,222. 
 
 Evidence, 143, 
 
 Spirituous liquors, sale of, 569. 
 
 Larceny, 377. 
 
 False pretenses, 178. 
 
 Misdemeanor, 437, 438. 
 
 Burglary, 93; Evi. 137; Wit. 653. 
 
 Burglary, 90; Larc. 414; Trial,591. 
 
 Homicide, 257,397; New trial, 459. 
 
 Larceny, 393. 
 
 Larceny, 383. 
 
 Malicious mischief, 439. 
 
 Nuisance, 471. 
 
 Accessory, 10. 
 
 Burglary, 94. 
 
 Evidence, 161,164; Homicide, 391 ; 
 
 Witness, 660. 
 Forgery and counterfeiting. 205. 
 Spirituous liquors, sale of, 571. 
 Misdemeanor. 437. 
 Nuisance, 479. 
 Officer, 491. 
 Abortion, 3, 5, 6. 
 Animals, 19.
 
 TABLE OF CASES. 
 
 ODD 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Com. V. Wood, 4 Gray, 11 
 
 " 
 
 
 97 Muss. 225 
 
 Com. 
 
 V. 
 
 Woodbury, Thach. Crim. Cas. 47 . 
 
 Com. 
 
 V. 
 
 Woods, 10 Gray, 477 
 
 Com. 
 
 V 
 
 Woodward, Thach. Cr. Cas. 63 
 102 Mass. 155 
 
 Com. 
 
 V. 
 
 Worcester, 3 Pick. 402 
 
 Com. 
 
 V. 
 
 Wormley, 8 Gratt. 713 . 
 
 Com. 
 
 V. 
 
 Wright, 1 Cush. 46 . 
 
 Thach. Crim. Cas. 211 
 
 12 Allen, 187 .. . 
 
 Com. 
 
 V. 
 
 York, 9 Mete. 93 ... 
 
 Com. V. Young, 9 Gray, 5 . 
 Comfort V. Fulton, 89 Barb. 56 . 
 
 Comfort V. People, 54 111. 404 .. . 
 
 Conkey v. People, 1 N. Y. Ct. of App. Decis. 418 ; 
 
 aff'g s. c. 5 Parker, 31 . 
 Conkwright v. People, 35 111. 304 
 Conley v. State, 5 West Va. 522 ; 2 Green's Cr. Reps. 
 673 ..... . 
 
 Conner v. State, 4 Yerg. 137 . 
 " " 19 Ind. 98; 18 lb. 428 
 
 " 25 Ga. 515 .. . 
 
 Connolly v. People, 3 Scam. 474 
 Connor v. Com. 3 Va. Cas. 30 . . . 
 
 " 3 Binn. 38 . 
 Connor v. State, 14 Mo. 561 
 
 " '' 34 Texas, 659 .. . 
 
 Conraddy v. People, 5 Parker, 334 
 Cook V. People, 2 N. Y. Supm. N. S. 404 
 
 Cook V. State, 11 Ga. 53 . 
 
 '^ 4 Zabr. 843 .... 
 Cook's Case, 1 Rob. 729 . 
 Cooper V. State, 4 Blackf. 316 
 
 " 23 Texas, 331 . 
 Copeland v. State, 7 Humph. 479 
 
 " " 23 Miss. 257 
 
 Copenhaven v. State, 15 Ga. 304 
 Coppack V. State, 36 Ind. 513 . 
 Coppage V. Com. 3 Bush, Ky. 532 
 Copperman v. People, 3 N. Y. Supm. N. S. 199; 8 lb. 
 
 15; 50 N. Y. 591 
 Corbett v. State, 31 Ala. 339 . 
 Corbin v. Shearer, 3 Gilman, 483 
 Corless v. Anthony, 4 .Johns. 198 
 Corlies v. Waddell, 1 Barl). 355 
 Cornelius v. Com. 15 B. Mon. 539 
 
 Bill of particulars, 83 ; Indict. 334 ; 
 
 Spirituous liq's, sale of, 570,575. 
 Laciviousiiess,4l6; Nuisance, 481. 
 Forgery <fc counterfeiting, 208,221. 
 Forg. (fccounterf. 214; Indict. 327. 
 Accessory, 10. 
 Homicide, 308, 312, 313. 
 Evidence, 151. 
 New trial, 451. 
 Libel, 431,433. 
 Nuisance, 485. 
 Sunday, 584. 
 Homicide, 254, 350, 357, 363, 303,. 
 
 377. 
 Embezzlement, 120. 
 Malicious trespass, 434; Search 
 
 warrant, 549 ; Warrant, 645. 
 Larceny, 408. 
 
 Indict. 350 ; Rape, 534, 536, 538. 
 Larceny, 407, 408. 
 
 Indictment, 339. 
 
 Grand jury, 347 ; Homicide, 259. 
 
 Trial, 631. 
 
 Witness, 653. 
 
 Indictment, 382. 
 
 Perjury, 502. 
 
 Warrant, 645. 
 
 Burglary, 89. 
 
 Evidence, 149. 
 
 Officer, 489 ; Trial, 010. 
 
 Evi. 164; Indict. 340; Seduction,, 
 
 550, 553. 
 Adultery, 13, 14 ; Trial, 609. 
 Evi. 136, 138, 160; Sentence, 560. 
 Perjury, 505. 
 Bastardy, 73. 
 Evidence, 160. 
 Homicide, 357, 308, 315. 
 Perjury, 504, 513. 
 Former acquittal or convic. 339. 
 Perjury, 506. 
 New trial, 449. 
 
 Receiving stolen prop. 537, 538. 
 Evidence, 136; Larceny, 403. 
 Trial, 615. 
 
 Forcible entry and detainer, 194. 
 Bail and recognizance, 68. 
 Homicide, 391.
 
 roo 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Cornelius v. Com. 3 Mete. Ky. 481 
 Cornelius v. State, 7 Eng. 782 
 
 " " 23 Miss. 782 . 
 
 Cornwell v. State, 1 Mart. & Yerg. 147 
 
 Cotton T. State, 7 Texas, 547 . 
 
 " "81 Miss. 504 ... 
 
 CottrelFs Case, 2 Rob. 77 ... 
 
 Coughlin V. People, 18 111. 263 .• . 
 
 Cowan V. People, 14 111. 348 . 
 
 Cowley V. State, 37 Ala. 152 ... 
 
 Cox V. State, 3 Blackf. 193 
 
 Coxdale v. State, 1 Head, 139 
 
 Craft V. State, 3 Kansas, 450 
 
 Crafts V. State, 2 Scam. 442 . 
 
 Craig V. State, 5 Ohio, N. S. 605 
 
 Crandall v. State, 10 Coun. 339 
 
 Crane v. State, 41 Texas, 494 
 
 Crawford v. State, 4 Cold. Tenn. 190 
 " 33Ind. 304 . 
 
 " 12 Ga. 142 ... 
 
 " "2 Carter, 132 
 
 Creek v. State, 24 Ind. 151 .... 
 
 Crichton v. People, 6 Parker, 363; 1 N. Y. Ct. of Ap- 
 peals Decis. 467 .... 
 
 Crilley v. State, 20 Wis. 231 
 
 Crippen v. People, 8 Mich. 117 . 
 
 Crisson v. State, 51 Ga. 597 .... 
 
 Crist V. State, 21 Ala. 137 
 
 Crocker v. State, 47 Ga. 568 ... 
 
 " "47 Ala. 53 
 
 " " Meigs, 127 . 
 
 Crocket v. State, 33 Ind. 416 . 
 
 Crockett v. State, 49 Ga. 185 
 Croghan v. State, 22 Wis. 444 . 
 Cromwell v. State, 1 Mart. & Yerg. 147 
 Cronsillat v. Ball, 4 D.H. 294 . 
 Crookliam v. State, 5 West. Va. 510 
 Cross V. People, 47 111. 152 
 Crosswell v. People, 13 Mich. 427 
 Crouse v. State, 16 Ark. 566 
 
 Crow V. State, 41 Texas, 468 ... 
 
 Crozier v. People, 1 Parker, 453 . 
 Cruiser v. State, 3 Harr. 206 . 
 Crusen v. State, 10 Ohio, N. S. 258 
 Cubreth, ^.»;)ar#e, 40 Cal. 436 
 Culp V. State, 1 Porter, 33 . . . 
 
 Cummings v. Com. 2 Va. Cas. 125 . . ■ . 
 
 Cummings v. Hogdon, 13 Mete. 246 
 Cunningham v. Com. 9 Bush, Ky. 149 
 
 Larceny, 412. 
 
 Evidence, 169 ; Larceny, 411; New 
 
 trial, 454; Witness, 647, 651. 
 Indictment, 329. 
 Indictment, 329. 
 Bail and recognizance, 64. 
 Homicide, 278, 319. 
 New trial, 465. 
 Evidence, 130. 
 
 Fal>e pretenses, 179, 181, 189. 
 Indictment, 340. 
 Nuisance, 477. 
 
 Forgery and counterfeiting, 203. 
 Evidence, 159 ; Homicide, 269,274, 
 Forgery and counterfeiting, 202. 
 Witness, 659. 
 Writ of error, 664. 
 Assault and battery, 55. 
 Evidence, 149. 
 Gaming, 243. 
 
 Homicide, 282,302; Trial, 609,610. 
 Larceny, 389. 
 Homicide, 320 ; Verdict, 642. 
 
 Abortion, 4,5,6; Indictment, 336. 
 
 Larc. 408; Nuis. 484; Trial, 600. 
 
 Evidence, 169. 
 
 Evidence, 159; Trial, 605. 
 
 Homicide, 282. 
 
 Assault and battery, 52; Former 
 
 acquittal or conviction, 231. 
 Robbery, 547. 
 Witness, 652. 
 Sunday, 584. 
 Rape, 523. 
 Rape, 519. 
 
 Intoxicat'n as an ex. for crime, 362. 
 Barratry, 71. 
 Homicide, 287, 288, 293. 
 Forgery and counterfeiting, 209. 
 Rape, 519. 
 Lasciviousness, 418. 
 Assault and battery, 33. 
 Seduction, 550, 552. 
 Fore. ent. and det. 193 ; Indict. 346. 
 Perjury, 511. 
 
 Fugitives from justice, 235. 
 Larceny, 383, 391. 
 Larceny, 403. 
 Bastardy, 72. 
 Trial, 620.
 
 TABLE OF CASES. 
 
 701 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Cunningham v. People, 11 N. Y. Suptn. N. S. 455 . 
 Cunningham v. State, 14 Mo. 402 
 
 " 2 Speers, 246 . 
 " " 5 West Va. 508 ; 2 Green's dim. 
 
 Reps. 669 . 
 Curlin v. State, 4 Yerg. 143 . 
 Curran's Case, 7 Gratt. 619 
 Curry v. Com. 2 Bush, Ky. 67 
 Curtis V. People, Breese, 197 
 Curtis V. State, 6 Cold. 9 . . 
 
 " 26 Ark. 439 
 Cutler V. State, 42 Ind. 244 . 
 
 Cutter V. State, 36 N. J. 135; 2 Green's Cr. Reps. 589. 
 Cyphers v. People, 81 N. Y. 373 ; affi'g 5 Parker, 666. 
 
 Forgery and counterfeiting, 199. 
 Bail and recognizance, 64. 
 Dueling, 116, 117. 
 
 Indictment, 339. 
 Misdemeanor, 438. 
 Arson, 26; New trial, 446. 
 Intoxicat'n as an ex. for crime, 361, 
 Assault and bat. 51 ; Verdict, 640. 
 Larceny, 406 ; New trial, 457. 
 Verdict, 639. 
 Continuance, 113. 
 Ignorance of law, 334. 
 Jurisdiction, 367, 368. 
 
 D 
 
 Dabney's Case, 1 Rob. 696 . . 
 
 Da Costa, In re, 1 Parker, 129 . 
 Daily v. State, 10 Ind. 536 . 
 Dale V. State, 27 Ala. 31 
 
 " " 10 Yerg. 551 . 
 
 Dally V. Overseers of Woodbridge, 1 Zabr. 491 
 Daly V. State, 33 Ala. 431 . 
 Dame v. State, 2 Humph. 439 
 Dameron v. State, 8 Mo. 494 
 Damewood v. State, 1 How. Miss. 263 
 Damon's Case, 6 Maine, 148 . 
 Daniel v. State, 8 Smed. & Marsh. 401 . 
 Daniels v. Com. 7 Barr, 371 . 
 Danneburg v. State, 20 Ind. 181 . 
 Dansby v. State, 34 Texas, 392 
 Darling v. Hubbell, 9 Conn. 350 
 Davenport v. State, 38 Ga. 184 
 Davenport's Case, 1 Leigh, 588 . 
 Davidson v. State, 9 Humph. 455 
 Davis V. Com. 17 Gratt. 617 
 Davis V. McDonald, 42 Ga. 205 
 Davis V. People, 2 N. Y. Supm. N. S. 213 
 
 " " 1 Parker, 447 
 
 " " 19 III. 74 
 
 Davis V. Salisbury, 1 Day. 278 
 Davis V. State, 38 Wis. 487 
 
 " -'6 How. Miss. 399 
 
 " " 6 Black f. 494 
 
 " "3 Cold. Tenn. 7 
 
 " " 7 Ohio, 204 
 
 " " 88Md. 15 
 
 " "17 Ala. 354 
 
 " 17 Ala. 415 . 
 
 " "20 Ga. 074 
 
 Pardon, 494. 
 
 Habeas corpus, 252, 254. 
 Larceny, 391. 
 Gaming, 241. 
 Homicide, 357. 
 Bastardy, 75. 
 
 Spirituous liquors, sale of, 574. 
 Homicide, 257. 
 Lasciviousness, 417. 
 Larceny, 383, 398. 
 Bigamy, 79. 
 
 Homi. 294,299,300,301 ; Trial, 615. 
 Sentence, 558. 
 
 Former acquittal or con. 231. 
 New trial, 452. 
 Bail and recognizance, 60. 
 Indictment, 331. 
 Larceny, 374 
 Assault and battery, 48. 
 Malicious mischief, 430. 
 Evidence, 157. 
 Abortion, 6. 
 Burglary, 94. 
 New trial, 455. 
 Bastardy, 74. 
 Assault and battery, 47. 
 Bail and recognizance, 62. 
 Bastardy, 73. 
 Burglary, 91. 
 Gaming, 241. 
 Evidence, 131, 100, 101. 
 Evidence, 134, 135. 
 Larceny, 393 ; Trial, 607. 
 Indictment, 351.
 
 ro2 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Davis V. State, 39 Md. 355; 2 Green's Cr, Reps. 381 
 
 " " 10 Ga. 105 . 
 
 " " 40 Ga. 229 .. . 
 
 " "37 Texas, 227 
 
 "35 Ind. 496 
 Dawley v. State, 4 lud. 128 
 Dawson v. People, 25 N. Y. 399 
 " " 5 Parker, 118 
 
 Dawson v. State, 16 Ind. 428 
 
 " 33 Texas, 431 
 Day V. People, 76 P.!. 380 
 Dean v. Com. 4 Gratt. 541 
 
 " " 3 Serg. & Rawle, 418 
 
 Dean v. State, 2 Sm. & Marsh. 200 . 
 Deathridge v. State, 1 Sneed, 75 
 De Bernie v. State, 19 Ala. 23 
 De Bouillon v. People, 2 Hill, 248 
 Dedieu v. People, 22 N. Y. 178 
 Deer v. State, 14 Mo. 348 
 De Forest v. State, 21 Ind. 23 
 Defrese v. State, 3 Heisk. 53; 1 Green's Cr. Rep: 
 
 356 ..... 
 
 Didieu v. Peop'e, 4 Parker, 593 
 Degant v. Michael, 2 Carter, 396 . . 
 
 Diggs V. State, 49 Ala. 311 
 Dignowitty v. State, 17 Texas, 521 . 
 Dilby V. State, Riley, 302 
 Dill V. State, 25 Ala. 15 . . . 
 
 Dillard v. State, 41 Ga. 278 
 Dillin V. People, 8 Mich. 357 
 Dillingham v. State, 5 Ohio, N. S. 280 . 
 Dillingham v. U. S. 2 Wash. C. C. 422 
 Dillon V. People, 4 N. Y. Siipm. K S. 203; 8 lb. 670 
 Ditto V. Com. 2 Bibb, 17 . . . 
 
 Dixon V. People, 18 Mich. 81 . 
 Dixon V. State, 3 Iowa, 416 
 
 " " 13 Fla. 636 ; 1 Green's Cr. Reps. 68 
 
 Doau y. State, 26 Ind. 495 
 Dobbins v. State, 2 Humph. 424 
 Dock V. Com. 21 Gratt. 9n9 . 
 Dodd V. Hamilton, 2 Taylor, 31 
 Doering v. State, 49 Ind. 56 
 Dollarhide v. U. S. 1 Morris, 233 
 Dominges v. State, 7 Sm. & Marsh. 475 
 Domiuick v. State, 40 Ala. 680 . 
 
 Donahoe v. Shed, 8 Mete. 323 
 Done V. People, 5 Parker, 364 
 Don Moran v. People, 25 Mich. 356 . 
 Donnel v. U. S. 1 Morris. 141 . 
 
 Homicide, 261 ; Indictment, 338. 
 
 Homic. 300, 302, 304 ; Trial, 605. 
 
 Larceny, 395. 
 
 Larceny, 411. 
 
 New trial, 456 ; Witness, 653. 
 
 Evidence, 158. 
 
 Ass. and batt. 51 ; Indict. 328, 352. 
 
 Writ of error, 661. 
 
 Intox'n as an excuse for crime, 361. 
 
 Homicide, 309. 
 
 Verdict, 640. 
 
 Evidence. 152. 
 
 Forcible entry and detainer, 193. 
 
 Bail and recognizance, 64. 
 
 Evidence, 148. 
 
 Perjury, 506. 
 
 Libel, 421, 424, 425. 
 
 Arson, 29. 
 
 New trial, 458, 459 ; Witness, 658. 
 
 Homicide, 322. 
 
 Evidence, 158; Larceny, 377. 
 
 Arson, 31. 
 
 Fugitives from justice, 235. 
 
 Evidence, 127. 
 
 Larceny, 373, 402. 
 
 New trial, 463. 
 
 Homicide, 260 ; Trial, 620. 
 
 Lasciviousness, 416. 
 
 Homi.279,286; Writ of error, 664. 
 
 False pretenses, 175, 179. 
 
 Bail and recognizance, 69. 
 
 Larceny, 407, 409. 
 
 New trial, 458. 
 
 Evidence, 127. 
 
 Assault and battery, 57. 
 
 Evidence, 140, 163; Homicide, 
 
 284, 294. 301. 
 Accessory, 8. 
 Gaming, 238. 
 Homicide, 320. 
 Larceny, 381. 
 Arrest, 21. 
 
 Assault and battery, 50. 
 Evidence, 132. 
 Former acquittal or conviction, 
 
 226; Trial, 607. 
 Warrant, 646. 
 
 Evid.148; Sent.556,558; Trial, 617. 
 Rape, 519. 
 Indictment, 331.
 
 TABLE OF CASES. 
 
 703 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Donnellan v. Com. 7 Bush, 676 
 Donnelly v. State, 2 Dutch. 464 
 " SDutch. GOl 
 DoDOghoe V. People, 6 Parker. 130 
 Donohue v. People, 56 N. Y. 208 
 
 Donston v. State, 6 Humph. 375 
 Dord V. People, 9 Barb. 671 
 Dormer v. State, 2 Carter, 308 
 Doss V. Com. 1 Gratt. 557 
 Doty V. State, 6 Blackf. 529 ; 7 lb. 437 
 
 Dougherty v. Com. 69 Penn. St. 286 
 
 Dougherty v. People, 4 Scam. 180 . 
 
 Douglass V. Com. 8 Watts, 538 . 
 
 Douglass V. State, 4 Wis, 387 
 
 Douglass V. Wickwire, 19 Conn. 488 
 
 Dove V. State, 3 Heisk. 348 ; 1 Green's Cr. Reps 
 
 Dover v. State, 33 Texas, 84 
 
 Dowdy V. Com. 9 Gratt. 727 
 
 Dowell V. State, 2 Carter, 658 
 
 Dowling V. State, 5 Smed. & Marsh. 664 
 
 Downing v. State, 4 Mo. 573 
 
 Dow's Case, 18 Penn. St. 37 
 
 Doyle V. Eussell, 30 Barb. 300 
 
 Drake v. Com. 10 B. Mon. 335 . 
 
 Drake v. State, 19 Ohio, 311 . 
 
 Drennan v. People, 10 Mich. 169 
 
 Drew V. Com. 1 Whart. 279 
 
 Drew V. Stale, 5 Eng. 82 
 
 Driskill v. State, 45 Ala. 21 . 
 
 Drowne v. Stimpson, 3 Mass. 441 
 
 Drury agst. People, 10 N. Y. 120 
 
 Dudley's Case, 6 Leigh, 613 
 
 DuflFy V. People, 5 Parker, 321 ; 36 N. Y. 588 
 
 Dukes V. State, 14 Fla. 499 
 Duncan v. Com. 4 Serg. & Rawle, 449 
 " "6 Dana, 295 
 
 " " 2 B. Mon. 281 
 
 Dunn V. Com. 6 Barr, 384 
 Dunn V. People, 29 N. Y. 523 
 Dunn V. State, 3 Ark. 339 
 
 Dunnaway v. State, 9 Yerg. 350 
 Dupree v. State, 33 Ala. 380 
 Durant v. People, 13 Mich. 351 
 Durham v. People, 4 Scam. 173 
 Durham v. State, 9 Ga. 306 . 
 Dutcher v. State, 18 Ohio, 708 . 
 Dye V. Com. 7 Gratt. 662 . 
 Dyer v. Chick, 52 Muine, 350 
 
 . Homicide, 356, 277. 
 
 Homicide, 371, 394, 397. 
 . Homicide, 288 ; Writ of error, 664. 
 
 Evidence, 133, 154. 
 
 Evidence, 140 ; Witness, 652 ; Writ 
 of error, 664. 
 . New trial, 461. 
 
 False pretenses, 181. 
 . Gaming, 243, 344. 
 
 Trial, 613. 
 . Larceny, 416; Trial, 618; Venue, 
 change of, 635, 636. 
 
 Trial, 605. 
 . Riot, 542. 
 
 Bastardy, 77. 
 
 Nuisance, 470. 
 
 Officer, 487. 
 760. Evidence, 164; Insanity, 357. 
 
 Malicious mischief, 433. 
 
 Trial, 603. 
 
 Spirituous liquors, sale of, 567. 
 
 Homicide, 299. 
 
 Indictment, 345. 
 
 Arrest, 22. 
 
 Arrest, 22. 
 
 Ass. and batt. 45; New trial, 448. 
 
 Homicide, 268. 
 
 Arrest, 21. 
 
 Sentence, 559. 
 
 Gaming, 241. 
 
 Indictment, 328. 
 
 Bastardy, 74. 
 
 Homicide, 263. 
 
 Dueling, 117. 
 
 Evidence, 148; Trial, 623; Ver- 
 dict, 637. 
 
 Homicide, 301, 303. 
 
 Adultery, 13, 16. 
 
 Affray, 17 ; Former acquittal or 
 conviction, 233. 
 
 Spirituous liquors, sale of, 566. 
 
 Trial, 605. 
 
 Abortion, 6, 7 ; Trial, 633. 
 
 Evidence, 157 ; Former acquittal or 
 conv. 237 ; Homicide, 395. 
 
 Nuisance, 468. 
 
 Homicide, 390, 399, 318. 
 
 Receiving stolen property, 537. 
 
 Former acquittal or conv. 333, 225. 
 
 Nolle prosequi, 466. 
 
 Burglary, 90, 92. 
 
 Trial, 628. 
 
 Forcible entry and detainer, 193.
 
 f04 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 E 
 
 Subject and Page. 
 
 Eames v. State. 6 Humph. 53 
 
 Easterling v. State, 30 Ala. 40 . 
 
 Eastman v. Com. 4 Gray, 416 
 
 Eastwood V. People, 3 Parker, 25 ; 14 N. Y. 5G2 
 
 Eberhart v. State, 47 Ga. 598 ... 
 
 Eckels V. State, 30 Ohio, N. S. 508 
 
 Edgar v. State, 43 Ala. 45 . 
 
 Edge V. Com. 7 Barr, 275 ... 
 
 Edmonds v. State, 5 Humph. 94 . 
 
 Edmondson v. State, 41 Texas, 496 
 
 " 17 Ala. 179 . 
 Edwards V. Com. 19 Pick. 124 . 
 Edwards v. State, 25 Ark. 444 .. . 
 
 "27 Ark. 493; 1 Green's Cr. R. 741. 
 Eggler V. People, 56 N. Y. 642 . 
 
 " 3 N. Y. Supm. N. S. 796 . 
 Eitel V. State, 33 Ind. 201 
 Elam V. State, 25 Ala. 53 . 
 
 Eliza V. State, 39 Ala. 693 .... 
 
 Elizabeth v. State, 27 Texas, 329 
 
 Elkin V. People, 28 N. Y. 177 
 
 Elkius V. State, 2 Humph. 543 . 
 
 Ellenwood v. Com. 10 Mete. 222 
 
 Elliott V. State, 46 Ga. 159 
 
 " 26 Ala. 78 . 
 Ellis V. State, 7 Blackf. 534 
 Ellison V. State, 8 Ala. 273 . 
 Ells V. State, 20 Ga. 438 . 
 Emory v. State, 6 Blackf. 107 
 Engleman v. State, 2 Carter, 91 . 
 
 English V. State, 35 Ala. 428 
 
 Ennis v. State, 3 Greene, 67 . 
 
 Epperson v. State, 42 Texas, 79 . 
 
 Eskridge v. State, 25 Ala. 50 . 
 
 Esmon v. State, 1 Swan, 14 
 
 Estep V. Lacy, 35 Iowa, 419; 2 Green's Crim. R. 634 
 
 Estes V. State, 2 Humph. 496 
 
 Eubanks v. State, 3 Heisk. 488 ; 1 Green's Cr. R. 323 
 
 " 17 Ala. 181 
 Evans V. Com. 3 Mete. 453 
 Evans v. Foster, 1 New Hamp. 374 
 Evans v. People, 12 Mich. 27 . 
 
 49 N. Y. 86 
 Evans V. State, 8 Ohio, 196 . 
 
 Arrest, 21. 
 
 Spirituous liquors, sale of, 567. 
 
 Larceny, 389. 
 
 Intoxication as an excuse for crime, 
 361 ; New trial, 454, 461 ; Ver- 
 dict, 642. 
 
 Evidence, 149. 
 
 Larceny, 372. 
 
 Homicide, 290. 
 
 Indictment, 337. 
 
 Bastardy, 74. 
 
 Homicide, 265. 
 
 Indictment, 331. 
 
 Forgei-y and counterfeiting, 213. 
 
 Homi. 268; Venue, change of, 634. 
 
 Homicide, 265, 288. 
 
 Homicide, 273, 299 ; Trial, 624. 
 
 New trial, 447; Writ of error, 664. 
 
 Sunday, 584. 
 
 Spirituous liquors, sale of, 576; 
 Witness, 659. 
 
 Sentence, 555; Statutes, 581. 
 
 Evidence, 148. 
 
 Conspiracy, 105. 
 
 Nuisance, 471. 
 
 Trial, 592. 
 
 Assault and batteiy, 53, 56. 
 
 Indictment, 341, 349. 
 
 Nuisance, 485. 
 
 Bail and recognizance, 66, 67. 
 
 Adultery, 15. 
 
 Extortion, 173. 
 
 Indictment, 334; Larceny, 389, 
 397, 398, 399, 407. 
 
 Witness, 649. 
 
 Larceny, 373. 
 
 False pretenses, 184. 
 
 Evidence, 143; Trial, 617. 
 
 Former acquittal or con vie. 225. 
 
 Pardon, 495. 
 
 Bail and recognizance, 60, 65. 
 
 Gaming, 236. 
 
 Indictment, 338. 
 
 Information, 354; Pardon, 494. 
 
 Bail and recognizance, 65. 
 
 Evidence, 163. 
 
 Homicide, 310. 
 
 Forgery and counterfeiting, 202.
 
 TABLE OF CASES. 
 
 705 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Evans v. State, 33 Ga. 4 . 
 
 " " 44 Miss. 7G2 . 
 
 Evers v. People, 6 N. Y. Supm. N. S. 81 
 Evins V. State, 46 Ala. 88 
 Ezell, Exjjurte, 40 Texas, 451 
 
 Horaicide, 807. 
 
 Homicide, 318. 
 
 Evidence, 164; Homicide, 321. 
 
 Concealed weapons, 101. 
 
 Habeas corpus, 2o2. 
 
 F 
 
 Fairlee v. People, 11 111. 1 . 
 
 Falk V. People, 42 111. 332 
 
 Fall agst. Overseers of the Poor, 3 Munf. 49.5 
 
 Fallon V. People, 2 N. Y. Ct. of App. Decis. 83; 2 
 
 Keyes, 145 
 Fanning v. State, 14 Mo. 386 
 Farez, In re, 5 Blatchf. 414; 7 lb. 34. 345, 491 
 Farez, Matter of, 7 Abb. N. S. 84 
 Faris v. State, 3 Ohio, N. S. 159 
 Farrall v. State, 32 Ala. 557 
 Farrington v. State, 10 Ohio, 354 
 Farrow v. State, 48 Ga. 30 
 Faulds V. People, 66 111. 210 . 
 Feazle's Case, 8 Graft. 585 
 Felix V. State, 18 Ala. 720 . 
 Fellows' Case, 5 Maine, 333 
 Fell's Case, 9 Leigh, 613 . 
 
 Felter v. State, 9 Yerg. 397 
 Fennell v. State, 32 Texas, 378 
 Fenton v. People, 4 Hill, 126 
 Ferdinand v. State, 39 Ala. 706 
 Fergus v. State, 6 Yerg. 345 
 Ferguson v. State, 32 Ga. 658 
 " 49 Ind. 33 
 Ferreira Dos Santos, Case of, 2 Brock. 498 . 
 Ferris v. People, 48 Barb. 17; affi'd 35 N. Y. 12 
 
 Fetter, Matter of, 3 Zabr. 311 
 
 Fiddler v. State, 7 Humph. 508 . 
 
 Field V. Ireland, 21 Ala. 240 .... 
 Field's Case, 4 Leigh, 648 .. . 
 
 Fields V. State, 47 Ala. 603; 1 Green's Crim. R. 635. 
 Fife V. Com. 29 Penn. St. 429 . 
 Findley v. People, 1 Manning, 234 
 Findley v. State, 5 Blackf. 576 . 
 Finn v. Com. 5 Rand. 701 .... 
 Finney v. State, 3 Head, 544 
 Fisher v. Com. 1 Bush (Ky.) 211 . 
 
 45 
 
 Homicide, 268. 
 
 New trial, 449 ; Verdict, 638. 
 
 Bastardy, 75. 
 
 Larceny, 403. 
 
 Evidence, 152; Trial, 591. 
 
 Fugitives from justice, 233, 234. 
 
 Fugitives from justice, 238. 
 
 Officer, 490, 491. 
 
 Trial, 618. 
 
 Forgery and counterfeiting, 216. 
 
 Indictment, 331. 
 
 Malicious mischief, 430. 
 
 Gaming, 244. 
 
 Evid. 150, 151; Homi. 255, 270. 
 
 Jury, 370 ; Trial, 600. 
 
 Trial, 628. 
 
 Larceny, 378, 381. 
 
 Sodomy, 565. 
 
 False pretenses, 181. 
 
 Statutes, 581. 
 
 Forgery and counterfeiting, 205. 
 
 Conspiracy, 104. 
 
 Trial, 613, 622. 
 
 Fugitives from justice, 232, 233. 
 
 Former acquittal or conviction, 
 
 224 ; New trial, 443 ; Trial, 594 ; 
 
 Writ of error, 664. 
 Fugitives from justice, 232, 234; 
 
 Habeas corpus, 253. 
 Former acquittal or conviction, 
 
 229; Gaming, 238. 
 Receiving stolen property, 532. 
 Rape, 528. 
 Evidence, 150. 
 Evidence, 148. 
 Abatement, 2. 
 Venue, change of, 636. 
 Forgery and counterfeiting, 222. 
 Bigamy, 80. 
 Former acquittal or convic. 225.
 
 roG 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject'and Page. 
 
 Fisher v. People, 23 111. 283 . 
 
 Fisher V. Shattuck, 17 Pick. 252 
 Fisher v. State, 43 Ala. 17 
 
 " " 46 Ala. 717 . 
 
 Fisher's Case, 23 111. 293 . 
 
 Fitch V. People, 16 Johns. 141 .. . 
 
 Fitch V. State, 2 Nott & McCord, 558 . 
 Fitzgerald v. People, 37 N. Y. 413; 5 N. Y. Trans, of 
 
 App. 273; 49 Barb. 122 . 
 Fitzgerald v. State, 4 Wis. 395 
 Fizeie y. State, 25 Wis. 361 
 Flanagan v. People, 52 N. Y. 467 ; 1 Green's Cr. E 
 
 377, 
 Flanagan v. State, 19 Ala. 546 . 
 
 '^ 46 Ala. 73 . 
 Flanagin v. State, 25 Ark. 92 . 
 Fleming v. People, 27 N. Y. 329 
 Fleming V. State, 5 Humph. 564 . 
 Fletcher v. People, 52 111. 395 
 " "6 Humph. 249 
 
 " '' 49 Ind. 124 
 
 Flournoj' v. State, 16 Texas, ol . 
 Floyd V. State, 36 Ga. 91 . . . 
 
 " " 3 Heisk. 342; 1 Green's Crim. R. 75 
 
 " " 30 Ala. 511 . 
 
 " "7 Texas, 215 . . 
 
 Fogg V. State, 9 Yerg. 392 
 Foley V. State, 9 Iowa, 363 
 
 " " 1 Breese, 32 . 
 
 Foltz V. State, 33 Ind. 215 
 Ford V. State, 12 Md. 514 . 
 Forney v. State, 13 Mo. 455 
 Forrester v. State, 34 Ga. 107 . 
 Forsythe v. State, 6 Ham. 20 
 Foster v. People, 50 N. Y. 598 
 
 " " 18 Mich. 266 . 
 
 Foster v. State, 39 Ala. 229 . 
 
 Foulke's Case, 2 Rob. 836 
 Fouts V. State, 7 Ohio, N. S. 471 
 "8 Ohio, N. S. 98 
 " " 4 Greene, 500 
 
 Fowler v. Com. 4 Monr. 128 . 
 Fowler v. State, 3 Heisk. 154 ; 1 Green's Cr. R. 295 
 
 " 5 Day, 81 . . . 
 
 Fox V. State, 8 Humph. 63 . 
 Foxdale v. State, 9 Humph. 411 . 
 Fralich v. People, 65 Barb. 48; 1 Green's Cr. R. 714 
 
 France v. State, 42 Texas, 276 . . 
 
 Francisco v. People. 4 Parker, 139 
 
 Trial, 626. 
 
 Bastardy, 73. 
 
 Burglary, 88, 89. 
 
 Larceny, 387, 408. 
 
 Insanity, 359. 
 
 Forcible entry and detainer, 195. 
 
 Bail and recognizance, 68. 
 
 Homicide, 269 ; Verdict, 638. 
 Indictment, 329. 
 Rape, 519. 
 
 Insanity, 355. 
 
 Assault and battery, 58. 
 
 Homicide, 309. 
 
 Evidence, 152, 159. 
 
 Bigamy, 78, 81; Evidence, 156. 
 
 Witness, 658. 
 
 False imprisonment, 172. 
 
 Trial, 597. 
 
 W^itness, 650. 
 
 Trial, 616. 
 
 Assault and battery, 56. 
 
 Assault and bat. 52 ; Homi. 274. 
 
 Grand jury, 247; Perjury, 512. 
 
 Witness, 655. 
 
 Forgery and counterfeiting, 211. 
 
 Assault and battery, 57. 
 
 Bail and recognizance, 61. 
 
 Sunday, 584. 
 
 Homicide, 304 ; Trial, 630. 
 
 Gaming, 238. 
 
 Indictment, 350. 
 
 Burglary, 88 ; Jury, 370. 
 
 Trial, 614. 
 
 Witness, 649. 
 
 Former acquittal or conviction, 
 
 230, 231 ; Trial, 606. 
 Forgery and counterfeit. 200, 215. 
 Conspiracy, 109 ; Trial, 602. 
 Evidence, 144; Homicide, 368. 
 Homicide, 256, 269 ; Insanity, 856. 
 Bail and recognizance, 64. 
 Assault and battery, 40. 
 Lasciviousness, 416, 418. 
 Lasciviousness, 419. 
 New trial, 450. 
 Evi. 136; Homic. 309 ; New trial, 
 
 442, 449 ; Witness, 658. 
 Burglary, 86. 
 Pilot, 515.
 
 TABLE OF CASES. 
 
 707 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Prancisco v. Stats, 4 Zabr. 30 
 
 " "1 Carter, 179 
 
 Frank v. State, 40 Ala. 9 
 " " 39 Miss. 703 
 
 " 27 Ala. 37 . 
 Franklin v. State, 28 Ala. 9 
 
 " " 29 Ala. 14 . 
 
 Frazer v. People, 54 Barb. 306 . 
 Frazier v. State, 39 Texas, 390 
 
 " "5 Mo. 536 
 
 Frederick v. Com. 4 B. Mon. 7 
 Frederick v. State, 3 West Va. 695 
 Free v. State, 1 McMullan, 494 
 Freel v. State, 21 Ark. 212 
 Freeland v. People, 16 111. 380 
 Freeman v. People, 4 Denio, 9 . 
 
 Freeman v. State, 6 Porter, 372 
 Freleigh v. State, 8 Mo. 606 . 
 French v. People, 3 Parker. 114 
 French v. State, 12 Ind. 670 
 Freund v. People, 5 Parker, 198 . 
 Friar v. State, 3 How. Miss. 422 . 
 Friery v. People, 54 Barb. 319; affi'd 2 Keyes, 424 ; 2 
 N. Y. Ct. of App. Decis. 215 . 
 
 Fritz V. State, 40 Ind. 18 ; 1 Green's Cr. Reps. 554. 
 
 Frost V. Com. 9 B. Mon. 362 . 
 
 Fugate V. State, 2 Humph. 397 . 
 
 Fugate's Case, 2 Leigh, 724 
 
 Fulford V. State, 50 Ga. 591 . 
 
 Fulkner v. State, 3 Heisk. 33; 1 Green's Cr. R. 664. 
 
 Fuller V. State, 48 Ala. 273 
 
 " 1 Blackf. 63 . 
 Fulton V. State, 8 Eng. 168 . . . 
 
 Assault and battery, 41. 
 
 Indictment, 347. 
 
 Bill of exceptions, 83. 
 
 Burglary, 86. 
 
 Conspiracy, 104 ; Homicide, 286. 
 
 Evidence, 147; Indictment, 328. 
 
 Homicide, 298. 
 
 Abor. 4, 6 ; Evi. 170 ; Indict. 343. 
 
 Sodomy, 565. 
 
 Verdict, 640. 
 
 Nuisance, 478, 482. 
 
 Evidence, 148. 
 
 Trial, 612; Witness, 659. 
 
 Homicide, 304. 
 
 Former acquittal or convic. 230. 
 
 Insanity, 358, 359; Trial, 593, 595, 
 
 598, 601, 022. 
 Nuisance, 476. 
 
 Contin. 112; Lot. 428; Trial, 609. 
 Indict. 349 ; Spir. liq. sale of, 568. 
 Evidence, 165 ; Indictment, 335. 
 Arson, 29, 31. 
 Trial, 590, 627. 
 Intoxica'n as an excuse for crime, 
 
 360; New trial, 443; Trial, 594, 
 
 602. 
 Former acquit, or convic. 229, 330. 
 Adultery, 15. 
 Gaming, 241. 
 Pardon, 494. 
 Assault and battery, 49. 
 Former acquittal or convic. 231. 
 Burglary, 93; Larceny, 406. 
 Jury, 371, 399. 
 Larceny, 382. 
 
 G 
 
 Gabe v. State, 1 Eng. 519 
 
 Gabriel v. State, 40 Ala. 357 . 
 
 Gaffney v. People, 50 N, Y. 416 . 
 
 Gage V. Shelton, 3 Rich. 242 . 
 
 Gahan v. People, 58 111. 160 ; 1 Green's Cr. R. 704 
 
 Gaines v. Com, 50 Penn. St. 319 . 
 
 Gallagher v. State, 3 Minn. 270 
 
 Galloway v. State, 2!) Ind. 442 . 
 
 Galvin v. State, 6 Cold. Tenn. 383 . 
 
 Gamble v. State, 35 Miss. 222 . 
 
 Gamblin v. State, 45 Miss. 058 
 
 Abatement, 1; Forg. and count'g, 
 
 206, 208, 217. 
 Larceny, 393, 410. 
 Evidence, 167; Writ of error, 663. 
 Arson, 24. 
 Evidence, 128. 
 
 Homicide, 288; Verdict, 637. 
 Assault and battery, 39. 
 Perjury, 508, 511, 512. 
 Homicide, 310. 
 Vot'ng, 645. 
 Concealed weapons. 101.
 
 (08 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Ganaway v. State, 23 Ala. 772 
 Gandolfo v. State, 11 Ohio, N. S. 114 . 
 Gann v. State, 30 Ga. 67 
 Gano V. Hall, 5 Parker, 651 ; 42 N. Y. 67 
 Garber v. State, 4 Cold, Tenn. 161 . 
 Garcia v. State, 26 Texas, 209 
 Gardenheir v. State, 6 Texas, 348 
 Gardiner v. People, 6 Parker, 155 
 
 " " 3 Scam. 83 
 
 Gardner v. State, 4 Ind. 632 
 
 " 48 Ala. 263 
 Garrett v. State, 6 Mo. 1 . 
 Gates V. People, 14 111. 433 . 
 Gatewood v. State, 4 Ohio, 386 . 
 Gedge v. Com. 9 Bush, Ky. 61 
 Geiger v. State, 5 Iowa, 484 
 Genig v. State, 1 McCord, 573 
 George v. State, 39 Miss. 570 
 Gerard v. People, 3 Scam. 362 
 Gholston V. State, 33 Texas, 342. 
 Giacomo, In re, 12 Blatchf. 391 
 Gibbons v. People, 33 111. 442 
 Gibbs V. State, 34 Texas, 134 
 Gibson v. Com. 2 Va. Cas. Ill 
 Gibson v. State, 44 Ala. 17 . 
 
 " " 39 Ala. 093 
 
 Gilbert v. State. 7 Humph. 524 
 Gildersleeve v. People, 10 Barb. 35 
 Giles V. State, 6 Ga. 276 
 Gill V. People, 5 N. Y. Supm. N. S. 308 
 
 Gillespie v. State, 8 Yerg. 507 
 
 " " 6 Humph. 164 
 
 Gilliam v. State, 1 Head, 38 
 Gilmore v. McNeil, 46 Maine, 532 
 Ginn v. Com. 5 Litt. 300 . 
 Givens v. State, 6 Texas, 344 
 Glackan v. Com. 3 Mete. Ky. 233 
 Gladden v. State, 13 Fla. 623 
 
 " " 12 Fla. 562 
 
 Glass V. State, 30 Ala. 529 
 Glory V. State, 8 Eng. 230 . 
 Godfrey v. People, 12 N. Y. Siipm. JST. S. 369 
 Godfrey v. State, 31 Ala. 323 
 Goforth V. State, 8 Humph. 37 . 
 Goghagan v. People, 1 Parker, 378 . 
 Goldv. Bissel, 1 Wend. 210 
 Golden v. State, 1 Rich. K S. 292 . 
 
 Indictment, 328. 
 
 Trial, 626. 
 
 Homicide, 307. 
 
 Commitment, 98. 
 
 Homicide, 283. 
 
 Larceny, 409. 
 
 Assault and battery, 57. 
 
 Evi. 140, 151, 156, 164 ; Former 
 
 acquittal or convic. 323; Homi. 
 
 270,271 ; Jury, 371 ; New trial, 
 
 441 ; Trial, 590, 593, 594, 603. 
 Homicide, 287 ; Trial, 592, 607. 
 Ass. and batt. 36; Compl't, 99,100". 
 Trial, 604. 
 Witness, 649, 657. 
 Trial, 597. 
 Larceny, 387. 
 Nuisance, 472. 
 Indictment, 330. 
 Spirituous liquors, sale of, 576. 
 Witness 650. 
 
 Former acquit, or convic. 223, 228. 
 Malicious mischief, 432. 
 Fugitives from justice, 232. 
 Gaming, 236. 
 Malicious mischief, 432. 
 Jury, 370. 
 
 Habeas corpus, 249 ; Perjury, 498. 
 Sentence, 554. 
 New trial, 458. 
 Bail and recognizance, 65. 
 Libel, 422,423; New trial, 459,463. 
 Certiorari, 96; Indictment, 334; 
 
 Jurisdiction, 364 ; Witness, 658. 
 Trial, 596. 
 Usury, 633. 
 Witness, 659. 
 Larceny, 414. 
 Bastardy, 75. 
 New trial, 444. 
 False pretenses, 175, 181. 
 Homicide, 301. 
 Trial, 605. 
 Gaming, 240. 
 
 Homicide, 276 ; New trial, 465. 
 Mayhem, 436. 
 Homicide, 255. 
 Malicious mischief, 429, 433. 
 Bigamy, 80. 
 Arrest, 19. 
 Assault and battery, 36.
 
 TABLE OF CASES. 
 
 709 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Golden v. State, 2;j Ga. 527 
 Goldsmith v. State, 1 Head, 154 
 Golliher v. Com. 2 Duvall, 163 . 
 
 Goodall V. State, 1 Oregon, 338 
 
 " 22 Ohio, N. S. 203 ; 1 Green's 
 Reps. 671 
 Goodell V. People, 5 Parker. 206 
 Goodin v. State, 16 Ohio, K S. 344 
 Goodman v. State, 5 Smed. & Marsh. 510 
 Goodrich v. People, 19 N. Y..574; affi'g 3 Parker 
 Goodwin v. Governor, 1 Stew. & Port. 465 
 Gordon v. People, 33 N. Y. 501. 
 Gordon v. State, 4 Mo. 375 
 
 "3 Iowa, 410 
 Gorman v. State, 42 Texas, 221 . 
 
 "23 Texas, 646 
 Goudy V. State, 4 Blackf. 548 . 
 Grable v. State, 2 Greene, 559 
 Grady v. State, 11 Ga. 253 .. . 
 
 Graham v. Com. 16 B. Mon. 587 
 Graham v. Monsergh, 22 Vt. 543 
 Graham v. People, 63 Barb. 468 
 Graham v. State, 40 Ala. 659 
 Grainger v. State, 5 Yerg. 459 
 Grant v. People, 4 Parker, 527 . 
 
 Grant v. State, 2 Cold. Tenn. 216 . 
 
 " 45 Ga. 477 
 Graves v. Adams, 8 Yt. 130 . 
 Graves v. American Exch. Bank, 17 N. Y. 205 . 
 Graves v. State, 9 Ala. 447 
 
 Gray v. People, 26 111. 344 .. . 
 
 Grayson v. Com. 7 Gratt. 613 
 Grayson's Case, 6 Gratt. 712 . ... 
 
 Green v. State, 13 Mo. 382 . 
 
 " 41 Ala. 419 .. . 
 
 " " 28 Miss. 687 . 
 
 Greenlow v. State, 4 Humph. 25 
 Green's Case, 11 Leigh, 677 . 
 
 " 1 Rob. 731 
 Greenwood v. State, 35 Texas, 587 . 
 Greer v. State, 22 Texas, 588 . 
 Greeson v. State, 5 How. Miss. 33 
 Gregg V. State, 3 West Va. 705 . 
 Gregory v. Com. 5 Dana, 417 
 Gregory v. State, 46 Ala. 151 . 
 Greschia v. People, 53 III. 295 
 Griffin v. Com. Litt. Sel. Cas. 31 
 Griffin V. State, 26 Ga. 493 . 
 
 Crim. 
 
 622. 
 
 Intoxicat'u as an ex. for crime, 360. 
 
 Nuisance, 483. 
 
 Homicide, 263 ; Intoxication as an 
 
 excuse for crime, 360. 
 Homicide, 274, 297, 319. 
 
 Larceny, 400. 
 
 Attorney, 58. 
 
 Trial, 592. 
 
 Homicide, 271. 
 
 Unwholes'meprov. sale of, 631,632. 
 
 Bail and recognizance, 64, 68. 
 
 Evidence, 153. 
 
 Dueling, 117. 
 
 Evidence, 151. 
 
 Assault and battery, 35. 
 
 Bigamy, 81. 
 
 Former acquittal or conv. 232. 
 
 Trial, 612. 
 
 Sentence, 555. 
 
 Insanity, 356. 
 
 Bastardy, 73. 
 
 New trial, 450 ; Writ of error, 663. 
 
 Sentence, 554. 
 
 Homicide, 317, 831. 
 
 Former acquittal or conviction, 
 
 224, 231 ; Writ of error, 663. 
 Assault and battery, 47. 
 Trial, 622. 
 Bastardy, 72. 
 
 Forgery and counterfeiting, 196. 
 Libel, 424, 435. 
 Evidence, 158 ; Trial, 601. 
 New trial, 463. 
 New trial, 462. 
 Conspiracy, 104 ; Continuance, 112 ; 
 
 Evid. 138; Homicide, 256, 294. 
 Evidence, 129; Perjury, 512. 
 Homicide, 258, 301. 
 Indictment, 340. 
 Bail and recognizance, 62. 
 Continuance, 111. 
 Evidence, 135. 
 Statutes, 580. 
 Larceny, 383, 393. 
 Witness, 648. 
 Indictment, 346. 
 Indictment, 351. 
 Homicide, 306. 
 Bail and recoguizauce, 70. 
 Larceny, 396.
 
 710 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Griswold v. Sedgwick, 1 Wend. 12G ; 6 Cow. 456 
 Grogan v. State, 44 Ala. 9 . 
 Gross V. State, 2 Carter, 1 35 
 
 " " 2 Carter, 329 . 
 
 Grubb T. State, 14 lb. 434 .. . 
 
 Gruber v. State, 3 West Va. 699 
 Grummond v. State, 10 Ohio, 510 
 Grumon v. Raymond, 1 Conn. 40 
 Guedel v. People, 43 111. 228 . 
 Guenther v. People, 24 N. Y. 100 
 
 Guess V. State, 1 Eng. 147 .. . 
 
 Guest V. State, 19 Ark. 405 . 
 
 Gumsey v. Lovell, 9 Wend. 819 . 
 
 Guston V. People, 61 Barb. 35 ; 4 Lans. 487 . 
 
 Arrest, 21, 23. 
 
 Nolle prosequi, 466. 
 
 Continuance, 113. 
 
 Trial, 597. 
 
 Trial, 593. 
 
 Insanity, 356. 
 
 Larceny, 400. 
 
 Arrest, 22. 
 
 Homicide, 272. 
 
 Embezzlement, 123; Trial, 630,- 
 
 Verdict, 640. 
 Abatement, 2. 
 Assault and battery, 47. 
 Arrest, 21. 
 Perjury, 501. 
 
 H 
 
 Hackett v. People, 54 Barb. 370 
 
 Hadden v. People, 25 N. Y. 373 
 
 Haggerty v. People, 53 N. Y. 476 ; G Lans. 332 
 
 Haggett V. Com. 3 Mete. 457 
 
 Hague V. State, 34 Miss. 616 
 
 Haight V. People, 50 N. Y. 392 
 
 Haile v. State, 1 Swan, 248 
 
 Hale V. State, 1 Cold. Tenn. 167 
 
 " " 11 Humph. 154 . 
 
 " " 21 Ind. 268 
 
 Halkem v. Com. 2 Va. Cas. 4 
 Hall V. People, 6 Parker, 671 
 Hall V. State, 9 Fla. 203 . 
 " 48 Ga. 607 
 
 " " 9 Ala. 827; 15 lb. 431 
 
 " " 40 Ala. 698 
 
 " " 8 Texas, 171 
 
 " " 11 Humph. 154 
 
 " 34 Ga. 208 
 " 8 Ind. 439 
 
 " " 3 Kelly, 18 
 
 " " 4 Harring. 132 
 
 Halliday v. People, 4 Gilman, 111 
 
 " 5 Gilman, 214 . 
 Hallock V. State, 11 Ohio, 400 . 
 Hall's Case, 6 Leigh, 615 .... 
 
 " 2 Gratt. 594 ... 
 
 Halsey v. State, 1 South. 323 
 Halstead's Case, 5 Leigh, 724 
 Hamblett v. State, 18 New Hamp. 384 
 Hamby v. State, 36 Texas, 523 ; 1 Green's Cr. Reps. 650. 
 
 Homicide, 279, 392. 
 
 Kidnapping, 371, 373. 
 
 Escape, 125 ; Sentence, 560. 
 
 Sentence, 557. 
 
 Homicide, 312. 
 
 Evidence, 168 ; Writ of error, 662. 
 
 Homicide, 393, 313. 
 
 Forgery and counterfeiting, 196. 
 
 Homicide, 355. 
 
 Trial, 631. 
 
 Larceny, 399. 
 
 Burglary, 94. 
 
 Assault and battery, 49. 
 
 Assault and battery, 54. 
 
 Bail and recognizance, 64, 66. 
 
 Evidence, 150 ; Homic. 280, 304. 
 
 Gaming, 245. 
 
 Homicide, 275. 
 
 Larceny, 413. 
 
 Larc.407 ; Trial,618, 626 ; Verd.640. 
 
 Indictment, 334; Judgment, 363; 
 
 Misdem. 437; Sunday, 584. 
 Sunday, 583. 
 
 Abor. 7; New tri. 464; Trial, 629. 
 Pardon, 495. 
 Perjury, 503. 
 New trial, 451. 
 New trial, 463. 
 
 Extortion, 172; Indictment, 335.. 
 Spirituous liquors, sale of, 573. 
 Larceny, 389. 
 Homicide, 267, 289, 301.
 
 TABLE OF CASES. 
 
 711 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Hamilton v. Com. 16 Penn. St. 129 
 Hamilton v. People, 29 MicL. 173 
 
 " " 57 Barb. 62"j 
 
 Hamilton v. State, 3G Ind. 28) . 
 " " 35 Miss. 214 
 
 " " 11 Ohio, 435 
 
 Hamlett v. Com. 3 Gratt. 82 
 Hampton v. State, 8 Ind. 336 
 
 " " 8 Humph. 69 
 
 " " 45 Ala. 83 
 
 Hance v. State, 8 Fla. 56 
 Haney t. State, 5 Wis. 529 
 Hany v. State, 4 Eng. 193 
 Hardin v. State, 26 Texas, 113 
 Hardy v. Com. 17 C4ratt. 592 
 Hardy v. State, 7 Mo. 607 
 Hare v. State, 4 How. Miss. 187 
 Harlan v. People, 1 Doug. 207 . 
 Harless v. U. S. 1 Morris, 169 
 Harman v. State, 3 Head, 243 
 Harrall v. State, 26 Ala. 52 . 
 
 Harrimau v. State, 2 Greene, Iowa, 270 
 
 Harrington v. People, 6 Barb. 608 
 
 Harrington v. State, 19 Ohio, N. S. 264 
 
 Harris v. People, 9 Barb. 664 ... 
 
 " " 6 N. Y. Supm. N. S. 206 
 
 Harris v. Purdy. 1 Stewart, 231 
 Harris v. State, 5 Texas, 11 
 
 " " 31 Ala. 362 . 
 
 " "47 Miss. 318 ; 1 Green's Cr. Reps. 601. 
 
 Harrison v. People, 50 N. Y. 518 . 
 Harrison v. State, 2 Cold. Teuu. 232 
 
 " " 24 Ala. 67 ... 
 
 '• " 37 Ala. 154 
 
 Harrol v. State, 89 Miss. 702 ... 
 
 Hart V. State, 20 Ohio, 49 . . . 
 
 Hartman v. Com. 5 Barr, 60 ... 
 
 Hartung v. People, 4 Parker, 319 
 
 " " 26 N. Y. 167; 28 N. Y. 400 
 
 " " 22 N. Y. 95 ; rev'g 4 Parker, 319 ; 
 
 26 N. Y. 107; 28 lb. 400 . 
 Harvey v. Com. 23 Gratt. 941 ; 2 Green's Cr. Reps. 654. 
 Harvey v. State, 40 Ind. 510 
 Harwood v. People, 26 N. Y. 190 
 Haskill v. Com. 3 B. Mon. 342 
 Haskins v. People, 16 N. Y. 344 
 Haskins v. State, 11 Ga. 92 ... 
 
 Hatcher v. State, 18 Ga. 460 . 
 
 Homicide, 305. 
 
 Evid. 168; Magistrate, 429 ; Trial, 
 
 608; Verd. 633; Wit. 649, 659. 
 Voting, 643, 644. 
 Assault and battery, 44. 
 Larceny, 382. 
 Larceny, 385. 
 
 Bail and recognizance, 59. 
 Assault and battery, 42 ; Forgery 
 
 and counterteiting, 205. 
 Larceny, 397. 
 Homicide, 303, 306. 
 Assault and battery, 45. 
 Sentence, 561. 
 Gaming, 245. 
 Assault and battery, 43. 
 Robbery, 549. 
 Trial, 625 ; Verdict, 637. 
 J^Tew trial, 452. 
 
 Forg. and counterf. 206, 211, 220. 
 Gaming, 238. 
 
 Assault and batt. 45 ; Evid. ISO. 
 Indictment, 327; Venue, change 
 
 of, 635, 036. 
 Trial, 604, 631. 
 Assault and battery, 45. 
 Evidence, 151. 
 
 Forgery and counterfeitiug, 196. 
 Indictment, 338; Perj'y, 505, 512. 
 Verdict, 640. 
 Gaming, 246. 
 Gaming, 245. 
 Homicide, 314. 
 Larceny, 373. 
 Assault and battery, 50. 
 Homicide, 314. 
 
 Relig. meet., disturb, of, 540, 541. 
 Escape, 124. 
 
 Forgery and counterfeiting, 213. 
 Conspiracy, 105, 106. 
 Evidence, 142 ; Witness, 653. 
 Former acquittal or convict. 225. 
 
 Statutes, 579, 580. 
 Larceny, 388. 
 Trial, 610, 613. 
 Lasciviousness, 419. 
 Spirituous liquors, sale of, 576. 
 Burgl. 92; Evid. 159; Larc. 404. 
 Forg.and coant.200,210; Trial, 009. 
 Assault and battery, 50.
 
 712 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Haught V. Com. 2 Va. Cns. 3 
 Hawkins v. Com. 14 B. Men. 3£5 
 Hawkins v. State, 13 Ga. 323 
 " 7 Mo. 190 
 " " 1 Porter, 475 
 
 Hay den v. Com. 10 B. Men. 125 
 
 Hayden v. State, 4 Blackf. 546 
 
 Hayen v. People, 3 Parker, 175 . 
 
 Hayes v. People, 5 Parker, 325 ; 25 N. Y. 300 
 
 Haynes v. State, 5 Humph. 120 . 
 
 Hays V. State, 13 Mo. 246 . 
 
 Hayward, Matter of, 1 Sandford. 701 
 
 Hazeu v. Com. 23 Peun. St. 355 
 Head v. State, 44 Miss. 731 
 Heald v. State, 36 Maine, 62 
 Heath's Case, 1 Rob. 735 
 Heed v. State, 25 Wis. 421 . 
 Heilbonn, In re, 1 Parker, 429 
 
 '■ " 9 Wend. 429 
 
 Helfrich v. Com. 33 Penn. St. 68 
 Hembree v. State, 52 Ga. 242 
 Hemmaker v. State, 12 Mo. 453 
 Henderson v. Com. 8 Gratt. 708 
 Henderson v. State, 14 Texas, 503 
 Hendrick v. State, 6 Texas, 341 
 Hendrick's Case, 8 Leigh, 707 
 Hendricks v. State, 26 lud. 493 
 Hendrickson agst. People, 10 N. Y. 13 
 Henley v. State, 6 Ohio, 400 
 Henrich, In re, 5 Blatchf. 414 
 Henrie v. State, 41 Texas, 573 
 Henry v. Com. 4 Bush, Ky. 427 
 Henry v. State, 18 Ohio, 32 . 
 
 " " 33 Ala. 389 
 
 " 39 Ala. 679 . 
 
 " " 1 Cold. Tenn. 331 
 
 " " 4 Humph. 270 
 
 Hensley v. Com. 1 Bush, Ky. 11 . 
 Herber v. State, 7 Texas, 69 
 Herd's Case, 4 Leigh, 674 
 Heme v. State, 39 Md. 552; 2 Green's Crim. Rep 
 Herring v. State, 1 Iowa, 205 
 Herriott ads. State, 1 McMullan, 126 
 Herron v. State, 35 Texas, 285 
 Hess V. State, 5 Ohio, 5 . 
 Hiekey t. State, 23 Ind. 21 . 
 Hicks V. People, 10 Mich. 395 . 
 Higginbotham v. State, 23 Texas, 574 
 
 Abatement, 1. 
 
 Officer, 488. 
 . Affray, 17, 18. 
 
 Evidence, 144. 
 
 Former acquittal or conviction, 
 230; Pardon, 495. ■ 
 
 Indictment, 350. 
 
 Mayhem, 437. 
 
 Writ of error, 662. 
 . Bigamy, 79, 80. 
 
 Misdemeanor, 439. 
 
 Spirituous liquors, sale of, 568. 
 
 Fugitives fi'om just. 235 ; Habeas 
 corpus, 252. 
 
 Conspiracy, 102, 105. 
 
 Homicide, 278, 301, 318. 
 
 Sentence, 556. 
 
 Homicide, 276 ; Xew trial, 446. 
 
 Larceny, 409. 
 
 Forgery and counterfeiting, 198; 
 Fugit. from justice, 232, 235. 
 
 Habeas corpus, 252. 
 
 Adultery, 12. 
 
 Perjury, 507. 
 
 Larceny, 385. 
 
 Misdemeanor, 438. 
 
 Forgery and counterfeiting, 197. 
 . Trial, 593. 
 
 Forg. and counterf. 202, 211, 221. 
 
 Peijur\', 508. 
 
 Homicide, 284. 
 . Verdict, 638. 
 
 Fugitives from justice, 233, 234. 
 
 New trial, 445. 
 
 Indictment, 328. 
 
 Assault and battery, 48. 
 
 Form.acq. or conv. 231 ; Trial, 593. 
 
 Larceny, 380. 
 
 Larceny. 386. 
 , Trial, 596. 
 
 Larceny, 403. 
 . New trial, 441, 458, 459. 
 
 Gaming, 243. 
 394. Assault and battery, 39. 
 . Trial, 627. 
 
 Dueling, 116, 117. 
 
 Gaming, 242. 
 
 Ev. 133 ; For. & coun. 204, 205,321. 
 
 Larceny, 376, 399. 
 
 Incest, 334. 
 
 Assault and battery, 33.
 
 TABLE OF CASES. 
 
 713 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Higgins V. People, 7 Lans. 110. 
 
 " " 8 N.Y. Supm.N.S.307;58N.Y. 377. 
 
 Higgins V. State, 7 Ind. 549 
 Hildebrand v. People, 56 N. Y. 394 ; 3 N. Y. Supm. 
 
 N. S. 82; 8 11). 19 . « . 
 
 Hill v. Com. 2 Gratt. 594 
 Hill V. People, 10 N. Y. 4(53 . 
 
 " " 20 N. Y. 363 
 
 " " 16 Mich. 851 . 
 
 Hill V. State, 1 Yerg. 76 . 
 
 " "41 Ga. 484 
 
 " " 1 Head, 454 
 
 " "4 Sneed, 443 . 
 
 *' "43 Ala. 335 
 
 " 3 Heisk. 317 
 
 " "17 Wis. 675 
 
 Hill's Case. 2 Gratt. 594 
 Hiuch V. State, 25 Ga. 699 
 Hinderer v. State, 38 Ala. 415 
 Hines v. State, 8 Humph. 597 
 
 " " 24 Ohio, N. S. 134 . 
 
 Hinkle v. Com. 4 Dana, 519 
 Hinton v. State, 24 Texas, 454 
 Hiss V. State, 24 Md. 556 
 Hitchcock V. Grant, 1 Root, 107 
 Hite V. State, 9 Yerg. 357 
 
 " " 9 Yerg. 382 . 
 
