(SflruFU Earn ^ti^ttnl Eihtarg KF 9619.05™"""''"'"'"-"'™^^ "f "^-'jpok of criminal procedure / 3 1924 020 200 840 I Cornell University tf Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020200840 Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows : 1. (§. 0uccincf efftfemenf of ftaUng pvincipiid in Mac&t fetter fupe. 2. (^ tvtore erten^eb commenfftru, efuctiiftfing f ^ imndpfee. 3. QloteB ftn^ ftuf^orifiee. Published in regular octavo form, and sold at the uniform price ot ^3-T5 9^^ uofume, tncfu^ing iefiuerg. (ltot» (gea^g; 1. (Uorfon on Q^tffe mt (n.ofe6(2^(E&.). 2. €far6'6 Ctiminftf featw. 3. ^^i}jmcin'6 €omm5n;£at» ^feft^mg (2^ (B&. ) 4. €farS on ConftMfe. 5. oSfftcft'e Consfifufioncvf &ftt». 6. Seffet on (Bquifg. T. CfarS on Cifiminttf ^roce^ure. 8. ^^iffftng on ^ftfes. 9. on $orf6. (2 uofs.) 11. Q^facft on 3nfeif|>refafton of feftt»0. 12. gftfe on Q0atftnenf0 and Cankxe. 13. ^mii^'e Cfemenffttrg £at». 14. ^ftfe on <©amftge0. 15. gopfttn0 on (Reaf ^rojjerfg. 16. 3^ftfe on ^orf0. 17. Zilfi^nt on ^er0on0 an'b 'S>)mt6iic (gefftfion0. ^0 foffoD): iiftnl)6oo60 of f^e &fti» of (Bfjtience, ^rs }}omtion0, €o^e ^feal)ing, (^cncg, Seliemf ^rocebure, ^arfnerB^i}?, ^riDafe 3nfemafionaf featw, @55mtm0fraj fton, 3n0urftnce, ^er0onftP ^roperfg. Wiff0, ^afenf0, (gquifg ^fea^ing, (g;rfrftortinftte (gemjbic0, (llegftgence, (glunictpaf €orpot'afion0, (Roman &cvt», ©f^er 0u6iecf in ipttpavation fo 6e announced fcifetr. n3?eet QpuBfiB^ing €0., ^t. (pauf, (QXinn. A2398 HAND-BOOK OF CRIMINAL PROCEDURE ±1:^ By WM. L. CLARK, Jr. Author of Clark's Hand-Book of Criminal Law and Clark's Hand-Book of the Law of Contracts St. Paul, Minn. WEST PUBLISHING CO. 189s BY WEST PUBLISHING COMPANY. TABLE OF CONTENTS. INTRODUCTION. (Pages 1-8.) CHAPTER I. JUEISDICTION. Cectlon 1-2. In General— Courts of Criminal Jurisdiction 3. Jurisdiction as Determined by Locality of Crime, or Venue. Page 4r-S 9-18 CHAPTER II. APPREHENSION OF PERSONS AND PROPERTY. 4. Arrest in General 19-21 5. Arrest by Wai-rant 21-22 6. Issuance of Warrant— Complaint 22-20 7. Sufficiency of Warrant 26-32 8. Execution of Warrant 32-34 9. Warrant as Protection to Officer 3-t-37 10-12. Arrest Without a Warrant 38-46 13. Assisting Officer 47-48 14. Hue and Cry 48 15. Time of Arrest -49 16. Notice of Purpose and Authority 49-50 17. Use of Force 51-52 18. Breaking Doors, etc ' 53-55 19. What Constitutes Arrest 55-56 20. Duty after Arrest 56-57 21. Authorized Arrest in Unauthorized Manner 58 22. Fugitives from Justice 59 ■23-25. International Extradition 59-61 26-29. Interstate Extradition 61-66 30-33. Searches and Seizures of Property 66-71 34. Taking Property from Prisoner. 71 CEiM.PEOO. (iii) IV TABLE OF CONTENTS. CHAPTER III. PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. Section Pag& 35. Preliminary Examination 72-85 36. Bail— In General 83-8& 3T-38. Riglit to Release on Bail 85-88 39. Sufficiency of Bail 88-9a 40. Remedy on Denial of Bail 90 41. The Bail Bond or Recognizance 91-95 42. Release of Sureties 96-97 43. Breach of Bond or Recognizance, or Forfeiture of Bail. . 98-100 44. Commitment 100-103 45. Habeas Corpus 103 CHAPTER IV. MODE OF ACCUSATION— TIME OP PROSECUTION— NOLLE PROSEQUI OR WITHDRAWAL. 46. In General of Mode of Accusation 104-105 47-48. Indictment and Presentment— The Grand Jury 105-127 49. Information 127-130 50. Coroner's Inquisition 130-131 51. Complaint 131-132 52-53. Time of Prosecution 132-134 54. Nolle Prosequi, or Withdrawal of Accusation 135-136 CHAPTER V. PLEADING— THE ACCUSATION. \ 55. Form of Indictment— In General 138-141 56. The Commencement 141-145 57. The Statement '. 145 58. Name and Description of Defendant 145-150 59. Statement of Offense — In General 150-153 60. Stating Ingredients of Oifense 153-156 61. Facts to be Stated, and not Conclusions of Law. .. .156-159 62. Identifying Offense 159-162 63. Mode of Averment— Argument and Inference 162-163 64. Unnecessary Matter 163-164 65. Facts Necessarily Implied from Facts Stated 164-165 TABLE OF CONTENTS. V Section PaKe 66. Facts Judicially Noticed 165 67. Conclusions of Law from Facts Stated 165-166 68. Matters of Evidence 166 69. Matters of Defense 166-168 70. Facts Particularly within Knowledge of Defendant. . 168 71. Facts not Known 168-169 72. Disjunctive or Alternative Allegations 169-171 73. Repugnancy 171-172 74. Englisli Language 172 75. Abbreviations 172-173 76. Use of Videlicet or Scilicet 173-174 77. Clerical or Grammatical Errors 174-175 78. Inducement 176 79. Innuendo 176-178 fiO. Surijlusage 178-185 CHAPTER VI. PLEADING— THE ACCUSATION (Continued). 81. Allegation of Intent 186-192 82. Allegation of Notice, Request, and Knowledge 192-195 83. Technical Terms and Phrases 195-203 84. Aggravating Circumstances— Second or Third Offense 203-205 «5-89. Setting Forth Writuigs 205-213 90. Setting Forth Spoken Words 213-214 91. Description of Real Property 214^-216 92. Description of Personal Property 216-227 93. Ownership of Property 227-231 94. Name and Description of Third Persons 231-236 CHAPTER VII. PLEADING— THE ACCUSATION (Continued). S5. Statement of Time 237-245 96. Statement of Place 245-251 97. Repeating Time and Place 251-255 CHAPTER Vni. PLEADING— THE ACCUSATION (Continued). 98. Indictments on Statutes 256-277 VI TABLE OF CONTENTS. CHAPTER IX. PLEADING— THE ACCUSATION (Continued). Section Page 99-103. Duplicity 278-285 104-110. Joinder of Counts— Election 286-300 111-113. Joinder of Parties 300-309 114. Conclusion of Indictment 309-314 115-116. Amendment 315-319 117. Aider by Verdict 319-322 118. Formal Defects Cured by Statute 322-325 CHAPTER X. PLEADING AND PROOF— VARIANCE— CONVICTION OF MINOR OF- FENSE, 119-121. Pleading and Proof— Variance 326-350 122. Conviction of Minor Offense 351-361 123. Conviction of Higher Ofeense 361 MOTION 124-126. 127-128. 129. 130. 131. 132. 133-135. 136-138. 139. 140. 141. CHAPTER XI. TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS OF DEFENDANT. Motion to Quash 362-366 The Arraignment and Pleas 366-372 Confession— Plea of Guilty— Nolo Contendere 372-374 Plea to the Jurisdiction 375 Plea in Abatement 375-379 Demurrer 879-381 Pleas In Bar 382 Pleas of Autrefois Acquit and Convict, or Former Jeop- ardy 382-407 lllea of Pardon 407 Agreement to Turn State's Evidence 408 Plea of Not Guilty— General Issue 408-409 CHAPTER Xn. TRIAL AND VERDICT. 142-143. Time of Trial— Continuance 410-418 144. Place of Trial— Change of Venue 418-421 TABLE OF CONTENTS. vu Section Page 145. Right to Public Trial 421^22 146-147. Custody and Restraint of Defendant : 422-423 148. Presence of Defendant 423-427 149. Insanity of Defendant 427^28 150. Furnishing Copy of Indictment and List of Jurors and Wit- nesses 428-429 151. Bill of Particulars 429-430 152. Loss of Indictment or Information 430 153. Presence of Judge. 430^31 154. Separate Trial of Joint Defendants 431^32 155. Consolidation of Indictments 432 156-157. Counsel 432-434 158. The Petit Jury— Right to Jury Trial, and Waiver 434-437 159. Number of Jurors 437-438 160. Selecting and Summoning Jurors 438 161-166. Qualification and Exemption of Jurors— Challenges 438-455 167. Swearing the Jury 455-456 168. Opening of the Case by Counsel 456 169. View by Juiy 457 170. Misconduct of Prosecuting Attorney *. 458-459 171. Misconduct of Judge 459^60 172-173. Summing up and Argument of Counsel 460-464 174-176. Instructions or Charge of the Court to the Jury 464^473 177. Demurrer to Evidence 473 178-180. Custody, Conduct, and Deliberations of Jury 474-480 181-185. The Verdict 480-491 CHAPTER Xni. PROCEEDINGS AFTER VERDICT. 186. Motion in Arrest of Judgment 492-494 187. Judgment and Sentence 494r-496 188. Cruel and Unusual Punishment 496-497 189. New Trial ^ 497-499 190. Writ of Error 500 CHAPTBE, XIV. EVIDENCE. 191. Facts In Issue .501-502 192-194. Facts Relevant to Facts in Issue 502-506 195. Facts Necessary to Explain or Introduce Relevant Facts. .506-507 Viii TABLE OF CONTENTS. Section I'^'S* 196. Motive 507-509 197. Preparation for Act 509 198. Subsequent Conduct or Condition of Defendant 510-511 199. Statements Accompanying Acts f>ll 200. Statements in tlie Presence of Defendant 511-512 201. Conduct and Complaint by Person Injured 512-513 202. Res Gestae 513-516 203. Other Crimes 516-520 204-206. Acts and Declarations of Conspirators 520-522 207. Hearsay 523 208. Declarations of Persons otlier than Defendant 523-524 209-210. Dying Declarations 525-527 211. Admissions and Declarations by Defendant 527 212-214. Confessions 528-532 215. Evidence Given in Former Proceeding 532-533 216. Opinion Evidence 534^-535 217. Expert Testimony 535-536 218. Character 536-538 219. Evidence Wrongfully Obtained 538 220-222. Presumption of Innocence— Burden of Proof 538-542 223. Witnesses — Competency— Examination 542-553 CHAPTER XV. HABEAS COEPUS. 224-228. In General 554-562 HANDBOOK OP CRIMINAL PROCEDURE. INTRODUCTION. Criminal procedure is the method fixed by law for the apprehen- sion and prosecution of a person who is supposed to have committed a crime, and for his punishment if convicted. The term is really included in the broader term "criminal law," but the latter refers more particularly to that branch of the law which declares what acts are crimes, and prescribes the punishment for committing them. "In the nature of things," says Mr. Bishop, "there is a differ- ence between a right and the means by which it is enforced; an obligation, and the legal steps by which the delinquent is made to atone for its violation; the law defining a crime, and the course of the court in punishing it. Out of this distinction grows the law of judicial procedure. It is that division of legal things under which are regulated the steps by which a legal right is vindicated or wrong punished." ^ The term "criminal procedure" includes pleading, evidence, and practice. The term "pleading" is sometimes popularly used to signify the oral advocacy of a cause in court by counsel, but in its technical sense, and with respect to criminal procedure, it signifies the pe- culiar science or system^ of rules and principles according to which the written allegations in a criminal prosecution — that is, the ac- cusation on the part of the state, and the responsive allegations on the part of the accused — are framed, so as to produce a proper issue for trial, and the word "pleadings" signifies these allegations them- selves. » 1 Bish. Cr. Proc. § 1. CRIM.PROC. — 1 2 INTRODUCTION. The term "evidence'' strictly signifies the matter presented at the trial of an issue, such as the testimony of witnesses, documents, etc., for the purpose of proving or disproving the fact alleged; or, as it is put by Greenleaf, it "includes all the means by which an al- leged matter of fact, the truth of which is submitted to investiga- tion, is established or disproved." ^ In its broader sense, however, it is used to signify, not only the probative matter, but the weight and effect of this matter or proof; and, farther than this, to signify the rules of law governing the admissibility or competency of the matter offered, and the order in which it should be introduced.* The term "practice" is usually employed as excluding both plead- ing and evidence, and to designate all the incidental acts and steps in the course of bringing matters pleaded to trial and proof, and procuring and enforcing judgment on them. As applied to crim- inal procedure, the term includes the rules which direct the course of the proceedings by which the accused is brought before the court, the conduct of the trial, and the proceedings after trial. Prevention of Offenses. The state never punishes for an offense until it is committed, and it is only of proceedings to punish offenders that this work is to treat; but it is well to mention the fact that there are circum- stances under which the law will interfere to prevent a threatened offense. This interference consists in obliging those persons whom there is probable ground to suspect of future misbehavior to stipu- late with and to give full assurance to the public that such offense as is apprehended shall not happen, by finding pledges or securities for keeping the peace or for their good behavior.* The person of whose conduct the law is apprehensive is bound, with or without sureties, in a. bond or recognizance to the state. This is taken by some court or judicial officer. The bond or recognizance is of the following nature:' The person bound acknowledges himself to be indebted to the state in the sum specially ordered, with a con- dition that the recognizance or bond shall be void if he appear in court on a day named, and in the meantime keep the peace either generally, or particularly, also, with regard to the person who seeks the security; or, as is more usual, the obligation may be » 1 Greenl. Bv. c. 1, i 1. * 4 Bl. Comm. 251. » Post, p. 501. » Harris, Cr. Law, 301. INTRODUCTION. d to keep the peace for a certain period, an appearance in court not being required. If it be for good behayior, then on condition that he demean and behave himself well, either generally or specially, for the time therein limited. If the condition is broken in the one case by any breach of the peace, in the other by any misbe- havior, the recognizance or bond becomes forfeited or absolute, and the party and his sureties become absolutely debtors to the state in the amount of the penalty. The mode of procedure is very gen- erally regulated by statute in the different states. 4 JUEISDICTION. t^^* ^ CHAPTER I. JURISDICTION. 1-2. In General— Courts of Criminal Jurisdiction. 3. Jurisdiction as Determined by Locality of Crime, or Venue. JURISDICTION IN GENERAL— THE COURTS. 1. There can be no valid prosecution for crime unless the court in -which it is carried on is legally created and constituted, and has jurisdiction of the offense and of the person of the defendant. 2. Jurisdiction cannot be conferred by the consent of the defendant. We have in another work considered the right of the state to punish for acts. This right depends upon whether the act is an offense against the state, and there is no question of procedure. The jurisdiction of a particular court within a state to take cog- nizance of an act which is an offense against the state, and which the state has a right to punish, is a question of procedure, and it is with this question that we are now to deal. The state punishes for offenses through the instrumentality of courts which it has created and invested with authority for this pur- pose. No court can try and punish for any offense unless it is a legal court; that is, unless it is legally created and legally con- stituted. If the statute attempting to create a court is clearly unconstitutional, or otherwise clearly insufficient, there is no legal court, and, if a court purporting to have been so created assumes jurisdiction of an offense, its proceedings and judgment are an absolute nullity.^ So if a statute creating a court provides that it 1 It has been held that where a court has been established by an act of the legislature which is apparently valid, and has gone into operation under such act, public policy demands that it shall be regarded as a de facto court, and that its judgments and proceedings shall not be open to collateral attack. Ch. 1] JURISDICTION IN GENERAL. 5 shall be constituted in a certain way, or shall sit at a certain place or time only, or shall be presided over by a certain number of judges, a court illegally constituted, as where it sits at some other place or time than that prescribed, or is presided over by less than the prescribed number of judges, is in fact no court at all, and its pro- ceedings and judgments are void.^ The court must be presided over by an authorized judge; but he need not be a judge de jure to render its judgments valid. If he is a judge de facto, and no objection is taken before judgment, its judgment will be valid.' And, generally, the judgments and proceedings of a de facto officer or court, where no objection was interposed to the jurisdiction, are valid.* If the court or judge is neither a de jure nor a de facto court or judge, the judgments are a nullity, and may be attacked at any time.^ Not only must the court be legally created and constituted, but it must have jurisdiction of the particular offense which it under- takes to punish. If it is not authorized to take cognizance of the offense at all, its judgment or action is a nullity for all 'purposes, and may be attacked at any time.* If the court has no jurisdiction by law to take cognizance of an offense, jurisdiction cannot be conferred upon it by the defendant in\ :'s/ There is much conflict on this question, and It would be beyond the scope of our work to go into it. The question is discussed at length, and the author- ities are collected, in 1 Blacli, Judgm. §§ 170-173, 254-258. 2 Jackson v. Com., 13 Grat. (Va.) 795; In re Ten-ill, 52 Kan. 29, 34 Pac. 457; State V. Roberts, 8 Nev. 239; Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; 1 Black, Judgm. §§ 173-178. It has been held that the fact that more than the prescribed number of Judges sit does not render the court illegal. Mc- Farlan v. People, 13 IlL 9. 3 State V. Bloom, 17 Wis. 521; Spradling v. State, 17 Ala. 440; 1 Black, Judgm. §§ 175, 176. *Id.; State v. Peyton, 32 Mo. App. 522; State v. Davis, 111 N. C. 729, 16 S. B. 540; 1 Black, Judgm. §§ 173-176. Old. 8 Com. v. Knowlton, 2 Mass. 580; Com. v. Johnson, 8' Mass. 87; Forsythe v. U. S., 9 How. 571; State v. Ridley (N. 0.) 19 S. E. 149; Cropper v. Com., 2 Rob. (Va.) 842; Rice v. State, 3 Kan. 141; State v. Grant, 34 S. C. 109, 12 S. B. 1070; State v. Cooper, 104 N. C. 890, 10 S. B. 510; Morris v. State, 84 Ga. 7, 10 S. E. 368. JURISDICTION. [Ch. 1 consent. Consent of the parties cannot supply want of jurisdic- tion.'' The court must also have jurisdiction of the person of the de- fendant. ' If the court is legally created and constituted, and it has jurisdic- tion of the offense and of the defendant's person, mere errors in the proceedings will not affect its jurisdiction, so long as it keeps within that jurisdiction. As said by the supreme court of the United States in a .late case, the "court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law within its jurisdiction, and when, in taking custody of the accused, and in its modes of procedure, and in rendering judgment, it keeps within the limitations pre- scribed by the law, customary or statutory. When it goes outside these limits, its action, to the extent of the excess, is void. Proceed- ing within these limits, its action may be erroneous, but is not void." « If a court has jurisdiction of the offense charged, its jurisdiction is not ousted by proof of a less offense, of which it could not have taken jurisdiction. On indictment for grand larceny, for instance, the defendant may be convicted of petit larceny, though the court would have had no jurisdiction of a charge of petit larceny.^" State Courts. The courts in the various states are created, and their jurisdiction is conferred and defined, by statutes, which must be consulted. Justices of the peace are given jurisdiction to examine persons T People v. Campbell, 4 Parker, Or. R. (N. Y.) 386; People v. Granice, 50 Cal. 547; Batchelder v. Currier, 45 N. H. 460; Mills v. Com., 13 Pa. St. 627; State V. Tolleston Club, 53 Fed. 18; Hager v. Falk, 82 Wis. 644, 52 N. W. 432. sAs to effect of illegality of arrest on jurisdiction, see post, p. 5a Irregu- larities in obtaining jurisdiction of the defendant's person are waived if he pleads to the indictment, and raises no objection. Post, p. 82; State v. Fitz- gerald, 51 Minn. 534, 53 N. W. 799; Ledgerwood v. State, 134 Ind. 81, 33 N. B. 631. = In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323. 10 People V. Rose (Super. Buff.) 15 N. Y. Supp. 815 j People v. Fahey, 64 Cal. 342, 30 Pac. 1030; Ex parte Bell (Cal.) 34 Pac. 641; State v. Fesperman, 108 N. C. 770, 13 S. B. 14; Winburn v. State, 28 Fla. 339, 9 South. 694. Ch. 1] JUKISDICTION IN GENEBAL. 7 accused of crime, and to admit them to bail, or commit them, to await trial in the higher court having jurisdiction to try and punish the offense. They are also given power to conserve the peace, and for that purpose to bind over to keep the peace, and for good be- havior, those persons whose conduct renders such a step proper.^^ They are also generally given exclusive and final jurisdiction of petty offenses, like vagrancy, disorderly conduct, etc., or are given concurrent jurisdiction with the higher court of certain offenses. In some cases the accused is given the right to appeal from the justice's decision to the higher court, where he has a trial de novo. Other inferior courts, such as the police courts in the larger cities, have been created, and are given the same jurisdiction as justices of the peace.^^ A coroner's court or inquest is held to inquire by a jury, generally of six men, into the cause of a death supposed to have been caused by violence.^' In all the states there is in each county a court of general orig- inal jurisdiction to try and punish for all offenses other than trifling offenses within the exclusive jurisdiction of justices of the peace. In some states it is called the "circuit court"; in others, the "district court"; in others, the "superior court", etc. In some states there are other courts between this and justices of the peace, such as county and corporation courts. In every state there is a court having jurisdiction, on appeal or writ of error, to review the judgment of the trial court. Federal Courts. The federal courts are the commissioners' court; the district and the circuit courts, the circuit courts of appeal, and the supreme court. The jurisdiction of the federal courts arises solely out of the constitution and the acts of congress. They have only such jurisdiction as is thus conferred. United States commissioners are charged, generally, with such functions in the federal government as devolve upon justices of the "Ante, p. 2. 