 Hitesman v. State, 48 Ind. 473 
 Hittner v. State, 19 Ind. 48 . 
 Hobbs V. State, 9 Mo. 845 
 Hoberg v. State, 3 Minn. 262 
 Hobson V. State, 44 Ala. 381 
 Hochrieter v. People, 2 N. Y. Ct. of App. Decis. 363; 
 
 1 Keyes, 66 . . . 
 
 Hock V. People, 3 Mich. 552 
 Hodges V. State, 5 Humph. 112 
 Hodgins v. State, 2 Kelly, 173 . 
 Hodgman v. Peoijle, 4 Denio, 235 
 Hoffler V. State, 16 Ark. 534 
 Hogan V. People, 2 N. Y. Supm. N. S. 535 
 Hogan V. State, 46 Miss. 274 
 Hogg V. State, 3 Blackf. 226 
 Holcomb V. Cornish, 8 Conn. 375 
 Holden v. State, 5 Ga. 441 . 
 Holland v. State, 12 Fla. 117 
 Holler V. State, 37 Ind. 57 . 
 HoUingsworth v. State, 5 Sneed, 518 
 Holly V. State, 10 Humph. 141 
 Holman v. State, 8 Eng. 105 
 Holmes v. Com. 25 Peun. St. 221 
 
 Larceny, 403. 
 Rape, 523, 525, 526. 
 Breach of the peace, 84. 
 
 Lar. 374 ; Writ of error, 663, 664. 
 
 Homicide, 274, 277, 288, 292, 295. 
 
 Certiorari, 97; Writ of error, 661. 
 
 Jury, 369. 
 
 Trial, 603. 
 
 False pretenses, 177. 
 
 Homicide, 300. 
 
 Larceny, 393. 
 
 Nuisance, 473. 
 
 Malicious mischief, 429. 
 
 Rape, 521. 
 
 Trial, 605, 610; Witness, 655. 
 
 New trial, 465. 
 
 Homicide, 279. 
 
 Embezzlement, 119. 
 
 New trial, 454. 
 
 Trial, 628. 
 
 Gaming, 238, 244. 
 
 Homicide. 315. 
 
 Larceny, 374. 
 
 Bastardy, 74. 
 
 Former acquittal or convict. 226. 
 
 Indictment, 348,351 ; Larceny, 372. 
 
 Perjury, 509. 
 
 Homicide, 309. 
 
 Forgery and counterfeiting, 20 i. 
 
 New trial, 447 ; Trial, 626. 
 
 Malicious mischief, 429. 
 
 Evidence, 139; Trial, 007. 
 
 Perjury, 508. 
 
 Libel, 422. 
 
 New trial, 441. 
 
 Spirituous liquors, sale of, 574. 
 
 Assault and battery, 55. 
 
 Voting, 644. 
 
 Trial, 617. 
 
 Larceny, 402. 
 
 Profane swearing, 517. 
 
 Homicide, 304. 
 
 Homicide, 277, 280, 301. 
 
 Homicide, 291. 
 
 Religious meeting, disturb, of, 540. 
 
 Homicide, 307. 
 
 New trial, 458. 
 
 Accessory, 10; Trial, 6)3.
 
 714 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Holmes, Ex parte, 12 Vt. 631 
 Holmes v. Jennison, 14 Pet. 540 . 
 Holmes v. People, 5 Oilman, 478 
 Holmes v. State, 1 Iowa, 150 
 
 " " 23 Ala. 17 
 
 Holsenbake v. State, 45 Ga. 43 
 Holton V. State, 2 Fla. 476, 500 
 Hood V. State, 44 Ala. 81 
 Hook, Matter of, 55 Barb, 257 
 Hooker v. Com. 13 Gratt. 763 . 
 Hooper v. State, 8 Humph. 93 
 Hope V. Com. 9 Mete. 134 
 Hopkins v. Com. 50 Pean. St. 9 
 Hopkins v. People, 12 Wend. 76 
 Hopkins v. Plainfield, 7 Conn. 286 . 
 Hopkins v. Walter, 11 111. 542 . 
 Hopkinson v. People, 18 III. 264 
 Hopper V. Com. 6 Gratt. 684 
 Hopps V. People, 31 111. 385 
 Hopson, Matter of, 40 Barb. 34 . 
 Home V. State, 5 Ark. 349 . 
 " 37 Ga. 80 
 
 " "1 Kansas, 42 . 
 
 Horton v. State, 32 Texas, 79 
 
 " 8 Eng. 62 . 
 
 " " 47 Ala. 58 
 
 Hoskins v. Tarrance, 5 Blackf. 417 . 
 Hostetter v. Com. 12 B. Mon. 1 . 
 Houghtaliug v. Kelderhouse, 1 Parker, 241 
 Houghton V. Bachman, 47 Barb. 388 
 Houser v. People, 46 Barb. 33 
 Houston V. People, 63 111. 185 
 Houston V. State, 38 Ga. 165 
 " " 8 Eug. 66 
 
 " " 4 Greene, 437 
 
 Howard v. State, 11 Ohio, N. S. 328 
 
 32Ind. 478 
 Howe V. State, 10 Ind. 492 
 Howell V. Com. 5 Gratt. 664 . 
 
 Howell V. People, 13 N. Y. Supm. N. S. 620 
 Howell V. State, 5 Ga. 48 
 
 37 Texas, 591 
 Howerton v. State, Meigs, 262 
 How-ie V. State, 1 Ala. 113 
 Howlet V. State, 5 Yerg. 145 
 Hoye V. State, 39 Ga. 718 
 
 Hoyt V. State, 50 Ga, 313 
 Hudson V. State, 1 Blackf. 317 
 
 Fugitives from justice, 233. 
 Fugitives from justice, 233. 
 Writ of error, 662. 
 
 Bastardy, 75. 
 
 Homicide, 318; Trial, 614, 
 
 Evidence, 149. 
 
 Trial, 605, 626, 
 
 Perjury, 499, 507, 
 
 Disorderly person, 116. 
 
 Arson, 34; Trial, 605. 
 
 Forgery and counterfeiting, 203. 
 
 Larceny, 395. 
 
 Homicide, 284, 
 
 Receiving stolen property, 535. 
 
 Bastardy, 73. 
 
 Bail and recognizance, 71, 
 
 Homicide, 819. 
 
 Witness, 655, 
 
 Insanity, 355, 357, 358, 359. 
 
 Jurisdiction, 367. 
 
 Forgery and counterfeiting, 196. 
 
 Trial, 610, 
 
 Trial, 619. 
 
 Forgery and counterfeiting, 201. 
 
 Gaming, 245. 
 
 Grand jury, 248 ; Trial, 604. 
 
 Larceny, 384. 
 
 Bail and recognizance, 59. 
 
 Pardon, 495 ; Witness, 652. 
 
 Officer, 489. 
 
 Indictment, 342. 
 
 Xuisance, 481. 
 
 Burglary, 93. 
 
 Larceny, 404, 
 
 Trial, 620, 
 
 Rape, 521, 
 
 Witness, 658, 
 
 Malicious trespass, 434. 
 
 Arson, 26; Trial, 609; Witness, 
 656, 659. 
 
 Verdict, 638. 
 
 Assault and battery, 56. 
 
 Forgery and counterfeiting, 200. 
 
 New trial, 446. 
 
 Bail and recognizance, 64. 
 
 Gaming, 238. 
 
 Continuance, 112; Homicide, 290; 
 New trial, 459, 
 
 Embezzlement, 121. 
 
 Gr. jury, 247; Homicide, 272 ; In- 
 dictment, 346; Trial, 595,
 
 TABLE OF CASES. 
 
 715 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Hudson V. State, 9 Yerg. 408 
 
 Huflfman v. Com. 6 Rand. 685 . . , 
 
 Huffiuan v. State, 29 Ala. 40; 28 lb. 48; 30 lb. 532 
 Huggins V. State, 41 Ala. 893 . 
 
 Hughes V. Com. 17 Gratt. 565 
 Hughes V. State, 12 Ala. 458 
 " " 1 Eng. 132 . 
 
 " 35 Ala. 351 
 " "8 Humph. 75 
 
 " "4 Iowa, 554 
 
 Haling v. State, 17 Ohio, N. S. 583 
 Hull V. Hull, 2 Strobh. Eq. 174 . 
 Hull V. State, 22 Wis. 580 
 Hummel v. State, 17 Ohio, N. S. 628 
 Humphreys v. State, 45 Ga. 100 
 
 Hunt V. Com. 13 Gratt. 737 
 Hunt, Exparte^ 5 Eng. 284 . 
 Hunt V. People, 3 Parker, 509 . 
 Hunt V. State, 23 Ala. 44 
 Hunter v. People, 1 Scam. 453 
 Hunter v. State, 29 Ind. 80 . 
 
 " 1 Head, 160 
 Hunter's Case, 7 Gratt. 641 . 
 Huntington v. Schultz, Harper, 453 
 Hurd V. People, 25 Mich. 405 
 
 Hurd V. Seeker, 12 Vt. 364 
 Hurd's Case, 5 Leigh, 715 
 Hurell V. State, 5 Humph. 08 
 Hussy V. People, 47 Barb. 503 
 Hutching v. People, 39 N. Y. 454 
 Hutchins v. State, 28 Ind. 34 
 
 " " 12 Ohio, 198 . 
 
 Hyde v. Chapin, 2 Cush. 77 . 
 Hyde v. State, 16 Texas, 445 
 
 Larceny, 405; New trial, 461. 
 Forgery and counterfeiting, 210. 
 Gaming, 240; Trial, 618, 620. 
 Evidence, 139; Receiving stolen 
 
 property, 536, 539. 
 Larceny, 402. 
 Accessory, 9. 
 Escape, 124. 
 
 Evidence, 129; Trial, 612. 
 Larceny, 406, 408. 
 Sentence, 555. 
 Grand jury, 247. 
 Adultery, 12. 
 Rape, 529. 
 Larceny, 390. 
 Insanity, 355 ; Intoxication as an 
 
 excuse for crime, 360. 
 Larceny, 380. 
 Pardon, 494. 
 
 Evidence, 136, 140; Homicide,313. 
 Homicide, 314. 
 Venue, change of, 635. 
 Burglary, 91. 
 
 Unwholesome pro v'us, sale of, 631. 
 Evidence, 138. 
 Arrest, 19, 20. 
 Homicide, 289, 292, 317, 321 ; 
 
 Trial, 008. 
 Bastardy, 70. 
 Continuance, 112. 
 Receiving stolen property, 535. 
 Assault and battery, 47. 
 Gaming, 237. 
 Bigamy, 78. 
 
 Forgery and counterfeiting, 213. 
 Bastardy, 72. 
 Continuance, 112. 
 
 Ike v. State, 23 Miss. 525 
 lilies V. Knight, 3 Texas, 312 
 Ingram v. State, 27 Ala. 17 
 " '-7 Mo. 293 
 
 Innis V. State, 42 Ga. 473 
 Irby Y. State, 32 Ga. 490 . 
 Isaac V. State, 2 Head, 458 
 Isaacs V. State, 48 Miss. 234 
 
 Indictment, 343. 
 Malicious mischief, 429. 
 Bail and recognizance, 69. 
 Bill of exceptions, 83. 
 Rape, 527. 
 Homicide. 309. 
 Trial, 004. 
 Conspiracy, 102.
 
 716 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Isely V. State, 8 Blackf. 403 
 Israel's Case, 4 Leigh, 675 
 Ivey V. State, 13 Ala. 276 
 
 Subject and Page. 
 
 Gaming, 246. 
 
 Indictment, 346 ; Trespass, 589. 
 
 Dueliuo-, 117. 
 
 Jackson v. Com. 23 Gratt. D19 ; 2 Green's Cr. R. 
 Jackson v. People, 2 Scam. 231 
 Jackson v. State, 51 Ga. 402 
 " " 4 Ind. 560 
 
 " " n Ohio, N. S. 104 
 
 " " 14 Ind. 327 
 
 "1 Carter, 189 . 
 " " 45 Ga. 198 
 
 " " 21 Ind. 79 
 
 Jackson v. Weisiger, 2 B. JMon. 214 . 
 Jacob V. State, 3 Humph. 493 
 Jacobs V. Com. 5 Serg. & Rawle, 315 
 James Eagan, Matter of, 6 Parker, 675 
 James v. State, 45 Miss. 572 , 
 Jane v. Com. 2 Mete. Ky. 30 
 Jane v. State, 3 Mo. 61 
 Jarnagiu v. State, 10 Yerg. 529 . 
 Jeffries v. Com. 12 Alien, 145 
 Jeffries v. State, 40 Ala. 381 
 Jenkins, Ex parte, 2 Wall. Jr. 521 
 Jenkins y. State, 41 Miss. 582 
 Jenks V. State, 39 Ind. 1 
 Jenning v. Com. 17 Pick. 80 
 Jennings v. Com. 105 Mass. 586 
 Jennings v. State, 9 Mo. 852 
 Jerry v. State, 1 Blackf. 395 . 
 Jhons V. People, 25 Mich. 499 
 Jim V. State, 15 Ga. 535 
 
 " "4 Humph. 289 
 
 John V. State, 1 Ala. 95 
 " " 23 Wis. 504 
 
 " " 24 Miss. 569 . 
 
 " " 3 Ala. 290 . 
 
 Johns V. State, 19 Ind. 421 . 
 Johnson v. Com. 9 Bush, 224 
 
 "24 Gratt. 555 
 Johnson v. People, 22 111. 314 
 " "4 Denio, 364 
 
 " " 65 Barb. 342 . 
 
 " " 55K Y. 512 
 
 Johnson v. Randall, 7 Mass. 340 . 
 Johnson v. State, 48 Ga. 116 . 
 " " 17 Texas, 515 . 
 
 " "35 Ala. 363 
 
 650. Witness, 657. 
 Bigamy, 79. 
 
 Assault and battery, 53, 54. 
 . Gaming, 246. 
 
 Larceny, 384. 
 
 Larceny, 399. 
 
 Perjury, 504. 
 . Trial, 630. 
 
 Trial, 631. 
 . Libel, 421. 
 
 Homicide, 305. 
 
 Indictment, 330. 
 
 Jurisdiction, 368. 
 
 Sentence, 555. 
 
 Evidence, 148; Trial, 619. 
 
 Indictment. 333. 
 
 New trial, 453, 460. 
 
 Sentence, 555. 
 
 Former acquittal or convic. 231. 
 .' Habeas corpus, 350, 351, 353. 
 
 Larceny, 410. 
 
 Continuance, 113. 
 
 Indictment, 326 ; Nuisance, 475. 
 
 Larceny, 415. 
 
 Assault and battery, 49. 
 
 Indictment, 327 ; Homicide, 269. 
 
 Bill of exceptions, 82. 
 
 Evidence, 143; New trial, 447. 
 
 Verdict, 638. 
 
 Certiorari, 96. 
 
 F(n-gery and counterfeiting, 201. 
 
 Indictment, 348. 
 
 Sentence, 554; Venue, ch. of, 634. 
 
 Accessory, 9. 
 
 Evidence, 163. 
 
 Larceny, 376. 
 
 Conspiracy, 102. 
 
 Larceny, 403. 
 
 Larceny, 410. 
 
 Larceny, 413. 
 
 Bastardy, 75. 
 
 Arson, 24, 30; Evidence, 131. 
 
 Assault and battery, 33. 
 
 Assault and battery, 42, 43.
 
 TABLE OF CASES. 
 
 7J7 
 
 Title of Case and Report. 
 
 
 Subject and Page. 
 
 Johnson 
 
 V. State, .SO Ga. 426 
 
 
 Assault and battery, 48. 
 
 u 
 
 " 14 Ga. 55 . 
 
 
 Assault and battery, 49 ; New trial, 
 449; Witness, 657. 
 
 (( 
 
 '' 2 Dutch. 313 
 
 
 Conspiracy, 102, 105; Misdemean- 
 or, 440. 
 
 (1 
 
 " 29 Ala. 62 . 
 
 
 Conspiracy, 108 ; False pretenses, 
 189; Indictment, 340. 
 
 11 
 
 " 46 Ga. 269 . 
 
 
 Evidence, 127. 
 
 u 
 
 " 44 Ala. 414 
 
 
 Evidence, 127. 
 
 <1 
 
 " 17 Ala. 618 
 
 
 Evidence, 132, 135, 153. 
 
 (t 
 
 " 41 Texas, 65 . 
 
 
 False pretenses, 175. 
 
 " 
 
 " 11 Ind. 481 . 
 
 
 False pretenses, 180. 
 
 n 
 
 " 7 Mo. 188 
 
 . 
 
 Felony, 190. 
 
 t( 
 
 " 35 Ala. 370 . 
 
 
 Forgery and counterfeiting, 205, 
 216, 220, 222. 
 
 \ u 
 
 " 4 Sneed, 614 
 
 
 Gaming, 236. 
 
 l( 
 
 " 8 Ga. 451 
 
 
 Gaming, 238. 
 
 11 
 
 " 19 Ala. 527 
 
 
 Gaming, 289. 
 
 il 
 
 " 8 Eng. 684 . , . 
 
 
 Gaming, 245. 
 
 u 
 
 " 47 Ala. 9 . 
 
 
 Homicide, 295. 
 
 (( 
 
 " 27 Texas, 758 . 
 
 
 Homicide, 309. 
 
 l( 
 
 " 46 Ala. 212 
 
 
 Indictment, 351. 
 
 l( 
 
 " 86 Texas, 375 ; 1 Green's Or. R 
 
 347. 
 
 Larceny, 381. 
 
 11 
 
 " 39 Texas, 398 
 
 
 Larceny, 887. 
 
 u 
 
 " 47 Miss. 671 ; 1 Green's Cr. R. 
 
 341. 
 
 Larceny, 895. 
 
 (1 
 
 " 37 Ala. 457 
 
 
 Malicious mischief, 433. 
 
 l( 
 
 " 17 Ohio, 593 . 
 
 
 Rape, 524. 
 
 It 
 
 " 47 Ala. 10, 62 
 
 
 Trial, 604. 
 
 (( 
 
 " 4 Greene, 65 
 
 
 Witness, 649. 
 
 Johnson 
 
 V. U. S. 3 McLean, 89 
 
 
 Habeas corpus, 249, 252; Indict- 
 ment, 348. 
 
 Johnston v. Com. 1 Bibb, 598 
 
 
 Writ of error, 662. 
 
 Johnston v. State, 7 Smed. & Marsh. 58 . 
 
 
 Gaming, 242. 
 
 u 
 
 " 1 Mart. & Yerg. 129 
 
 
 Gaming, 245. 
 
 Johnston's Case, 5 Gratt. 680 
 
 
 Homicide, 259. 
 
 Jones' Case, 2 Gratt. 555 
 
 
 Information, 354 ; Misdem'r, 440. 
 
 Jones V. 
 
 Com. 75 Penn. St. 408 . 
 
 
 Intoxication as an excuse, 360. 
 
 a 
 
 " 17 Gratt. 568 . 
 
 
 Larceny, 402. 
 
 Jones V. 
 
 Hungerferd, 4 Gill & Johns. 402 
 
 
 Arson, 25. 
 
 Jones V. 
 
 People, 6 Parker, 126 
 
 
 Burglary, 94 ; Witness, 648. 
 
 Jones V. 
 
 Rice, 18 Pick. 44a 
 
 
 Misdemeanor, 438. 
 
 Jones ag 
 
 St. Spicer, 6 Cow. 391 
 
 
 Habeas corpus, 252. 
 
 Jones V. 
 
 State, 11 Sraed. & Marsh. 815 . 
 
 
 Assault and battery, 51. 
 
 (( 
 
 " 11 New Hamp. 269 . 
 
 
 Burglary, 91, 92. 
 
 (( 
 
 " 5 Sneed, 346 
 
 
 Forgery and counterfeiting, 215. 
 
 (( 
 
 " 11 Ind. 357 . 
 
 
 Forgery and counterfeiting, 215. 
 
 u 
 
 " 15Ark. 2G1 
 
 
 Former acquittal or convic. 223. 
 
 11 
 
 " 26 Ala. 155 . 
 
 
 Gaming, 245. 
 
 1 1 
 
 " 2Blackf. 475 
 
 
 Grand jury, 247; Trial, 594, 612. 
 
 1( 
 
 " 35 Ind. 122 . 
 
 
 Homicide, 267. 
 
 il 
 
 " 14 Mo. 409 
 
 
 Homicide, 810.
 
 718 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Jones V. State, 6 Humph. 435 
 " " 29 Ga. 594 
 
 " " 13 Ala. 15.3 
 
 " " 49Ind. 549 
 
 " "30 Miss. 653 
 
 " " 1 Kelly, 610 
 
 48 Ga. 163 ; 2 Green's Crim. Rep. 586 
 3 Heisk. 445 . 
 
 Jordan v. Com. 25 Gratt. 943 
 Jordan v. State, 32 Miss. 383 . 
 Joseph V. State, 5 How. Miss. 20 . 
 Josslyn V. Com. 6 Mete. 236 . 
 Juaraqui v. State, 28 Texas, 625 . 
 Judge V. Kerr, 17 Ala. 328 . 
 Judge V. State, 8 Ga. 173 . 
 Judson V. Blanchard, 4 Conn. 557 
 Jumpertz v. People, 21 111. 375 
 Jupitz V. People, 34 111. 516 . 
 
 Indictment, 352. 
 
 Intoxication as an excuse, 360. 
 
 Larceny, 394 
 
 Larceny, 407. 
 
 Larceny, 409. 
 
 New trial, 441; Trial, 591; Wit- 
 ness, 650. 
 
 New trial, 459. 
 
 Rape, 530. 
 
 Robbery, 546. 
 
 E\'idence, 148. 
 
 Indictment, 329: Trial, 593. 
 
 Burglary, 91, 95. 
 
 Perjury, 505. 
 
 Bastardy, 72. 
 
 Trial, 609, 611. 
 
 Bastardy, 74. 
 
 Evidence, 134, 282, 292. 
 
 Evidence, 150; Receiving stolen 
 property, 538 ; Trial, 621. 
 
 K 
 
 Kain v. State, 8 Ohio, 306 
 Kalle V. People, 4 Parker, 591 
 Kanavan's Case, 1 Maine, 226 
 Kane, In re, 14 How. U. S. 103 . 
 
 Kane v. People, 8 Wend. 203 . 
 
 " " 3 Wend. 363 . 
 
 Kaufman v. State, 49 Ind. 248 
 Kavanaugh v. State, 41 Ala. 399 
 Kawich v. Davis, 4 Ala. 328 
 Kazer v. State, 5 Ham, 280 . 
 Kean v. Com. 10 Bush, 190 
 Keaton v. State, 7 Ga. 189 . 
 Keator v. People, 32 Mich. 484 . 
 
 Keefe v. People, 40 N. Y. 348 
 Keefe v. State, 19 Ark. 190 
 Keefer v. State, 4 Ind. 246 
 Keef haver v. Com. 2 Penn. 240 . 
 Keenan v. Com. 44 Penn. St. 55 
 Kegg V, State, 10 Ohio, 75 
 Keithler v. State, 10 Sm. & Marsh. 
 Kellenbeck v. State, 10 Md , 431 . 
 Keller v. State, 12 Md, 322 . 
 Kelley v. People, 55 N. Y. 565 . 
 Kelley v. Wright, 1 Root, 83 . 
 
 193 
 
 Homicide, 268, 
 
 Trial, 609, 
 
 Dead body, 115; Misdemean. 437. 
 
 Fugitives from justice, 233 ; Ha- 
 beas corpus, 250. 
 
 Indictment, 352; Nuisance, 473; 
 Sentence, 557. 
 
 Indictment, 353. 
 
 Evidence, 166. 
 
 Escape, 125. 
 
 Bastardy, 74, 
 
 Arson, 31, 
 
 Evidence, 135. 
 
 New trial, 450, 
 
 Evidence, 169; Perjury, 503, 509; 
 Witness, 659. 
 
 Verdict., 639. 
 
 Assault and battery, 33, 
 
 Larceny, 397, 
 
 Bail and recognizance, 68. 
 
 Intoxication as an excuse, 361. 
 
 Forgery and counterfeiting, 203. 
 
 Accessory, 9; New trial, 449, 462. 
 
 Arson, 26. 
 
 Statutes, 580. 
 
 Conspiracy, 109; Evidence, 153. 
 
 Arrest, 21.
 
 TABLE OF CASES. 
 
 719 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Kelly V. People, 13 N. Y. Siipm. N. S. 509 
 Kelly V. State, 3 Smed. & Marsh. 518 
 
 Kelsoe v. State, 47 Ala. 573 .... 
 Kendrick v. State. 10 Humph. 479 
 Kennedy v. Com. 3 Bibb, 490 , 
 " " 2 Mete. Ky. 36 . 
 
 " 2Va. Cas. 510 
 Kennedy v. People, 39 N.Y. 345 ; 6 N. Y. Tr. of Ap. 19. 
 
 " " 44 111. 283 
 
 Kenney v. State, 5 R. I. 385 . 
 
 Kenniston v. Powe, 16 Maine, 38 . 
 Kenny v. People, 31 N. Y. 330 . 
 Kenyon v. People, 26 N. Y. 203; 5 Parker, 254 
 Kerr v. People, 42 111. 307 . 
 Kerah v. State, 24 Ga. 191 
 
 Key V. Com. 3 Bibb, 495 
 Kilbourn v. State, 9 Conn. 500 . 
 Kilpatrick v. Com. 31 Penn. St. 198 . 
 Kilpatrick v. People, 5 Denio, 277 
 Kinchelow v. State, 5 Humph. 9 
 King V. Com. 2 Va. Cas. 78 
 King V. People, 12 N. Y. Supm. N. S. 297 
 King V. State, 40 Ala. 314. 
 
 " "5 How. Miss. 750 
 
 " "2 Carter, 523 
 
 Kingen v. State, 50 Ind. 557 . 
 >' 45 Tnd. 519 
 " " 46 Ind. 132 . 
 
 Kingsbury agst. Clark, 1 Conn. 406 
 Kingsbury's Case, 106 Mass. 223 
 Kinney v. People, 2 Gilman, 540 . 
 Kinney v. State, 38 Ala. 224 . 
 Kirby v. State, 3 Humph. 289 
 
 " '• 2Yerg. 383 . 
 
 Kirk V. State, 13 Smed. & Marsh. 406 
 
 " " 14 Ohio, 511 . 
 
 Kirkland v. State, 43 Ind. 146; 2 Green's Cr. R. 706 
 Kirschner v. State, 9 Wis. 140 
 Kirsey v. Fike, 29 Ala. 206 . 
 Kit V. State, 11 Humph. 167 
 Kite V. Com. 11 Mete. 581 
 Klein v. People, 31 N. Y. 229 
 Kline v. Rickert, 8 Cow. 226 . 
 Kluget V. State, 1 Kansas, 365 . 
 Klum V. State, 1 Blackf. 377 . 
 Knickerbocker v. People, 43 N. Y. 177 
 
 Larceny, 378. 
 
 Indictment, 334 ; Insanity, 356 ; 
 Intoxication as au excuse for 
 crime, 360 ; Sentence, 558, 559. 
 Evidence, 136, 139; Homi. 280. 
 Evidence, 135. 
 Assault and battery, 39. 
 Forgery and counterfeiting, 305. 
 New trial, 446. 
 Evidence, 161; Indictment, 331; 
 
 Homi. 269, 373, 282, 290, 303. 
 Trial, 610. 
 
 Commitment, 99, 100. 
 Bastardy, 72, 75. 
 Intoxication as an excuse, 360. 
 Seduction, 552. 
 Perjury, 507. 
 Forcible entry and detainer, 194; 
 
 Indictment, 335. 
 Bail and recognizance, 71. 
 
 Information, 354. 
 
 Homicide, 277. 
 Trespass, 589. 
 
 Evidence, 158. 
 Homicide, 305. 
 
 Trial, 611. 
 
 Homicide, 285. 
 
 Homicide, 304; Trial, 594, 601. 
 
 Indictment, 341. 
 
 Evidence, 136. 
 
 Homicide, 319; Trial, 624. 
 
 New trial, 444. 
 
 Bail and recognizance, 70. 
 
 Fugitives, 234. 
 
 Trial, 593. 
 
 Religious meeting, disturb, of, 540. 
 
 Evidence, 127; New trial, 463. 
 
 Homicide, 289. 
 
 Indictment, 328. 
 
 New trial, 452. 
 
 Assault and battery, 33. 
 
 Evidence, 131. 
 
 Larceny, 378. 
 
 Robbery, 547. 
 
 Sentence, 557, 560. 
 
 Verdict, 040. 
 
 Forcible entry and dct'r, 191, 194. 
 
 Trial, 592. 
 
 Affray, 17. 
 
 Larceny, 407.
 
 720 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Knot V. Gay, 1 Root. CG 
 Knowles v. People, 15 Midi. 408 . 
 Knowlesv. State, 3 Day, 103 . 
 Koontz V. State, 41 Texas, 570 . 
 Koop V. People, 47 111. 327 . 
 Kriel v. Com. 5 Bush, 3G2 . 
 
 Kruget V. State, 1 Kansas, 365 
 Kuckler v. People, 5 Parker, 213 
 Kunkle v. State, 32 lud. 220 . 
 
 Arrest, 20. 
 
 Evidence, 154, 159. 
 
 Indictment, 346, 353, 354. 
 
 Indictment, 336. 
 
 Spirituous liquors, sale of, 567. 
 
 Insanity, 355 ; Intoxication as an 
 
 excuse for crime, 361. 
 Assault and battery, 50. 
 Statutes, 580. 
 Assault and bat. 48 ; Trespass, 589. 
 
 La Beau v. People, 6 Parker, 371 ; affi'd 34 N. Y. 223. 
 
 Lacy V. State, 45 Ala. 80 ... . 
 
 La Jeune Eugenie, 2 Mason, 409 . 
 
 Lake v. People, 1 Parker, 495 ; affi'd 12 N. Y. 358 . 
 
 Lambert v. People, 7 Cow. 103 
 
 9 Cow. 577 . 
 
 " " 29 Micb. 71 . . . 
 
 Lambert v. State, 23 Miss. 323 
 
 Lambert's Case, 9 Leigh, 603 .... 
 Lambertson v. People, 5 Parker, 200 
 Lampson v. Landon, 5 Day, 508 
 Lane v. Com. 59 Penn. St. 371 
 
 Lane v. State, 16 Ind. 14 ... . 
 
 Lanergan v. People, 6 Parker, 209 ; 50 Barb. 266 ; 39 
 
 N. Y. 39 . 
 
 Lange, Ec parte, 18 AVallace, 163; 2 Green's C. R. 103. 
 Langtry v. State, 30 Ala. 536 . 
 Lanham v. Com. 3 Bush, Ky. 528 
 Lankin v. State, 42 Texas, 415 
 Laport V. State, 6 Mo. 2 J8 
 Larkin v. People, 61 Baib. 226 
 Larned v. Com. 12 Mete. 240 
 Laughlin v. State, 18 Ohio, 99 
 Lawrence v. State, 4 Yerg. 145 . 
 Lawson v. Buzines, 3 Ilarring. 416 . 
 Lawson v. State, 30 Ala. 14 
 , " 20 Ala. 65 
 Lawton v. Sun Mut. Ins. Co. 2 Cush. 500 
 Leake v. State, 10 Smed. & Marsh. 144 
 Leary v. State, 6 Black f. 403 
 
 Homicide, 266, 272, 284 ; Witness, 
 654, 657. 
 
 Rape, 523. 
 
 Slave trade, 561, 564. 
 
 Evidence, 169; Homicide, 269, 
 273, 282 ; Insanity, 357, 359. 
 
 Certiorari, 97. 
 
 Conspiracy, 104, 105; False pre- 
 tenses, 182. 
 
 Robbery, 548. 
 
 Homicide, 292, 294, 297. 
 
 Dueling, 117. 
 
 Sodomy, 565. 
 
 Arrest, 22. 
 
 Trial, 619. 
 
 Forgery and counterfeiting, 221. 
 
 Evidence, 136, 152; Homicide, 
 256; Indictment, 338; Intoxic. 
 as an excuse, 360, 361, 362. 
 
 Habeas corp. 250 ; Sentence, 559. 
 
 Bigamy, 80. 
 
 New trial, 449. 
 
 Larceny, 394. 
 
 Venue, change of, 636. 
 
 Jurisdiction, 366. 
 
 Burglary, 90, 91. 
 
 Rape, 524 ; Witness, 653. 
 
 Larceny, 401. 
 
 Arrest, 20. 
 
 Assault and battery, 32. 
 
 Lasciviousness, 418, 419, 420. 
 
 Barratry, 71. 
 
 New trial, 463. 
 
 Extortion, 172.
 
 TABLE OF CASES. 
 
 721 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Leary v. State, 39 Ind. 544 . . . s 
 
 Lee V. State, 42 Ind. 153 . 
 
 " " 1 Cold. Tenn. C3 . . . 
 
 " "26 Ark. 2G0 ... 
 
 Leeper v. Com. Litt. Sel. Cas. 103 . 
 Leggett V. State, 15 Ohio, 283 . 
 Leiber v. Com. 9 Bush, 11 . 
 Leland, Matter of, 7 Abb. N. S. 64 
 Lemons v. State, 4 West Va. 755 ; 1 Green's Crim. 
 Reps. 667 . . . . . 
 
 Lenahan v. People, 5 N. Y. Sapm. N. S. 265 
 Leobold v. State, 83 Ind. 484 ... 
 
 LeoTii V. State, 44 Ala. 110 
 Lesslie v. State, 18 Ohio, N. S. 390 . 
 Lester v. State, 9 Mo. 658 
 
 Lever v. Com. 15 Serg. & Rawle, 93 . 
 Leving v. State, 13 Ga. 513 
 Lewelling v. State, 18 Texas, 538 
 Lewis V. State, 3 Head, 127 
 
 " 33 Ga. 131 . 
 " " 16 Conn. 32 
 
 " 9 Smed. &Marsh. 115 
 
 " 30 Ala. 54 . . . 
 
 " 41 Ala. 414 
 Lewis V. United States, 1 Morris, 199 
 Lightfoot V. People, 16 Mich. 507 
 Liles V. State, 30 Ala. 24 . . 
 
 Lindenmuller y. People, 33 Barb. 548 
 Lindsay v. Com. 2 Va. Cas. 345 
 Lindsay v. State, 15 Ala. 43 
 Lindsley v. People, 6 Parker, 233 
 Linker's Case, 9 Leigh, 608 
 Linnay v. State, 6 Texas, 1 . 
 Lisle V. State, 6 Mo. 426 . 
 Litbgow V. Com. 2 Va. Cas. 297 
 Little V, Com. 25 Gratt. 921 
 Littlejohn v. Com. 2 Va. Cas. 297 . 
 Livingston v. Com. 14 Gratt. 592 
 Locke V. State, 3 Kelly, 534 . 
 
 " 32 New Hamp. 106 
 Lockett V. State, 47 Ala. 42 ; 1 Greens Crim. Reps. 461. 
 Lodano v. State, 25 Ala. 64 . 
 Loeffner v. State, 10 Ohio, K S. 598 
 Logan V. State, 24 Ala. 183 . 
 Logan's Case, 5 Gratt. 693 
 Logue V. Com. 38 Penn. St. 265 
 Lohman v. People, 1 Comst. 379; 3 Barb. 216 
 Long V. Rogers, 17 Ala. 540 . 
 Long V. State, 1 Swan, 287 
 
 11 Fla. 295 . 
 46 
 
 Nuisance, 478. 
 
 Former acquittal or coavic. 231. 
 
 Homicide, 262, 306. 
 
 Trial, 606. 
 
 Bail and recognizance, 70. 
 
 Larceny, 411. 
 
 Homicide, 292. 
 
 Fugitives from justice, 234. 
 
 Evidence, 170; Witness, 660. 
 
 Evidence, 126. 
 
 False pretenses, 184. 
 
 Rape, 524. 
 
 Former acquittal or convic. 225. 
 
 Homicide, 265, 266 ; New trial, 449, 
 
 458. 
 Larceny, 374. 
 New trial, 459. 
 
 Gaming, 242; Indictment, 341. 
 Arrest, 22; Homicide, 256. 
 Assault and battery, 47. 
 Burglary, 91. 
 
 Homicide, 294 ; Trial, 597. 
 Rape, 519. 
 Toll, 586. 
 
 Spirituous liquors, sale of, 566. 
 Burglary, 94; Evidence, 167. 
 Homicide, 284. 
 Sunday, 583. 
 
 Former acquittal or convic. 224. 
 Continuance, 112. 
 Trial, 602. 
 Gaming, 243. 
 Malicious mischief, 432. 
 New trial, 444. 
 New trial, 465. 
 Evidence, 135, 286. 
 Trial, 598. 
 Homicide, 288, 323. 
 Bastardy, 73. 
 Larceny, 415. 
 
 Concealed weap. 101 ; Trial, 604. 
 Indictment, 342. 
 Insanity, 359 ; Trial, 612. 
 Gaming, 244. 
 Sentence, 559. 
 Homicide, 316. 
 
 Misdemeanor, 439; Wit. 656, 660. 
 Assault and battery, 33. 
 Accessory, 9; Evideuce, 155. 
 Larceny, 380.
 
 722 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 LoBg T. State, 27 Ala. 33 . 
 
 " " 12 Ga. 293 
 
 " " 46 Ind. 582 . 
 
 Xoomis V. Edgerton, 19 Wend. 419 
 Lojjez V. State, 34 Texas, 133 
 Lorance v. State, ] Carter, 359 
 Lord T. State, 16 New HamiD. 335 
 
 " " 20 New Hamp. 404 
 
 " " 18 New Hamp. 173 . 
 
 Lorton v. State, 7 Mo. 55 . , . 
 
 Love V. State, 32 Ark. 336 . 
 Lovell V. State, 12 Ind. 13 
 Low V. Hall, 47 N. Y. 104 . 
 Low V. Mitchell, 18 Maine, 373 . 
 Low V. People, 2 Parker, 37 . 
 Lowenberg v. People, 5 Parker, 414; 27 N. Y. 336. 
 
 Lowenstein v. People, 54 Barb. 299 
 Lowenthal v. State, 32 Ala. 589 
 Lowry v. State, 1 Mo. 733 
 Loyd V. State, 43 Ga. 331 
 Ludwick V. State, 9 Fla. 404 
 Luke V. State, 49 Ala. 30 
 Lumm V. State, 3 Ind. 393 
 Luning v. State, 1 Chand. 178 
 Luster v. State, 11 Humph. 169 
 Lutz V. Com. 29 Penn. St. 441 
 Lyles V. State, 41 Texas, 172 
 Lyman v. State, 47 Ala. 686 . 
 Lynch v. Com. 77 Penn. St. 205 
 Lynch v. People, 38 III. 494 . 
 Lynch v. State, 9 Ind. 541 
 Lynes v. State, 5 Porter, 336 
 
 " "36 Miss. 617 
 
 Lyon's Case, 2 Wallace, Jr., 149 
 Lyons v. People, 08 111. 271 
 
 License, 425. 
 
 Robbery, 546, 547; Tr. 609,613,615. 
 
 Trial, 617. 
 
 Misdemeanor, 437. 
 
 Evidence, 158. 
 
 Bail and recognizance, 69. 
 
 Gaming, 237, 246 ; Verdict, 637, 641. 
 
 Larceny, 391. 
 
 Trial, 591, 607. 
 
 Larceny, 397. 
 
 Evidence, 148. 
 
 Incest, 325. 
 
 False pretenses, 178. 
 
 Bastardy, 75. 
 Larceny, 389. 
 Ev. 150; Homicide, 256; Sentence, 
 
 558 ; Trial, 599. 
 Lasciv. 416; Misdemeanor, 438. 
 Embezzlement, 119. 
 Gaming, 236. 
 
 Receiving stolen property, 534. 
 Assault and battery, 49, 57. 
 Arson, 30. 
 
 Bail and recognizance, 61. 
 Evidence, 131, 160. 
 New trial, 451. 
 Homicide, 267. 
 New trial, 448. 
 
 Former acquittal or convic. 231. 
 Homicide, 360; Insanity, 359. 
 Bail and recognizance, 61. 
 Verdict, 637. 
 Abatement, 1. 
 Evidence, 145, 148. 
 Trial, 601. 
 Burg. 86 ; Trial, 616 ; Verdict, 639. 
 
 M 
 
 Macdonnell, In re, 11 Blatchf. 79, 170; 3 Green's 
 Crim. Reps. 151, 166 .... 
 Mackesey v. People, 6 Parker, 114 
 Mackey V. People, 2 Col. 13 . . . . 
 
 Maconnekey v. State, 5 Ohio, N. S. 77 . 
 Madden v. State, 1 Kansas, 340 . 
 
 Maddox v. State, 41 Texas, 305 . 
 Madison v. Com. 2 A. K. Marsh. 131 
 Magee v. State, 33 Ala. 575 . 
 
 Mabau v. Berry, 5 Mo. 31 . 
 Mahan v. State, 10 Ohio, 233 
 
 Fugitives from justice, 233, 334. 
 
 Accessory, 8; Arson, 37; Wit. 650. 
 
 Trial, 619, 624. 
 
 lutox. as an excuse for crime, 363. 
 
 Evidence, 130; New trial, 455. 
 
 Larceny, 411. 
 
 Bail and recognizance, 66. 
 
 Assault and battery, 53. 
 
 Perjury, 499. 
 
 Grand jury, 247.
 
 TABLE OF CASES. 
 
 723 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Maher v. People, 10 Mich. 213 .. . 
 
 " " 24 111. 241 . 
 
 Maher v. State, 1 Porter, 265 .. . 
 
 " "3 Minn. 444 . 
 
 Mahoney v. People, 5 K Y. Supm. N. S. 329 ; affi'd 
 
 59 N. Y. 659 . 
 Mains v. State, 8 Eng. 285 
 
 " " 42 Ind. 327 . 
 
 Malone v. State, 8 Ga. 403 
 
 " " 14 Ind. 219 . 
 
 Maloney v. People, 38 111. 62 
 Malpass v. Caldwell, 70 N. C. 130 . 
 Manaway v. State, 44 Ala. 375 . 
 Mandeville v. Guernsey, 51 Barb. 99 
 Mann v. People, 35 111. 467 
 Manuel v. People, 48 Barb. 548 
 Maples V. State, 3 Heisk. 408 
 March v. People, 7 Barb. 391 
 Marcus v. State, 26 Ind. 101 
 Maria v. State, 28 Texas, 698 
 Mariner v. Dyer, 2 Greenlf. 165 . 
 Markham v. State, 25 Ga. 53 
 Markley v. State, 10 Mo. 291 
 Mark's Case, 4 Leigh, 658 . 
 Marks v. State, 3 Ind. 535 
 Marston v. Jenness, 12 New Hamp. 137 
 Martha v. State, 26 Ala. 72 
 Martin v. State, 29 Ala. 30 . 
 
 " " 28 Ala. 71 
 
 " " 40 Texas, 19 
 
 " " 39 Ala. 523 
 
 " " 12 Miss. 471. 
 
 ^' " 47 Ala. 564 
 
 " " 6 Humph. 204 
 
 " " 13 111. 341 
 
 " " 9 Mo. 383 . 
 
 " " 24 Texas, 61 
 
 " " 16 Ohio, 364 
 
 " 51 Ga. 567 
 Martinez v. State, 41 Texas, 136, 164 
 Martin's Case, 2 Leigh, 745 
 Marx V. People, 63 Barb. 618 
 Mary v. State, 24 Ark. 44 
 
 " 5 Mo. 71 
 Mask V. State, 33 Miss. 405 
 Maskill V. State, 8 Blackf. 299 
 Mason v. People, 26 N. Y. 200 . 
 
 " " 43 Ala. 532 . 
 
 2 Col, 373 
 Mathena v. State, 20 Ark. 70 
 Mathews v. State, 33 Texas, 117 . 
 
 Assault & battery, 48, 55; Ev. 138. 
 Homicide, 319. 
 Jury, 370. 
 New trial, 454. 
 
 Robbery, 545 ; Writ of error, 664. 
 
 New trial, 463. 
 
 Nuisance, 478. 
 
 Evidence, 138. 
 
 Indictment, 343. 
 
 Bastardy, 75. 
 
 Fugitives from justice, 335. 
 
 Forg. and counterfeiting, 214, 219. 
 
 Arrest, 20. 
 
 Bastardy, 75. 
 
 New trial, 464; Trial, 614. 
 
 Evidence, 147. 
 
 Conspiracy, 102, 105, 110. 
 
 Larceny, S75. 
 
 Homicide, 307. 
 
 Bastardy, 75. 
 
 Larceny, 401. 
 
 Indictment, 333. 
 
 Burglary, 91. 
 
 Indictment, 345. 
 
 Bastardy, 73, 74. 
 
 Arson, 28; Trial, 624. 
 
 Arson, 27. 
 
 Arson, 28, 30; Ev. 152; Verd. 640. 
 
 Assault and battery, 50. 
 
 Evidence, 139. 
 
 Habeas corpus, 251. 
 
 Homicide, 819; Trial, 617. 
 
 Misdemeanor, 438. 
 
 New trial, 441. 
 
 Riot, 544. 
 
 Statutes, 581. 
 
 Trial, 597. 
 
 Trial, 626. 
 
 Larceny, 391, 401. 
 
 Forg. and counterfeiting, 215, 231. 
 
 Evidence, 167. 
 
 Arson, 23, 27. 
 
 Homicide, 303; Trial, 609. 
 
 Homicide, 287. 
 
 Indictment, 343. 
 
 Burglary, 88, 91. 
 
 Burglary, 94. 
 
 Larceny, 414. 
 
 Forgery and counterfeiting, 214. 
 
 Assault and battery, 43.
 
 724 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Mathews v. State, 33 Texas, 102 . 
 
 " 4 Ohio, N. S. 539 . 
 " " 24 Ark. 484 . 
 
 Maurer v. People, 43 N. Y. 1 
 Maurice v. Com. 108 Mass. 433 . 
 Maxwell v. Hardy, 8 Pick. 560 
 Maxwell v. State, 3 Heisk. 420; 1 Green's Crim 
 
 Reps. 696 . 
 May V. People, 60 111. 119 
 May V. State, 14 Ohio, 461 . 
 
 " 9 Ala. 167 . 
 Mayer v. State, 33 Ind. 203 . 
 Mayers v. State, 11 Humph. 40 . 
 " 2 Eng. 174 . 
 " " 2 Eng. 68 
 
 Mayes v. State, 33 Texas, 340 
 Maynard v. State, 46 Ala. 85 
 Mayo V. State, 30 Ala. 32 . 
 Mayor v. Beasly, 21 Ala. 240 
 McAfee v. State, 31 Ga. 411 
 McAllister v. State, 17 Ala. 434 . 
 McAlpiye v. State, 47 Ala. 78 
 McAuley v. State, 3 Greene, 435 . 
 McBride v. State, 10 Humph. 615 . 
 
 " "2 Eng. 374 
 
 McBryde v. State, 34 Ga. 202 
 McCall V. Parker, 13 Mete. 372 . 
 McCann v. Com. 14 Gratt. 570 
 McCann v. People, 6 Parker, 629 
 McCann v. State, 13 Smed. & Marsh. 471 
 
 " "9 Smed. & Marsh. 465 . 
 
 McCarron v. People, 13 N. Y. 74 
 McCartney v. State, 3 Ind. 353 . 
 McCarty v. People, 51 111. 231 
 McCartyv. State, 44 Ind. 214; 2 Green's Cr. Reps. 715. 
 
 " " 1 Blackf. 238 . 
 
 McCauley v. State, 26 Ala. 135 
 MeCauley v. U. S. 1 Morris. 486 . 
 McCh)skey v. People, 5 Parker, 299, 308 
 McComas v. State, 11 Mo. 116 . 
 McCombs V. State, 8 Ohio, N. S. 643 
 McConnell v. State. 46 Ind. 298; 2 Green's Cr. R. 723. 
 McCord V. People, 46 N. Y. 470 . 
 McCorkle v. State, 1 Cold. Tenn. 333 
 McCoy V. State, 3 Eng. 451 
 
 " "25 Texas, 33 ... 
 
 McCue V. Com. 78 Penn. St. 185 . 
 McCulloch V. State, 48 Ind. 109 
 McCullough V. Com. 67 Penn. St. 30 
 McCune's Case, 2 Rob. 77 . 
 McDade v. People, 29 Mich. 50 . 
 
 False pretenses, 186. 
 
 Robbery, 547. 
 
 Statutes, 582. 
 
 Trial, 605. 
 
 Former acquittal or conviction, 230. 
 
 Bastardy, 74. 
 
 Assault and battery, 54. 
 
 Verdict, 638. 
 
 Forgery and counterfeiting, 216. 
 
 Peddlers, 496. 
 
 Sunday. 584. 
 
 Indictment, 328. 
 
 New trial, 465. 
 
 Statutes, 580. 
 
 False pretenses, 186. 
 
 Larceny, 395, 408, 411. 
 
 Embezzlement, 121 ; Indict. 340. 
 
 Larceny, 380. 
 
 Assault and battery, 56. 
 
 Homicide, 264 ; Trial, 595. 
 
 Trial, 614, 619. 
 
 Assault and battery, 38. 
 
 Indictment, 334. 
 
 Mayhem, 437. 
 
 Evidence, 128. 
 
 Bastardy, 72. 
 
 Former acquittal or conv. 224, 
 
 New trial, 448. 
 
 Indictment, 345. 
 
 New trial, 460. 
 
 Jurisdiction, 367. 
 
 Forgery and counterfeit. 215, 221. 
 
 Evidence, 151. 
 
 Accessory, 10. 
 
 Bail and recognizance, 64, 66, 67. 
 
 Gaming, 239; Trial, 611. 
 
 Venue, change of, 635. 
 
 Jury, 370; Robbery, 545. 
 
 New trial, 442 ; Rape, 530. 
 
 Rape, 524, 525. 
 
 Contempt, 110. 
 
 False pretenses, 176. 
 
 False pretenses, 177. 
 
 Assault and battery, 51, 53. 
 
 Homicide, 274. 
 
 Homicide, 281. 
 
 Homicide, 271. 
 
 Arrest, 20, 21 ; Grand jury, 248. 
 
 New trial, 465. 
 
 Arson, 27.
 
 TABLE OF CASES. 
 
 725 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 McDade v. State, 20 Ala. 81 
 McDaniel v. Com. 6 Bush, 326 . 
 McDaniel v. State, 8 Sin. & Marsh. 401 
 
 « " 35 Ala. 390 . 
 
 " " 30 Ga. 853 
 
 McDermott v. People, 5 Parker, 103 
 McDermott v. State, 13 Ohio, N. S. 833 
 McDonald, Ex 'parte, 3 Whart. 440 
 McDonald v. Hobby, 1 Root, 154 
 McDonald v. State, 8 Mo. 283 
 McFall V. Com. 3 Mete. Ky. 394 
 Mc Parian v. People, 13 111. 9 
 McFarland v. State, 24 Ohio, N. S. 329 
 McGary v. People, 45 N. Y. 153; 3 Lans. 237 
 McGehee v. State, 26 Ala. 154 
 McGinnis v. State, 9 Humph. 43 
 McGlotherlin v. State, 3 Cold. Tenn. 333 
 McGowau V. State, 9 Yerg. 184 . 
 McGregg v. State, 4 Blackf. 101 
 McGregor v. State, 1 Carter, 233 
 McGrory v, Peoijle, 48 Barb. 466 
 McGuffie V. State, 17 Ga. 497 
 McGuire v. Com. 3 Wall. 387 
 McGuire v. People, 5 N. Y. Supm. X. S. 683 
 McGuire v. State, 37 Ala. 160, 161 . 
 
 " " 50 Ind. 384 
 
 " " 7 Humph. 54 
 
 McHugh V. State, 31 Ala. 317 
 Mclntyre agst. People, 9 N. Y. 38 . 
 McKay v. State, 13 Mo. 493 
 McKee v. People, 36 N. Y. 113 
 « " 33 N. Y. 339 . 
 
 McKenzie v. State, 6 Eng. 594 
 McKlnney y. People, 3 Oilman, 541 
 McKissick v. State, 3 Texas, 356 
 McLain v. State, 10 Yerg. 341 
 McLane v. State, 4 Ga. 335 
 
 McLaughlin v. Com. 4 Ravvle, 464 
 McLaughlin v. Whitten, 33 Maine, 31 
 McLean v. State, 10 Ala. 673 
 
 " 8 Mo. 153 
 McLeod V. State, 35 Ala. 395 
 McMillan v. State, 13 Mo. 30 
 McMurray v. State, 6 Ala. 334 . 
 McNair v. Com. 36 Penn. St. 383 
 McNeal v. Weeds, 3 Blackf. 485 
 
 Indictment, 348. 
 
 Gaming, 236. 
 
 Continuance, 112; Evidence, 151; 
 Homicide, 254, 360, 395, 399, 
 300; Larceny, 381, 382. 
 
 Gaming, 241. 
 
 Verdict, 637. 
 
 Assault and battery, 49. 
 
 Rape, 525, 537. 
 
 Pardon, 495. 
 
 Bastardy, 74. 
 
 Larceny, 383. 
 
 Jurisdiction, 365. 
 
 Bail and recognizance, 59, 71. 
 
 Rape, 524. 
 
 Arson, 25, 28. 
 
 Officer, 491. 
 
 Former acquittal or convic. 337. 
 
 Evidence, 148. 
 
 Gaming, 341. 
 
 Indictment, 340; Trial, 601, 630. 
 
 Perjury, 503. 
 
 Evidence, 165; Trial, 616. 
 
 Verdict, 637. 
 
 Spirituous liquors, sale of, 566. 
 
 Evidence, 153. 
 
 Adultery, 13 ; Forg'y and coun. 307. 
 
 Rape, 530. 
 
 Voting, 643. 
 
 Homicide, 396. 
 
 Witness, 649. 
 Continuance, 114. 
 
 Insanity, 358; Homicide, 375. 
 Former acquittal or convic. 338 ; 
 
 Sentence, 559. 
 False preten. 175, 183; lusan. 359. 
 Trial, 631 ; Witness, 654. 
 Gaming, 343. 
 New trial, 454. 
 Arson, 37; Judgment, 363; New 
 
 trial, 465. 
 Larceny, 389. 
 Bastardy, 76. 
 Evid. 137, 103; Homi. 383, 280, 
 
 393, 395 ; Witness, 654. 
 Trial, 613. 
 
 Adultery, 15 ; Sentence, 556. 
 Homicide, 380, 391. 
 Perjury, 513. 
 Evidence, 133. 
 Arson, 34.
 
 726 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 McNeil V. State, 47 Ala. 498 
 McNevins v. People, 61 Barb. 307 . 
 McPherson v. State, 9 Yerg. 279 
 
 " " 22Ga. 478 
 
 McQuillan v. State, 8 Smed. & Marsh. 
 McQuoid V. People, 3 Gilnian, 76 
 
 587 
 
 Mc Waters v. State, 10 Mo. 167 
 
 McWhirter's Case, 8 Gratt. 594 
 
 Mead v. Hawes, 7 Cow. 322 
 
 Meaderv. State, 11 Mo. 363 
 
 Medaris v. State, 10 Yerg. 239 
 
 Meeks v. State, 51 Ga. 429 . 
 
 Melton V. State, 3 Humph. 389 
 
 Mendum v. Com. 6 Rand. 704 
 
 Mercer v. State, 17 Ga. 146 
 
 Meredith v. Com. 18 B. Mon. 49 
 
 Merkle v. State, 27 Ala. 139 
 
 Merrill v. Prince, 7 Mass. 396 
 
 Merrill v. State, 45 Miss. 651 
 
 Merriweather v. State, 33 Texas, 789 
 
 Merwin v. People, 26 Mich. 298; 1 Green's Crim. 
 
 Reps. 349 .... . 
 
 Messner v. People, 45 N. Y. 1 
 
 Metzger In re, 1 Barb. 248 ; 1 Parker, 108 
 
 Meyer v. State, 19 Ark. 156 . 
 
 Michie v. Michie's Admr. 17 Gratt. 109 
 
 Mickle V. State, 27 Ala. 20 . 
 
 Middleton v. State, Dudley, 275 
 
 Miffin V. Com. 5 Watts & Serg. 461 . 
 
 Milan v. State, 24 Ark. 346 
 
 Miles V. Brown, 3 Barb. 37 
 
 Miller v. Finkle, 1 Parker, 374 . 
 
 Miller v. Foley, 28 Barb. 630 
 
 Miller v. People, 39 111. 457 
 
 " " 52 N. Y. 304 . 
 
 "5 Barb. 203 . 
 Miller v. State, 45 Ala. 24 
 
 " 40 Ala. 54 . 
 
 " 2 Scam. 233 
 " " 25 Wis. 384 . 
 
 " " 37 Ind. 432 
 
 " " 8 Ind. 325 
 
 " 33 Miss. 356 
 Mill's Case, 7 Leigh, 751 
 Mills V. Com. 13 Penn. St. 631 . 
 Mills V. McCoy, 4 Cow. 406 . 
 Mills V. State, 20 Ala. 86 . 
 
 Trial, 629. 
 
 Homi. 304 ; Writ of error, 665. 
 
 Trial, 617. 
 
 Verdict, 637. 
 
 Abatement, 1, 2; Trial, 605. 
 
 Former acquittal or conviction,. 
 
 231 ; Indictment, 337. 
 Riot, 543, 544. 
 Homicide, 254, 264. 
 Arrest, 21. 
 Trial, 593. 
 Indictment, 328. 
 Assault and battery, 53, 54. 
 Bill of exceptions, 82 ; Libel, 422. 
 Continuance, 112. 
 Trial, 601 ; Verdict, 642. 
 Homicide, 317. 
 
 Spirituous liquors, sale of, 573. 
 Bastardy, 75. 
 Larceny, 391. 
 Larceny, 393. 
 
 Larceny, 389. 
 
 Evid. 164; Hom. 290: Sentence^ 
 
 555 ; Writ of error, 664. 
 Fugitives from justice, 232. 
 New trial, 444. 
 Sunday, 584. 
 Evidence, 129. 
 False pretenses, 179. 
 Conspiracy, 102. 
 Trial, 598. 
 Habeas corpus, 249. 
 Sentence, 558, 559, 561. 
 Warrant, 646. 
 Evidence, 128, 146, 152, 165, 166; 
 
 Robbery, 548 ; Verdict, 638. 
 Forgery and counterfeiting, 204. 
 Lasciviousness, 419. 
 Arson, 29. 
 Evidence, 141, 142 ; Larceny, 401 ;. 
 
 Statutes, 581. 
 Forgery and counterfeiting, 209. 
 Homicide, 261. 
 Homicide, 306, 319. 
 Trial, 628. 
 Voting, 645. 
 New trial, 462. 
 Abortion, 5. 
 
 Bail and recognizance, 68, 
 Gaming, 239.
 
 TABLE OF CASES. 
 
 r2T 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Milner v. State, 30 Ga. 1:57 
 
 Mimms v. State, 16 Ohio, N. S. 221 . 
 
 Miner v. People, 58 111. 59 ; 1 Green's Grim. Reps. 655. 
 
 Ming V. Truett, 1 Mont. 322 
 
 Minor v. State, 1 Blackf. 236 . 
 
 Mitchell V. State, 41 Ga. 527 
 
 '• " 8 Yerg. 514 ... 
 
 " "5 Yerg. 340 . 
 
 Mitchum v. State, 11 Ga. 615 
 
 Mobley v. State, 46 Miss. 501 . 
 Moffatt V. State, 6 Eng. 169 . 
 Moffett V. State, 2 Humph. 99 . 
 Monday v. State, 32 Ga. 672 . 
 Mondragon v. State, 33 Texas, 480 
 Monroe v. State, 5 Ga. 85 . 
 
 " " 24 Miss. 54 . 
 
 Monte V. Com. 8 J. J. Marsh. 132 
 Montgomery v. State, 40 Ala. 684 
 
 "11 Ohio, 424 . 
 " " 10 Ohio, 220 
 
 Moody V. Com. 4 Mete. Ky. 1 
 Moody V. People, 20 111. 315 
 Moody V. State, 7 Blackf. 424 
 Mooney v. State, 33 Ala. 419 
 Moore v. Com. 6 Mete. 243 . 
 
 " "8 Barr, 200 
 
 Moore, Ex parte, 30 Ind. 197 . 
 Moore v. State, 18 Ala. 532 
 
 " " 17 Ohio, N. S. 515 . 
 
 " " 30 Ala. 550 
 
 "13 Ala. 764 . 
 
 13 Smed. & Marsh. 260 . 
 " " 26 Ala. 88 . 
 
 Mooerv. State, 44 Ala. 15 
 Moore's Case, 9 Leigh, 639 . 
 Moran's Case, 9 Leigh, 651 
 Morgan v. State, 33 Ala. 413 
 " "34 Texas, 677 . 
 
 " " 31 Ind. 193 . 
 
 " " 11 Ala. 389 
 
 " 13Fla. 671, 
 Morman v. State, 24 Miss. 55 
 Morrell v. People, 32 111. 429 . 
 Morrell v. Quarles, 35 Ala. 544 . 
 Morrill v. State, 38 Wis. 428 . 
 Morris v. People, 1 Parker, 441 . 
 Morris Run Coal Company v. Barclay Coal Company, 
 
 68 Penn. St. 173 
 Morris v. State, 8 Smed. & Marsh. 763 . 
 
 New trial, 459. 
 
 Homicide, 284, 387. 
 
 Adultery, 12, 14, 15. 
 
 Extortion, 171. 
 
 Bail and recognizance, 66. 
 
 Assault and battery, 39. 
 
 Homicide, 260 ; New trial, 463. 
 
 Homicide, 300. 
 
 Homicide, 270, 28G; New trial, 
 
 446; Trial, 612. 
 Rape, 531. 
 Gaming, 343. 
 "Witness, 651. 
 Assault and battery, 54. 
 Larceny, 406. 
 Homicide, 387, 390, 398, 303, 305 ; 
 
 New trial, 444, 446, 456. 
 Indictment, 345. 
 Gaming, 343. 
 Evidence, 159. 
 Homicide, 394, 397, 306. 
 Perjury, 498. 
 Dueling, 117. 
 Abduction,. 3. 
 Indictment, 330, 348. 
 Assault and battery, 53, 56. 
 Adultery, 13. 
 False pretenses, 179. 
 Homicide, 300. 
 Assault and battery, 53. 
 Evidence, 160; Rape, 535. 
 Gaming, 339. 
 Homicide, 393, 397. 
 Indictment, 351. 
 Nuisance, 480. 
 Larceny, 410. 
 Bigamy, 79. 
 Trial, 603. 
 
 Assault and battery, 48. 
 Former acquittal or convic. 336. 
 Homicide, 394. 
 Incest, 324, 335. 
 Larceny, 395. 
 
 Homicide, 304 ; Verdict, 638. 
 Peijury, 507, 509. 
 Fugitives from justice, 234. 
 Peddlers, 496. 
 Vagrant, 634. 
 
 Conspiracy, 103. 
 
 Forgery and counterfeiting, 331.
 
 728 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Morris y. State, 1 Blackf. 37 
 
 " " 31 Ind. 189 . 
 
 " " 7 Blackf. 607 
 
 " " 25 Ala. 57 . 
 
 Morrisey v. People, 11 Mich. 327. 
 Morrison v. State, 5 Ohio, 438 
 Morse v. State, 6 Conn. 90 
 
 " "35 Ala. 421 . 
 
 Morton v. State, 30 Ala. 527 
 Moses V. State, 11 Humph. 232 
 Moss V. State, 6 How. Miss. 298 . 
 Mount V. Com. 1 Duvall, Ky. 99 
 Mount V. State, 14 Ohio, 295 
 
 Mountain v. State, 40 Ala. 344 . 
 Muir V. State, 8 Blackf. 154 . 
 Mullen V. State, 45 Ala. 66 
 
 " " 45 Ala. 43 . 
 
 Mulligan v. People, 5 Parker, 105 
 Mullins V. People, 24 N. Y. 399 
 Munden v. State, 37 Texas, 353 . 
 Munson v. People, 5 Parker, 16 
 Murphy v. Com. 1 Mete. Ky. 365 
 
 " " 23 Gratt. 960; 2 Green's Crim 
 
 Reps. 662 
 Murphy v. Glidden, 34 Maine, 196 
 Murphy v. People, 6 N. Y. Supm. N. S. 309 
 37 111.447 . 
 
 " " 5N. Y. Supm. K S. 302 . 
 
 Murphy v. State, 50 Ga. 150 
 
 " " 1 Carter, 366; 1 Smith, 2G1 
 
 " " 6 Ind. 499 
 
 " " 3 Head, 249 
 
 Murray v. Com. 13 Mete. 514 
 Murray v. State, 36 Texas, 42 ; 1 Green's Cr. R. 654 
 
 " " 18 Ala. 727 
 
 Murray's Case, 5 Leigh, 720 . 
 Murrell v. State, 46 Ala. 89 
 Myers v. People, 4 N. Y. Supm. N. S. 292 
 Myers v. State, 33 Texas, 525 
 
 Judgment, 362; New trial, 442. 
 
 Sunday, 584. 
 
 Trial, 602; Voting, 644. 
 
 Trial, 615, 624. 
 
 Larceny, 385. 
 
 Evidence, 141. 
 
 Evidence, 163. 
 
 Indictment, 327; Homi. 284, 294. 
 
 Forgeiy and counterfeiting, 217. 
 
 Trial, 601. 
 
 Bail and recognizance, 69. 
 
 Forg. and counterfeiting, 206, 221. 
 
 Former acquittal or conviction, 
 
 224, 230; Sentence, 554. 
 Burglary, 95 ; Evidence, 143. 
 Perjury, 500. 
 Assault and battery, 53. 
 Sentence, 555. 
 Assault and battery, 34. 
 Certiorari, 96. 
 Homicide, 317. 
 Nuisance, 486. 
 Trial, 603. 
 
 Witness, 655. 
 
 Bastardy, 74. 
 
 Evidence, 129 ; Trial, 608. 
 
 Homicide, 294. 
 
 Trial, 615. 
 
 Adultery, 14. 
 
 Spirituous liquors, sale of, 567. 
 
 Trial, 613. 
 
 Usury, 633. 
 
 Sentence, 557. 
 
 Assault and battery, 55. 
 
 Larceny, 398 ; Trial, 615. 
 
 Forgery and counterfeiting, 206. 
 
 Evidence, 152. 
 
 Indictment, 329, 347. 
 
 Homicide, 309. 
 
 N 
 
 Nail V. State, 34 Ala. 262 
 Nash V. State, 2 Greene, 286 
 Nation v. People, 6 Parker, 258 
 Neales v. State, 10 Mo. 498 
 Ned V. State, 7 Porter, 187 . 
 
 Accessory, 9; Escape, 124, 125. 
 Homicide, 265. 
 Evidence, 166. 
 
 Spirituous liquors, sale of, 570. 
 Former acquittal or conviction, 
 224; Trial, 598, 611.
 
 TABLE OF CASES. 
 
 729 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Needham v. State, 1 Texas, 139 . 
 Neely v. People, 13 111. 687 . 
 Nelms V. State, 13 Sm. & Marsh. 500 
 
 JSTels V. State, 2 Texas, 280 . 
 Nelson v. People, 5 Parker, 39 
 
 Nelson v. State, 7 Humph. 542 
 Nesbit V. State, 43 Ga. 238 
 Nevin v. Laclue, 3 Denio, 437 
 Newell V. Com. 2 Wash. 88 
 Newland v. State, 30 Ind. Ill 
 Newman v. People, 63 Barb. 630 ; 6 Laus. 460 
 Newman v. State, 49 Ala. 9 . 
 Newton v. Com. 8 Mete. 535 
 Nicholls, Matter of, 2 South. 539 
 Nicholls V. State, 2 South. 542 
 " " 2 South. 539 
 
 Nichol's Case, 7 Gratt. 589 .. . 
 
 Nichols V. People, 17 N, Y. 114 . 
 Nichols V. State, 8 Ohio, N. S. 435 
 Nicholson v. State, 2 Kelly, 363 . . . 
 
 " " 38 Md. 140 . 
 
 " " 18 Ala. 529 
 
 Nixon V. State, 2 Smed. & Marsh. 497 . 
 Noakes v. People, 25 N. Y. 380; 5 Parker, 291 
 Noble V. People, Breese, 29 . . . 
 
 Noble V. State, 22 Ohio, N. S. 541 ; 1 Green's Crim 
 
 Reps. 662 .... 
 
 Nolan V. State, 19 Ohio, 131 
 Noles V. State, 24 Ala. 672 . 
 
 Nolty V. State, 17 Wis. 668 
 Nomaque v. People, Breese, 109 
 Norfleet v. State, 4 Sneed, 340 . 
 Norris v. State, 3 Humiih. 333 
 Northcot V. State, 42 Ala. 330 . 
 Northrup v. Brush, Kirby, 108 
 Northrup y. People, 37 N. Y. 203 
 Norton v. Ladd, 5 New Hamp. 203 
 Norton v. Peoijle, 8 Cow. 137 
 Norton v. State, 4 Mo. 461 . 
 Nugent V. State, 19 Ala. 540 
 " 18 Ala. 521 
 
 Gaming, 242. 
 
 Trial, 597. 
 
 Homicide, 294 ; New trial, 451 ; 
 
 Trial, 601. 
 Trial, 604. 
 Assault and battery, 43; Indict. 
 
 338; Jurisdic. 365; Trial, 630. 
 Homicide, 292, 309, 313. 
 Homicide, 297. 
 
 Spirituous liquors, sale of, 566. 
 Bribery, 85. 
 Trespass, 589, 
 Witness, 650, 652. 
 Evidence, 144. 
 Sentence, 558. 
 Indictment, 353. 
 Certiorari, 97. 
 
 Bail & recog. 65 ; Indictment, 352. 
 Indictment, 334. 
 Larceny, 374. 
 
 Intox. as an excuse for crime, 361. 
 Bail and recognizance, 64. 
 Evidence, 148. 
 
 Forgery and counterfeiting, 208. 
 Trial, 590. 
 
 Forg. and counterfeiting, 201,207. 
 Witness, 648. 
 
 Incest, 324. 
 
 Trial, 620. 
 
 Indictment, 326, 330 ; Judgment, 
 
 362 ; Homicide, 265, 275, 318. 
 Officer, 490. 
 Indictment, 327. 
 Trial, 602. 
 New trial, 442. 
 Malicious mischief, 433. 
 Abatement, 1. 
 Jurisdiction, 365. 
 Larceny, 384. 
 Accessory, 9. 
 Larceny, 378. 
 Abatement, 1 ; Rape, 529. 
 Rape, 626, 532. 
 
 o 
 
 Oakley v. State, 40 Ala. 373 
 
 O'Briau V. Com. 9 Bush, Ky. 333 ; 6 lb. 563 
 
 Larceny, 401. 
 Trial, 611.
 
 730 
 
 TABLE OF CASES. 
 
 Title of Case and Report, 
 
 Subject and Page. 
 
 O'Brien v. People, 36 N. Y. 276 ; 2 N. Y. Trans, of 
 App. 5 ; affi'g 48 Barb. 274 . 
 
 O'Connell v. Com. 7 Mete. 414 
 O'Connell v. State, 18 Texas, 343 
 O'Connor v. State, 30 Ala. 9 
 Ogden V. State, 12 Wis. 532 
 Oglesby v. State, 39 Texas, 53 
 Ogletree v. State, 28 Ala. 693 
 
 Oldham v. State, 5 Gill, 90 . 
 O'Leary v. People, 4 Parker, 187 
 
 Olive V. Com. 5 Bush, 376 . 
 Oliver v. State, 5 How. Miss. 14 
 
 " " 37 Ala. 134 . 
 
 " " 17 Ala. 587 
 
 O'Mara v. Com. 75 Penn. St. 424 
 O'Meara v. State, 17 Ohio, N. S. 515 
 O'Neal V. State, 47 Ga. 229 . 
 O'Neale v. Com. 17 Gratt. 582 . 
 O'Neill V. State, 16 Ala. 65 . ' . 
 Ooton V. State, 5 Ala. 463 
 Ormsby v. People, 53 N. Y. 472 
 Ortner v. People, 11 N. Y. Supm. N. S. 323 
 548 .... . 
 
 Ortwein v. Com. 76 Penn. St. 414 
 Osborn v. State, 24 Ark. 629 . 
 Osborne v. People, 2 Parker, 583 
 Osgood v. People, 39 N. Y. 449 
 Otmer v. People, 76 111. 149 
 Overstreet v. State, 46 Ala. 30 
 Owen V. State, 31 Ala. 387 
 
 '' 6 Humph. 330 
 Oxford V. State, 33 Ala. 416 
 
 5 lb. 
 
 Evi. 141, 164; Homi. 256; Insan. 
 
 359 ; Intox. as an excuse for 
 
 crime, 360, 362 ; Lasciviousness, 
 
 419 ; Nolle prosequi, 467 ; Trial, 
 
 595,597, 600, 601. 
 Receiving stolen property, 539. 
 Homicide, 273. 
 False pretenses, 186, 189. 
 Accessory, 11. 
 Arrest, 21. 
 Assault and battery, 52, 53, 54, 55 ; 
 
 Evidence, 130. 
 Bastardy, 72. 
 Assault (fe battery, 49, 57; Former 
 
 acquittal or conviction, 228. 
 Burglary, 92. 
 Evidence, 167; Indictment, 348: 
 
 Sentence, 559. 
 False pretenses, 185; Indict. 345. 
 Homicide, 277, 280, 295, 306, 321 ; 
 
 Ti'espass, 590. 
 Homicide, 281 ; Trial, 599. 
 Rape, 525, 529, 530. 
 Jury, 369. 
 Bigamy, 80. 
 Affray, 17. 
 Sentence, 560. 
 Conspiracy, 108, 109 ; Evi. 151. 
 
 Perjury, 502, 508. 
 
 Insanity, 339. 
 
 Trial, 605. 
 
 Burglary, 92. 
 
 Spirituous liquors, sale of, 571. 
 
 Trial, 018,620. 
 
 Arson, 29. 
 
 Concealed weapons, 101. 
 
 Larceny, 394. 
 
 Receiving stolen property, 539. 
 
 Packard v. U. S. 1 Iowa, 225 . 
 Page V. State, 6 Mo. 205 
 Paige V. People, 6 Parker, 683 
 
 Paige's Case, 9 Leigh, 686 
 Paine v. Com. 18 Penn. St. 108 
 Palfus V. State, 36 Ga. 280 
 
 New trial, 442. 
 
 Peddlers, 496. 
 
 Forgery & counterfeiting, 203, 204 ; 
 
 Writ of error, 661. 
 Forgery and counterfeiting, 213. 
 Trial, 605. 
 Nuisance, 475.
 
 TABLE OF CASES. 
 
 731 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Palmer v. People, 10 Wend. lOG , 
 
 " " 5 Hill, 427 . 
 
 Palmer v. State, 45 Ind. 388; 3 Green's Cr. R. 718 
 Palston V. State, 14 Mo. 463 
 Pankey v. People, 1 Scam. 80 
 Park V. State, 4 Ga. 329 . 
 
 Parker v. Com. 6 Barr, 507 
 Parker v. State, 26 Texas, 206 
 
 " " 34 Ga. 262 
 
 Parker V. Way, 15 New Hamp. 45 . 
 Parmer v. State, 41 Ala. 416 
 Parrott v. State, 5 Eng. 574 
 Parsons v. State, 43 Ga. 197 
 
 " " 2 Carter, 499 
 
 " 21 Ala. 300 
 Patapsco Ins. Co. v. Coulter, 3 Pet. 222, 234 
 Pate V. People, 3 Gilman, 644 
 Patrick v. Smoke, 3 Strobh. 147 
 Patten v. People, 18 Mich. 314 . 
 Patterson, Case of, 6 Mass. 486 
 Patterson v. People, 46 Barb. 625 
 
 Patterson v. State, 36 Ala. 298 
 
 " " 2 Eng. 60 
 
 Patton V. State, 6 Ohio, N. S. 470 . 
 Payne v. Barnes, 5 Barb. 456 
 Payne v. Com. 1 Mete. Ky. 370 
 Payne v. People, 6 Johns. 103 
 Payne v. State, 3 Humph. 375 
 Peacock v. State, 36 Texas, 647 
 Peak V. People, 76 111. 289 . 
 Peak V. State, 10 Humph. 90 
 Pearce v. State, 40 Ala. 420 . 
 Pearl v. Rawlin, 5 Day, 244 
 Peck Y. State, 2 Humph. 78 
 
 Peer's Case, 5 Gratt. 674 
 Peiffer v. Com. 15 Penn. St. 468 
 Pelts V. State, 3 Blackf. 28 
 Pember's Case, 1 Whart. 439 
 Pendleton's Case, 4 Leigh, 694 . 
 Pennsylvania v. Campbell, Addis. 233 
 Pennsylvania v. Craig, Addis. 190 
 Pennsylvania v. Gillespie, Addis. 267 
 Pennsj'lvania v. Levin, Addis. 279 
 Pennsylvania v. McGill, Addis. 21 
 Pennsylvania v. McKee, Addis. 1 
 
 " " Addis. 33 . 
 
 Pennsylvania v. Morrison, Addis. 274 
 Pennsylvania v. Myers, Addis, 320 . 
 Pennsylvania V. Oliphant, Addis. 345 
 
 Larceny, 381, 394. 
 Larceny, 397. 
 Malicious trespass, 434. 
 Arson, 26. 
 Perjury, 500. 
 
 Bail and recognizance, 69. 
 Spirituous liquors, sale of, 566. 
 Gaming, 242. 
 Trial, 600. 
 Bastardy, 73, 74, 76. 
 Grand jury, 347; Larceny, 402. 
 Gaming, 341. 
 Evidence, 159. 
 
 Gaming, 338, 346 ; Indictment, 348. 
 Homicide, 264. 
 Barratry, 71. 
 
 Ev. 134 ; New trial, 441 ; Trial, 615. 
 Perjury, 497, 504. 
 Homicide, 317, 321, 333. 
 Jury, 370. 
 Homicide, 302, 316, 323 ; Insanity, 
 
 356; Trial, 591. 
 Spirituous liquors, sale of, 567. 
 Trial, 604. 
 Conspiracy, 109. 
 Larceny, 384. 
 Homicide, 317. 
 Larceny, 382. 
 Trial, 597, 599. 
 Embezzlement, 131. 
 Trial, 618. 
 
 Lasciviousness, 419, 430. 
 Spirituous liquors, sale of, 567, 574. 
 Bastardy, 76. 
 Forgery & counterfeiting, 306, 331 ; 
 
 Indictment, 343 ; New trial, 447. 
 Spirituous liquors, sale of, 571. 
 New trial, 455. 
 
 Receiving stolen property, 535. 
 Sentence, 560. 
 
 Forgery and counterfeiting, 317. 
 Lasciviousness, 398. 
 Riot, 542. 
 
 Malicious mischief, 430. 
 Homicide, 305. 
 Misdemeanor, 437. 
 Bastardy, 77. 
 
 Forgery and counterfeiting, 308. 
 Riot, 542. 
 Larceny, 406. 
 Indictment, 352.
 
 (32 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Pennsylvania v. Sullivan, Addis. 143 
 People V. Abbott, 19 Wend. 192 
 People V. Adams, 3 Denio, 190 
 " 17 Wend. 475 
 People V. Adlcr, 3 Parker, 249 
 People V. Adwards, 5 Mich. 22 . 
 People V. Ah Ki, 20 Cal. 177 
 People V. All Kim, 34 Cal. 189 . 
 People V. Ah Ping, 27 Gal. 489 
 People V. Ah Sam, 41 Cal. 645 . 
 People V. Ah Wee, 48 Cal. 236 
 People V. Ah Woo, 28 Cal. 205 . 
 People V. Ah Yek, 29 Cal. 575 
 People V. Albany Common Pleas, 6 Wend. 550 
 People V. Alger, 1 Parker, 333 
 People V. Allen, 5 Denio, 76 
 " 1 Parker, 445 
 " " 43N. Y. 28; 37 Barb. 338 ' 
 
 People V. Am. Art Union, 7 N. Y. 240 
 People V. Amanacus, 50 Cal. 233 
 People V. Ames, 39 Cal. 403 . 
 People V. Anderson, 44 Cal. 65 . 
 " " 26 Cal. 129 
 
 " 39 Cal. 703 
 
 " " 2 Wheeler's Cr. Cas. 390 
 
 " " 14 Johns. 393 . 
 
 People V. Antonio, 27 Cal. 404 
 People V. Arnold, 6 Parker, 638 
 
 15 Cal. 476 . 
 People V. Ashe, 44 Cal. 288 . 
 People V. Atkinson, 40 Cal. 284 . 
 People V. Austin, 1 Parker, 154 
 
 People V. Avila, 43 Cal. 196 
 People V. Babcock, 7 Johns. 200 
 People V. Backus, 5 Cal. 275 
 People V. Badgley, 16 Wend. 53 
 People V. Bailey, 23 Cal. 577 
 People V. Baker, 3 Parker, 181 
 
 " " 3 Hill, 159 
 
 " " 1 Cal. 403 . 
 
 People V. Ball, 14 Cal. 101 . . " 
 
 " "42 Barb. 324 . 
 
 People V. Barnes, 48 Cal. 551 
 People V. Barrett, 1 Johns. 06 
 People V. Barrio, 49 Gal. 342 
 People V. Barry, 31 Cal. 357 . 
 
 Rape, 519. 
 Rape, 525, 526. 
 False pretenses, 180. 
 Spirituous liquors, sale of, 571. 
 Arrest, 20. 
 Homicide, 260. 
 Evidence, 148; Larceny, 408. 
 Verdict, 642. 
 Larceny, 412. 
 
 Forg. & countfg, 205, 206, 216. 
 Homicide, 296. 
 Forgery & countfg, 197, 209. 
 Rape, 521. 
 Trial, 604. 
 Seduction, 551. 
 
 Embezzlement, 120; Indict. 331. 
 Former acquittal or convic. 223. 
 Grand jury, 248 ; Judgment, 363 ; 
 
 Trial, 594, 601. 
 Lottery, 426, 427. 
 Evidence, 170. 
 Evidence, 158. 
 
 Assault and batt. 39; Trial, 613. 
 Evidence, 156; New trial, 441; 
 
 Witness, 654. 
 Evidence, 154. 
 Homicide, 297. 
 Larceny, 379, 380. 
 Larceny, 408. 
 Burglary, 86. 
 Homicide, 291, 300. 
 Evidence, 150, 151. 
 Evidence, 150. 
 Evidence, 167; Homicide, 255, 
 
 305, 321 ; Indictment, 340. 
 Receiving stolen property, 535. 
 False pretenses, 174. 
 New trial, 454. 
 
 Forgery and counterfeiting, 204. 
 Embezzlement, 122. 
 Certiorari, 96 ; Venue, change of, 
 
 635. 
 Indictment, 340. 
 New trial, 442. 
 Larceny, 391. 
 
 Spirituous liquors, sale of, 569. 
 Burglary, 92. 
 
 Former acquittal or convic. 227. 
 Evidence, 160; Larceny, 402. 
 Homicide, 318.
 
 TABLE OF CASES. 
 
 733 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Bartlett, 3 Hill, 570 . 
 
 People V. Bartow, 1 Wheeler's Crim. Cas. 378 
 
 People V. Batchelder, 27 Cal. 69 
 
 People V. Bates, 2 Parker, 27 
 
 People V. Bearss, 10 Cal. 68 
 
 People V. Beck, 21 Cal. 385 . 
 
 People V. Beigler, 3 Parker, 316 . 
 
 People V. Belden, 37 Cal. 51 . 
 
 People V. Belencia, 21 Cal. 544 . 
 
 People V. Bell, 49 Cal, 485 . 
 
 People V. Benjamin, 2 Parker, 201 
 
 People V. Bennett, 49 N. Y. 137 
 
 " 37 K Y. 117 . 
 
 People T. Benson, 6 Cal. 221 . 
 People V. Berberrich, 20 Barb. 224 
 People V. Bernstein, 18 Cal. 699 
 People V. Best, 39 Cal. 690 
 People V. Bill, 10 Johns. 95 . 
 People V. BishoiD, 5 Wend. Ill . 
 People V. Blake, 1 Wheeler's Cr. Cas. 490 . 
 People V. Blakeley, 4 Parker, 176 
 
 People V. Blankman, 17 Wend. 252 . 
 People V. Bleeker, 2 Wheeler's Cr. Cas. 25G 
 People V. Bodine, 1 Denio, 281 
 
 People V. Bogart, 30 Cal. 345 
 
 " 3 Parker, 143 
 People V. Boggs, 20 Cal. 433 
 People V. Bonilla, 38 Cal, 99 . 
 People V. Bonney, 19 Cal. 426 . 
 People y. Boscovitch, 20 Cal. 436 
 People V. Boujet, 2 Parker, 11 . 
 People V. Bowen, 43 Cal. 433 ; 1 Green's Cr. R. 
 People V. Bradley, 60 111. 390 . • . 
 
 " "4 Parker, 245 
 
 People V. Brady, 56 N. Y. 182 
 
 " " 40 Cal. 198 . 
 
 People V. Braman, 30 Mich. 460 . 
 People V. Branchport, &c. Plank R. Co. 5 Parker, G04. 
 People V. Brannigan, 31 Cal. 337 
 People V. Bransby, 33 N. Y. 525 
 People V. Breese, 7 Cow. 429 
 
 People V.' Brewer, 27 Mich. 134; 2 Green's Cr. R. 562, 
 People Y. Brighani, 2 Mich. 550 . • . 
 
 People V. Brotherton.47Cdl. 388; 3 Green's Cr. R. 444. 
 
 People V. Brown, 33 Wend. 47 . . . 
 
 " " 27 Cal. 500 
 
 185. 
 
 Bail and recognizance, 68. 
 
 Rape, 519. 
 
 Homicide, 322. 
 
 Rape. 530. 
 
 Homicide, 288. 
 
 Robbery, 547. 
 
 Bail and recognizance, 63. 
 
 Larceny, 375. 
 
 Homicide, 275. 
 
 Homicide, 279 ; Insanity, 359. 
 
 Certiorari, 97. 
 
 Evi. 139;Homi. 370,339,330;Nol. 
 
 pros. 465 ; Verdict, 638 ; Writ of 
 
 error, 661. 
 Larceny, 394. 
 Rape, 526. 
 
 Bail and recognizance, 63. 
 New trial, 459. 
 Insanity, 357. 
 Witness, 649. 
 Assault and batteiy, 47. 
 Malicious mischief, 429. 
 Forgery and counterfeiting, 218; 
 
 Evidence, 150; Witness, 657. 
 Bail and recognizance, 67, 69. 
 Conspiracy, 108, 109. 
 Bill of exceptions, 81 ; Evidence^ 
 
 151, 160; Trial, 596, 600. 
 Larceny, 391, 303. 
 Misdemeanor, 439. 
 Trial, 627 ; Verdict, 642. 
 Judgment, 363. 
 New trial, 448, 454. 
 Witness, 648. 
 Burglary, 87. 
 Pardon, 495. 
 Habeas corpus, 252. 
 Larceny, 383. 
 
 Fugitives from justice, 235. 
 Witness, 653. 
 
 Threaten'g to accuse of crime, 585, 
 Nuisance, 485, 486. 
 Trial, 627. 
 
 Ass. & batt. 32,35; Trial, 613. 
 Indictment, 329. 
 Seduction, 553 ; Witness, 656. 
 Forgery and counterfeiting, 197. 
 Conspir. 109; Forg. & counterf'g, 
 
 196, 219 ; New trial, 449. 
 Bail and recognizance, 59, 60. 
 Homicide, 268.
 
 734 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Brown, C Parker, CG6 . . , 
 
 " "47 Cal. 447; 2 Green's Cr. R. 45G. 
 
 People V. Browne, 1 Wheeler's Cr. Cas. 124 
 People V. Bruno, 6 Parker, 657 
 
 People V. Budge, 4 Parker, 519 . 
 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 People V. 
 People v. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 569 
 People V. 
 People V. 
 People V. 
 
 Bumberger, 45 Cal. 050 
 Burden, 9 Barb. 467 . 
 Burgess, 35 Cal. 115 
 Burke, 11 Wend. 139 . 
 Burroughs, 1 Parker, 211 . 
 Burtnett, 5 Parker, 113 
 Bush, 3 Parker, 552 
 Butler, 16 Johns. 203 . 
 
 ' ' 3 Parker, 377 
 
 " 8 Cal. 435 
 
 " 3 Cow. 347 
 Byrd, 1 Wheeler's Cr. Cas. 242 
 Cady, 6 Hill, 490 . 
 Csesar, 1 Parker, 645 . 
 Calder, 30 Mich. 85 
 Call, 1 Denio, 120 
 Campbell, 40 N. Y. 133 . 
 30 Cal. 312 
 4 Parker, 386 . 
 
 Carabin, 14 Cal. 438 . 
 
 Carey, 4 Parker, 238 
 
 Carkhuff, 24 Cal. 640 . 
 
 Carmichael, 5 Mich. 10 
 
 Carnal, 1 Parker, 256 . 
 
 Carpenger, 5 Parknr, 228 . 
 
 Carroll, 3 Parker, 73 . 
 
 Carter, 29 Barb. 208 
 
 Caryl, 3 Parker, 326 . 
 
 Caswell, 21 Wend. 86 
 
 Caton, 35 Mich. 388 
 
 Cavanagh, 3 Parker, 650 . 
 
 Chadwick, 2 Parker, 163 
 
 Chambers, 18 Cal. 382 
 
 Chandler, 4 Parker, 231 
 
 Chapman, 4 Parker, 56 
 
 Chappell, 27 Mich. 486 ; 2 Green's Cr. P. 
 
 Charles, 3 Denio, 212; 1 N. Y. 
 Christman, 66 111. 162 . 
 Clark, 10 Mich. 310 
 "3 Seld. 385 
 People V. Clary, 17 Wend. 374 
 
 180 
 
 New trial, 462 ; Spirituous liquors, 
 sale of, 577. 
 
 Rape, 529. 
 
 Religious meet'g, disturb, of, 540. 
 
 Bill of exceptions, 81 ; Judgment, 
 363 ; Sentence, 557. 
 
 Bail and recognizance, 61 ; Cor- 
 oner's inquest, 114. 
 
 Trial, 623. 
 
 Perjury, 511. 
 
 Burglary, 90 ; Indictment, 350. 
 
 Larceny, 385. 
 
 Perjury, 508, 509, 510. 
 
 Habeas corpus, 250, 254. 
 
 Burglary, 86, 89, 93 ; Trial, 630. 
 
 Arson, 23. 
 
 Homicide, 306, 311 ; N. trial, 405. 
 
 Homicide, 309. 
 
 Sentence, 558. 
 
 False pretenses, 177. 
 
 Forgery and counterfeiting, 199. 
 
 Larceny, 396, 397. 
 
 Bigamy, 79, 80. 
 
 Larceny, 374. 
 
 Arrest, 20. 
 
 Homicide, 318. 
 
 Indictment, 349 ; Jurisdiction, 
 
 364; Larceny, 384. 
 Larceny, 413. 
 Nuisance, 475, 478. 
 Homicide, 290. 
 Homicide, 260. 
 New trial, 443, 451, 452. 
 Trespass, 589. 
 
 Disorderly person, 116; Wit. 656. 
 Forcible entry and detainer, 1 93. 
 Assault and bat. 37, 38, 45, 46. 
 Receiving stolen property, 539. 
 Forgery and counterfeiting, 197. 
 Certiorari, 97. 
 
 Forgery and counterfeiting, 215. 
 Larceny, 408. 
 Evidence, 163. 
 False pretenses, 183. 
 
 Fire arms, 190. 
 
 Indictment, 336; Lottery, 427,428. 
 
 Bastardy, 75. 
 
 Conspiracy, 106. 
 
 Homicide, 256, 306. 
 
 Bail and recognizance, 68.
 
 TABLE OF CASES. 
 
 735 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Cleaveland, 40 Cal. 577 
 
 People V. Clements, 26 N. Y. 193; 5 Parker, 337 . 
 
 People V. Clough, 17 Wend. 351 
 
 People V. CoflFnian, 24 Cal. 230 
 
 People V. Cogdell, 1 Hill, 94 , . . 
 
 People V. Colbern, 1 Wheeler's Cr. Cas. 479 
 
 People V. Cole, 6 Parker, 6S5 . 
 
 People V. Cole, 43 N. Y. 508 ; affi'g 2 Lans. 370 
 
 People V. Collier, 1 Manning, 137 
 
 People V. Collins, 48 Cal. 277 ... 
 
 People V. Colt, 3 Hill, 432 .. . 
 
 People V. Conger, 1 Wheeler's Cr. Cas. 448 . 
 
 People V. Connor, 17 Cal. 354 . 
 
 People V. Cook, 5 Parker, 351 
 
 " "10 Mich. 164 . 
 
 " "2 Parker, 12 . 
 
 People V. Cooke, 6 Parker, 31 . 
 People V. Corbett, 28 Cal. 328 .. . 
 
 People V. Corbin, 56 N. Y. 363 . 
 People V. Corning, 2 Comst. 1 . . . 
 
 People V. Costello, 1 Denio, 83 . 
 
 " " 15 Cal. 350 
 
 People V. Cotteral, 18 Johns. 115 
 People V. Cox, 40 Cal. 275 .... 
 People V. Cramer, 5 Parker, 171 . 
 People V. Crissie, 4 Denio, 525 
 People V. Cronin, 34 Cal. 191 . 
 People V. Cummings, 3 Parker, 343 . 
 
 People V. Cunningham, 3 Parker, 531 . 
 " '• 6 Parker, 398 
 
 " " 1 Denio, 524 
 
 People V. Curling, 1 Johns. 320 
 People V. Curtis, 50 N. Y. 321 . 
 
 " 50 Cal. 95 . 
 People V. Cyphers, 5 Parker, 006 ; affi'd 31 N. Y. 373. 
 People V. Dalton, 15 Wend. 581 
 
 " 2 Wheeler's Cr. Cas. 161 . 
 People V. Damon, 13 Wend. 351 
 People V. Davis, 56 N. Y. 95 . 
 
 4 Parker, 61 
 21 Wend. 309 
 
 36 N. Y. 77 
 61 Barb. 456 
 
 Larceny, 408. 
 
 Forgery and counterfeiting, 213. 
 
 False pretenses, 176. 
 
 Insanity, 357. 
 
 Larceny, 380. 
 
 Witness, 650. 
 
 Bail and recognizance, 61, 63; 
 Evidence, 150; Homi. 316, 321. 
 
 Larceny, 375. 
 
 Perjury, 507. 
 
 Evid. 158; RoVy, 548; Tri. 614. 
 
 Homicide, 271. 
 
 False pretenses, 173. 
 
 Larceny, 393. 
 
 Evidence, 158; Receiving stolen 
 property, 534. 
 
 Former acquittal or convic. 224. 
 
 Larceny, 398. 
 
 Evid. 128 ; False pretenses, 174. 
 
 Verdict, 642. 
 
 Forgery and counterfeiting, 221. 
 
 Writ of error, 662. 
 
 Evidence, 132, 158 ; Misdemeanor, 
 439 ; Witness, 649. 
 
 Homicide, 283. 
 
 Arson, 25. 
 
 Embezzlement, 121. 
 
 Former acquittal or conv'tn, 233. 
 
 False pretenses, 181, 183. 
 
 Homicide, 284. 
 
 Bill of exceptions, 81 ; Jurisdic- 
 tion, 364 ; Jury, 371. 
 
 Bail and recognizance, 63. 
 
 Homicide, 283 ; Witness, 654. 
 
 N. trial, 448 ; Nuisance, 471, 484, 
 485 ; Trial, 615 ; Witness, 658. 
 
 Forgery and counterfeiting, 207. 
 
 Fugitives from justice, 233. 
 
 Perjury, 511. 
 
 Grand jury, 247. 
 
 Embezzlement, 1 19. 
 
 False pretenses, 176. 
 
 Trial, 596, 597. 
 
 Abortion, 4; Conspir. 109; Evid. 
 136 ; Homicide, 292 ; Indictment, 
 335, 330, 351. 
 
 Assault and battery, 50, 57. 
 
 Evidence, 170; Forgery and coun- 
 terfeiting, 215. 
 
 Jurisdiction, 350. 
 
 Jurisdiction, 364, 367 ; Stats. 581.
 
 i36 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Davis, 45 Barb. 494 
 
 People V. Degey, 2 Wheeler's Cr. Cas. 135 . 
 People V. De La Guerra, 31 Cal. 41G 
 " 31 Cal. 459 
 
 People Y. Deuton, 3 Johns. Cas, 275 
 People V. Derby, 1 Parker, 393 
 People V. Deviue, 44 Cal. 453 ; 3 Green's Cr. R. 405. 
 
 People Y. Diaz, 6 Cal. 343 ... 
 
 People Y. Dibble, 5 Parker, 38 . . . 
 
 People Y. Divine, 5 Parker, 63 . 
 People Y. Dixon, 4 Parker, 651 
 
 " "4 Parker, 654 . 
 
 People V, Doe, 1 Manning, 451 
 People Y. Dohring, 59 N. Y. 374 ; overruling 3 N. Y, 
 
 'Supm. Ct. N. S. 458 ... 
 
 People Y. Donnelly, 3 Parker, 183 
 People v. Douglass, 4 Cow. 36 
 People Y. Doyle, 31 N. Y. 578 
 People Y. Duffy, 5 Barb. 305 
 People Y. Eastwood, 14 N. Y. 563 . 
 
 People Y. Eckert, 16 Cal. 110 
 
 People v. Eckford, 7 Cow. 103 . 
 
 People V. Edwards, 41 Cal. 640 
 
 People Y. Ellis, 15 Wend. 371 
 
 People Y. Elyea, 14 Cal. 144 
 
 People v. English, 30 Cal. 214 . 
 
 People v. Enoch, 13 Wend. 159 
 
 People v. Erwin, 4 Denio, 129 
 
 People v. Evans, 40 N. Y. 1 . 
 
 People v. Fair, 43 Cal. 137; 1 Green's Cr. Reps. 217. 
 
 People v. Fallon, 6 Parker, 356 ; affi'd 3 N. Y. Ct. of 
 
 App. DeciSc 83 . 
 People Y. Farrell, 30 Cal. 316 . 
 31 Cal, 576 , 
 People Y, Farrington, 14 Johns. 347 
 People v, Fauerback, 5 Parker, 311 
 People Y, Fenwick, 45 Cal, 287 
 People Y, Field, 53 Barb, 198; 58 Ib,270; 1 Lans,223, 
 
 People V. Finch, 5 Johns, 336 
 People V, Finnegan, 1 Parker, 147 
 People V. Fish, 4 Parker, 206 
 People Y, Fisher, 14 Wend, 9 
 People Y, Fitch, 1 Wend, 198 
 People Y. Fitzpatrick, 5 Parker, 36 
 People v. Flanders, 18 Johns. 163 
 People v. Folmsbee, 60 Barb, 480 
 People V, Forbes, 4 Parker, 611 
 
 Spirituous liquors, sale of, 574 ; 
 
 Verdict, 640. 
 Relig. meet, disturb, of, 540. 
 Embezzlement, 122. 
 Indictment, 338. 
 Trial, 638, 
 
 Bail and recognizance, 67, 70, 
 Cor, inq, 114; Evid. 133; Wit. 
 
 657. 
 Continuance, 113. 
 New trial, 447. 
 Habeas corpus, 253. 
 Bail and recognizance, 61, 63. 
 Evidence, 152. 
 Homicide, 304, 331. 
 
 Rape, 519; Witness, 653. 
 
 Witness, 650. 
 
 New trial, 453, 456. 
 
 Evidence, 154, 158. 
 
 Bail and recognizance, 59. 
 
 Evidence, 165; Intoxication as an 
 
 excuse for crime, 361. 
 Witness, 660. 
 Conspiracy, 105, 
 Homicide, 398, 
 Trial, 638. 
 
 Evidence, 140; Witness, 653. 
 Assault and battery, 49. 
 Homicide, 369; Indictment, 347. 
 Nuisance, 475. 
 Subornation of perjury, 514. 
 Evidence, 151 ; Homicide, 299. 
 
 Larceny, 395, 403, 
 
 Evi, 159; Forg, and counterf, 219, 
 
 Insanity, 359. 
 
 Forgery and counterfeiting, 201. 
 
 Unwholesome provis. sale of, 632. 
 
 Evidence, 150. 
 
 Fore, entry and detainer, 190, 191, 
 
 192, 193. 
 Forgery and counterfeiting, 201. 
 Bill of exceptions, 81; Evid. 170. 
 False pretenses, 178, 183. 
 Conspiracy, 103. 
 Forgery and counterfeiting, 199. 
 Assault and battery, 56. 
 Forgery and counterfeiting, 201. 
 Bail and recognizance, 62. 
 Vagrant, 633, 634.
 
 TABLE OF CASES. 
 
 737 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Fox, 25 Mich. 493 . 
 
 People V. Francis, 38 Cal. 183 
 People V. Frank, 28 Cal. 507 . 
 
 People V. Franklin, 3 Johns. Cas. 299 
 
 People V. Free], 48 Cal. 43G 
 
 People V. Freeman, 4 Denio, 9 . . . 
 
 People V. Frost, 5 Parker, 53 . 
 
 People agst. Fulton, 11 N. Y. 94 
 
 People V. Gaige, 26 Mich. 30; 1 Green's Cr.Reps.524. 
 
 People V. Gallowa\% 17 Wend. 540 . 
 
 People V, Galvin, 9 Cal. 115 
 
 People V. Garbutt, 17 Mich. 9 . . . 
 
 People V. Garcia, 25 Cal. 531 
 
 People V. Gardiner, 6 Parker, 143 
 
 People V. Gardner, 1 Wheeler's Cr. Cas. 38 . 
 
 People V. Gassaway, 23 Cal. 51 
 
 People V. Gates, 46 Cal. 52; 2 Green's Cr. Reps. 425. 
 
 " " 15 Wend. 159 . 
 
 " " 18 Wend. 311 
 
 People V. Geiger, 49 Cal. 643 
 People V. Genet, 59 N. Y. 80 
 People V. Getchell, 6 Mich. 49G 
 People V. Getty, 49 Cal. 581 ... 
 
 People V. Gibbons, 49 Cal. 557; 1 Green's Cr.Reps.592. 
 People V. Gibson, 17 Cal. 283 ... 
 
 People V. Gilkinson, 4 Parker, 26 
 
 People V. Gill, 6 Cal. 637 . 
 
 "45 Cal. 285 
 People V. Gilmore, 4 Cal. 376 
 People V. Girardin, 1 Mann. 90 . 
 People V. Golden, 3 Parker, 330 
 People V. Gonzales, 35 N. Y. 49 
 People V. Goodrich, 3 Parker, 518 
 People V. Goodwin, 1 Wheeler's Cr. Cas. 434 
 " " 1 Wheeler's Cr. Cas. 253 
 
 '^ " 18 Johns. 187 
 
 People V. Graham, 21 Cal. 261 
 
 " " 6 Parker, 135 
 
 People V. Granice, 50 Cal. 447 
 People V. Graves, o Parker, 134 
 
 People V. Gray, 25 Wend. 465 
 "5 Wend. 289 
 " " 4 Parker, 616 
 
 People V. Green, 5 Kill, 647 
 " 1 Parker, 11 
 " " 1 Wheeler's Cr. Cas. 152 
 
 47 
 
 Perjury, 507. 
 
 Insanity, 358. 
 
 Evidence, 126 ; Forg. and counter- 
 feiting, 210; Indictment, 338. 
 
 Forgery and counterfeiting, 205. 
 
 Homicide, 250. 
 
 Trial, 594. 
 
 Trial, 606. 
 
 Forcible entry and detainer, 192. 
 
 Perjury, 503, 508. 
 
 False pretenses, 174, 178. 
 
 Sentence, 555. 
 
 Insanity, 358, 359 ; Intoxication as 
 an excuse for crime, 362. 
 
 E-sddence, 136. 
 
 Bill of exceptions, 81 ; Jurisd. 366. 
 
 Forgery and counterfeiting, 220. 
 
 Larceny, 4o8 ; Robbery, 549. 
 
 Adultery, 12, 13, 14. 
 
 Arson, 28. 
 
 Evi. 150; False pret. 173,178, 185. 
 
 Homicide, 262, 387. 
 
 Escape, 125. 
 
 False pretenses, 170. 
 
 Larceny, 408. 
 
 Evidence, 142. 
 
 Homicide, 300. 
 
 Indictment, 336; Spirit, liquors, 
 sale of, 569, 570. 
 
 Homicide, 265. 
 
 Larceny, 408. 
 
 Former acquittal or convict. 229. 
 
 Obscene publications, 487. 
 
 Larceny, 396. 
 
 Homic. 37.3, 278 ; New trial, 447. 
 
 New trial, 441. 
 
 Bail and recognizance, 63. 
 
 Homicide, 308. 
 
 Trial, 637. 
 
 Evid. 138; New trial, 447; Rape, 
 531 ; Venue, change of, 634. 
 
 Forgery and counterfeit. 19G, 207. 
 
 Jurisdiction, 364. 
 
 Disinterring the dead, 115; In- 
 dictment, 336 ; Trial, 630. 
 
 Accessory, 11. 
 
 New trial, 450. 
 
 Vagrant, 634. 
 
 Bastardy, 75. 
 
 Evid. 137, 155; Horn. 293,296,297. 
 
 Receiving stolen property, 539.
 
 738 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Green, 13 Wend. 55 . . . 
 
 People V. Grunzig, 1 Parker, 299 
 
 People V. Hackley, 24 N. Y. 74 
 
 People V. Haddock, 12 Wend. 475 
 
 People V. Haggerty,46 Cal.354 ; 2 Green'sCr.Reps.431. 
 
 People V. Hall, 6 Parker, 642 . 
 
 " " 19 Cal. 425 . 
 
 People V. Hamilton, 46 Cal. 540; 2 Green's Cr. Reps, 
 
 432 . 
 People V. Harley, 8 Cal. 890 
 People v. Harriden, 1 Parker, 344 
 People V. Harriot, 3 Parker, 112 
 People V. Harris, 29 Cal. 078 
 People V. Harrison, 8 Barb. 560 
 People V. Hartung, 4 Parker, 319 
 . " '• 4 Parker, 256 
 
 People V. Hawkins, 34 Cal. 181 
 People V. Haynes, 55 Barb. 450 . . . 
 
 " " 14 Wend. 546; 11 lb. 557 
 
 People V. Heffernan, 5 Parker, 393 
 People V. Henderson, 1 Parker, 560 
 
 "28 Cal. 465 . 
 People V. Hendrickson, 1 Parker, 406; 10 N. Y. 13. 
 
 People V. Hennessey, 15 Wend. 147 
 People V. Herrick, 13 Wend. 87 
 People V. Hewitt, 2 Parker, 20 
 People V. Hicks, 15 Barb. 153 
 People V. Hoag, 2 Parker, 36 
 People V. Holbrook, 18 Johns. 90 
 People V. Holcomb, 3 Parker, 656 
 People V. Holmes, 6 Parker, 25 , 
 
 '• " 3 Parker, 567 
 
 People V. Honeyman, 3 Denio, 121 
 People V. Honsbell, 10 Cal. 83 
 People V. Hood, 6 Cal. 236 
 People V. Horr, 7 Barb. 9 
 People V. Horton, 4 Parker, 222 
 
 " " 4 Mich. 67 
 
 People V. Howe, 2 N. Y. Supm. N. S. 383 
 People V. Howell, 4 Johns. 296 
 People V. Hoy Yen, 34 Cal. 176 
 People V. Hughes, 29 Cal. 257 
 
 41 Cal 234 . 
 People V. Hulse, 3 Hill, 309 . 
 People V. Hunckeler, 48 Cal. 331 
 People V. Hyler, 2 Parker, 566 
 People V. Ingersoll, 14 Abb. Pr. N. S. 23; 1 Green's Cr 
 
 Reps. 035 ..... 
 
 People V. Irwin, 4 Deaio, 129 
 
 Writ of error, 662. 
 
 Homicide, 296. 
 
 Contempt, 110, 111; Witness, 655. 
 
 Bastardy, 76. 
 
 Arson, 23. 
 
 Robbery, 545, 549. 
 
 Larceny, 392. 
 
 Rape, 530. 
 
 Trial, 615. 
 
 Incest, 325. 
 
 Indictment, 326. 
 
 Voting, 643. 
 
 Forgery and counterfeiting, 200. 
 
 Homicide, 273; Jurisdiction, 367. 
 
 New trial,460 ; Trial,626 ; Yerd.642. 
 
 Larceny, 387. 
 
 Arson, 27; Evidence, 158. 159; In- 
 dictment, 329 ; Wit. 659, 680. 
 
 False pretenses, 176, 178, 186. 
 
 Indictment, 353. 
 
 Arson, 24, 27. 
 
 Homicide, 299; Sentence, 554. 
 
 Evidence, 141 ; Homicide, 280 ; 
 Writ of error, 663. 
 
 Embezzlement, 119; End. 149. 
 
 False pretenses, 178, 187, 189. 
 
 Forgeiy and counterfeiting, 217. 
 
 Habeas corpus, 252, 
 
 Misdemeanor, 437. 
 
 Larceny, 390, 392, 404. 
 
 Search warr. 549, 550 ; Warr. 647. 
 
 Trial, 615. 
 
 Writ of error, 662. 
 
 Larceny, 400 ; Trial, 601. 
 
 Ass. and batt. 53; Homicide, 261. 
 
 Arson, 26. 
 
 Malicious mischief, 432. 
 
 Contin. Ill, 112; Indict. 353. 
 
 Homicide, 260. 
 
 Embezzlement, 120. 
 
 Forgery and counterfeiting, 213. 
 
 Larceny, 410. 
 
 Arson, 30. 
 
 Former acquittal or convict. 225. 
 
 Rape, 527. 
 
 Trial, 611. 
 
 Grand jury, 248. 
 
 Bail and recognizance, 67. 
 Nuisance, 476.
 
 TABLE OF CASES. 
 
 739 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Jackson, 3 Hill, 92 
 " "3 Parker, 590 . 
 
 " " 3 Denio, 101 
 
 *• " 8 Barb. 637 . 
 
 " " 7 Mich. 432 
 
 " " 3 Parker, 391 . 
 
 People V. Jayne, 27 Barb. 58 
 People V. Jefferds, 5 Parker, 518 
 People V. Jenkins, 16 Cal. 431 
 People V. Jenness, 5 Mich. 305 . 
 People V. Jerome, 1 Mann. 142 
 People V. Jersey, 18 Cal. 337 
 People V. Jewett, 6 Wend. 386 
 
 " '^ 3 Wend. 314 . 
 
 People V. Jillson, 3 Parker, 234 
 People V. Jim Ti, 32 Cal. 60 
 People V. Johnson, 41 Cal. 452 
 " " 12 Johns. 291 
 
 " "1 Parker, 291 
 
 People V. Jones, 31 Cal. 565 ; 32 lb. 80 . 
 " " 54 Barb. 311 
 
 " " 44 lb. 311 
 
 " " 5 Lans. 340 . 
 
 People V. Josephs, 7 Cal. 120 
 People V. Josselyn, 39 Cal. 393 
 People V. Juarez, 28 Cal. 380 
 People V. Judges of Dutchess O. and T. 2 Barb 
 People V. Kaatz, 3 Parker, 129 . 
 People V. Kaina, 45 Cal. 292 
 People V. Kane, 4 Denio, 530 
 People V. Keefer, 18 Cal. 636 
 People V. Kelly, 38 Cal. 145 
 
 " 28 Cal. 423 . 
 
 " 35 Barb. 444 
 People V. Kendall, 25 Wend. 399 
 People V. Kennedy, 32 N. Y. 141 
 People V. Kent, 1 Doug. 42 . 
 People V. Kenyon, 5 Parker, 254 ; 26 N. Y. 203 
 People V. Kerrains, 1 N. Y. Supm. N. S. 333 
 People V. King, 1 Wheeler's Crim. Cas. 33 
 
 " 27 Cal. 507 . 
 People V. Kingsley, 2 Cow. 522 . 
 People V. Knapp, 26 Mich. 106; 1 Green's Cr. R 
 People V. Knickerbncker, 1 Parker, 302 . 
 People V. Koeber, 7 Hill, 39 
 People V. Kohler, 5 Cal. 72 
 People V. Krummer, 4 Parker, 217 . 
 
 283 
 
 252. 
 
 Abortion, 7. 
 
 Evidence, 108; Larceny, 377. 
 
 Gaming, 237, 242; Lot'y, 428, 475. 
 
 Larceny, 387, 390. 
 
 Nuisance, 472. 
 
 Rape, 525. 
 
 Bastardy, 75. 
 
 Habeas corpus, 251. 
 
 Burglary, 87. 
 
 Evi. 158; Incest, 325; N. tr. 450. 
 
 Libel, 422. 
 
 Larceny, 412. 
 
 Abatement, 1. 
 
 Grand jury, 248. 
 
 Assault and battery, 37. 
 
 Evidence, 147. 
 
 Evidence, 148. 
 
 False pretenses, 173. 
 
 Homicide, 256, 310; Receiving 
 stolen property, 534, 535. 
 
 Evidence, 149, 157. 
 
 Innkeeper, 354; Officer, 488; Spir- 
 ituous liquors, sale of, 566. 
 
 License. 426. 
 
 Robbery, 548. 
 
 Homicide, 299. 
 
 Abortion, 6. 
 
 Larceny, 382. 
 
 New trial, 4i0. 
 
 Larceny, 383; Trial, 615. 
 
 Evidence, 150. 
 
 Bail and recognizance, 64. 
 
 Assault and battery, 52. 
 
 Jurisdiction, 367. 
 
 Larceny, 408. 
 
 Statutes, 582. 
 
 False pretenses, 176. 
 
 Evidence, 126. 
 
 Larceny, 389, 392. 
 
 Seduction, 550, 551, 553. 
 
 Assault and battery, 49, 52, 53, 56. 
 
 Evidence, 157. 
 
 Homicide, 275. 
 
 Forgery and counterfeiting, 203. 
 
 Homicide, 232, 293, 314. 
 
 Trial, 594, 603. 
 
 Bail and recognizance, 01, 65. 
 
 Trial, 605. 
 
 Demurrer, 115; False pretenses, 
 184 ; Forgery and counterfeiting, 
 199; Former acquittal or con- 
 viction, 227.
 
 740 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People agst. Lake, 12 N. Y. 358; 1 Parker, 495. 
 People V. Lamb, 2 Keyes, 3G0 ; affi'g 54 Barb. 342 , 
 
 People V. Lambert, 5 Mich. 349 . 
 
 '' " 5 Denio, 9 . . , 
 
 People V. Lawrence, 21 Cal. 368 . 
 People V. Lawson, 17 Johns. 277 
 People V. Lawton, 56 Barb. 126 . 
 People V. Lee, 17 Cal. 76, 78 . 
 
 " 6 Cal. 353 . 
 People V. Leonard, 11 Johns. 504 
 People y. Levison, 16 Cal. 98 . 
 People V. Lewis, 3 N. Y. Ct. of Aj^peals Decis, 535. 
 
 " 36 Cal. 531 
 People V. Linn, 23 Cal. 150 . 
 People Y. Lohman, 2 Barb. 450 . 
 
 2 Barb. 216 ; 1 N. Y. 379 
 
 People V. Lombard, 17 Cal. 316 
 
 People V. Long Island R R, Co. 4 Parker, 602 
 
 People V. Loomis, 4 Denio, 380 . 
 
 People V. Loop, 3 Parker, 559 
 
 People V. Loughridge, 1 Neb. 11 
 
 People V. Lynch, 29 Mich. 274 
 
 11 Johns. 549 . 
 People V. Mack, 1 Parker, 567 
 
 " 2 Parker, 673 . 
 People V. Mahoney, 18 Cal. 185 
 People V. Mallon, 3 Lans. 224 
 People V. Maloney, 1 Parker, 593 
 People V. Marion, 29 Mich. 31 . 
 
 " 28 Mich. .255; 2 Green's Cr. R. 5^ 
 People V. Marks, 4 Parker, 153 . 
 People V. Martin, 47 Cal. 112 
 
 " "1 Parker, 187 . 
 
 People V. Mather, 4 Wend. 229 
 
 People V. Mayer, 16 Barb. 362 . 
 People V. McArdle, 5 Parker, 180 
 People V. McCann, 3 Parker, 272; IG X. Y. 
 
 People V. McCloskey, 5 Parker, 57 
 People V. McCormack, 4 Parker, 9 
 People V. McCoy, 39 Barb. 73 
 People V. McCranie, 6 Parker, 49 
 People V. McCrea, 32 Cal. 98 
 People V. McDaniels, 1 Parker, 198 
 People V. McDonald, 39 Cal. 697 
 
 Evidence, 161, 162. 
 
 Evidence, 150 ; Homicide, 298, 
 316 ; Verdict, 639. 
 
 Bigamy, 79, 80. 
 
 Nuisance, 471. 
 
 Homicide, 297. 
 
 Nuisance, 470. 
 
 Burglary, 94,95; Evidence, 158. 
 
 New trial, 454; Verdict, 541. 
 
 Venue, change of, 634. 
 
 Forcible entry and detainer, 194. 
 
 Receiving stolen property, 539. 
 
 Homicide. 276. 
 
 Intox. as an excuse for crime, 360. 
 
 Larceny, 400. 
 
 Bail and recognizance, 62. 
 
 Evidence, 157 ; Indictment, 345 ; 
 Witness, 649, 655. 
 
 Homicide, 299, 315. 
 
 Venue, change of, 634. 
 
 Larceny, 383. 
 
 Larceny, 389. 
 
 Larceny, 385. 
 
 Rai^e, 530. 
 
 Treason, 587. 
 
 Bail and recognizance, 59, 65. 
 
 New trial, 457. 
 
 Venue, change of, 634. 
 
 Trial, 594, 600. 
 
 Larceny, 384. 
 
 Evidence, 156 ; Forgery and coun- 
 terfeiting, 207, 216. 
 
 Forgery and couuterf g, 210, 212. 
 
 Burglary, 92. 
 
 Assault and battery, 42. 
 
 Habeas corpus, 253. 
 
 Conspiracy, 102, 104, 105, 107; 
 Trial, 596, 597, 598, 601; Wit- 
 ness, 656, 658, 659. 
 
 Habeas corpus, 249. 
 
 Seduction, 553. 
 
 Ev. 162; Gr. jury,248; Hom.279; 
 Ins. 359 ; Juris. 364 ; New trial, 
 443 ; Writ of error, 662. 
 
 Bur. 89; For. acq. or convict. 230. 
 
 Dis. person, 116; Habeas cor. 249, 
 
 Bail and recognizance, 67, 68. 
 
 Homicide, 285. 
 
 Evidence, 139. 
 
 Robbery, 546. 
 
 Evidence, 130.
 
 TABLE OF CASES. 
 
 '41 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. McDonald, 43 K Y. Gl 
 
 . 
 
 " "9 Midi. 150 
 
 
 People V. McDonnell, 47 Cal. 134 ; 3 Green's Cr. R. 441. 
 
 People V. McFall, 1 Wheeler's Crini. Cas. 
 
 107 
 
 People V. McGarren, 17 Wend. 460 
 
 
 People V. McGee, 1 Denio, 19 
 
 
 People V. McGeery, 6 Parker, 653 
 
 
 People V. McGinnis, 1 Parker, 387 . 
 
 
 People V. McGungill, 41 Cal. 429; 
 
 
 People V. McKay, 18 Johns. 212 
 
 
 People V. McKiune}', 3 Parker, 510 
 
 
 People V. McLean, 2 Johns. 381 
 
 
 People V. McLeod, 1 Hill, 377 . 
 
 
 People agst. McMahon, 15 N. Y. 384 
 
 . 
 
 People V. McMakin, 8 Cal. 547 . 
 
 
 People V. McMurray, 4 Parker, 234' . 
 
 . 
 
 1 Wheeler's Cr. Cas. 
 
 63 . 
 
 People V. McWhorter, 4 Barb. 438 , 
 
 . 
 
 People V. Meighan, 1 Hill, 298 . 
 
 
 People V. Melvane, 39 Cal. 614 
 
 
 People V. Melvin, 2 Wheeler's Crim. Cas. 
 
 263 . 
 
 People agst. Merrill, 14 N. Y. 74 
 
 
 Peoiile V. Milgate, 5 Cal. 127 
 
 
 People V. Miller, 14 Johns. 370 
 
 . 
 
 "33 Cal. 99 
 
 
 People V. Millspaugh, 11 Mich. 278 . 
 
 
 People V. Mitchell, 2 N. Y. Supm. N. S. 1 
 
 73 
 
 People V. Monroe 0. & T. 20 AVend. 108 
 
 . 
 
 People V. Moody, 45 Cal. 289; 2 Green's 
 
 Cr. R. 420. 
 
 " "5 Parker, 568 
 
 
 People V. Moore, 2 Douglas, 1 
 
 
 "3 Parker, 465 
 
 
 " 45 Cal. 19 
 
 
 " 15 Wend. 419 
 
 . 
 
 People V. Moring, 3 N. Y. Ct. of App. Dec. 539; affi', 
 
 47 Barb. 642; 8 Keyes, 374 . 
 
 
 People V. Morrison, 1 Parker, 635 
 
 . 
 
 People V. Mosher, 2 Parker, 195 
 
 
 People V. Murphy, 45 Cal. 137; 2 Green's 
 
 Cr. R. 414 
 
 " 39 Cal. 53 
 
 
 47 Cal. 103 
 
 . 
 
 " " 5 Parker, 130 . 
 
 
 People V, Murray, 8 Cal. 518 
 
 
 " 41 Cal. 60 
 
 
 " " 10 Cal. 309 
 
 , 
 
 " " 14 Cal. 159 . 
 
 
 "5 Parker, 577 
 
 
 People V. Myers, 20 Cal. 76 
 
 
 People V. Nash, 5 Parker, 473. 
 
 
 People V. Nestle, 19 N. Y. 583 . 
 
 
 People V. Newberry, 20 Cal. 439 
 
 • 
 
 Larceny, 376. 
 
 Rape, 520, 535. 
 
 Insanity,355; New trial, 459. 
 
 Evidence, 149. 
 
 Larceny, 377, 379. 
 
 Rape, 531, 534. 
 
 Sentence, 555, 557 ; Trial, 590. 
 
 Evidence, 166; Perjury, 510. 
 
 Witness, 650. 
 
 Jury, 870; New trial, 443. 
 
 Perjury, 497. 
 
 Jury, 370. 
 
 Hab. c. 253 ; Horn. 300 ; Nol. p. 465. 
 
 Evidence, 136, 141. 
 
 Assault and battery, 53. 
 
 Accessory, 8. 
 
 Assault and battery, 33. 
 
 Evidence, 153. 
 
 Bastardy, 76. 
 
 Evidence, 130, 158; Larceny, 408. 
 
 Conspiracy, 103. 
 
 Writ of error, 661. 
 
 Homicide, 399, 301. 
 
 False pretenses, 175. 
 
 Trial, 629. 
 
 Seduction, 551. 
 
 Disorderly jiersou, 116. 
 
 Indictment, 353. 
 
 Homicide, 377. 
 
 ]\Ialicious mischief, 439. 
 
 Bail and recognizance, 69. 
 
 Commitment, 99. 
 
 Evidence, 138. 
 
 Witness, 657, 660. 
 
 Extortion, 173. 
 
 New trial, 440 ; Rape, 532. 
 
 Bigamy, 78. 
 
 Ev. 135; Hom. 288; Judg. 3G3. 
 
 Homicide, 287. 
 
 Larceny, 405, 412. 
 
 License, 435. 
 
 Burglary, 91. 
 
 Evidence, 139. 
 
 Homicide, 398. 
 
 Incest, 334. 
 
 Jurisdiction, 368. 
 
 Arson, 36, 28. 
 
 Commitment, 98. 
 
 Writ of error, 661. 
 
 Accessory, 11; Homicide, 388.
 
 742 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 People V. 
 People v^ 
 People V. 
 People V. 
 
 Nichol, 34 Cal. 211 
 Nichols, 3 Parker, 579 
 Noakes, 5 Parker, 291 
 Nolan, 22 Mich. 229 
 Norton, 7 Barb. 477 . 
 N. Y. Cent. R. P. Co. 5 Parker, 195 
 N. Y. Gas Light Co. 64 Barb. 55 
 O'Brien, 4 Parker, 203 
 Olcott, 3 Johns. Cas. 301 
 Olivera, 7 Cal. 403 
 Olmstead, 30 Mich. 431 
 O'Neil, 48 Cal. 257 
 Orcutt, 1 Parker, 252 
 Osborn, 1 Wheeler's Cr. Cas. S7 . 
 Osmer, 4 Parker, 242 . 
 Page, 3 Parker, 600 
 Paige, Idaho, 114 
 Parish, 4 Denio, 153 
 Park, 41 N. Y. 21 ; affi'g 1 Lans. 203 
 Parker, 4 Johns. 424 
 " 38 N. Y. 85 
 Parks, 44 Cal. 105; 2 Green's Cr. Rep 
 Parshall, 6 Parker, 129 
 Parsons, 6 Cal. 487 . 
 Payne, 3 Denio, 88 
 Peabody, 25 Wend. 473 . 
 Peacock, 6 Cow. 72 
 Pease, 3 Johns. Cas. 333 . 
 Pelham, 14 Wend. 48 . 
 Perdue, 49 Cal. 425 
 Perkins, 1 Wend. 91 . 
 Phelps, 5 Wend. 9 
 Phillips, 1 Wheeler's Crim. Cas. 155 
 
 42 N. Y. 200 
 
 1 Parker, 95 . 
 Phipps, 39 Cal. 3^3 
 Pierpont, 1 Wheeler's Crim. Cas. 139 
 Pine, 2 Barb. 56-3 
 Pitcher, 15 Mich. 397 . 
 
 People V. Plumraer, 9 Cal. 298 
 
 People V. Pool, 27 Cal. 572 
 
 People V. Porter, 3 Paiker, 14 . . 
 
 " 4 Parker, 524 . 
 •' " 5 Mich. 1 . . 
 
 " 1 Parker, 47 . 
 People V. Powers, 2 Seld. 50 
 People V. Preston, 1 Wheeler's Crim. Cas. 41 
 People V. Quin, 1 Parker, 340 
 People V. Quiun, 50 Barb. 128 
 People V. Ramirez, 13 Cal. 173 
 
 Homicide, 256, 275. 
 Embezzlement, 119. 
 Forgery and coun, 201 ; Trial, 616. 
 Burglary, 86, 89. 
 Spirituous liquors, sale of, 566. 
 Nuisance, 480. 
 Nuisance, 469. 
 New trial, 457. 
 
 Conspiracy, 107, 110; Trial, 637. 
 Perjury, 505. 
 Homicide, 314. 
 Rape, 339. ■ 
 
 Arson, 33, 37 ; Evidence, 130. 
 Trespass, 588. 
 
 Forgery and counterfeiting, 313. 
 Indictment, 336. 
 
 Forgery and counterfeiting, 219. 
 False pretenses, 183. 
 Statutes, 582. 
 Burglary, 88. 
 Unwholesome pro v. sale of, 631. 
 398. Evidence, 129. 
 Abduction, 3. 
 Perjury, 505. 
 Lottery, 428. 
 
 Forgery and counterfeiting, 215. 
 Forgery and counterfeiting, 196. 
 Pardon, 495. 
 Habeas corpus, 250. 
 Homicide, 320. 
 Trial, 629. 
 
 Perjury, 503, 503, 506. 
 Assault and battery, 36. 
 Evidence, 145; New trial, 441, 
 Summary conviction, 583. 
 Evidence, 156. 
 
 Receiving stolen property, 536. 
 Verdict, 037. 
 New trial, 447; Receiving stolen 
 
 property, 537, 538. 
 New trial, 445. 
 
 Arrest, 33; Homicide, 259, 261. 
 Blasphemy, 84. 
 Nolle prosequi, 465, 466. 
 Homicide, 284. 
 Pardon, 493. 
 Larceny, 396. 
 Larceny, 406. 
 Bill of exceptions, 82. 
 Rape, 519. 
 Trial, 615.
 
 TA[3LE OF CASES. 
 
 743 
 
 Title of Case and Report, 
 
 Subject and Page. 
 
 People V. Rando, 3 Parker, 333 . 
 People V. Ransom, 7 Wend. 417 
 People V. Ratbbuu, '21 Wend. 509 
 
 People V. Rawson, Gl Barb. G19 
 
 People V. Reagle, GO Barb. 527 
 
 People V. Rector, 19 Wend. 5G9 . 
 People V. Reed, 11 Wend. 157 
 
 " " -17 Barb. 335 
 
 People V. Reeder, 1 Wheeler's Crim, Cas. 418 
 People V. Reihhart, 39 Cal. 449. 
 People V. Reyes, 5 Cal. 347 .... 
 People V. Reynolds, 2 Mich. 422 
 
 People V. Rhoner, 4 Parker, 106 
 People V. Richards, 1 Mann. Mich. 210 . 
 People V. Richardson, 4 Parker, G5G 
 People V. Richmond, 29 Cal. 414. 
 People V. Riley, 5 Parker, 401 
 People V. Roach, 17 Cal. 297 . 
 People V. Robinson, 19 Cal. 40 . . . 
 