12 See, as to justice's jurisdiction, Com. v. Harris, 8 Gray (Mass.) 470; Com. V. O'Connell, Id. 464. 18 Post, p. 130. 8 JURISDICTION. [Cb. 1 peace in the state goTemment. They are appointed and removable by the circuit courts.^* The district courts of the United States have jurisdiction, ex- clusive of the state courts, and concurrent with the circuit courts of the United States, of all offenses against the United States, not capital, committed within their respective districts or on the high seas.^" The circuit courts of the United States have exclusive jurisdiction of all capital offenses against the United States, and, concurrently with the district courts, of other offenses against the United States.^" The circuit courts of appeals have appellate jurisdiction of crimes on writ of error to the circuit or district court.^' The supreme court of the United States has appellate jurisdiction in the following cases : (1) On writ of error to the district or circuit court to review convictions of a capital or otherwise infamous ^' crime; ^* (2) to review a decision of the circuit court of appeals in a case certified to it by the latter, or caused by the supreme court to be certified;^" (3) where the judges of a circuit court differ in opinion, and certify the case to the supreme court; "^ (4) on writ of error to the state court of highest resort in certain cases; "^ (5) by writ of habeas corpus, aided by writs of certiorari, where a person is without authority detained in custody under color of the au- thority of the United States.''' " Rev. St. U. S. §§ 627, 1014, et seq. IB Rev. St. U. S. § 5G3. 18 Rev. St. U. S. § '629. par. 20. IT 26 Stat 827. 18 An "infamous crime" is any crime pmilshable by death or imprisonment In the penitentiary. Post, p. 107. i» 26 Stat. 827. 20 26 Stat 828. ^1 Rev. St U. S. § 651. 2 2 Rev. St V. S. §§ 709, 710. 28 Rev. St U. S. §§ 763, 764. Ch. 1] VENUE. JUHISDICTION AS DETERMINED BY LOCALITY 0¥ CRIME, OR VENUE. 3. As a rule, prosecutions must be instituted and car- ried on in tlie county in which the crime -was committed, and it is generally deemed to have been committed in the county in -which it -was consummated. There are a fe-w exceptions to the rule, even at common la-w, and many exceptions have been made by statute. The county in -which the oflfense -was committed is called the "venue." We have in another work considered the question of locality of crime as determining the jurisdiction or right of the state to punish at all.^* The question as determining -what court within the state has jurisdiction remains to be considered. It has always been the rule of the common law that an offense/ must be prosecuted in the county in which it was committed,^? though there have been exceptions. The chief reason of the rule was that the accused was entitled to a jury from the county in which the offense was committed. Formerly, where an offense was commenced in one county and consummated in another, the offender could not be tried at all.^° If a mortal blow was given in one county, and the party died of the blow in another, it was doubted whether he could be punished; for it was supposed that a jury of the first county could not take cognizance of the death, and a jury of the second county could not take cognizance of the blow.^^ Most of the courts, however, have held that there is jurisdiction in such casss, considering that the crime is committed where the blow or poison is given, and 2« Clark, Cr. Law, 357. SB 1 Chit Cr. Law, 189; 4 Bl. Oomm. 303; 2 Hawk, P. C. c. 25, §§ 35, 51; Rex V. Jones, 6 Oar. & P. 137; Hughes v. State, 35 Ala. 351; State v. Jones, 8 N. J. Law, 307, 9 N. J. Law, 357. And see the cases hereafter referred to. 2 6 1 Chit Cr. Law, 177; 1 Hale, P. C. 651, 652; 2 Hawk. P. C. c. 25, §§ 36, 40; Cro. Car. 488. 2T 1 East, P. C. 361; 2 Hawk. P. C. c. 25, § 36; Green v. State, 66 Ala. 40. 10 JURISDICTION. [Ch. 1 that the prosecution must be in that county."' A few courts have held that it is not committed until death occurs, that the death is the consummation of the crime, and that the prosecution must be in the county of the death.^" These questions, in so far as homicide is concerned, were set at rest in England by St. 2 & 3 Edw. VI. c. 24, which is old enough to have become a part of our common law. This statute provided that in cases of striking and poisoning in one county, and death ensuing in another, the offender may be indicted, tried, and punished in the county where the death ensued. And similar statutes have been enacted in some of our states.'" In other states he must be prosecuted in the county where the poison or blow was given.'^ In others it is pro- vided that the prosecution may be in either county."^ These statutes, fixing the county in which offenses may be prose- cuted, even though they allow prosecution in a county other than that in which the-offense was committed, are constitutional. '' Larceny is committed where the property is taken and carried away. But at common law, if a person steals goods in one county, and carries them into another, he may be prosecuted in either; for it is considered that the possession of the stolen goods by the thief is a larceny in every county into which he carries them, because, the legal possession still remaining in the owner, every moment's con- tinuance of the trespass and felony amounts to a new taking and 2 8 1 Hale, P. C. 426; 1 East, P. C. 361; Green v. State, 66 Ala. 40; Rex v. Hargrave, 5 Car. & P. 170; Riley v. State, 9 Humph. (Tenn.) 646; State v. Carter, 27 N. J. Law, 499; People v. Gill, 6 Cal. 637; State v. Gessert, 21 Minn. 369. 2 9 See Com. v. Macloon, 101 Mass. 1, and authorities there cited. so Com. v. Parker, 2 Picli. (Mass.) 550; Stoughton v. State, 13 Smedes & M. (Miss.) 255. 81 Stout V. State, 76 Md. 317, 25 Atl. 299. 8 2 State V. Pauley, 12 Wis. 537; State v. Stewart, 60 Wis. 587, 19 N. W. 433; Hicks v. Territory (N. M.) 30 Pac. 872. 8 8 Com. V. Parker, 2 Pick. (Mass.) 550. And see Dula v. State, 8 Yerg. (Tenn.) 511; Archer v. State, 106 Ind. 426, 7 N. E. 228; Tippins v. State, 14 Ga. 422; Steerman v. State, 10 Mo. 503; State v. Pauley, 12 Wis. 537; Tyler V. People, 8 Mich. 320; Com. v. Macloon, 101 Mass. 1; State v. Johnson, 38 Ark. 568; Green v. State, C6 Ala. 40; Hanks v. State, 13 Tex. App. 288; Ham V. State, 4 Tex. App. 645; Adams v. People, 1 N. Y. 173. Ch. 1] VENUE. 11 asportation.'* The rule is expressly so declared by statute in some states. The offense of obtaining property by false pretenses is committed, not where the pretenses are used, but where the property is ob- tained.^" It has been held that the crime of embezzlement is committed where the property is appropriated," but by the weight of au- thority this is not always so. It was said by the Ohio court, in a late case, that "if the entire transaction constituting the embezzle- ment occurred in one county only, the venue, as matter of course, should be laid therein; but, if the transaction extended to differ- ent counties, the authorities generally hold that the jurisdiction of the county in which the act of conversion occurred is not exclusive"; S4 4 Bl. Comm. 305; 2 Hale, P. O. 163; 1 Chit. Or. Law, 178; 2 East, P. C. 771, 772; Com. v. Cousins, 2 Leigh (Va.) 708; Com. v. De Witt, 10 Mass. 154; People v. Gardner, 2 Johns. (N. Y.) 477; State v. Hunter, 50 Kan. 302, 32 Pac. 37; People v. Staples, 91 Cal. 23, 27 Pac. 523; Massie v. Com., 90 Ky. 485, 14 S. W. 419; Tippins v. State, 14 Ga. 422; Crow v. State, 18 Ala. 541; Com. V. Rand, 7 Mete. (Mass.) 475; State v. Douglas, 17 Me. 193. Some courts apply the doctrine where goods are stolen in one state and brought into an- other. Com. V. Andrews, 2 Mass. 14; Rex v. Peas, 1 Root (Conn.) 69; State T. Bartlett, 11 Vt 650; State v. Underwood, 49 Me. 181. But see People v. Gardner, 2 Johns. (N. Y.) 477; People v. Schenck, Id. 479; Simmons v. Com., 5 Bin. (Pa.) 617; State v. Brown, 1 Hayw. (N. C.) 100; Twombley v. Hum- phrey, 23 Mich. 480, and cases there cited; Stanley v. State, 24 Ohio St. 172; State V. Le Blanch, 31 N. J. Law, 82; Simpson v. State, 4 Humph. (Tenn.) 456; Beall v. State, 15 Ind. 378; State v. Reonnals, 14 La. Ann. 278. 8 5 Rex v. Burdett, 4 Barn. & Aid. 179; Stewart v. Jessup, 51 Ind. 413; Com. v. Van Tuyl, 1 Mete. (Ky.) 1; People v. Adams, 3 Denio (N. Y.) 190; Norris V. State, 25 Ohio St 217; Connor v. State, 29 Pla. 455, 10 South. 891; Sims V. State, 28 Tex. App. 447, 13 S. W. 653. And see State v. ShaefCer, 89 Mo. 271, 1 S. W. 293; Com. v. Wood, 142 Mass. 459, 8 N. E. 432. As to procuring goods by means of an innocent agent in another county, see post, p. 14. That the venue is in the county where the goods were delivered to a carrier consigned to the defendant, see Norris v. State, supra. 86 People V. Murphy, 51 Cal. 376. And see State v. New, 22 Minn. 78. In the latter case the question was not decided, but, conceding it to be neces- sary to show the appropriation In the county of the prosecution, it was held that where it is shown that money was received by an employe from his em- ployer in that county, and that he failed to account for it, and there Is noth- ing to show that he carried it out of that county, it will be assumed that the misappropriation was in that county, without express proof to that effect 12 JURISDICTION. [Ch. 1 and the court held that where a contract of employment was made in L. county, by which the defendant was authorized to sell goods for his employers in S. county, and to account therefor in S. county, and goods were sent from his employers' place of business in L. county, to the defendant in S. county, and were sold in S. county by the defendant, and the proceeds converted to his own use, part in S. county, and part in another state, the defendant could be pros- ecuted in L. county.^^ The venue of robbery is the county in which the property is taken. Where, for instance, a person is seized in one county, and carried into another, and there forced to surrender money, the venue of the robbery is in the latter county.^* If a person robs another in one county, and carries the goods into another county, it would only be larceny in the latter, for the other essentials of robbery are not committed there.*® The place of prosecution for forgery is in the county where the instrument was forged. An indictment will not lie at common law in another county, in which the offender is found with the instru- ment, or in which he utters it.*" But, according to some of the cases, possession of the instrument in one county may raise a pre- sumption that it was forged there, if there is nothing to show the contrary.*^ In some states, by statute, the prosecution may be in any county where the instrument was forged or used or passed.*^ The uttering of a forged instrument in another county, by means of an innocent agent, like the post oflflce, for instance, will be presently considered.** 8T State v. Bailey, 50 Ohio St. 636, 36 N. B. 233; citing Cohen v. State, 20 Tex. 224; State v. Small, 26 Kan. 209; 1 Blsh. Cr. Proc. § 61; Campbell v. State, 35 Ohio St. 70; Rex v. Taylor, 2 Leach, 974; Reg. v. Murdock, 8 Bng. Law & Eq. 577; Reg. v. Rogers, 3 Q. B. Div. 28. And see State v. Haskell, 33 Me. 127. 8 8 Sweat V. State, 90 Ga. 315, 17 S. B. 273. 80 1 Hale, P. C. 507, 508; 2 Hale, P. C. 163. 40 2 East, P. C. 992; Com. v. Parmenter, 5 Pick. (Mass.) 279; Spencer v. Com., 2 Leigh (Va.) 751. *i Spencer v. Com., supra; U. S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,- 650. Contra, Com. v. Parmenter, supra. 42 Mason v. State, 32 Tex. Cr. R. 95, 22 S. W. 144, 408. 4 3 Post, p. 15. Ch. 1] VENUE. 13 It would seem that the offense of sending a threatening letter is committed in the county in which it is dispatched, as where it is sent by mail, though it is receiyed in another county, since the sending of it completes the offense; and so it has been held.** But there are authorities to the effect that if a person, by an innocent agent, like the post oflQce, sends a threatening letter into another county, where it is delivered, the venue may be laid in the latter county.*" Prosecutions for libel must be in the county of publication.*' As we shall see, if a person authorizes the publication of a libel by either an innocent or a guilty agent, he is guilty of a publication in any county in which the libel is published; *^ and it has been held that if a person composes a libel in one county, with intent to publish it in another, and afterwards does so publish it, he may be indicted in either.** At common law, prosecutions for bigamy must be in the county where the bigamous marriage was entered into; and such is the law in many of our states.** But by a statute in England, which is old enough and applicable enough to be a part of our common law, it was provided that persons guilty of bigamy may be tried in any county in which they are arrested. ^^ In some states the statute punishing bigamy makes the offense continuous, so that the parties may be punished in any county in which they are found in a bigamous state."^ *4 Landa v. State, 26 Tex. App. 580, 10 S. W. 218. This Is not like the utter- ing of a forged instrument, for there is no utterance of a forged Instrument until the instrument is transferred. Post, p. 15. *o Post, p. 15. *8 Rex V. Johnson, 7 East, 68; Rex. v. Watson, 1 Camp, 215, 216; Com. v. Blanding, 3 Pick. (Mass.) 304. *7 Rex v. Johnson, 7 East, 65. And see Rex v. Brisac, 4 East, 164; Com. V. Blanding, 3 Pick. (Mass.) 304. Post, pp. 14, 16. *8 Rex v. Burdett, 4 Barn. & Aid. 95. *8 1 Hale, P. C. 693; People v. Mosher, 2 Parker, Cr. R. (N. Y.) 195; Finney V. State, 3 Head (Tenn.) 544; Walls v. State, 32 Ark. 565; Beggs v. State, 55 Ala. 108; Brewer v. State, 59 Ala. 101; Brown v. State (Tex. Cr. App.) 27 S. W. 137. BO 2 Jac. I. c. 11. 61 State V. Johnson, 12 Minn. 476 (Gil. 378); State v. Palmer, 18 Vt. 570; Com. V. Bradley, 2 Cush. (Mass.) 553. 14 JURISDICTION. [Ch- 1 By the weight of authority, if a nuisance is erected in one county, and affects the public in another, the offender may be prosecuted in either county."' The venue of abduction for the purpose of concubinage is in the county where the woman was induced or forced to go away; '^ and the same is true of the crime of inveigling a person with intent to cause him to be sent out of the state.''* Crimes Committed while Personally Absent — Innocent Agent — Principal and Accessary. It is not always necessary that a person shall be present in a county in order to commit a crime there. If a person while in one county commits a felony or other crime through an innocent agent in another, he himself commits the crime in the latter."' Thus, if a person in one county should by means of an innocent agent, and this innocent agent may be the post office, obtain goods in another county by false pretenses, he himself, as principal, commits the offense in the latter county, and may be there punished."" If a man stands in one county, and, by throwing or shooting across the line into another, assaults or kills a person standing in the latter county, he is guilty of the homicide or assault in the latter county."'' So, if a person, while in one county, causes a libel to be published by 52 2 Hawk. P. 0. c. 25, § 37; Scott v. Brest, 2 Term R. 241; Scurry v. Free- man, 2 Bos. & P. 381; Com. v. Lyons, 3 Pa. Law J. 167; State v. Lord, 16 N. H. 357; Rex v. Burdett, 4 Barn. & Aid. 175, 176. But see, contra. State V. Eldred, 46 Wis. 530. 53 State V. Johnson, 115 Mo. 480, 22 S. W. 463. B* In re KeUy, 46 Fed. 653. BBl Hale, P. C. 430, 431, 615, 617; Anon., J. Kel. 53 (poisoning); People v. Rathbun, 21 Wend. (N. Y.) 509; People v. Adams, 3 Denio (N. Y.) 207; Reg. T. Michael, 9 Car. & P. 356. 66 People V. Adams, supra; People v. Rathbun, supra; Johns v. State, 19 Ind. 421; State v. Chapin, 17 Ark. 561. BTi Hale, P. C. 475; 1 East, P. C. 3G7. And see People v. Adams, 3 Denio (N. Y.) 207. On this principle, It was held by the Georgia court in a late case that the offense of shooting at another took effect and was committed in Georgia where a person standing on the South Carolina shore of the Sa- vannah river aimed and fired a pistol at another, who was at the time in Georgia, though the ball missed him, and struck the water near his boat Simpson v. State (Ga.) 17 S. E. 984. Ch. 1] VENUE. 15 an innocent agent in another, he may be prosecuted in the latter."' The offense of uttering a forged instrument is committed where it is transferred or received by the person to whom it is uttered, and, therefore, if a forged instrument is mailed in one county to a per- son in another, where it is received, or is otherwise transferred in another county through an innocent agent, it is uttered in the lat- ter, ''° and it has been held that the offense is not committed partly in each county.'" The same rule has been applied to the sending of threatening letters, by an innocent agent like the post office, into another county; °^ but it would seem that, since the sending com- pletes the offense, the offense is committed where the letter is mailed, and so it has been held."'' There is much doubt in the older authorities as to whether a per- son, who in one county is accessary to a felony perpetrated by a guilty agent in another, can be prosecuted in the latter as an acces- sary."' The subject was covered in England by a statute (2 & 3 Edw. VI. c. 24), providing that where a felony is committed in one county, and any other person shall be accessary in another, the lat- ter may be indicted where his particular criminality existed as if the felony had been committed there."* This statute is old enough to have become a part of our common law. It will be noticed, how- ever, that it merely permits the prosecution in the county in which the accessary acts, and does not say that he may not be indicted in the other county. The Texas court, in an able judgment, has held that the courts of a county in which a crime is committed have jurisdiction to try and punish an accessary, though all the acts con- stituting him an accessary were committed in another county.'" 58 Com. V. Blandlng, 3 Pick. (Mass.) 304. The same is true where it is pub- lished by a guilty agent. Post, p. IG. 9 People V. Rathbun, 21 Wend. (N. Y.) 509; State v. Hudson, 13 Mont 112, 32 Pac. 413; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680. «o State V. Hudson, supra; People v. Rathbun, supra. 61 1 Chit. Cr. Law, 191; Rex v. Girdwood, 1 Leach, Crown Cas. 142: 2 East, P. C. 1120. 6 2 Landa v. State, 26 Tex. App. 580, 10 S. W. 218. 6 3 2 Hale, P. C. 62, 63. «4 1 East, P. C. 362. en Carlisle v. State, 31 Tex. Cr. R. 537, 21 S. W. 358. 16 JURISDICTION. [Ch. 1 And in New York there is a similar decision, though perhaps based particularly on the fact that by statute in that state accessaries are made guilty as principals.*" It seems to be well settled that, in misdemeanors, persons who take such a part in the crime as would render them liable as acces- saries were the crime a felony, but who are liable as principals be- cause it is a misdemeanor, may be prosecuted in the county where the crime was committed, though they were acting in another coun- ty.'^ A person, therefore, who, while in one county, causes a libel to be published, by means of a guilty agent in another, may be punished in the latter."* Offenses Committed Near the Boundary Line. Because of the necessity to charge the offense to have been com- mitted in the county in which the prosecution is instituted, and to prove its commission as laid, it was found that, in prosecutions for crimes committed near the boundaries of two or more counties, the defendant often escaped punishment for defect of the proof in this respect. It has therefore been provided by statute in most jurisdictions that, in an indictment for a felony (in some states for other offenses) committed on the boundary or boundaries of two or more counties, or within a certain distance (500 yards, for in- stance) therefrom, it shall be sufficient to allege that the crime was committed in either or any of said counties, and the crime may be inquired of, tried, and determined in the county within which it shall be so alleged to have been committed."^ Offenses Partly in One County and Partly in Another. It is sometimes provided by statute that, where a crime is com- mitted partly in one county and partly in another, the offender may be indicted, tried, and punished in either. Under such a statute, if a man promises in one county to marry a woman, and on the same 8 People V. Wiley, 65 Hun, 624, 20 N. Y. Supp. 445. 67 Rex v. Brisac, 4 East, 164; Com. v. Gillespie, 7 Serg. & E. (Pa.) 469; 1 Blsh. Cr. Proc. § 57. 6 8 Hex V. Brisac, supra; Rex v. Jolmson, 7 East, 65; Rex v. Burdett, 4 Barn. & Aid. 95. 6 9 1 Chit. Cr. Law, 184; People v. Davis, 56 N. Y. 95; State v. Stewart, 60 Wis. 587, 19 N. W. 433; Buckrlce v. People, 110 111. 29. Ch. 1] VENUE. 17 day takes her into another county, and there seduces her under such promise, he may be prosecuted in either county.'" And where a conspiracy to take the life of a person is formed in one county, and in pursuance thereof he is there seized and bound, and is car- ried into another county and there killed, the murder may be prose- cuted in either country.'^ And the same is true where an assault is committed — that is, a blow or poison given — in one county and death results in another.'