 " 2 Parker, 308 
 
 1 Parker, 649 . 
 " " 2 Parker, 235 
 
 People V. Robles, 34 Cal. 591 
 
 People V. Rodundo, 44 Cal. 538; 2 Green's Cr. R 411. 
 People V. Rogers, 18 N. Y. 9; rev'g 3 Park. 332. 
 
 People V. 
 People V. 
 People V. 
 People V. 
 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 People V. 
 
 Romaine, 1 Wheeler's Crim. Cas. 3G9 . 
 
 Rowe, 4 Parker, 253 
 
 Rnggles, 8 -Johns. 290 
 
 Ruloff, 5 Parker, 77 . . . 
 
 " 3 Parker, 401 . 
 
 " 3 Parker, 126 
 Runkel, Johns. 334 . 
 Rynders, 12 Wend. 425 
 Satford, 5 Denio, 112 . 
 Sammis, N. Y. Supm. N. S. 328 
 Sanchez, 24 Cal. 17 • 
 Sands, 1 Johns. 78 ... 
 
 Sanford, 43 Cal. 29 ; 1 Green's Cr. R. G82. 
 Satterlee, 12 N. Y. Supm. N. S. 167 . 
 Saunders, 4 Parker, 196 
 Scholtz, 2 Wheeler's Crim. Cas. 017 . 
 Schryver, 42 N. Y. 1 ; 40 Barb. 625 
 Schuyler, 6 Cow. 572 . 
 Schwarz, 33 Cal. 160 
 Scoffffins, 37 Cal. 676 . 
 
 Receiving stolen property, 537. 
 
 New trial, 443, 449. 
 
 Evid. 152 ; Forg. and counterft'g, 
 197,202,213; Trial, 595,596,598. 
 
 Commit. 98, 99 ; Habeas corp. 353 ; 
 Misdemeanor, 438 ; Stat. 579. 
 
 Cert. 96 ; Form, acquit, or con. 224 ; 
 Trial, 627, 528 ; Wit. 651 ; Writ 
 of error, 661. 
 
 Homicide, 291 ; Witness, 656, 660. 
 
 Forcible ent. and det. 193, 194. 
 
 Indictment, 341 ; Verdict, 641. 
 
 Evidence, 158. 
 
 Evidence, 130. 
 
 Trial, 598. 
 
 New trial, 453, 461; Rec. stolen 
 property, 533, 536. 
 
 Com. 98; Forg. and counter. 201. 
 
 Conspiracy, 104, 105. 
 
 Habeas corpus, 253. 
 
 Larceny, 413. 
 
 Jurisdiction, 363. 
 
 Assault and batteiy, 54. 
 
 Evidence, 136. 
 
 Grand jury, 248. 
 
 Homicide, 255. 
 
 Jury, 370. 
 
 Larceny, 405, 413. 
 
 Evidence, 142 ; Larceny, 409. 
 
 Evid. 142 ; Intoxication as an ex- 
 cuse for crime, 361. 
 
 Larceny, 393. 
 
 Arrest, 23. 
 
 Blasphemy, 83. 
 
 Contin.lll ; Ilab.cor. 352; Tri.591 
 
 Evidence, 148. 
 
 Former acquittal or convic. 331. 
 
 Certiorari, 90. 
 
 Forg. and count. 310; Indict. 336. 
 
 Spir. liq. sale of, 57G ; Wit. 658. 
 
 Venue, change of, 034. 
 
 Homicide, 295, 296, 309. 
 
 Nuisance, 480. 
 
 Homicide, 268; Witness, 648. 
 
 Witness, 659. 
 
 Former acquittal or convic. 231. 
 
 Conspiracy, 105. 
 
 Homicide, 270, 323. 
 
 Larceny, 375. 
 
 Arson, 27. 
 
 Homicide, 291.
 
 744 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Scott, 6 Mich. 287 
 People agst. Sergeant, 8 Cow. 139 
 People V. Shaver, 4 Parker, 45 
 People V. Shaw, 1 Parker, .827 . 
 
 " 9 Cow. 778 . 
 
 " 5 Johns. 236 
 People V. Shea, 3 Parker, 563 
 
 "4 Parker, 344: 22 N. Y. 31', 
 
 People V. 
 
 Sheriff of Westchester, 1 Parker, 659 
 
 People V. 
 
 Shorter, 4 Barb. 460 ; 2 N. Y. 193 
 
 People V. 
 
 Shotwell, 27 Cal. 894 . 
 
 People V. 
 
 Shuler, 28 Cal. 490 . 
 
 Peojjle Y. 
 
 Simonds, 19 Cal.275 
 
 People V. 
 
 Simpson, 50 Cal. 304 
 
 People V. 
 
 Skeehan, 49 Barb. 217 . 
 
 People V. 
 
 Slack, 15 Mich. 193 . 
 
 People V. 
 
 Slayton, 1 Breese, 257 
 
 People V. 
 
 Smith, 57 Barb. 46 . . . 
 
 u 
 
 " 1 Parker, 329 
 
 li 
 
 " 5 Parker, 490 . . 
 
 li 
 
 " 24 Barb. 16 . . . 
 
 n 
 
 " 26 Cal. 665 . 
 
 11 
 
 " 31 Cal. 466 . 
 
 u 
 
 " 4 Parker, 255 
 
 u 
 
 " 15 Cal. 408 . 
 
 (( 
 
 " 23 Cal. 280 . 
 
 (( 
 
 " 5 Cow. 258 . 
 
 (( 
 
 " 1 Wheeler's Crim. Cas. 119 
 
 People V. 
 
 Snitlin, 1 Wheeler's Crira. Cas. 512 
 
 People V. 
 
 Snyder, 2 Parker, 23 . . . 
 
 People V. 
 
 Spoouer, 1 Denio, 343 . 
 
 People V 
 
 Stakem, 40 Cal. 599 . . . 
 
 People V. 
 
 Staudish, 6 Parker, 111 
 
 People V 
 
 Stanley, 47 Cal. 113 
 
 People V 
 
 St. Clair, 38 Cal. 137 . 
 
 People V. 
 
 Stearns, 21 Wend. 409 . 
 
 a 
 
 " 23 Wend. 634 . 
 
 People V. 
 
 Stein, 1 Parker, 202 
 
 People V 
 
 Stetson, 4 Barb. 151 . 
 
 People V. 
 
 Stewart, 4 Mich. 656 .. . 
 
 " 
 
 " 28 Cal. 395 . 
 
 a 
 
 7 Cal. 140 . . . . 
 
 People V 
 
 Stockham, 1 Parker, 424 
 
 People V. Stocking, 50 Barb. 573 
 6 Parker, 263 
 People Y. Stokes, 1 Wheeler's Crim. Cas. Ill 
 People V. Stone, 9 Wend. 182 
 '• 16 Cal. 369 . 
 
 Assault and battery, 48. 
 
 Gaming, 238 ; Nuisance, 475. 
 
 Bail and recognizance, 68. 
 
 Assault and battery, 52. 
 
 Forgery and counterfeiting, 200. 
 
 Forgery and counterfeiting, 201. 
 
 Habeas corpus, 252; Stat. 582. 
 
 Homicide, 275. 
 
 Homicide, 311. 
 
 Homicide, 321. 
 
 Forg. and count. 210 ; Sent. 560. 
 
 Eob. 547 ; Venue, change of, 634. 
 
 EYidence, 136. 
 
 Arson, 29. 
 
 EYidence, 167 ; Homicide, 263. 
 
 Bigamy, 77. 
 
 Bail and recognizance, 66. 
 
 Bill of excep. 82 ; Former acquit. 
 
 or convic. 229; Larceny, 415. 
 Burglary, 90; Indictment, 350; 
 
 Larceny, 394, 403. 
 False pretenses, 177. 
 Fore, entry and det. 190, 191, 195. 
 Homicide, 309. 
 Insanity, 358. 
 Larceny, 386. 
 Larceny, 388, 397. 
 Larceny, 413. 
 Malicious mischief, 429. 
 Trial, 630. 
 
 Assault and battery, 36. 
 Burglary, 95. 
 EYidence, 133. 
 
 Receiving stolen property, 533. 
 Voting, 643. 
 Evidence, 158. 
 Burglary, 90. 
 
 Forgery and counterfeiting, 208. 
 Writ of error, 662. 
 Embezzle. 130, 123; Indict. 336. 
 False pretenses, 173, 176, 184. 
 Forgery and counterfeiting, 209. 
 Homicide, 299. 
 Trial, 598. 
 Bill of exceptions, 81 ; Indictment, 
 
 349; Trial, 591. 
 Indictment, 332. 
 Voting, 643. 
 Animals, 18. 
 
 False pretenses, 173, 178. 
 Larceny, 382, 413.
 
 TABLE OF CASES. 
 
 745 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Stone, 8 Wend. 39 . . . 
 
 People V. Stonecifer, 6 Cal. 405 
 People V. Stout, 3 Parker, 670 . 
 
 " 4 Parker, 71, 132 . 
 People V. Stowell, 2 Deuio, 127 . 
 People V. Strong, 46 Cal. 302 . 
 
 " " 9 Wend. 182 . 
 
 People V. Stuart, 4 Cal. 218 . 
 People V. Sturtevant, 33 Wend. 418 
 People V. Sullivan, 3 Seld. 396 
 Poople V. Sully, 5 Parker, 1 43 . 
 People V. Sweetman, 3 Parker, 358 . 
 People V. Symonds, 33 Cal. 348 . 
 Peojjle V. Tannan, 4 Parker, 514 
 People V. Taylor, 3 Denio, 91 . 
 
 " " 36 Cal. 255 . 
 
 People T. Thacher, 6 Vroom (35 N. J.) 445 ; 1 Green' 
 
 Crim. Reps. 562 
 People V. Thayer, 1 Parker, 595 , 
 People V. TheaU, 50 Cal. 415 . 
 People v. Thomas, 3 Hill, 169 . 
 
 " 3 Parker, 256 ; afR'd 3 N. Y. Ct 
 of App. Decis. 571 
 People V. Thompson, 28 Cal. 314 . 
 " " 50 Cal. 480 
 
 " 34 Cal. 671 . 
 
 " " 4 Cal. 238 
 
 41 K Y. 1 . 
 People V. Thoms, 3 Parker, 256 . 
 
 People V. Thrall, 50 Cal. 415 . 
 People V. Thurston, 2 Parker, 49 
 People V. Tinder, 19 Cal. 539 . 
 
 People V. Tomlinson, 35 Cal. 503 
 
 People V. Tompkins, 1 Parker, 234 . 
 
 People V. Torres, 38 Cal. 141 ... 
 
 People V. Townsend, 3 Hill, 479 . 
 People V. Toynbee, 30 Barb. 168 
 People V. Travis, 4 Parker, 213 . 
 People V. Trim, 39 Cal. 75 . 
 
 '• " 37 Cal. 274 . . 
 
 People V. Tryon, 4 Mich. 665 
 People V. Tyler, 36 Cal. 523 
 
 " 85 Cal. 553 .... 
 
 " " 7 Mich. 161; 8 lb. 330 . 
 
 People V. Urias, 13 Cal. 335 .... 
 People V. Valencia, 43 Cal. 552; 1 Green's Cr. R. 715. 
 People V, Van Blurcum, 3 Johns, 105 
 
 New trial, 440. 
 Homicide, 383. 
 Evidence, 150. 
 
 Evi. 158 ; Homi. 381 ; Trial, 599. 
 Bastardy, 76. 
 
 Evidence, 153; Larceny, 398. 
 False pretenses, 185. 
 Sentence, 555. 
 Lottery, 438. 
 Homicide, 255, 313. 
 False pretenses, 178, 186, 183. 
 Perjury, 499. 
 Trial, 627. 
 Homicide, 273, 309. 
 Appeal, 19 ; Lottery, 438 ; Sen- 
 tence, 555, 556. 
 New trial, 448. 
 
 False pretenses, 177. 
 Homicide, 385 ; Verdict, 637. 
 Accessory, 10. 
 False pretenses, 174, 176. 
 
 Forgery and counterfeiting, 330. 
 
 Burglary, 91. 
 
 Evidence, 159. 
 
 Larceny, 383. 
 
 Sentence, 559. 
 
 Verdict, 639 ; Writ of error, 664. 
 
 Evidence, 141. 
 
 Evidence, 149. 
 
 Evidence, 163. 
 
 Bail and recognizance, 60, 63 ; 
 Indictment, 327. 
 
 Forgery and counterfeiting, 199; 
 Indictment, 339. 
 
 False pretenses, 178; Habeas cor- 
 pus, 353, 253. 
 
 Bill of exceptions, 81. 
 
 Nuisance, 476, 481, 483, 485. 
 
 Statutes, 578. 
 
 Perjury, 500. 
 
 Arson, 31. 
 
 Trial, 626. 
 
 Embezzlement, 121. 
 
 Evidence, 154. 
 
 Evidence, 169; Rape, 521. 
 
 Jurisdiction, 366. 
 
 Assault and battery, 51. 
 
 Homicide, 266. 
 
 Arson, 24.
 
 74G 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 487. 
 33 N. 
 
 People V. Vance, 21 Cal. 400 
 People V. Van Home, 8 Barb. 158 . 
 People V. Van Keureu, 5 Parker, 66 
 People V. Van Nostrand, 9 Wend. 50 
 " " 9 Cow. 655 
 
 People V. Van Steenburgh, 1 Parker, 39 
 People V. Vasquez, 49 Cal. 56.") 
 People V. Vermilyea, 7 Cow. 108 
 
 " " 7 Cow. 369 . 
 
 People V. Vernon, 35 Cal. 49 . 
 People V. Vice, 21 Cal. 344 
 People V. Videto, 1 Parker, 603 
 People V. Walsh, 43 Cal. 447; 1 Green's Cr. E. 
 People V. Walters, 5 Parker, 661 ; 6 lb. 15; 
 
 Y. 147 
 
 People V. Ward, 15 Wend. 231 . 
 People V. Warner, 4 Barb. 314 
 
 " " 5 Wend. 271 . 
 
 People V. Warren, 1 Parker, 338 
 People V. Way, 10 Cal. 336 
 People V. Webster, 3 Parker, 503 
 People V. Weil, 40 Cal. 268 
 People V. Wentz, 37 K Y. 303 
 People V. Weston, 4 Parker, 226 
 People V. Wheatley, 6 Cow. 661 
 People V. Wheelock, 3 Parker, 9 . 
 People T. AVhipple, 9 Cow. 707 
 People V. White, 55 Barb. 606 . 
 
 " " 14 Wend. Ill . 
 
 " " 22 Wend. 167 
 
 » " 24 Wend. 520 . 
 
 People V. Whitney, 1 N. Y. Supm. N. S. 533 
 People V. Wilber, 4 Parker, 19 . 
 People V. Wiley, 3 Hill, 194 . 
 
 People V. Williams, 4 Hill, 1 
 
 " " 3 Parker, 84 ; 1 N. Y. Ct. of App. 
 
 Decis. 596 . 
 
 " " 43 Cal. 344 ; 1 Green's Cr. R. 412. 
 
 " " 18 Cal. 187 . 
 
 " '•' 24 Mich. 156 . 
 
 " " 35 Cal. 671 . 
 
 " " 24 Cal. 31 . . , 
 
 " " 17 Cal. 142 . 
 
 Homicide, 268. 
 
 Bail and recognizance, 59, 61. 
 
 Forgery and counterfeiting, 198. 
 
 Forcible entry and defc. 192, 194. 
 
 Indictment, 348 ; Judgment, 363. 
 
 Felony, 190. 
 
 Homicide, 262. 
 
 Bail and recognizance, 64 ; Venue, 
 
 change of, 635. 
 Contin. Ill; New trial, 457, 458. 
 Homicide, 297. 
 Robbery, 547. 
 Verdict, 637. 
 Homicide, 314, 321. 
 
 Indictment, 331, 352. 
 
 Former acquittal or conviction, 226. 
 
 Lottery, 428. 
 
 Perjury, 505. 
 
 Former acquittal or conviction, 226. 
 
 Forgery and counterfeiting, 220. 
 
 Commitment, 98. 
 
 New trial, 449; Trial, 602. 
 
 Evidence, 142. 
 
 Jurisdiction, 365 ; Oflicer, 491. 
 
 Extortion, 171. 
 
 Spirituous liquors, sale of, 566, 573. 
 
 Access. 11 : Pardon, 494; Wit. 649. 
 
 Ass.& batt.45 ; For.acq.or con. 223 ; 
 Ind.338 ; Riot, 54-3, 544 ; Ver.641. 
 
 Forg. & counterfeit. 220 ; Trial, 607. 
 
 Homicide, 209 ; New trial, 450. 
 
 Homicide, 274; New trial, 450. 
 
 Forcible entry and detainer, 193. 
 
 Indictment, 342. 
 
 Larceny, 382, 399, 414; New trial, 
 464 ; Receiving stolen property, 
 533, 534, 535, 537 ; Verdict, 640. 
 
 False pretenses, 173, 174. 
 
 Evidence, 133, 157 ; Homicide, 279, 
 
 281, 294, 295. 
 Homicide, 256, 275 ; Intoxication 
 
 as an excuse for crime, 362. 
 Homicide 288; New trial, 441. 
 Larceny, 374, 385. 
 Larceny, 387. 
 New trial, 452 ; Venue, change of, 
 
 634. 
 Trial, 600, 610, 615.
 
 TABLE OF CASES. 
 
 747 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 People V. Williams, 19 Wend. 377 
 People V. Willis, 5 Barb. 511 . 
 People V. Wilson, 3 Parker, 199 . 
 
 " " 30 Micl). 48G 
 
 People agst. Wiuchell, 7 Cow. 100 
 
 " " 7 Cow. 524 
 
 People V. Winkler, 9 Cal. 234 
 People V. Winters, 3 Parker, 10 
 
 " " 29 Cal. 658 . 
 
 People V. Wood, 3 Parker, 681 
 People V. Woodward, 45 Cal. 293 ; 2 Gr. Cr. R. 421 
 People V. Woody, 45 Cal. 289 
 
 " 47 Cal. 80 
 People V. Wright, 45 Cal. 260 
 
 " 9 Wend. 193 . 
 People V. Yates Gen. Sess. 5 Wend. 110 
 People V. Ybarra, 17 Cal. 106 . 
 People V. Young, 31 Cal. 563 
 People V. Yslas, 27 Cal. 630 
 People V. Zeiger, 6 Parker, 355 
 Perdue v. State, 2 Humph. 494 . 
 Pereira, Ex parte, 6 Rich. 149 
 Peri V. People, 65 111. 17 . 
 Perkins v. Com. 7 Gratt. 651 
 Perkins v. People, 27 Mich. 386 ; 2 Gr. Cr. R. 567 
 Perkins v. State, G Ohio, 274 . 
 Perkins v. Stevena, 24 Pick. 277 
 Perry v. State, 43 Ala. 21 . 
 
 " 10 Ga. 511 . 
 Perry's Case, 3 Gratt. 632 .. . 
 
 Peter v. State, 4 Sm. & Marsh. 31 . 
 Peters v. State, 39 Ala. 681 
 Peterson v. State, 47 Ga. 524 ; 1 Green's Cr. R. 576 
 
 " " 32 Texas, 477 
 
 Peverelly v. People, 3 Parker, 59 
 Pfomer v. People, 4 Parker, 558 
 Phelps V. People, 13 N. Y. Supm. X. S. 401 " . 
 Phillips V. Com. 2 Duvall, Ky. 328 . 
 Phillips V. People, 57 Barb. 353 ; 42 N. Y. 200 . 
 
 " " 55 111. 29 . 
 
 Phillips V. State, 19 Texas, 158 . 
 
 " 33 Ga. 281 . 
 Phipps V. State, 3 Cold. 344 
 Pierce v. State, 13 New Ham p. 556 . 
 Pierson v. State, 12 Ala. 149 
 Pigman v. State, 14 Ohio, 555 
 Pike V. Com. .2 Duvall, Ky. 89 . 
 Pike V. State, 35 Ala. 419 
 
 Witness, 649. 
 
 Bail and recognizance, 65. 
 
 Homicide, 270, 271 ; Jurisdiction^ 
 
 366 ; Trial, 597, 598. 
 Larceny, 408. 
 Bail and recognizance, 70. 
 Sentence, 555. 
 Larceny, 398. 
 Assault and battery, 35. 
 Burglary, 94. 
 Evidi-nce, 158. 
 Rape, 529, 530. 
 Homicide, 201. 
 Robbery, 548. 
 Assault and battery, 56. 
 Forg. & counterfeiting, 204, 210. 
 Commitment, 98. 
 Trial, 621. 
 Perjury, 500. 
 
 Assault & batteiy, 32, 52; Ev. 169. 
 Verdict, 637. 
 
 Forgery and coun. 199, 209, 218. 
 Appeal, 19. 
 Homicide, 277. 
 
 Forg. & counterfeiting, 204, 219. 
 Forg. and counterfeiting, 197, 314. 
 Indictment, 349. 
 Pardon, 495. 
 Homicide, 254. 
 Larceny, 380. 
 Witness, 648. 
 Evidence, 141, 146, 147. 
 Sentence, 554. 
 
 Evidence, 149 ; Witness, 647. 
 Indictment, 331, 
 Arson, 25. 
 Trial, 621. 
 Larceny, 375. 
 Homicide, 317. 
 Evidence, 136, 144 ; Larceny, 405 ; 
 
 Writ of error, 663. 
 Former accjuittal or convic. 224. 
 Indictment, 341. 
 New trial, 457. 
 Homicide, 302. 
 Trial, 597. 
 Homicide, 281, 303. 
 Forgery and counterfeiting, 223. 
 Theatrical performance, 585. 
 License, 426.
 
 748 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Pilkenton v. State, 19 Texas. 214 . 
 
 Pirtle T. State, 9 Humph. 663 . 
 
 Pitcber v. People, 16 Mich. 143 . 
 
 Pitman v. State, 22 Ark. 354 . 
 
 Pitts V. State, 48 Miss. 473 . 
 
 Pittsburgh v. Young, 3 Watts, 363 
 
 Plato V. People, 3 Parker, 586 .. , 
 
 Pleasant v. State, 2 Eng. 300 . 
 
 " " 8 Eng. 360 ... 
 
 " " 15 Ark. 624 . 
 
 Poage T. State, 3 Ohio, N. S. 229 . 
 Polk y. State, 19 Ind. 170 ... 
 
 Pollard v. Com. 5 Rand; 659 
 Pollard V. People, 69 111. 148 . 
 Pollard V. State, 2 Clarke, 567 .. . 
 
 Pond V. People, 8 Mich. 150 
 Poore V. Com. 3 Va. Cas. 474 
 Pope V. State, 33 Ark. 372 .. . 
 
 " "35 Miss. 131 , 
 
 Porter v. State, 5 Mo. 538 ... 
 
 " 15 Ind. 433; 17 lb. 415 
 
 " " 1 Mart. & Yerg. 326 
 
 " " 2 Carter, 435 ... 
 
 "5 Sneed, 358 . 
 Portis V. State, 27 Ark. 360 ; 1 Green's Cr. Reps. 325. 
 
 " " 33 Miss. 578 
 
 Potter V. Kingsbery, 4 Day, 98 . . . 
 
 Potter V. State, 39 Texas, 388 
 Pound V. State, 43 Ga. 88 . 
 
 Powell V. Com. 11 Gratt. 823 
 Powell V. State, 24 Ala. 31 
 
 " " 19 Ala. 577 ... 
 
 " " 37 Texas, 348 . 
 
 " 48 Ala. 154 
 Powell V. U. S. 1 Morris, 17 . . . 
 
 Powell's Case, 8 Leigh, 719 . 
 Powers Y. State, 9 Humph. 374 . 
 Pratt V. Bogardus, 49 Barb. 89 . . . 
 
 Pratt V. Price, 11 Wend. 137 . 
 Preisker v. People, 47 111. 383 .. . 
 
 Presbury v. Com. 9 Dana, 203 
 
 Preston v. State, 35 Miss. 383 , • . 
 
 Price V. Com. 31 Gratt. 846 . 
 
 Price V. State, 18 Ohio, N. S. 418 . 
 '' 19 Ohio, 423 
 
 " " 36 Miss. 531 .... 
 
 " 8 Gill, 395 ... 
 
 Trial, 614. 
 
 Homicide, 255, 275. 
 
 Witness, 649. 
 
 Homicide, 290. 
 
 Evidence, 149; Homicide, 286. 
 
 Summary conviction, 583. 
 
 Statutes, 579. 
 
 New trial, 458. 
 
 New trial, 442 ; Rape, 533, 53b ; 
 
 Witness, 659. 
 Rape, 531. 
 
 Forg. & counterf. 303 ; Trial, 628. 
 Insanity, 357. 
 Trial, 602. 
 Perjury. 499. 
 Rape, 527. 
 
 Homicide, 317, 321, 322. 
 New trial, 444, 457. 
 Evidence, 135. 
 New trial, 455. 
 Adultery, 13. 
 
 Forgery and counterfeiting, 217. 
 Larceny, 379. 
 New trial, 453, 458, 459. 
 Voting, 645. 
 Gaming, 236. 
 Grand jury, 249. 
 Bail and recognizance, 60. 
 Larceny, 388. 
 Evi. 135; Homi. 299, 300; New 
 
 trial, 460; Trial, 621. 
 Forgery and counterf. 196, 204. 
 Evidence, 164. 
 
 Homicide, 390; Witness, 6-37. 
 New trial, 459. 
 Trial, 611. 
 Trial, 592. 
 
 Malicious mischief, 430. 
 Forgery and counterfeiting, 221. 
 Officer, 487 ; Warrant, 646. 
 Perjury, 499. 
 Rape, 531. 
 New trial, 456. 
 
 Homicide, 305, 309; Trial, 615. 
 Larceny, 406. 
 Evidence, 142. 
 Former acquittal or convict'n, 223; 
 
 Indictment, 331. 
 Homicide, 258 ; Trial, 629. 
 Trial, 593; Venue, change of, 635.
 
 TABLE OF CASES. 
 
 740 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Price's Case, 8 Leigh, 757 
 Pridgen v. State, 31 Texas, 420 
 Prim V. State, 33 Texas, 157 
 Prime, Matter of, 1 Barb. 310 
 Prince V. State, 35 Ala. 867 . 
 
 "30 Ga. 27 
 Pritchett v. State, 22 Ala. 39 
 
 " 2 Sneed, 285 
 Puller V. People, 1 Doug. 48 
 Pulling V. People, 8 Barb. 384 
 Purkey v. State, 3 Heisk. 26 
 Putnam v. Putnam, 8 Pick. 433 
 Pyland v. State, 4 Sneed, 357 
 
 Gaming, 245. 
 Homicide, 309. 
 Larceny, 373. 
 Habeas corpus, 249, 252. 
 Eape, 528. 
 Riot, 542. 
 
 Homicide, 291, 298. 
 Larceny, 379. 
 Witness, 650. 
 Certiorari, 98. 
 Misdemeanor, 439. 
 Bigamy, 77. 
 Larceny, 379, 391. 
 
 Q 
 
 Quarles v. State, 5 Humph. 561 . 
 Quesenberry v. State, 3 Stew. & Port. 308 
 Quigley v. People, 2 Scam. 301 . 
 Quimbo Appo v. People, 20 N. Y. 531 
 Quinlan v. People, 6 Parker, 9 
 Quinn v. State, 35 Ind. 485 . 
 
 Gaming, 237. 
 
 Trial, 598. 
 
 Forgery and counterfeiting, 209. 
 
 Jurisdiction, 367. 
 
 Evidence, 156; Larceny, 404. 
 
 Voring, 643. 
 
 E 
 
 Radford v. State, 35 Texas, 15 , 
 Rafferty v. People, 69 111. Ill 
 
 " 66 111. 118 . 
 Rainey v. People, 3 Gilman, 71 . . . 
 
 Rainforth v. People, 61 111. 365 . 
 Rakes v. People, 2 Kansas, 157 
 Ramo V. Wilson, 24 Vt. 517 
 Ramsey v. State, 5 Sneed, 652 
 Randal v. State, 4 Smed. & Marsh. 349 . 
 Randle v. State, 42 Texas, 580 
 Ranney v. People, 23 N. Y. 413 . 
 Ransom v. State, 22 Conn. 153 
 Rapp V. Com. 14 B. Monr. 614 . 
 Raswick v. Com. 2 Va. Cas. 356 
 Ratzky v. People, 29 N. Y. 124 . 
 
 Rawlings v. State, 1 Md. 127 ... 
 
 Rawls V. State, 8 Smed. & Marsh. 599 . 
 Ravvson v. State, 19 Conn. 393 
 Ray V. State, 1 Iowa (Greene), 310 
 
 Read v. Com. 32 Gratt. 924 ; 1 Green's Cr. Reps. 267. 
 
 Larceny, 401. 
 
 Homicide, 310. 
 
 Intox. as an excuse for crime, 36(7. 
 
 Judgment, 363. 
 
 Trial, 625. 
 
 New trial, 443, 448. 
 
 Bastardy, 73. 
 
 Voting, 645. 
 
 Larceny, 379. 
 
 Lottery, 426. 
 
 False pretenses, 175. 
 
 Larceny, 379. 
 
 Homicide, 276, 310, 317. 
 
 Forgery and counterfeiting, 197. 
 
 Former accpiittal or convict'n, 228 - 
 
 Sentence, 559. 
 Venue, change of, 635. 
 Abatement, 1. 
 
 Spirituous liquors, sale of, 568. 
 Evidence, 159; Larceny,414; New 
 
 trial, 457 ; Witness, 649. 
 Assault tfc battery, 53; Homicide, 
 
 273; .Malicious mischief, 433; 
 
 Sunday, 584.
 
 rso 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Read v. State, 3 Carter, 438 . 
 
 " " 1 Smith, 369 . 
 
 " " 1 Carter, 511 . 
 
 Eeading v. Com. 11 Penn. St. 196 
 Real, Matter of, 53 Barb. 186 
 Real V. People, 55 Barb. 551 ; aff 'd 43 N. Y. 370 
 
 Rector v. State, 1 Eng. 187 . 
 Reddan v. State, 4 Greene, 137 . 
 Reddill's Case, 1 Whart. 445 
 Redfield v. State, 34 Texas, 138 . 
 Redman v. State, 38 Ind. 305 
 Reed v. Com. 7 Bush, Ky. 641 . 
 Reed v. Elwell, 46 Maine, 370 
 Reed v. People, 1 Parker, 481 
 Reed v. State, 38 Ind. 396 . 
 " 15 Ohio, 217 
 " " 16 Ark. 499 . 
 
 "Reese V. State, 8 Ind. 416 
 Reeves v. State, 30 Ala. 33 . 
 Reid V. State, 30 Ga. 681 
 Reins v. People, 30 III. 356 . 
 
 Remsen v. People, 57 Barb. 334 
 Renwick v. Morris, 7 Hill, 575 . 
 Resp. V. Arnold, 3 Yeates, 417 
 Resp. V. Bob, 4 Dall. 145 
 Resp. V. Hammond, 1 Yeates, 71 
 Resp. V. Hevice, 3 Yeates, 114 . 
 Resp. V. Langcake, 1 Yeates, 415 
 Resp. V. Malin, 1 Dall. 33 
 Resp. V. McCarty, 3 Dall. 86 
 Resp. T. Montgomery, 1 Yeates, 419 
 Resp. V. Powell, 1 Dall. 47 . 
 Resp. V. Roberts, 3 Dall. 134 
 Resp. V. Ross, 3 Yeates, 1 
 Resp. V. Steele, 3 Dall. 93 
 Resp. V. Teischer, 1 Dall. 335 
 Revel V. State, 36 Ga. 375 . 
 Rex V. Humphrey, 1 Root, 63 
 Reynolds' Case, 3 Wallace, jr. 145 
 Reynolds v. Corp, 3 Caines, 269 
 Reynolds, Matter of, 6 Parker, 273 
 Reynolds v. Orvis, 7 Cow. 369 
 Reynolds v. State, 3 Kelly, 53 
 
 " " 1 Kelly, 333 
 
 Assault and battery, 54. 
 
 Malicious mischief, 431. 
 
 Malicious trespass, 435. 
 
 Nuisance, 468, 471. 
 
 Evidence, 131. 
 
 Continuance, 113; Evidence, 131, 
 136, 164; Homi. 373,391,292; 
 Insanity, 358 ; Intox. as an ex- 
 cuse for crime, 362 ; Juris. 367 ; 
 Trial, 633 ; Witness, 657. 
 
 Former acquittal or convict'n,327. 
 
 Trial, 606. 
 
 Sentence, 560. 
 
 False imprisonment, 173. 
 
 Escape, 134; Witness, 654. 
 
 Larceny, 393. 
 
 Forcible entry and detainer, 193. 
 
 Indictment, 339; Nuisance, 479. 
 
 Forgery and counterfeiting, 203. 
 
 Forgery and counterf. 215, 231. 
 
 Homicide, 366, 370, 273. 
 
 Trial, 628. 
 
 Indictment, 335. 
 
 Conspiracy, 104. 
 
 Homicide, 319; New trial, 453; 
 Verdict, 642. 
 
 Larceny, 403. 
 
 Nuisance, 476. 
 
 Nuisance, 477. 
 
 Homicide, 264. 
 
 Extortion, 171. 
 
 Conspiracy, 108. 
 
 Homicide, 296. 
 
 Treason, P88. 
 
 Treason, 586, 588. 
 
 Riot, 543. 
 
 False pretenses, 177. 
 
 Adultery, 12. 
 
 Forgery and counterfeiting, 213. 
 
 Outlawry, 493. 
 
 False pret. 179 ; Mai. miscli. 439. 
 
 Homicide, 383. 
 
 Burglary, 89. 
 
 Trial, 601. 
 
 Arrest, 22. 
 
 Habeas corpus, 351, 253, 254. 
 
 Arrest, 21. 
 
 Former acquittal or conviction, 
 331; Nolle prosequi, 466. 
 
 Homicide, 378, 304, 305, 814; 
 Trial, 691.
 
 TABLE OF CASES. 
 
 751 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Rhoads v. Com. 15 Penn. St. 273 
 Rhodihan v. People, 5 Parker, 395 . 
 Rhodus V. Com. 2 Duvall, Ky. 159 
 Rice V. Com. 18 B. Mon. 472 . . 
 
 Rice V. State, 16 Ind. 298 
 
 " " 47 Ala. 38 ; 1 Green's Cr. Reps. 708 
 
 " " 3 Kansas, 141 , 
 
 " " 7 Ind. 332 
 
 " " 8 Mo. 561 . 
 
 " " 3 Heisk. 215 ; 1 Green's Cr. Reps. 360 
 
 " " 8 Ohio, 111 . 
 
 Richards v. Com. 13 Gratt. 803 . 
 Richardson v. State, 37 Texas, 346 . 
 Richels v. State, 1 Sneed , 606 . 
 Richmond v. State, 2 Greene, 532 
 Riddle v. State, 49 Ala. 389 . 
 
 Ridgeway v. State, 41 Texas, 231 
 Riggs V. State, 3 Cold. Tenn. 85 
 
 " " 30 Miss. 635 . 
 
 Riley v. State, 32 Texas, 763 . 
 
 " " 16 Conn. 47 . 
 
 " " 9 Humph. 657 
 
 Rippy V. State, 2 Head, 217 . 
 Ritchey v. State, 7 Blackf. 168 
 Ritter V. State, 33 Texas, 608 
 Rivers, Ex parte, 40 Ala. 712 
 Roach V. State, 5 Cold. Tenn. 39 
 Robbins v. State, 20 Ala. 36 
 " 8 Ohio, 131 
 Roberts' Case, 10 Leigh, 686 
 
 " " 1 Dall. 39 
 
 Roberts v. State, 2 Head, 501 
 
 " " 14 Ga. 8 . 
 
 " " 14 Mo. 138 
 
 " " 2 Overt. 423 . . . 
 
 Robie V. McNiece, 7 Vt. 419 
 Robin V. State, 40 Ala. 72 . 
 Robinson v. Com. 16 B. Mon. 609 
 
 " " 101 Mass. 27 . . . 
 
 Robinson, Ex parte, 19 Wallace, 505 ; 2 Green's Cr. 
 
 Reps. 135 . 
 Robinson v. State, 31 Texas,'170 
 
 " " 12 Mo. 593 
 
 " " 24 Texas, 152 . 
 
 " " 42 Ala. 509 . 
 
 " " 1 Cold. Tenn. 120 
 
 <' 1 Kelly, 503 . 
 
 " " 5 Ark. G59 
 
 Bail and recog. 71 ; Fal. pret.179. 
 
 Larceny, 414. 
 
 Larceny, 391. 
 
 Attorney, 58. 
 
 Assault and battery, 50. 
 
 Evidence, 146,149. 
 
 Gaming, 241. 
 
 Homicide, 287. 
 
 Homicide, 310. 
 
 Receiving stolen property, 534. 
 
 Larceny, 387. 
 
 Larceny, 373. 
 
 Adultery, 13. 
 
 Assault and battery, 34. 
 
 "Witness, 656. 
 
 Assault and battery, 46. 
 
 Larceny, 387, 391. 
 
 Officer, 490. 
 
 Homicide, 280. 
 
 Embezzlement, 121, 123. 
 
 Escape, 124; Sentence, 560. 
 
 Homicide, 257, 265, 277; New 
 
 trial, 442, 454. 
 Homicide, 298, 315. 
 Arson, 29. 
 
 Malicious mischief, 434. 
 Venue, change of, 634. 
 Receiving stolen }>roperty, 536. 
 Assault and battery, 46. 
 Homicide, 257. 
 Gaming, 243. 
 Treason, 586. 588. 
 False pretenses, 177. 
 Former acquit, or convict. 223 ; 
 
 Trial, C12 ; Verdict, 640. 
 Homicide, 310; Indictment, 333; 
 
 New trial, 441, 459. 
 Pardon, 494. 
 Bastardy, 72. 
 
 Judgment, 364; Sentence, 555. 
 Assault and battery, 57. 
 Indictment, 345. 
 
 Attorney, 58; Contemjit, 110. 
 Assault and battery, 50. 
 Evidence, 140. 
 Gaming, 237. 
 Homicide, 304. 
 Larceny, 374. 
 Larceny, 401. 
 New trial, 441.
 
 752 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Robinson v. State, 3 Cold. Tenn. 181 
 Rockwell V. State, 12 Ohio, K S. 427 
 Rodgers v. State, 26 Ala. 70 . 
 
 Rogers v. State, 33 Ind. 543 . 
 Rohan v. Sawin, 5 Cush. 281 
 Rohe, Ex parte, 5 Ark. 104 . 
 Romp V. State, 3 Greene, 376 . 
 Root V. State, 10 Gill & Johns. 374 . 
 Roquemore v. State, 19 Ala. 528 . 
 Roscow V. Corson, 8 Taunt. 684 
 Rose V. State, 33 Ind. 167 
 
 " " Minor, 38 . . . 
 
 " 30 Ohio, 31 . . . 
 
 Rosekrans v. People, 5 N. Y, Snpm. N. S. 407 
 
 Rosenbaum v. State, 33 Ala. 354 
 
 Rosenzweig v. People, 6 Lans. 463 ; 63 Barb. 034 
 
 Ross V. Com. 3 B. Mon. 417 . 
 
 Ross, Ex parte, 3 Bond, 353 
 
 Boss V. Hunter, 4 Term R. 33 
 
 Ross V. lunis, 35 111. 487 
 
 Ross V. People, 5 Hill, 294 . 
 
 Ross V. State, 9 Mo. 687 . 
 
 " " 1 Blackf. 390 . 
 
 Rothbauer v. State, 23 Wis. 468 . 
 Rouse V. State, 4 Ga. 136 
 Rowe V. State, 11 Humph. 491 
 
 " " 3 Bay, 565 
 
 Rowell V. Small, 30 Maine, 29 . 
 Royster, Ex 2jarte, 1 Eng. 28 
 Ruby V. State, 7 Mo. 206 ... 
 
 Rulo V. State, 19 Ind. 398 . 
 Ruloflf V. People, 5 Lans. 361 . 
 •' 45 N. Y. 313 
 " " 18 N. Y. 179; rev'g 3 Parker, 401 
 
 Rump V. Com. 30 Penn. St. 475 
 Rumsey v. People, 19 N. Y. 41 . 
 Russell V. Com. 7 Serg. & Rawle, 489 
 Russell V. State, 33 Ala. 366 . 
 
 Rutherford v. Com. 3 Mete. 387 
 Rutter, Matter of, 7 Abb. N. S. 67 
 Ryan v. State, 45 Ga. 128 ■ . 
 
 Officer, 489. 
 
 Evidence, 138. 
 
 Gaming, 240. 
 
 Larceny, 413. 
 
 Arrest, 21. 
 
 Commitment, 98. 
 
 Gaming, 241. 
 
 Bastardy, 72, 73. 
 
 Gaming, 340. 
 
 Barratry, 71. 
 
 Assault and battery, 47. 
 
 Indictment, 351. 
 
 New trial, 461. 
 
 Forgery and counterfeiting, 303; 
 Indictment, 338. 
 
 Assault and battery, 46 ; Misde- 
 meanor, 440 ; Trial, 617, 623. 
 
 Evidence, 166; New trial, 447. 
 
 Misdemeanor, 437. 
 
 Fugitives from justice, 234. 
 
 Barratry, 71. 
 
 Embezzlement, 120. 
 
 Larceny, 378. 
 
 Judgment, 363. 
 
 Larceny, 399. 
 
 Trial, 639. 
 
 Forg. and counterf. 307, 311, 313. 
 
 New trial, 451,455. 
 
 Pardon, 493. 
 
 Larceny, 400. 
 
 Habeas corpus, 350. 
 
 Venue, change of, 635. 
 
 Trial, 611. 
 
 Ev. 153; Homicide, 375, 376. 
 
 Ev.l57; Homi.363,333; Trial, 634. 
 
 Homicide, 370. 
 
 Perjury, 499. 
 
 Assault and battery, 53. 
 
 Sentence, 557. 
 
 Indictment, 350; Sentence, 559. 
 
 Evidence, 143, 144. 
 
 Fugitives from justice, 334. 
 
 False pretenses, 175. 
 
 s 
 
 SafEord v. People, 1 Parker, 474 
 
 Bill of exceptions, 81 ; Seduction, 
 551, 552, 553; Sentence, 555; 
 Verdict, 637.
 
 TABLE OF CASES. 
 
 753 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Salisbury v. State, 6 Conn. 101 
 Sallie T. State, 39 Ala. 691 
 Salomon v. State, 28 Ala. 83 . 
 Sam V. State, 13 Smed. & Marsh. 189 
 " " 31 Miss. 480 . 
 
 " 1 Swan, 61 . 
 Sampson v. Com. 5 Watts & Serg. 385 
 Samuels v. State, 3 Mo. 50 . . . 
 
 Sanchez v. People, 4 Parker, 535 ; 32 N. Y. 147 . 
 
 Sanderlin v. State, 2 Humph. 315 
 
 Sander's Case. 5 Leigh, 751 
 
 Sanders v. State, 18 Ark. 198 ... 
 
 Sandford v. Nichols, 13 Mass. 286 
 
 Sandford v. State, 6 Eng. 328 ... 
 
 Sands v. Com. 2 Gratt. 87 . . . 
 
 " " 3 Gratt. 800 . 
 
 Sarah v. State, 28 Ga. 576 ... 
 
 " " 28 Miss. 267 . . . . 
 
 Sartorius v. State, 24 Miss. 603 . 
 Sasser v. State, 13 Ohio, 453 . . . . 
 
 Satterwhite v. State, 28 Ala. 65 . 
 Sattler V. People, 59 111. 68 ; 2 Green's Crim. Reps. 550. 
 Saunders v. Coffin, 16 Ala. 431 . 
 
 Sawyer v. Joiner, 16 Vt. 497 
 Sawyer v. State, 35 Ind. 80 . 
 Sayres v. State, 30 Ala. 15 
 
 Schaller v. State, 14 Mo. 502 . . . 
 
 Schii-mer v. People, 33 111. 276 . 
 Schmidt v. State, 14 Mo. 137 . 
 
 Sehnier v. People, 23 111. 17 . 
 Schooler v. Com. Litt. Sel. Cas. 88 
 Schusler v. State, 29 Ind. 394 
 Scitz V. State, 23 Ala. 42 
 Scott V. Com. 6 Serg. & Rawle, 224 
 
 " " 4 Mete. Ky. 237 . 
 
 Scott V. Ely, 4 Wend. 555 , 
 Scott V. People, 62 Barb. 62 
 Scott V. State, 30 Ala. 503 . 
 
 " " 48 Ala. 430 
 
 Scott V. U. S. 1 Morris, 142 . 
 Scott's Case, 1 Rob. 695 . 
 Scraggs V. State, 8 Smed. & Marsh. 732 
 Scully V. State, 39 Ala. 240 
 Seabright v. State, 2 West. Va. 591 . 
 Seal V. State, 13 Smed. & Marsh. 28G 
 Sealy v. State, 1 Kelly, 213 . 
 Searls v. People, 13 111. 597 
 Seibert v. State, 40 Alu. 60 . 
 Sellers v. People, 1 Oilman, 183 . 
 48 
 
 Larceny, 389. 
 
 Larceny, 383, 390. 
 
 Lottery, 428. 
 
 Indictment, 353; Trial, 601. 
 
 New trial, 445. 
 
 New trial, 461. 
 
 Accessory, 10; Arson, 35. 
 
 Jury, 370. 
 
 Ev. 155 ; Homi. 360, 267 ; Insanity, 
 
 358 ; Trial, 601 ; Witness, 658. 
 Misdemeanor, 438. 
 Gaming, 239. 
 Nuisance, 486. 
 Arrest, 22. 
 
 Escape, 125 ; Trial, 604. 
 Conspiracy, 108. 
 
 Forgery and counterfeiting, 197. 
 Evidence, 147. 
 Indictment, 340. 
 Trial, 618 ; Witness, 653, 654. 
 Forgery and counterfeiting, 315. 
 Bastardy, 75. 
 Malicious mischief, 430. 
 Indictment, 328. 
 Misdemeanor, 440. 
 Homicide, 260. 
 Larceny, 401, 411. 
 Perjury, 513. 
 
 Evidence, 131, Trial, 005. 
 Spirituous liquors, sale ot, 568, 
 
 576. 
 Ev. 163; Homi. 319; Verdict, 638. 
 Bastardy, 73. 
 Homicide, 303. 
 Assault and battery, 57. 
 Assault and battery, 40. 
 Insanity, 355. 
 Bastardy, 74. 
 False pretenses, 175. 
 Evidence, 137 ; Larceny, 405. 
 Rape, 533. 
 
 Former ac. or con. 230 ; Riot, 543. 
 Forgery and counterfeiting, 206. 
 Homicide, 304. 
 
 Forg. and counterfeit. 212, 223. 
 Unwhol. provisions, sale of, 632. 
 New trial, 456. 
 
 Continuance, 112; Witness, 657. 
 LasciviousnesB, 417. 
 Sprituous liquors, sale of, 575. 
 Homicide, 305.
 
 754 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Sellers v. People, 3 Scam. 412 ... 
 
 Semme's Case, 11 Leigh, 605 
 Serjeant, Case of, 2 City Hall Rec. 44 
 Severin v. People, 37 111. 414 . 
 Shadle v. State, 34 Texas, 572 .. . 
 
 Shaffner v. Com. 72 Penn. St. GO ; 2 Green's Cr. R 504. 
 Shafher v. State, 20 Ohio, 1 . . . 
 
 Shanahan y. Com. 8 Bush, 463 ; 1 Green's Cr. R. 373. 
 Sharkey v. People, 3 N.Y. Supm. N. S. 739 ; 8 lb. 300. 
 Sharp V. State, 19 Ohio, 379 
 
 " " 15 Ala. 749 . 
 
 " "16 Ohio, N. S. 218 . 
 
 Sharpe v. State, 48 Ga. 16 . . . 
 
 Shattuck V. People, 4 Scam. 477 
 Shaw V. People, 5 K Y. Supm. 439 
 Shaw V. State, 18 Ala. 547 .... 
 
 Shay V. People, 22 N. Y. 317 ; 4 Parker, 358 
 Shearer v. State, 7 Blackf. 99 . . . 
 
 Shell V. State, 6 Humph. 283 . 
 Shelton v. State, 1 Stew. & Port. 208 
 Shepherd v. People, 19 N. Y. 537 
 " " 25N. Y. 406 
 
 Shepherd v. State, 42 Texas, 501 
 
 Sheppard v. State, 42 Ala. .531 
 
 Sherban v. Com. 8 Watts, 212 . 
 
 Sheriff and Jailer of New York, Matter of, 1 Wheeler's 
 
 Crim. Cas. 303 
 Sherman v. Com. 14 Gratt. 677 
 Sherrod v. State, 25 Ala. 78 
 Shifflet V. Com. 14 Gratt. 652 
 Shirley v. State, 1 Oregon, 269 . 
 Shirwin v. People, 69 111. 55 
 Shoeffler v. State, 3 Wis. 823 
 Shoemaker v. State, 12 Ohio, 43 
 Shore v. State, 6 Mo. 640 
 Short V. State, 4 Harring. 568 
 
 " " 7 Yerg. 513 
 
 Shorter v. People, 2 Comst. 193 
 Shouse V. Com. 5 Barr, 83 
 Shover v. State, 5 Eng. 259 . 
 Shriedlyv. State, 23 Ohio, N. S. 130; 2Gr.Cr.R. 530. 
 
 Shropshire v. State, 7 Eng. 190. . . , 
 
 Shnfflin v. People, 6 N. Y. Supm. N. S. 215 
 
 Silver v. State, 17 Ohio, 365 . 
 
 Silvus T. State, 22 Ohio, N. S. 90; 1 Green's Cr. R. 679. 
 
 Simon v. State, 37 Miss. 288. 
 
 Simons V. State, 7 Ohio, 116 . . . 
 
 Simonton, £ir ^ irrf^f, 9 Porter, 390 
 
 New trial, 446. 
 
 Bail and recognizance, 61, 66. 
 
 Former acquittal or convict. 223. 
 
 Former acquittal or convic. 230. 
 
 Concealed weapons, 101. 
 
 Evidence, 157 ; Homi. 274, 281. 
 
 Bigamy, 77. 
 
 Intox. as an ex. for crime, 360, 361. 
 
 Escape, 125. 
 
 Ass. and bat. 53, 55 ; Homi. 304. 
 
 Bill of exceptions, 82 ; Evid. 134. 
 
 Evidence, 169. 
 
 Rape, 529. 
 
 Bail and recognizance, 63, 66, 68. 
 
 Homicide, 289, 293 ; Trial, 608. 
 
 Assault and bat. 50 ; Indict. 350 ; 
 
 Verdict, 640. 
 Homi. 266 ; Indict, 346 ; Wit. 653. 
 Spirituous liquors, sale of, 576. 
 Malicious mischief, 430. 
 Indictment, 333. 
 Arson, 24, 27, 29. 
 Form, acquittal or con. 228, 231 ; 
 
 Statutes, 579. 
 Burglary, 91. 
 Larceny, 395. 
 Indictment, 335. 
 
 Attorney, 58. 
 
 Escape, 125. 
 
 Gaming, 240. 
 
 Evidence, 142. 
 
 Forgery and counterfeiting, 213. 
 
 Rape, 526. 
 
 Witness, 650, 651. 
 
 Homicide, 256. 
 
 Bail and recognizance, 61, 70. 
 
 Bastardy, 75. 
 
 Homicide, 271, 305, 321. 
 
 Homicide, 315. 
 
 Riot, 545. 
 
 Sunday, 583, 584. 
 
 Rec. stolen prop. 535, 537, 539; 
 
 Witness, 657. 
 Abatement, 1. 
 
 Appeal, 19; Homi. 282 ; Wit. 655. 
 Perjury, 500. 
 Homicide, 301. 
 Evidence, 147. 
 
 Forgery and counterfeiting, 213. 
 Bail and recognizance, 60.
 
 TABLE OF CASES. 
 
 755 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Simpson v. Com. 1 Dana, 533 
 Simpson v. State, 5 Yerg. 356 
 " " 4 HumiJh. 456 
 
 " " 10 Yerg. 525 
 
 " " 31 Ind. 90 
 
 Sims' Case, 7 Cusb. 385 
 Skinner v. State, 30 Ala. 524 
 Slatter v. People, 58 N. Y. 354 
 Slatterly v. State, 41 Texas, 619 
 Slaughter v. State, 6 Humph. 410 
 Sloan V. State, 8 Ind. 312 
 Slomer v. People, 35 111. 70 . 
 Smaltz V. Com. 3 Bush, Ky. 32 . 
 Smathers v. State, 46 Ind. 447 
 Smcdly v. State, 30 Texas, 314 . 
 Smith V. Com. 54 Penn. St. 309 
 " "7 Gratt. 593 
 
 " "21 Gratt. 809 
 
 " "1 Duvall, Ky. 234 
 
 " '-3 Va. Cas. 6 . 
 
 " 6 B. Mon. 21 
 " "6 Gratt. 696 . 
 
 Smith V. Hayden, 6 Cush. Ill . 
 Smith V. People, 25 111. 17 . 
 " " 47N. Y. 303 . 
 
 " 47N.Y. 330 
 " " 53N.Y. Ill . 
 
 " "1 Parker, 317 
 
 "1 Parker, 583 . 
 Smith V. Schultz, 1 Scam, 490 
 Smith V. State, 19 Conn. 493 
 
 " " 83 Maine, 48 
 
 " 46 Ga. 298 
 " 39 Ala. 554 . 
 
 " " 39 Miss. 521 
 
 7 Humph. 43 
 
 *' " 33 Texas, 593 . 
 
 " 53 Ga. 88 
 
 " " 38 Ga. 19 
 
 " " 1 Stewart, 506 
 
 " " 41 Texas, 353 
 
 " " 47 Ala. 540 . 
 
 '' " 37 Ala. 472 
 
 " " 23 Ala. 54 . 
 
 *' " 33 Ala. 39 
 
 " " 9 Humph. 9 
 
 " " 49 Ga. 483 
 
 Bail and recognizance, 64, 
 Affray, 17. 
 Larceny, 406. 
 Nuisance, 473. 
 Witness, 618. 
 Habeas corpus, 351, 253. 
 Gaming, 340 ; Indictment, 330. 
 Assault and battery, 53. 
 Mayhem, 437. 
 
 Former acquit, or conviction, 239. 
 Nuisance, 469. 
 
 Conspiracy, 103 ; Officer, 489. 
 Homicide, 317. 
 Larceny, 407. 
 Robbery, 547. 
 
 Adultery, 13; Misdemeanor, 438. 
 Former acquittal or convict'n, 229 ; 
 
 Trial, 601. 
 Homicide, 266, 270. 
 Homi. 377 ; Insan. 355 ; Intox'n as 
 
 an excuse for crime, 360, 361. 
 New trial, 446. 
 Nuisance, 475. 
 Trial, 603. 
 Bastardy, 73, 73. 
 Conspiracy, 102. 
 False pretenses, 182, 185, 186. 
 Jurisdic'n, 365 ; Statutes, 583, 583. 
 Larceny, 377. 
 Perjury, 510. 
 
 Spirituous liquors, sale of, 565. 
 Larceny, 381. 
 Abatement, 1 ; Spirituous liquors, 
 
 sale of, 568, 676. 
 Abortion, 3. 
 Accessory, 10. 
 Adultery, 13. 
 Assault and battery, 33, 
 Assault and battery, 33. 
 Assault and battery, 34 ; Libel, 
 
 421, 424. 
 Assault and battery, 53. 
 Bastardy, 73. 
 Dueling, 117. 
 Evidence, 136. 
 Evidence, 151 ; Rape, 523. 
 Evidence, 160; Gaming, 239. 
 Gaming, 230. 
 Gaming, 344. 
 Homicide, 392. 397. 
 Homicide, 354; Verdict, 637.
 
 756 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Smith V. State, 1 Humph. 396 
 
 " " 8 Ohio, 294 
 
 " " 35 Texas, 738 
 
 " " 28 Ind. 321 
 
 " " 41 Texas, 168 
 
 " " 4 Greene, 189 
 
 " 6 Gill, 425 . 
 " 14 Mo. 147 
 
 " " 42 Texas, 444 
 
 Smitherman v. State, 27 Ala. 23 
 " "40 Ala. 355 
 
 Smith's Case, 2 Wallace, Jr. 150 
 Snap V. People, 19 111. 80 
 Snell V. State, 50 Ind. 516 
 
 " " 2 Humph. 347 
 
 " " 50 Ga. 219 
 
 Snider's Case, 2 Leigh. 744 
 Snow, Ex parte^ 1 R. I. 360 
 Snow V. State, 14 Wis. 479 . 
 Snyder v. People, 26 Mich. 106 ; 1 Green's Cr. Reps 
 
 547 .... , 
 
 Sohn V. State, 18 Ind. 389 
 Solander v. People, 2 Col. 48 
 Somers v. State, 5 Sneed, 438 
 Son V. People, 12 Wend. 344 
 South worth v. State, 5 Conn. 825 
 
 Spaight V. State, 29 Ala.32 . . . . 
 
 Spalding v. People, 7 Hill, 301 . 
 
 Spann v. State, 47 Ga. 553 ; 1 Green's Cr. Reps. 391. 
 
 Sparks v. Com. 3 Bush, Ky. Ill . 
 
 Speers v. Com. 17 Gratt. 570 . 
 
 Speilman v. State, 27 Md. 520 
 
 Spence v. State, 8 Blackf. 281 . 
 
 Spencer v. State, 13 Ohio, 401 
 
 " " 17 Ala. 192 
 
 Spencer's Case, 2 Leigh, 751 
 Sperry's Case, 9 Leigh, 623 
 Spiver v. State, 26 Ala. 90 . 
 Spratt V. State, 8 Mo. 247 ... 
 
 Springer v. State, 34 Ga. 379 ... 
 
 " 19 Ind. 180 . 
 Sprouce v. Com. 2 Va. Cas. 375 
 
 Squire v. State, 46 Ind. 459; 2 Green's Cr. Reps. 725. 
 Stacey, Matter of, 10 Johijs. 327 . 
 Stallings v. State, 33 Ala. 425 . 
 Stalls V. State, 28 Ala. 25 . 
 Stamper v. Com. 7 Bush, Ky. 612 
 Stanglein v. State, 17 Ohio, N. S. 453 
 Stanley t. State, 24 Ohio, N. S. 166 
 
 " " 26 Ala. 26 ... 
 
 Indictment, 326; Trial, 591. 
 
 Indictment, 350. 
 
 Larceny, 378. 
 
 Larceny, 402. 
 
 Larceny, 409. 
 
 New trial, 443. 
 
 Nuisance, 475. 
 
 Riot, 542. 
 
 Trial, 608. 
 
 Adultery, 12. 
 
 Adultery, 16. 
 
 Trial, 601. 
 
 Malicious mischief, 429. 
 
 Evidence, 165. 
 
 Forgery and counterfeiting, 208. 
 
 Larceny, 374. 
 
 Indictment, 330. 
 
 Bail and recognizance, 65. 
 
 Forgery and counterfeiting, 207. 
 
 Arson, 24. 
 Trial, 592. 
 Abortion, 6. 
 Voting, 645. 
 Sentence, 555. 
 
 Assault and battery, 48 ; Indict- 
 ment, 346; Information, 354. 
 License, 426 ; Trial, 618. 
 Habeas corpus, 253. 
 Insanity, 355, 358. 
 Homicide, 263. 
 Burglary, 95, 
 License, 426. 
 
 Continu. 113; Venue, ch. of, 686. 
 Burglary, 90, 91. 
 Evidence, 147. 
 
 Forgery and counterf. 219, 220. 
 Trial, 605. 
 Trial, 624. 
 Evidence, 158. 
 New trial, 450. 
 Trial, 631. 
 Trial, 595, 598. 
 Bigamy, 78, 79,80,81. 
 Habeas corpus, 251. 
 Spirituous liquors, sale of, 576. 
 Trial, 596, 597. 
 Statutes, 583. 
 Bigamy, 80. 
 Larceny, 385. 
 Spirituous liquors, sale of, 576.
 
 TABLE OF CASES. 
 
 757 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Stanton v. State, 8 Eng. 317 
 Starin v. People, 45 N. Y. 333 
 Starkey v. People, 17 111. 17 
 Starkie'8 Case, 7 Leigh, 753 . 
 Starks v. People, 5 Denio, 106 
 Starr v. Com. 7 Dana, 343 
 State V. Abbey, 29 Vt. 60 
 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V, 
 State V. 
 
 State V. 
 
 (( 
 
 State V. 
 (( 
 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 Abbot, R. M. Charlt. 244 
 " 16 New Hamp. 507 
 " 31 New Hamp. 434 
 " 30 Vt. 537 . 
 Abram, 10 Ala. 938 
 Absence, 4 Porter, 397 
 Adams, 1 Brev. 379 
 
 " 51 New Hamp. 568 
 Addington, 1 Bail. 310 
 " 2 Bail. 516 
 
 Aguilar, 14 Mo. 130 
 Ah Loi, 5 Nev. 99 . 
 Ah Sam, 7 Nev. 137 
 Ah Tong, 7 Nev. 148 
 Aikens, 32 Iowa, 403 
 Alley, 3 Heisk. 8 
 Albertson, 3 Blackf. 351 
 Alexander, 2 Dev. 470 
 
 " 7 Rich. 5 . 
 
 Alford, 68 N. C. 322 . 
 
 " 31 Conn. 40 
 Allaire, 14 Ala. 435 . 
 Allen, 4 Hawks, 356 
 " 2 Humph. 258 
 " 4 Blackf. 369 
 " 1 Hawks, 6 . 
 Allison, Phil. N. C. 346 . 
 
 " 3 Yerg. 438 . 
 Alman, 64 N. C. 364 
 Alstead, 18 New Hamp. 59 
 Ames, 10 Mo. 743 
 
 " 64 Maine, 386 . 
 Anders, 8 Ired. 15 , 
 
 " 4 Nev. 265 . 
 " 3 Rich. 172 
 " 3 Bail. 565 . 
 " 1 Strobh. 455 . 
 Andrew, Phil. N. C. 305 
 Andrews, 17 Maine, 103 . 
 
 " 29 Conn. 100 
 
 Angel, 7 Ired. 27 
 Anthoine, 40 Maine, 435 
 Anthony, 1 McCord, 385 
 
 Homicide, 303. 
 
 Accessory, 11 ; Writ of error, 661. 
 
 Homicide, 397. 
 
 Larceny, 378. 
 
 Witness, 658, 659. 
 
 Bail and recognizance, 68. 
 
 Bigamy, 80 ; Indictment, 344 ; 
 
 Statutes, 578. 
 Bail and recognizance, 59, 63. 
 Escape, 134. 
 Indictment, 343, 344. 
 Malicious mischief, 431. 
 Mayhem, 436. 
 
 Indict. 343 ; Mayhem, 436, 437. 
 Bastardy, 74. 
 
 Spirituous liquors, sale of, 575. 
 Larceny, 394. 
 Sentence, 561. 
 Arson, 36. 
 Robbery, 546, 548. 
 Burglary, 91. 
 Trial, 610, 634. 
 Perjury, 513. 
 Mayhem, 436. 
 Gaming, 236. 
 Perjury, 510. 
 Riot, 543. 
 
 Assault and battery, 36. 
 Assault and battery, 44. 
 Gaming, 338. 
 Affray, 18. 
 
 Bail and recognizance, 69. 
 Bastardy, 73. 
 
 Forg & coun. 216; New trial, 447. 
 Bastardy, 73. 
 Riot, 544. 
 Trial, 638. 
 Nuisance, 483. 
 
 Gaming, 344 ; Indictment, 329. 
 Witness, 653. 
 
 Forcible entry and detainer, 194. 
 Homicide, 268. 
 Indictment, 333. 
 New trial, 463; Trial, 613. 
 Verdict, 640. 
 Evidence, 148. 
 Indictment, 336. 
 New trial, 445, 451. 
 Homicide, 370; Indictment, 333. - 
 Nuisance, 486. 
 Homicide, 361 ; Indictment, 346.
 
 758 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 u 
 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 State T. 
 State V. 
 
 State V. 
 State V. 
 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State v. 
 
 AnthoriT, 7 Ired. 234 
 " ' 10 Ired. 153 
 Antonio, 3 Brev. 562 . 
 Apel, 14 Texas, 481 
 Appling, 25 Mo. 315 
 Archer, 54 New Hamp. 4Go . 
 Arden, 1 Bay, 437 
 Armfield, 5 Ired. 207 
 Armontrout, 21 Texas, 472 
 Armstrong, 4 Minn. 335 
 
 " 3 Ind. 139 . 
 
 Arnold, 13 Ired. 184 
 
 " 12 Iowa, 479 . 
 
 " 39 Texas, 74 
 Arthur, 1 McMuUan, 456 
 
 " 23 Iowa, 430 
 
 " 2 Dev. 217 
 
 " 21 Iowa, 322 
 Ashbury, 26 Texas, 82 . 
 Ashley, Dudley, Ga. 188 
 Atherton, 16 New Hamp. 203 
 Atkinson, 9 Humph. 677 
 " 24 Vt. 448 . 
 
 Atkyns, 1 Ala. 180 . 
 Austin, 4 Humph, 213 . 
 
 " 6 Wis. 205 . 
 Avern, 2 Taylor, 237 
 Avery, 7 Conn. 267 . 
 
 " 44 New Hamp. 392 
 
 " 44 Vt. 629 . 
 
 " 64 N. C. 608 
 A. W. 1 Tyler, 260 . 
 Aydelott, 7 Blackf. 157 . 
 Ayer, 3 Foster, 301 . 
 
 State V. Babcock, 1 Conn. 401 
 
 " " 1 Vroom (30 N. J.) 29 
 
 State V. Bacon, 7 Vt. 222 . 
 
 " " 41 Vt. 526 . 
 
 State V. Bailey, 10 Conn. 144 
 
 " " 31 New Hamp. 321 . 
 
 " " 4 La. An. 376 . 
 
 " " 73 N. C. 70 . 
 
 " " 1 Foster, 343 
 
 State V. Baker, 65 N. C. 332 . 
 . " " 50 Maine, 45 
 
 " " 1 Jones, 267 . 
 
 *' " 34 Maine, 52 
 
 " " 70 N. C. 530 . 
 
 State V. Baldwin, 1 Dev. & Batt. 195 
 State V. Baldy, 17 Iowa, 39 . 
 
 Robbery, 547. 
 Trial, 630. 
 
 Forgery and counterfeiting, 220. 
 Estray, 126. 
 Lasciviousness, 416. 
 Ev. 164 ; Rape, 531 ; Wit. 657. 
 Homicide, 269. 
 Forcible trespass, 195. 
 Estray, 125. 
 
 Adultery, 12 ; Bigamy, 80. 
 Gaming, 244. 
 
 Evidence, 127; Homicide, 302. 
 Evidence, 151 ; Trial, 598. 
 Malicious mischief, 430. 
 Bail and recognizance, 61. 
 Evidence, 152. 
 Homicide, 278. 
 New trial, 462. 
 Evidence, 129. 
 Statutes, 581. 
 Nuisance, 470, 477. 
 Former acquittal or convic. 227. 
 Nuisance, 473. 
 Gaming, 243. 
 Bail and recognizance, 66. 
 Trial, 629. 
 Perjury, 513. 
 Adultery, 12. 
 Animals, 19. 
 Demurrer, 115. 
 Homicide, 260, 
 
 Forgery and counterfeiting, 212. 
 Malicious trespass, 435. 
 Burglary, 91 ; Larceny, 394 ; New- 
 trial, 442, 448, 451. 
 Jury, 369. 
 Nuisance, 474. 
 False pretenses, 183. 
 Witness, 655. 
 Burglary, 89. 
 Evidence, 128. 
 Evidence, 160. 
 Larceny, 415. 
 Nuisance, 475. 
 Assault and battery, 33. 
 Bail and recognizance, 65, 66, 67. 
 Homicide, 255, 264, 273. 
 Indictment, 348. 
 Larceny, 415. 
 Nuisance, 468. 
 New trial, 456.
 
 TABLE OF CASES. 
 
 759 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Balkom, 3 Pick. 281 
 State V. Ballerio, 11 La. An. 81 . 
 State V. Bait, 7 Blackf. 9 
 State V. Bangor, 38 Maine, 593 . 
 
 " " 30 Maine, 341 
 
 State V. Baptiste, 36 La. An. 134 
 State V. Barefoot, 3 Rich. 309 
 State V. Barfield, 8 Ired. 344 
 State V. Barker, 18 Vt. 195 . 
 State V. Barnes, 39 Maine, 561 
 
 " " 33 Maine, 580 
 
 State V. Barr, 39 Conn. 40 
 State V. Barrett, 43 New Hamp. 466 
 State V. Barron, 37 Vt. 57 
 
 State V. Bartlett, 58 Maine, 446 
 " "55 Maine, 200 . 
 
 " "30 Maine, 133 
 
 " "39 Maine, 561 . 
 
 " " 43 New Hamp. 334 
 
 " "47 Maine, 388 . 
 
 State V. Barton, 19 Mo. 337 
 State V. Batcheldor, 15 Mo. 307 
 
 " " 5 New Hamp. 549 
 
 State V. Bateman, 8 Ired. 474 
 State V. Bates, 10 Conn. 373 
 
 " "33 Iowa, 96 
 
 " "10 Mo. 166 
 
 State V. Battle, 7 Ala. 259 
 State V. Bean, 19 Vt. 580 
 
 " "36 New Hamp. 133 
 
 State V. Beard, 1 Dutch. 384 
 State V. Beasom, 40 New Hamp. 367 
 State V. Beatty, Phil. N. C. 53 
 State V. Beaver, 5 Harring. 508 . 
 State V. Beck, Dudley, 168 . 
 State V. Beckwith, 1 Stew. 318 . 
 State V. Beebe, 13 Kansas, 589 
 State V. Beekman, 3 Dutch. 134 
 State V. Behimer, 20 Ohio, N. S. 573 
 State V. Belcher, 1 McMullan, 40 
 State V. Belden,'83 Wis. 130; 3 Green's 
 State V. Bell, 29 Iowa, 316 
 
 " " Sired. 506 
 
 " 65 N. C. 318 
 "5 Porter, 365 . 
 
 State 
 
 V. 
 
 Benedict 
 
 , 11 vt. 
 
 386 
 
 State 
 
 V. 
 
 Benham, 
 
 7 Conn 
 
 414 
 
 i( 
 
 
 IC 
 
 33 Iowa, 154 
 
 Cr. R. 647 
 
 Innkeeper, 355. 
 
 Verdict, 638. 
 
 Indictment, 353. 
 
 Judgment, 363. 
 
 Nuisance, 483. 
 
 Pardon, 494. 
 
 Bigamy, 77. 
 
 Homicide, 355, 298. 
 
 Indictment, 344. 
 
 Indictment, 353, 858. 
 
 Libel, 433, 433. 
 
 Sunday, 588. 
 
 Animals, 19 ; Indictment, 349. 
 
 Sp. liquors, sale of, 568, 578, 577 ; 
 Verdict, 637. 
 
 Adultery, 13. 
 
 Attorney, 58 ; Burglary, 91 ; Evi- 
 dence, 128, 154; Larceny, 393. 
 
 Conspiracy, 101, 105. 
 
 Indictment, 358. 
 
 Insanity, 360. 
 
 Search warrant, 549; Trial, 617. 
 
 Evidence, 188. 
 
 Indictment, 353. 
 
 Trespass, 588. 
 
 Forgery and counterfeiting, 213. 
 
 Adultery, 14. 
 
 Escape, 134. 
 
 Gaming, 338. 
 
 Trial, 639. 
 
 Forgery and counterfeiting, 310. 
 
 Indictment, 386 ; New trial, 448. 
 
 Perjury, 507. 
 
 Officer, 493. 
 
 Receiving stolen property, 535. 
 
 Assault and battery, 53. 
 
 Assault and battery, 43. 
 
 Ass. and bat. 39; Judgment, 363. 
 
 Escape, 184. 
 
 Animals, 18. 
 
 Former acquittal or convict. 839. 
 
 Peddlers, 496. 
 
 Homicide, 304. 
 
 Burglary, 87. 
 
 Indictment, 330. 
 
 Larceny, 882. 
 
 Nuisance, 485. 
 
 Assault and battery, 33. 
 
 Forg. and coun. 198; Former ac- 
 quittal or conviction, 238. 
 
 Homicide, 318, 330, 333.
 
 760 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State v. 
 State V. 
 
 State V. 
 State V. 
 >State V. 
 State V. 
 
 a 
 
 State V. 
 State V. 
 State V. 
 State V, 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 It 
 
 State V. 
 State V. 
 State V. 
 State V. 
 .State V. 
 State V. 
 .State V. 
 State V. 
 State V. 
 State V. 
 State V, 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 
 Benner, 64 Maine, 267 
 Bennett, 31 Iowa, 34 
 " 19La. An. 395 
 " 14 Iowa, 479 . 
 " 3 Brev. 514; 2 Const. R. 693 
 " 4 Dev. »& Batt. 43 
 Benthal, 5 Humph. 519 
 Benton, 2 Dev. & Batt. 196 
 Bergen, 1 Dutch. 309 
 Berry, 4 Halst. 374 .. . 
 
 " 1 Bay, 316 . . 
 
 Berryman, 8 Nov. 263 ; 1 Green's Cr. R. 335 
 Berthol. 6 Blackf. 474 
 Bertin, 34 La. An. 46 . . 
 
 Bertrand, 3 Oregon, 61 
 Best, 7 Blackf. 611 
 Biebusch, 32 Mo. 376 
 Bierce, 27 Conn. 319 
 Bill, 13 Ired. 373 . 
 Birmingham, Busbee, 120 
 Birney, 35 Maine, 105 
 Bishop, 8 Ired. 366 
 
 " 7 Conn. 181 . 
 
 " 1 Chip. 134 
 Bitting, 13 Iowa, 600 
 Black, 9 Ired. 378 
 
 " 31 Texas, 560 
 
 " 63 Maine, 310 
 Blackafellow, 1 Halst. 333 . 
 Blackwell, 9 Ala. 79 
 Blair, 13 Rich. 93 . 
 Blaisdell, 49 New Hamp. 81 
 " 33 New Hamp. 388 
 
 Blake, 39 Maine, 333 
 Blakesley, 38 Conn. 533 
 Blanch, 2 Vroom (31 N. .1.) 83 . 
 Blankenship, 21 Mo. 504 
 Blansky, 3 Minn. 346 
 Blennerhassett, Walker, 7 
 Bloget, 1 Root, 534 
 Bloom, 17 Wis. 531 
 Blythe, 1 Bay, 166 
 Bogue, 9 Ired. 360 . 
 Boliug, 2 Humph. 414 . 
 Bonnell, 46 Mo. 395 
 Bonney, 34 Maine, 333 . 
 
 " 39 New Hamp. 306 
 Boon, 13 Ired. 344. 
 
 " 4 Jones, 463 
 Bostick, 4 Harring. 563 
 Bowe, 01 Maine, 171 ; 2 Green's Cr. R. 459. 
 
 Witness, 654, 657. 
 
 Adultery, 15. 
 
 Forgery and counterfeiting, 199. 
 
 Larceny, 385. 
 
 Larceny, 406. 
 
 Riot, 544 ; Sentence, 559. 
 
 Affray, 17. 
 
 Trial, 595, 601. 
 
 Contempt, 110. 
 
 Assault and battery, 43. 
 
 Riot, 544. 
 
 Larceny, 384, 399. 
 
 Nuisance, 475. 
 
 Trial, 605. 
 
 Homicide, 278. 
 
 Habeas corpus, 253. 
 
 Subornation of perjury, 514. 
 
 Indictment, 343; Seduct. 550,551. 
 
 Certiorari, 96. 
 
 Former acquittal or convict. 333. 
 
 Evidence, 168. 
 
 Gaming, 338. 
 
 Indictment, 336. 
 
 Perjury, 503, 513. 
 
 Indictment, 339. 
 
 Gaming, 337. 
 
 Larceny, 393. 
 
 Rape, 520; Trial, 617; Wit. 651. 
 
 Bail and recognizance, 61. 
 
 Assault and batt. 34; Trial, 616. 
 
 Riot, 543. 
 
 Indictment, 351. 
 
 Misdem. 438 ; Pardon, 494, 495. 
 
 Rape, 520, 529. 
 
 Nuisance, 483. 
 
 Larceny, 385. 
 
 Indictment, 331. 
 
 Witness, 656. 
 
 New trial, 458, 464 ; Witness, 648. 
 
 Forgery and counterfeiting, 214. 
 
 Jurisdiction, 364. 
 
 Assault and battery, 42. 
 
 Trespass, 589. 
 
 Lasciviousness, 417. 
 
 False pretenses, 180. 
 
 Forg.&coun. 203,208; Indict. 350. 
 
 Spirituous liquors, sale of, 573. 
 
 Burglary, 86 ; Rape, 533. 
 
 False pretenses, 184. 
 
 Evidence, 140. 
 
 Adultery, 14; Evid. 149 ; Trial,607.
 
 TABLE OF CxiSES. 
 
 761 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Bowers, 17 Iowa, 46 
 State V. Bowling, 10 Humph. 52 
 State V. Bowman, 6 Vt. 594 . 
 State V. Boyd, 2 Hill, S. C. 288 . 
 State V. Boyden, 13 Ired. 505 
 State T. Boyett, 10 Ired. 336 
 State V. Boyington, 56 Maine, 512 
 State V. Boyle, 28 Iowa, 522 
 State V. Bradbury, 40 Maine, 154 
 State V. Bradley, 34 Texas, 95 . 
 
 " " 1 Blackf. 83 
 
 " " 6 La. An. 554 . 
 
 " " 9 Rich. 168 
 
 State V. Brady, 14 Vt. 353 
 
 " ' Ga. Decis. pt. 2, 40 
 
 State V. Brandon, 7 Kansas, 106 
 State V. Brannon, 55 Mo. 63; 2 Green's Cr. Eeps. 608 
 
 " " 3 Nev. 238 . . . 
 
 State V. Brantly, 63 N. C. 518 . 
 State V. Braunschweig, 38 Mo. 587 . 
 State V. Braxton, 3 Ired. 354 
 State V. Bray, 1 Mo. 180 
 
 " " 13 Ired. 289 
 
 State T. Brazil, 1 Rice, 257 . 
 State V. Breeden, 58 Mo. 507 
 State V. Brette, 6 La. An. 652 
 
 State V. Brewster, 7 Vt. 118 . 
 State V. Bridgen, 8 Ired. 84 
 State V. Briggs, 3 Ired. 357 . 
 " " 34 Vt. 501 
 
 " " 1 Brev. 8 
 
 " " 9 R. L 361 
 
 State V. Briley. 8 Porter, 472 
 State V. Brinyea, 5 Ala. 241 
 State V. Brisbane, 2 Bay, 451 
 State V. Britt, 3 Dev. 122 
 State V. Britton, 4 McCord, 256 
 
 " " 2 Mason, 464 
 
 State V. Brockman, 46 Mo. 566 
 State V. Brooks, 9 Ala. 10 
 " " 4 Conn. 446 
 
 " •' 1 Hill. S. C. 361 
 
 " " 3 Humph. 70 
 
 State V, Broughton, 7 Ind. 96 
 State V. Brown, 5 Harring. 505 
 " " 4 R. L 528 
 
 " "2 Oregon, 221 
 
 " "16 Conn. 54 
 
 " " 5 Eng. 78 . 
 
 '* " 31 Vt. 602 * , 
 
 Larceny, 405. 
 Assault and battery, 57. 
 Forgery and counterfeiting, 211. 
 Indictment, 353. 
 Assault and battery, 48. 
 Voting, 644. 
 Voting, 644. 
 Verdict, 640. 
 Nuisance, 470. 
 Assault and battery, 32. 
 Bastardy, 72, 76 ; Bail and rec. 63. 
 Homicide, 315 ; Trial, 625. 
 Witness, 652. 
 Burglary, 91. 
 Larceny, 384. 
 Burglary, 95. 
 
 Former acquit, or conviction, 231. 
 Larceny, 396. 
 Evidence, 130. 
 Evidence, 158. 
 Indictment, 333. 
 Assault and battery, 41. 
 Bigamy, 78. 
 
 Riot, 542, 543, 544, 545. 
 Evidence, 169 ; Trial, 623. 
 Continuance, 114 ; Former acquit- 
 tal or conviction, 229. 
 Larceny, 406, 408. 
 Forcible entry and detainer, 191. 
 Assault and battery, 44. 
 Forgery and counterfeiting, 204. 
 Trial, 590. 
 Witness, 656. 
 Mayhem, 436. 
 Sentence, 554. 
 Indictment, 332. 
 Forgery and counterfeiting, 219. 
 Bigamy, 80. 
 
 Forgery and counterfeiting, 211. 
 Evidence, 146. 
 Abatement, 2. 
 Burglary, 89. 
 Riot, 542. 
 Trial, 628. 
 Evidence, 132, 135. 
 Arrest, 21. 
 
 False preten.184 ; Forg.& coun.221. 
 Forgery and counterfeiting, 211. 
 Form. ac. orcon.223 ; Nuis.479,482. 
 Grand jury, 247. 
 Indictment, 327.
 
 762 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Brown, 3 McLean, 233 
 
 " " 8 Humph. 89 . ... 
 
 " " 25 Iowa, 561 
 
 " " 1 Dev. 137 . . . 
 
 " "8 Nov. 208 ; 1 Green's Cr. Reps. 843. 
 
 " 27 Vt. 619 . 
 
 " "3 Murphey, 224 . 
 
 " "31 Maine, 520 .. . 
 
 " " 67 K C. 435 . 
 
 State V. Brownlow, 7 Humph. 63 . 
 State V. Bruce, 24 Maine, (11 Shepl.) 71 . 
 
 State V. Bruin, 34 Mo. 537 . . 
 
 State V. Bruington, 22 La. An. 9 . 
 State V. Bninson, 2 Bail. 149 
 State V. Bryan, 74 N. C. 351 . 
 State V. Bryant, 65 N, C. 327 . 
 
 " " 14 Mo. 340 . 
 
 " 17 New Hamp. 323 
 
 " " 55 Mo. 75 . 
 
 •' 74 N. C. 124 . 
 
 " " 21 Vt. 479 . 
 
 State V. Buchanan, 17 Vt. 573 . 
 
 " "5 Har. i& J. 317, 500 
 
 " "1 Ired. 59 . 
 
 State V. Buckman, 8 New Hamp. 203 
 State V. Buckner, Phil. N. C, 558 
 State V. Buflfum, 2 Post. 267 .... 
 
 State V. Bugbee, 22 Vt. 32 . . . 
 
 State V. Bullard, 16 New Hamp. 139 
 State V. Bullinger, 54 Mo. 142 ; 2 Green's Cr. Reps. 
 601 ..... . 
 
 State V. Bullock, IS Ala. 413 
 
 State V. Bundy, 64 Maine, 507 .. . 
 
 State V. Bunger, 11 La. An. 607 . 
 State V. Bunker, 59 Maine, 366 
 State V. Bunten, 2 Nott & McCord, 441 
 State V. Burgdorf, 53 Mo. 65 ; 2 Green's Cr. Reps. 
 593 ..... . 
 
 State V. Burge, 7 Iowa, 255 
 State V. Burgess, 24 Mo. 381 . 
 
 " " 74 N. C. 272 . 
 
 " " 40 Maine, 592 . 
 
 State V. Burgett, 1 Carter, 479 
 State V. Burke, 30 Iowa, 331 
 
 " " 38 Maine, 574 . 
 
 " " 54 New Hamp. 92 ; 2 Green's Cr. Reps. 
 
 305 .... 
 
 Indictment, 345, 348. 
 
 Indictment, 349. 
 
 Larceny, 376. 
 
 Larceny, 388. 
 
 Larceny, 396. 
 
 Lasciviousness, 418. 
 
 Misdemeanor, 438. 
 
 Spirituous liquors, sale of, 568. 
 
 Trial, 620. 
 
 Libel, 422. 
 
 Evidence, 155 ; Larceny, 386 ; Nolle 
 prosequi, 466; Threatening to 
 accuse of crime, 585; Witness, 
 659. 
 
 Larceny, 406. 
 
 Jurisdiction, 368. 
 
 Lasciviousness, 417, 420. 
 
 Robbery, 548. 
 
 Arrest, 20. 
 
 Spirituous liquors, sale of, 568. 
 
 Forgery and counterfeiting, 203. 
 
 Homicide, 298. 
 
 Larceny, 378. 
 
 New trial, 461. 
 
 Assault and battery, 36, 46. 
 
 Conspiracy, 102, 107. 
 
 Indictment, 353. 
 
 Nuisance, 469. 
 
 Trespass, 588, 589. 
 
 Bail and recognizance, 66. 
 
 Indictment, 336. 
 
 New trial, 456 ; Trial, 626. 
 
 Incest, 325. 
 
 Intox. as an excuse for crime, 360. 
 
 Assault and battery, 39. 
 
 Trial, 602. 
 
 Nuisance, 470. 
 
 Larceny, 414. 
 
 Rape, 518. 
 Evidence, 128. 
 Indictment, 327. 
 Larceny, 402. 
 Malicious mischief, 433. 
 Gaming, 244, 
 Homicide, 318. 
 
 Indictment, 336, 340, 351 ; Nolle 
 prosequi, 466; Verdict, 640. 
 
 Indictment, 336.
 
 TABLE OF CASES. 
 
 763 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 State V, 
 
 u 
 
 State V. 
 
 State V. 
 
 373 
 
 State V. 
 
 Burke, 73 N. C. 83 
 Burlingham, 15 Maine, 104 
 Burnham, 15 New Hamp. 396 . 
 
 " 9 New Hamp. 34 
 
 Burns, 8 Ala. 313 
 
 " 33 Mo. 483 . 
 
 " 8 Nev. 251 .. . 
 
 " 20 New Hamp. 550 . 
 Bumside, 37 Mo. 343 . 
 Burrows H Ired. 477 
 Burt, 25 Vt. 373 ... 
 
 " 64N.C. 619 . 
 Burton, 3 Ind. 93 . . . 
 
 Bushing, 69 N. C. 29 ; 1 Green's Cr. Reps 
 
 Butler, 17 Vt. 145 
 " "1 Taylor, 262 
 
 State V. Butman, 42 New Hamp. 490 
 1 Brev. 33 . 
 " " 15 La. An. 166 . 
 
 State V. Buych, 2 Bay, 563 . 
 State V. Buzine, 4 Harring. 572 . 
 
 State V. Calais, 48 Maine, 456 
 State V. Calder, 2 McCord, 462 . 
 State V. Call, 48 New Hamp. 126 
 State V. Callendine, 8 Iowa, 288 . 
 
 Calvin, R.M. Charlt. 151 . 
 
 " 2 Zabr. 207 
 Cameron, 40 Vt. 555 
 
 2Chand. 172 
 Camp, 33 Vt. 551 . 
 Campbell, 3 Vroom (32 N. J.) 309 
 
 1 Rich. 124 
 Candler, 3 Hawks, 393 . 
 Canney, 19 New Hamp. 135 
 Canterbury, 28 New Hamp. 195 
 Capers, 6 La. An. 267 
 Cargill, 2 Brev. 445 
 Carnahan, 17 Iowa, 256 
 Caroline, 20 Ala. 19 
 Carr, 37 Vt. 191 . . ■ 
 
 " 25 La. An. 407 
 
 " 5 New Hamp. 367 
 
 " 13 Vt. 571 . 
 
 " 1 Foster, 106 . 
 Carrier, 5 Day, 131 
 Carroll, 5 Ired. 139 . 
 
 38 Conn. 449 . 
 Carron, 18 Iowa, 372 
 
 State V. 
 
 u 
 
 State V. 
 
 state V. 
 
 State V. 
 
 (( 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V, 
 State V. 
 
 State V. 
 
 Robbery, 547. 
 
 Indictment, 353; Witness, 651. 
 
 Conspiracy, 101, 103, 105. 
 
 Libel, 421,425. 
 
 Assault and battery, 57. 
 
 Homicide, 297. 
 
 Indictment, 330. 
 
 Spirituous liquors, sale of, 570. 
 
 Witness, 652. 
 
 False pretenses, 184. 
 
 Assault and battery, 40, 45. 
 
 Larceny, 384. 
 
 Extortion, 171. 
 
 Receiving stolen property, 534. 
 
 Abatement, 2 ; Accessory, 10. 
 
 Forcible entry and detainer, 193, 
 
 Assault and bat. 57 ; Officer, 492. 
 
 Forgery and counterfeiting, 211. 
 
 Libel, 425. 
 
 Bail and recognizance, 63. 
 
 Fugitives from justice, 234 ; Ha- 
 beas corpus, 250. 
 
 Nuisance. 473. 
 
 Riot, 543. 
 
 False pretenses, 182, 189. 
 
 Forgery and counterfeiting, 203 ; 
 Trial, 628. 
 
 Forgery and counterfeiting, 218. 
 
 Receiving stolen property, 533. 
 
 Evidence, 154 ; Larcenj", 397, 405. 
 
 Homicide, 266. 
 
 New trial, 441, 447, 448, 454. 
 
 Assault and battery, 37. 
 
 Homicide, 288. 
 
 Witness, 652. 
 
 Indictment, 343. 
 
 Nuisance, 474, 479. 
 
 Indictment, 332. 
 
 Forcible entry and detainer, 191. 
 
 Trial, 614. 
 
 Slave-trade, 563. 
 
 Evidence, 147. 
 
 Evidence, 154. 
 
 Forgery & counterf. 200, 205, 216. 
 
 Larceny, 413. 
 
 New trial, 458. 
 
 Burglary, 89. 
 
 Certiorari, 97. 
 
 Officer, 487. 
 
 Seduction, 551.
 
 764 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Carter, 3 Dutch. 499 
 
 
 " " 39 Maine, 262 
 
 , 
 
 State v. Carver, 49 Maine, 588 
 
 
 State v. Casados, 1 Nott & McCord, 91 
 
 
 State V. Casey, Busbee, 209 
 
 
 " " 45 Maine, 435 
 
 
 State T. Cason, 20 La. An. 48 
 
 
 State V. Cass, 41 Texas, 552 
 
 
 State V, Cassady, 12 Kansas, 550 
 
 
 52 New Hamp. 500 
 
 
 State V. Cassell, 2 Har. & Gill, 407 
 
 
 State V. Cassety, 1 Rich. 90 . 
 
 
 State V. Caswell, 2 Humph. 399 . 
 
 
 State V. Caverly, 51 Mo. 446 
 
 
 State V. Cazeau, 8 La. An. 109 
 
 
 State V. Center, 35 Vt. 378 . 
 
 
 State V. Centr. R. R. Co. 60 Maine, 490 ; 
 
 61 lb. 114. 
 
 State T. Chamberlain, 30 Vt. 559 
 
 
 State V. Chambers, 6 Ala. 855 
 
 
 State V. Champ, 16 Mo. 385 
 
 
 State V. Chancellor, 1 Strobh. 347 . 
 
 
 State V. Chandler, 2 Harring. 553 
 
 
 " " 3 Hawks, 393 
 
 
 " " 5 La. An. 489 
 
 
 State v. Chapin, 17 Ark. 561 
 
 
 State V. Chapman, 6 Nev. 320 
 
 
 " " 3 McLean, 390 
 
 
 State V. Cheatwood, 2 Hill, S. C. 459 . 
 
 
 State V. Cheek, 25 Ark. 206 . 
 
 
 " " 13Ired. 114 
 
 
 State T. Cheeseman, 2 South. 445 
 
 
 State V. Cherry, 11 Ired. 975 
 
 
 " Meigs, 232 . 
 
 
 "1 Swan, 160 
 
 
 State V. Chittem, 2 Dev. 49 . 
 
 
 State V. Chitty, 1 Bail. 379 
 
 
 State V. Chopin, 10 La. An. 458 
 
 
 State V. Chovin, 7 Iowa, 204 
 
 
 State V. Christ, 32 Texas, 99 . 
 
 
 State V. Church, 63 N. C. 15 
 
 
 State V. Clarissa, 11 Ala. 57. 
 
 
 State T. Clark, 54 New Hamp. 456 
 
 
 18 Mo. 432 . 
 
 
 " " 3 Foster, 429 
 
 
 " 8 Ired. 226 . 
 
 
 " " 12 Ired. 151 
 
 
 2 Tyler, 282 . 
 
 
 " 28 New Hamp. 176 
 
 
 "44 Vt. 636 . 
 
 
 3 Ired. 451 
 
 
 " " 37 Vt. 471 . 
 
 
 Jurisdiction, 365. 
 
 Search warrant, 549. 
 
 Abatement, 2 ; Judgment, 363. 
 
 Larceny, 382 ; Witness, 648. 
 
 Former acquittal or convict'n,227. 
 
 Indictment, 344. 
 
 Larceny, 391. 
 
 Assault and battery, 40. 
 
 Access'y, 9; Larc. 406; Trial, 592. 
 
 Indictment, 344; Officer, 491. 
 
 Larceny, 414. 
 
 Spirituous liquors, sale of, 569. 
 
 Spirituous liquors, sale of, 569. 
 
 Indictment, 333. 
 
 Witness, 657. 
 
 Evidence, 150; Homi. 295, 311. 
 
 Indictment, 342. 
 
 Peijury, 501, 508. 513. 
 
 Larceny, 380. 
 
 Witness, 649. 
 
 Sentence, 556. 
 
 Blasphemy, 83. 
 
 Forgery and counterfeiting, 216. 
 
 Homicide, 315. 
 
 Accessory, 8. 
 
 Accessory, 9. 
 
 Perjury, 507. 
 
 Homicide, 255, 257. 
 
 Indictment, 349. 
 
 Misdemeanor, 438. 
 
 Habeas corpus, 249. 
 
 Assault and battery, 33. 
 
 Bail and recognizance, 66, 67. 
 
 Rape, 521. 
 
 Accessory, 11. 
 
 Barretry, 71, 72. 
 
 Homicide, 317. 
 
 Assault and battery, 37. 
 
 Estray, 126. 
 
 Assault and battery, 34. 
 
 Grand jury, 248. 
 
 Evidence, 133. 
 
 Indictment, 328. 
 
 Indictment, 348. 
 
 Larceny, 388, 399. 
 
 New trial, 449. 
 
 Perjury, 512. 
 
 Spirituous liquors, sale of, 567. 
 
 Spir. liq. sale of, 569 ; Officer, 487, 
 
 Spirituous liquors, sale of, 570. 
 
 Trial, 624. 
 
 I
 
 TABLE OF CASES. 
 
 765 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Clarke, 2 Brev. 386 
 
 " " 33 New Hamp. 339 
 
 State V 
 
 Clarkson, 3 Ala. 378 
 
 
 State V 
 
 Cleaveland, 6 Nev. 181 
 
 
 (1 
 
 3 R. I. 117 . 
 
 
 t( 
 
 58 Maine, 564 . ' 
 
 
 State V. 
 
 Cleaves, 59 Maine, 298 . 
 
 
 State V 
 
 Clements, 1 Speer, 48 
 
 
 State V. 
 
 Clough, 49 Maine, 573 . 
 
 
 State V. 
 
 Coatney, 8 Yerg. 210 
 
 
 State V. 
 
 Cockerhaui, 2 Ired. 204 . 
 
 
 State V. 
 
 Cockfield, 15 Rich. 316 
 
 
 State V. 
 
 Coffey, 41 Texas, 46 
 
 
 State V. 
 
 Cofren, 48 Maine, 364 
 
 
 State V 
 
 Coggswell, 3 Blackf. 54 
 
 
 State V. 
 
 Colin, 9 Nev. 179 . 
 
 
 State V. 
 
 Cohoon, 12 Ired. 178 . 
 
 
 State V. 
 
 Cole, 19 Wis. 129 . 
 
 # 
 
 (I 
 
 " 48 Mo. 70 . 
 
 
 t< 
 
 " 9 Humph. 626 . 
 
 
 (1 
 
 " 2 McCord, 117 
 
 
 State V. 
 
 Collins, 20 Iowa, 85 . 
 
 
 11 
 
 " 8 Ired. 407 
 
 
 (1 
 
 " 33 Iowa, 36 • 
 
 
 u 
 
 48 Maine, 217 . 
 
 
 state V. 
 
 Colman, 5 Porter, 32 
 
 
 State V. 
 
 Colter, 6 R. I. 195 
 
 
 State V. 
 
 Colvin, 11 Humph. 599 
 
 
 State V. 
 
 Colwell, 3 R. I. 132 
 
 
 State V, 
 
 Comings, 28 Vt. 508 
 
 
 State V. 
 
 a 
 
 Commissioners, 2 Murphy, 371 . 
 " Riley, 273 . 
 
 
 (1 
 
 " 3 Hill, S. C. 149 
 
 
 State V. 
 
 Condry, 5 Jones, 418 
 
 
 State V. 
 
 Cone, 2 Mass. 133 
 
 
 State V. 
 
 Conley, 39 Maine, 78 
 
 
 State 
 
 u 
 
 State 
 State 
 
 State 
 State 
 State 
 
 V. Connell, 49 Mo. 282 
 
 " 38 New Hamp. 81 
 
 V. Conner, 3 McLean, 573 . 
 
 " 5 Blackf. 325 
 V. Connolly, 3 Oregon, 69 . 
 " 3 Rich. 337 
 
 " 63 Maine, 212 
 
 V. Connor, 2 Bay, 34 
 V. Conway, 18 Mo. 321 
 V. Cook, 38 Vt. 437 
 
 23 La. An. 347 . 
 " 20 La. An. 145 
 1 Mo. 547 
 
 Bastardy, 74. 
 
 Lottery, 426. 
 
 Indictment, 348. 
 
 Forgery and counterfeiting, 215. 
 
 Statutes, 580. 
 
 Verdict, 638. 
 
 Evidence, 154; Trial, 615. 
 
 Bastardy, 74. 
 
 Indictment, 327. 
 
 Bastardy, 75. 
 
 Sentence, 560. 
 
 Larceny, 400. 
 
 Assault and battery, 40. 
 
 Indictment, 333. 
 
 Indictment, 337. 
 
 Arson, 30 ; Witness, 650. 
 
 Voting, 643. 
 
 Assault and battery, 47 ; Forgery 
 
 and counterfeiting, 215. 
 Former acquittal or convic. 228. 
 Jury, 370. 
 Riot, 542. 
 Evidence, 166. 
 Homicide, 283, 304. 
 Homicide, 317. 
 Indictment, 345. 
 
 Accessory, 9 ; Indictment, 340, 353. 
 Burglary, 91. 
 
 Former acquittal or convic. 327. 
 Witness, 655. 
 
 Spirituous liquors, sale of, 568. 
 Former acquittal or convic. 228. 
 New trial, 465. 
 Nuisance, 482 ; Trial, 606. 
 Evidence, 150. 
 Indictment, 346. 
 Indictment, 339; Homicide, 355, 
 
 267 ; Trial, 591, 614, 629. 
 Sentence, 557. 
 
 Spirituous liquors, sale of, 573. 
 Perjury, 499. 
 Grand jury, 247. 
 Homicide, 278, 319, 323. 
 Riot, 543. 
 
 Spirituous liquors, sale of, 569. 
 Bail and recognizance, 63. 
 Larceny, 379. 
 
 Enlistment, 133 ; Indictment, 333. 
 Evidence, 135. 
 Evidence, 159. 
 Indictment, 335.
 
 76G 
 
 TABLE OF CASES. 
 
 1 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Coombs, 33 Maine, 529 
 
 " " 55 Maine, 477 . 
 
 State V. Coon, 18 Minn. 518 . 
 
 " "14 Minn. 456 
 
 State V. Cooper, 3 Zabr. 52 . 
 " " 16 Vt. 551 
 
 " " 5 Conn. 260 
 
 " 1 Green, 361 
 
 16 Mo. 551 . 
 State V. Coover, 49 Mo. 433 
 State V. Copp, 15 New Hamp. 212 
 State V. Coppenburg, 2 Strobh. 373 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V, 
 State V, 
 State V. 
 State V, 
 State V. 
 State V. 
 
 '^ 
 
 Corbett, 1 Jones, 264 
 Corson, 59 Maine, 137 
 Corwin, 4 Mo. 609 . 
 Cotton, 4 Foster, 143 
 Council, 1 Overt. 305 
 Covington, 70 N. C. 71 
 Cowan, 7 Ired. 239 
 Cowell, 4 Ired. 231 
 Cux, 2 Tayl. 165 
 
 " 6 Ired. 44 . 
 
 " 32 Mo. 566 
 Coy, 2 Aiken, 181 
 Crane, 4 Wis. 401 
 Crank, 2 Bail. 66 
 Craton,6 Ired. 164 
 Crawford, 11 Kans. 32; 3 Green's Cr. R. 638. 
 
 '• 34 Iowa, 40 . . . 
 
 Creasman, 10 Ired. 395 . 
 Creight, 1 Brev. 169 . 
 Creighton, 1 Nott & McCord, 256 
 Crocker, 3 Barring. 559 
 Crosby, 4 La. An. 434 . 
 Cross, 2 Humph. 301 
 
 " 27 Mo. 333 .. . 
 
 " " 12 Iowa, 66 ... 
 
 " " 34 Maine, 595 . . ' . 
 
 State V. Croteau, 23 Vt. 14 . 
 
 State V. Crow, 1 Ired. 375 ... 
 
 State V. Crowell, 30 Me. 115 . 
 
 State V. Crowley, 13 Ala. 172 . 
 
 State V. Crowner, 56 Mo. 147; 2 Green's Cr. Reps. 616 
 
 State V. Cruikshank, 6 Blackf. 62 
 
 State V. Cruise, 19 Iowa, 312 .... 
 
 " " 74 N. C. 491 . 
 
 " " 16 Mo. 391 . 
 
 Former acquittal or convic. 230. 
 Larceny, 383. 
 Larceny, 398, 415. 
 Officer, 491. 
 Abortion, 3. 
 
 Adultery, 13; Burglary, 88. 
 Forgery and counterfeiting, 203. 
 Former acquittal or convic. 229. 
 Spirituous liquors, sale of, 573. 
 Jurisdiction, 364. 
 Indictment, 337, 349. 
 Indictment, 331 ; Receiving stolen 
 
 property, 534, 535. 
 Indictment, 348. 
 Perjury, 506. 
 Indictment, 336. 
 Indictment, 334. 
 Malicious mischief, 429. 
 Trespass, 589. 
 
 Evi. 146, 149 ; Robbery, 547, 548. 
 Adultery, 16. 
 Adultery, 13. 
 Indictment, 327, 331. 
 Indictment, 344. 
 Assault and battery, 57. 
 Assault and battery, 51. 
 Accessory, 11; Indictment, 349. 
 Trial, 593. 
 Insanity, 357. 
 Seduction, 550. 
 Trial, 595. 
 Indictment, 330. 
 
 Assault and battery, 47; Riot, 545. 
 Burglary, 95. 
 Larceny, 397. 
 Gaming, 243. 
 Intoxication as an excuse for crime, 
 
 360; Trial, 605. 
 Rape, 530. 
 Sentence, 559. 
 Spirituous liquors, sale of, 574; 
 
 Verdict, 637. 
 Assault and battery, 34. 
 Spirituous liquors, sale of, 570, 
 
 576. 
 Adultery, 16. 
 Adultery, 12. 
 Perjury, 497, 507. 
 Evidence, 139. 
 Evidence, 147. 
 New trial, 441.
 
 TABLE OF CASES. 
 
 767 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State v. 
 State V. 
 State V. 
 State V. 
 
 Cucuel, 31 N. J. 249 
 Cummings, 33 Conn. 260 
 3 La. An. 330 
 Cunningham, 72 N. C. 469 
 Curran, 18 Mo. 320 
 Currier, 23 Maine, 43 
 Curtis, 1 Hayw. 471 
 
 " 2 Dev. & Batt. 222 
 
 " 12 Ired. 270 
 
 " 6 Ired. 247 . 
 
 " 71 N. C. 56; 2 Green 
 Custer, 65 N. C. 339 
 Daley, 29 Conn. 273 
 Dalton, 11 Ired. 379 
 Dame, 11 New Hamp. 271 
 Damery, 48 Maine, 327 
 Damon, 2 Tyler, 387 
 Dark, 8 Blackf. 526 . 
 
 s Cr. Reps. 748 
 
 State V. Dart, 29 Conn, 153 
 State V. Daubsrt, 42 Mo. 239, 242 
 State V. Daugherty, 80 Texas, 360 
 State V. Davidson, 30 Vt. 377 
 " " 12Vt. 800 
 
 State T. Davis, 1 Ired. 125 
 *' " 63 N. C. 578 
 
 " " 4 Blackf. 345. 
 
 "2 Ired. 153 
 
 " "3 McCord, 187 
 
 69N. C. 383 
 State V. Dawson, 6 Ohio, 251 
 State V. Day, 37 Maine, 244 
 State V. Dayton, 3 Zabr. 49 . 
 
 State V. Deal, 64 K C. 270 . 
 State V. Dean, 13 Ired. 63 
 State V. Dearborn, 54 Maine, 442 
 State V. Debury, 5 Ired. 371 
 State V. Decklotts, 19 Iowa, 447 
 State V. De Hart, 2 Halst. 172 . 
 State V. Delano, 54 Maine, 442 
 State V. Delue, 1 Chand. 166 
 State V. Delyon, 1 Bay, 353 . 
 State V. Deming, 4 McLean, 3 
 State V. Dennin, 32 Vt. 158 . 
 State V. Denton, 14 Ark, 343 
 State V. Derrick, 1 McMullan, 338 
 State V. Desmond, 5 La. An. 398 
 State V. Devereux, 41 Texas, 383 
 State V. Devlin, 25 Mo. 174 
 
 New trial, 455. 
 
 Larceny, 379. 
 
 Homicide, 265. 
 
 Insanity, 358. 
 
 Assault and battery, 43. 
 
 Gaming, 237, 
 
 Arrest, 21. 
 
 Forcible entry and detainer, 194. 
 
 Perjury, 513. 
 
 Sentence, 554. 
 
 Verdict, 641. 
 
 Vagrant, 633. 
 
 Statutes, 580, 581. 
 
 Forgery and counterfeiting, 211. 
 
 Assault and battery, 53. 
 
 Evidence, 131; Trial, 607. 
 
 Former acquittal or convic. 229. 
 
 Forgery and counterfeiting, 209; 
 Writ of error, 661. 
 
 Homicide, 289, 
 
 Conspiracy, 108, 109 ; Evi. 158. 
 
 Indictment, 346. 
 
 Evidence, 135 ; Robbery, 549. 
 
 Indictment, 336. 
 
 Assault and battery, 32. 
 
 Evidence, 148. 
 
 Former acquittal or convic. 223. 
 
 Grand jury, 246 ; Malicious mis- 
 chief, 433, 434. 
 
 Larceny, 415. 
 
 Perjury, 509. 
 
 Bail and recognizance, 59. 
 
 Spirituous liquors, sale of, 570. 
 
 Indict. 337, 347, 351, 353, 353; 
 Perjury, 500, 508, 509. 
 
 Larceny, 377 ; Trespass, 588. 
 
 Conspiracy, 109. 
 
 Assault and battery, 40. 
 
 Indictment, 336. 
 
 Evidence, 156. 
 
 New trial, 443. 
 
 Spirituous liquors, sale of, 566. 
 
 Indictment, 346. 
 
 False i^retenses, 173. 
 
 Perjury, 503. 
 
 Arson, 33, 30. 
 
 Indictment, 388. 
 
 Bastardy, 74. 
 
 Former acquit, or convic. 229. 
 
 False pretenses, 184. 
 
 Trial, 613.
 
 768 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Dew, 1 Taylor, 143 . 
 
 State V. Dewitt, 2 Hill, S. C. 282 . 
 
 State V. De Wolf, 8 Conn. 93 . 
 
 State V. Dibble, 4 Jones, 107 
 
 State V. Dickerson, 34 Mo. 365 
 
 State V. Dill, 1 Scam. 257 
 
 State V. Dillihunty, 18 Miss. 331 
 
 State V. Dineen, 10 Minn. 407 
 
 State V. DivoU, 44 New Hamp. 140 . 
 
 State V. Dobson, 3 Harring. 563 . 
 
 State V. Dodd, 3 Murphy, 226 
 
 State V. Dodson, 4 Oregon, 64 
 
 State V. Dole, 3 Blackf. 294 . 
 
 State V. Donaldson, 3 Vroom (32 N. J ) 151 
 
 State V. Donnegan, 34 Mo. 67 
 
 State V. Donnell, 32 Vt. 491 
 
 State V. Doon, R. M. Charlt. 1 
 
 State V. Dooris, 40 Conn. 145 ; 2 Green's Cr. 
 
 State V. Dorr, 33 Maine (3 Red.) 498 . 
 
 " " 10 Ired. 469 
 
 State V. Dorsett, 21 Texas, 656 
 State V. Doty, 3 Vroom (32 N. J.) 403 . 
 
 « " 5 Cold. Tenn. 33 
 
 State V. Dougherty, 55 Mo. 69 ; 2 Green's Cr 
 State V. Douglass, 7 Iowa, 413 
 State V. Dourdon, 3 Dev. 443 
 State V. Dove, 10 Ired. 469 . 
 State V. Dover, 9 New Hamp. 468 
 
 " " 46 New Hamp. 452 . 
 
 State V. Dow, 21 Vt. 484 . 
 State V. Dowd, 19 Conn. 383 . 
 State V. Dowe, 27 Iowa, 373 
 State V. Dowell, 3 Gill & Johns. 310 . 
 State V. Dowers, 45 New Hamp. 543 
 State V. Downing, 74 N. C. 184 
 State V. Dozier, Dudley, Ga. 155 . 
 State V. Drake, 30 Maine, 366 
 State V. Drawdy, 14 Rich. 87 
 State V. Dresser, 54 Maine, 569 
 State V. Dubois, 49 Mo. 573 
 State V. Duckworth, 3 Dutch. 338 
 State V. Dudley, 7 Wis. 664 
 State V. Duesloe, 1 Bay, 377 . 
 State V. Dufify, 6 Nev. 138 
 State V. Duncan, 7 Yerg. 371 
 
 " " 6 Ired. 336 
 
 " " 1 McCord, 404 
 
 State V. Dunkley, 3 Ired. 116 . 
 State V. Dunlap, 34 Maine, 77 
 
 Bail and recognizance, 63. 
 
 Conspiracy, 103 ; Larceny, 412. 
 . Evid. 134, 162, 170; Rape, 531. 
 
 Nuisance, 486. 
 . Officer, 492. 
 
 Writ of error, 662. 
 . Homicide, 270. 
 
 Evidence, 129. 
 
 Perjury, 504. 
 
 Larceny, 403. 
 
 Perjury, 507. 
 
 Homicide, 291. 
 
 Gaming, 242. 
 
 Conspiracy, 103. 
 . Larceny, 397, 399. 
 
 New trial, 450. 
 
 Nuisance, 475. 
 R. 493. Bigamy, 80. 
 
 False pretenses, 176, 184. 
 
 Trial, 603. 
 
 Escape, 125. 
 
 Contempt, 110. 
 
 Religious meet, disturb, of, 540. 
 R. 610. New trial, 453. 
 
 Voting, 644. 
 
 Forgery and counterfeiting, 203. 
 . Evidence, 169, 170. 
 
 Information, 353. 
 
 Nolle prosequi, 467. 
 
 Spirituous liquors, sale of, 568. 
 
 Homicide, 304. 
 
 False pretenses, 183. 
 
 Larceny, 388. 
 
 Lasciviousness, 418. 
 . Affray, 17. 
 
 False pretenses, 186. 
 
 Warrant, 647. 
 
 Larceny, 412 ; Verdict, 637. 
 
 Demurrer, 115; Evidence, 127. 
 
 Burglary, 94. 
 
 False pretenses, 186. 
 
 Adultery, 14, 15. 
 
 New trial, 445. 
 
 Trial, 630, 631. 
 Abatement, 1. 
 
 Accessory, 11; Continuance, 113; 
 
 Homicide, 387. 
 Nuisance, 471. 
 Homicide, 254. 
 False pretenses, 180.
 
 TABLE OF CASES. 
 
 769 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Dunham, 9 Ala. 70... 
 
 
 State V. Dunn, 18 Mo. 41<J . 
 
 
 " 26 Ark. 34 . . . 
 
 
 " " 1 Dutch. 214 . 
 
 
 State V Dupont, 2 McCord, 334 . . 
 
 
 State V. Durham, 72 N. C. 447 
 
 
 State V. Durst, 7 Texas, 74 . . . 
 
 
 State V. Duvall, 26 Wis. 415 . 
 
 , 
 
 State V. Dyer, 59 Maine, 137 . 
 
 
 " " 41 Texas, 520 . 
 
 
 State V. Early, 3 Barring. 562 
 
 
 State V. Earp, 41 Texas, 487 . 
 
 
 State Y. Eaton, 3 Barring. 554 
 
 
 State V. Edney, 4 Dev. & Batt. 378 . 
 
 
 State V. Edson, 10 La. An. 229 . 
 
 
 State V. Edwards, 4 Humph. 226 
 
 
 State V. Egan, 10 La. An. 698 . 
 
 
 State V. Elder, 41 Maine, 165 . 
 
 
 " " 54 Maine, 381 . 
 
 
 State V. Ellington, 7 Ired. 61 . 
 
 
 State V. Elliott, 11 New Hamp. 540 
 
 
 " " 7 Blackf. 280 
 
 
 State V. Ellis, 4 Vroom, 1 02 . 
 
 
 " "3 Conn. 185 . 
 
 
 " " 8 Blackf. 225 .. . 
 
 
 State V. Emeigh, 18 Iowa, 123 
 
 
 State V. Emerson, 53 N. H. 619; 2 Green's Cr. R. 
 
 362 
 
 " " 16 New Hamp. 87 . 
 
 
 State V. Emery, Brayt. 131 .. . 
 
 
 State V. Emmott, 23 Wis. 632 . 
 
 
 State V. England, 8 Jones., 399 . 
 
 
 State V. Engle, 1 Zabr. 347 . 
 
 
 State V. Enloe, 4 Dev. & Batt. 373 
 
 
 State V. Ephraim, 2 Dev. & Batt. 163 
 
 
 State V. Epperson, 27 Mo. 255 
 
 
 State V. Epps, 4 Sneed, 552 . 
 
 
 State V. Errickson, 3 Vroom (32 N. J.) 431 
 
 
 State V. Eskridge, 1 Swan, 413 
 
 
 State V. Este.s, 46 Maine, 150 
 
 
 State V. Eubanks, 41 Texas, 291 
 
 
 State V. Evans, 15 Rich. 31 . . . 
 
 
 " " 5 Ired. 603 . 
 
 
 State v. Everett, Dudley, S. C. 295 
 
 
 State V. Evers, 49 Mo. 542 
 
 
 State V. Fairclough, 39 Conn. 47 
 
 
 State V. Fairfield, 37 Me. 517 
 
 
 State V. Fann, 65 N. C. 317 
 
 
 State V. Farley, 8 Blackf. 239 
 
 
 State V. Farmer, 4 Ired. 334 
 
 
 State V. Farrall, 29 Conn. 72 
 
 
 State V. Farrar, 41 New Hamp. 53 
 
 
 49 
 
 
 Nolle prosequi, 467. 
 
 Homi. 256, 309; Trial, 614, 619. 
 
 Lasciviousness, 418. 
 
 Officer, 492. 
 
 Dueling, 116, 117. 
 
 Verdict, 640. 
 
 Indictment, 347. 
 
 Homicide, 368. 
 
 Abortion, 6. 
 
 False pretenses, 180. 
 
 Witness, 653. 
 
 Indictment, 336. 
 
 Burglary, 91 ; Evidence, 134, 149. 
 
 Bail and recognizance, 67. 
 
 Embezzlement, 131, 
 
 Bail and recognizance, 70. 
 
 Indictment, 334. 
 
 Former acquittal or convic. 338. 
 
 Jurisdiction, 368. 
 
 Trial, 601. 
 
 Assault and battery, 38. 
 
 Assault and battery, 41. 
 
 Bribery, 85. 
 
 Larceny, 385. 
 
 Perjury, 501. 
 
 Rape, 531. 
 
 Arson, 36. 
 
 Spirituous liquors, sale of, 567. 
 
 Larceny, 389. 
 
 Indictment, 330. 
 
 Larceny, 379. 
 
 New trial, 447. 
 
 Conspiracy, 106. 
 
 Trial, 611. 
 
 Assault and battery, 33. 
 
 Assault and battery, 47. 
 
 Escape, 13 1. 
 
 Spirituous liquors, sale of, 569. 
 
 False pretenses, 183. 
 
 Assault and battery, 39. 
 
 Larceny, 389. 
 
 Lasciviousness, 416. 
 
 Warrant, 646. 
 
 False pretenses, 173, 175. 
 
 Larceny, 374. 
 
 Spirituous liquors, sale of, 573. 
 
 Larceny, 373. 
 
 Pardon, 495. 
 
 Rape, 531. 
 
 Breach of the peace, 84. 
 
 Abduction, 2.
 
 770 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V, 
 State V, 
 State V. 
 State V, 
 
 State V, 
 
 Farrier, I Hawks, 487 
 Farrow, 10 Rich. 165 
 Fasset, 16 Conn. 457 
 Faucett, 4 Dev. & Batt. 107 
 Fearson, 2 Md. 310 . 
 Feaster, 25 Mo. 324 
 Fee, 19 Wis. 562 
 Fellows, 2 Hayw. 520 . 
 Felter, 25 Iowa, 67 . 
 
 " 32 Iowa, 49 
 Fenley, 18 Mo. 445 . 
 Fenn, 41 Conn. 590 
 Ferguson, 9 Nev. 106 
 
 2 McMullan, 502 
 " 33 New Hamp. 424 
 
 Fidment, 85 Iowa, 541 ; 2 Green's Cr, 
 Fielding, 32 Maine, 585 . 
 Fields, Peck, 140 . 
 Fifield, 18 New Hamp. 34 
 Fish, 3 Dutch. 323 . 
 Fisher, 6 Jones, 478 
 
 " 70 N. C. 78 . 
 
 " 2 Nott & McCord, 261 
 Flanders, 38 New Hamp. 324 
 
 R. 632, 
 
 State V. Fleetwood, 16 Mo. 372 . 
 State V. Fleming, 7 Humph. 152 
 State V. Fletcher, 35 Texas, 740 . 
 
 " " 5 New Hamp. 257 
 
 State V. Florez, 5 La. An. 429 
 State V. Flower, Walker, 318 
 State V. Floyd, 6 Jones, 392 
 State V. Flye, 26 Maine, 312. 
 
 State V. 
 
 Flynn, 36 New Hamp. 64 
 
 State V. 
 
 Foley, 45 New Hamp. 466 . 
 
 State V. 
 
 Folke, 2 La. An. 744 . 
 
 State V. 
 
 Follet, 6 New Hamp. 53 
 
 State V. 
 
 Foot, 2 Mills, 123 .. . 
 
 State V. 
 
 Ford, 3 Strobh. 517, note 
 
 a 
 
 2 Root, 93 . . . 
 
 State V. 
 
 Fore, 1 Ired. 378 . 
 
 State V 
 
 Forney, 24 La. An. 191 
 
 State V 
 
 Forno, 14 La. An. 450 
 
 State V. 
 
 Foster, 37 Iowa, 404 . 
 
 u 
 
 " 33 Iowa, 525 
 
 (( 
 
 " 3 Fost. 348 .. . 
 
 state V 
 
 Fowler, 28 New Hamp. 181 
 
 State V 
 
 Fox, 1 Dutch. 566 .. . 
 
 (( 
 
 " 2 Halst. 244 . 
 
 u 
 
 " Ga.Decis pt. 1, 35 
 
 Dueling, 117. 
 
 Perjury, 504. 
 
 Grand jury, 248; Indictment, 348, 
 
 Spirituous liquors, sale of, 571. 
 
 Gaming, 237. 
 
 Indictment, 346. 
 
 Assault and battery, 50. 
 
 Forcible entry and detainer, 194, 
 
 Evidence, 161, 162 ; Insanity, 356. 
 
 Insanity, 357. 
 
 Forgery & counterfeiting, 201, 207. 
 
 Larceny, 374, 388. 
 
 Homicide, 319. 
 
 Larceny, 379. 
 
 Spirituous liquors, sale of, 566. 
 
 Arson, 28; Ev. 148; Indict. 339. 
 
 Indictment, 832. 
 
 Indictment, 329. 
 
 Officer, 490, 492. 
 
 Arson, 29. 
 
 Evidence, 147. 
 
 Larceny, 413. 
 
 New trial, 444, 463. 
 
 Bill of exceptions, 83; Ev. 163; 
 
 Forgery and counterfeiting, 200. 
 Indictment, 843. 
 Nolle prosequi, 466. 
 Estray, 126. 
 Indictment, 326. 
 Verdict, 642. 
 Trial, 594. 
 Homicide, 298, 307. 
 Forg. and counterf. 205, 214, 222; 
 
 Indictment, 340. 
 Evidence, 143. 
 
 New trial, 449 ; Nuisance, 482, 485, 
 Indictment, 333 ; Trial, 605. 
 Lottery, 428. 
 
 Bail and recognizance, 66. 
 Evidence, 151 ; New trial, 447. 
 Forgery and counterfeiting, 214. 
 Lasciviousness, 418. 
 Homicide, 268. 
 Bail and recognizance, 65. 
 Embezzlement, 119. 
 Former acquittal or convict. 230. 
 Spir. liquors, sale of, 576 ; Wit. 655. 
 Bail and recognizance, 67. 
 Evid. 170 ; Homic. 271 ; Trial, 598. 
 Indictment, 327. 
 New trial, 454.
 
 TABLE OF CASES. 
 
 771 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Foye, 53 Mo. 336 
 State V. Franklin Falls Co. 49 New Hamp. 240 
 State V. Frazer, 2 Bay, 96 . 
 State V. Fredericks, 16 Mo. 382 
 State V. Freeman, 12 Ind. 100 
 6 Blackf. 248 
 " 15 Vt. 722 
 
 " " 8 Iowa, 428 
 
 " 37 Vt. 520 
 
 " " 5 Conn. 348 
 
 State V. Frisby, 19 La. An. 143 
 State V. Fritz, 23 La. An. 55 
 State V. Froiseth, 16 Minn. 296 
 State V. Fuentes, 5 La. An. 427 
 State V. Fulford, Phil. N. C. 563 
 State V. Fuller, 33 New Hamp. 259 
 
 " " 34 Conn. 280 
 
 " "1 McCord, 178 . 
 
 " " 39 Vt. 74 
 
 " "1 Bay, 245 
 
 Furlong, 19 Maine, 225 
 " 26 Maine, 69 . 
 
 Fyles, 1 Const. 234 . 
 
 GaflFery, 12 La. An. 265 . 
 
 Gaffney, Rice, 431 . 
 
 Gager, 26 Conn. 607; 28 lb. 232 
 
 Gailor, 71 N. 0. 88 . 
 
 Gallimon, 2 Ired. 372 
 
 Gardiner, 1 Ired. 27 
 
 Garity, 46 New Hamp. 61 
 
 Garland, 25 La. An. 532 
 
 Gamer, 8 Porter, 447 
 
 Garrett, 11 N. C. 85 ; 2 Green's Cr. Reps 
 " Busbee, 357 
 
 Garrigues, 1 Hayw. 276 
 
 Garthwaite, 3 Zabr. 143 . 
 
 Garvey, 11 Minn. 154 
 
 State V. 
 
 a 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 (51. 
 
 Gary, 36 New Hamp. 359 
 Gaskins, 65 N. C. 320 
 Gasting, 23 La. An. 609 
 Gates, 17 New Hamp. 373 
 Gay, 10 Mo. 440 
 Gazell, 30 Mo. 92 
 Gentry, 2 Jones, 406 
 George, 15 La. An. 145 
 Gerkin, 1 Ired. 121 
 German, 54 Mo. 526 
 Gherkin, 7 Ired. 206 
 Gibbons, 1 South. 40 
 
 Evidence, 168. 
 
 Nuisance, 474. 
 
 Continuance, 113. 
 
 Spirituous liquors, sale of, 567. 
 
 Evidence, 144. 
 
 Grand jury, 247; Iniict. 337, 345. 
 
 Indictment, 348. 
 
 Officer, 491. 
 
 Spirit, liquors, sale of, 572, 574. 
 
 Verdict, 642. 
 
 New trial, 452. 
 
 Forgery and counterfeiting, 217. 
 
 Indictment, 327. 
 
 Assault and battery, 55. 
 
 Larceny, 390. 
 
 Indictment, 344. 
 
 New trial, 444; Spirituous liquors, 
 
 sale of, 568. 
 Pardon, 494. 
 Trial, 602. 
 Verdict, 639. 
 Larceny, 401. 
 Perjury, 503. 
 Continuance, 113. 
 Larceny, 393. 
 Homicide, 303. 
 
 Religious meeting, disturb, of, 540. 
 Arson, 28. 
 Perjury, 503. 
 
 Forgery and counterfeiting, 304, 
 Nuisance, 481. 
 Contempt, 110. 
 Malicious mischief, 433. 
 Evidence, 140. 
 Trial, 613. 
 
 Former acquittal or convict. 334. 
 Trial, 593. 
 Evidence, 164 ; Intoxication as an 
 
 excuse for crime, 361. 
 Indictment, 339, 340. 
 Sentence, 558. 
 Larceny, 391. 
 Perjury, 497, 509, 513. 
 Sentence, 556. 
 Larceny, 373. 
 Trial, 613. 
 Evidence, 143. 
 Mayhem, 430. 
 Homicide, 370. 
 
 Forgery and counterfeiting, 199. 
 Certiorari, 97.
 
 772 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State T. 
 
 Gibson, 10 Irod. 214 
 " * 29 Iowa, 295 
 
 
 State V. 
 
 Gilbert, 36 Vt. 145 
 
 
 
 2 Bay, 355 . 
 " 13 Vt. 647 
 
 
 State T. 
 
 Gillick, 7 Iowa, 287 . 
 
 
 State T. 
 
 Gillis, 4 Dev. 600 
 
 
 State V. 
 
 Gilman, 51 Maine, 206 
 
 
 State V. 
 
 Givens, 5 Ala. 747 
 
 
 State V. 
 
 Glasgow, Dudley, S. C. 40 . 
 
 
 State V. 
 
 Glaze, 9 Ala. 283 . 
 
 
 State V 
 
 Godet, 7 Ired. 210 . 
 
 
 State V. 
 
 Godfrey, 24 Maine, 232 . 
 
 
 
 12 Maine, 361 
 "- Bray t. 170 
 
 
 state V. 
 
 Godsey, 13 Ired. 348 
 
 
 State V. 
 
 Godwin, 5 Ired. 401 
 
 
 State V. 
 
 GoflF, 20 Ark. 289 
 
 
 State V. 
 
 Gooch, 7 Blackf. 468 
 
 
 State V. 
 
 Goode, 1 Hawks, 463 
 
 
 State V. 
 
 Goodman, 6 Rich. 387 . 
 
 
 State V 
 
 Goodrich, 19 Vt. 116 
 
 
 (1 
 
 46 New Hamp. 186 . 
 
 
 State T. 
 
 Goold, 53 Maine, 279 
 
 
 a 
 
 ' ' 62 Maine, 509 ; 2 Green's Cr 
 
 .Reps. 
 
 State V. 
 
 Gordon, 1 R. I. 179 . 
 
 
 State V. 
 
 Gorbam, 53 New Hamp. 152 
 
 
 State V. Gorman, 2 Nott & McCord, 90 
 State V. Goulding, 44 New Hamp. 284 . 
 State V. Gove, 34 New Hamp, 510 
 State V. Grady, 34 Conn. 118 . 
 
 State V. Graham, 13 Kansas, 299 
 
 " " 74 N. C. 646 . 
 
 " " 46 Mo. 490 
 
 " " 3 Sneed, 134 . 
 
 " " 15 Rich. 310 
 
 " " 1 Ark. 428 
 
 State V. Grand Trunk R. R. 58 Maine, 176 
 
 " " " 60 Maine, 145 
 
 State V. Grant, 23 Maine, 171 
 State V. Graves, 72 N. C. 483 
 
 " " Busbee, 402 
 
 " " 74 N. C. 396 
 
 State V. Gray, 21 Mo. 492 
 
 " " 8 Blackf. 274 
 
 " "37 Mo. 463 
 
 " " 8 Jones, 179 
 
 State V. Green, 7 Wis. 676 
 
 " "5 Rich. N. S. 65 
 
 Assault and battery, 39. 
 . Trial, 625. 
 
 Evidence, 149. 
 
 Forcible entry and detainer, 192. 
 
 Indictment, 334. 
 