^ These statutes do not change the rule that a person who, while absent, commits a crime through an innocent agent, must be prose- cuted where the crime was committed. It does not apply, therefore, where a forged instrument is mailed in one county, and received in another, but in such a case the prosecution for uttering the in- strument must be in the latter.' ' Locality of Crime against United StatesJ* There are various provisions in the constitution of the United States and acts of congress securing the right to be tried where the offense was committed. Thus it is declared that trials shall be held "in the state where the said crimes shall have been committed ; but, when not committed within any state, the trial shall be at such place or places as the congress may by law have directed"; '" and that persons accused of crime shall have the right to trial by a jury of the state and district wherein the crime shall have been commit- ted, which district shall have been previously ascertained by law.'' And there are various provisions by act of congress." ~ Crimes com- mitted on the high seas, or elsewhere out of the jurisdiction of any particular state or district, are to be tried in the district where the offender is first found, or into which he is first brought.'* TO People v. Crotty (Sup.) 9 N. Y. Supp. 937. 11 Archer v. State, 106 Ind. 426, 7 N. E. 225. '2 Archer v. State, supra; Green v. State, 66 Ala. 40. Ts state V. Hudson, 13 Mont 112, 32 Pac. 413. T 4 As to locality as determining right to prosecute at all, see Clark, Cr. I^aw, 357. 75 Const U. S. art 3, § 2. TB Amend. Const V. S. art. 6. TT See Rev. St TT. S. §§ 661, 662, 729. T8 Eev. St U. S. § 730. CBIM.PKOC. — 3 18 JUKISDICTION. [Ch. 1 Change of Venue. In most, if not in all, the states, there are statutes providing for a change of the place of trial to another county, where certain grounds are shown.'"' This is called a "change of venue." »» Post, p, 418. Ch. 2] AEEEST. 19 CHAPTER II. APPREHENSION OF PERSONS AND PROPERTY. 4. Arrest in General. 5. Arrest by Warrant 6. Issuance of Warrant— Complaint 7. Sufficiency of Warrant 8. Execution of Warrant 9. Warrant as Protection to Officer. 10-12. Arrest Without a Warrant 13. Assisting Officer. 14. Hue and Cry. 15. Time of Arrest 16. Notice of Purpose and Authority. 17. Use of Force. 18. Breaking Doors, etc 19. What Constitutes Arrest 20. Duty after Arrest 21. Authorized Arrest in Unauthorized Manner. 22. Fugitives from Justice. 23-25. International Extradition, 26-29. Interstate Extradition. 30-33. Searches and Seizures of Property. 34. Taking Property from Prisoner. ABREST. 4. An arrest is the taking of a person into custody to answ^er for a crime. It may be made — (a) By virtue of a warrant issued by a competent au- thority. (b) Under some circumstances, ■without a warrant. When a crime has been committed, the first thing to be done is to secure the body of the offender so that he may be forthcoming for his trial, or, in other words, to arrest him. The arrest may be made in two ways. It may be made by virtue of a warrant of arrest, issued by a competent authority, and directing the apprehension of 20 APPKEHENSION OF PEESONS AND PROPERTY. [Ch. 2 the offender; or it may, under some circumstances, be made with- out a warrant. We shall deal first with arrests by warrant, ex- cluding, however, those questions which relate to arrests generally. We shall then deal in the same way with arrests without a war- rant, and, finally, with those questions which relate to arrests gen- erally, whether by or without a warrant. At the outset, for the pur- pose of showing the importance of the subject, it may be well to state shortly the rights and liabilities of parties with reference to arrests. Rights and Liabilities of Parties — Lawful Arrest. If an arrest is authorized, and is attempted or made in a pronoi' manner, the person making it, whether he be, as we shall presently explain, an officer or a private person, merely performs his duty, and he incurs no liability whatever.^ On the contrary, the law throws its protection around him. The person sought to be ar- rested, if he resists, is criminally liable for the mere resistance,* and also both civilly and criminally liable for assault and battery, if he goes so far.* If he, or a person assisting him, in his resistance, kills the person making the arrest, the homicide is murder.* If a person unlawfully departs from custody after he has been law- fully arrested, he is guilty of a misdemeanor known as an "es- cape"; " and if he breaks from his place of imprisonment, or forcibly escapes, he is guilty of a misdemeanor or a felony, according to cir- cumstances, known as a "prison breach." « If third persons inter- fere in aid of the person sought to be arrested, the bare interference constitutes a misdemeanor.^ If they use force, they are also guilty of an assault and battery, and, if the person making the arrest is killed, they are guilty of murder.* If they procure the escape of 1 state v. Hull, 34 Conn. 132; State v. Pugh, 101 N. 0. 737, 7 S. E. 757; Clark, Cr. Law, 211. 2 People V. Haley, 48 Mich. 495, 12 N. W. 671; Clark, Cr. Law, 325. 8 People V. Haley, supra. * Rex V. Ford, Russ. & R. 329; Mockabee v. Com., 78 Ky. 380; People v. Pool, 27 Cal. 572; Roberts v. State, 14 Mo. 138; Clark, Cr. Law, 161. State V. Leach, 7 Conn. 452; Clark, Cr. Law, 327. 8 State V. Murray, 15 Me. 100; Com. v. Filburn, 119 Mass. 297; Clark, Cr. Law, 328. T Clark, Cr. Law, 325. 8 Clark, Cr. Law, 161 ; note 4, supra. Ch. 2] ARREST BY WARRANT. 21 the prisoner after his arrest, they are guilty of a misdemeanor or felony known as a "rescue." ' Same — Unlawful Arrest. On the other hand, if an arrest or attempt to arrest is illegal, either because there is no authority to arrest at all, or because the arrest is made in an unlawful manner, as, for instance, by the use of unnecessary violence, the person arresting, whether he be an oflScer or a private person, and whether the arrest is attempted or made with or without a warrant, is guilty of an assault and battery or false imprisonment, and is both civilly and criminally liable therefor.*" An unlawful attempt to arrest or a false imprisonment may be lawfully resisted by any necessary force short of taking life or inflicting grievous bodily harm.** Even when life is taken in resisting, the attempt to arrest or the imprisonment is deemed sufiScient provocation to reduce the homicide to manslaughter.*" Within certain limits, not very clearly defined, third persons, par- ticularly relatives, may interfere to prevent an unlawful arrest or imprisonment.** Habeas Corpus. If a person is illegally arrested or detained in custody, he may obtain his release by petition to the proper court or judge for a writ of habeas corpus. This remedy will be considered in a sep- arate chapter. AREEST BY WARRANT. 5. A warrant is a -writ or precept, issued by an author- ized magistrate, addressed to a proper officer or person, requiring him to arrest the body of an offender, or sus- pected offender, therein named, and bring him before a proper magistrate, to be dealt with according to law^. » Clark, Cr. Law, 329. 10 State V. Parker, 75 N. C. 249; Bums v. State, 80 Ga. 544, 7 S. E. 88; Slomer v. People, 25 111. 70; Clark, Cr. Law, 211, 218. 11 Massie v. State, 27 Tex. App. 617, 11 S. W. 638; Drennan v. People, 10 Mich. 169; Clark, Cr. Law, 109, 213. 12 Yates V. People, 32 N. Y. 509; Drennan v. Pfeople, 10 Mich. 169; Reg. v. Thompson, 1 Moody, Crown Cas. 80; Drew's Case, 4 Mass. 391; RafCerty v. People, 69 III. Ill, 72 111. 37; Clark, Or. Law, 109. 18 Clark, Cr. Law, 147, 157. 22 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 In all of the states, either by statute or at common law, warrants of arrest may be issued by any justice of the peace, or other magis- trate who is given similar powers, on a proper complaint being made before him, for the arrest of a person who has committed a crime within his jurisdiction, or is reasonably suspected of having com- mitted it. Warrants are generally issued by justices of the peace or police magistrates, but they may also, at common law as well as by statute in most states, be issued by a judge of any court of record. If possible, a warrant should be obtained in all cases, but, as we shall presently see, there are cases in which an arrest may be made without a warrant, even when there is time and opportunity to ob- tain one. Generally, in cases of misdemeanor, a warrant is neces- sary. We shall best consider the necessity for a warrant in treat- ing of arrests without a warrant. SAME— ISSUANCE OF WARRANT— COMPLAINT. 6. To authorize the issuance of a -wrarrant before indict- ment, there must be made before the proper magistrate a proper complaint, on oath or affirmation, shovdng that a crime has been committed, and that there is probable cause to suspect the accused. After indictment, the usual prac- tice is to issue a bench -warrant. An arrest under an insuflScient warrant is in effect an arrest without any warrant at all, and if a warrant is necessary it is illegal. All the consequences of an illegal arrest or attempt to ar- rest follow. The sufaciency of a warrant, therefore, is an important question. The requisites are generally prescribed by statute, but in many respects the statutes are merely declaratory of the com- mon law. We will deal with the question with reference to the common law, but will call attention to any important changes which have been made by statute. Where an indictment has been found against a person, a justice of the peace or other competent authority can issue a warrant for the arrest of the accused, on the production to him of a properly au- thenticated copy thereof. The general practice, however, is for the Ch. 2] ARREST BY WARRANT. 23 judge or clerk of the court in wMcli the indictment is pending to is- sue a bench warrant, directing the accused to be arrested and brought before some proper magistrate. It was 9,t one time thought that a warrant of arrest could not be issued until after indictment/* but it has long been" settled to the contrary.^' A warrant may issue to bring a person before a magistrate for examination, and determination of the question whether he should be held to await action by the grand jury. But, to enable a magistrate to issue a warrant in the first instance, — that is, before indictment, — it is necessary, not only under the con- stitution and by statute in most jurisdictions, but also at common law, that a proper complaint under oath or aflflrmation shall be laid before the magistrate, in order that he may determine that a crime has been committed, and that there is probable cause to sus- pect the accused. Without such a showing, a warrant should never be issued.^* The constitutions of the United States and of most of the states declare that the people shall be secure from un- reasonable arrests, and that no warrant shall issue to arrest any person without describing him as nearly as may be, nor without probable cause supported by oath or affirmation. This is substan- tially a declaration of what has always been the common law. Sufficiency of the Complaint. A form for a complaint made before a justice of the peace to pro- cure the issuance of a warrant is given below.* At common law as well as by statute in most states, and under the constitutional provision above mentioned, the complaint must be made under the oath or affirmation of the complainant, or of r* 4 Inst. 176; 2 Hawk. P. 0. 84; 1 Chit. Cr. Law, 12. IB 2 Hale, P. C. 108; 4 Bl. Comm. 290; 1 Chit. Cr. Law, 13. And see cases hereafter cited. 16 4 Bl. Comm. 290; Caudle v. Seymour, 1 Q. B. 889; State v. Wimbush, 9 S. C. 309; Wells v. Jackson, 3 Munf. (Va.) 479; State v. Mann, 5 Ired. (N. C.) 48. • State (or Commonwealth) of , County of . to wit. A. B., upon oath, complains that on the day of , A. D. , C. D., In the county of , in said state (or commonwealth), (or in the county aforesaid), did feloniously steal, take, and carry away one overcoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B. (or of any other person who may have been, the' owner). The said A. 24 APPBEHENSION OF PBKSONS AND PROPERTY. [Ch. 2 some other witness on his behalf. The oath or affirmation is es- sential." By statute in many of the states it is also required to be reduced to writing. In some it is expressly required that the magistrate, after examining on oath the complainant and any witness produced by him, shall reduce the complaint to writing, and cause it to be subscribed by the complainant. It seems, however, that this provision is merely directory, in so far as it provides for reduc- tion to writing by the magistrate himself, and that the writing may be done by the complainant or any other person.^ ° In other states it is merely provided that the magistrate shall examine the complainant and his witnesses on oath. The complaint is not re- quired to be reduced to writing.^* Writing is not necessary at common law.^" B., therefore, prays that the said C. D. may be apprehended, and held to answer the said complaint, and to be further dealt with according to law. Dated this the day of , A.. D. . [Signed] A. B. State (or Commonwealth) of , County of , to wit I, X. y., a justice of the peace, of the county aforesaid, do certify that on this day, in said county, personally appeared before me the said A. B., whose name is signed to the foregoing complaint, dated on this day of , A. D. , and, being duly sworn, deposes and says that the facts stated in said complaint are true. Given under my hand this day of , A. D. . X. Y., J. P. The forms will differ in some respects, under the practice or statutes of the various states. 17 State V. Wimbush, 9 S. C. 309; Caudle v. Seymour, 1 Q. B. 889; Daniels V. State, 2 Tex. App. 353. But see State v. Killet, 2 Bailey (S. C.) 289. It has been held that the oath cannot be administered by the magistrate's clerk, but must be administered by the magistrate himself. Lloyd v. Sta1;e, 70 Ala. 32; Poteete v. State, 9 Baxt (Tenn.) 261. But see, contra. State v. Louver, 26 Neb. 757, 42 N. W. 762. 18 Gen. St Mass. c. 170, § 10; Rev. St 111. 1874, p. 401, § 348. As to sub- scription and jurat, see Com. v. Wallace, 14 Gray (Mass.) 382; "Webb v. State, 21 Ind. 236; Com. v. Quin, 5 Gray (Mass.) 478. A complainant who cannot write may subscribe by making his mark. Com. v. Sullivan, 14 Gray (IV^ass.) 97; Sale v. State, 68 Ala. 530. i» People V. Lynch, 29 Mich. 278; People v. Becktel, 80 Mich. 623, 45 N. W. .582. 211 See cases above cited. Ch. 2] ARREST BY WARRANT. 25 Ordinarily, any person is competent to make a complaint if he is capable of understanding tlie nature of an oath or afilrmation, and so competent to testify, for it is the wrong against the public, and not against the individual, that is to be considered and punished.^^ It is no objection to a complaint, therefore, that it was made by a convict.''^ An insane person or a child of very tender years would no doubt be incompetent, as he could not understand the nature of an oath or affirmation.''^ By statute, in some jurisdictions, it is provided, on grounds of public policy, that a complaint for adul- tery can only be made by the injured husband or wife.^* "Complaint" is a term which is applied, not only to the accusation made for the purpose of procuring a warrant, but also to the accusa- tion upon which an oflEender is put upon his trial before a magis- trate, or other inferior court, for offenses within the latter's juris- diction to punish.^ ° The latter complaint is more in the nature of an indictment or information, and is very different from a complaint for the purpose of procuring a warrant. What would suffice in the latter may not be sufficient in the former, so the distinction must be borne in mind.^* Some of the text books confuse the two.^^ The complaint for the purpose of an arrest and examination need not be as specific as an indictment, information, or complaint on which the accused is to be tried and punished.^* It should, how- ever, contain a full description of the offense charged with a rea- 21 People V. Stokes, 24 N. Y. Supp. 727; State v. Killet, 2 Bailey (S. C.) 289. 22 State v. Killet, supra; People v. Stokes, supra. But see Walker v. Kear- ney, 2 Strange, 1148. 28 Whart. Cr. Bv. §§ 366-376. 2* State V. Roth, 17 Iowa, 336; State v. Brecht, 41 Minn. 50, 42 N. W. 602. 2 5 Post, p. 131. 2 6 Com. V. Phillips, 16 Pick. (Mass.) 211. 27 Tbis caution is deemed necessary, for the reason that some of the books virtually ignore the distinction, and assume that there is no difference in their requisites. See Rap. Cr. Proc. § 7. A complaint on which a person is to be put upon his trial before a magistrate, and possibly upon a trial de novo on appeal to the district or circuit court, requires the same certainty of allegation as an indictment, and we shall consider its sufficiency when we come to treat of the indictment. We are here concerned only with the com- plaint necessary for the purpose of arrest and commitment 28 Com. V. Phillips, 16 Pick. (Mass.) 211. 26 APPREHENSION OF PERSONS AND PROPERTY. [yh. 2 sonable degree of certainty." It has been said that it need not allege positively that the accused has committed the crime ; that it will be sufficient to state that there are reasonable grounds to suspect that he has committed it;'" but by the weight of au- thority it is not enough to aver suspicion merely, or belief on infor- mation received from others. There must be an averment of per- sonal knowledge of facts and of belief. ^^ Evidence to Authorize Issuance. Under the constitutional provision which we have already men- tioned, and which is merely declaratory of the common law, a war- rant of arrest cannot be issued except on probable cause, supported by oath or affirmation. In other words, the complaint or evidence adduced before the magistrate must show that the -crime charged has been committed, and that there is probable cause to suspect the accused. It is also very generally so provided by statute in the different states. If a warrant is regular on its face, however, and was issued by a magistrate having jurisdiction, it is not rendered illegal by the fact that the proof before the magistrate was not sufficient to justify its issuance.'* SAME— SUFFICIENCY OF WARRA-NT. 7. The -w^arrant, to authorize an arrest — (a) Must have been issued by a magistrate having jurisdiction. (b) It may, in the absence of statutory restriction, be issued on Sunday, and at any time of the day or night, 29 State T. Burrell, 86 Ind. 313; Housh v. People, 75 111. 487; In re Way, 41 Mich. 299, 1 N. W. 1021. so Com. V. Phillips, 16 Pick. (Mass.) 214; Housh v. People, 75 111. 487. 81 Smith V. Boucher, Cas. t. Hardw. 69; Com. v. Lottery Tickets, 5 Gush. (Mass.) 369; People v. Recorder, 6 Hill (N. Y.) 429; In re Way, 41 Mich. 299, 1 N. W. 1021; Swart v. Kimball, 48 Mich. 443, 5 N. W. 635; People v. Heffron, 53 Mich. 527, 19 N. W. 170; State v. Hobbs, 39 Me. 212; Connor v. Com., 3 Bin. (Pa.) 38; Welch v. Scott, 5 Ired. (N. C.) 72; Comfort v. Fulton, 39 Barb. (N. Y.) 56. 82 State V. James, 80 N. C. 370; post, p. 34. Ch. 2] AEEEST BY WARRANT. 27 (c) It must in some, but not all, jurisdictions be un- der seal. (d) It must state the offense, and an offense for which an arrest may be made. (e) It must show authority to issue it, as that a complaint on oath or affirmation w^as made. (f) It must correctly name the person to be arrest- ed, or, if his name is unknown, so describe him that he may be identified. (g) It must show the time of issuance. (h) It must be directed to a proper officer, either by name or by description of his office. (i) It must direct, and not merely authorize, the arrest. (j) It must command the officer to bring the accused before the issuing magistrate or some other magistrate having jurisdiction. (k) Clerical errors and formal defects will not ren- der it insufficient. The form of a warrant of arrest is given below.* Jurisdiction. The magistrate or judge issuing the warrant must have jurisdic- tion of the subject-matter. A warrant issued without any juris- diction at all, or in excess of jurisdiction, or a warrant issued by a * State (or Commonwealth) of , County of , to wit To the Sheriff or Any Constable of Said County: Whereas, A. B. has this day made complaint and information on oath be- fore me, X. X., a justice of the peace of the county aforesaid, that C. D., on the day of , A. D. , in said county, did feloniously steal, take, and carry away one oyercoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B.: These are therefore to command you (or now, therefore, you are com- manded) forthwith to apprehend and bring before me, or some other jus- tice of said county, the body of the said C. D.. to answer said fomplaint, and to be further dealt with according to law. Given under my hand and seal, this day of , A. D. . X. Y., J. P. [Seal.1 28 APPEEHENSION OF PERSONS AND PBOPERTY. [Ch. 2 person not a magistrate, as where a blank warrant ia filled up by a private person, is illegal and void.*' Time of Issuance. A warrant may be issued on Sunday as well as on any other day, in the absence of statutory provision to the contrary; ** and it may be issued at any time of the day or night. As we have already seen, it may be issued before the accused has been indicted.'" Form and Contents of Warrant. Not only must the warrant be issued by a magistrate or judge hav- ing jurisdiction to issue it, and on a sufficient complaint, but it must be sufficient in form. By the weight of authority, it must be not only under the hand of the magistrate or judge, but also under his seal.'