 Grand jury, 246; Homicide, 277. 
 
 Evidence, 152. 
 
 Homicide, 285. 
 
 Forg. and counterf. 198, 200, 217. 
 
 Fomier acquittal or convict. 223. 
 
 Incest, 325. 
 . Larceny, 392, 399, 402. 
 
 Indictment, 344. 
 
 Nuisance, 474, 477. 
 
 Trial, 602. 
 
 Forcible entry and detainer, 194. 
 
 New trial, 462, 
 . Sunday, 584, 
 
 Lasciviousness, 418, 
 
 Accessory, 10. 
 
 Libel, 422, 423. 
 . Aflfray, 18. 
 
 Larceny, 394, 395. 
 
 Assault and battery, 37. 
 482. Libel, 425. 
 
 Homicide, 287 ; New trial, 448. 
 
 Ass. and batt. 33 ; Larceny, 393 ; 
 Robbery, 545. 
 
 Larceny, 374. 
 
 Lasciviousness, 417. 
 . Indictment, 341, 343, 345. 
 
 Conspiracy, 109; Jurisdict. 865; 
 Statutes, 580, 581. 
 
 Embezzlement, 121 ; Trial, 622. 
 
 Larceny, 404. 
 
 Malicious mischief, 433, 
 
 Nuis. 468; Profane swear. 517, 
 
 Nuisance, 481. 
 
 Writ of error, 662. 
 
 Assault and battery, 38. 
 
 Indictment, 342. 
 
 Evidence, 141 ; Larceny, 402. 
 
 Larceny, 406. 
 
 Perjury, 506, 511. 
 
 Trespass, 590. 
 
 Assault and battery, 40. 
 
 Bastardy, 72. 
 
 Larceny, 406. 
 
 Rape, 519. 
 
 False pretenses, 184. 
 
 False pretenses, 187; Trial, 620.
 
 TABLE OF CASES. 
 
 773 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V, Green, 35 Conn. 203 
 " "7 Ired. 39 
 
 " 10 Iowa, 239 
 State V. Greenlee, 1 D'ev. 523 
 State V. Greenwood, 5 Porter, 474 
 
 State V. Gregory, 5 .Jones, 315 
 
 " " 3 Murphy, 09 . 
 
 State V. Griffin, 18 Vt. 198 
 State V. Griffiths, 3 Ired. 504 
 State V. Grigsljy, 3 Yerg. 280 
 State V. GroflF, 1 Murph. 270 
 State V. Grooms, 5 Strobh. 158 
 State V. G. S. 1 Tyler, 295 
 State V. Guild, 5 Halst. 163 
 State V. Gupton, 8 Ired. 271 
 State V. Gurney, 37 Maine, 149 
 State V. Gut, 13 Minn. 341 
 
 'state V. Guyer, 6 Iowa, 263 
 State V. Hadley, 54 New Hamp. 224 
 State V. Hagan, 54 Mo. 192 
 State V. Hailstock, 2 Blackf. 257 
 State V. Haines, 30 Maine, 65 
 State V. Hall, 4 Halst. 256 
 
 " " 9 Nev. 58 
 
 " " 49 Maine, 412 
 
 " " 5 Harring. 492 
 
 " " 3 Vroom (32N. J.) 158 
 
 "21 Maine, 84 
 
 '♦ " 7 Blackf. 25 
 
 State V. Ham, 54 Maine, 194 
 State V. Hamer, 2 Carter, 371 
 State V. Hamilton, 55 Mo. 520 . 
 
 " " 32 Iowa, 573 
 
 "7 Mo. 300 
 State V. Hammond, 5 Strobh. 91 
 State V. Hampton, 63 N. C. 13 
 State V. Handy, 20 Maine, 81 
 State V. Hanson, 23 Texas, 233 . 
 
 "39 Maine, 337 
 State V. Hardin, 1 Kansas, 474 . 
 State V. Hardwick, 2 Mo. 226 
 State V. Hardy, 47 New Hamp, 538 
 State V. Hargett, 65 N. C. 669 
 State V. Ilargrave, 65 N. C. 466 . 
 State V. Harkin, 7 Nev. 377 
 State V. Harlow, 21 Mo. 440 
 State V. Harrington, 21 Ark. 195 
 State V. Harris, 34 Mo. 347 
 
 " " 38 Iowa, 243 
 
 Homicide, 380. 
 Mayhem, 436. 
 
 Sentence, 55(i. 
 
 Forgery and counterfeiting, 208. 
 
 Abat. 1; Gr. jury, 247; Trial, 606; 
 
 Venue, change of, 630. 
 Evidence, 147. 
 Perjury, 509. 
 
 Forg. and counterf. 200, 211, 214. 
 Assault and battery, 44. 
 Bail and recognizance, 69. 
 
 Accessory, 10. 
 
 False pretenses, 177. 
 
 Indictment, 332. 
 
 Evidence, 149; Homicide. 285. 
 
 Gaming, 238. 
 
 Indictment, 344. 
 
 Horn. 355 ; Insanity, 359 ; Intoxica- 
 tion as an exc. for cr. 360, 361. 
 
 Witness, 651. 
 
 Conspiracy, 108. 
 
 Evidence, 143. 
 
 Assault and battery, 49. 
 
 Nuisance, 476. 
 
 Former acquittal or convict. 334. 
 
 Homicide, 319. 
 
 Jurisdiction, 365. 
 
 Larceny, 384. 
 
 Nuisance, 470, 
 
 Nuisance, 479. 
 
 Perjury, 500. 
 
 Assault and. batteiy, 47. 
 
 Bail and recognizance, 64. 
 
 Evidence, 153, 169. 
 
 Evidence, 168. 
 
 Perjury, 507. 
 
 New trial, 463. 
 
 Assault and battery, 34. 
 
 Forgery and. counterfeiting, 313. 
 
 Lasciviousness, 418. 
 
 Perjury, 501, 504. 
 
 Gaming, 336. 
 
 Indictment, 333. 
 
 Assault and battery, 41. 
 
 Homicide, 858. 
 
 Rape, 519. 
 
 Trial, 610. 
 
 Intox. as an excuse for crime, 300. 
 
 Assault and battery, 40. 
 
 Assault and battery, 50. 
 
 Conspiracy, 105.
 
 774 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Harris, 5 Ired. 287 .. . 
 
 " " 63 N. C. 1 . 
 
 " " 59 Mo. 550 .. . 
 
 " " 1 Jones, 190 . 
 
 « " 2 Halst. 361 . 
 
 " " 3 Harring. 559 
 
 " " 8 Jones, 136 • 
 
 State V. Harrison, 09 N. C. 143; 1 Green's Or. R. 537 
 State V. Harrold, 38 Mo. 496 . 
 State V. Hart, 2 Harr. 327 . 
 
 " " 34 Maine, 36 . . . 
 
 State V. Harten, 4 Harring. 582 
 State V. Hartford & N. Haven R. R. Co. 29 Conn. 533 
 State V. Hartigan, 32 Vt. 607 
 
 " 19 NeAv Hamp. 248 . 
 State V. Harvey, 3 New Hamp. 65 
 State V. Hascall, 6 New Hamp. 352 
 State V. Hash, 12 La. An. 895 
 State V. Haskell, 33 Maine, 127 . 
 State V. Haskett, 3 Hill, S. C. 95 . 
 
 " " Riley, 97 
 
 State V. Hastings," 53 New Hamp. 452 ; 2 Green's C 
 Rep. 334 .... 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 
 u 
 
 state V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 Hatchcock, 7 Ired. 52 
 Hattaway, 2 Nott & McCord, 118 
 Havelin, 6 La. An. 167 , 
 Havely, 21 Mo. 498 . 
 Hawell, 4 Jones, 55 
 Hawkins, 5 Eng. 71 
 
 " 8 Porter, 461 . 
 Hayes, 24 Mo. 358 . 
 Haynes, 36 Vt. 667 
 Hays, 23 Mo. 287 
 Hayward, 1 Nott & McCord, 546 
 
 " 22 La. An. 39 
 
 Hazard, 2 R. I. 474 
 Hazeltou, 15 La. An. 72 
 Healy, 48 Mo. 531 
 Heath, 41 Texas, 426 
 Heathman, Wright, 690 , 
 Hedge, 6 Ind. 330 . 
 Heed, 57 Mo. 252 
 Heflin, 8 Humph. 84 
 Helle, 2 Hill, S. C. 290 . 
 Helms, 5 Ired. 304 . 
 Hemphill, 3 Dev. & Batt. 109 . 
 Henderson, 15 Mo. 486 
 
 " 66 N. C. 027 
 
 " 1 Rich. 179 
 
 Hendricks, Cam. & Nor. 369 
 
 Forgery and counterfeiting, 216. 
 
 Homicide, 263. 
 
 Homicide, 316. 
 
 Homicide, 318. 
 
 Indictment, 337. 
 
 Larceny, 400. 
 
 Trial, 592. 
 
 Forgery and counterfeiting, 222. 
 
 Evidence, 158. 
 
 Forgery & counterfeiting, 200, 205. 
 
 Judg. 363; Nuis. 469; Trial, 614. 
 
 Kidnapping, 372. 
 
 Mandamus, 435. 
 
 Rape, 529. 
 
 Trial, 607. 
 
 Forcible entry and detainer, 191. 
 
 New trial, 450 ; Perj. 512 ; Ver. 642. 
 
 Evidence, 147. 
 
 Embezzlement, 122. 
 
 Bail and recognizance, 68. 
 
 Nolle prosequi, 467. 
 
 Evidence, 133; Forgery and coun- 
 terf'g, 210, 214, 217; Ind. 338. 
 Indictment, 337. 
 Perjury, 498. 
 Evidence, 148. 
 Indictment, 331. 
 Assault and battery, 43. 
 Grand jury, 247. 
 Larceny, 381. 
 Indictment, 333. 
 Trial, 609. 
 Homicide, 256. 
 Perjury, 500, 511. 
 Insanity, 357. 
 
 Receiving stolen property, 535, 536. 
 Evidence, 150. 
 Embezzlement, 119. 
 Malicious mischief, 431. 
 Commitment, 98. 
 Indictment, 336. 
 Perjury, 511. 
 Affray, 17. 
 Perjury, 498. 
 Malicious mischief, 430. 
 Forcible trespass, 195. 
 Indictment, 337. 
 Larceny, 376. 
 Libel, 421, 422. 
 Indictment, 334.
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Henley, 7 Blackf. 324 
 State V. Hennessy, 23 Ohio, N. S. 339 ; 2 Gr. C 
 State V, Henry, 9 Ired. 403 
 " " 5 Jones, 65 . 
 
 " R. M. Charlt. 505 
 State V. Herman, 13 Ired. 503 
 State V. Herring, 1 Brev. 159 
 State V. Hessenkamp, 17 Iowa, 25 
 State V. Hewitt, 31 Maine, 396 . 
 State V. Hey ward, 2 Nott & McCord, 312 
 State V. Hickman, 3 Halst. 299 . 
 State V. Hicks, 27 Mo. 588 . 
 State V. Higdon, 32 Iowa, 262 . 
 State V. Hildreth, 9 Ired. 440 
 " " 9 Ired. 429 
 
 State V. Hill, 55 Maine, 365 . 
 " " 3 Brev. 89 . 
 
 " " 4 Dev. & Batt. 491 
 
 State V. Hilton, 3 Rich. 434 
 
 " " 26 Mo. 199 . 
 
 State V. Hinckley, 38 Maine, 21 . 
 
 " " 4 Minn. 345 
 
 State V. Hinton, 6 Ala. 864 
 State V. Hobbs, 39 Maine, 212 
 State V. Hodge, 50 New Hamp. 510 
 State V. Hodgeden, 3 Vt. 481 
 State V. Hodges, Phil. K C. 231 
 State V, Hodgkins, 42 New Hamp. 474 
 State V. Hoffman, 46 Vt. 176 
 State V. Hogan, 3 La. An. 714 
 " " R. M. Charlt. 474 
 
 " " 30 New Hamp. 268 . 
 
 State T. Hogard, 12 Minn. 293 . 
 State V. Hogue, 6 Jones, 381 
 State V. Hoit, 3 Foster, 355 
 State T. Holden, 48 Mo. 93 . 
 State V. Holding, 1 McCord, 31 . 
 State V. HoUey, 1 Brev. 35 
 State V. HoUoway, 5 Ark. 433 . 
 State V. Holme, 54 Mo. 153 . 
 State V. Holmes, 48 New Hamp. 377 
 
 " " 28 Conn. 230 
 
 State V. Homer, 40 Maine, 438 . 
 State V. Hood, 51 Maine, 363 
 State V. Hooker, 17 Vt. 658 
 State V. Hooper, 2 Bail. 29 . 
 State V. Hoover, 4 Dev. & Batt. 305 
 State V. Hopkins, 5 R. I. 53 . 
 " " 7 Blackf. 494 , 
 
 " " 1 Bay, 373 
 
 State V. Horan, Phil. N. C. 571 . 
 
 Indictment, 353. 
 r. R. 481. Larceny, 397. 
 Burglary, 87. 
 E\'idence, 150. 
 
 New trial, 458, 459; Trial, 596. 
 Bastardy, 75. 
 New trial, 464. 
 Nuisance, 472. 
 Conspiracy, 101, 105. 
 Robbery, 547. 
 Indictment, 352. 
 Homicide, 298. 
 Seduction, 553. 
 Accessory, 9; Evidence, 137. 
 Homicide, 258, 305, 308. 
 Arson, 27. 
 
 Bail and recognizance, 61, 62. 
 Homicide, 258. 
 Bigamy, 80. 
 Officer, 492. 
 
 Bill of excep. 83 ; Embezzle. 122. 
 Larceny, 390. 
 Adultery, 12. 
 Warrant, 645, 646. 
 Larceny, 409. 
 Indictment, 334. 
 Rape, 519, 520. 
 
 Former acquit, or conviction, 231. 
 Evidence, 166. 
 Evidence, 148. 
 Indictment, 340. 
 Spirituous liquors, sale of, 567. 
 Larceny, 409. 
 Homicide, 258. 
 Indictment, 326, 331. 
 Perjury, 507. 
 
 Subornation of peijury, 514. 
 Forgery & counterfeiting, 202, 207. 
 Bail and recognizance, 69. 
 Homi. 256,260,300; Insanity, 359. 
 Arrest, 20. 
 Larceny, 397. 
 
 Evidence, 127; Lasciviousness,417 
 Indict.340; Larc.415; Vcrdict,639. 
 Ass.«& batt.40,41 ;Ev.l35 ; Ver.640. 
 New trial, 463. 
 Homicide, 263, 313, 320. 
 Bill of exceptions, 83. 
 Indictment, 333. 
 New trial, 445. 
 Larceny, 388.
 
 77G 
 
 TABLE OF CASES. 
 
 I 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Horn, 43 Vt. 20 . 
 
 " 19 Ark. 578 . 
 State V. Home, 9 Kansas, 119; 1 Gr. Cr. R. 718 
 
 State V. Horton, 63 N. C. 595 
 
 State V. House, 65 N. C. 315 . . ' 
 
 State V. Houseal, 3 Brev. 219 
 
 State V. Houser, 28 Mo. 233 
 
 State V. Houston, 1 Bailey, 300 
 
 " 19 Mo. 211 . 
 
 State V. Howard, 83 Vt. 380 . 
 
 " " 17 New Hamp. 171 
 
 State V, 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V, 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 state V. 
 State V. 
 State V. 
 state V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 " 9 New Hamp. 485 . 
 Howe, 1 Rich. 260 
 Howell, Ga. Decis. pt. 1, 1S8 
 
 " R. M. Cbarlt. 120 
 
 " 9 Ired. 485 . 
 
 Hoyle, 6 Ired. 1 . 
 Huber, 8 Kansas, 447 
 Hudson, 59 Mo. 135 . 
 Huffman, Addis. 140 
 Hufford, 28 Iowa, 391 . 
 Hughes, 1 Ala. 655 . 
 " 1 Swan, 263 . 
 " 2 Har. & McHen. 479 
 Hull, 34 Conn. 133 
 Humphrey, 33 Vt. 569 
 Humphreys, 10 Humph. 443 
 Hundley, 46 Mo. 414 
 Hunt, Coxe, 287 . 
 Hunter, 5 Ired. 369 . 
 Huntly, 3 Ired. 418 
 Hurd, 51 New Hamp. 176 . 
 Hussey, Busbee, 123 
 Hutchinson, 36 Maine, 261 . 
 
 " 26 Texas, 111 
 
 Huting, 21 Mo. 464 
 Hutson, 15 Mo. 513 
 Hyde, 29 Conn. 564 . 
 I. En, 10 Nev. 377 
 Igo, 31 Mo. 459 
 Ingold, 4 Jones, 316 
 Inhabs. of Freeport, 43 Maine, 198 
 Inhabs. of Gorham, 37 Maine, 451 
 Inhabs. of Madison, 63 Maine, 540 
 Inness, 53 Maine, 530 
 
 State V. Intoxicating Liquors, 44 Vt. 308 
 " " "54 Maine, 564 
 
 " " " 50 Me. 506; 63 lb 
 
 131, 
 
 Bigamy, 80. 
 
 Religious meeting, disturb, of, 541. 
 
 Homicide, 319 ; Intoxication as an 
 
 excuse for crime, 361. 
 Indictment, 349. 
 Larceny, 384. 
 
 Forgery and counterfeiting, 211. 
 Homicide, 378. 
 
 Forgery and counterfeiting, 231. 
 Homicide, 366. 
 Abortion, 4, 6. 
 Evidence, 144; New trial, 446,456; 
 
 Trial, 596, 597, 601. 
 Evidence, 169 ; Witness, 659. 
 Judgment, 363. 
 Assault and battery, 50. 
 Bail and recognizance, 63. 
 Homicide, 358. 
 Perjurj', 503. 
 Homicide, 304. 
 Homicide, 357. 
 
 Former acquit, or conviction, 328. 
 Fugitives from justice, 235. 
 Grand jury, 248 ; Judgment, 363. 
 Indictment, 331. 
 Indictment, 331. 
 Ass?ult and battery, 36. 
 Larceny, 378. 
 
 Forg. and counterfeiting, 203, 309. 
 Insanity, 359. 
 Certiorari, 97. 
 Nuisance, 471. 
 
 Indict. 336 ; Misdemeanor, 437. 
 Arson, 34. 
 Witness, 651. 
 Adultery, 13, 14. 
 Indictment, 346. 
 Insanity, 355. 
 Indictment, 331. 
 Assault and battery, 43. 
 Larceny, 409. 
 New trial, 453. 
 Homicide, 330. 
 Nuisance, 474. 
 Nuisance, 474. 
 Nuisance, 473, 477. 
 Demurrer, 115 ; Former acquittal 
 
 or conviction, 330. 
 Indictment, 351. 
 Jurisdiction, 364. 
 Spirituous liquors, sale of, 578.
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page, 
 
 State V. Irwin, 1 Hayw. 130 
 
 State V. I. S. S. 1 Tyler, 178 
 
 State V. Ives, 13 Ired. 333 
 
 State V. Ivins, 36 N. J. 233 ; 3 Green's 
 
 State V. Izard, 14 Rich. 209 
 
 State V. Jackson, 17 Mo. 544 
 
 " 33 Maine, 40 . 
 
 " "39 Maine, 391 
 
 " 65N. C. 305 . 
 
 " "13 Ired. 329 
 
 " "7 Ind. 270 
 
 State V. James, 37 Conn. 35o 
 
 State V. Jarrett, 1 Ired. 76 
 State V. Jarvis, 63 N. C. 556 . 
 State V. Jasper, 4 Dev. 323 
 State V. Jay, 5 Vroom (34 IST. J.) 363 
 State V. J. B. 1 Tyler, 269 
 State V. Jefferson, 6 Ired. 305 
 State V. Jeffrey, 3 Murph. 460 
 " 66 K C. 309 
 State V. Jenkins, 5 .Jones, 430 
 " "14 Eich. 215 . 
 
 " "2 Tyler, 379 
 
 State V. Jennings, 18 Mo. 435 
 State V. Jericho, 40 Vt. 121 . 
 State V. Jerome, 33 Conn. 365 
 State V, Jewell, 33 Maine, 583 
 State V. Jim, 3 Murphy, 3 
 
 " " 1 Dev. 149 
 
 State V. John, 8 Ired. 330 
 
 " 5 Jones, 103 . 
 State V. Johnson, 12 Ala. 840 
 " 4 Mo. 018 
 " 12 Minn. 476 . 
 " Phil. N. C. 180 . 
 " " 33 New Hamp. 441 
 
 " " 26 Iowa, 407 
 
 "8 Blackf. 533 . 
 " "1 Ired. 354 
 
 " "8 Iowa, 525 
 
 " " 10 La. An. 456 
 
 " " 40 Conn. 136; 41 lb. 
 
 Cr. Reps. 487 
 '» "3 Jones, 266 . 
 
 " " 2 Jones, 247 
 
 " ■ " 1 Chip. 120 . 
 
 " " 2 Oregon, 115 
 
 " " 7 Blackf. 40 . 
 
 " " 28 Vt. 512 
 
 Evidence, 156. 
 Nolle prosequi, 465. 
 Receiving stolen property, 535. 
 Cr. Reps. 591. Rape, 531. 
 
 Assault and battery, 47. 
 Assault and battery, 54 ; Trial, 606. 
 Grand jury, 248. 
 Indictment, 329, 333. 
 Larceny, 872. 
 Malicious mischief, 430. 
 Malicious trespass, 435. 
 Commitment, 98; Evidence, 129; 
 
 New trial, 449. 
 Homicide, 255. 
 Larceny, 375. 
 Misdemeanor, 437. 
 Indictment, 345, 
 Perjury, 513. 
 
 Evidence, 142; Rape, 526. 
 New trial, 463. 
 Trial, 628. 
 Burglary, 88. 
 Homicide, 257, 273. 
 Larceny, 379. 
 
 Homicide, 256 ; Verdict, 640. 
 Nuisance, 478. 
 Rape, 523. 
 Trial, 597. 
 Indictment, 347. 
 Rape, 520. 
 Homicide, 260, 276. 
 Larceny, 376. 
 
 Assault and battery, 37, 47. 
 Assault and battery, 51. 
 Bigamy, 80. 
 Burglary, 87. 
 False pretenses, 188, 189. 
 Forgery and counterfeit. 190, 200. 
 Former acquittal or convic. 223. 
 Homicide, 355, 377. 
 Homicide, 250. 
 Homicide, 266, 
 584 ; 2 Green's 
 
 Homicide, ^75 ; Insanity, 350. 
 Homicide, 300. 
 Homicide, 314. 
 Information, 354. 
 Larceny, 385. 
 Perjury, 499, 508. 
 Rape, 520.
 
 78 
 
 TABLE OF CASES. 
 
 I 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Johnson, Walker, 392 . 
 
 " '• 9 La. An. 308 
 
 State V. Joiner, 4 Hawks, 550 
 State V. Jolly, 3 Dev. & Batt. 110 
 State V. Jones, 7 Nev. 408 
 
 " "1 Murphy, 257 
 
 " "5 Ala. 666 
 
 " 4Halst. 2 
 
 " 13 Iowa, 269 
 
 " 54 Mo. 478; 2 Green's Cr, 
 
 " 70 N. C. 75 
 
 " 1 McMullan, 236 
 
 " 20 Mo. 58 
 
 " 50 New Hamp. 369 . 
 
 " 4 Halst. 357 
 
 " 39 Vt. 370 
 
 " 65 N. C. 395 ■ 
 
 " 2 Bay, 520 
 
 " 9 Ired. 38 . 
 Jordan, 19 Mo. 212 . 
 Josey, 64 N. C. 56 
 Justice, 2 Dev. 199 . 
 J. W. 1 Tyler, 417 
 Kalb, 14 Ind. 403 
 Kane, 1 McCord, 482 
 Raster, 35 Iowa, 221; 2 Green's 
 Kattlemann, 35 Mo. 105 . 
 Keach, 40Vt. 113 . 
 Kean, 10 New Hamp. 347 
 
 State V. 
 State V, 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 .State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 State V, 
 
 State V, 
 State V. 
 State V. 
 State V. 
 State V. 
 
 Keel, 54 Mo. 182 
 Keenan, 8 Rich. 456 . 
 Keene, 6 La. An. 375 
 " 50 Mo. 357 . 
 " 34 Maine, 500 
 " 26 Maine, 33 
 Kemp, 17 Wis. 609 
 Kennedy, 7 Blackf. 233 
 36 Vt. 563 
 " 20 Iowa, 569 
 
 " 7 Nev. 374 
 
 Kent, 65 N.C. 311 . 
 Kersh, 1 Strobh. 353 
 Keyes, 15 Vt. 405 . 
 Kilgore, 6 Humph. 44 
 Kimball, 50 Maine, 409 
 
 Reps. 602 
 
 Cr. R. 
 
 29. 
 
 " 29 Iowa, 267 
 
 State V. Kimbrough, 2 Dev. 431 
 State v. King, 22 La. An, 454 . 
 
 Trial, 590. 
 
 Witness, 651. 
 
 Bastardy, 76. 
 
 Adultery, 13, 15. 
 
 Accessory, 8 ; New trial, 454, 455. 
 
 Appeal, 19. 
 
 Bill of exceptions, 83 ; Trial, 604 ; 
 
 Verdict, 637. 
 Certiorari, 97. 
 Conspiracy, 105. 
 Evidence, 142. 
 False pretenses, 177. 
 Forgery and counter. 203, 207, 220. 
 Homicide, 267. 
 
 Homi. 209 ; Insanity, 356, 358, 360. 
 Indictment, 329. 
 Indictment, 346. 
 Larceny, 372. 
 New trial, 462. 
 Profane swearing, 517. 
 Assault and battery, 49. 
 Evidence, 166. 
 False pretenses, 179. 
 New trial, 459. 
 
 Spirituous liquors, sale of, 576. 
 Larceny, 399. 
 Nuisance, 485. 
 
 Forgery and counterfeiting, 196. 
 Conspiracy, 105. 
 Bigamy, 78, 80; Indictment, 331, 
 
 346. 
 Peijury, 507. 
 Perjury, 498. 
 Contempt, 110. 
 Homicide, 290, 298, 316. 
 Indictment, 344. 
 Perjury, 496, 503, 506. 
 Writ of error, 662. 
 Assault and battery, 57. 
 Complaint, 99. 
 Homicide, 318. 
 Trial, 620. 
 
 Larceny, 374 ; Statutes, 580. 
 Larceny, 415. 
 
 Spirituous liquors, sale of, 567. 
 Gaming, 243. 
 Evi. 132; Forg. and count'fg, 198, 
 
 199, 208, 214, 220; Trial, 625. 
 Indictment, 352. 
 Evidence, 134. 
 Homicide, 315.
 
 TABLE OF CASES. 
 
 779 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. King, Sired. 411 
 
 State V. Kingsbury, 58 Maine, 238 
 
 State V. Kirby, 2 Ired. 201 . 
 
 " " 57 Maine, 30. 
 
 State V. Kitchen, 15 Mo. 207 . 
 State V. Kitchens, 2 Hill, S. C. 612 
 State V. Klinger, 46 Mo. 224 . 
 
 " " 43 Mo. 127 
 
 State V. Knapp, 45 New Hamp. 148 
 State V. Knight, 19 Iowa, 94 
 
 " " 43 Maine, 11 
 
 State V. Knouse, 29 Iowa, 118 
 State V. Knox, Phil. N. C. 312 
 State V. Koch, 4 Harring. 570 
 State V. Kreps, 8 Ala. 591 
 State V. Kroeger, 47 Mo. 562 
 State V. Kube, 20 Wis. 217 . 
 State V. Kuns, 5 Blackf. 314 
 State V. Kyle, 10 Mo. 389 
 State V. Ladd, 32 New Hamp. 110 
 
 " " 10 La. An. 271 
 
 " " 15 Mo. 430 
 
 State V. Laflferty, 5 Harring. 491 
 State V. Laliyer, 4 Minn. 368 
 State V. Lamb, 65 N. C. 419 . 
 
 " " 28 Mo. 218 
 
 State V. Lambert, 9 Nev. 321 
 State V. Lamon, 3 Hawks, 175 
 State V. Lane, 4 Ired. 113 
 State V. Lang, 63 Maine, 215 
 
 State V. Langford, Busbee, N. C. 436 
 
 " " 1 Dev. 253 
 
 State V. Langley, 34 New Hamp. 539 
 State V. Langton, 6 La. An. 282 . 
 State V. Lanier, 71 N. C. 288 ; 2 Green's Cr. R. 753. 
 State V. Larkin, 49 New Hamp. 36 . 
 State V. Lathrop, 15 Vt. 279 . 
 State V. Lattin, 29 Conn. 389. 
 State V. Laughlin, 8 Jones, 354 . 
 State V. Lavalley, 9 Mo. 834 . . . . 
 
 State V. Laurance, 57 Maine, 574 
 
 " " 38 Iowa, 51 
 
 State V. Lawry, 4 Nev. 161 
 State V. Lazarus, 1 Rep. Con. Ct. 34 . 
 
 " " 1 Mills, 12 . . 
 
 State V. Lea, 1 Cold. Tenn. 175 
 State V. Leaben, 4 Dev. 305 
 
 Nuisance, 480. 
 
 Evidence, 155, 168; Trial, 599. 
 
 Arrest, 21, 22. 
 
 Bastardy, 77. 
 
 Indictment, 353. 
 
 Homicide, 305. 
 
 Evidence, 160, 164. 
 
 Insanity, 359. 
 
 Rape, 522, 523, 524, 525, 527. 
 
 Evidence, 138. 
 
 Evidence, 161; Grand jury, 248; 
 
 Homi. 272; Trial, 595. 
 Homicide, 269 ; Verdict, 640. 
 Perjury, 497. 
 Larceny, 393. 
 Larceny, 399. 
 
 Forgery and counterfeiting, 190. 
 False pretenses, 187. 
 Indictment, 339. 
 Gaming, 344. 
 False pretenses, 185. 
 New trial, 271, 452. 
 Spirituous liq. sale of, 571, 573. 
 Arrest, 31. 
 Evidence, 149. 
 
 Forg. & coun. 203 ; Indict. 347. 
 Homicide, 270. 
 Larceny, 397. 
 Jury, 371. 
 
 Homi. 258 ; Indictment, 334. 
 Former acquittal or convic. 233 ; 
 
 Nuis. 478; Search warrant, 550 ; 
 
 Spirituous liquors, sale of, 570, 
 
 572; Verdict, 640. 
 Bill of exceptions, 83. 
 Burglary, 88. 
 Peijury, 503. 
 Nolle prosequi, 467. 
 AflFray, 17. 
 
 Former acquittal or convic. 326. 
 False pretenses, 184. 
 Rape, 538. 
 Arson, 35. 
 Perjury, 500. 
 
 Evidence, 154; Insanity, 359. 
 Trial, 600. 
 
 Assault and battery, 56. 
 Assault and battery, 38, 43. 
 Evidence, 132. 
 Subornation of perjury, 514. 
 Grand jury, 247.
 
 780 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Leach, 50 Mo. 535 . 
 " 60 Maine, 58 
 
 '' " 27 Vt. 317 . 
 
 State V. Leaden, 35 Conn. 515 
 State V. Learned, 41 Vt. 585 . 
 
 47 Me. 426 
 State V. Leavitt, 82 Maine, 183 
 State V. Leblanc, 3 Brev. 339 
 State T. Ledbetter, 4 I red. 242 
 State V. Ledford, 67 N. C. 60 
 
 " " 6Ired. 5 . 
 
 State V. Lehre, 2 Brev. 446 
 State V. Leighton, 3 Foster, 167 
 State V. Lemodelio, 23 La. An. 16 
 State V. Lemp, 16 Mo. 389 
 State V. Lendou, 5 Strobh. 85 
 State V. Leunig, 42 Ind. 541 . 
 State V. Levy, 3 Stew. 123 
 State V. Lewis, 1 Bay, 1 
 
 " 2 Hawks, 98 
 
 " " 10 Kansas, 157 
 
 State V. Libby, 44 Maine, 469 
 State V. Lightbody, 38 Maine, 200 
 State V. Lincoln, 17 Wis. 579 
 
 " 49 New Hamp. 464 
 State V. Lindley, 14 Ind. 430 
 State V. Linkaw, 63 N. C. 214; 1 Green's 
 State V. Linney, 52 Mo. 40 ; 1 Green's Crim, 
 State V, Lipsey, 3 Dev. 485 . 
 State V. Liquor, 38 Vt. 387 
 State V. Litch, 33 Vt. 67 
 State V. Litchfield, 58 Maine, 267 
 State V. Little, 1 New Hamp. 257 
 
 " " 6 Blackf. 267 
 
 State V. Livermore, 44 New Hamp. 380 
 State V. Locke, 35 Ind. 419 
 State V. Lockhardt, 24 Ga. 420 
 State V. Loftis, 3 Head, 500 
 State V. Logan, 1 Mo. 532 
 State V. London, 3 Rich. N. S. 230 
 State V. Long, 1 Humph. 386 
 State V. Longljottoms, 11 Humph. 39 
 State V. Lonou, 19 Ark. 577 . 
 State V. Lord, 16 New Hamp. 357 
 State V. Lorumbo, Harper, 183 
 State V. Love, 1 Bay, 167 
 
 " " 4 Humph. 255 
 
 State V. Lowry, 1 Swan, 34 
 State V. Ludenthall, 5 Rich. 237 
 State V. Ludwick, Phil. N. C. 401 
 State V. Lull, 37 Maine, 246 . 
 
 Cr. R. 
 
 Reps. 
 
 288 
 753 
 
 LascivioLsness, 419, 
 
 Officer, 490, 493. 
 
 Subornation of perjury, 514. 
 
 Burglary, 93. 
 
 Duress, 118; Evidence, 152. 
 
 Spirituous liquoi s, sale of, 567. 
 
 Malicious mischief, 429. 
 
 Witness, 647. 
 
 Bastardy, 73. 
 
 Larceny, 381. 
 
 Perjury, 502. 
 
 Libel, 424, 425. 
 
 Gaming, 236. 
 
 New trial, 458. 
 
 Spirituous liquors, sale of, 566. 
 
 Trial, 591. 
 
 Trial, 611. 
 
 Larceny, 396. 
 
 Continuance, 113. 
 
 Former acquittal or convic. 220. 
 
 Perjury, 512. 
 
 Adultery, 14. 
 
 Grand jury, 246. 
 
 Homicide, 267. 
 
 Indictment, 340. 
 
 Gaming, 237. 
 
 Religious meeting, disturb, of, 540. 
 
 Homicide, 263, 320. 
 
 Homicide, 277. 
 
 Spirituous liquors, sale of, 568. 
 
 Indictment, 334. 
 
 Ev. 150; Trial, 607 ; Verdict, 637. 
 
 Former acquittal or convic. 227. 
 
 Gaming, 243. 
 
 Arson, 25. 
 
 False pretenses, 181. 
 
 Burglary, 91, 
 
 Trial, 606. 
 
 Larceny, 388, 
 
 Larceny, 403. 
 
 Indictment, 329. 
 
 Larceny, 388, 391. 
 
 Assault and battery, 35. 
 
 Nuisance, 481. 
 
 New trial, 463. 
 
 Bastardy, 76. 
 
 Presentment, 517. 
 
 Former acquittal or convic. 227. 
 
 Larceny, 377. 
 
 Ai-'sault and battery, 46. 
 
 Larceny, 404 ; Witness, 654,
 
 TABLE OF CASES. 
 
 781 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Lymburu, 1 Brev. 397 
 State V. Lyon, 13 Conn. 487 . 
 
 " " 47 New Ilamp. 416 
 
 State V. Lyons, 3 La. An. 154 
 State V. Lytle, 5 Ired. 58 . 
 State V. Mabrey, 64 N. C. 592 
 State V. Mace, 6 R. L 85 . 
 State V. Madison, 33 Maine, 267 
 State V. Magee, 11 Ind. 154. 
 State V. Magoon, 37 Vt. 122 . 
 State V. Maher, 35 Maine, 225 . 
 State V. Mahon, 3 Harring. 568 
 
 " " 32 Vt. 241 
 
 State V. Main, 31 Conn. 572 . 
 State V. Mairs, Coxe, 453 . 
 
 " " Coxe, 335 
 
 State V. Mallory, 5 Vroom (34 N. J.) 410 
 State V. Manchester, &c. R. R. 52 New Hamp. 52^ 
 State V. Manly, 1 Overt. 428 . 
 State V. Manning, 14 Texas, 402 . 
 State V. Mansfield, 41 Mo. 470 
 State V. Mansker, 36 Texas, 364 . 
 State V. Manuel, 72 N. C. 201 
 State V. Markham, 15 La. An. 498 
 State V. Marler, 2 Ala. 43 . . . 
 
 State V. Marsh, 36 New Hamp. 196 
 
 " " 64 N. 0. 378 
 
 State v. Marshall, 47 Mo. 378 . 
 
 " " 45 New Hamp. 281 
 
 State V. Martin, 30 Wis. 216 . 
 
 " " 2 Ired. 101 . 
 
 " " 10 Mo. 391 ,. . 
 
 " " 28 Mo. 530 . 
 
 " " 3 Hawks, 381 . 
 
 " " 3 Murphey, 533 
 
 State V. Marvin, 35 New Hamp. 22 
 
 " " 12 Iowa, 499 
 
 State V. Massage, 65 N. 0. 480 . 
 State V. Mathis, 3 Ark. 84 . 
 State V. Matthews, 37 New Hamp. 450 . 
 
 " " 66 N. C. 106 
 
 State V. Maupin, 57 Mo. 205 
 State V. May, 9 La. An. 69 . 
 State V. Mayberry, 48 Maine, 218 
 
 " " 3 Strobh. 144 
 
 State V. May.son, 3 Brev. 284 
 State V. Maze, 6 Humph. 17 . 
 
 Assault and battery, 35. 
 
 Arson, 23 ; New trial, 462. 
 
 Larceny, 392. 
 
 Indictment, 329. 
 
 New trial, 443, 453. 
 
 Assault and battery, 36. 
 
 Nuisance, 484. 
 
 Trial, 624. 
 
 False pretenses, 175. 
 
 Perjury, 501, 508. 
 
 Former acquittal or convic. 230. 
 
 Arrest, 20, 21 ; Bail and recog. 69. 
 
 Evidence, 136. 
 
 Lasciviousness, 416, 419. 
 
 Accessory, 11; Indictment, 326; 
 Mayhem, 436. 
 
 Bail and recognizance, 62. 
 
 Malicious mischief, 431. 
 
 Homicide, 311. 
 
 Commitment, 98. 
 
 Indictment, 331. 
 
 Trial, 603. 
 
 Gaming, 243. 
 
 Animals, 18. 
 
 Indictment, 340. 
 
 Insanity, 357. 
 
 False pretenses, 178. 
 
 Forcible entry and detainer, 191. 
 
 Perjury, 508. 
 
 Voting, 644. 
 
 Former acquittal or conviction, 
 229; Homicide, 319, 322. 
 
 Homi. 258 ; Venue, change of,634. 
 
 Indictment, 331. 
 
 Larceny, 383. 
 
 New trial, 442. 
 
 Riot, 544, 545. 
 
 Adultery, 14, 16. 
 
 Lasciviousness, 420. 
 
 Homicide 307. 
 
 Indictment, 336. 
 
 Contempt, 111. 
 
 Evidence, 142. 
 
 Forgery and counterfeiting, 203. 
 
 Jurisdiction, 368. 
 
 Conspiracy, 101, 106 ; Evidence, 
 135; False pretenses, 176; In- 
 dictment, 336; Verdict, G40. 
 
 Escape, 125. 
 
 Perjury, 513. 
 
 Indictment, 326.
 
 782 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. McAdden, 71 N. C. 307 . 
 State V. McAllister, 34 Maine, 139 
 
 " 13 Maine, 374 . 
 
 State V. McAloon, 40 Maine, 133 . 
 State V. McBride, 8 Humph. 66 . . . 
 
 " " 19 Mo. 339 . 
 
 State V. McCafferty, 63 Maine, 333 . 
 
 State V. 3IcCall, 4 Ala. 643 .. . 
 
 State V. McCann, 19 Mo. 349 
 
 '• " 61 Maine, 116 . 
 
 State V. McCanon, 51 Mo. 160 .. . 
 
 State V. McCants, 1 Spear, 384 
 
 State V. McCarron, 51 Mo. 37 . . . 
 
 State V. McCarty, 1 Bay, 334 . 
 
 "17 Minn. 76 . . . 
 
 State V. McCauless, 9 Ired. 375 . 
 State V. McClintock, 1 Iowa, 339 ; 8 lb. 303 
 
 "1 Iowa, 393 
 State V. McCluer, 5 Nev. 133 ... 
 
 State V. McClure, 35 Mo. 338 . 
 State V. McCord, 8 Kansas, 333 ; 1 Green's Cr. R. 406. 
 State V. McCormick, 37 Iowa, 403 
 
 " 3 Carter, 305 . 
 
 State V. McCoy, 34 Mo. 531 
 
 " " 14 New Hamp. 364 . 
 
 State V. McCune, 5 R. I. 60 
 State V. McDaniel, 8 Jones, 384 
 State V. McDavid, 15 La. An. 403 
 State V. McDermott, 36 Iowa, 107; 3 Green's Cr. 
 Reps. 634 ..... 
 
 State V. McDonald, 35 Mo. 176 . 
 
 " 3 McCord, 399 . 
 
 State V. McDonnell, 33 Vt. 491 . 
 State V. McDowell, Blackf. 49 . . . 
 
 Dudley, S. C. 346 . 
 State V. McDuffie, 34 New Hamp. 510 
 State V. McElmurray, 3 Strobh. 33 
 State v. McFall, Addis. 355 .... 
 State V. McGinnis, 5 Nev. 337 
 State V. McGlyun, 34 New Hamp. 433 
 
 State V. McGouigal, 5 Ilarring. 510 
 State V. McGowan, 30 Conn. 345 
 
 1 Rich. N. S. 14 
 State V. McGregor, 41 New Hamp. 407 
 State V. ilcGrew, 13 Rich. 316 . 
 State V. Mclntire, 1 .lones, 1 ... 
 
 Trespass, 588. 
 
 Forgery and counterfeiting, 219. 
 
 Indictment, 336, 340. 
 
 Receiving stolen property, 535. 
 
 Gaming, 243. 
 
 Riot, 544. 
 
 Search warrant, 550 ; Spirituous 
 
 liquors, sale of, 573; Trial, 635. 
 Burglary, 86. 
 Larceny, 381. 
 
 Spirituous liquors, sale of, 577. 
 Trial, 631. 
 
 Homicide, 358, 375, 308, 313. 
 Witness, 653. 
 Former acquittal or convic'n, 330 ; 
 
 Pardon, 495. 
 Larceny, 377. 
 Forcible trespass, 195. 
 Assault and battery, 43. 
 Former acquittal or convict'n,235. 
 Homicide, 333. 
 Assault and battery, 48. 
 Former acquittal or convict'n, 229. 
 Homicide, 269. 
 Indictment, 335. 
 Insanity, 359. 
 Larceny, 403. 
 Robbery, 545. 
 Nuisance, 470. 
 Bigamy, 80. 
 
 Malicious mischief, 433 ; Malicious 
 
 trespass, 435. 
 Adultery, 14. 
 Bastardy, 74. 
 
 Homi. 307,308, 314; Trial, 619. 
 Indictment, 331. 
 Lasciviousness, 417; Nuis. 484. 
 Malicious mischief, 430. 
 Evidence, 133. 
 Homicide, 300. 
 Trial, 631. 
 Evidence, 130 ; Indictment, 344 ; 
 
 Spirit, liquors, sale of, 573, 
 Intoxic'n as excuse for crime, 363. 
 Arson, 34. 
 Larceny, 898. 
 
 Lasciviousness, 420 ; Trial, 592. 
 Larceny, 413. 
 Pardon, 493, 494.
 
 TABLE OF CASES. 
 
 783 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V, McKean, 36 Iowa, 343 ; 3 Green's Cr. Reps. 
 
 635 .. . 
 
 State V. McKee, 1 Bailey, 651 
 State V. McKennau, Harper, 302 
 State V. McKenzie, 42 Maine, 392 
 State V, McLain, 2 Brev. 443 . 
 State V. McLane, 4 La. An. 435 . 
 State V. McLaughlin, 27 Mo. Ill 
 State V. McLean, 1 Ark. 311 
 
 " " 36 Iowa, 343 
 
 State V. McLelland, 4 Sneed, 437 
 State V. McLendon, 1 Stew. 195 
 State V. McLeod, 1 Hawks, 344 . 
 
 " " 5 Jones, 318 
 
 State V. McMurphy, 52 Mo. 251 ; 1 Green's Cr. Reps. 
 
 640 .. . 
 
 State V. McNally, 32 Iowa, 580 . 
 State V. McNeill, 3 Hawks, 183 
 State V. McPherson, 70 N. C. 239 ; 2 Green's Cr. Reps. 
 
 737 ... 
 
 State V. McQueen, 1 Jones, 177 . 
 State V. Mead, 27 Vt. 722 
 State V. Meader, 47 Vt. 78 
 State V. Medbury, 8 R. I. 543 
 
 3 R. L 138 . 
 State V. Medlicott, 9 Kansas, 257; 1 Green's Cr. Reps. 
 
 227 .. . 
 
 State V. Melton, Busbee, N. C. 426 
 State v. Melvin, 11 La. An. 535 
 State V. Merrick, 19 Maine, 398 . . 
 State V. Merrill, 2 Dev. 269 . 
 
 " "3 Blackf. 346 . 
 
 " " -44 New Hamp. 624 
 
 State V. Merrit, 35 Conn. 315 
 State V. Middletown, 5 Porter, 484 
 State V. Millain, 3 Nev. 409 
 State V. Millard, 18 Vt. 574 . 
 State V. Miller, 27 Ind. 15 
 
 " " 5 Blackf. 502 
 
 " " 7 Ired. 275 
 
 " 24 Conn. 522 
 " 2 Blackf. 35 
 
 " " 48 Maine, 576 
 
 State V. Mills, 2 Dev. 421 
 
 " 17 Maine, 211 
 " 19 Ark. 476 
 State V. Minyard, 7 En^. 156 
 State V. Mise, 15 Mo. 153 
 State V. Mitchell, 5 Ired. 350 
 
 Phil. N. C. 447 
 
 " «' Sired. Ill 
 
 Evidence, 160. 
 
 Nolle prosequi, 466. 
 
 Perjury, 506. 
 
 Indictment, 343. 
 
 Larceny, 388. 
 
 Larceny, 397. 
 
 New trial, 458. 
 
 Forgery and counterfeiting, 202. 
 
 Witness, 649. 
 
 Voting, 645. 
 
 Trial, 590. 
 
 Evidence, 167 ; Verdict, 642. 
 
 Larceny, 388. 
 
 Evidence, 151. 
 Verdict, 640. 
 Nolle prosequi, 467. 
 
 Burglary, 92 ; New trial, 464. 
 
 Evidence, 168. 
 
 Nuisance, 478. 
 
 Assault and battery, 45. 
 
 Adultery, 14. 
 
 Statutes, 579. 
 
 Evidence, 160; Homicide, 294. 
 
 Bail and recognizance, 70. 
 
 Trial, 616. 
 
 Larceny, 406. 
 
 Homicide, 255, 280 ; New trial, 447. 
 
 Indictment, 336. 
 
 Indictment, 350 ; Larceny, 395. 
 
 Nuisance, 471. 
 
 Abatement, 1. 
 
 Evid. 129; Homi. 256; Larc. 40G. 
 
 Lasciviousness, 416. 
 
 Assault and battery, 51. 
 
 Gaming, 242. 
 
 Indictment, 336. 
 
 Indictment, 344. 
 
 Jury, 370. 
 
 Spirit, liquors, sale of, 567, 577. 
 
 Evid. 152; False pretenses, 195. 
 
 False pretenses, 174. 
 
 Verdict, 641. 
 
 Religious meeting, disturb, of, 541. 
 
 Forgery and counterfeiting, 221. 
 
 Arson, 25. 
 
 Evidence, 142. 
 
 Religious meeting, disturb, of, 541.
 
 784 
 
 TABLE OF CASES. 
 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 u 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V, 
 State V. 
 
 State V, 
 State V, 
 State V, 
 State V 
 
 State V. 
 
 State V, 
 State V, 
 State V. 
 State V, 
 State V. 
 State T 
 
 State V 
 State V 
 
 Mix, 15 Mo. 153 . 
 Mobley, 1 McMullati, 44 . 
 Moflfett, 1 Iowa, 347 
 
 7 Humph. 250 
 Molier, 1 Dev. 263 
 Montague, 2 McCord, 257 
 Montgomery, 1 Spear, 13 
 Mooney, 64 K C. 54 . 
 Moor, Walker, 134 
 Moore, 12 New Ilamp. 43 
 
 " 1 Smith, 316 
 
 " 69 N. C. 267; 1 Green's Cr. R. 611 
 
 6 Ind. 436 . 
 
 " 11 Ired. 70 . . . 
 
 " 1 Swan, 136 
 
 " 31 Conn. 479 . 
 
 " 39 Conn. 244: 1 Green's Cr. R. 296 
 
 " 14 New Hamp. 451 
 
 7 Ired. 228 
 
 " 3 Dutch. 105 . 
 " 25 Iowa, 128 
 Morau, 34 Allen, 453; 1 Green's Cr. R. 749 
 
 " 40 Maine, 129 
 Mordecai, 68 N. C. 207 . 
 Morea, 2 Ala. 275 . 
 Morgan, 3 Ired. 186 . 
 " 2 Dev. & Batt. 348 
 " 3 Heisk. 262; 1 Green's Cr. R. 521 
 Morpbin, 37 Mo. 373 
 Morphy, 33 Iowa, 270 . 
 Morrill, 16 Ark. 384 
 Morris, 36 Iowa, 272 . 
 
 3 Mo. 127 . . 
 
 Morris Canal Co. 2 Zabr. 537 . 
 Morris & Essex R. R. Co. 3 Zabr. 3G0 
 Morrisey, 22 Iowa, 158 
 Morrison, 2 Ired. 9 
 
 3 Dev. 299 . . 
 
 3 Dev. &Batt. 115 
 Morse, 50 New Hamp. 9 
 
 1 Iowa, 503 
 Morton, 27 Vt. 310 . 
 Moseley, 14 Ala. 390 
 Moses, 7 Black f. 244 . 
 Mott, 16 Minn. 472 
 Muldroon, 9 La. An. 24 
 Mullen, 14 La. An. 570 
 " 10 Iowa, 451 . 
 " 30 Iowa, 203 
 , Munco, 13 La. An. 625 . 
 , Munger, 15 Vt. 2C0 . 
 
 Trial, 610, 612. 
 
 Nuisance, 471. 
 
 Nuisance, 486. 
 
 Perjury, 503. 
 
 Perjury, 498, 511. 
 
 New trial, 404. 
 
 Riot, 543. 
 
 Assault and battery, 45, 46. 
 
 Trial, 638. 
 
 Burglary, 87, 89, 93. 
 
 False pretenses, 179. 
 
 Homicide, 274, 313. 
 
 Jurisdiction, 366. 
 
 Larceny, 384, 400. 
 
 Lasciviousness, 417. 
 
 Nuisance, 468, 469. 
 
 Officer, 490, 493, 493. 
 
 Spirituous liquors, sale of, 573. 
 
 Verdict, 641. 
 
 Voting, 643. 
 
 "Witness, 651. 
 
 Evidence, 159. 
 
 Spirituous liquors, sale of, 568. 
 
 Burglary, 87, 88. 
 
 Hom. 264 ; Trial, 596 ; Wit. 647. 
 
 Assault and battery, 83, 55. 
 
 Forgery and counterfeiting, 220. 
 
 Threat'ing to accuse of crime, 586. 
 
 Larceny, 397. 
 
 •Homicide, 26 i, 273; New trial, 455. 
 
 Contempt, 110. 
 
 Indictment, 353. 
 
 Trespass, 589. * 
 
 Nuisance, 473. 
 
 Nuisance, 473, 477. 
 
 Burglary, 90. 
 
 Assault and battery, 47. 
 
 Spirituous liquors, sale of, 576. 
 
 Trial, 638. 
 
 Nuisance, 470, 471, 483. 
 
 Peijury, 505. 
 
 Forgery & count. 306,310, 214, 219. 
 
 Gaming, 238. 
 
 Indictment, 347. 
 
 Forgery and counterfeiting, 201. 
 
 Jurisdiction, 368. 
 
 Homicide, 315. 
 
 Larceny, 383. 
 
 Larceny, 393. 
 
 Assault and battery, 51. 
 
 Spirituous liquors, sale of, 571.
 
 TABLE (3F CASES. 
 
 785 
 
 Title of Case and Report. 
 
 Subject and Page, 
 
 State V. Munsou, 40 Conu. 475 ; 2 Green's Cr. R. 493. 
 State V. Murdook, 9 Mo. 730 
 State V. Murphy, 3 Dutch. 112 
 
 " 10 Gill & Johns. 365 
 " " 4 Ala. 765 . 
 
 " " 5 Eng. 74 
 
 " " 33 Ind. 270 . . . 
 
 " " 61 Me. 56; 2 Green's Cr. Reps. 457. 
 
 " 8 Blackf. 498 . 
 " "39 Texas, 46 
 
 " 6 Ala. 845 
 State V. Murray, 3 Shepl. (15 Me.) 100 
 
 " " 63 K C. 31 
 
 State V. Myerfield, Phil. N. C. 108 
 State V. Myers, 19 Iowa, 517 
 " 10 Iowa, 448 
 State V. Napper, 6 Nev. 113 
 State V. Nash, 7 Iowa, 347 . 
 
 " "8 Ired. 85 
 
 "10 Iowa, 81 . 
 State V. Neal, 37 Maine, 468 
 
 " " 42 Mo. 119 
 
 State V. Neeley, 20 Iowa, 108 
 State V. Neely, 74 JST. C 425 . 
 State T. Negro Bill, 3 Harring, 571 
 State V. Nelson, 3 La. An. 497 
 State V. Ness, 1 Carter, 64 
 State V. Nettleton, 1 Root, 308 
 State V. Neville, 6 Jones, 423 
 State V. Newbergin, 25 Maine, 500 
 State V. Newberry, 26 Iowa, 467 
 
 " " 43 Mo. 429 
 
 State V. Newby, 64 N. C. 23 
 State V. Newer, 7 Blackf. 307 
 State V. Newfane, 12 Vt. 422 
 State V. Newland, 7 Iowa, 242 
 State V. Newman, 2 Car. Law Repos. 74 
 
 " " 9 Nev. 48 . 
 
 State V. Newmarket, 20 N. Hamp. 519 . 
 State V. Newport, 4 Harring. 567 
 State V. Newton, 1 Iowa, 160 
 State V. Nichols, 8 Conn. 4915 
 State V. Niles, 47 Vt. 82 
 State V. Nixon, 18 Vt. 70 
 State V. Noble, 15 Maine, 476 
 State V. Noggle, 16 Wis. 333 
 State V. Noland, 29 Ind. 212 
 State V. Norman, 2 Dev. 222 . 
 State V. Norris, 9 N. Ilamp. 96 . 
 State V. Northumberland, 44 N. Ilamp. 628 
 50 
 
 Indictment, 332. 
 
 Indictment, 346. 
 
 Abortion, 4. 
 
 Bail and recognizance, 70. 
 
 Conspiracy, 104, 106, 
 
 Escape, 125. 
 
 Evidence, 130. 
 
 Homicide, 306, 307. 
 
 Larceny, 383, 395. 
 
 Larceny, 388. 
 
 Rec'g stolen prop. 533, 534, 535. 
 
 Conspiracy, 104 ; Escape, 124 ; 
 
 Misdemeanor, 440. 
 Rape, 526. 
 
 Assault and battery, 34. 
 Ass. and bat. 32; Consp. 104. 
 Forgeiy and counterfeiting, 210. 
 Assault and battery, 44. 
 Consp. 104; Homicide, 262, 281. 
 Evidence, 157. 
 Witness, 651. 
 Assault and battery, 53. 
 Perjury, 505. 
 Homicide, 320. 
 Rape, 530. 
 
 Assault and battery, 55. 
 Evi. 144 ; Indict. 353 ; Lar. 397. 
 Gaming, 238. 
 Witness, 648. 
 Homicide, 260. 
 Burglary, 87, 92. ' 
 Assault and battery, 50. 
 Witness, 651. 
 Malicious mischief, 434. 
 Abatement, 2. 
 Indictment, 335. 
 Forgery and counterfeiting, 212. 
 Abatement, 1. 
 Larceny, 385. 
 Nuisance, 470. 
 Accessory, 11. 
 Perjury, 502. 
 Assault and battery, 57. 
 Rape, 519, 523. 
 Nuisance, 481. 
 Indictment, 349. 
 Bill of exceptions, 82. 
 Gaming, 241. 
 Bigamy, 78. 
 
 Perjury, 497, 498, 504, 505. 
 Nuisance, 471, 485.
 
 ■86 
 
 TxVBLE OF CASES. 
 
 I 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Northumberland, 46 K Hamp. 156 
 State V. Norton, 45 Vt. 258 . 
 " 3 Zabr. 33 
 " 2 Ircd. 40 . 
 State v. Norvell, 2 Yerg. 24 
 State v. Noyes, 25 Vt. 415 
 
 " " 36 Conn. 80 
 
 " " 30 N. Hamp. 279 
 
 State V. Nutt, 28 Vt. 598 . 
 State V. Nutting, 39 Maine, 359 
 State V. O'Bonnor, 1 Bail. 144 
 State V. Obregon, 10 La. An. 799 
 State V. O'Brien, 2 Root, 516 
 
 " " 7 R I. 336 . 
 
 " " 3 Vroom (32 N. J.) 169 
 
 State V. O'Connell, 26 Ind. 266 . 
 State V. O'Conner, 49 Me. 594 
 State V. O'Connor, 31 Mo. 389 . 
 State V. Odel, 3 Brev. 552; 2 Const. R. 758 
 State V. Odell, 4 Blackf. 156 
 State V. O'Donald, 1 McCord, 532 . 
 State V. O'Dounell, 10 R. I. 472; 2 Green's Cr. R 
 State V. ODriscoll, 2 Bay, 153 
 State V. Offutt, 4 Blackf. 355 
 State V. O'Hagan, 38 Towa, 504 
 State V. O'Keefe, 41 Vt. 691 
 State V. Oliver, 2 Houston, Del. 585 
 
 '' " 70 N. C. 60 
 
 State V. O'Neal, 7 Ired. 251 . 
 
 " " ■ 4 Ired. 88 
 
 State V. Ormond, 1 Dev. & Batt. 119 
 State V. Orrell, Busbee, N. C. 217 
 
 " " 1 Dev. 139 
 
 State V. Orvis, 13 Ind. 569 
 State V. Orwig, 24 Iowa, 102 . 
 State V. Osborn, 1 Root, 152 
 State V. Outlaw, 72 N. C. 598 . 
 State V. Overton, 4 Zabr. 435 
 
 " " 6 Ired. 165 . 
 
 State V. Owen, 1 Murphey, 453 . 
 
 " Phil. N. C. 425 
 State V. Owens, 10 Rich. 169 
 State V. Oxford, 30 Texas, 428 
 State V. Packard, 4 Oregon, 157 . 
 State V. Paddock, 24 Vt. 312 . 
 
 State V. Paine, T. U. P. Charlt. 142 
 State V. Palmer, 18 Vt. 570 
 State V. Parham, 5 Jones, 416 
 State V. Parish, 8 Rich. 323 
 
 Nuisance, 477. 
 
 Animals, 18; Complaint, 100. 
 
 Consp. 103, 103, 105 ; Indict. 353. 
 
 Unwholesome prov. sale of, 631. 
 
 Former acquit, or convic. 238, 330. 
 
 Conspiracy, 104, 105. 
 
 Rape, 533. 
 
 Statutes, 579. 
 
 Former acquittal or convic. 330. 
 
 Nolle prosequi, 467 ; Trial, 608. 
 
 Indictment, 339. 
 
 Trial, 624. 
 
 Arson, 25. 
 
 Evidence, 131; New trial, 453; 
 
 Verdict, 641. 
 Homicide, 310. 
 Arson, 28. 
 
 Spirituous liquors, sale of, 575.. 
 Homicide, 310. 
 
 Forgery and counterfeiting, 308. 
 Former acquittal or convic. 337. 
 Indictment, 330. 
 Indictment, 344. 
 New trial, 444. 
 Perjury, 503. 
 Perjury, 504. 
 Indictment, 333. 
 Arrest, 31 ; Homicide, 259. 
 Assault and battery, 35. 
 Evidence, 151 ; Trial, 614. 
 Witness, 659. 
 Mayhem, 436. 
 Bill of exceptions, 82. 
 Homicide, 283. 
 False pretenses, 180. 
 Embezzlement, 119. 
 Forgery and counterfeiting, 314. 
 Burglary, 88, 90. 
 Assault and battery, 37. 
 Trial, 596. 
 
 Assault and bat. 41 ; Homi. 267. 
 Homicide, 358. 
 Larceny, 403. 
 Grand jury, 248. 
 Officer, 401. 
 Information, 354; Spirit, liquors, 
 
 sale of, 577. 
 Habeas corpus, 350. 
 Indictment, 344. 
 Adultery, 13. 
 Former acquittal or convic. 230,
 
 TABLE OF CASES. 
 
 787 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Pariah, 8 Humpb. 80 . 
 State V. Parker, 43 New Hamp. 83 
 
 " " 1 Chip. 298 . 
 
 State V. Parmelee, 9 Conn. 259 . 
 State V. Parrant, 16 Minn. 178 .. • 
 
 State V. Parrott, 71 N. C. 311; 2 Green's Cr. R. 755. 
 State V. Patillo, 4 Hawks, 348 .• • 
 
 State V. Patrick, 3 Wis. 812 .. • 
 
 " " 3 Jones, 443 ... 
 
 State V. Patten, 10 La. An. 299 . 
 State V. Patterson, 45 Vt. 308; 1 Green's Cr. R 490. 
 
 " " 2 Irecl. 346 .. • 
 
 " " 1 McCord, 177 
 
 u " 1 Woodbury & Minot, 305 
 
 " " 63 N. C. 520 . 
 
 State V. Patton, 5 Ired. 180 . 
 State V. Patza, 3 La. An. 512 . 
 State V. Payne, 4 Mo. 376 . 
 State V. Payson, 37 Maine, 361 . 
 State V. Peace, 1 Jones, 251 . 
 State V. Pearce, 2 Blackf. 318 . 
 State V. Pearman, Phil, N. C. 371 
 State V. Pearson, 2 New Hamp. 550 
 State V. Peckbam, 9 R. I. 1 . 
 State V. Pemberton, 30 Mo. 376 . 
 State V. Pendergrass, 2 Dev. & Batt. 365 
 State V. Penley, 27 Conn. 587 
 State V. Pennington, 3 Head, Tenn. 299 
 State V. Pepper, 8 Mo. 249 
 '' " 11 Iowa, 347 
 
 u " 68 N. C. 259 ; 3 Green's Cr. R. 733, n 
 
 State V. Perham, 4 Oregon, 188 
 State V. Perkins, 3 Hawks, 377 . 
 State V. Perry, 5 Jones, 9 
 
 " " 42 Texas, 238 
 
 State V. Peter, Ga. Decis. pt. 1, 46 
 
 " " 8 Jones, 10 
 
 State V. Peterson, 2 La. An. 221 
 State V. Pettaway, 3 Hawks, 623 . 
 State V. Pettis, 63 Maine, 124 . 
 State V. Petty, Harper, 59 
 State V. Phelp3, 11 Vt. 116 • . 
 
 " " 24 La. An. 493 
 
 State V. Phil, 1 Stew. 31 . 
 State V. Philbrick, 31 Maine, 401 
 State V. Phillips, 24 Mo. 475 
 State V. Phinncy, 43 Maine, 384 
 State V. Phipps, 10 Ired. 17 
 State V. Pierce, 8 Iowa, 231 . 
 
 Gaming, 241. 
 
 Conspiracy, 104, 105, 106, 107, 108. 
 Forgery and counterfeiting, 203. 
 Assault and battery, 53. 
 New trial, 454. 
 Nuisance, 486. 
 False pretenses, 184. 
 Assault and battery, 50. 
 Eyidence, 147. 
 Insanity, 356. 
 
 Assault and battery, 38; Homi- 
 cide, 293, 314, 321 ; Trial, 626. 
 Bigamy, 78, 80 ; Witness, 657, 658. 
 Continuance, 111. 
 Indictment, 340. 
 Larceny, 411. 
 Bastardy, 73. 
 