* In some jurisdictions, however, a seal is not deemed necessary, even at com- mon law,'^ and in others it has been declared unnecessary by statute. The warrant must state shortly the offense for which the arrest is to be made, or recite the substance of the accusation, and, of course, it must state an offense for which an arrest may lawfully be 3 8 Wells V. Jackson, 3 Munf. (Va.) 479; RafiEerty v. People, 69 111. Ill, 72 111. 37; State v. Bryant, 65 N. C. 327; State v. Shelton, 79 N. O. 605. siPearce v. Atwood, 13 Mass. 347; post, p. 49. A warrant may be Issued on Sunday, whenever an arrest may be made on Sunday, "for, if the arrest is authorized by law, the order to make such arrest must likewise be law- ful." Pearce v. Atwood, supra. 3 Ante, p. 23. 36 4 Bl. Comm. 290; Tackett v. State, 3 Terg. (Tenn.) 393; Welch v. Scott, 5 Ired. (N. C.) 72; State v. Worley, 11 Ired. (N. C.) 242; State v. Drake, 36 Me. 306; State v. Coyle, 33 Me. 427; People v. Holcomb, 3 Parker, Cr. R. (N. y.) 656; Beekman v. Traver, 20 Wend. (N. Y.) 67; State v. Goyette, 11 R. I. 592; Lough v. Millard, 2 R. I. 436; State v. Weed, 1 Post. (N. H.) 268; State v. Curtis, 1 Hayw. (N. C.) 471; Somervell v. Hunt, 3 Har. & McH. (Md.) 113; State v. Caswell, Charlt. (Ga.) 280. A wafer or scroll sufficient, if in- tended as a seal. State v. McNally, 34 Me. 210; State v. Thompson, 49 Mo. 188. sTPadfield v. Cabell, Willes, 411; Burley v. Griffith, 8 Leigh (Va.) 447; Davis v. Clements, 2 N. H. 390; Thompson v. Fellows, 1 Post. (N. H.) 430. In some of these cases, the warrant was not for arrest,* but for commitment. See State v. Drake, 30 Me. 360. Ch. 2] AKREST BY WARRANT. 29 made.^* It should state the time of commission of the offense. It has been held, however, that a statement that the ofEense was com- mitted on a day later than the date of the warrant, as where a war- rant issued in March, 1878, stated the offense to have been com- mitted on May 20, 1878, instead of May 20, 1877, does not render the warrant invalid, where the complaint gives the correct date pre- vious to its issuance, as the mistake is merely clerical, and not mis- leading.'' It must contain recitals showing authority to issue it, as, for in- stance, that a complaint under oath or affirmation has been made.*" This is probably not necessary under the statutes in some jurisdictions. It must be specific, and correctly name the person to be arrested, giving his Christian name; or, if his name is unknown, it must so state, and must describe him so that he may be identified.** 8 8 Money v. Leach, 1 W. Bl. 555; Caudle v. Seymour, 1 Q. B. SS9; Peo- ple V. Phillips, 1 Parker, Cr. R. (N. Y.) 104; People v. Mead, 92 N. Y. 415; Duckworth v. Johnston, 7 Ala. 578; Brazleton v. State, C6 Ala. 96; Johnson V. State, 73 Ala. 21; In re Booth, 3 Wis. 1; State v. Hobbs, 39 Me. 212; Brady V. Dayis, 9 Ga. 73; State v. Kowe, 8 Rich. Law (S. C.) 17; State v. Leach, 7 Conn. 452; State v. Whltaker, 85 N. C. 566; State v. Jones, 88 N. C. 671; Floyd V. State, 7 Eng. (Ark.) 48; State v. Everett, Dud. (S. C.) 295; Moore V. Watts, 1 Breese (111.) 42. The place where the crime was committed must be stated with a reasonable degree of certainty. Price v. Graham, 3 Jones (N. C.) 545. A warrant for larceny must state the value of the stolen prop- erty, so that it may appear whether the lower or the higher court has juris- diction. People V. Belcher, 58 Mich. 325, 25 N. W. 303. 3 Heckman v. Swartz, 64 Wis. 48. 24 N. W. 473. 40 Caudle v. Seymour, 1 Q. B. 889; Smith v. Bouchier, 2 Strange, 993; Brady v. Davis, 9 Ga. 73; Grumon v. Raymond, 1 Conn. 40; State v. Wim- bush, 9 S. C. 309; Gold v. Bissell, 1 Wend. (N. Y.) 213; Tracy v. Williams, 4 Gonn. 107; Com. v. Ward, 4 Mass. 497; Conner v. Com., 3 Bin. (Pa.) 38: Halsted v. Brice, 13 Mo. 171. 41 Com. V. Crotty, 10 Allen (Mass.) 403; West v. Cabell, 153 U. S. 78, 14 Sup. Ct. 752 (collecting authorities); Rex v. Hood, 1 Moody, Crown Cas. 281; Mead v. Haws, 7 Cow. (N. Y.) 332; Money v. Leach, 1 W. Bl. 555; Alford v. State, 8 Tex. App. 545; Miller v. Foley, 28 Barb. (N. Y.) 630; Brady v. Davis, 9 Ga. 73; Nichols v. Thomas, 4 Mass. 232; Wells v. Jackson, 3 Munf. (Va.) 458; Hoye v. Bush, 1 Man. & G. 775; Griswold v. Sedgwick, 6 Cow. (N. Y.) 456; Gumsey v. Lovell, 9 Wend. (N. Y.) 319; Melvin v. Fisher, 8 N. H. 407; Scott V. Ely, 4 Wend. (N. Y.) 555; Clark v. Bragdon, 37 N. H. 562; Johnston 30 APPREHENSION OF PERSONS AND PROPEBTY. [Ch. 2 This is not only required by the common law, but is also rendered necessary by the constitutional provision to which we have referred, and a statute dispensing with the requirement would be void. A general warrant to apprehend all persons suspected of a crime, as, for instance, to apprehend the authors, printers, and publishers of a libel, without naming them, is void.*^ In England, under stat- utes which are old enough to have become a part of our common law, general warrants to take up loose, idle, and disorderly per- sons, such as prostitutes, vagrants, drunkards, and the like, are an exception to this rule.*^ With us, under our constitutional provi- sions, such a warrant would no doubt be void, but there are in most jurisdictions statutes and ordinances allowing such arrests without any warrant at all. This, it is held, does not violate the constitution.** The warrant, it has been held, must state, or at least show, the time of issuance; *° must be directed to a proper officer by name, ♦■. Riley, 13 Ga. 97, 137; Scheer v. Keown, 29 Wis. 586; Wilks v. tiorck, 2 Taunt. 400; Haskins v. Young, 2 Dev. & B. (N. C.) 527. The arrest of a person by a wrong name cannot be justified, though he was the person In- tended, unless it be shown that he was known by one name as well as the other. Shadgett v. Clipson, 8 Bast, 328; Mead v. Haws, supra; Griswold V. Sedgwick, 6 Cow. (N. Y.) 456; Wilks v. Lorck, 2 Taunt. 400. The fact that a proper name is misspelled does not render the warrant insufficient, if the true name and the name as given are idem sonans. People v. Gosch, 82 Mich. 22, 46 N. W. 101. It has been held, however, that, under statutes al- lowing amendments in criminal proceedings and process, where a person has been arrested under a complaint and warrant giving a wrong name, they may be amended so as to give his name correctly. It was so held where Mary B. Keehn had been arrested under a complaint and warrant against Jenny M. Keehn, and action was brought for false imprisonment Keehn v. Stein, 72 Wis. 196, 39 N. W. 372. If this decision is a good one, the statutes in this respect are dangerous. They clearly contravene the constitutional provisions as to the issuance of warrants, unless the above decision be lim- ited to cases in which the accused, though misnamed in the warrant, is suf- ficiently described. 42 Money v. Leach, 1 W. Bl. 555; 4 Bl. Comm. 291; Com. v. Grotty, supra. *8 Money v. Leach, 3 Burrows, 1766. *4 Post, p. 39. 45 Donahoe v. Shed, 8 Mete. (Mass.) 326. Ch. 2] AREEST BY WAEEANT. '61 or a proper class of oflflcers by the description of their ofQce;*' must direct, and not merely authorize, the arrest; *^ and must com- mand tlie ofiScer to bring the accused before the proper magistrate, to be dealt with according to law.** Clerical errors and merely formal defects will not render the war- rant insuflScient.** Variances between the warrant and complaint may be cured by amending the warrant, even after the preliminary examination of the accused."" Before Whom Warrant Returnable. The warrant must order the officer to bring the accused either before the issuing magistrate or judge, or some other magistrate or Judge having jurisdiction of the subject-matter."*^ Though there was at one time some doubt on the subject, the propriety of mak- ing the warrant returnable before a magistrate or judge, other than the one who issued it, is well settled,"^ and is very generally expressly authorized by statute. It must, however, be returnable before some magistrate or court having jurisdiction of the subject- matter."* Life of Warrant — Alteration. A warrant remains in force until it i^eturned. Until then, even though the accused has been arrested, it is still in force,^^ that, 4 6 Wells V. Jackson, 3 Munf. (Va.) 458; Abbott v. Booth, 51 Barbel. T.) 546; State v. Wenzel, 77 Ind. 428. But see Com. v. Moran, 107 Mass. 23m^ *7 Abbott V. Booth, 57 Barb. (N. Y.) 546. ^ ■*8 Reg. V. Downey, 7 Q. B. 281. Use in the mandate of a warrant of the phrase, "to be dealt with according to law," instead of, "to answer such •complaint," as provided by statute, is a mere informality, which does not affect the validity of the warrant. Bookhout v. State, 66 Wis. 415, 28 N. W. 179. 48 Com. V. Murray, 2 Va. Cas. 504; Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473; Com. t. Martin, 98 Mass. 4; Donahoe v. Shed, 8 Mete. (Mass.) 326; State V. Jones, 88 N. C. 671; Johnson v. State, 73 Ala. 21. But see State v. Lowder, 85 N. 0. 564; State v. Whitaker, Id. 566. 00 People V. Hilderbrand, 71 Mich. 313, 38 N. W. 919. Bi Reg. V. Downey, 7 Q. B. 281. 02 Foster's Case, 5 Coke, 59; 2 Hale, P. C. 112; Com. v. Wilcox, 1 Cush. (Mass.) 503. And the statutes, where they have not provided otherwise, are held not to have changed the common law in this respect Com. v. Wilcox, supra. 08 Stetson v. Packer, 7 Cush. (Mass.) 562. 32 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 should he escape, it would justify his rearrest.^* After it has been returned, it is functus oflScio, and no longer of any validity."" No alteration can be made in a warrant by any person other than the magistrate who issued it. Any material alteration by another magistrate, before whom it is returnable, or by any other person, renders it invalid."* SAME— EXECUTION" OP THE WARRANT. 8. As regards the execution of the warrant' by making the arrest — (a) It can only be executed by the officer to "whom it is directed either by name or by description of office. (b) It cannot confer authority to execute it on one offi- cer, -where a statute provides for its execution by another, (c; Unless a statute so allo-ws, it cannot be executed outside the jurisdiction of the issuing magistrate or court. " (d) Perhaps it may be directed to and executed by a private person. As to this there is a conflict in the authorities. (e) Where the warrant is necessary, it must be in the possession of the officer at the time of the arrest. (f) It must be returned after the arrest. The person executing a warrant must be authorized to execute it, or the arrest will be illegal." When a warrant is directed to an officer by the description of his office, he can execute it only within e« Cooper v. Adams, 2 Blackf. (Ind.) 294; Com. v. Sheriff, 1 Grant, Cas. (Pa.) 187. BBCom. V. Roark, 8 Cush. (Mass.) 210; Tubbs v. Tukey, 3 Gush. (Mass.) 438. BO Haskins v. Young, 2 Dev. & B. (N. C.) 527. 07 Reynolds v. Orvis, 7 Cow. (N. Y.) 269, Wood v. Ross, 11 Mass. 271. Ch. 2] ARREST BY WARRANT. 33 his own precinct; but, when it is directed to an officer by name, he may execute it anywhere within the jurisdiction of the magistrate or judge who issued it.°' A warrant at common law cannot confer authority to execute it outside of the jurisdiction of the issuing magistrate or judge. A warrant, therefore, issued by a justice of the peace or judge of one county, must be backed or indorsed by a justice of the peace or judge of another county before it can be executed in the latter."* In some states, however, the statutes provide that a warrant, issued either by a judge of a court of record or by a justice of the peace of a county in which an offense is com- mitted, shall extend all over the state, and may be executed in any county without having it indorsed, the ofQcer to whom it is directed being given the same authority in any other county as he has in his own. Where a statute provides that certain arrests shall be made by a certain officer or class of officers, a warrant for such an arrest cannot confer authority to execute it upon any other officer or class of officers.'" A warrant is ordinarily directed to a sheriff, constable, or other peace officer, but, according to the weight of authority, it may at common law be directed to a private person by name, in which case, of course, he would in respect to its execution stand in the same position as an officer."^ There are some cases which hold that it cannot be directed to a private person, at least if its execution by an officer is possible.'" »8 Wbart. Or. PI. & Prac. § 2; Blatcher v. Kemp, 1 H. Bl. 15, note; Rex V. Chandler, 1 Ld. Raym. 546; Rex v. Weir, 1 Barn. & C. 288; Krug v. Ward, 77 111. 603; Lawson v. Buzines, 3 Har. (Del.) 416. 50 4 Bl. Comm. 291. It is so provided by statute in some states. Peter v. State, 23 Tex. App. 684, 5 S. W. 228; Ledbetter v. State, 23 Tex. App. 247, 5 S. W. 226; State v. Doolcy (Mo. Sup.) 26 S. W. 558. 80 Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood v. Ross, 11 Mass. 271. «i4 Bl. Comm. 291; 1 Hale, P. C. 581; 2 Hale, P. C. 110; 2 Hawk. P. C. c. 13, § 28; Meek v. Pierce, 19 Wis. 300; Rex v. Kendall, 1 Ijd. Raym. 66; Kelsey v. Parmelee, 15 Conn. 265; Blatcher v. Kemp, 1 H. Bl. 15; Case of Village of Chorley, 1 Salk. 176; Com. v. Keeper, 1 Ashm. (Pa.) 183; Me- Cpnnell v. Kennedy, 29 S. C. 180, 7 S. E. 76. 62 Com. V. Foster, 1 Mass. 488; Noles v. State, 24 Ala. 672. CKIM.PROC. — 3 34 APPEEHENSION OF PERSONS AND PEOPERTY. [Ch. 2 The officer or person executine a warrant must have it in his pos- session at the time of the arrest/' and after he has made the arrest the warrant must be returned."* An officer may call upon others to assist him in the execution of a warrant, and they are bound to obey the command. The officer's authority in this respect is not different from his authority in mak- ing a lawful arrest without a warrant, so we will postpone consider- ation of the question. Other questions relating to arrests generally, whether with or without a warrant, such as notice of purpose and authority, use of force, and the like, will also be hereafter consid- ered. SAME— WARBANT AS PROTECTION TO OFFICER. 9. An officer is not liable for executing a -warrant which is regular and valid on its face, and issued from a court or magistrate having jurisdiction of the subject-matter, though the Avarrant may 'in fact have been voidable, or even void; but he is not protected by a ■warrant void on its face. ' It is obvious that the administration of justice would be greatly retarded if an officer receiving a warrant which is regular and valid on its face should be compelled, at his peril, to examine into the circumstances under which it was procured, and determine the validity of the proceedings prior to its issuance. It is therefore oniversally held that an officer, to whom a warrant is directed and asCodd v. Cabe, 1 Exch. Dlv. 352; Webb v. State, 51 N. J. Law, 189, 17 Atl. 113; Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62. In tlie latter case an officer, to whom a warrant had been delivered, was held civilly liable because his deputy naade the arrest without having the warrant in his pos- session. As to the officer's liability, however, the case has been reversed. Id., 86 Tex. 102, 23 S. W. G45. It was affirmed in so far as it held possession of the warrant by the officer making the arrest necessary. See, also, Smith V. Clark, 53 N. J. Law, 197, 21 Atl. 491. «4 Slomer v. People, 25 111. 70; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741. Failure of the officer in this respect will, not render those lawfully assisting In the arrest liable. Dehm v. Hinman, supra. Ch. 2] AREEST BY WARRANT. 35 delivered, is bound to execute it, so far as the jurisdiction of tlie magistrate or court and himself extends, if it was issued by a magis- trate or court having jurisdiction, and is regular and valid on its face."" Being charged with this duty, he cannot be held liable to the party arrested for executing the warrant, though it may have been irregularly or wrongfully issued.'* "It will not do to require of executive officers, before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal process; as officers so situated would be necessarily obliged to judge for them* selves, and would often judge wrong, as to the lawfulness of the au- thority under which they are required to act. It is a general and known principle that executive officers, obliged by law to serve legal writs and processes, are protected in the rightful discharge of their duty, if those precepts are sufficient in point of form, and is- sue from a court or magistrate having jurisdiction of the subject- matter. If such a magistrate shall proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury consequent upon such act." ''' It has been said that "it is the general rule that when the au- thority under which an officer acts is voidable only, he is justified by it, but not when the authority is void"; '' but the protection of the warrant extends further than this. An officer may even be justified by a void warrant, if the defect does not appear. "No doc- trine is more firmly established than this, namely, that an officer 8 5 Stoddard v. Tai-bell, 20 Vt. 321, and cases hereafter cited. 86 Sandford v. Nichols, 13 Mass. 286; State v. Weed, 1 Fost. (N. H.) 262; Nichols v. Thomas, 4 Mass. 232; Kennedy v. Duncklee, 1 Gray (Mass.) 65; Pearce v. Atwood, 13 Mass. 324; Wilmarth v. Burt, 7 Mete. (Mass.) 257; Parsons v. Lloyd, 3 Wils. 345; Boyd v. State, 17 Ga. 194; Allison v. Rheam, 3 Serg. & R. (Pa.) 139; Warner v. Shed, 10 Johns. (N. Y.) 138; Parker v. Walrod, 16 Wend. (N. Y.) 514; Savacool v. Boughton, 5 Wend. (N. Y.) 170; Cooper V. Adams, 2 Blackf. (Ind.) 294; Brother v. Cannon, 1 Scam. (111.) 200; Robinson v. Harlan, Id. 237; State v. Kirby, 2 Ired. (N. C.) 201; Cody V. Quinn, 6 Ired. (N. C.) 191; State T. Jones, 88 N, 0. 671; Cooley, Torts, 459, and cases there cited. 8T Sandford v. Nichols, supra. 8 8 Nichols V. Thomas, supra. 36 APPREHENSION OF PEESONS AND PEOPEETY. [Ch. 2 may justify acts done by him under a process that is void, unless it appears on its face to be void, as well as acts done under a process that is voidable, and has been avoided." °° If the warrant is illegal and void on its face, the officer not only is not bound to execute it, but if he does so, or attempts to do so, he will be both civilly and criminally liable for the assault and bat- tery or false imprisonment, and all the other consequences of an illegal arrest or attempt to arrest will follow.'"' Amendable de- fects do not avoid the warrant, and therefore do not render the officer liable; but he is liable if the magistrate or judge had no jurisdiction of the subject-matter,^^ provided the want of jurisdic- tion is not latent; ^'^ or where the warrant does not state a specific offense for which an arrest may lawfully be made;'' or where a seal is omitted when required by law; '* or where the warrant does not name the accused when his name is known, or so describe Mm when his name is unknown that he may be identified;'" or, pos- «9 Kennedy v. Duncklee, supra. And see Parsons v. Lloyd, supra; Alli- son V. Rheam, supra; People v. Warren, 5 Hill (N. Y.) 440. 70 Rafeerty v. People, 69 111. Ill; Parker v. Walrod, 16 Wend. (N. Y.) 514; Grumon v. Raymond, 1 Conn. 40; Griswold v. Sedgwick, 6 Cow. (N. Y.) 456; Rex v. Hood, 1 Moody, 281; Noles v. State, 24 Ala. 672; Gurney v. Tufts, 37 Me. 130; State v. McDonald, 3 Dev. (N. C.) 468; Moore v. Watts, Breese (111.) 42; State v. Crow, 6 Eng. (Ark.) 642. 71 State V. McDonald, 3 Dev. (N. O.) 471; Allen v. Gray, 11 Conn. 95; Sprague v. Birchard, 1 Wis. 457; Camp v. Moseley, 2 Fla. 171; Barnes v. Barber, 1 Gilm. (111.) 401; McDonald v. Williie, 13 111. 22; TefCt v. Ash- baugh, Id. 602; State v. Shelton, 79 N. C. 605; Tracy v. Williams, 4 Conn. 107; Miller v. Grice, 1 Rich. (S. C.) 147; Stephens v. Wllkins, 6 Pa. St. 260. 7 2 Pearce v. Atwood, 13 Mass. 324; Savacool v. Boughton, 5 Wend. (N. Y.) 170; Churchill v. Churchill, 12 Vt. 061; Miller v. Grice, 1 Rich. (S. 0.) 147; Rodman v. Harcourt, 4 B. Mon. (Ky.) 230; Barnes v. Barber, 1 Gilman (111.) 401. A constable is justified in executing process regular on its face, though the officer issuing it was but an officer de facto. Wilcox v. Smith, 5 Wend. (N. Y.) 231; Com. v. Kirby, 2 Cush. (Mass.) 577. Knowledge by the officer of facts rendering the warrant void for want of jurisdiction does not raider him liable, if the want of jurisdiction does not appear on the face of the warrant. People v. Warren, 5 Hill (N. Y.) 440; post, p. 37. 7 8 Ante, p. 28. 74 Ante, p. 28. 7e Ante, p. 29. Ch. 2] ARREST BY WARRANT. 37 sibly, where no complaint under oath was made for the issuance of the warrant, and the warrant does not state that it was made.'" By the weight of authority, the mere fact that the officer knows that the warrant was obtained for an unlawful purpose, or was illegally issued, does not give him the right to refuse to execute it, and therefore does not render the warrant any the less a protection to him, provided it is valid on its face. He must be governed by the warrant alone.'''' If he acts without his jurisdiction, or the jurisdiction conferred by the warrant,''* or if the warrant is not directed to him, or, though it is directed to him, he is not authorized by law to execute it,'° it will afford him no protection. The fact that the accused is exempt from arrest does not render the officer liable, if the fact does not appear on the face of the warrant.*" It seems that under no circumstances is the warrant any protection to the officer if it is not returned.*^ It is sufficient in all cases, to render the officer liable, that the warrant shows on its face facts or a form which renders it insuffi- cient in law, whether the officer knows of the insufficiency or not, for he is conclusively presumed to know the law.'* T 8 Ante, p. 29. If there was a complaint under oath, the fact that it was false is immaterial. State v. James, 80 N. C. 370. Insufficiency of the com- plaint not appearing upon the warrant does not render the officer liable. Donahoe v. Shed, 8 Mete. (Mass.) 326; State v. Mann, 5 Ired. (N. O.) 45; Welch v. Scott, Id. 72; Humes v. Taber, 1 R. I. 464. 77Tarlton v. Fisher, 2 Doug. 671; State v. Weed, 1 Fost. (N. H.) 262; Webber v. Gay, 24 Wend. (N. Y.) 485; People v. Warren, 5 Hill (N. Y.) 440; Watson V. Watson, 9 Conn. 140; Gott v. Mitchell, 7 Blackf. (Ind.) 270; Wil- marth v. Burt, 7 Mete. (Mass.) 257; Whitworth v. Clifton, 1 Moody & R. 531. 7 8 Ante, p. 32; People v. Burt, 51 Mich. 199, 16 N. W. 378. 7 9 Ante, p. 32; Freegard v. Barnes, 7 Exch. 827; Russell v. Hubbard, 6 Barb. (N. Y.) 654; Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood v. Ross, 11 Mass. 271. 80 Tarlton v. Fisher, 2 Doug. 671; Carle v. Delesdernier, 13 Me. 363; Chase y. Fish, 16 Me. 132. 81 Slomer v. People, 25 111. 70; Brock v. Stimson, 108 Mass. 520; Tubbs v. Tukey, 3 Gush. (Mass.) 438; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741. But see Com. v. Tobin, 108 Mass. 426. Persons lawfully assisting the officer, however, will not be liable. Dehm v. Hinman, supra. «ii Sandford v. Nichols, 13 Mass. 286. 38 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 SAME— ARREST WITHOUT A WARRANT. 10. BY OFFICER — Any peace ofiacer may arrest without a warrant trnder the following circumstances: (a) By verbal direction of a judge or justice of the peace — (1) For a felony or breach of the peace committed in the presence of the judge or justice. (2) For any offense committed in the presence of the judge or justice in court. (b) "Without any direction, but of his own accord — (1) For a felony committed in his own presence or view^. (2) For a breach of the peace committed in his own presence or view, provided the arrest is made during its commission, or, perhaps, immediately afterw^ards. (3) On a reasonable charge by another that a felony has been committed by the person arrested. (4) On his own reasonable suspicion that a felony has been committed, and that the person ar- rested is guilty, though in fact no felony has been committed at all. (5) He may recapture a prisoner who has es- caped from lawful custody, w^hether before or after conviction. 11. BY PRIVATE PERSON— A private person has the same authority as an ofi&cer to arrest -without a w^arrant, except that, where he arrests on suspicion for a felony, he must show that a felony had in fact been committed by some one.^ 88 This statement is in accordance with the great weight of authority, but, as we shall see, there is some conflict in the authorities. A few courts ha-ve held, for instance, that where an arrest is made on suspicion for a felony Ch. 2] AREEST WITHOUT A WAEEANT. 39 12. STATUTES— The authority both of officers and of private persons to arrest without a warrant is very much extended by statute in many jurisdictions. It has been contended that the constitutional provision to which we have referred, declaring that the people shall be secure from un- reasonable arrests, and that no warrant to arrest a person shall is- sue without describing him as nearly as may be, nor without prob- able cause supported by oath or affirmation, renders all arrests un- lawful except upon a warrant so issued; but it is well settled that the provision does not apply to reasonable arrests without a war- rant, authorized either by the common law or by statute.** In many cases it would defeat the ends of justice if no arrest could be made without a warrant, for while a warrant is being procured the offender may escape. Under certain circumstances, therefore, such arrests have been allowed from the earliest times. As we shall see, when an arrest is made without a warrant, the prisoner must be taken before a proper magistrate, and a complaint made. It is not necessary, however, that the magistrate shall issue his warrant. This would be unnecessary.*" Arrest by Officer without a Warrant. In the first place, a judge or justice of the peace may himself apprehend, or cause to be apprehended, without the issuance of a warrant, any person committing a felony or breach of the peace in his presence.* ° So, also, a judge or justice of the peace, in whose actual guilt of the person arrested must be shown; and there Is some au- thority against his right to arrest for a breach of the peace. 84 Wakely v. Hart, 6 Bin. (Pa.) 318; North v. People, 139 111. 81, 28 N. E. 966. SB Hoggatt V. Bigley, 6 Humph. (Tenn.) 236. 86 4 Bl. Comm. 292; Com. v. McGahey, 11 Gray (Mass.) 194; State v. Shaw, 3 Ired. (N. C.) 20; Holcomb v. Cornish, 8 Conn. 375; Tracy v. Williams, 4 Conn. 107; Lancaster v. Lane, 19 IlL 242; O'Brian v. State, 12 Ind. 369. In some jurisdictions, the power of a magistrate in this respect is extended by statute to all ofCenses committed in his presence. A magistrate has the same authority to command assistance in pursuing and retaking an offender whom he has so caused to be arrested for an offense committed in his pres- ence, and who has escaped, which he had to command the original arrest Com. Y. McGahey, supra. 40 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 presence in court an offense is committed, may direct the arrest of the offender without issuing a warrant, though the offense may- be such as would require a warrant under other circumstances.^^ Dr. Wharton seems to lay down the proposition that "for all offenses committed or attempted in the presence of an officer," whether a felony or merely a misdemeanor, he may arrest without a warrant,^' but this is not true at common law. The cases cited in support of the proposition are most of them cases in which there was a felony or breach of the peace, or else cases in which the ar- rest was expressly authorized by statute. It is well settled that a sheriff, constable, or other peace officer invested by statute with like powers, may arrest without a warrant for a felony,** or for a misdemeanor, provided it amounts to breach of the peace,*" com- 8T Lancaster v. Lane, 19 111. 242. 88 Whart Or. PL & Prac. § 8; citing Keg. v. Mabel, 9 Car. & P. 474; Dere- court V. Corbishley, 5 El. & Bl. 1S8; Galliard v. Laxton, 2 Best & S. 363; Com. V. Deacon, S Serg. & R. (Pa.) 47; State v. Brown, 5 Har. (Del.) 505; Wolf V. State, 19 Ohio St. 248 (authorized by statute); People v. Wilson, 55 Mich. 506, 21 N. W. 905 (this was a case of felony, and the opinion assumes that, had it not been so, the arrest would have been unauthorized); State V. Bowen, 17 S. C. 58; Staples v. State, 14 Tex. App. 136. There are statu- tory provisions to this effect In many states. 8» Doering v. State, 49 Ind. 56; Carr v. State, 43 Ark. 99; Cahill v. Peo- ple, 106 111. 621. This includes statutory felonies. Firestone v. Rice, 71 Mich. 377, 38 N. W. 885. 8 Taylor v. Strong, 3 Wend. (N. Y.) 384; Douglass v. Barber (R. I.) 28 AtL 805; City CouncU v. Payne, 2 Nott & McC. (S. C.) 475; Quinn v. Heisel, 40 Mich. 576; People v. Bartz, 53 Mich. 493, 19 N. W. 161; Crosland v. Shaw (Pa. Sup.) 12 Atl. 849; State v. Lewis (Ohio Sup.) 33 N. E. 405; Com. v. Tobin, 108 Mass. 426; Com. v. Kennedy, 136 Mass. 152; State v. Brown, 5 Har. (Del.) 505; Knot v. Gay, 1 Root (Conn.) 66; Shanley v. WeUs, 71 111. 78; Com. V. Deacon, 8 Serg. & R. (Pa.) 47; McCullough v. Com., 67 Pa. St 30; State V. Bowen, 17 S. C. 58; Pow v. Beckner, 3 Ind. 475; Vandeveer v. Mattocks, Id. 479; Ross v. State, 10 Tex. App. 455; Staples v. State, 14 Tex. App. 136. It must be remembered tliat fighting, rioting, etc., is not neces- sary to constitute a breach of the peace. A breach of the peace is "a vio- lation of public order,— the offense of disturbing the public peace. An act of public indecorum is also a breach of the peace." Galvin v. State, 6 Cold. (Tenn.) 294. "The term 'breach of the peace' is generic, and includes riotous and unlawful assemblies, riots, afCray, forcible entry and detainer, the wanton discharge of firearms so near the chamber of a sick person as to cause in- jury, the sending of challenges and provoking to fight, going armed in public Vh. 2] ARREST WITHOUT A WARRANT. 41 mitted in his presence, and within Ms jurisdiction; and,^if commit- ted within his Tiew or hearing, it is committed in his presence."^ He may also arrest without a warrant on a reasonable charge of a felony having been committed,^^ or upon his own reasonable sus- picion that it has been committed; °* and the fact that it after- wards turns out that his suspicion was unfounded, or even that no offense had been committed at all, will not make the arrest un- lawful."* In this respect an officer stands on a different footing from a private person; for the latter, as we shall see, must show that an offense had actually been committed by some one. There must in all cases be a reasonable suspicion to authorize the arrest; that is, a bona fide suspicion, and probable cause therefor.^' Some without lawful occasion in such manner as to alarm the public, and many other acts of a similar character." People v. Bartz, supra. In this case it was held that the wanton discharge of firearms in the streets of a city, being well calculated to alarm the public, was a breach of the peace. 01 People V. B^rtz, supra; State v. McAfee, 107 N. C. 812, 12 S. E. 435. But it has been held that shouting in the streets of a village was not in the presence of an olBcer who was 150 feet away, on another street, and did not see the offender, and had no direct knowledge who committed the ofEense. People v. Johnson, 86 Mich. 175, 48 N. W. 870. An officer may ar- rest without a warrant for wife beating, if he arrives at the scene during the progress of the beating, or immediately thereafter, being attracted by the noise of the disturbance or the outcry of the woman. Eamsey v. State (Ga.) 17 S. E. 613. 8 2 Samuel v. Payne, 1 Doug. 359; Hobbs v. Branscomb, 3 Camp. 420; Hol- ley V. Mix, 3 Wend. (N. Y.) 350. It is not only the officer's right, but it is his duty, to arrest under such circumstances, and, if he refuses to do so, he is guilty of a misdemeanor. Cowles v. Dunbar, 2 Car. & P. 565. "3 Ledwith v. Catchpole, Cald. 291; Doering v. State, 49 Ind. 56; Wade v. Ghaffee, 8 E. I. 224; Beckwith v. Philby, 6 Bam. & O. 635; Rohan v. Sawin, 5 Cush. (Mass.) 281; Eanes v. State, 6 Humph. (Tenn.) 53; Davis v. RusseU, 5 Bing. 354; Lawrence v. Hedger, 3 Taunt. 14; Hobbs v. Branscomb, 3 Camp. 420; Lewis v. State, 3 Head (Tenn.) 127; Rex v. Woolmer, 1 Moody, 334; Nicholson v. Hardwlck, 5 Car. & P. 495. ei Rohan v. Sawin, 5 Cush. (Mass.) 281; Davis v. Russell, 5 Bing. 354; Com. T. Cheney, 141 Mass. 102, 6 N. E. 724; Com. v. Presby, 14 Gray (Mass.) 65. 9 6 Davis V. Russell, 5 Bing. 364; Wade v. Chaffee, 8 R. I. 224; Somerville V. Richards, 37 Mich. 299; Mure v. Kaye, 4 Taunt. 34; State v. Underwood, 75 Mo. 230; State v. Grant, 79 Mo. 113; Boynton v. Tidwell, 19 Tex. 118; People v. Bm-t, 51 Mich. 199, 16 N. W. 378; Hogg v. Ward, 3 Hurl. & N. 417; 42 APPBEHENSION OF PERSONS AND PROPERTY. [Ch. 2 courts have held that it must appear that the accused may escape if time is taken to procure a warrant," ° but the great weight of authority is to the contrary."^ The right of an officer to arrest on another's accusation, or on his own suspicion only, is limited to cases of felony."' As a rule, at common law, an officer can under no circumstances arrest without a warrant for a misdemeanor not amounting to a breach of the peace; °" nor, according to the overwhelming weight of authority, can he arrest for a breach of the peace after it is over, unless it was committed in his presence or view, and even then the arrest must be made within a reasonable time after the commission Hobbs V. Branscomb, 3 Camp. 420; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Hall v. Hawkins, 5 Humph. (Tenn.) 357; Lawrence v. Hedger, 3 Taunt. 14; Flndlay v. Pruitt, 9 Port. (Ala.) 195; Sugg v. Pool, 2 Stew. & P. (Ala.) 196; Winebiddle v. Porterfield, 9 Barr (Pa.) 137. An indictment for a felony- Is sufficient cause. 1 East, P. O. 301; Ex parte Krans, 1 Barn. & C. 261. So, also, is a proclamation by the governor. Eanes v. State, 6 Humph. (Tenn.) 53. The suspicion must have been bona fide. If it was otherwise, the fact that there were reasonable grounds for suspicion is not enough. Roberts v. Orchard, 2 Hurl. & C. 769. Whether or not there was probable cause is to be determined by the facts as they were known to exist at the time of the arrest. Thomas v. Russell, 9 Exch. 764; Swaim v. Stafford, 3 Ired. (N. 0.) 289. 86 See O'Connor v. State, 64 Ga. 125; Ross v. State, 10 Tex. App. 455; Staples V. State, 14 Tex. App. 136. 97 Davis V. Russell, 5 Bing. 354; Wade v. Chaffee, 8 R. I. 224; Burns v. Erben, 40 N. X. 463; Rohan v. Sawin, 5 Cush. (Mass.) 281. 88 Com. V. McLaughlin, 12 Cush. (Mass.) 615; Rex v. Curvan, 1 Moody, 132; Com. v. Carey, 12 Cush. (Mass.) 246; Griffin v. Coleman, 4 Hurl. & N. 263; Rex v. Ford, Russ. & R. 329; Bowditch v. Balchin, 5 Exch. 378. 8 8 Com. V. Carey, 12 Cush. (Mass.) 246; Bright v. Patton, 5 Mackey (D. C.) 534; Com. v. McLaughlin, 12 Cush. (Mass.) 615; People v. McLean, 68 Mich. 480, 36 N. W. 231; Drennan v. People, 10 Mich. 169; Quinn v. Heisel, 40 Mich. 576; In re Way, 41 Mich. 299, 1 N. W. 1021; Scott v. Eldridge, 154 Mass. 25, 27 N. E. 677; Danovan v. Jones, 36 N. H. 246; Com. v. Wright, 158 Mass. 149, 33 N. E. 82; Hopkins v. Crowe, 7 Car. & P. 373; Rex v. Bright, 4 Car. & P. 387; Butolph v. Blust, 5 Lans. (N. Y.) 81; State v. Grant, 76 Mo. 236; Coupey v. Henley, 2 Esp. 540; Reg. v. Walker, 1 Dears. Crown Cas. 358; Stocken v. Carter, 4 Car. & P. 477; Shanley v. Wells, 71 lU. 78; Cahill v. People, 106 111. 621. But see Roberts v. State, 14 Mo. 138; State v. Roberts, 15 Mo. 28; State v. Brown, 5 Har. (Del.) 505. Ch. 2] AEHEST WITHOUT A WARRANT. 43 of the offense."" It is otherwise by statute in many states.^"* In most, if not all, the states there are statutes and city ordinances, which are clearly valid, authorizing officers to arrest for certain mis- demeanors without a warrant, when committed in their presence.^"'' An officer may and should, without a warrant, interpose to prevent a breach of the peace, and to accomplish this object he may arrest the person menacing, and detain him in custody until the chance of the threat being executed is over; and if he is assaulted he may arrest the offender, and take him before a magistrate.^"' It is true that an officer must always interfere to prevent an attempted felony, and, if necessary to prevent the felony, he may arrest the offender and take him before a magistrate, though an attempt to commit a felony is only a misdemeanor. It will no doubt be found, however, that in every such case the attempt will amount to a breach of the peace. It is also true that if a person obstructs an officer in his lawful attempt to arrest with or without a warrant, either by using force himself, or by. encouraging the person sought to be arrested to resist, the officer may arrest him without a warrant.^"* It will 100 See the cases heretofore cited; and see, more particularly, Taylor v. Strong, 3 Wend. (N. Y.) 38i; State v. Lewis (Ohio Sup.) 33 N. E. 405; Quinn V. Heisel, 40 Mich. 576; People v. Haley, 48 Mich. 495, 12 N. W. 671; Webb V. State, 51 N. J. Law, 189, 17 Atl. 113; Eeg. v. Walker, 6 Cox, Cr. Cas. 371.; Reg. V. Marsden, 11 Cos, Cr. Cas. 90; Cook v. Nethercote, 6 Car. & P. 741: Sternack v. Brooks, 7 Daly (N. Y.) 142. But see the dicta in Spaulding v. Preston, 21 Vt. 9; Reg. v. Light, Dears. & B. 332; State v. Sims, 16 S. C. 48R. 101 The statutes of many of the states allow an officer to arrest without a warrant for any public offense committed in his presence, and this includes misdemeanors. Dilger v. Com., 88 Ky. 550, 11 S. W. 651. And in some states there are statutes allowing arrests without a warrant for certain misde- meanors, on Information received from others. Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812 (carrying weapons). 102 Thomas v. Village of Ashland, 12 Ohio St. 127; White v. Kent, 11 Ohio St. 550; Roberts v. State, 14 Mo. 138; Mitchell v. Lemon, 34 Md. 176; Roddy v. Finnegan, 43 Md. 490; Danovan v. Jones, 36 N. H. 246; Bryan v. Bates, 15 111. 87; Main v. McCarty, Id. 441; Smith v. Douelly, 66 lU. 464. 10 3 Rex V. Hems, 7 Car. & P. 312; Rex v. Light, 7 Cox, Cr. Cas. 389; Levy v. Edwards, 1 Car. &'P. 40; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Shanley v. Wells, 71 111. 78; Mclntyre v. Raduns, 46 N. Y. Super. Ct. 123. 104 Coyles v. Hurtin, 10 Johns. (N. Y.) 85; Levy v. Edwards, 1 Oar. & P. 40; White v. Edmunds, Peake, 89. 44 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 be noticed, however, that, though the resistance is a misdemeanor only, it is a breach of the peace. The rule does not apply where the attempt to arrest is unlawful, for resistance is then justifiable. Where a prisoner, either before or after he has been convicted, escapes from lawful custody, even with the consent of the oflQcer having him in charge, he may be pursued and rearrested without a warrant."^ Arrest by Private Person without a Warrant. The right of a private person to arrest without a warrant is almost, but not quite, the same as that of an officer. As we have seen, a judge or justice of the peace may cause to be apprehended, without issuing a warrant, any person committing a felony or breach of the peace in his presence. He may cause the arrest to be made by a private person as well as by an officer.^"* It is also well settled at common law that any private person who is present when a felony is committed, not only may, but must, arrest the offender, though he has no warrant.^"^ By the great weight of authority, also, where a felony has in fact been committed, a private person may arrest on reasonable suspicion that it was committed by the person arrested, though his suspicion may be un- founded in fact.^°* In such a case his position is different from that of an officer, in that he will be liable for assault and battery or false imprisonment, and the other consequences of an illegal 105 1 Chit. Cr. Law, 61; Com. v. McGahey, 11 Gray (Mass.) 194; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; Simpson v. State, 56 Ark. 8, 19 S. W. 99. 106 Ante, p. 39. 107 4 Bl. Comm. 293; Long v. State, 12 Ga. 293; HoUey v. Mix, 3 Wend. (N. Y.) 350; Phmips v. TruU, 11 Johns. (N. Y.) 486; Ruloff v. People, 45 N. Y. 213; Rex V. Hunt, 1 Moody, 93; Keenan v. State, 8 Wis. 132; Weimer v. Bun- bury, 30 Mich. 211; Davis v. Russell, 5 Bing. 364; Kindred v. Stitt, 51 111. 407. 108 2 Hale, P. 0. 78; Ashley's Case, 12 Coke, 90; Wakely v. Hart, 6 Bin. (Pa.) 316; Brooks v. Com., 61 Pa. St. 352; Kennedy v. State, 107 Ind. 144, 6 N. E. 305; U. S. v. Boyd, 45 Fed. 851; Long v. State, 12 Ga. 293; HoUey V. Mix, 3 Wend. (N. Y.) 350; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Gary v. State, 76 Ala. 78; Brockway v. Crawford, 3 Jones (N. C.) 433; State v. Roane, 2 Dev. (N. G.) 58; Smith v. DoneUy, 66 111. 464; Wrexford v. Smith, 2 Root (Conn.) 171; Carr v. State, 43 Ark. 99; Reuck v. McGregor, 32 N. J. Law, 70; Wilson v. State, 11 Lea (Tenn.) 310. Ch. 2] ARREST WITHOUT A WARRANT. 4& arrest or attempt to arrest will also follow, unless it is shown, not only that there was probable cause for his suspicion, but also that a felony had actually been committed by some one. Proof of prob- able cause to believe, and belief in good faith, that a felony had been committed, will not excuse him as it would an ofBcer.^'"' Some of the courts have said that an arrest by a private person without a warrant cannot be justified by proving the actual com- mission of the crime by some one, and suspicion on probable cause of the person arrested; that actual guilt must be shown; ^^° and in Texas it has been held that the offense must have been committed in the presence of the person maldng the arrest; ^^^ but these cases are contrary to the overwhelming weight of authority. In no case is mere conjecture, or suspicion without probable cause, sufB- cient to justify the arrest.^^* As a rule, a private person cannot arrest without a warrant for a misdemeanor, even when it is committed in his presence,^*' though it is otherwise by statute in some jurisdictions,^^* and, as 100 Holley v. Mix, 3 Wend. (N. Y.) 350; Burns v. Erben, 40 N. Y. 463; Wake- ly V. Hart, 6 Bin. (Pa.) 316; Com. v. Carey, 12 Gush. (Mass.) 246; Beckwith V. Philby, 6 Barn. & C. 638; People v. Adler, 3 Parker, Or. R. (N. Y.) 249; Com. V. Deacon, 8 Serg. & R. (Pa.) 49; Brooks v. Com., 61 Pa. St. 352; Teagarden V. Graham, 31 Ind. 422; Brockway v. Crawford, 3 Jones (N. C.) 433; Carr v. State, 43 Ark. 99; Reuck v. McGregor, 32 N. J. Law, 70; Doughty v. State, 33 Tex. 1; Findlay v. Pruitt, 9 Port. (AJa.) 195; Salisbury v. Com., 79 Ky. 425; Allen v. Wright, 8 Car. & P. 522. 110 Rohan v. Sawin, 5 Gush. (Mass.) 285; Com. v. Carey, 12 Gush. (Mass.) 251; Kindred v. Stitt, 51 111. 407; Morley v. Chase, 143 Mass. 396, 9 N. E. 767. No authorities, however, are cited in these cases in support of the proposition. 111 Alford V. State, 8 Tex. App. 545 (citing no authority, however). 112 Davis V. Russell, 5 Bing. 364. We have already collected the cases on this point in treating of arrests by an officer without a warrant. Many of the cases there cited are cases of arrest by a private person. The liability of an officer and a private person is the. same in this respect; so it is only necessary to refer to what we have already said on the subject. Ante, p. 41. 113 Fox V. Gaunt, 3 Barn. & Adol. 798; Price v. Seeley, 10 Clark & F. 28 Phillips V. Trull, 11 Johns. (N. Y.) 487; Handcock v. Baker, 2 Bos. & P. 262 Butler V. Turley, 2 Car. & P. 585; Coward v. Baddeley, 4 Hurl. & N. 478 Wooding V. Oxley, 9 Car. & P. 1. 