 Evidence, 158 ; Indictment, 348. 
 Former acquittal or convic. 227. 
 Nuisance, 479 ; Verdict, 639. 
 Homicide, 295. 
 Adultery, 12. 
 Trespass, 588. 
 
 Forcible entry and detainer, 192. 
 Nuisance, 478. 
 Homicide, 267. 
 Assault and battery, 36. 
 False pretenses, 181, 189. 
 Eavesdropping, 118. 
 Bail and recognizance, 71. 
 Evidence, 158. 
 Profane swearing, 517. 
 Officer, 491. 
 Evidence, 139. 
 Affray, 17. 
 Perjury, 505. 
 New trial, 454. 
 Rape, 523. 
 
 Indictment, 329; Jurisdiction, 368. 
 Bastardy, 72, 75. 
 Larceny, 402, 411. 
 Indictment, 343. 
 Forgery and counterfeiting, 212; 
 
 Indictment, 346. 
 Homicide, 268. 
 Trial, 591. 
 
 False pretenses, 180, 181. 
 Homicide, 262, 288. 
 Ass.&bat.57; Officer,489; Ver.640. 
 
 Trespass, 588. 
 
 For^. and count. 195,196,200,215.
 
 788 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Pierce, 43 New Hamp. 273 
 
 " " 7 Ala. 728 
 
 " 8 Nev. 291 . 
 State V. Pike, 61 New Hamp. 105 
 
 " " 49 New^ Hamp. 399 
 
 " '" 20 New Hamp. 844 
 
 " 33 Maine, 361 
 State V. Pile, 5 Ala. 72 . 
 State V. Pilsbury, 47 Me. 449 
 State V. Pitts, 13 Rich. 27 
 " 57 Mo. 85 
 State V. Pluinmer, 50 Maine, 217 
 State V. Plunket, 3 Stewart, 12 
 State V. PoUand, 53 Maine, 124 . 
 State V. Pollock, 4 Ired. 303 . 
 State V. Poison, 29 Iowa, 133 
 State V. Pool, 2 Dev. 202 
 State V. Populus, 12 La. An. 710 
 State V. Porter, 34 Iowa, 131 ; 1 Green's Cr, 
 
 " " 2 Hill, S. C. 611 
 
 State V. Portland, &c. R. R. Co. 67 Maine 
 State V. Posey, 1 Humph. 384 . 
 State V. Poteet, 8 Ired. 28 
 State V. Potter, 13 Kansas, 414 . 
 " 28 Iowa, 554 
 " 18 Conn. 166 
 State V. Potts, 4 Halst. 26 
 State V. Powell, 28 Texas, 026 . 
 
 " " 70 N. C. 67 ; 2 Green's C 
 
 "3 Halst. 244 
 State V. Powers, 8 Hawks, 376 
 
 " " Ga. Decis. pt. 1, 150 
 
 State V. Pratt, 34 Vt. 333 
 
 " " 9La. An. 157 
 
 " "20 Iowa, 367 . 
 
 State V. Prescott, 83 New Hamp. 312 
 
 " "7 New Hamp. 287 
 
 State V. Presler, 3 Jones, 421 
 State V. Preston, 34 Wis. 675 
 State V. Prey, 14 New Hamp. 464 
 State V. Price, 6 Halst. 303 
 State T. Prince, 63 N. C. 539 
 State V. Prudhomme, 35 La. An. 633 
 State V. Pryor, 30 Ind. 350 
 State V. Pugh, 7 Jones, 61 
 
 " " 15 Mo. 509 
 
 Slate V. Purdom, 3 Mo. 83 . 
 State V. Putnam, Coxe, 360 
 State V. Pybass, 4 Humph. 443 
 State V. Quick, 15 Rich. 343 
 
 Lasciviousness, 417. 
 
 Malicious mischief, 431. 
 
 Sentence, 556. 
 
 Evidence, 138. 
 
 Evidence, 164 ; Homicide, 369; In- 
 sanity, 356, 359 ; Trial, 595. 
 
 New trial, 446, 448. 
 
 Trespass, 588. 
 
 Assault and battery, 51. 
 
 Spirituous liquors, sale of, 571. 
 
 False pretenses, 188. 
 
 Former acquit, or convic. 231. 
 
 Perjury, 501. 
 
 Larceny, 388. 
 
 Larceny, 392. 
 
 Fore. ent. and det. 194 ; Nuis. 476. 
 
 Evidence, 135. 
 
 Indictment, 347. 
 
 New trial, 455. 
 Reps. 241. Evi.l61;Homi.273,301;Insan.358. 
 
 Perjury, 504. 
 403 . Nuisance, 479, 480. 
 
 Gaming, 338; Homicide, 383. 
 
 Lasci\"iousness, 430. 
 
 Affray, 17; Homicide, 398, 819. 
 
 Conspiracy, 105, 106. 
 
 Trial, 603, 603. 
 
 Forgery and counterfeiting, 303. 
 
 Perjury, 505. 
 Reps. 731. Profane swearing, 517. 
 
 Witness, 653. 
 
 New trial, 441. 
 
 New trial, 463. 
 
 Evi. 156; Common drunkard, 99. 
 
 Jurisdiction, 868. 
 
 Larceny, 379, 410. 
 
 Gaming, 343, 344. 
 
 New trial, 441, 454. 
 
 Homicide, 373. 
 
 Indictment, 346. 
 
 Witness, 648. 
 
 Indictment, 335, 339. 
 
 Trial, 611. 
 
 Evidence, 159. 
 
 False pretenses, 180. 
 
 Assault and battery, 35. 
 
 Malicious mischief, 431. 
 
 Gaming, 338. 
 
 Forcible entry and detainer, 194. 
 
 Accessory, 10. 
 
 Homicide, 298. 

 
 TABLE OF CASES. 
 
 r89 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V, Quimby, 51 Maine, 395 . 
 State V. Quin, 3 Brev. 515 ; 2 Const. Rep. C91 
 State V. Rabon, 4 Rich. 260 . 
 
 State V. Raiford, 7 Porter, 101 
 State V. Ramsej', 5 .Jones, 195 . 
 State V. Rand, 33 New Hamp. 216 . 
 State V. Randolph, 24 Conn. 363 . 
 State V. Rankin, 3 Rich. N. S. 438; 1 Gr. Cr. R. 503. 
 " " 8 Iowa, 355 .. . 
 
 State V. Rash, 12 Ired. 382 .. . 
 
 State V. Ravelin, 1 Chip. 295 .... 
 State V. Ravvles, 65 N. C. 334 . 
 State V. Rawls, 2 Nott & McCord, 331 
 State V. Ray, 10 Ired. 39 . 
 
 " Rice, 1 
 
 " " 53 Mo. 345 .... 
 
 State V. Raymond, 20 Iowa, 582 
 State V. Records, 4 Har. 554 
 State V. Rector, 11 Mo. 28 . 
 State V. Reddick, 7 Kansas, 143 . 
 State V. Redmond, 9 La. 319 . 
 State V. Reed, 40 Vt. 603 
 
 " " 62 Maine, 129; 2 Green's Cr. Reps. 438 
 
 " "35 Maine, 489 . 
 
 " " 88 New Hamp. 59 
 
 " " 39Vt.417 . . . . 
 
 " " 26 Conn. 202 . . . 
 
 State V. Reeves, 8 Ired. 19 .... 
 State V. Regan, 63 Maine, 127 . 
 State V. Reid, 20 Iowa, 413 . 
 State V. Reidel, 26 Iowa, 430 . 
 State V. Renton, 15 New Hamp. 169 . 
 State V. Reonnals, 14 La. An. 278 
 State V. Revels, Busbee, 200 . . 
 
 State V. Rhodes, Phil. N. C. 453 . 
 State V. Richards, 33 Iowa, 420 . 
 State V. Richardson, 38 New Hamp. 208 
 State V. Ricker, 29 Maine, 84 . . . 
 
 State V. Rickey, 5 Halst. 83 . . . 
 
 "4 Halst. 293 
 State V. Riggs, 39 Conn. 498; 1 Green's Cr. R. 558. 
 State V. Ripley, 31 Maine, 386 
 
 State V. Rippon, 2 Bay, 99 ... 
 
 State V. Ritchie, 3 La. An. 715 . 
 State V. Roach, 2 Hayw. 552 
 State V. Roane, 2 Dev. 58 . . . 
 
 State V. Roberts, 34 Maine, 320 . 
 
 " •' 1 Hawks, 349 . 
 
 " "26 Maine, 208 . 
 
 Grand jury, 246. 
 
 Assault and battery, 39. 
 
 Homicide, 268 ; New trial, 462,463. 
 
 Indictment, 334, 343. 
 
 Homicide, 307. 
 
 Burglary, 89; Evidence, 139. 
 
 Evidence, 169. 
 
 Nuisance, 469, 470, 476. 
 
 Witness, 651. 
 
 Homicide, 279; Trial, 615. 
 
 Forgery and counterfeiting, 216. 
 
 Assault and battery, 33. 
 
 Evidence, 131. 
 
 Forcible entry and detainer, 191 ; 
 
 Forcible trespass, 195. 
 Former acquittal or conviction, 227. 
 New trial, 458. 
 Perjury, 505, 506, 511, 513. 
 Gaming, 236. 
 Indictment, 353. 
 
 Ev. 161 ; Homi. 304; Insanity, 358. 
 Contempt, 110. 
 Assault and battery, 42. 
 Evidence, 139,153; Trial, 614, 619; 
 
 Witness, 660. 
 Indictment, 334. 
 Nuisance, 470. 
 Rape, 526. 
 Trial, 618. 
 Trial, 593. 
 Larceny, 401. 
 
 Burglary, 86, 90 ; Larceny, 409. 
 False pretenses, 179, 186. 
 Riot, 544. 
 
 Embezzlement, 123; Larceny, 385. 
 Former acquittal or conviction, 226. 
 Assault and battery, 35, 36. 
 Rape, 523. 
 Officer, 490. 
 Accessory, 10. 
 Abatement, 2. 
 
 Conspiracy, 109; Grand jury, 247. 
 Libel, 424. 
 
 Conspiracy, 102, 103, 105, 108. 
 New trial, 442. 
 
 Former acquittal or conviction, 228. 
 Indictment, 352. 
 Homicide, 322. 
 Conspiracy, 105. 
 Homicide, 305. 
 Indictment, 333.
 
 roo 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page, 
 
 State v.Eoberts, 52 NewHamp. 493; 1 Gr. Cr. R. 157. 
 
 " " 11 Humph. 539 . 
 
 " " 15 Mo. 28 . . . 
 
 State V. Robey, 8 Nev. 312 ; 1 Green's Grim. R. G74. 
 State V. Robinson, 6 Vroom (35 N. J.) 71 . 
 
 " " 1 Harr. 507 . 
 
 " '' 29 New Hamp. 274 
 
 " '' 2 Dev. & Butt. 130 . 
 
 " " 49 Maine, 285 . 
 
 " " 17 New Ilamp. 263 . 
 
 State T. Rochelle, 2 Brev. 388 .. . 
 
 State V. Rockafellow, 1 Halst. 332 
 State V. Roderica, 35 Texas, 507 
 State V. Roe, 12 Vt. 93 . 
 
 State V. Robfriscbt, 12 La. An. 382 . 
 
 State V. Rood, 12 Vt. 296 
 
 State V. Roper, 3 Dev. 473 .... 
 
 " 1 Dev. & Batt. 208 ' 
 State V. Roiabacber, 19 Iowa, 154 
 State V. Rose, Phil. N. C. 406 . 
 
 " "- 29 Mo. 32 ... . 
 
 " 7Blackf. 322 
 
 " "■ 21 Iowa, 467 . 
 
 " " 18 La. An. 340 
 
 " " 32 Mo. 560 
 
 " " 4 Jones, 315 
 
 State V, Roulstone, 3 Sneed, 107 
 State V. Rout, 3 Hawks, 618 
 State V. Rowley, 12 Conn. 101 
 State V. Royal, 1 Scam. 557 
 State V. Royster, 65 N. C. 539 
 State V. Ruhl, 8 Iowa, 447 
 State Y. Runnals, 49 New Hamp. 498 
 State V. Russell, 2 La. An. 604 
 
 " " 45 New Hamp. 88 . 
 
 State V. Rust, 8 Blackf. 195 
 
 " " 35 New Hamp. 438 . 
 
 State V. Rutherford, 1 Hawks, 457 
 State V. Rutledge, 8 Humph. 32 
 State V. Rye, 9 Yerg. 386 
 State V. Sales, 2 Nev. 268 
 State V. Saliba, 18 La. An. 35 
 State V. Sam, 2 Dev. 567 
 State V. Samuel, 3 Jones, 74 
 State V. Sanders, 30 Iowa, 582 
 State T. Sandv, 3 Ired. 570 
 
 Officer, 488, 490, 492. 
 
 Perjury, 499. 
 
 Vagrant, 634; Witness, 649. 
 
 Assault and battery, 49. 
 
 Burglary, 90. 
 
 Forg. & counterfeiting, 199, 221. 
 
 Indictment, 332, 333, 344. 
 
 Malicious mischief, 429. 
 
 Search warrant, 550 ; Sijirituous 
 
 liquors, sale of, 577. 
 Spirituous liquors, sale of, 577. 
 Accessory, 10 ; Homi. 262, 266. 
 Abatement, 1. 
 Gaming, 242. 
 Arson, 28; Evidence, 166; Nolle 
 
 prosequi, 465 ; Trial, 614. 
 Arson, 31. 
 Adultery, 14. 
 Larceny, 379. 
 Lasciviousness, 418. 
 Evidence, 136. 
 Assault and battery, 46. 
 Former acquittal or conviction, 
 
 229; Homicide, 288. 
 Gaming, 242. 
 Jurisdiction, 366. 
 Jurisdiction, 368. 
 Lasciviousness, 516. 
 Trespass, 589. 
 Lasciviousness, 417. 
 Larceny, 389. 
 Conspiracy, 103, 104. 
 Writ of error, 662. 
 Larceny, 400. 
 Seduction, 551. 
 Complaint, 100. 
 Indictment, 347. 
 Riot, 542, 543. 
 Indictment, 334. 
 Indictment, 338; Misdemeanor, 
 
 438 ; Spirit, liquors, sale of, 570. 
 Bail & recog. 62 ; Homicide, 322. 
 Judgment, 362. 
 Bail and recognizance, 64. 
 Embracery, 123. 
 Verdict, 638. 
 Indictment 333. 
 Homicide, 260. 
 Adultery, 12, 14. 
 Arson, 23, 28, 29 ; Indictment, 347.
 
 TABLE OF CASES. 
 
 791 
 
 Title of Case and Report. 
 
 Subject and Page, 
 
 State V. Sant'ord, 1 Nott & McCord, 512 
 
 State V. Sausom, 3 Brev. 5 
 
 State V. Surtor, 2 Strobh. 60 
 
 State V. Sauuclers, 3 Halst. 177 . 
 
 State V. Savage, 32 Maine, 583 
 
 State V. Scaggs, 33 Mo. 92 
 
 State V. Scaiinell, 39 Maine, 68 
 
 State V. Scates, 5 Jones, 420 
 
 State V. Schaunhmst, 34 Iowa, 547 . 
 
 State V. Scbill, 27 Iowa, 363 
 
 State V. Sebingeu, 20 Wis. 74 
 
 .State y 
 State V, 
 State V, 
 State V. 
 
 State V, 
 State V. 
 State V. 
 State V. 
 State V. 
 State V, 
 State V. 
 State V, 
 State V 
 State V. 
 State V, 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 , Schlagel, 19 Iowa, 169 
 Scblottman, 52 Mo. 164; 1 Green 
 Scboenwald, 31 Mo. 147 
 Scott, 24 Vt. 127 
 
 " 39 Mo. 424 . 
 
 " 45 Mo. 302 
 
 " 12 La. An. 274 
 
 " 4 Ired. 409 
 
 " 64 N. C. 586 . 
 
 " 1 Hawks, 24 
 
 " 72 N. C. 461 . 
 
 " 11 La. An. 429; 12 lb. 380 
 Scovel, 1 Mills, 274 . 
 Scripture, 42 New Hamp. 48 
 Seals, 16 Ind. 352 
 Seamons, 1 Iowa, 418 
 Seay, 3 Stew. 123 
 Segar, T. U. P. Charlt. 24 
 Self, 1 Bay, 242 
 Sexton, 3 Hawks, 184 
 Seymour, 36 Maine, 225 
 Sbadley, 16 Ind. 230 
 Shaw, 3 Ired. 20 
 
 " 1 Koot, 134 
 
 " 31 Maine, 523 
 
 " 4 Jones, 440 
 
 " 3 Ired. 532 
 Shawley, 5 Hayw. 256 . 
 Shean, 32 Iowa, 88 . 
 Shelledy, 8 Iowa, 477 
 Sbelton, 2 Jones, 360 
 Shepard, 10 Iowa, 126 . 
 " 7 Conn. 54 
 
 State V. Shepherd, 8 Ired. 195 . 
 State V. Slierbourne, Dudley, Ga. 28 
 State V, Sherlock, 26 Texas, 106 
 State V. Shermer, 55 Mo. 83 ; 2 Green's Cr. 
 State V. Shcttleworth, 1 8 Minn. 208 
 
 Receiving stolen property, 533. 
 
 Larceny, 400. 
 . New trial, 463. 
 
 Bail and recognizance, 69. 
 
 Larceny, 392. 
 
 Gaming, 242. 
 
 Assault and battery, 57. 
 
 Evidence, 147; Homicide, 257. 
 . Incest, 324, 325. 
 
 Perjury, 503. 
 
 Intoxication as an excuse for 
 crime, 361 ; Larceny, 375. 
 
 Witness, 649. 
 'sCr. R. 553. Nuisance, 467. 
 
 Trial, 605. 
 
 Assault and battery, 47. 
 
 Evidence, 149. 
 
 Forgery and counterfeiting, 222. 
 
 Homicide, 264. 
 
 Homicide, 318. 
 
 Larceny, 378. 
 
 New trial, 445, 446. 
 
 Rape, 520. 
 
 Verdict, 638. 
 
 Receiving stolen property, 533, 
 
 Burglary, 86, 90 ; Indictment, 336. 
 
 Bigamy, 80. 
 
 As3. & battery, 50 ; Indict. 334. 
 
 Larceny, 385. 
 
 Habeas corpus, 251. 
 
 Larceny, 381. 
 
 Indictment, 333. 
 
 Burglary, 90. 
 
 Malicious trespass, 435. 
 
 Arrest, 20; Indictment, 337. 
 
 Arrest, 21, 
 
 Arson, 24. 
 
 Larceny, 409. 
 
 Trial, 596, 597. 
 
 Forgery and counterfeiting, 210. 
 
 Seduction, 553. 
 
 Conspiracy, 104, 201, 310. 
 
 Homicide, 292. 
 
 Assault and battery, 33, 50, 57. 
 
 Former acquittal or conviction, 
 229; Rape, 521,531, 
 
 Homicide, 265, 
 
 New trial, 455. 
 
 Larceny, 387. 
 Reps. 613. Larceny, 380, 382, 412. 
 
 Evidence, 129; Rape, 523,524.
 
 792 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 
 Shields, 8 Blackf. 151 
 
 
 
 '^ 11 La. Au. 395 
 " 13 Mo. 236 . 
 
 
 state V, 
 
 Shinborn, 46 New Hamp, 497 . 
 
 
 State V. 
 
 Shippey, 10 Minn. 233 
 
 
 State V. 
 
 Shoemaker, 7 Mo. 177 . 
 
 
 State V. 
 
 Shooter, 8 Kich. 73 
 
 
 State V. 
 
 Shorts, 3 Vroom (32 N. J.) 398 
 
 
 State V. 
 
 Shoultz, 25 Mo. 128 
 
 
 State V. 
 
 Shuford, 69 N. C. 486 ; 1 Green's Cr 
 
 R. 347. 
 
 State V. 
 
 Shule, 10 Ired. 153 . 
 
 
 State V. 
 
 Shurtliflf, 18 Maine, 368 
 
 
 State V. 
 
 Shupe, 16 Iowa, 36 
 
 
 State V. 
 
 Sias, 17 New Hamp. 558 
 
 
 State V. 
 
 Sickles, Brayt. 132 . 
 
 
 State V. 
 
 Silver, 3 Dev. 332 
 
 
 State V. 
 
 Simmons, 1 Brev. 6 
 
 19 Ohio, 139 . 
 4 Strobh. 366 
 3 Ala. 497 
 
 
 State V. 
 
 Simon, 50 Mo. 370 . 
 
 
 State V. 
 
 Simons, 17 New Hamp. 83 
 Dudley, Ga. 37 
 30 Vt. 630 
 
 
 State V. 
 
 Simpson, 3 Hawks, 460 
 
 3 Hawks, 630 . 
 1 Bail. 378 
 
 
 State V 
 
 Sims, 3 Bail. 39 . 
 " 3 Strobh. 137 
 " Dudley, Ga. 213 . 
 
 
 State V 
 
 Sisson, 3 Brev. 58 . 
 
 
 State V 
 
 Skolfield, 63 Maine, 366 
 
 
 State V 
 
 Slack, 6 Ala. 676 
 
 
 State V 
 
 Sleeper, 37 Vt. 133 
 
 
 State V 
 
 Sloan, 47 Mo. 604 
 
 . 
 
 State V 
 
 Slocum, 8 Blackf. 315 . 
 
 
 State V 
 
 Smart, 4 Rich. 356 . 
 
 
 State V 
 
 Smith, 33 Maine, 369 . 
 54 Maine, 33 , 
 
 31 Texas, 748 
 
 1 New Hamp. 346 
 38 Iowa, 565 
 
 3 Humph. 457 . 
 
 2 Bay, 63 
 
 3 Greenl. 63 
 
 5 La. An. 340 
 13 Kansas, 374 . 
 8 Jones, 133 
 11 Ired. 33 
 
 • 
 
 Indictment, 339. 
 
 Trial, 616. 
 
 Witness, 658. 
 
 Evidence, 131, 133, 163. 
 
 Homicide, 317. 
 
 Foigery and counterfeiting, 211. 
 
 Conspiracy, 103. 
 
 Lottery, 436. 
 
 Homicide, 383. 
 
 Evidence, 157, 
 
 New trial, 463. 
 
 Forg. and counterf. 197, 198, 333. 
 
 Pel jury, 498. 
 
 Former acquittal or convict. 336. 
 
 Information, 354. 
 
 Witness, 653. 
 
 Accessory, 10. 
 
 Bail and recognizance, 61, 63. 
 
 Conspiracy, 108. 
 
 Mayhem, 436. 
 
 Homicide, 397. 
 
 Evi. 153 ; Spir. liq. sale of, 573. 
 
 New trial, 459. 
 
 Perj. and suborn, of perj. 496, 514. 
 
 Arson, 28. 
 
 False pretenses, 173. 
 
 Pardon, 493. 
 
 Accessory, 10. 
 
 Assault and battery, 33, 42. 
 
 New trial, 463. 
 
 Homicide, 363. 
 
 Fishery, 190. 
 
 Former acquittal or convict. 223. 
 
 Perjury, 501, 505, 508. 
 
 Homicide, 316. 
 
 Indictment, 332, 339. 
 
 Larceny, 391, 403. 
 
 Abort.5,7; Ev.l60; Hom. 261,271. 
 
 Amend. 18 ; New trial, 442 ; Spirit. 
 
 liquors, sale of, 577. 
 Animals, 18. 
 Arrest, 21. 
 Arson, 39. 
 
 Assault and battery, 33, 41. 
 Assault and battery, 46. 
 Bail and recognizance, 64. 
 Burglary, 93. 
 
 Embezzlement, 131 ; Trial, 632. 
 Evidence, 120. 
 Evidence, 135.
 
 I 
 
 TABLE OF CASES. 
 
 r93 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Smith, 8 Blackf. 489 
 
 2 Ired. 127 
 " •' 8 Yerg. 150 . 
 
 5 Day, 175 
 " Meigs, 99 
 
 3 Dev. & Batt. 117 
 2 Strobli. 77 . 
 12 Pick. 430 
 
 <• " 10 Nev. 106 . 
 
 Peck, 165 
 20 New Hamp. 390 
 8 Rich. 460 
 
 " " 31 Maine, 386 ; 2 Green's 
 
 " " 1 Murjjhy, 213 . 
 
 " 53 Mo. 267 ; 2 Green's Cr, 
 
 " "2 Ired. 402 
 
 " " Cheves, 157 . 
 
 " " 3 Hawks, 378 . 
 
 " " 49 New Hamp. 155 . 
 
 " " 1 Bail. 123 
 
 " " Phil. N. C. 302 
 
 *' " 43 Vt. 324 
 
 " " 37 Mo. 58 
 
 " " 5 Harring. 490 . 
 
 " " 61 Maine, 386 
 
 " " 23 Vt. 74 . 
 
 " " 10 R. I. 258 . 
 
 « " 18 New Hamp. 91 
 
 State V. Snell, 9 R. I. 112; 1 Green's Cr, 
 State V. Snow, 18 Maine, 346 
 State V. Snyder, 50 New Hamp. 150 . 
 State V. Somerville, 21 Maine, 14 
 
 " " 21 Maine, 20 
 
 State V. Soper, 16 Maine, 293 
 State V. Soragan, 40 Vt. 450 . 
 State V. South, 4 Dutch. 28 
 State V. Sowls, Phil. N. C. 151 
 State V. Spainhour, 2 Dev. & Batt. 547 
 State V. Spalding, 19 Conn. 233 
 State V. Sparks, 27 Texas, 627 . 
 
 " "27 Texas, 705 
 
 State V. Sparrow, 3 Murphy, 487 . 
 State V. Spear, 6 Mo. 644 
 State V. Speight, 69 N. C. 72 ; 1 Green's C 
 State V. Speirin, 1 Brev. 119 
 State V. Spencer, 10 Humph. 431 
 
 " "1 Zabr. 197 
 
 State V. Spenlove, Riley, 269 
 State V. Squires, 48 New TIamj). 364 
 
 " "11 New Hamp. 38 
 
 . False pret. 184, 185; Felony, 189; 
 Indictment, 352. 
 
 Forcible entry and detainer, 194. 
 
 Forgery and counterfeiting, 200. 
 
 Forg. and counterf. 315; Sent. 557. 
 . Gaming, 235, 238, 241. 
 
 Homicide, 259. 
 . Homicide, 263, 277. 
 
 Homicide, 298, 299. 
 
 Homicide, 320. 
 
 Indictment, 330. 
 
 Indictment, 335. 
 
 Indictment, 336. 
 Cr. R. 462. Indictment, 338 ; Peddlers, 496. 
 
 Indictment, 351, 352. 
 Reps. 507. Insanity, 356, 359. 
 
 Larceny, 406, 407. 
 
 Malicious michief, 430. 
 
 Misdemeanor, 437. 
 
 Nolle prosequi, 465. 
 
 Pardon, 494. 
 . Rape, 523. 
 
 Rape, 531. 
 
 Receiving stolen prop. 535, 536. 
 
 Religious meeting, disturb, of, 540. 
 
 Spirituous liquors, sale of, 572. 
 
 Spirituous liquors, sale of, 574. 
 
 Unwholesome provis. sale of, 632. 
 
 Voting, 643. 
 Reps. 533. Embezzlement, 122. 
 
 Riot, 542; Verdict, 637. 
 
 Larceny, 397. 
 
 Larceny, 385. 402. 
 
 New trial, 464. 
 
 Evid. 138 ; Trial, 591 ; Wit. 655. 
 
 Complaint, 100. 
 
 Larceny, 381. 
 
 Trespass, 588. 
 
 Nuisance, 471. 
 
 Forgery and counterfeiting, 222. 
 
 Duress, 118. 
 
 Evidence, 155. 
 
 New trial, 455. 
 
 Former acquittal or convict. 223. 
 r. Reps. 363. Evidence, 170; Larceny, 415. 
 
 Forcible entry and detainer, 194. 
 
 Former acquittal or convict. 227. 
 . Insanity, 359 ; Trial, 599. 
 
 New trial, 462. 
 
 Evidence, 149. 
 
 Larceny, 397.
 
 r94 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Stalcup, 1 Ired. 30 . 
 State V. Staley, 14 Minn. 105 
 State V. Stalker, 3 Ind. 570 . 
 State V. Stallings, 3 Ind. 531 
 State V. Stalmaker, 2 Brev. 1 
 
 2 Brev. 44 . 
 State V. Standifer, 5 Porter, 523 
 State V. Stanley, 64 Maine, 157 . 
 
 33 Iowa, 526 
 State V. Staples, 45 Maine, 320 . 
 " " 47 New Hcimp. 113 
 
 State V. 
 
 Starr, 38 Mo. 270 
 
 State V. 
 
 St. Clair, 17 Iowa, 149 
 
 State V. 
 
 Stebbins, 29 Conn. 463 . 
 
 State V. 
 
 Stedman, 7 Porter, 495 
 
 State V. 
 
 Steele, 3 Heisk. 135 
 
 State V. 
 
 Stephens, 32 Texas, 155 
 
 State V. 
 
 Stephenson, 2 Bail. 334 
 
 u 
 
 4 McCord, 165 . 
 
 State V. 
 
 Sterling, 34 Iowa, 443 ; 1 Green's Cr. 
 
 568 
 
 . 
 
 State V. 
 
 Stevens, 30 Iowa, 391 
 
 II 
 
 36 New Hauip. 59 . 
 
 11 
 
 " 62 Maine, 284 ; 2 Green's Cr 
 
 
 481 . 
 
 II 
 
 " 40 Maine, 559 . 
 
 u 
 
 47 Maine, 357 
 
 11 
 
 58 Maine, 548 . 
 
 State V. 
 
 Stewart, 29 Mo. 419 . 
 
 11 
 
 9 Ired. 342 
 
 II 
 
 9 Nev. 120 . 
 
 " 
 
 6 Conn. 47 
 
 State V. 
 
 Stiefle, 13 Iowa, 603 
 
 State T. 
 
 Stillman, 7 Cold. Tenn. 341 
 
 State V. 
 
 Stinipson, 45 Maine, 608 
 
 Reps. 
 
 Reps. 
 
 State V. Stimson, 4 Zabr. 478 
 State V. Stinson, 17 Maine. 154 
 State V. Stokely, 16 Minn. 282 . 
 State V. Stokes, Coxe, 392 . 
 State V. Storkey, 63 N. C. 7 
 State V. Stotts, 5 Blackf. 460 
 State V. Stouderman, 6 La. An. 286 
 State V. Stout, 6 Halst. 124 . 
 State V. Stoyell, 54 Maine, 24 . 
 State V. Strat, 1 Miirphey, 124 
 State V. Stratton, 27 Iowa, 420 . 
 State V. Straw, 33 Maine, 554 
 
 42 New Hamp. 393 
 State V. Street, 1 Tayl. 158 . 
 " " 1 Murphey, 156 . 
 
 Riot, 543. 
 
 Evidence, 142. 
 
 Indictment, 353. 
 
 Indictment, 338. 
 
 Forgery and counterfeiting, 215. 
 
 Former acquittal or convict'n, 228. 
 
 Former acquittal or conv. 223, 225. 
 
 False jjretenses, 177. 
 
 Homicide, 230. 
 
 Spirituous liquors, sale of, 569. 
 
 Witness, 656. 
 
 Homicide, 256, 309. 
 
 Receiving stolen property, 533. 
 
 Evid. 159; Indict. 336; Trial,625. 
 
 Assault and battery, 57. 
 
 Profane swearing, 517. 
 
 Larceny, 387. 
 
 Larceny, 384. 
 
 Perjury, 499. 
 
 Conspiracy, 107, 109. 
 Conspiracy, 102, 105, 106. 
 Indictment, 336. 
 
 Larceny, 390, 397. 
 
 Lasciviousness, 418. 
 
 Spirituous liquors, sale of, 578. 
 
 Verdict, 637. 
 
 Assault and battery, 52. 
 
 Homicide, 269. 
 
 Homicide, 319. 
 
 New trial, 464. 
 
 Sentence, 556. 
 
 Peijury, 503. 
 
 Larceny, 397 ; Receiving stolen 
 
 property, 536. 
 Officer, 489. 
 
 Spirituous liquors, sale of, 571. 
 Jury, 369. 
 
 Forcible entry and detainer, 194. 
 Rape, 520,521. 
 Extortion, 172. 
 Officer, 488. 
 
 Bail and recognizance, 67. 
 Abduction, 2. 
 Perjury, 498. 
 
 Forgery and counterfeiting, 196. 
 Bill of excep. 81 ; Riot, 543. 
 Conspiracy, 102, 105 ; Indict. 346. 
 Indictment, 334. 
 Peijurj^, 501.
 
 TABLE OF CASES. 
 
 795 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State T. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V, 
 
 State V. 
 li 
 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 u 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 u 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 Strickland, 2 Nott & McCord, 181 . 
 
 Stroll, 1 Rich. 244 
 
 Stroope, 20 Ark. 202 
 
 Stuart, 23 Maine, 111 . 
 
 Stucky, 2 Blackf. 389 . . 
 
 Sturdivant, 21 IVFaine, 9 
 
 Stiitz, 20 Iowa, 488 . 
 
 Suhur, 33 Maine, 539 
 
 Sullivant, 3 Yerg. 281 
 
 Summers, 9 Nev. 269 
 
 Sumner, 5 Strobh. 53 
 
 " 2 Carter, 377 . 
 Sutherland, 30 Iowa, 570 
 Sutton, 10 R.I. 159; 2 Green's Cr. Reps 
 
 " 1 Murphey, 281 
 
 " 3 Gill, 194 .. . 
 
 Swails, 8 Ired. 524 . 
 Sweetsir, 53 Maine, 438 , 
 Swift, 14 La, An. 827 
 Swiuk, 2 Dev. & Batt. 9 
 Sykes, 28 Conn. 225 
 Symonds, 36 Maine, 128 
 
 " 57 Maine, 148 . 
 
 Ta-Cha-Na-Tah, 64 N. C. 014 . 
 Tackett, 1 Hawks, 210 
 Taggart, 38 Maine, 298 . 
 Tally, 23 La. An. 677 
 Tappan, 1 Foster, 56 
 
 " 15 New Harap. 91 
 Tarr, 28 Iowa, 397 
 Taunt, 16 Minn. 109 
 Taylor, 45 Maine, 322 . 
 
 3 Brev. 243 ; 1 Const. R. 106 
 
 " 1 Root, 226 
 
 " 2 Dutch. 117 , * . 
 
 1 Hawks, 462 . 
 
 " 29 Ind. 517 
 
 " 3 Sneed, 662 
 3 Oregon, 10 
 Temple, 38 Vt. 37 
 
 " 12 Maine, 214 
 Teidman, 4 Strobh. 300 
 Terrell, 12 Rich. 321 
 Terry, 4 Dev. & Batt. 152 
 Thacher, 35 N. J. 445 ; 1 Green's Cr. R. 
 Thayer, 4 Strobh. 286 . 
 Thibcau, 30 Vt. 100 
 Thomas, 5 Ired. 366 
 Thomason, 17 K C. 14S 
 Thompson, 20 New Hamp. 250 
 4 Ired. 484 
 
 Dueling. 117. 
 
 False pretenses, 1"3. 
 
 Evidence. 157. 
 
 Indictment, 351. 
 
 Spirituous liquors, sale of, 571. 
 
 Nuisance, 477. 
 
 Spirituous liquors, sale of, 577. 
 
 Bail and recognizance, 67. 
 
 Bail and recognizance, 65. 
 
 Sentence, 558. 
 . Affray, 17. 
 
 Malicious mischief, 430. 
 
 Seduction, 553. 
 ,370. Homicide, 311. 
 , Indictment, 329. 
 
 Verdict, 640. 
 . Assault and battery, 48. 
 
 Bigamy. 78. 
 
 Homicide, 315. 
 
 Homicide, 281. 
 . Lottery, 427. 
 
 Abatement, 1 ; Indictment, 326. 
 . Voting, 643, 644. 
 
 Homicide, 314 ; Witness, 651. 
 
 Homicide, 255, 309. 
 
 Indictment, 327, 351. 
 . Verdict, 638. 
 
 Perjury, 511. 
 
 Usury, 633. 
 
 Rape, 522. 
 
 Larceny, 390. 
 
 Arson, 26, 29. 
 
 Dueling, 116, 117. 
 
 Information, 354. 
 
 Larceny, 388. 
 
 New trial, 442. 
 
 Nuisance, 469. 
 
 Concealed weapons, 101. 
 
 Witness, 655. 
 
 Incest, 324. 
 
 Indictriient, 345. 
 
 Receiving stolen property, 533. 
 . Evidence, 160 ; Homicide, 287,296. 
 
 Rape, 521. 
 62. False pretenses, 175, 176. 
 
 Indictment, 332. 
 
 Conspiracy, 109; Indictment, 330. 
 
 Bastardy, 73. 
 
 Larceny, 390. 
 
 Assault «fe batt. 37 ; Complaint. 100. 
 . Bastardy, 73.
 
 796 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State v. Thompson, R. M. Charlt. 80 . 
 " " 19 Iowa, 299 . 
 
 " 31 Iowa, 393 
 
 " " 1 Jones, 274 , 
 
 '' " 9 Iowa, 188 
 
 " " Cheves, 31 . 
 
 " " 2 Strobh. 12 
 
 " " 3 Hawks, 613 
 
 State V. Thornburgli, 6 Ired. 79 
 State V. Thornton, 13 Ired. 256 . 
 
 " " Busbee,252 
 
 State V. Thurstin, 35 Maine, 205 . 
 State V. Thurston, 2 McMullan, 382 . 
 State V. Tidwell, 5 Strobh. 1 
 State T. Tiernans, 4 Gratt. 545 
 State V. Tilghman, 11 Ired. 513 . 
 State y. Tilletson, 7 Jones, 114 
 State V. Tilly, 3 Ired. 424 
 State V. Timmens, 4 Minn. 325 
 State V. Tindall, 10 Rich. 212 . 
 State V. Toadvine, 1 Brev. 16 
 State V. Toliver, 5 Ired. 452 
 State V. Tom, 2 Dev. 509 
 State V. Tomlin, 5 Dutch. 13 
 State V. Tomlinson, 11 Iowa, 401 
 State V. Toole, 29 Conn. 342 
 State V. Tooley, 1 Head, 9 
 State V. Towle, 42 New Ham p. 540 
 State V. Town, Wright, 75 . 
 State V. Town of Leicester, 33 Vt. 653 
 State V. Townsend, 5 Harring. 487 . 
 
 " " 2 Harring. 543 
 
 State V. Tozier, 49 Maine, 404 
 State V. Trammell, 2 Ired. 379 . 
 State V. Trapp, 14 Rich. 203 
 State Treasurer v. Rice, 11 Vt. 339 
 State V. Trott, 2 Harr. 561 . 
 vState V. Tryon, 39 Conn. 183 
 State V. Tucker, 20 Iowa, 508 
 State V. Taller, 34 Conn. 280 
 State V. Turner, Wright, 20 . 
 " " 65 N. C. 592 
 
 " " 6 La. An. 309 
 
 19 Iowa, 144 
 State V. Tweed, 3 Dutch. Ill 
 State V. Tweedy, 11 Iowa, 350 . 
 State V. Twiity, 2 Hawks, 449 
 
 2 Hawks, 248 . 
 " "4 Hawks, 193 
 
 State V. Underwood, 6 Ired. 96 . 
 
 Burglary, 87. 
 
 Forgery and counterfeiting, 196. 
 
 Homicide, 269. 
 
 Homicide, 292. 
 
 Homicide, 317, 320. 
 
 Indictment, 350. 
 
 Misd. 438; Nuis. 474; Sent. 557. 
 
 Nolle prosequi, 466. 
 
 Forgery and counterfeiting, 202. 
 
 Nolle prosequi, 467. 
 
 Nuisance, 475. 
 
 Adultery, 13. 
 
 Larceny, 386, 397. 
 
 Abduction, 3. 
 
 Gaming, 244. 
 
 Hom. 294, 295; New tr. 451, 454. 
 
 Trial, 629. 
 
 Homicide, 274, 286, 298. 
 
 Seduction, 551, 552. 
 
 Trial, 626. 
 
 Forgery and counterfeiting, 211. 
 
 Forcible trespass, 195. 
 
 Conspiracy, 107. 
 
 False pretenses, 177. 
 
 Rape, 530. 
 
 Arson, 28. 
 
 Bail and recognizance, 60. 
 
 Contempt, 111. 
 
 Homicide, 300. 
 
 Nuisance, 473. 
 
 Arrest, 22. 
 
 Former acquittal or convict. 229. 
 
 Evidence, 151. 
 
 Conspiracy, 108. 
 
 Malicious trespass, 434, 435. 
 
 Bail and recognizance, 59. 
 
 Larceny, 399. 
 
 Statutes, 581. 
 
 Indictment, 353, 
 
 Embezzlem't, 122; Jurisdic'n, 367. 
 
 Homicide, 263, 274, 277, 301, 306. 
 
 Larceny, 406. 
 
 New trial, 443. 
 
 Receiving stolen property, 533. 
 
 Voting, 643. 
 
 Homicide, 297; Verdict, 640. 
 
 Forgery and counterfeiting, 196. 
 
 Forgery and counterfeiting, 221. 
 
 Pardon, 493. 
 
 New trial, 443, 458.
 
 TABLE OF CASES. 
 
 797 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 u 
 
 state V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 (t 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 30 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State Y. 
 
 State V. 
 
 u 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V, 
 
 Uuderwood, 57 Mo. 40 
 
 " 49 Maine, 181 
 
 Upchurch, 9 Ired. 454 
 Updike, 4 Harring. 581 . 
 Upham, 38 Maine, 261 
 Upton, 1 Dev. 268 
 
 " 20 Mo. 397 . 
 Vaigneur, 5 Eich. 391 
 Valentine, 7 Ired. 225 
 Vance, 17 Iowa, 138 
 Van Houten, 37 Mo. 357 . 
 
 " Penning. 672 (2d ed. 495) 
 
 Vanloan, 8 Ind. 182 ... 
 
 Van Matre, 49 Mo. 268 . 
 Vannoy, 65 N. C. 532 
 Vaughan, 1 Bay, 282 . 
 
 " 29 Iowa, 286 . 
 
 Vawter, 7 Blackf. 592 . 
 Verrill, 54 Maine, 408 .. . 
 
 Vickery, 19 Texas, 326 . 
 Vill, 2 Brev. 262 . 
 Vincent, 24 Iowa, 570 
 Vitturn, 9 New Hamp. 519 . 
 Vowels, 4 Oregon, 324 
 Vridely, 4 Humph. 429 . 
 
 Vt. Cent. R. R. Co. 27 Vt. 103; 28 lb. 583; 
 
 lb. 108 
 
 Wade, 34 New Hamp. 495 . . • . 
 
 Wagner, 61 Maine, 178 . 
 
 Walcott, 21 Conn, 272 
 Walker, 34 Vt. 296 . 
 
 32 Maine, 195 
 10 Ired. 234 . 
 " 14 Mo. 398 . 
 
 22 La. An. 425 . 
 " 16 Maine, 241 .. . 
 
 3 Harring. 597 . 
 " 26 Ind. 346 ... 
 
 Wall, 15 Mo. 208 ... 
 
 " 9 Yerg. 347 . 
 " 34 Me. 165 
 Wallace, 9 N. Hamp. 515 . 
 
 " 3 Ired. 195 . 
 Walters, 15 La. An. 648 . 
 Waltliam, 48 Mo. 55 . 
 Walton, 62 Maine, 106; 2 Green's Cr. R. 465. 
 Wamire, 16 Ind. 357 
 , Ward, 63 Maine, 225 
 " 39 Vt. 225 . 
 
 Homicide, 258, 320. 
 
 Larceny, 385. 
 
 Sentence, 559. 
 
 New trial, 442. 
 
 Evidence, 151. 
 
 New trial, 441. 
 
 New trial, 455. 
 
 Evidence, 141, 144, 148. 
 
 Witness, 652. 
 
 Homicide, 259, 310. 
 
 Abortion, 4. 
 
 Forgery and counterfeiting, 221. 
 
 Affray, 17. 
 
 Trial, 604. 
 
 Assault and battery, 32. 
 
 False pretenses, 179. 
 
 Trial, 629. 
 
 Abortion, 4. 
 
 Homicide, 266. 
 
 False pretenses, 175. 
 
 Indictment, 343. 
 
 Evidence, 170; Horn. 271, 289,302. 
 
 Adultery, 15. 
 
 Mayhem, 436. 
 
 Affray, 17. 
 
 Nuisance, 472, 477, 481. 
 Indictment, 344. 
 
 Homicide, 265, 278, 281; Juris- 
 diction, 365. 
 Evidence, 158, 159. 
 Evidence, 145. 
 Conspiracy, 108. 
 Forcible trespass, 195. 
 Indictment, 335. 
 Larceny, 392. 
 
 Spirituous liquors, sale of, 566. 
 Spirituous liquors, sale of, 571. 
 Trial, 628. 
 Indictment, 353. 
 Perjury, 496, 500, 503. 
 Spirituous liquors, sale of, 573. 
 Adultery, 12, 15. 
 Verdict, 641. 
 Verdict, 641. 
 Trial, 612. 
 
 Embezzlement, 122; Officer, 489. 
 Trial, 628. 
 Abatement, 2. 
 Evidence, 134.
 
 r98 
 
 TABLE OF CASES. 
 
 Title of Case and Report, 
 
 Subject and Page. 
 
 State V. 
 
 Ware, 10 Ala. 814 
 
 
 State V 
 
 Warner, 14 Ind. 572 
 
 25 Iowa, 200 . 
 
 
 state V 
 
 Warren, 33 Maine, 30 
 
 
 State V 
 
 Washington, 15 Rich. 39 
 
 
 State V. 
 
 Waterhouse, 1 Mart. & Yerg. 
 
 278 . 
 
 State V. 
 
 Waterman, 1 Nov. 132 . 
 INev. 543 
 
 
 State V. 
 
 Waters, 39 Maine, 54 
 3Brev. 507 
 
 , 
 
 State V. 
 
 Watkins, 27 Iowa, 415 . 
 9 Conn. 47 
 
 
 State V. 
 
 Watson, 63 Maine, 128 . 
 " 2 Const. R. 669 
 
 
 u 
 
 41 N. Hamp. 533 
 
 
 (( 
 
 3 R. I. 114 . 
 
 
 state V. 
 
 Watts, 10 Ired. 369 
 
 
 State V. 
 
 Weare, 38 N. Hamp. 314 . 
 
 
 State V. 
 
 Weatherby, 43 Maine, 258 
 
 
 State V. 
 
 Weaver, 18 Ala. 293 . 
 
 
 (( 
 
 13 Ired. 491 
 
 
 State V, 
 
 State V. 
 State V. 
 
 u 
 
 State V, 
 State V 
 State V, 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 Webb, 26 Iowa, 262 
 
 " 25 Iowa, 235 . 
 Weber, 22 Mo. 322 
 Webster, 39 N. Hamp. 96 . 
 
 17N. Hamp. 543 
 Wedemeyer, 11 La. An. 49 . 
 Weekly, 29 Ind. 206 
 Weeks, 30 Maine, 182 
 Welch, 26 Maine, 30 
 
 " 7 Port. 453 . 
 
 " 37 Wis. 196 
 Wellman, 3 Ohio, 14 . 
 Wells, 31 Conn. 210 
 Wentworth, 37 N. Hamp. 196 
 
 " " 35 N. Hamp. 442 . 
 
 State V. West, 6 Jones, 505 . . . , 
 
 State V. Westlield, 1 Bail. 132 . 
 State V. Weston, 9 Conn. 527 . 
 
 State V. Wheeler, 19 Minn. 98; 1 Green's Cr. R. 541. 
 35Vt. 261 
 " " 3 Vt. 344 . 
 
 State V. Whit, 4 Jones, 349 .. . 
 
 State V. Whitby, 5 Hairing. 494 . 
 State V. White, 7 La. An. 531 . 
 2 Tyler, 352 . 
 
 Larceny, 382; Trial, 617. 
 Burglary, 95. 
 
 Trial, 621. 
 
 Arson, 24, 
 
 Larceny, 402. 
 
 Trial, 628. 
 
 Homicide, 323. 
 
 Witness, 651. 
 
 Ass. and bat, 57 ; Witness, 653, 
 
 Forgery & counterfeiting, 199, 215, 
 
 Homicide, 269. 
 
 Homicide, 280, 302. 
 
 Ars. 27, 30; Evi, 169 ; Verd. 640. 
 
 Forgery and counterfeiting, 196. 
 
 Larceny, 373. 
 
 Receiving stolen property, 535. 
 
 Verdict, 641. 
 
 Information, 354, 
 
 Adultery, 12, 
 
 Bail and recognizance, 64 ; Indict- 
 ment, 349. 
 
 Forgery and counterfeiting, 203; 
 Trial, 628, 
 
 False pretenses, 180. 
 
 Nuisance, 475. 
 
 Trial, 592, 
 
 Indictment, 351 ; Verdict, 639. 
 
 Malicious mischief, 430, 
 
 Evidence, 148. 
 
 AfiFray, 17. 
 
 Malicious mischief, 432. 
 
 Adultery, 15. 
 
 Gaming, 237. 
 
 Officer, 490. 
 
 Bail and recognizance, 66. 
 
 Rape, 529. 
 
 Evidence, 144, 166; Indict. 335; 
 Malicious mischief, 431, 433, 433. 
 
 Spirituous liquors, sale of, 571. 
 
 Concealed weapons, 101. 
 
 Misdemeanor, 438. 
 
 Larceny, 379, 406,408; Receiving 
 stolen property, 534. 
 
 Forgery and counterf'g, 200, 203. 
 
 Forgery and counterf'g, 305, 214. 
 
 Malicious mis. 429 ; Misdem'r, 440. 
 
 Burglary, 89, 93. 
 
 Trespass, 589. 
 
 Indictment, 336. 
 
 Larceny, 375.
 
 TABLE OF CASES. 
 
 799 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. White, G Ired. 418 . 
 " "7 Ired. 180 
 
 " " 25 Wis. 369 . 
 
 State V. Whitfield, 70 N. C. 35G . 
 8 Ired. 315 
 
 State V. Whitman, 14 Rich. 113 . 
 
 State V. Whitson, 8 Blaokf. 178 
 
 State V. Whittemore, 50 N. Hamp. 245 
 
 State V. Whitten, 1 Hill, S. C. 100 . 
 
 State V. Whittier, 21 Maine, 341 . 
 
 State 
 
 V. 
 
 Wholeham, 22 Iowa, 297 . 
 
 State 
 
 V. 
 
 Wicks, 
 
 R. M. Charlt. 139 
 
 State 
 
 V. 
 
 Widenhouse, 71 N. C. 279 . 
 
 State 
 
 V. 
 
 Wiggin 
 
 , 20 K Hamp. 449 
 
 State 
 
 V. 
 
 Wilber, 
 
 1 R. I. 199 . 
 
 State 
 
 V. 
 
 Wilburn, 2 Brev. 296 . 
 
 State 
 
 V. 
 
 Wilcox 
 
 3 Brev. 96 . 
 
 (( 
 
 
 u 
 
 3 Yerg. 278 . 
 
 State 
 
 V. 
 
 Wiley, 4 Dev. & Batt. 192 . 
 
 State 
 
 V. 
 
 Wilkerson, 72 N. C. 376 
 
 State 
 
 V. 
 
 Wilkin 
 
 ?, 17 Vt. 151 . 
 
 State 
 
 V. 
 
 Williams, 27 Vt. 755 . 
 
 u 
 
 
 u 
 
 65 K C. 398 . 
 
 (( 
 
 
 ii 
 
 3 Foster, 321 . 
 
 1( 
 
 
 u 
 
 20 Iowa, 98 . . . 
 
 (( 
 
 
 (I 
 
 2 Term, 108 . 
 
 (( 
 
 
 (I 
 
 2 Jones, 257 . 
 
 (( 
 
 
 it 
 
 54 Mo. 170 . 
 
 u 
 
 
 a 
 
 27 Vt. 724 ... 
 
 u 
 
 
 a 
 
 2 Rich. 418 . 
 
 u 
 
 
 (1 
 
 36 Texas, 352 . 
 
 
 
 a 
 
 7 Jones, 446 . 
 
 67 N. C. 12 
 
 i( 
 
 
 (( 
 
 2 McCord, 201 
 
 u 
 u 
 
 
 a 
 
 30 Maine, 484 . 
 1 Rich. 188 . 
 
 u 
 
 
 u 
 
 35 Mo. 229 
 
 ti 
 
 
 ii 
 
 2 Strobh. 239 
 
 u 
 u 
 
 
 
 9 Ired. 140 . . . 
 2 Jones, 194 . 
 
 11 
 
 
 li 
 
 1 Vroom (30 N. J.) 102 . 
 
 (. 
 
 
 u 
 
 30 Mo. 364 . 
 
 a 
 
 
 u 
 
 8 Hill, S. C. 91 ^ 
 
 (I 
 
 
 a 
 
 4 Ired. 400 
 
 u 
 
 
 u 
 
 3 Stew. 454 ; 65 N. C. 5C5 
 
 " " 4 Ind. 234 
 
 State V. Williamson, 16 Mo. 394 
 State V. Willis, 7 Jones, 190 
 
 Libel, 422. 
 
 Libel, 425. 
 
 Verdict, 638. 
 
 Evidence, 145. 
 
 Forcible entry and detainer, 193. 
 
 New trial, 462. 
 
 Bail and recognizance, 70. 
 
 Perjury, 499, 507. 
 
 Forgery and counterfeiting, 212. 
 
 Indictment, 342; Malicious tres- 
 pass, 435; Witness, 647. 
 
 Malicious mischief, 433. 
 
 Bail and recognizance, 62. 
 
 Trespass, 588. 
 
 Spirituous liq. sale of, 567, 575. 
 
 Indictment, 347 ; Stats. 581, 582. 
 
 Assault and battery, 39. 
 
 Larceny, 383. 
 
 Malicious mischief, 430. 
 
 Forcible trespass, 195. 
 
 Larceny, 372. 
 
 Forgery and counterfeiting, 199. 
 
 Assault and battery, 36. 
 
 Assault and battery, 44. 
 
 Assault and battery, 51. 
 
 Bigamy, 80. 
 
 Eavesdropping, 118. 
 
 Evidence, 130. 
 
 Evidence, 152; Larceny, 406. 
 
 Forgery and counterfeiting, 218; 
 New trial, 457. 
 
 Forgery and counterfeiting, 219. 
 
 Homicide, 265. 
 
 Homicide, 270. 
 
 Homicide, 293, 294. 
 
 Indictment, 329. 
 
 Jury, 369 ; Misdemeanor, 439. 
 
 Jury, 371. 
 
 Larceny, 378. 
 
 Larceny, 393. 
 
 Larceny, 406. 
 
 Larceny, 409. 
 
 Nuisance, 474. 
 
 Perjury, 513. 
 
 Spirituous liquors, .sale of, 573. 
 
 Sunday, 58-3. 
 
 Trial, 610,613; Venue, change of, 
 635. 
 
 Usury, 633, 
 
 Assau* and battery, 55. 
 
 Burghiry, 86.
 
 800 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. Willis, G;3 X. C. 26 . 
 State V. Wilson, 22 Iowa, 364 . 
 
 " 2 Vroom (30 N. J.) 77 
 " Phil. N. C. 237 . 
 
 Coxe, 439, 441 
 " 1 Hayvv. 243 
 SO Conn. 500 
 
 " 2 Const. R. 135 
 38 Conn. 126 
 
 " 11 La. An. 163 . 
 
 " 47 New Hamp. 101 . 
 
 " 3 Brev. 196 
 23 La. An. 558 
 
 " 3 Mo. 125 
 
 " 1 Ired. 32 . 
 
 " 43 New Hamp. 415 
 
 " 50 Ind. 487 . 
 Wimberly, 3 McCord, 190 
 Wimple, 8 Blackf. 214 
 Windsor, 5 Harring. 512 
 Wing, 32 Maine, 581 
 Wisdom, 8 Port. 511 . 
 Wise, 7 Rich. 412 . 
 Wishon, 15 Mo. 503 
 Witham, 47 Maine, 165 
 WolflF, 15 Mo. 168 
 Wood, 1 Bay, 351 . 
 
 " 53 N. Hamp. 484 ; 2 Green's Cr. R 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 
 u 
 
 state V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 State V. 
 State V. 
 
 340. 
 
 " 17 Iowa, 18 
 
 " 3 Zabr. 560 . 
 Wooderd, 20 Iowa, 541 
 Woodman, 3 Hawks, 384 
 Woodson, 5 Humph. 55 . 
 Woodward, 34 Me. 293 
 
 " 50 New Hamp. 527 
 
 AYoody, 2 Jones, 335 
 Worley, 11 Tred. 243 . 
 Worthing, 31 Maine, 62 
 Wright, 53 Maine, 328 . 
 
 " 3 Brev. 431 
 
 '' 6 Jones, 25 
 Wyatt, 6 La. An. 701 
 Wyckoff, 2 Vroom, 65 . 
 Yancy, 1 Const. Ct. 241 
 
 1 Car. L. Rep. 519 
 
 " " 3 Brev. 143 . 
 
 State V. Yarborough, 1 Hawks, 78 
 " " 19 Texas, 161 
 
 Homicide, 300. 
 
 Adultery, 14. 
 
 Adultery, 77. 
 
 Assault and battery, 35. 
 
 Burglary, 85, 86, 92 ; Larc'y, 372. 
 
 Burglary, 88. 
 
 Conspiracy, 104; Evidence, 137 ; 
 
 Indict. 337; Larceny, 376. 
 False pretenses, 183. 
 Habeas corpus, 249; Trial, 601. 
 Indictment, 332. 
 Larceny, 380. 
 Larceny, 382, 390. 
 Homicide, 296. 
 Malicious tresj^ass, 434. 
 Riot, 544, 545. 
 Statutes, 582. 
 Trial, 628. 
 
 Homicide, 312; Indictment, 346. 
 Assault and battery, 41. 
 Evidence, 101. 
 Bill of exceptions, 82. 
 Evidence, 134; Larceny, 872. 
 New trial, 462. 
 Indictment, 353. 
 
 Forgery and counterfeiting, 208. 
 Larceny, 406, 412; Trial, 610. 
 Assault and battery, 39. 
 Evidence, 160; Grand jury, 248; 
 
 Indictment, 336 ; Witness, 653. 
 Perjury, 511. 
 Writ of error, 663. 
 Forgery and counterfeiting, 196. 
 Indictment, 334. 
 False pretenses, 181. 
 Spirituous liquors, sale of, 576. 
 Trespass, 589. 
 Affray, 17. 
 Wan-ant, 647. 
 Witness, 652. 
 
 Grand jury, 246 ; Verd. 637, 640. 
 New trial, 443. 
 Nuisance, 468. 
 Bail and recognizance, 67. . 
 Jurisdiction, 365. 
 Accessory, 10. 
 Assault and battery, 42 ; Former 
 
 acquittal or conviction, 230. 
 Homicide, 305. 
 Homicide, 308. 
 Religious meeting, disturb, of, 541.
 
 TABLE OF CASES. 
 
 801 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 State V. 
 State V. 
 State V. 
 State V. 
 
 State V. 
 
 State V. 
 State V. 
 
 Yarborougli, 70 N. C. 350 
 
 Yarrell, 13 lied. 130 
 
 Yeaton, 53 Maine, 135 . 
 
 York, 37 New Hamp. 175 . 
 " 5 Harring. 493 . 
 " 70 N. C. 66 . 
 
 Young, 56 Maine, 219 . 
 " 8 Vroom (36 N. J.) 184 
 " 46 New Hamp. 266 
 " 47 New Hamp. 403 . 
 " 18 New Hamp. 543 
 " 39 New Hamp. 283 
 
 Zachai7, Busbee, N. C. 452 
 
 Zellers, 2 Halst. 330 . 
 
 State V. Zale, 5 Halst. 348 . 
 State V. Zulich, 6 Dutch. 409 
 Staten v. State, 30 Miss. 619 . 
 Staup V. Com. 74 Penn. St. 458 
 Steele v. People, 45 Dl. 153 . 
 Steele v. State, 4 Ind. 561 
 Steerman v. State, 19 Mo. 503 
 Stegar v. State, 39 Ga. 583 
 Stein V. State, 37 Ala. 133 . 
 Steinston v. State, 6 Yerg. 531 
 Stephen v. State, 11 Ga. 335 . 
 
 " " 40 Ala. 67 
 
 Stephen's Case, 3 Leigh, 759 . 
 Stephens v. People, 4 Parker, 396 ; 19 N. Y. 549 
 
 Stephens v. State, 14 Ohio, 886 
 
 " " 47 Ala. 696 . 
 
 Stevens' Case, 4 Leigh, 683 . 
 Stevens v. Cora. 4 Mete. 360 . . . 
 
 Stevens v. People, 67111. 587 . 
 
 " " 1 Hill, 361 . 
 
 Stevens v. State, 31 Ind. 485 . 
 
 " " 44 Ind. 469 ; 3 Green's Cr. R. 717. 
 
 " " 3 Ark. 66 . . . 
 
 " "1 Swan, 157 
 
 Stewart v. Com. 4 Serg. & Rawle, 194 . 
 Stewart v. State, 26 Ala. 44 . 
 
 " "5 Ohio, 241 . 
 
 " "33 Ohio, N. S. 477; 1 Green's Cr, 
 
 Reps. 537 
 
 " " 18 Ohio, .302 . 
 
 " 1 Ohio, N. S. 60 . 
 " " 8 Eng. 720 . 
 
 51 
 
 Trespass, 588. 
 
 Nuisance, 474. 
 
 Assault and battery, 34. 
 
 Evidence, 144. 
 
 Larceny, 381. 
 
 Riot, 543. 
 
 Bail and recognizance, 66, 67. 
 
 Conspiracy, 103, 105. 
 
 Forgery and counterfeiting, 198. 
 
 Forgery and counterfeiting, 301. 
 
 Pound breach, 516. 
 
 Witness, 649. 
 
 Indictment, 337. 
 
 Evidence, 134; Homicide, 354,376, 
 
 379, 305 ; Trial, 594. 
 Indictment, 330. 
 Jurisdiction, 367. 
 Homicide, 333. 
 Trial, 599. 
 
 Forgery and counterfeiting, 231. 
 Bail and recognizance, 60. 
 Trial, 590. 
 Robbery, 547. 
 Nuisance, 480, 484. 
 Perjury, 501. 
 Evidence, 143, 149; Indict. 340; 
 
 Rape,530,533,538,533 ; Trial, 606. 
 Statutes, 581. 
 Nuisance, 477. 
 Evidence,129, 167, 168; Homicide, 
 
 273,279,283, 300 ; New trial, 455 ; 
 
 Trial, 608, 610 ; Wit. 653, 654. 
 Evidence, 127. 
 Trial, 604, 619. 
 Arson, 25. 
 Sentence, 556, 558. 
 Gaming, 237. 
 Larceny, 396. 
 Insanity, 355. 
 Larceny, 403. 
 New trial, 463. 
 Peijury, 498. 
 Larceny, 38S. 
 Assault and battery, 54. 
 Assault and battery, 57. 
 
 Evidence, 151 ; Perjury, 501 ; Sub- 
 ornation of perjury, 514. 
 Homicide, 286. 
 Homicide, 315. 
 Trial, 595, 602.
 
 802 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Stiff, Ex parte, .18 Ala. 464 . 
 Stinson v. People, 43 111. 397 
 Stipp V. State, 11 Ind. 63 
 Stocking V. State, 7 Ind. 336 
 Stockton V. State, 35 Texas, 773 
 Stofer V. State, 8 West Va. 689 . 
 Stoffer V. State, lo Ohio, N. S. 47 
 Stokes V. People, 53 N. Y. 164 . 
 
 Stone V. Nat. Ins. Co. 19 Pick. 84 . 
 Stone V. People, 3 Scam. 336 
 Stone V. State, 30 Ind. 115 . 
 '♦ " 1 Spencer, 401 . 
 