114 In some states it is provided that a private person may arrest for any crime committed in his presence. People v. Morehouse (Sup.) 6 N. Y. Supp- 763. 46 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 in the case of arrests by an officer, there are some exceptions at common law. He cannot arrest for a breach of the peace after it is over,"" but by the weight of authority he may not only interpose to stop a breach of the peace, but may, during its continuance, or where there is reasonable ground for apprehending its renewal, arrest the offender and take him before a magistrate, or turn him over to an officer."' Some of the courts have held, or seem to have held, that he can only interpose and restrain the offender for the purpose of stopping the breach of peace; that he cannot arrest for the offense."^ A private person not only may, but must, inter- pose to prevent the attempted commission of a felony, or infliction of a deadly injury, and, if necessary to prevent it, may arrest the offender, though the attempt is only a misdemeanor.^^' As already stated, however, such an attempt must necessarily, in most, if not in all, cases, amount to a breach of the peace, so that the arrest may be justified on that ground.^^* A private person, it seems, may also recapture a prisoner who has broken jail, or otherwise escaped from lawful custody, either before or after conviction, though he may have been in custody for a misdemeanor only, and though the prison breach or escape is only a misdemeanor.^^" There are circumstances, as we shall now see, under which a private person may be called upon by an officer to assist him in making an arrest. 115 Price V. Seeley, 10 Clark & F. 28; Phillips v. Trull, 11 Johns. (N. Y.) 487. 118 Price V. Seeley, 10 Clark & F. 28; Timothy v. Simpson, 1 Cromp., M. & R. 757; Derecourt v. Corbishley, 5 El. & Bl. 188. 117 See Phillips v. Trull, 11 Johns. (N. Y.) 487; Wheeler v. Whiting, 9 Oar. & P. 262. lis Handcock t. Baker, 2 Bos. & P. 260; Kex v. Hunt, 1 Moody, 93; Reuck V. McGregor, 32 N. J. Law, 70; Dill v. State, 25 Ala. 15; Ruloffi v. People, 45 N. Y. 213; Long v. State, 12 Ga. 298; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Keenan v. State, 8 Wis. 132. 119 Ante, p. 43. 120 state V. Holmes, '48 N. H. 377. *"ii- ^J ASSISTING OFFICEK. 47 SAME— ASSISTING OFFICER. 13. An ofllcer authorized, to make arrests may call upon private persons to assist him. and they are bound to do so, provided they act in his actual or constructive pres- ence. If there is just cause, any justice of the peace may take of the county any number of persons he thinks proper to pursue, arrest, and imprison felons or breakers of the peace. This is called "rais- ing the posse comitatus." Persons who refuse to aid are guilty of a misdemeanor. This applies not only where the sheriff is acting under a warrant, but also where he is acting without a warrant as a conservator of the peace.^^^ Not only may the sheriff or a justice of the peace thus raise the posse comitatus, but any other peace officer, anthorized to make arrests or to suppress breaches of the peace, may call upon private persons to assist him in the execution of his duty, whether he is acting under a warrant, or, in a proper case, without a warrant, and any person who without good excuse refuses to aid is guilty of a misdemeanor.^^^ If the command is made by a proper officer, and the case is one in which he apparently has authority, the persons assisting him will be protected against any liability for their assistance, though in fact the officer may not have authority, or, though having authority, he may so fail to comply with the law as to become liable himself.^^' To justify private persons, however, in acting at the command of an officer in cases in which they would have no right to act of their own ac- cord, they must act in the actual or constructive presence of the offlcer.^^* As we have seen, the verbal command of a judge or 121 Dalton, c. 171; 4 BL Comm. 293. 122 2 Hawk. P. C. c. 13, § 7; Com. v. Field, 13 Mass. 321; Coyles v. Hur- tln, 10 Johns. (N. Y.) 85; Blatch v. Archer, Cowp. 63; McJIahan v. Green, 34 Vt. 69; Mitchell •?. State, 7 Eng. (Ark.) 50: State v. James, 80 N. C. 370; State V. Shaw, 3 Ired. (N. C.) 20. issDehm v. Hinman, 56 Conn. 320, 15 Atl. 741; McMahan v. Green, su- pra; Reed v. Rice, 2 J. J. Marsh. (Ky.) 44; Watson v. State, 83 Ala. 60, 3 South. 441; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885. 124 Coyles V. Hurtin, supra; Mitchell v. State, supra; State v. Shaw, supra; People V. Moore, 2 Doug. (Mich.) 1; Com. v. Field, 13 Mass. 321; Rex v. 48 APPREHENSION Of PERSONS AND PBOPEETY. [Ch. 2 justice of the peace to arrest for a felony or breach of the peace com> mitted in his presence must be obeyed. SAME— ARKEST UPON HUE AND CRY. 14. Arrest upon hue and cry is an old common-law process of pursuing ■with horn and with voice all felons and such as have dangerously w^ounded others. The hue and cry could be raised by officers or by private persons or by both". The officer and his assistants have the same powers, protection, and indemnity as if acting under a warrant. If a war- rant has been obtained, and the felon has fled into another county, he may be followed by hue and cry without having the warrant backed or signed by a justice of the latter county. Private per- sons who join in the hue and cry are justified, even though it may turn out that no felony has in fact been committed. If, however, a private person wantonly and maliciously, and without cause, raises the hue and cry, he commits a breach of the peace, and is guilty of a misdemeanor.^''' Patience, 7 Car. & P. 775. The ofBcer need not be actually present He may, for Instance, leave persons whom he has called upon to assist, and go after help, and they must act in his aid during his temporary absence. "The sher- iff," it was said in such a case, "Is quodam modo present by his authority. If he be actually engaged in efforts to arrest, dum fervet opus, and has com- manded and is continuing to command and procure assistance. When he is calling on the power of the county, or a requisite portion of it, to enable him to overcorae resistance, it would be impossible that he should be actually pres- ent in every place where power might be wanting. The law is not so unrea- sonable as to require the ofilcer to be an eye or ear witness of what passes, and to render all his authority null and void except when he is so present. • • • The question in these cases does not turn upon the fact of distance, so long as the sheriff is within his county, and is bona fide and strictly engaged in the business of the arrest." Coyles v. Hurtin, supra. It has lately been held in Michigan, however, that a sheriff, having a warrant in a case in which a warrant is necessary, cannot send his deputy to one place to malve the ar- rest without the warrant, while he goes to another place for the same pur- pose with the warrant. People v. McLean, 68 Mich. 480, 36 N. W. 231. 12 5 4 Bl. Oomm. 293; 2 Hale, P. C. 98; Jackson's Case, 1 East, P. O. 298; Galvin v. State, 6 Cold. (Tenn.) 283; Brooks v. Com. 61 Pa. St 352. Ch. 2] NOTICE OF PURPOSE AND AUTHORITY, 49 SAME— TIME or ARREST. 16. In the absence of statutory provision to the con- trary, an arrest may be made at any time. An arrest at common la"w may be made on Sunday.^ ^° By stat- ute, in some jurisdictions, the right to execute a warrant on Sunday is limited in terms to cases of treason, felony, and breach of peace, but the term "breach of peace" is held to include all indictable offenses.^"^ In other jurisdictions, it is provided by statute that an arrest cannot be made on Sunday for a misdemeanor, unless upon direction of the magistrate indorsed upon the warrant An arrest at common law may be made at any time of the day or night,^^' but by statute, in some jurisdictions, the right to arrest at night is very much restricted. SAME— NOTICE OF PURPOSE ANB AUTHORITY 16. An ofiElcer, commonly known as such, and acting within his ow^n precinct, need not show his warrant, but he must, if requested, tell its substance. A private per- son or an officer not commonly know^n, or who is acting outside his precinct, must show his warrant if requested. An officer or private person arresting w^ithout a w^arrant must give notice of his authority and purpose, unless they are know^n or are obvious. EXCEPTIOIT — If the arrest is resisted, it may be effected before notice of authority. An arrest, to be legal, must not only be authorized, but must be made in a proper manner. If made in an improper manner, the 128 State V. Smitli, 1 N. H. 346; Pearce v. Atwood, 13 Mass. 324, 347. Main V. McCarty, 15 111. 441; Rawlins v. Ellis, 16 Mees. & W. 172. 12T Rawlins v. Ellis, supra; Watts v. Com., 5 Bush (Ky.) 309; Keith y. Tut- tle, 28 Me. 326. 128 State V. Smith, supra; Wright v. Keith, 24 Me. 158; State v. Brennan's Liquors, 25 Conn. 278. CKIM.PROC— 4 50 APPBEHENSION OF PEKSONS AND PROPEETY. [Ch. 2 person making it is just as liable for the injury as if lie had pro- ceeded without any authority at all. An officer, if he is commonly known to be an officer, and is acting within his own precinct, need not show his warrant, though requested to do so; but he niust, if requested, tell the substance of it.^" But all private persons to whom a warrant is directed, and officers who are not commonly known, or who are acting out of their own precincts, must show their warrant if requested."" So, also, an officer acting without a warrant should, unless the party is previously acquainted with the fact, or can plainly see it, notify him that he is an officer, or that he arrests in the name of the state, and for what offense,^ '^ but he need not do so if his character and the reason of the arrest are known to the accused, or are obvious.^ ^^ It is established by the weight of authority, however, that an officer, whether acting with ■or without a warrant, need not state his character or authority Ijefore making the arrest, where the arrest is resisted, as this might •defeat the arrest. It is enough if he does so on request, after the arrest has been made.^^' A private person, in making an arrest without a warrant, must make known his purpose,^'* but, as is the case with an officer, he need not do so in express words, where the circumstances render his purpose obvious.^'" 120 2 Hawk. P. C. c. 13, § 28; Com. v. Cooley, 6 Gray (Mass.) 350; Arnold V. Steeves, 10 Wend. (N. Y.) 514; Bellows v. Shannon, 2 Hill (N. Y.) 92; Codd V. Cabe, 1 Exch. Dlv. 352; Hall v. Roche, 8 Term R. 188; Shovlin v. Com., 106 Pa. St. 3C9; State v. Curtis, 1 Hayw. (N. C.) 471; State v. Caldwell, 2 Tyler (Vt) 214; State v. Phinney, 42 Me. 384. ISO 2 Hawk. P. C. c. 13, § 28; State v. Curtis, 1 Hayw. (N. C.) 471; Frost ■V. Thomas, 24 Wend. (N. Y.) 418; Arnold v. Steeves, 10 Wend. (N. Y.) 514; People V. Nash, 1 Idaho, 206; State v. Kirby, 2 Ired. (N. C.) 201. 181 Yates V. People, 32 N. Y. 509; Wolf v. State, 19 Ohio St 248. 182 Wolf V. State, supra; Com. v. Tobin, 108 Mass. 426; Roberts v. State, 14 Mo. 144; I.«wis v. State, 3 Head (Tenn.) 127; People v. Pool, 27 Cal. 573. 133 Com. T. Cooley, 6 Gray (Mass.) 350; State v. Townsend, 5 Har. (Del.) 487; Rex v. Woolmer,. 1 Moody, 334; Com. v. Field, 13 Mass. 321; Drennan V. People, 10 Mich. 169; Kernan v. State, 11 Ind. 471; Boyd v. State, 17 Ga. 194; Shovlin v. Com., 106 Pa. St. 369. But see State v. Garrett, 1 Winst Eq. gj.i73 Qj. ijy g^ private person,^^* except that where the arrest is by a private person he may, if he prefers, deliver his prisoner over to an oflBcer to be taken before the magistrate. In such a case he ceases to be further responsible for the safe custody of the prisoner. Necessary delay will not render either an officer or a private per- son liable.^^" In some states, if the warrant so directs, the officer may take his prisoner either before the magistrate who issued it, or before some other magistrate having concurrent jurisdiction of the subject- matter. In other states he can only take him before the magistrate who issued the warrant. The law in this respect must be fol- lowed.^^* 1T2 1 Chit Cr. Law, 59; 2 Hale, P. O. 119; Tubbs v. Tukey, 3 Cush. (Mass.) 438; Brock v. Stimson, 108 Mass. 520; Butler v. Washburn, 5 Post. (N. H.) 251; Rex V. Bootie, 2 Burrows, 864; Harris v. City of Atlanta, 62 Ga. 290; Boaz V. Tate, 43 Ind. 67; Paplneau v. Bacon, 110 Mass. 319; Phillips v. Fadden, 125 Mass. 198; Johnson v. Mayor, etc., of Americus, 46 Ga. 80; Butolph v. ^lust, 5 Lans. (N. Y.) 84; Burke v. Bell, 36 Me. 321; post, p. 72. 17 3 See the authorities above cited; and see Simmons v. Vandyke (Ind. Sup.) 37 N. B. 973; Wright v. Court, 4 Barn. & C. 596; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Sclrcle v. Neeves, 47 Ind. 289; Burke -v. Bell, 36 Me. 317; Papineau v. Bacon, 110 Mass. 319; post, p. 72. 17 4 See the authorities above cited; and see, particularly. Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Com. v. Tobin, 108 Mass. 429; post, p. 72. ITS Arnold v. Steeves, 10 Wend. (N. Y.) 514. If a prisoner cannot be brought before a justice on the night of his arrest, the officer may place him In jail for the night. Wiggins v. Norton, 83 Ga. 148, 9 S. E. 607. A party may waive his right to be immediately taken before a magistrate. Nowak V. Waller, 56 Hun, 647, 10 N. Y. Supp. 199. The time during which a prisoner may be detained before being taken before a magistrate is in many states expressly limited by statute. Arnold v. Steeves, supra. 17 8 Post, p. 75. 58 APPREHENSION OF PERSONS AND PEOPERTY. [Ch. 2 SAME— AUTHORIZED ARREST IN UNAUTHORIZED MANNER 21. The fact that an authorized arrest is made in an un- authorized manner -will render the ofl&cer or person ar- resting liable, but will not affect the state's right to detain the accused. The authority to arrest, either with or without a warrant, should not be confused with the requirements of the law in regard to the manner of making the arrest "The manner and circumstances of execution relate not to the authority, unless expressly or by neces- sary intendment made to; and, if the law prescribes the modes of execution, this is either to secure the execution of the process, or to guard the person whose arrest is commanded from unnecessary annoyance or oppression, and a departure in this respect ought not to affect the question of authority." ^^'^ If an oflQcer, making an au- thorized arrest, uses unnecessary force, he becomes civilly liable, as would any other wrongdoer; and, if he refuses to disclose his authority when he should do so, he may forfeit the right he would otherwise have to compensation for injm-y inflicted by the person sought to be arrested in resisting, and such person would not be liable criminally for the resistance, unless he should intentionally kill the officer, and even then only for manslaughter; but the ar- rest and detention would be none the less under the authority of law, and therefore legal. The prisoner would not be entitled to a discharge from custody.^^' 177 Cabell v. Arnold, 86 Tex. 102, 23 S. W. 645; post, p. 60, note 182. 178 Cabell V. Arnold, supra, "If the offtcer expressly declare that be arrests under an illegal precept, and on that only, yet he is not guilty of false impris- onment, If he had at the time a legal one; for the lawfulness of the arrest does not depend on what he says, but what he has." State v. Kirby, 2 Ired. (N. C.) 201; State v. Elrod, 6 Ired. (N. C.) 250. Ch. 2] FUGITIVES FEOM JUSTICE. 59 FUGITIVES FEOM JUSTICE. 22. A person -vp-ho commits a crime in one country or state, and flees into another, cannot be folio-wed and ar- rested in the latter without its consent. SAME— INTERNATIONAL EXTRADITION. S3. By treaties, however, between the United States and most foreign countries, and by acts of congress in pursu- ance thereof, provision is made for the extradition of fugi- tives from justice in specified cases. This is a matter in which the states cannot act. 24. A person extradited for one crime cannot be tried for another. 25. By the weight of authority, a person can be trierf and punished for a crime committed in this country, though he has been forcibly abducted from a foreign country. By the law of nations, a person who commits a crime in one coun- try, and flees into another, cannot be followed and arrested in the latter without its consent; and, further than this, there is no obliga- tion, under the law of nations, upon the latter to surrender the fugitive;^''" but this difficulty, in so far as the United States and foreign nations are concerned, is regulated by treaties between them, mutually allowing the extradition of fugitives, and by acts of congress giving effect to the treaty provisions. This is a matter in which, as far as we are concerned, the United States government alone can act. The states, while they are in a sense independent sovereignties, have no national powers as respects foreign nations. They cannot provide for the surrender of fugitives from foreign countries, nor can they demand of a foreign government the sur- render of a fugitive.^*" 1T9 Ex parte McCabe, 46 Fed. 363. As to international extradition, see, generally, In re Ezeta, 62 Fed. 972. ISO Holmes v. Jennison, 14 Pet 540; Ex parte Holmes, 12 Vt. 630; People V. Curtis, 50 N. Y. 321. 60 APPREHENSION OF PERSONS AND PROPEBTV. [Ch. 2 A person extradited from a foreign country cannot be tried for a crime not within the treaty between that country and the United States; "^ nor, unless the treaty so allows, can he be tried for a diiferent offense than that for which he was extradited.^'^ It is almost needless to add that in all cases the provisions of the treaty, and of any act of congress in pursuance of it, must be complied with.^'* There has been a direct conflict of opinion on the question whether a person who has been illegally extradited, or who has been kid- napped without any proceedings at all, and brought from one coun- try into another, can be tried for a crime. The treaties do not guaranty a fugitive from the justice of one country an asylum in the other. They only make provision that for certain crimes he shall be deprived of that asylum, and surrendered to justice, and prescribe the mode in which this shall be done.^** Where a fugi- tive is extradited under a treaty, good faith, as between the coun- tries, requires that the treaty provisions shall be observed, and, as we have seen, he cannot be tried for an offense other than the one for which he was extradited. It has been said, on the other hand, that a person who has not been extradited under a treaty, but has been forcibly abducted from one country, and brought into another in which he is charged with a crime, has no rights under the treaty, and there is the highest authority for holding that his abduction does not prevent his trial and punishment.^'" There are cases that 181 U. S. V. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234; State v. Vanderpool, 39 Ohio St. 273; Ex parte Hibbs, 26 Fed. 421. 182 U. S. V. Rauscher, supra; State v. Vaiiderpool, supra; Ex parte Goy, 32 Fed. 911; In re Reinltz, 39 Fed. 204; In re Baruch, 41 Fed. 472; Ex parte Hibbs, 26 Fed. 421. 183 In re Herris, 32 Fed. 583. 184 Kerr v. Illinois, 119 U. S. 436, 7 Sup. Ct 225; Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687. But see State v. Vanderpool, 39 Ohio St. 273. 186 Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct 1204; Kerr v. Illinois, 119 U. S. 437, 7 Sup. Ct 225; Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687; Ex parte Scott, 9 Barn. & C. 446; Lopez & Sattler's Case, 1 Dears. & B. Crown Cas. 525; State v. Smith, 1 Bailey (S. C.) 283; State v. Brewster, 7 Vt 118; In re Miles, 52 Vt 609; Dew's Case, 18 Pa. St 37; State v. Ross, 21 Iowa, 467; The Richmond v. U. S., 9 Cranch, 102; People v. Rowe, 4 Parker, Or. R. (N. Y.) 253; State v. Wensel, 77 Ind. 428; note 207, infra. Ch. 2] FUGITIVES FROM JUSTICE. 61 hold the other way.^*' In reason, it would seem that the person arrested should not be allowed to raise any objection, though an objection coming from the authorities of the country from which he was abducted should be regarded. SAME— INTERSTATE EXTRADITION. 26. Provision is made by the constitution of the United States, by acts of congress in pursuance thereof, and by auxiliary statutes in the different states, for the extradi- tion of a person "charged" in one state with "treason, felony, or other crime," who shall "flee from justice and be found in another state." 27. In order that a person may be extradited — (a) He must be judicially "charged" w^ith a crime in the demanding state, as by indictment, affidavit, or complaint. (b) He must not be charged w^ith a crime against the state on w^hich demand is made. (c) He must have been in the demanding state, or he cannot have "fled from justice." It is sufficient, how^ever, if, having been in the de- manding state, and having committed a crime therein, he departed from it, though for other reasons than to escape. (d) A person may be extradited for any crime against the laws of the demanding state. 28. By the weight of authority, a person may be tried for a crime other than that for w^hich he was extradited. 29. By the weight of authority, also, the forcible abduc- tion of a person from another state does not prevent his trial and punishment. The constitution of the United States provides that "a person charged in any state with treason, felony, or other crime, who shall 186 In re Robinson, 29 Neb. 135, 45 N. W. 267; State v. Simmons, 39 Kan. 262, 18 Pac. 177; In re Cannon, 47 Mich. 481, 11 N. W. 280. 