 " " 8 Heisk. 457; 1 Green 
 
 " "1 Spencer, 404 
 
 " " 4 Humph. 37 
 
 Stoneman v. Com. 35 Gratt. 887 
 Stoner v. State, 4 Mo. 614 
 Stoops V. Com. 7 Serg. & Eawle, 491 
 Stouffer V. Latshaw, 3 Watts, 165 
 Stoughton V. State, 3 Ohio, 563 
 Stout V. People, 4 Parker, 71, 133 
 Stover V. People, 56 N. Y. 315 
 Strang v. People, 34 Mich. 1 
 Stratton y. Cora. 10 Mete. 317 
 Stratton v. State, 8 Eug. 688 
 Straughan v. State, 16 Ark. 37 
 Strawhern v. State, 37 Miss. 433 
 Strawn y. State, 14 Ark. 549 
 Strohm y. TJ. S, Taney C. C. 413 
 Strong v.'Grannis, 36 B:\rb. 133 
 Strong y. State, 1 Blackf. 198 
 Stroup'9 Case, 1 Rob. 754 
 Studdard y. Linville, 3 Hawks, 474 
 Studstill y. State, 7 Ga. 3 
 Stupp, In re, 13 Blatchf. 501 ; 3 Green' 
 St. Valerie y. People, 64 Barb. 436 . 
 Sullivan v. People, 31 Mich. 1 
 
 '■ '' 1 Parker, 347 
 
 Sullivan v. State, 5 Stew. & Port. 175 
 Sullivant v. State, 3 Eng. 409 
 Summerfield's Case, 3 Rob. 767 
 Sumner v. Com. 8 Cush. 531 
 Sumner v. People, 39 N. Y. 337 
 Sumner y. State, 5 Blackf. 579 
 Sumpter v. State, 11 Fla. 347 
 Sutcliffe V. State, 18 Ohio, 469 
 Sutton V. State, 9 Ohio, 133 
 Swaggerty v. State, 9 Yerg. 338 
 Swails y. State, 7 Blackf. 334 
 
 tail and recognizance, 60. 
 
 Larceny, 373, 386, 387, 396. 
 
 Homicide, 361. 
 
 Evid. 158; Homi. 270; Verd. 637. 
 
 Assault and battery, 83. 
 
 Perjuiy, 508. 
 
 Evidence, 130; Homicide, 330. 
 
 Evid. 158; Homi. 390,801 ; Stats. 
 580 ; Trial, 599 ; Witness, 657 ; 
 Writ of error, 665. 
 
 Barratry, 71. 
 
 Homicide, 267 ; Trial, 594. 
 
 Evidence, 137. 
 
 Forgery and counterfeiting, 315. 
 s Cr. Reps. 520. Malicious mischief, 438. 
 
 Misdemeanor, 438. 
 
 New trial, 448, 453, 454, 455, 456. 
 
 Homicide, 319. 
 
 Habeas corp. 249 ; New trial, 443. 
 
 Accessory, 10, 11. 
 
 Arrest, 30. 
 
 Forgery and counterfeiting, 314. 
 
 Trial, 595 ; Writ of error, 663. 
 
 Evidence, 150, 154; Larceny, 409. 
 
 Rape, 518, 530, 525,526. 
 
 Certiorari, 96. 
 
 Religious meeting, disturb, of, 541. 
 . Verdict, 640. 
 
 Witness, 650. 
 
 Indictment, 834. 
 
 Slave trade, 563. 
 . Arrest, 30; Duress, 117. 
 
 Peijury, 509. 
 
 Larceny, 396. 
 
 Perjury, 498. 
 
 Homicide, 305; Verdict, 643. 
 s Cr. Reps. 183. Fugitives from justice, 232, 234. 
 
 Larceny, 878. 
 
 Evidence, 154. 
 . Homicide, 256; Writ of error, 663. 
 
 Arson, 25. 
 
 Rape, 53, 
 
 Bail and recognizance, 63. 
 
 Writ of error, 663. 
 
 Usury, 683. 
 
 Evidence, 129. 
 
 Homicide, 357; Witness, 649. 
 
 New trial, 465. 
 
 Forg. & counterf. 308 ; Jury, 370. 
 
 Receiving stolen property, 535. 
 
 Assault and battery, 43.
 
 TABLE OF CASES. 
 
 803 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Swallow V. State, 23 Ala. 20 
 " 20 Ala. 30 
 Swan V. State, 4 Humph. 136 
 Sweatman, Matter of, 1 Cow. 144 
 
 S weed en v. State, 19 Ark. 205 
 Sweet V. Sherman, 21 Vt. 23 
 Sweet V. Stubbs, 33 .Maine, 481 
 Swinney v. State, 8 Smed. & Marsh. 576 
 Swisher v. Com. 26 Gratt. 963 
 Sword V. Nestor, 3 Dana, 453 
 Sword V. State, 5 Humph. 102 
 
 Evidence, 129; Trial, 615. 
 Gaming, 236, 240; Trial, 624. 
 Homicide, 257, 275. 
 Commitment, 98 ; Judgment, 363 ; 
 
 Sentence, 558. 
 Assault & battery, 57 ; Trial, 606. 
 Bastardy, 74, 75. 
 Bastardy, 74. 
 
 Larceny, 414 ; Verdict, 639. 
 Homicide, 295. 
 Bastardy, 72, 75. 
 Sentence, 559, 560. 
 
 T 
 
 TaflF V. State, 39 Conn. 82 . 
 
 Taflfe V. State, 23 Ark 34 . . . 
 
 Tailor v. Taintor, 16 Wallace, 366 ; 2 Green's Cr. 
 
 Reps. 143 .... 
 
 Taliaferro v. State, 40 Texas, 522 
 Taner v. Allen, Litt. Sel. Cas. 25 
 Tanner v. Com. 14 Gratt. 635 
 Tanner's Case, 8 Leigh, 741 
 Tarpley v. People, 42 111. 340 
 Tarver v. State, 43 Ala. 374 
 Tate V. State, 46 Ga. 148 
 
 " " 6 Blackf. 110 
 
 " " 5 Blackf. 174 
 
 Tayloe, Ex parte ^ 5 Cow. 39 . 
 Taylor v. Com. 20 Gratt. 825 
 " " 2 Va. Cas. 940 
 
 " 1 Duvall, Ky. 160 
 Taylor v. Hughes, 3 Greenlf. 433 
 Taylor v. People, 6 Parker, 347 . 
 Taylor v. State, 22 Ala. 15 . 
 
 " "35 Texas, 97 
 
 " " 48 Ala. 180 . 
 
 " "42 Ala. 529 
 
 " " 4 Ga. 14 
 
 ". " 6 Humph. 285 . 
 
 " " 50 Ga. 79 . 
 
 " "7 Blackf. 93 
 
 Teachout v. People, 41 N. Y. 7 
 Tefft's Case, 8 Leigh, 721 
 Temple v. State, 40 Ala. 098 . 
 
 " 40 Ala. 350 
 Temple v. People, 4 Lans. 119 
 Templeton v. People, 27 Mich. 501 
 
 " " 6 N. Y. Supm. N. S. 81 
 
 Judgment, 363. 
 
 New trial, 458. 
 
 Bail and recognizance, 70. 
 
 Assault and battery, 54. 
 
 Bastardy, 72. 
 
 Larceny, 380. 
 
 Gaming, 239. 
 
 Assault and battery, 48. 
 
 Assault and battery, 33, 53. 
 
 Assault and battery, 35. 
 
 Disinterring the dead, 115. 
 
 Gaming, 246. 
 
 Bail and recognizance, 59, 65. 
 
 Evidence, 128; Rape, 520, 521. 
 
 Indictment, 329. 
 
 Nuisance, 479. 
 
 Bastardy, 75. 
 
 Nuisance, 409, 481, 484, 486. 
 
 Affray, 17. 
 
 Homicide, 270. 
 
 Homicide, 318. 
 
 Larceny, 411 ; Sentence, 555. 
 
 Libel, 422; New trial, 464. 
 
 Mali. misc. 431 ; Misdemeanor ,438. 
 
 Rape, 528. 
 
 Statutes, 580. 
 
 Evidence, 136, 141 ; nomicide,285. 
 
 Misdemeanor, 438, 
 
 Homicide, 206. 
 
 Homicide, 278, 28» ; Statutes, 581. 
 
 Homicide, 276. 
 
 Evidence, 155. 
 
 Evidence, 102.
 
 804 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Tenuey v. State, 8 Smed. & Marsh. 104 
 
 Terr, of Mont. v. Dreuuan, 1 Mont. 41; 1 Green's C 
 
 Eeps. 553 .... 
 
 Terr, of Mont. v. McClin, 1 Mont. 394; 1 Green's Cr 
 
 Reps. 705 .... 
 
 Terr, of Mont, v. Whitcomb, 1 Mont. 359 
 Terrell v. State, 9 Ga. 58 
 Territory v. Cutler, McCahon's Kansas, 152 
 Territory agst. Freeman, McCahon's Kansas, 56 
 Territory v. Reyburn, McCahon's Kansas, 134 
 Tesh V. Com. 4 Dana, 523 . 
 Thayer v. Overseers of the Poor, 5 Hill, 443 
 The Antelope, 10 Wheat. 67 
 The Brig Alexander, 8 Mason, 175 
 The Emily and The Caroline, 9 Wheat. 381 . 
 The Josef a Segunda, 5 Wheat. 338 
 The Marianna Flora, 11 Wheat. 1 
 The Merino, 9 Wheat. 402 
 The Ohio, 1 Newberry Adm, 409 
 The Porpoise, 3 Curtis, 807 
 The Slavers, 2 Wall. 350, 375 
 Thomas' Case, 2 Rob. 795 
 Thomas v. Com. 2 Va. Cas. 479 
 Thomas v. People, 34 N. Y. 351 . 
 
 " " 59 111. 160; 2 Green's Cr. R. 551 
 
 Thomas v. State, 5 How. Miss. 20 
 " " 52 Ga. 509 . 
 
 " " 6 Mo. 457 
 
 Thomasson v. State, 22 Ga. 499 
 Thompson v. Com. 20 Gratt. 724 
 
 " " 2 Va. Cas. 135 . 
 
 " " 8 Gratt. 637 . 
 
 " " 1 Mete. Ky. 13 . 
 
 Thompson v. People, 3 Parker, 437 
 Thompson's Case, 8 Gratt. 637 
 Thompson v. State, 25 Ala. 41 . 
 
 " " 28 Ala. 13 
 
 " " 18Ind. 386 . 
 
 " " 9 Ohio, N. S. 354 ; 49 Ala. 16 
 
 " " 30 Ala. 38 . 
 
 " " 3 Parker, 208 . 
 
 " " 48 Ala. 165 . 
 
 " " 5 Humph. 138 . 
 
 " " 38 Ind. 39 . 
 
 " " 37 Texas, 131 . . . 
 
 " 47 Ala. 37 . 
 Thomson v. People, 34 111. 60 
 Thornton v. Com. 34 Gratt. 657 . 
 
 Rape, 535, 527. 
 Assault and battery, 56. 
 
 Evidence, 149. 
 
 Adultery, 12, 13. 
 
 Judgment, 363. 
 
 Habeas corpus, 249. 
 
 Indictment, 328. 
 
 Evidence, 130. 
 
 Attorney, 58. 
 
 Bastardy, 73. 
 
 Slave trade, 561, 563. 
 
 Slave trade, 562. 
 
 Slave trade, 563. 
 
 Piracy, 516. 
 
 Piracy, 516. 
 
 Slave trade, 563, 563. 
 
 Slave trade, 563. 
 
 Slave trade, 562. 
 
 Slave trade, 563, 565. 
 
 Perjury, 506. 
 
 New trial, 453. 
 
 False pretenses, 186, 189. 
 
 Lottery, 427. 
 
 Burglary, 92 ; Indictment, 329. 
 
 New trial, 459. 
 
 Trial, 598. 
 
 Larceny, 394. 
 
 Evidence, 147. 
 
 Larceny, 394. 
 
 New trial, 453, 456, 461; Trial, 
 613; Verdict, 643. 
 
 Witness, 651. 
 
 Trial, 603. 
 
 New trial, 458, 
 
 Assault and battery, 35, 43, 
 
 Bigamy, 78. 
 
 Burglary, 87. 
 
 Forgery and counterfg, 305, 307. 
 
 Forgery and counterfeiting, 317. 
 
 Indictment, 335, 343 : Writ of er- 
 ror, 664. 
 
 Larceny, 403. 
 
 New trial, 459 ; Spirituous liquors, 
 sale of, 568. 
 
 Rape, 534. 
 
 Trial, 608. 
 
 Trial, 630. 
 
 False pretenses, 184, 
 
 Homicide, 368, 303.
 
 TABLE OF CASES. 
 
 805 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Thrasher v. State, Bhickf. 460 . 
 Thurston et al. v. Com. 3 Dana, 234 
 Tibbals v. State, 5 Wis. 596 
 Timms v. State, 4 Cold. Tenn. 138 
 Timsv. State, 36 Ala. 165 
 Tipper v. Com. 1 Mete. Ky. 6 
 Todd V. State, 31 lud. 514 
 Toler V. State, 16 Ohio, N. S. 583 
 Tolison V. State, 39 Ala. 103 
 Tomlinson v. People, 5 Parker, 313 
 Tompkins v. State, 17 Ga. 356 
 " " 33 Ala. 569 
 
 Torrey v. Field, 10 Vt. 353 
 Townsend v. People, 3 Scam. 326 
 Townsend v. State, 3 Blackf. 151 
 Towsey v. State, 8 Texas, 173 . 
 Tracy, Ex parte, 35 Vt. 93 
 Train v. State, 40 Ga. 539 
 Treat v. Bent, 51 Maine, 478 
 Trexler v. State, 19 Ala. 21 . 
 Trimble v. State, 3 Greene, 404 . 
 Troxdale v. State, 9 Humph. 411 
 Truman, In re, 44 Mo. 181 
 Tuberville v. State, 40 Ala. 715 
 
 " 43 Ind. 490 . 
 Tucker, Case of, 8 Mass. 386 
 Tucker v. State, 35 Texas, 113 . 
 
 " " 34 Ala. 77 . 
 
 Turk V. State, 7 Ohio, 340 
 Turley v. State, 3 Humph. 323 
 Turner v. Com. 3 Mete. Ky. 619 . 
 Turner v. State, 40 Ala. 31 . 
 
 " 3Heisk. 453; 1 Green's Cr. R. 
 Tumey v. State, 8 Smed. & Marsh. 104 
 Turns v. Com. 6 Mete. 325 
 Tuttle V. Com. 3 Gray, 505 . 
 Tuttle V. People, 36 N. Y. 431; 2 N. Y. Trans 
 
 App. 306 .... 
 
 Tweedy v. State, 5 Iowa, 433 ; lb. 334 
 Twitchell v. Com. 9 Barr, 311 
 Tyler v. Greenlaw, 5 Rand. 711 . 
 Tyler v. State, 3 Humph. 37 . 
 Tyner v. State, 3 Humph. 383 . 
 Tyra v. Com. 2 Mete. Ky. 1 . 
 
 of 
 
 Gaming, 346. 
 
 Bail and recognizance, 70. 
 
 Officer, 491. 
 
 Homicide, 370. 
 
 Jury, 369. 
 
 Bill of excep. 83; Larceny, 413. 
 
 False pretenses, 186, 189. 
 
 Evidence, 166. 
 
 Bail and recognizance, 66. 
 
 Forg. and count. 205; Trial, 615. 
 
 Assault and batt. 42 ; Consp'y,104. 
 
 Trial, 618. 
 
 Indictment, 326. 
 
 Forgery and counterfeiting, 305. 
 
 Verdict, 637. 
 
 Bail and recognizance, 64. 
 
 Trial, 606. 
 
 Larceny, 410. 
 
 Forcible entiy and detainer, 193. 
 
 Assault and battery, 49. 
 
 Trial, 602. 
 
 New trial, 445. 
 
 Forgery and counterfeiting, 203. 
 
 Assault and battery, 57. 
 
 Larceny, 407. 
 
 Grand jury, 348. 
 
 Adultery, 13. 
 
 Sinrituous liquors, sale of, 573. 
 
 Indictment, 348; Verdict, 640. 
 
 Larceny, 388. 
 
 Attorney, 58. 
 
 Former ac. or con. 231 ; Stat. 580. 
 
 Larceny, 400. 
 
 Witness, 655. 
 
 Grand jury, 347; Homicide, 365. 
 
 Indictment, 342. 
 
 Evidence, 130; Jurisdiction, 364 ; 
 
 Perjury, 499, 504. 
 Homicide, 301, 330. 
 False pretenses, 179, 180. 
 Bail and recognizance, 67. 
 False pretenses, 185. 
 Evidence, 155. 
 Trial, 603. 
 
 u 
 
 Udderzook v. Com. 76 Penn. St. 340 
 Ulil V. Com. 6 Gratt. 706 
 
 Homicide, 371; Trial, 635. 
 Witness, 052, 659.
 
 80G 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 rill V. People, 5 Parker, 410 . 
 
 Ur.derwood v. People, 32 Mich. 1 
 
 Underwood v. State, 35 Ala. 70 
 
 Unger v. State, 42 Miss. 642 . 
 
 Updegraph v. Com. 11 Serg. & Rawle, 394 . 
 
 Upton V. State, 5 Iowa, 465 
 
 U. S. T. Anderson, 10 Blatclif. 226; 1 Green's C 
 
 Reps. 423 . . 
 U. S. T. Andrews, 2 Paine, 451 . 
 U. S. T. Anthony, 11 BlatcLf. 200 . 
 U. S. V. Armstrong, 2 Curtis C. C. 446 
 U. S. Y. Arwo, 19 Wall. 486; 2 Green's Crim. R. 
 U. S. V. Eabcock, 4 McLean, 113 
 U.S. V. Bachelder, 2 Gallis. 15 . 
 U. S. V. Baker, 5 Blatclif. 6 
 
 " "3 Benedict, 68 . 
 
 U. S. V. Bailey, 9 Peters, 238 
 U. S. Y. Barney, 2 Wheeler's Crim. Cas. 513 
 U. S. Y. Barton, Gilpin, 439 . 
 U. S. Y. Battiste, 2 Sumner, 240 
 U. S. Y. Bejandio, 1 Wood C. C. 294 . 
 U. S. Y. Benner, 1 Bald. 239 . 
 U. S. Y. Bettilini, 1 Woods, 654 
 U. S. Y. Booth, 21 How. U. S. 506 
 U. S. Y. Bott, 11 Blatchf. 346; 2 Green's Cr. R. 
 U. S. V. Bowman, 2 Wash. C. C. 328 
 U. S. Y. Boyden, Lowell, 266 
 U. S. Y. Brig Malek Adhel, 3 How. U. S. 210 . 
 U. S. Y. Britton, 2 Mason, 464 
 
 U. S. Y. Brown, 1 Sawyer, 531 . 
 U. S. Y. Burroughs, 3 i\IcLean, 405 . 
 
 U. S. Y. Caldwell, 8 Blatchf. 131 
 
 U. S, Y. Carr, 1 Woods, 480 , 
 
 U. S. Y. Chamberlain, 12 Blatchf. 390 . 
 
 U. S. V. Chittenden, Hemp. 61 
 
 U. S. Y. Clark, Crabbe, 584 
 
 U. S. Y. Collins, 1 Woods, 499 
 
 U. S. Y. Conner, 3 McLean, 573 . 
 
 U. S. Y. Cook, 17 Wallace, 168 
 
 U. S. Y. Coolidge, 2 Gallison, 304 
 
 U. S. Y. Coons, 1 Bond, 1 . 
 
 U. S. y. Cornell, 2 Mason, 91 
 
 U. S. V. Cottingham, 2 Blatchf. 470 . 
 
 U. S. Y. Craig, 4 Wash. C. C. 729 
 
 U. S. Y. Crane, 4 McLean, 817 
 
 U. S. Y. Crow, 1 Bond, 51 
 
 U. S. Y. Cruikshank, 1 Woods, 308 . 
 
 U. S. Y. Curtis, 4 Mason, 233 
 
 U. S. V. Daruaud, 3 Wallace, Jr. 143 
 
 Homicide, 316. 
 
 Statutes, 579. 
 
 Assault and battery, 43. 
 
 Larceny, 392, 406. 
 
 Blasphemy, 83, 84. 
 
 EYidence, 158. 
 rim. 
 
 Boarding vessel, 84. 
 
 Indictment, 341. 
 . Statutes, 579 ; Verdict, 638. 
 
 Homicide, 274, 303. 
 134. Jurisdiction, 368. 
 • . Perjury, 500, 505. 
 
 Indictment, 337. 
 
 Piracy, 516. 
 
 Trial, 596. 
 
 Perjury, 500. 
 
 Innkeeper, 355. 
 
 Perjury, 500. 
 
 Slave trade, 563, 563. 
 
 Forgery and counterfeiting, 208. 
 
 Arrest, 20. 
 
 Revenue law, violation of, 541. 
 
 Habeas cor^ius, 250. 
 239. Abortion, 7. 
 
 Perjury, 503. 
 
 New trial, 453. 
 
 Piracy, 515, 516. 
 
 Evidence, 133 ; Forgery and coun- 
 terfeiting, 203, 211, 220. 
 
 Witness, 656. 
 . Larceny, 393, 394, 395; Indict- 
 ment, 836. 
 
 Bribery, 85. 
 
 Homicide, 255; Officer, 490. 
 
 Evidence, 133, 156. 
 
 Dueling, 117. 
 
 Embezzlement, 131. 
 
 Officer, 493. 
 
 New trial, 440. 
 
 Indictment, 345. 
 
 Indictment, 327; Trial, 637. 
 
 Perjury, 509, 511. 
 
 Homicide, 263. 
 
 Larceny, 383. 
 
 Forgery and counterfeiting, 219. 
 
 Accessory, 10. 
 
 Larceny, 398, 406. 
 
 Indictment, 342. 
 
 Indictment, 328. 
 
 Slave trade, 563, 564.
 
 TABLE OF CASES. 
 
 807 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 U. S. V. Davis, 5 Mason, 356 
 
 " " 6 Blatchf. 464 
 
 U. S. V. Demarclii, 5 Blatchf. 84 . 
 U. S. V. Devlin, 6 Blatchf. 71 
 U. S. V. Dickey, 1 Morris, 413 . 
 U. S. V. Dickinson, 2 McLean, 325 
 
 " " Hemp. 1 
 
 U. S. V. Doebler, 1 Bald. 519 
 U. S. V. Donan, 11 Blatchf. 168; 2 Greeus Cr. R. 206 
 U. S. V. Douglass, 2 Blatchf. 207 
 U. S. V. Dow, Campbell C. C. 34 
 U. S. V. Drew, 5 Mason, 28 . 
 U. 8. V. Driscoll, 1 Low, 303 
 U. S. V. Durkee, 1 McAllister C. C. 193 
 U. S. V. Duval, Gilpin, 356 
 U. S. V. Eddy, 1 Bis. 227 
 U. S. V. Farnham, 2 Blatchf. 528 . 
 U. S. V. Feely, 1 Brock. 255 
 U. S. V. Finlay, 1 Abb. 364 
 U. S. V. Fisler, 4 Bis. 59 . 
 
 U. S. V. Flanakin, Hemp. 30 
 U. S. V. Fox, Low, 199 . 
 
 U. S. V. Foye, 1 Curtis C. C. 364 . 
 U. S. V. Frank, 2 Biss. 263 
 U. S. V. Freeman, 4 Mason, 505 . 
 U. S. V. French, 1 Gall. 1 . . 
 U. 8. V. Fries, 3 Dall. 515 
 U. S. V. Frink, 4 Day, 471 . 
 U. 8. V. Furlong, 2 Bis. 97 ; 1 Green's Cr. Reps. 440, 
 U. S. V. Gallagher, 2 Paine, 447 
 U. 8. V. Gardiner, 10 Pet. 618 
 U. 8. V. Gibert, 2 8umner, 19 
 
 U. S. V. Gillies, 3 Wheeler's Cr. Cas. 308 
 U. 8. V. Gleason, 1 Woolw. C. C. 75; lb. 123 
 U. 8. V. Gooding, 12 Wheat. 460 
 U. 8. V. Gordon, 5 Blatchf. 18 . 
 
 U. 8. V. Grassin, 3 Wash. C. C. 65 . 
 
 U. 8. V. Greathouse, 2*Sbb. 364 . 
 
 U. 8. V. Hamilton, 3 Dallas, 17 
 
 U. 8. V. Hand, 2 Wash. C. C. 435 
 
 U. 8. V. Han way, 2 Wallace, Jr. 139 . 
 
 U. 8. V. Harding, 1 Wallace, Jr. 127 
 
 U. 8. V. Hardman, 13 Peters, 170 
 
 U. 8. V. Harries, 2 Bond, 311 . 
 
 U. 8. V. Harris, 1 Abb. 110 . 
 
 U. 8. V. Hart, 3 Wheeler's Crim. Cas. 304 
 
 " Pet. C. C. 390 . 
 U. 8. V. Haskell, 4 Wash. C. C. 402 
 
 Larceny, 382, 386. 
 
 Trial, 606. 
 
 Indictment, 337. 
 
 Revenue law, violation of, 541. 
 
 Perjury, 499. 
 
 Indict. 331, 339; Wit. 652, 657. 
 
 Rape, 520. 
 
 Forgeiy and count. 217, 221. 
 
 Indictment, 335. 
 
 Evi. 129; Homi. 200; Juris. 368. 
 
 Indictment, 333. 
 
 Intox. as an ex. for crime, 302. 
 
 Larceny, 386. 
 
 Larceny, 381. 
 
 New trial, 402. 
 
 Letter, 421. 
 
 Homicide, 312. 
 
 Bail and recognizance, 69. 
 
 Statutes, 580. 
 
 Forgery and counterfeiting, 203. 
 
 Trespass, 588. 
 
 8pirituous liquors, sale of, 570. 
 
 Forg. & count. 215 ; Larc. 893, 401. 
 
 False pretenses, 179. 
 
 Homicide, 263. 
 
 Bail and recognizance, 69. 
 
 New trial, 445. 
 
 Continuance, 111. 
 
 Evidtince, 157. 
 
 Assault and battery, 41. 
 
 Forgery and counterfeiting, 200. 
 
 Indictment, 347; New trial, 440, 
 
 455, 460 ; Piracy, 51G ; Trial, 591. 
 Writ of error, 662. 
 Homicide, 259 ; Officer, 488. 
 Misdem'r, 438 ; Slave trade, 564. 
 Kidnapping, 372 ; Sentence, 554 ; 
 
 Slave trade, 564. 
 Vessel, 642. 
 Treason, 587. 
 
 Bail and recognizance, 00. 
 Assault and battery, 32. 
 Treason, 586. 588. 
 New trial, 442. 
 Indictment, 348. 
 
 Evidence, 159; Misdemean. 438. 
 Pardon, 493. 
 Breach of the peace, 84. 
 Nuisance, 469. 
 Former accpiittal or conviction, 
 
 224; Trial, 611.
 
 808 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 S. V. Hawthorne, 1 Dillon C. C. 423 
 
 S. V. Henry, 4 Wash. C. C. 428 
 
 S. V. Hill, 1 Brock. 156 .... 
 
 S. V. Hinman, 1 Bald. 293 . 
 S. V. Hodges, 2 Wheeler's Crim. Cas, 477 
 S. V. Holmes, Wallace, Jr. 1 . 
 S. V. Horn, 5 Blatchf. 103 . . 
 
 S. V. Hornibrook, 2 Dill..229; 1-Green's Cr. R. 328. 
 S. V. Hortou's Sureties, 3 Dillon, 94; 1 Green's Cr. 
 Reps. ..... 
 
 S. V. Howard, 3 Sumner, 12 . 
 
 ' " 3 Wash. C. C. 340 . 
 
 S. V.Howell, 11 Wall. 4-32 
 
 S. V. Hoxie, I'Paine, 265 . 
 
 S. V. Imbert, 4 Wash. C. C. 702 
 
 S. V. Tmsancl, 1 Woods, 581 
 
 S. V. Insurgents, 2 Dall. 335 . 
 
 S. V. Jailer of Fayette County, 2 Abb. 265 
 
 S. V. Johns, 1 Wash. C. C. 363 
 
 S. y. Jones, 3 Wash. C. C. 224 
 
 ' ■ " 2 Wheeler's Crim. Cas. 451 
 
 ' " 3 Wash. C. C. 228 
 
 S. V. Keene, 1 McLean, 429 . 
 
 S. V. Kenneally, 5 Bis. 123 ' 
 
 S. V. Kennedy, 4 Wash. C. C. 91 
 
 ' "3 McLean. 175 
 
 V. Kepler, 1 Baldw. 22 . 
 
 V. Klintock, 5 Wheat. 144 
 
 V. Kohnstamm, 5 Blatchf. 223 
 
 V. La Coste, 2 Mason, 129 
 S. T. Lancaster, 2 McLean, 431 
 ' "4 Wash. C. C. 64 . 
 
 S. V. Lee, 4 McLean, 103 .. . 
 
 S. V. Libby, 1 Woodb. & Minot, 221 
 S. V. Magill, 1 Wash. C. C. 463 
 S. V. Mason, 13 Blatchf. 497 
 S. V. Maxon, 5 Blatchf. 360 . 
 S. V. Mayer, Deady, 127 . 
 S. V. McAvoy, 4 Blatchf. 418 . 
 S. V. McHenry, 6 Blatchf. 503 
 S. V. McNeal, 1 Gallison, 387 . 
 S. V. Merchant, 13 Wheat. 480 
 S. V. Miller, 1 Sawyer, 701 . 
 S. V. Miner, 11 Blatchf. 511 ; 3 Green's Cr. R. 246 
 S. V. Mingo, 8 Curtis C. C. 1 
 S. V. Mitchell, 1 Bald. 30G . 
 ' "3 Dall. 348 . 
 
 S. V. Morgan, 1 Morris, 341 . 
 S. V. Morris, 14 Pet. 464 . 
 
 " 1 Curtis C. C. 33 . 
 S. V. Morrow, 4 Wash. C. C. 733 . 
 
 Witness, 650. 
 
 Witness, 649. 
 
 Indictment, 350, 351. 
 
 Forgery and counterfeit. 213, 218. 
 
 Treason, 586. 
 
 Homicide, 323. 
 
 Trial, 625; Witness, 651. 
 
 Gaming, 236. 
 
 Bail and recognizance, 60, 65. 
 
 Indictment, 348. 
 
 Piracy, 515. 
 
 Forgery and counterfeiting, 209. 
 
 Treason, 587. 
 
 Homicide, 312. 
 
 Evidence, 137. 
 
 Treason, 587. 
 
 Habeas corpus, 250 ; Warrant, 647. 
 
 Indictment, 345 ; Vessel, 642. 
 
 Accessory, 9; Bail and recog. 61. 
 
 Evidence, 151. 
 
 Piracy, 515, 516. 
 
 New trial, 440. 
 
 Forg. and count. 218; Witn. 653. 
 
 Slave trade, 563. 
 
 Witness, 648. 
 
 Witness, 649. 
 
 Piracy, 515. 
 
 False pretenses, 179. 
 
 Slave trade, 562. 
 
 Misdemeanor, 438. 
 
 Pardon, 495. 
 
 Pardon, 494. 
 
 Acces'y, 9; Slave trade, 562, 565. 
 
 Homicide, 354. 
 
 Forgery and counterfeiting, 213. 
 
 Jurisdiction, 368. 
 
 Perjury, 512. 
 
 Indictment, 327. 
 
 Trial, 610. ♦ 
 
 Perjury, 503. 
 
 Trial, 591. 
 
 Information, 353. 
 
 Former acquittal or convic. 337. 
 
 Homicide, 358, 373, 330. 
 
 Forgery and count. 198, 300, 231. 
 
 Treason, 587. 
 
 Perjury, 506. 
 
 Slave trade, 562. 
 
 Verdict, 638. 
 
 Forgerv and counterfeit. 199, 217.
 
 TABLE OF CASES. 
 
 809 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 U.S. 
 
 u. s. 
 
 U.S. 
 U.S. 
 
 U.S. 
 
 U..S. 
 U. S. 
 U.S. 
 U.S. 
 
 U.S. 
 
 u. s. 
 
 U.S. 
 
 U.S. 
 U.S. 
 
 u. s. 
 u. s. 
 u. s. 
 
 U.S. 
 
 U.S. 
 U.S. 
 
 u.-s. 
 
 U.S. 
 
 U.S. 
 U. S. 
 
 U.S. 
 
 u. s, 
 
 U.S. 
 
 u. s, 
 
 U.S. 
 
 u. s, 
 u. s 
 
 u. s, 
 
 Moses, 4 Wash. 736 
 Mulvauey, 4 Parker, 164 
 Mundell, 6 Call, 245 
 Nelson, 1 Abb. 135 . 
 Nichols, 4 McLean, 23 
 Nye, 2 Curtis C. C. 225 
 O'Neill, 2 Sawyer, 481 . 
 Palmer, 3 Wheat. 610 
 Parsons, 2 Blatchf. 104 . 
 Passmore, 4 Dall. 372 
 Patterson, 3 McLean, 53, 299 
 Perez, 9 Wheat. 579 . 
 Peters, 2 Abb. 494 
 Pirates, 5 Wheat. 184 
 Pond, 2 Curtis C. C. 265 
 Poyer, 3 Wash. C. C. 234 . 
 Prescott, 2 Dillon, 405; 1 Green's Cr. R 
 " 2 Bis. 325 
 
 2 Abb. 169 
 Preston, 3 Pet. 65 . 
 Ramsay, Hemp. 481 
 Randall, Deady, 523 . 
 Reed, 2 Blatchf. 435 
 Reid, 12 How. U. S. 361 
 Ross, 1 Gallis. 624 
 Roundenbush, 1 Bald. 514 . 
 Sa-Coo-Da-Cot, 1 Abb. 377 
 Schimer, 5 Biss. 195. 
 Schooner Catharine, 2 Paine C. C. 721 
 Schooner Kitty, Bee, 252 
 Schumann, 2 Abb. 523 . 
 Scott, 4 Biss. 29 
 Seagrist, 4 Blatchf. 420 . 
 Shackleford, 18 How. U. S. 588 
 Shelburne, 1 Bald. 350 . 
 Shepard, 1 Abb. 431 
 
 439 
 
 V. Shoemaker, 2 McLean, 114 
 
 V. Skid dy, 11 Pet. 73 . . . . 
 
 V. Small, 2 Curtis C. C. 241 
 
 V. Smith, 2 Bond, 323 .... 
 
 " 1 Dillon C. C. 212 
 
 " 5 Wheat. 153 
 
 " 4 Day, 121 .. . 
 
 V. Sonachall, 4 Bis. 425 
 V. Souders, 2 Abb. 456 
 v. Stetson, 3 Woodb. & Minot, 164 
 V. Stewart, 2 Dallas, 343 . 
 V. Taintor, 11 Blatchf. 374; 2 Greens Cr. R. 241 
 V. Tallman, 10 Blatchf. 21 ; 1 Green's Cr. R. 418, 
 V. Terrell, Ilcmp. 411 . 
 
 Forgery and counterfeiting, 222. 
 Letter, 421, 
 Indictment, 328. 
 Forgery and counterfeiting, 197. 
 Perjury, 499. 
 Revolt, 542. 
 Briljery, 85. 
 Piracy, 515, 516. 
 Larceny, 383. 
 Perjury, 500. 
 Witness, 649. 
 
 Former acquittal or convic. 224. 
 Forgery 'and coun.terfeiting, 200. 
 Piracy, 515, 516. 
 Letter, 421. 
 Treason, 587. , 
 Evidence, 142. 
 False pretenses, 181. 
 Indictment, 334. 
 Slave trade, 562. 
 Jurisdiction, 368. 
 Evidence, 152. 
 Indictment, 327. 
 New trial, 460. 
 Homicide, 261. 
 
 Forgery & counterfeiting, 221, 222. 
 Jurisdiction, 366. 
 Misdemeanor, 438. 
 Slave trade, 563. 
 Slave trade, 563. 
 Nolle prosequi, 465. 
 Indictment, 340. 
 Revolt, 542. 
 Trial, 593. 
 Perjury, 496. 
 
 Arrest, 20; Ex. of party arr. 171; 
 Indi't,328; Inf. 353; Stat. 581. 
 Former acquittal or convict'n, 224. 
 Slave trade, 563. 
 Assault and battery, 43. 
 Conspiracy, 107; Evidence, 159. 
 Conspiracy, 108. 
 Piracy, 515. 
 Slave trade, 561. 
 Perjury, 499. 
 Voting, 643. 
 Judgment, 363. 
 Bail and recognizance, 60. 
 Eni'jozzlcnient, 123. 
 Jury, 37 1 . 
 Jurisdiction, 368.
 
 810 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 U. S. V. The Isle cle Cuba, 3 Cliff. 295 . 
 
 U. S. V. Thomas, 4 Benedict, 370: 2 Abb. 114 
 
 U. S. V. Thompson, 1 Sumner, 168 
 
 U. S. V. Thorpe, 2 Bond, 340 
 
 U. S. V. Travers, 2 Wheeler's Or. Cas. 490 
 
 U. S. V. Troax, 3 McLean, 431 
 
 V. S. V. Trout, 4 Bis. 105 
 
 U. S. V. Tully, 1 Gallis. 247 . 
 
 U. S. V. Turner, 2 Wheeler's Crim. Cas. 615 
 
 " " 7 Peters, 133 
 
 U. S. V. Van Sickle, 2 McLean, 219^ 
 U. S. V. Vigol, 2 Dall. 346 
 U. S. V. Ward, 1 Wool. C. C. 17 . 
 U. S. V. Warner, 4 McLean, 463 
 U. S. V. Watson, 7 Blatchf. 60 . 
 
 " "3 Benedict, 1 
 
 r. S. V. Westervelt, 5 Blatchf. 30 
 V. S. V. Wilcox, 4 Blatchf. 385 
 
 4 Blatchf. 391, 393 
 U. S. V. Williams, 4 Bis. 302 . 
 
 1 ClifiF. 5 
 U. S. V. Wilson, 7 Peters, 150 
 
 1 Baldw. 78 
 U. S. V. Wiltberger, 3 Wash. C. C. 515 
 U. S. V. Wood, 3 Wash. C. C. 440 
 
 " 14 Peters, 430 
 U. S. V. Worrall, 2 Dallas, 384 . 
 Uterburgh v. State, 8 Blackf. 202 
 
 Slave trade, 504. 
 
 Smuggling, 565. 
 
 Pvevolt, 541. 
 
 Jury, 309. 
 
 Homicide, 373, 274. 
 
 Witness, 649. 
 
 Forgery and counterfeiting, 203, 
 
 209; Indictment, 347. 
 Piracy, 515. 
 
 False imprisonment, 172. 
 Forgeiy & counterfeiting, 198, 200. 
 Witness, 659. 
 Treason, 587. 
 Jurisdiction, 368. 
 Homicide, 312. 
 Xolle prosequi, 465. 
 Trial, 611. 
 Kidnapping, 372. 
 Forgery and counterfeiting, 203. 
 Perjury & subor. of perj. 503, 514. 
 Forgery & counterfeiting, 203, 305. 
 Homicide, 270 ; New trial, 440. 
 Pardon, 494. 
 
 Robbery, 546; Trial, 597,598,600. 
 Homicide, 302,305. 
 Evidence, 135 ; Robbery, 546. 
 Perjury, 511. 
 Bribery, 85. 
 Trial, 593. 
 
 V 
 
 Vaiden v. Com. 12 Gratt. 717 . 
 Vallad V. Sheriff, 11 Mo. 24 . 
 Vallejo V. Wheeler, Oowp. 143 . 
 Vance v. Com. 2 Va. Cas. 162 
 Vandermark v. People, 47 111. 123 
 Vanderworker v. State, 8 Eng. 700 . 
 Vannatta v. State, 31 Ind. 210 
 Van Sickle v. People, 29 Mich. 61 . 
 Van Steenburgh v. Kortz, 10 Johns, 167 
 Van Zant v. People, 2 Parker, 168 
 Vass V. Com. 3 Leigh, 786 
 Vasser v. State, 33 Ala. 586 . 
 Vattier v. State, 4 Blackf. 73 
 Vaughan v. Com. 17 Gratt. 576 
 
 " " 2 Va. Cas. 273 
 
 Vaughan, Ex parte, 44 Ala. 17 
 Veach v. Elliott, 1 McCook, 139 
 
 Homicide, 319, 330. 
 
 Fugitives from justice, 335. 
 
 Barretry, 71. 
 
 New trial, 446 ; Venue, ch. of, 636. 
 
 Indictment, 332. 
 
 Gaming, 237, 342. 
 
 Information, 354. 
 
 Evid.157; Forg. & counter'g, 201. 
 
 Perjury, 498. 
 
 Misdemeanor, 437. 
 
 Homicide, 293. 
 
 Bail and recognizance, 70. 
 
 Trial, 593. 
 
 Burglary, 95; Evidence, 145. 
 
 Former acquittal or conviction,225. 
 
 Bail and recognizance, 60. 
 
 Gaming, 338.
 
 TABLE OF CASES. 
 
 811 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Venable v. Com. 24 Conn. 639 
 Vermilyea, Ex parte ^ 6 Cow. 555 
 Vicaro v. Com. 5 Dana, 505 . 
 Villareal v. State, 26 Texas, 107 
 Villery v. Com. 8 B. Mon. 3 . 
 Vincent, Ex %Kirte^ 2G Ala. 145 
 Vincent v. People, 5 Parker, 88 
 Vogelsong v. State, 9 Ind. 112 
 
 Evidence, 147. 
 
 Certiorari, 96; Trial, 596, 598. 
 
 Gaming, 238. 
 
 Homicide, 276. 
 
 Bail and recognizance, 61. 
 
 Burglar}', 88. 
 
 Forgery and counterfeiting, 210. 
 
 Sunday, 584. 
 
 w 
 
 Wade T. State, 12 Ga. 25 . 
 Wadlin's Case, 11 Mass. 142 . 
 
 "Wagner v. People, 4 N. Y. Ct, of App. Decis. 509 ; 
 afti'g 54 Barb. 367 ; 2 Keyes, 684 . 
 
 Wait V. Green, 5 Parker, 185 
 Wakeman v. State, 4 Sneed, 425 
 Wakker, Matter of, 3 Barb. 162 
 Walker v. Com. 8 Bush, 676 . 
 
 " " 3 A. K. Marsh. 355 
 
 Walker v. State, 6 Ala. 350 . 
 
 " " 5 Ga. 491 . 
 
 " " 37 Texas, 366 . 
 
 " " 49 Ala. 398 ... 
 
 Walker's Case, 8 Leigh, 743 
 
 " " 1 Leigh, 574 . 
 
 Wall V. State, 18 Texas, 682 . 
 
 Wallace v. People, 63 111. 451 ; 2 Green's Cr. R. 562. 
 Wallace v. Young, 5 Monr. 156 . 
 Waller v. State, 40 Ala. 325 
 
 " 4 Ark. 87 . 
 Walsh V. People, 65 111. 58 . • . 
 
 Walsh's Case, 2 Wallace, Jr. 143 
 WalstoQ V. Com. 16 B. Mon. 15 . 
 Walter v. People, 6 Parker, 15 ; 32 N. Y. 147 
 
 Walton V. State, 6 Yerg. 377 
 " "3 Sneed, 687 
 
 Waltzer v. State, 3 Wis. 788 
 Walworth v. McCullough, 10 Johns. 03 
 Ward V. People, 3 Hill, 395 
 Ward V. State, 28 Ala. 53 
 
 " " 23 Ala. 10 
 
 " " 2 Mo. 120 
 
 " " 8 Black f. 101 
 
 Trial. 597, 626. 
 Grand jury, 248. 
 
 Indictm. 330, 350 ; Insan. 356,357 ; 
 Homicide, 273, 300. 
 
 Malicious mischief, 429. 
 
 Homicide, 288 . 
 
 Habeas corpus, 249. 
 
 Attorney, 58. 
 
 Bastardy, 73. 
 
 Bail and recognizance, 65. 
 
 Bastardy, 73, 76. 
 
 New trial, 460; Trial, 621, 623. 
 
 Trial, 614. 
 
 Larceny, 375. 
 
 Larceny, 406. 
 
 Statutes, 580. 
 
 Larceny, 393. 
 
 Arson, 25. 
 
 Former acquittal or convict. 231 ; 
 Rape, 520, 522 ; Trial, 597, 629. 
 
 New trial, 464. 
 
 Misdemeanor, 437. 
 
 Trial, 601. 
 
 Judgment, 363. 
 
 Homicide, 256, 270, 275 ; Insanity, 
 359; Rape, 518, 519, 522; Stat- 
 utes, 579 ; Trial, 597. 
 
 Forgery and counterleitiiig, 196. 
 
 Former acquittal or convict. 224. 
 
 Sentence, 556. 
 
 Bastardy, 73. 
 
 Bill of except. 82; Larc. 384, 410. 
 
 Assault and batt. 43, 46; Venue, 
 change of, 636. 
 
 Gaming. 241. 
 
 Grand jury, 248. 
 
 Homicide, 293; New trial, 442.
 
 8J2 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 "Ward V 
 
 State, 48 Ala. 161 . 
 
 u 
 
 " 3 Hill, 395 . . 
 
 <4 
 
 " 1 Humph. 253 
 " 3 Mo. 98 . 
 
 "Ward's 
 
 Case, 3 Leigh, 743 . 
 
 Warner 
 
 V. Com, 2 "Va. Cas. 95 . 
 
 "Warner v. "Willey, 2 Root, 490 
 Warren v. People, 3 Parker, 544 . 
 "VWirren v. State, 33 Texas, 517 
 
 1 c 
 
 " 1 Greene, 106 . 
 
 ( i 
 
 " 19 Ark. 214 
 
 (1 
 
 " 4 Cold. Tenn. 130 
 
 "Wash V 
 
 Belk, 3 Conn. 302 . 
 
 Wash V. 
 
 Com. 16 Gratt. 530 
 
 Wash V. 
 
 State, 14 Sm. & Marsh. .120 
 
 Washbui-n, Matter of, 3 Wheeler's Cr. Cas. 4T3 
 Washington v. State, 41 Texas, 583 . 
 Waterman v. People, 67 111. 91 . 
 Watson V. People, 64 Barb. 130 
 
 Watson V. State, 3 Ind. 123 
 
 " 36 Miss. 593 
 Wattles V. Marsh, 5 Cow. 176 . 
 Watts' Case, 4 Leigh, 672 . 
 Watts V. State, 5 West Va. 532 . 
 Way V. State, 35 Ind. 409 . 
 Weatherford v. Com. 10 Bush, 196 
 Weaver v. State, 24 Texas, 387 
 
 " 24 Ohio, K S. 584 
 Webber V. State, 10 Mo. 4 
 Webster v. Com. 5 Cush. 386 
 Webster v. State, 8 Blackf. 400 
 Webster's Case, 5 Maine, 432 
 Weed V. People, 3 N.Y. Supm. K S. 50; 56 N.Y. 628. 
 
 " 31 N. Y. 465 . 
 Weinberg v. State, 25 Wis. 370 
 Weinzorflin v. State, 7 Blackf. 186 
 Weis V. State, 22 Ohio, N. S. 486 
 Welch V. Scott, 5 Ired. 72 
 Weldon V. State, 32 Ind. 81 . 
 Wellar v. People, 30 Mich. 16 , 
 Wells V. Com. 12 Gray, 326 . 
 Wells V. Jackson. 3 Munf. 458 . 
 Welsh V. People, 17 111. 339 .... 
 Wertz V. State, 42 Ind. 161; 2 Green's Cr. Reps. 681. 
 Wesley v. State, 37 Miss. 327 . 
 
 " " 11 Hnmph. 502 
 
 West V. Com. 3 J. J. Marsh. 641 . 
 West V. State, 2 Zabr. 213 . 
 
 " " 48 Ind. 483 . . ' . 
 
 Larceny, 384. 
 
 Larceny, 394. 
 
 Trial, 596. 
 
 Witness, 656. 
 
 Gaming, 236. 
 
 Bigamy, 80. 
 
 Bastardy, 74. 
 
 Nuisance, 476. 
 
 Assault and battery, .34. 
 
 Larceny, 414; Trial, 604. 
 
 Trial, 606. 
 
 Trial, 619. 
 
 Sentence, 558. 
 
 Forgeiy and counterfeiting, 220. 
 
 Bill of except. 81 ; Indictm. 340, 
 349; Rape, 532; Verdict, 640. 
 
 Fugitives from justice, 233. 
 
 False pretenses, 184. 
 
 Forgery and counterfeiting, 200. 
 
 Evidence, 158 ; Forg. and counter- 
 feiting, 219; Trial, 623. 
 
 Gaming, 238, 244. 
 
 Larceny, 377, 385. 
 
 Habeas corpus, 251. 
 
 Rape, 532. 
 
 Access. 9; Evid. 157; Indict. 348. 
 
 Larceny, 409. 
 
 Verdict, 640. 
 
 Assault and battery, 48. 
 
 Homicide, 301. 
 
 Libel, 425. 
 
 Sentence, 561. 
 
 Gaming, 242. 
 
 Indictment, 346. 
 
 Abortion, 5, 7. 
 
 Sentence, 558; Writ of error, 661. 
 
 Bigamy. 79. 
 
 Ind. 349; New trial, 449; Rape, 520. 
 
 New trial, 456. 
 
 Warrant, 645, 647. 
 
 Rape, 531. 
 
 Trial, 608. 
 
 Indictment, 334 ; Nuisance, 478. 
 
 Warrant, 646. 
 
 Larceny, 373. 
 
 Nuisance, 481. 
 
 Homicide, 298, 318. 
 
 New trial, 455. 
 
 Gaming, 236. 
 
 Ev. 133, 134; Tri. 631; Wit. 654. 
 
 Evidence, 165, 166.
 
 TABLE OF CASES. 
 
 813 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 West V. State, 2 Ala. 312 . 
 
 Weyniau v. Peoijle, 6 N. Y. Siipin. N. S. 69G 
 
 Whaley v. State, 11 Ga. 123 
 
 Wharton v. State, 5 Cold. Tenn, 
 
 Wheat V. State, 6 Mo. 455 
 
 Whelchell v. State, 23 Ind. 89 
 
 White V. Com. 6 Binu. 179 
 
 " 9 Bush, Ky. 178 
 White, Ex. parte, 4 Eng. 222 
 
 " 40 Cal. 434 . 
 White V. People, 32 N. Y. 465 
 
 White V. State, 22 Texas, G08 
 " " 5 Yerg. 183 
 
 " 49 Ala. 344 . 
 
 " 3 Heisk. 338 
 " "31 Ind. 262 . 
 
 "1 Smed. & Marsh. 149 
 
 " 17 Ark. 404 . 
 Whiteford v. Com. 6 Rand. 721 . 
 Whitehead v. State, 4 Humph. 278 
 Whitesides v. People, Breese, 4 . 
 Whiting V. State, 14 Conn. 487 
 Whitley v. State, 38 Ga. 50 
 Whitlock V. Roth, 10 Barb. 78 
 Whitman's Case, 2 Wall. Jr. 147 . 
 Whitney v. State, 8 Mo. 168 . 
 
 " " 35 Ind. 503 . 
 
 Whittem v. State, 36 Ind. 196 
 Whitten v. State, 47 Ga. 297 ; 1 Green's Cr. Rep 
 Wholford V. Com. 4 Gratt. 553 
 Wickersham v. People, 1 Scam. 128, 130. 
 Wicks V. State, 44 Ala. 398 . 
 Wickwire v. State, 19 Conn. 477 
 
 Wigin V. Amory, 14 Mass. 1 . 
 Wilborn v. State, 8 Smed. & Marsh. 345 . 
 Wilbur V. Crane, 13 Pick. 284 
 Wilburu V. State, 41 Texas, 237 . 
 Wilcox V. State, 7 Blackf. 456 
 Wilde V. Com. 2 Mete. 408 
 Wilder v. State, 47 Ga. 522 . 
 Wiles V. Brown, 3 Barb. 37 
 Wiley V. State, 1 Swan, 256 . 
 Wilke V. People, 53 N. Y. 525 . 
 Wilkinson v. State, 10 Ind. 372 
 Willey V. State, 46 Ind. 363 
 Williams v. Blincoe, 5 Litt. 171 
 Williams' Case, 2 Gratt. 567 
 Williams v. Com. 9 Bush, Ky. 274 . 
 Williams v. People, 24 N. Y. 405 
 
 Sentence, 555 ; Verdict, 640, 643. 
 
 Larceny, 377, 406. 
 
 Evidence, 155; Trial, 595. 
 
 Statutes, 580. 
 
 Evidence, 130. 
 
 Homicide, 267. 
 
 Homicide, 265. 
 
 Homicide, 265. 
 
 Bail and recognizance, 61. 
 
 Fugitives from justice, 235. 
 
 Assault and batteiy, 47 ; Indicts 
 
 340, 352 ; Verdict, 638. 
 Assault and battery, 57. 
 Bail and recognizance, 69. 
 Burglary, 93. 
 Evidence, 148. 
 Evidence, 166. 
 
 Habeas corpus, 349 ; Perjury, 499. 
 New trial, 458. 
 Homicide, 356. 
 Accessory, 10. 
 
 Indictment, 334, 346 ; Riot, 543. 
 Information, 354. 
 Homicide, 293. 
 False pretenses, 180. 
 Trial, 594. 
 New trial, 453. 
 New trial, 463. 
 Contempt, 110. 
 Evidence, 170. 
 New trial, 458. 
 
 Indictment, 326; New trial, 463. 
 Burglary, 91. 
 Indict. 353; Misdemeanor, 439; 
 
 Spirituous liquors, sale of, 576. 
 Barratry, 71. 
 Larceny, 415. 
 Bastardy, 72. 
 Burglary, 91. 
 Gaming, 245. 
 
 Burg. 88; Inform. 354; Sent. 558. 
 Officer, 489. 
 Habeas corpus, 254. 
 New trial, 455. 
 
 Tri. 609; Wit. 651 ; Writ of er.661. 
 Forgery and counterfeiting, 208. 
 Abortion, 4. 
 Bastardy, 72. 
 Trial, 611. 
 Trial, 613. 
 Larceny, 413.
 
 814 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Williams v. People, 45 Barb. 201 
 
 " '^ 44 111. 478 
 
 Williams v. State, 47 Ind. 568 . 
 
 " " 44 Ala. 43 . 
 
 " " 52 Ga. 580 
 
 " " 2 Snecd, 160 
 
 " " 41 Texas, 209 . 
 
 « " 29 Ala. 532 
 
 " " 47 Ala. 659 . 
 
 " " 9 Humph. 80 
 
 " " 51 Ga. 535 . 
 
 » " 16 Ind. 461 
 
 « " 12 Smed. & Marsh. 58 
 
 " " 3 Heisk. 376; 1 Green's Cr. R 
 
 " " 2 Carter, 439 . 
 
 " '• 9 Mo. 268 . 
 
 " " 12 Ohio, N. S. 622 
 
 " " 4 Mo. 480 . 
 
 " '^ 7 Humph. 47 . 
 
 " " 47 Miss. 609 
 
 " " 14 Ohio, 322 . 
 
 " " 8 Humph. 585 
 
 " "8 Sneed, 813 . 
 
 " " 3 Kelly, 453 
 
 " " 45 Ala. 57 ; 47 lb. 659 
 
 Williamson v. State, 16 Ala. 431 
 Williford v. State, 17 Texas, 653 . 
 Willis V. People, 5 Parker, 621 
 " " 1 Scam. 399 
 
 " " 32 N. Y. 715 
 
 Willis V. State, 12 Ga. 444 
 Wills V. People, 3 Parker, 473 
 
 Wills V. State, 8 Mo. 52 . 
 
 " " 4Blackf. 457 . 
 
 Wilson V. Com. 3 Bush. 105 
 Wilson V. People, 4 Parker, 619 
 
 " " 39 N. Y. 459 . 
 
 Wilson V. State, 3 Heisk. 278; 1 Green's Cr. R. 550. 
 
 " " 16 Ind. 392 
 
 " " 24 Conn. 57 . 
 
 •' " 31 Ala. 371 
 
 " " 5 Texas, 21 . 
 
 " " 32 Texas, 112 . 
 
 " " 1 Porter, 118 
 
 " " 5 Ark. 513 
 
 " 20 Ohio, 26 . 
 Wilson V. Wilson, Wright, 128 . 
 Wilson's Case, 9 Leigh, 648 . 
 Winder v. State, 25 Ind. 234 
 Windham v. State, 26 Ala. 69 
 
 New trial 459. 
 
 Trial, 630. 
 
 Assault and battery, 55. 
 
 Bigamy, 79, 80 ; Homicide, 359. 
 
 Burglary, 86. 
 
 Extortion, 171, 172. 
 
 Evidence, 129 
 
 Evidence, 148. 
 
 Evidence, 165. 
 
 Forgery and counterfeiting, 206. 
 
 Forgery and counterfeiting, 310. 
 
 Forgery and counterfeiting, 217. 
 
 Gaming, 338, 245 ; Misdem'r, 488. 
 
 Homicide, 315. 
 
 Incest, 325. 
 
 Indictment, 828 ; Riot, 543. 
 
 .Jury, 369. 
 
 Lasciviousness, 417. 
 
 Perjury, 504. 
 
 Rape, 519. 
 
 Rape, 519, 520. 
 
 Rape, 530, 531. 
 
 Religious meeting', disturb, of, 540. 
 
 Trial, 597. 
 
 Trial, 612, 615, 620. 
 
 Indictment, 326. 
 
 Bail and recognizance, 64. 
 
 Certiorari, 96; Insanity, 356, 
 
 Continuance, 113; Indict. 333. 
 
 Insan. 356 ; Juris. 367 ; New tr.457. 
 
 Trial, 597. 
 
 Evidence, 138; Receiving stolen 
 
 property, 536, 537, 588. 
 Indictment, 833. 
 Larceny, 398. 
 Homicide, 317. 
 Homicide. 256, 272, 307; New 
 
 trial, 442, 460, 4C1. 
 Larceny, 382. 
 Aflfray, 17. 
 Attorney, 58. 
 
 Former acquittal or convic. 230. 
 Gaming, 239. 
 Gaming, 243. 
 Grand jury, 247. 
 Larceny, 373, 377, 382, 395. 
 Larceny, 383. 
 Verdict, 639. 
 Adultery, 15. 
 Gaming, 238. 
 Larceny, 392. 
 Gaming, 240.
 
 TABLE OF CASES. 
 
 815 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Windsor v. State, 13 Ind. 375 . 
 Windsor's Case, 4 Leigb, 680 
 Wininger v. State, 13 Ind. 510 . 
 Winter v. State, 30 Ala. 22 . 
 Wise V. State, 3 Kansas, 419 
 
 *" " 24 Ga. 31 . . 
 
 Witherby v. State, 39 Ala. 702 . 
 Witt V. State, 6 Cold. Tenn. 5 
 Wixon V. Peojjle, 5 Parker, 119 . 
 Wolf V. State, 19 Ohio, N. S. 485 . 
 
 " " 41 Ala. 412 .. . 
 
 Wolfstein v. People, 13 N. Y. Supm. X. S. 121 
 Wolverton v. State, 16 Ohio, 173 
 Womack v. State, 7 Cold. Tenn. 508 
 Wood V. People, 3 N. Y. Supm. N. S. 506; 8 lb 
 381; 59 N. Y. 117 
 53 N. Y. 511 . 
 Wood V. Phillips, 43 N. Y. 152 . 
 
 Wood V. Ross, 11 Mass. 271 
 Wood V. State, 46 Ga. 322 . 
 
 " " 5 Ind. 433 .. . 
 
 " " 48 Ga. 192 . 
 
 " " 2 Mo. 98 . 
 
 Woodburk v. Williams, 1 Blackf. 110 
 Woodcock V. Walker, 14 Mass. 386 
 Woodford v. State, 5 N. Y. Supm. N. S. 539 
 
 " " 1 Ohio, N. S. 427 . 
 
 Woodin V. People, 1 Parker, 464 
 Woods V. People, 55 N. Y. 515 ; IKY. Supm. "N. 
 
 S. 610 ; 1 Green's Or. Reps. 659 . 
 Woods V. State, 43 Miss. 364 . 
 Woodside v. State, 2 How. 655 
 Woodward v. Shaw, 18 Maine, 304 
 Wbrtham v. Com. 5 Ranfl. 669 • 
 
 Wreford v. Peo2)le, 14 Mich. 41 . 
 Wren v. Com. 26 Gratt. 952 . 
 Wright V. Lindsay, 20 Ala. 428 . 
 Wright V. People, 61 111. 382 
 Wright V. State, 5 Blackf. 358 . 
 
 " " 5 Iowa, 527 . . . 
 
 " " 61 111. 382; 2 Green's Cr. R. 558. 
 
 " " 41 Texas, 246 . 
 
 " " 4 Huraiih. 194 
 
 " " 30 Ga. 325 
 
 " " 34 Ga. 110 . 
 
 " " 5 Yerg. 154 
 
 " " 5 Ind. 290 . 
 
 Wroe V. State, 20 Oluo, N. S. 460 
 Wusing V. State, 33 Texas, 651 
 Wyatt V. State, 1 Blackf. 257 . 
 Wynhamer v. People, 20 Barb. 507; 13 N. Y. 378. 
 
 Malicious trespass, 434. 
 
 Gaming, 244. 
 
 Former acquittal or convic. 230. 
 
 License, 425. 
 
 Homicide, 298. 
 
 Larceny, 406; New trial, 459. 
 
 Statutes, 581. 
 
 Homicide, 272, 300. 
 
 Acces. 8 ; Evid. 158; Witness, 650. 
 
 Arrest, 22. 
 
 Larceny, 405 ; Misdemeanor, 440. 
 
 Larceny, 377. 
 
 Bigamy, 80. 
 
 Homicide, 268. 
 
 Bill of ex. 82, 83 ; Perj. 498, 504. 
 
 Indictment, 341. 
 
 Forcible entry and detainer, 192. 
 
 Arrest, 21. 
 
 Burglary, 87, New trial, 443. 
 
 Nuisance, 477. 
 
 Seduction, 550, 552, 553. 
 
 Witness, 655. 
 
 Bastardy, 72. 
 
 Bastardy, 76. 
 
 Arson, 23, 26, 30 ; Indict. 351. 
 
 Sentence, 556, 557. 
 
 Evi. 160; Rape, 522, 527, 528. 
 
 Rape, 520, 527. 
 New tiial, 455. 
 Homicide, 292. 
 Bastardy, 75. 
 
 Former acquit, or convic. 224,231. 
 Nuisance, 468. 
 Escape, 124. 
 Larceny, 378. 
 Misdemeanor, 439. 
 Adultery, 14. 
 As-^ault and battery, 57. 
 Embezzlement, 118. 
 Homicide, 292. 
 Indictment, 339; Rape, 519. 
 Malicious mischief, 434. 
 New trial, 459. 
 
 Receiving stolen property, 533. 
 Trial, 628. 
 Homicide, 293. 
 Trial, 622. 
 Larceny, 399. 
 
 Bill of exceptions, 81 ; Spir. liq. 
 sale of, 566, 577 ; Statutes, 578.
 
 810 
 
 TABLE OF CASES. 
 
 Title of Case and Report. 
 
 Subject and Page. 
 
 Yarborough v. State, 41 Ala. 405 
 YateS' Case, 4 Johns. 317 
 Yates V. Lansing, Jr. 9 Johns. 395 
 Yates V. People, 33 N. Y. 500 
 
 " 38 111. 527 .. . 
 
 Yates V. State, 10 Yerg. 549 . 
 
 " "37 Texas, 203 . 
 
 Yoe V. People, 49 111. 410 . 
 Yoes V. State, 4 Eug. 42 . 
 Young V. Com. 2 A. K. Marsh. 63 . 
 
 " 8 Bush, 36B; 1 Green's Cr. R. 710. 
 
 " " G Bush, 313 . 
 
 " "4 Gratt. 550 . 
 
 Young V. Shaw, 1 Chip. 334 . 
 Young V. State, 11 Humph. 300 
 
 " " 39 Ala. 357 . 
 
 Evi. 158; Larc'y,414; Pardon,495. 
 
 Habeas corpus, 249. 
 
 Habeas corpus, 351. 
 
 Evidence, 157; Homicide, 316. 
 
 Trial, 636. 
 
 Bill of excep. 83 ; Larceny, 401. 
 
 Larceny, 409. 
 
 Evidence, 132. 
 
 Ass. & batt. 32, 44 ; Misdem'r, 437 . 
 
 Bastardy, 76. 
 
 Evi. 144,148, 166; Homi. 266. 
 
 Evi. 151 ; Homicide, 295, 317. 
 
 New trial, 457. 
 
 Bail and recognizance, 59. 
 
 Homicide, 305, 313, 315, 321. 
 
 New trial, 449 ; Sentence, 554. 
 
 z 
 
 Zellers V. state, 1 Ind. 659 .... Comp't, 100; Forg. & count. 217. 
 Zschocke v. People, 62 111. 127 ; 3 Green's Cr. R. 560. Larceny, 373. 
 
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