62 APPKEHENSION OF PERSONS AND PEOPEETY. [Ch. 2 flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be de- livered up to be removed to the state having jurisdiction of the crime." ^" To carry this provision into effect, congress has passed an act providing substantially that vrhenever the executive of any state shall demand any person, as a fugitive from justice, of the executive authority of another state to which such person shall have fled, and shall, moreover, produce the copy of an indictment found, or an affidavit made before a magistrate of the demanding state, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the govern- or or chief magistrate of the demanding state,^** it shall be the duty of the executive authority of the state on which the demand is made to cause him or her to be arrested and secured, and notice of the arrest to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged.^*' There are further provisions which it is not necessary to mention. Our purpose is to treat the subject only in a general way. Auxiliary to this act, some of the states have enacted statutes providing, among other things, for the arrest of fugitives from jus- tice before demand by the state from which they have fled; while in other states, on grounds of comity, such an arrest and detention is allowed independently of statutory provision.^"" The executive on whom demand is made, if he complies with it, usually issues his 18T Const. U. S. art. 4, § 2. 188 A statement of the commission of a crime, without a copy of an affidavit, complaint, or indictment, is insufficient. In re Doo Woon, 18 Fed. 898; Ex parte Pfitzer, 28 Ind. 451. 189 Rev. St. U. S. § 52T8. 190 Gom. V. Hall, 9 Gray, 262; Com. v. Tracy, 5 Mete. (Mass.) 536; Peo- ple V. Schenck, 2 Johns. (N. Y.) 479; In re Fetter, 23 N. J. Law, 311; In re €ubreth, 49 Cal. 435; People v. Wright, 2 Caines (N. Y.) 213; State v. Buzine, 4 Har. (Del.) 572; Com."V. Deacon, 10 Serg. & R. (Pa.) 125. But see Tullis v. Fleming, 69 Ind. 15. Some courts have held such an arrest legal when made without a warrant, and by a private person. Lavina v. State, 63 Ga. 513; MorreU v. Quarles, 35 Ala. 544. Ch. 2] FUGITIVES FROM JUSTICE. BiJ warrant to the agent sent by the demanding executive, authorizing him to arrest and transport the fugitive, or he may issue his war- rant to an officer of his own state, directing him to arrest the fugi- tive and turn him over to the agent of the demanding state.^^^ A fugitive cannot be surrendered, or even arrested, until pro- ceedings have been commenced against him in the demanding state, making, at least, a prima facie showing of guilt; or, as ex- pressed in the constitution, until he is "charged" with a crime. A complaint under oath, or an information, is suflflcient; there need be no indictment.^ °^ If he is already actually charged with a crime in the state upon which demand is made, he will not be sur- rendered,^'^ though it is otherwise if he is merely amenable to a charge, no charge having yet been made.*'* It would seem clear, from the constitutional provision and act of congress above mentioned, that the executive upon whom de- mand is made should have no discretion in the matter; that he cannot look beyond the requisition and the properly certified copy of the charge against the person demanded, and proof as to the identity of the person demanded, and the fact that he is a fugi- 191 There has been some conflict as to the requisites of the warrant. Some of the cases seem to require that it shall set out the evidence necessary to authorize the state executive to issue it. Church, Hab. Corp. § 474; Doo Woon's Case, 18 Fed. 898. But the weight of authority is to the contrary. "When the papers upon which a warrant of extradition is issued are with- held by the executive, the warrant itself can only be looked to for the evi- dence that the essential conditions of its issuance have been complied with, and it is sufficient if it recites what the law requires." Donohue's Case, 84 N. Y. 438. It is sufficient if it recites the affidavit or indictment on which it is based. It need not set it out in fuU nor be accompanied by it. Bx parte Stanley, 25 Tex. App. 372, 8 S. W. 645, and cases there cited. It need not show that the crime charged and recited in the demand is a crime in the •demanding state. Ex parte Stanley, supra. 192 In re Hooper, 52 Wis. 699; 58 N. W. 741; Ex parte White, 49 Cal. 433; Ex parte Sheldon, 34 Ohio St. 319; Ex parte Hart, 59 Fed. 894; State v. Huf- ford, 28 Iowa, 391; Ham v. State, 4 Tex. App. 645; State v. Swope, 72 Mo. 399. 198 In re Troutman, 24 N. J. Law, 634; Taylor v. Talntor, 16 WaU. 366; Taintor v. Taylor, 30 Conn. 242; Bx parte Hobbs, 32 Tex. Cr. R. 312, 22 S. W. 1035; Ex parte Sheldon, 34 Ohio St. 319; Work v. Corriagton, Id. 64; State V. Allen, 2 Humph. (Tenn.) 258. 194 See the. cases above cited. 64 APPREHENSION OB' PERSONS AND PROPERTY. [Ch. 2 tive."" He should not receive eyidence and determine the ques- tion of guilt or innocence of the crime charged,^"' nor should he determine the technical sufficiency of the charge,^"'' or look into the motive or purpose of the demanding executive, and so it has been held;^°* but there are cases to the contrary.^®* However this may be, the executive of the state upon which the demand is made can determine the question for himself; that is, he has the power, as distinguished from the right, to do so. If he thinks proper to exercise a discretion in the matter, and to deny the requisition, contrary to the act of congress, there is no way in which his action can be controlled, for the federal government cannot control it.°°* The executive on whom the demand is made may revoke his warrant at any time before its execution, if he is satisfied that it ought not to have been issued. ^"^ The words "other crimes," in the constitutional provision above referred to, include all crimes under the common law or statutes of the demanding state, though mere misdemeanors, and though not crimes in, the state upon which the demand is made.^" The lOB In re White, 5 C. O. A. 29, 55 Fed. 54. 19 8 In re White, supra. 19' State V. O'Connor, 38 Minn. 243, 36 N. W. 462; In re Voorhees, 32 N. J. Law, 141; Davis' Case, 122 Mass. 324; Pearce v. State, 32 Tex. Or. R. 301, 23 S. W. 15. The information, complaint, or affidavit, however, must charge a definite offense in the demanding state. State v. O'Connor, supra; Smith V. State, 21 Neb. 552, 32 N. W. 594. An affidavit that affiant "has reason to believe, and does believe," that the alleged fugitive committed a certain crime, is not sufficient Ex parte Spears, 88 Cal. 640, 26 Pac. 608. 108 Work V. Corrington, 34 Ohio St. 64; In re Manchester, 5 Cal. 237; Kings- bury's Case, 106 Mass. 223; In re Olarli, 9 Wend. (N. Y.) 212; Ex parte Reg- gel, 114 U. S. 642, 5 Sup. Ct. 1148; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; Ex parte Swearingen, 13 S. C. 74. There are statutes in some of the states making the surrender obligatory. See, also, Pearce v. Texas (U. S. Sup.) 15 Sup. Ct. 116; In re Sultan (N. O.) 20 S. E. 375; In re Van Sceiver (Neb.) 60 N. W. 1037. 190 Kentucky v. Dennison, 24 How. 66; Hartman v. Aveline, 63 Ind. 344; Kimpton's Case, 13 Am. Law Rev. 157. 200 Kentucky v. Dennison, 24 How. 66; In re Manchester, 5 Cal. 237. 201 Work V. Corrington, 34 Ohio St. 64. 202 Kentucky v. Dennison, 24 How. 66; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148; Brown's Case, 112 Mass. 409; In re Clark, 9 Wend. (N. Y.) 212; People V. Brady, 56 N. Y. 182; State v. Stewart, 60 Wis. 587, 19 N. W. 429; Ch. 2] FUGITIVES FROM JUSTICE. 65 person demanded must have been within the demanding state, and departed out of it, or there can have been no "fleeing," within the meaning of the constitution. A person, therefore, who commits an act without, taldng effect and constituting a crime within, a state,""* but who has never been within the state, cannot be demanded of the other state.^"* There need not, on the other hand, have been an actual "fleeing from justice," as the term is popularly understood. A man who while in one state commits a crime there, and after- wards goes into another state, though for other reasons than to escape, may be extradited.^"' As we have seen, a fugitive extradited from a foreign country, by virtue of provisions of a treaty between that country and the In re Voorhees, 32 N. J. Law, 141; In re Fetter, 23 N. J. Law, 311; Johnston V. Riley, 13 Ga. 97; Taylor v. Taintor, 16 Wall. 366; Roberts v. Eeilly, 116 TJ. S. 80, 6 Sup. Ct. 291; Com. v. Green, 17 Mass. 515; Davis' Case, 122 Mass. 324; Com. v. Johnston, 12 Pa. Co. Ct. R. 263; Morton v. Skinner, 48 Ind. 123; Wilcox V. Nolze, 34 Ohio St. 520. 203 Clark, Or. Law, 364. 20* Jones V. Leonard, 50 Iowa, 106; Hartman v. Aveline, 63 Ind. 344; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148; In re Greenough, 31 Vt. 279; Jackson's Case, 12 Am. Law Rev. 602, Fed. Cas. No. 7,125; Wilcox v. Nolze, 34 Ohio St. 520; In re Mohr, 73 Ala. 503. Lately, a man standing in North Carolina, by shooting across the boundary into Tennessee, killed a man in the latter state. It was held that he could not be tried and punished in North Carolina, as the murder was committed in Tj'ennessee. State v. Hall, 114 N. C. 909, 19 S. E. 602. The authorities of Tennessee then sought to extradite the offender, but the North Carolina court held that he could not be surren- dered, since, never having been in Tennessee, he could not be a fugitive from the justice of that state. State v. Hall (N. C.) 20 S. B. 729. In this case the authorities are collected, and the question is considered at length. The legislature could provide for a surrender in such cases. Id. 205 In re Voorhees, 32 N. J. Law, 141; Kingsbury's Case, 106 Mass. 223; In re White, 5 C. C. A. 29, 55 Fed. 54; In re Mohr, 73 Ala. 503; Ex parte Brown, 28 Fed. 653; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; State v. Richter, 37 Minn. 436, 35 N. W. 9. It has even been held that where a per- son starts a bank in which he is an officer, and the business of which is un- der his control, and afterwards goes to another state, and allows the bank, while to his knowledge in an insolvent condition, to receive a deposit, in vio- lation of the law of the state, he is guilty of the offense, though not in the state at the time of the deposit or afterwards, and is a fugitive from the jus- tice of that state. In re Cook, 49 Fed. 833. See, also, In re Sultan (N. C.) 20 S. E. 375. ciiiM.rnoc. — 5 66 APPREHENSION OF PERSONS AND PROPERTY. [Ch. 2 tJnited States, cannot be tried for an offense other than that for ■which he was extradited. A few courts have held that the same rule applies in the case of interstate extradition;^"* but the great weight of authority is to the effect that "a fugitive from justice, surrendered by one state upon the demand of another, is not pro- tected from prosecution for offenses other than that for which he was rendered up, but may, after being restored to the demanding state, be lawfully tried and punished for any and all crimes com- mitted within its territorial jurisdiction, either before or after ex- tradition." =" What we have said as to the right of one country to try and pun- ish a person forcibly abducted from another, applies also where a person is forcibly abducted from one state and brought into an- other.""* SEARCHES AND SEIZURES OF PROPERTY. 30. At common la'nr, as "well as by statute in most states, a magistrate, to recover stolen property or procure evi- dence of a crime, may issue a w^arrant directing a search -for, and seizure of, property. 208 State V. Hall, 40 Kan. 338, 19 Pac. 918; Ex parte McKnight, 48 Ohio St. 588, 28 N. E. 1034; In re Cannon, 47 Mich. 481, 11 N. W. 280; In re Fitton, 45 Fed. 471. 2 07 Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687; Id., 90 Ga. 347, 16 S. "B. 945; State v. Stewart, 60 Wis. 587, 19 N. W. 429; People v. Cross, 64 Hun, 348, 19 N. Y. Supp. 271, 135 N. Y. 536, 32 N. E. 246; Com. v. Wright, 158 Mass. 149, 33 N. E. 82; State v. Patterson, 116 Mo. 505, 22 S. W. 696; Harland v. Territory, 3 Wash. T. 131, 13 Pac. 453; Williams v. Weber, 1 Colo. App. 191. 28 Pac. 21; Ham v. State, 4 Tex. App. 645; State v. Glover, 112 N. C. 896, 17 S. E. 525; People v. Sennott, 20 Alb. Law J. 230; Hackney v. Welch. 107 Ind. 253, 8 N. E. 141. But see Waterman v. State, 116 Ind. 51, 18 N. E. 03, in which the conti-ary seems to be assumed; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Kealy (Iowa) 50 N. W. 283; Reid v. Ham, 54 Minn. 305, 56 N. W. 35. Note 185, supra. Where fraud or imposition is practiced upon the executive of the state from which a fugitive is extradited, the courts Or the demanding State will discharge the prisoner. Harland v. Territoiy, s«pra. See, also, Carr v. State (Ala.) 16 South. 150. «0 8 Notes 184-186, supra. Ch. 2] SEARCHES AND SEIZURES OP PROPERTY. 67 31. To authorize the issuance of such a -warrant, the same preliminary proceedings are generally necessary as are necessary to procure a -wrarrant of arrest. 32. The requisites of a search warrant are generally the same as the requisites of a •warrant of arrest, except as the diflference in the purpose of the w^arrant renders them different. A search warrant — (a) Must accurately describe the person w^hose place is to be searched, the place, and the property to be seized. (b) It must command the property to be brought be- fore the magistrate. (c) It must generally, both at common law and by statute, direct the search to be made in the day- time. In special cases it may direct a search in the nighttime. 33. A search warrant w^ill protect the oflficer or person executing it under the same circumstances as a warrant of arrest will protect him. The constitution of the United States declares that the people shall be secure iu their persons, houses, papers, and possessions, from unreasonable arrests, and that no warrant to search any place, or seize any person or thing, shall issue without describing them as Qearly as may be, nor witliout probable cause supported by oath or affirmation. This proYision does not apply to searches and sei- zures under authority of the states,^"" but the state constitutions contain the same or a similar restriction. The provision is sub- stantially a declaration of the common law. It does not prohibit such searches and seizures as were authorized by the common law, nor does it prohibit statutes authorizing reasonable searches and seizures in cases not within the common law.^^" It does, however, prohibit unreasonable searches and seizures, even under legislative authority, for a statute in violation of the constitution is void. 200 Reed v. Rice, 2 J. J. Marsh. (Ky.) 44. 210 Com. V. Dana, 2 Mete. (Mass.) 336; Allen v. Staples, 6 Gray (Mass.) 491; Santo V. State, 2 Iowa, 165. 68 APPREHENSION OF PERSONS AND PROPERTY. [Ch 2 At common law, in order to recover stolen property, or, it seems, to procure evidence of a crime, a magistrate, on a proper complaint, may issue a warrant directing the oflficer, or, as held by sOme courts, a private person,^^^ to whom it is addressed, to make a search for and seize the property described in the warrant." ^^ Such warrants are expressly authorized by statute in most of the states, and in addition to this there are statutes authorizing search warrants in cases not covered by the common law, such as warrants to search for and seize intoxicating liquors, lottery tickets, gambling ap- paratus, etc., kept in violation of law. Not only under the statutes and the constitutional provision men- tioned above, but also at common law, to authorize the issuance of a search warrant, there must be a complaint on oath or aflflrmation. This is essential. The usual form of a complaint for the purpose of obtaining a warrant to search for stolen property is for the com- plainant to aver in direct terms the fact that the property has been stolen, and then to aver that he hath cause to suspect, and doth suspect, that it is secreted in the house or place proposed to be searched."^^ The form of the complaint * in statutory cases is gen- erally regulated by the statute. The facts inducing suspicion should be stated so that the magistrate may determine whether there is 211 Meek V. Pierce, 19 Wis. 300; ante, p. 33. 212 1 Cliit Cr. Law, 03; Bell t. Clapp, 10 Johns. (N. Y.) 263; State v. Miller, 48 Me. 576; Allen v. Colby, 47 N. H. 544. 213 Com. V. PhiUips, 16 Pick. (Mass.) 214. * The following is a form of complaint to procure a warrant to search for and seize stolen property, and to arrest the person in whose possession it is found: State (or Commonwealth) of , County of , to wit: A. B., upon oath, complains that on the day of . A. D. , in the county aforesaid, one overcoat of the value of twenty-five dollars, of the goods and chattels of the said A. B., was feloniously stolen, taken, and car- ried away from him by C. D., and that he has just cause to suspect, and does suspect, that the said property is concealed in the dwelling house of the said C. D., at , in said county. The said A. B. therefore prays that the said dwelling house may be searched, and the said stolen property seized and disposed of according to law, and that the said C. D. may be apprehended and dealt with according to law. Dated this day of , A. D. . [Signed] A. B. (Here follows the jurat of the justice as in the form on page 24, ante.) Oh. 2] SEARCHES AND SEIZURES OP PROPERTY. 69 probable cause, for, in the absence of this, a warrant cannot be issned.^^* Tbe warrant f should show that the necessary complaint under oath or affirmation was made.^^" Some courts hold that it must be under seal, but, as we have seen, there is a conflict on this point.^^° General search warrants, like general warrants of arrest, are void. To be valid, the warrant must accurately describe the per- son whose place is to be searched, the place, and the things to be seized.^^^ No other place than that described can be searched,^^' 21* 1 Chit. Cr. Law, 64; Sandford v. Nichols, 13 Mass. 286; Com. v. Lottery Tickets, 5 Cush. (Mass.) 369. tThe following is a form of a search warrant. But the form may differ In the various states: State (or Commonwealth) of , County of , to wit: To the Sheriff or any Constable of said County: Whereas, A. B., of the county aforesaid, has this day made complaint on oath, before me, X. Y., a justice of the peace of said county, that on the day of — , A. D. , in said county, one overcoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B., was felo- niously stolen, taken, and carried away by C. D., and that he has just cause to suspect, and does suspect, that the said property is concealed In the dwelling house of the said C. D., at , in said county. Now, therefore, you are commanded to search the said dwelling house, and seize said stolen property, and bring the same, and the said C. D., the person In whose possession it is found, before me at my oflQce in said county, to be disposed of and dealt with according to law. Given under my hand and seal this day of , A. D. . [Signed] X. Y., J. P. [Seal.] 215 state V. Staples, 37 Me. 228; State v. Carter, 39 Me. 262; Jones v. Fletcher, 41 Me. 254. 216 People V. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; ante, p. 28. 217 Reed V. Rice, 2 J. J. Marsh. (Ky.) 44; Sandford v. Nichols, 13 Mass. 286; Grumon v. Raymond, 1 Conn. 40; Humes v. Taber, 1 R. I. 464; People v. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; Santo v. State, 2 Iowa, 165; Meek v. Pierce, 19 "Wis. 300; Stone v. Dana, 5 Mete. (Mass.) 98; Ashley v. Peterson, 25 Wis. 621; Dwinnells v. Boynton, 3 Allen (Mass.) 310; Com. v. Intoxicating Liquors, 109 Mass. 371; Com. v. Intoxicating Liquors, 115 Mass. 145; Jones V. Fletcher, 41 Me. 254; Flaherty v. Longley, 62 Me. 420; Tuell v. Wrink, 6 218 See the cases above cited; and see State v. Spencer, 38 Me. 30; Jones V. Fletcher, 41 Me. 254; McCllnchy v. Barrows, Id. 74; State v. Thompson, 44 Iowa, 399. But see Dwinnells v. Boynton, supra. 70 APPREHENSION OF PERSONS AND PROPERTY. [Gh. 2 and it has been held that no other property than that described can be seized."" It has been held sufficient, where the warrant and the complaint on which it is issued are on the same paper, for the war- rant to refer to the complaint for a description of the property to be seized.^^" The warrant must command that the property to be seized shall be brought before the magistrate, to be disposed of according to law. It is Toid if it leaves the disposition of the property to the ministerial officer.^" The rules in regard to breaking doors in executing a search war- rant are substantially the same as those stated in treating of arrest under a warrant. As a rule, locks should not be broken until the keys are demanded and refused, provided there is any person at hand upon whom demand may be made.^^^ The statutes authorizing search warrants must in all cases be strictly complied with. Some of the statutes, for instance, require the complaint to be fully set forth in the warrant, and a warrant failing to comply with the statute, as where it fails to name the complainants, is void.^^* It is possible that a search warrant may direct a search to be made in the nighttime, but it is doubtful, except in cases of special necessity.^^* However this may be, the statutes very generally re- quire that searches shall be made in the daytime only, except in special cases.''^' Where they allow a search in the nighttime, it may, of course, be made.^^° BlacM. (Ind.) 249; State v. Whiskey, 54 N. H. 164. For descriptions of prop- erty held sufficient, see State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 773. For de- scription of premises held sufficient, see Com. v. Intoxicating Liquors, 146 Mass. 509, 16 N. E. 298. 219 Orozier v. Cundey, 6 Barn. & C. 232, 9 Dowl. & R. 224; Stone v. Dana. 5 Mete. (Mass.) 98. 220 Com. V. Dana, 2 Mete. (Mass.) 329. 221 Cooley, Const. Lim. 369. 222 Androscoggin v. Richard, 41 Me. 233. 223 Guenther v. Day, 6 Gray (Mass.) 490. And see Hussey v. Davia. 58 N. H. 317. 224 2 Hale, P. C. 150. 22 Cooley, Const. Lim. 369. 22 6 Com. V. Hinds, 145 Mass. 182, 13 N. B. 397. Ch. 2] TAKING PROPERTY FROM PERSON ARRESTED. 71 A search warrant will protect the ofQcer executing it under the same circumstances as a warrant of arrest will protect him. In- deed, the rules stated in treating of warrants of arrest are generally applicable to search warrants, except in so far as the difference in the object of the warrant may make them inapplicable. TA.KING PROPERTY FROM PERSON ARRESTED. 34. Property found in the possession of a person arrested cannot be taken from him and turned over to the magis- trate, unless it -was apparently used in committing the crime, or is the fruit of the crime, or furnishes the prisoner the means of committing violence or escaping, or may be used as evidence. If personal property, found in the possession of a person when he is arrested, was apparently used by him in the commission of the crime, or if it was obtained by the crime, or if by its means the prisoner may commit Tiolence, or effect an escape, or if it may be used as evidence against him, it is lawful for the person making the arrest to take it from him; '^" but a prisoner cannot be de- prived of his money or other property if it is in no way connected with the charge or proof against him, or may not be used by him in violence or in escaping. "To take away the party's money in such cases is to be deprive him of the lawful means of defense." ^^^ The fact, however, that property has been illegally obtained from a per- son, renders it none the less competent evidence against him.''^" 22T1 Bish, Cr. Proc. §§ 210-212; Reifsnyder v. Lee, 44 Iowa, 101; Commer- cial Exch. Bank v. McLeod, 65 Iowa, 665, 19 N. W. 329, and 22 N. W. 919; Houghton V. Bachman, 47 Barb. (N. T.) 388; Rex v. Burgiss, 7 Car. & P. 488. 2 28 Reg. V. McKay, 3 Crawf. & D. 205; Rex v. Kinsey, 7 Car. & P. 447; Rex V. O'Donnell, Id. 138; Rex v. Jones, 6 Car. & P. 343; Commercial Exch. Bank v. McLeod, supra; Welch v. Gleason, 28 S. C. 247, 5 S. E. 599. 228 Post, p. 538; State v. Plynn, 36 N. H. 64. 72 FEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 CHAPTER III. PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. 35. Preliminary Examination. 36. Bail— In General. 37-38. Right to Release on Ball. 39. Sufficiency of Bail. 40. Remedy on Denial of BalL 41. The Ball Bond or Recognizance. 42. Release of Sureties. 43. Breach of Bond or Recognizance, or Forfeiture of BalL 44. Commitment. 45. Habeas Corpus. PRELIMINARY EXAMINATION. 35. Both at common law, and very generally by stat- utes in tlie different states, a person arrested on a charge of crime is entitled to a preliminary examination before a proper magistrate, ■without unnecessary delay, to deter- mine -whether a crime has in fact been committed, and, if so, -whether there is probable cause to suspect that he is guilty. Without such an examination as soon as the cir- cumstances will permit, the detention of the accused will be unla"wful. EXCEPTIOITS— (a) The right to an examination may be w^aived by the accused. (b) An examination is not necessary w^here the ac- cused is a fugitive from justice. (c) A coroner's inquest and commitment in homicide cases is equivalent to an examination before a magistrate, in the absence of a statutory pro- vision to the contrary. (d) If an indictment against the accused has been found by the grand jury, an examination be- fore a magistrate is not necessary. ph. 3] PEELJMINARY EXAMINATION. 73 When an offender or suspected offender has been arrested in any of the modes mentioned in the preceding chapter, he must, as soon as the circumstances will permit, be taken before a proper magis- trate, and given a preliminary hearing or examination, for the pur- pose of determining whether there is sufficient ground for detaining him for trial. In most of the states, if not in all of them, it is so provided by statute, but, independently of any statutory provision on the subject, a preliminary examination is necessary at common law. If it is denied the accused, or if it is illegally conducted, his detention will be unauthorized.^ There are some exceptions to this rule. In the first place, the right to an examination is a right which the accused may waive.'' The waiver, however, to be effective against him, must have been made freely. A waiver under fear of personal violence cannot estop him.' Generally, it is provided that informations may be filed without a preliminary examination, vhere the accused is a fugitive from justice.* In the absence of statutory provision to the contrary, the accusa- tion returned by a coroner's jury upon an inquisition, and the com- mitment by the coroner, have the force and effect of an examina- tion and commitment by a magistrate, though the inquisition was held in the absence of the accused. At common law, the accused can be tried on such an accusation. It is equivalent to an indict- ment." This, of course, can apply only in cases of homicide. The examination before a magistrate has nothing to do with the finding of an indictment against the accused by the grand jury, un- 1 Simmons v. Vandyke (Ind. Sup.) 37 N. E. 973; State v. Devine, 4 Iowa, 443 J Papineau v. Bacon, 110 Mass. 319; State v. Miller, 31 Tex. 564; Jack- son V. Com., 23 Grat. (Va.) 919. 2 State V. Cobb, 71 Me. 198; Stuart v. People, 42 Mich. 255, 3 N. W. 863; In re Secrest, 36 Kan. 729, 14 Pac. 144; Butler v. Com., 81 Va. 159; Cowell v., Patterson, 49 Iowa, 514; State v. Mays, 24 S. C. 190; Benjamin v. State, 25 Fla. 675, 6 South. 433; McCoy v. State, 46 Ark. 141; Washburn v. People, 10 Mich. 372; People v. Jones, 24 Mich. 215; People v. Wright, 89 Mich. 70, 60 N. W. 792. But see Ex parte Ah Bau, 10 Nev. 264. 8 In re Secrest, supra. * People V. Kuhn, 67 Mich. 463, 35 N. W. 88; State v. Woods, 49 Kan. 237, SO Pac. 520. 5 Ex parte Anderson, 55 Ark. 527, 18 S. W. 856; Com. v. LafEerty, 11 Pa. Co. Ct. R. 513; post, p. 130. 74 PKELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 less by reason of statutory provisions, as, for instance, where an in- dictment is allowed to be based upon the minutes of the preliminary examination. The two proceedings are entirely distinct. The fact, therefore, that the grand jury are investigating the charge against the accused does not deprive him of his right to an examination before a magistrate to determine whether he should be held to await the decision of the grand jury.* A discharge by the magis- trate would not prevent an indictment by the grand jury; and an indictment would itself authorize or require detention of the ac- cused, so that after an indictment an examination would be an idle ceremony, and therefore unnecessary. It is required, both by the statutes and at common law, that the examination shall be had without any further delay than the cir- cumstances render unavoidable.'' Unnecessary delay will render the detention of the accused a false imprisonment." If necessary, the hearing may be adjourned from time to time. The length of time is very generally limited by statute; but, even at common law, an adjournment for an unnecessary length of time is unlawful.* In no case, unless a statute should expressly so permit, which is very improbable, can the hearing be adjourned to await the mere convenience of the magistrate or the prosecuting oflScers.^" « State V. Recorder, 42 La. Ann. 1091, 8 South. 279. 7 Scavage v. Tateham, Cro. Ellz. 829; In re Peoples, 47 Mich. 626, 14 N. W. 112; Davis v. Capper, 10 Barn. & C. 28; Wright v. Court, 4 Bam. & C. 596; State v. Freeman, 86 N. C. 683; and see cases hereafter cited. If a prisoner cannot he brought before a magistrate on the night of his arrest the officer may place him in jail for the night. Wiggins v. Norton, 83 Ga. 148, 9 S. E. G07. See further, as to necessary delay, Arnold v. Steeves, 10 Wend. (N. Y.) 515; Wheeler v. Nesbitt, 24 How. 544. A party may waive his right to be immediately taken before a magistrate. Nowak v. Waller, 56 Hun, 647, 10 N. Y. Supp. 199. 8 Tubbs V. Tuliey, 3 Cush. (Mass.) 438; Davis v. Capper, supra; State v. Kruise, 32 N. J. Law, 313. » Day is v. Capper, supra; Hamilton v. People, 29 Mich. 173; Pardee v. Smith, 27 Mich. 43. An adjournment for an unreasonable time, or for a greater length of time than is fixed by statute, may render the magistrate and the officer having the custody of the accused guilty of false imprison- ment. Davis V. Capper, supra. 10 In re Peoples, supra. Absence of the county attorney from the county, when a warrant is returned to a justice, is ground for a reasonable con- Unuance. State v. Nerbovig, 33 Minn. 480, 24 N. W. 321. Ch. 3] PEELIMINAEY EXAMINATION. 75 Before Whom. At common law, and by the statutes in most of the states, the officer may, unless the warrant directs otherwise, take his prisoner either before the magistrate who issued the warrant, or before any other magistrate having jurisdiction of the offense.^^ In other states he can only take him before the magistrate who issued the warrant, unless he is absent, in which case he may take him before some other magistrate.^^ In some states the statutes provide for a change of venue to some other justice on the ground of prejudice, or for other rea- sons; ^^ but in others, where the statutes providing for a change of venue from one justice to another do not expressly mention pre- liminary examinations, it has been held, on a construction of them, that they do not apply to such examinations, but only to actions or proceedings which the justice has power to try and determine.** Mode of Conducting Examination. The mode in which a preliminary examination must be conducted is almost entirely regulated by statute, and these statutes must be strictly followed, or the proceedings will be void.** Same — Complaint. It is generally required that a complaint shall be made against the accused. Where the accused has been arreste'd by warrant, the complaint made for the purpose of procuring the issuance of the warrant serves, in most states, as the complaint for the purpose of the examination. A complaint is just as necessary where the arrest has been made without a warrant.*^ In some states it is held, however, that, as the complaint or affi- davit made for the purpose of procuring an arrest is merely for the 11 Foster's Case, 5 Coke, 59; Com. v. Wilcox, 1 Cush. (Mass.) 503; Wiggins V. Norton, 83 Ga. 148, 9 S. B. 607; ante, p. 57. 12 Batchelder v. Currier, 45 N. H. 460; People v. Fuller, 17 Wend. (N. Y.) 211. IS State V. Sorenson, 8-1 Wis. 27, 53 N. W. 1124. 14 Duffles V. State, 7 Wis. 567; State v. Bergman, 37 Minn. 407, 34 N. W. 787. 15 State V. Devine, 4 Iowa, 443; Papineau v. Bacon, 110 Mass. 319; Jack- son V. Com., 23 Grat. (Va.) 919. 16 Tracy v. Williams, 4 Conn. 107. No warrant need be issued, however, as that would be unnecessary. Ante, p. 39. 76 PEELIMINAUY EXAMIKATION, BAIL, AND COMMITMENT. [Ch. 3 purpose of satisfying the magistrate that a crime has been com- mitted and that there is probable cause to suspect the accused, if it is defective it will not invalidate the subsequent examination and commitment of the accused; that the accused can only avail himself of defects therein before his examination and commit- ment.^' And it is also held that if, upon the examination, it is found that the accused is probably guilty of an offense other than that charged in the complaint, he should not for that reason be dis- charged. It is the duty of the magistrate to commit him for trial for the offense disclosed by the evidence.^* Even when a complaint is essential, yet where it is insufficient, because it fails to charge an offense, or because it does not charge the particular offense of which the evidence shows the accused is probably guilty, or for any other reason, the magistrate is not bound to discharge him, but may hold him until a new complaint is made.^" In some states the complaint made for the arrest and examina- tion of the accilsed is of no force after the warrant of arrest is is- sued. The examination is had upon the warrant, and not upon the complaint. Same — Attorneys for the State and for the Accused. The state is generally, but not necessarily, represented at the hearing by the prosecuting attorney. The prosecutor, unless it is prohibited by law, may also employ private counsel to assist.^" At common law it was held that the accused had no right to be repre- sented by counsel, since the proceeding is a preliminary investiga- tion only, and not conclusive upon him;^^ but by constitutional provisions and by statute in most of the states he is given this right."* Same — Presence of Accused. Probably at common law the accused could not insist on being present at the hearing, but it is very generally provided by statute that the examination shall be conducted in his presence.^* IT People V. Smith, 1 Cal. 9. 18 People V. Smith, supra. 18 See State v. Shaw, 4 Ind. 428. 2 People V. Grady, 66 Hun, 465, 21 N. T. Supp. 381. 21 Cox V. Coleridge, 1 Barn. & C. 37. 22 Post, p. 432. 2 3 See post, p. 423. Ch. 3] PRELIMINARY EXAMINATION. 77 Same — Intimidation and Restraint of Accused. The accused, when brought before a magistrate for his examina- tion, should not be subjected to intimidation or unnecessary personal restraint. He should not be handcuffed or otherwise bound, unless he is unruly.^* The mere fact, however, that he was handcuffed when he waived his examination will not affect the validity of a subsequent indictment^'' Same — Examination of Witnesses. At common law witnesses for the accused are not necessarily ex- amined at the preliminary hearing, and the accused probably cannot insist upon their being examined;^* but the better practice, is to examine them if the accused asks it, and if their testimony may aid in determining whether there is probable cause.^' In some states the statute expressly provides that the witnesses produced by the accused shall be examined. The accused is also allowed by statute, though not at common law, to cross-examine the witnesses against him. It is generally provided by statute that the magistrate, while ex- amining any witness, may in his discretion exclude from the place of examination all the other witnesses; and that he may also, if requested, or if he sees cause, direct the witnesses for or against the accused to be kept separate, so that they cannot converse with each other until they are examined. This discretionary power has always existed at common law. It is provided in most states that the testimony of the witnesses examined shall be reduced to writ- ing by the magistrate, or under his direction, and shall be signed by the witnesses. A failure in this respect will be fatal to all sub- sequent proceedings, where the subsequent prosecution is bv in- formation,^^ though it would not render an indictment invalid, or affect the validity of proceedings thereon. In some of the states 24 2 Hawk. P. C. c. 28, § 1; Britt. c. 5, fol. 14; The Union, c. 5, § 1 (54): State v. Krin^r, 64 Mo. 591; People v. HaiTin^on, 42 Cal. 165. But see Layer's Case, 16 How. State Tr. 130. 2B State v. Lewis, 19 Kan. 260. 2 8 See IT. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685. 27 Whart. Or. PI. & Prac. § 72; Anon., 2 Car. & K. 845. 2 8 People V. Chapman, 62 Mich. 280, 28 N. W. 896. Failure in this respect cannot be cured by amendment, after the justice has made his return to the circuit court. People v. Chapman, supra. Where the testimony was reduced 78 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 the statute does not require the testimony of the witnesses to be re- duced to writing, and, where this is so, it is not necessary to do so." It is not necessary to do so unless the statute requires it Same — Examination of Accused. It is provided by the constitutions of the United States, and of most if not all the states, that no person shall be compelled to be a witness against himself in a criminal case, and the accused, there- fore, cannot be examined as a witness unless he chooses to submit to examination.'" At common law he was not allowed to be a wit- ness in his own defense, but his incompetency in this respect has been very generally removed by statute, and he can now testify in his own behalf on his preliminary examination.'^ When he does so, he becomes, like any other witness, subject to cross-examination by the attorney for the state, and, as we shall see, his testimony may be used against him at his trial.'* Same — Statement of Accused. Not only by statute in some states, but also at common law, or by early English statutes which are old enough to be a part of our common law," the accused is entitled, but cannot be compelled, to make a statement not under oath.'* In a few states he may be cross-examined. This statement may be used against him at the trial,"* and the magistrate must so inform him. Failure to caution to writing and signed, failure to read it to the witnesses Is waived by not objecting to the filing of the information. People v. Gleason, 63 Mich. 626, 30 N. W. 210. 2s Redmond v. State, 12 Kan. 172. so Post p. 540. 51 State V. Kinder, 96 Mo. 548, 10 S. W. 77. Post, p. 543. 52 Post, p. 546. 53 Rex V. Fagg, 4 Car. & P. 566; Rex v. Green, 5 Car. & P. 312. His state- ment ought not to be taken until after the evidence against him is all re- ceived, and then he should be aslied if he has anything to say in answer to the charge. Rex v. Fagg, supra. s* If the statement is under oath, It cannot be used against him. Rex v. Smith, 1 Starlile, 242; Rex v. Rivers, 7 Car. & P. 177; Reg. v. Pikesley, 9 Car. & P. 124. SB Post, p. 528. Where two prisoners are taken before a magistrate, and both make a statement, the statement of one cannot be used against the other on the trial. Reg. v. Swinnerton, 1 Car. & M. 503. Ch. 3j PRELIMINARY EXAMINATION. 79 him in this respect will render the statement inadmissible against him.'* Same — Suffidmcy of Evidence. Neither at common law nor by statute is the same degree of proof required in order that the magistrate may commit or bind over the accused to await action by the grand jury, or to await trial, as is nec- essary to convict him on his trial. The rule at common law is stated by Blackstone to be that if "it manifestly appears either that no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful to discharge him. Otherwise he must be either committed to prison or give bail." °^ With us, however, more evidence is required. The statutes generally provide that the magistrate must find that an offense has been committed, and that there is probable cause to be- lieve the accused guilty;'^ and, even in the absence of such a pro- vision, the evidence should show this much." It need not, either at common law or under the statutes, show more.*" Statutes providing that the magistrate shall examine the com- plainant and his witnesses on oath are held directory as to the quan- tity of testimony to be taken. They mean that the magistrate shall receive such testimonv from the complainant and his witnesses as may be offered.*^ Same — Binding Over the Witnesses. At common law, in cases of felony, the magistrate may require the material witnesses for the prosecution to enter into recogni- zances to appear at the trial of the accused, and if they cannot find security they may be committed to jail.*'' In some of our states, by statute, the power of the magistrate in this respect extends to 38 Rex V. Green, 5 Car. & P. 312; post, p. 528. 37 4 Bl. Comm. 296; Bostick v. Rutherford, 4 Hawks (N. C.) 90; Ex parte Bell, 14 Rich. (S. C.) 13. us Where it is so provided, the record of the magistrate should show the existence of these conditions. State v. Tennison, 39 Kan. 726, 18 Pac. 948. 8 9 State V. Hartwell, 35 Me. 129; Burr's Trial, 11, 15; Whart. Cr. PI. & Prac § 73; Yaner v. People, 34 Mich. 286; Reg. v. Johnson, 2 Car. & K. 394; Anon., Id. 845. 40 People V. Sherman (Cal.) 32 Pac. 879, and cases cited above. 41 People V. Curtis, 95 Mich. 212, 54 N. W. 767. 4 2 2 Hawk. P. C. c. 10, § 2. 80 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 misdemeanors.** In some states the hardship resulting from this rule, where witnesses are unable to find sureties, has induced the legislature to pass statutes requiring them to be allowed to go at large on their own recognizance. Same- — Decision of Magistrate and Return. If the magistrate deems the evidence insufficient to show prob- able cause for holding the accused, he must discharge him. This discharge, however, will not prevent another complaint and exam- ination for the same offense.** If, on the other hand, the magis- trate determines that he should hold the accused for trial, he must make an order to that effect, and must fix the amount of bail, if the offense is bailable. The question of bail and the commitment will be presently explained. The statutes generally require that the magistrate shall certify the examination and proceedings, and return the same to the clerk of the court before which the accused is bound to appear, and a proper return is generally essential to the validity of an informa- tion filed in the higher court, and to the jurisdiction of the higher court thereon.*" Effect of Want of Examination or Irregularities Therein. It is not every irregularity in the preliminary examination that will affect the subsequent proceedings against the accused. Fail- ure to grant the accused a preliminary hearing, as we have already seen, or irregularities at the hearing, cannot affect the validity of an indictment against him; for the right of the grand jury to in- vestigate a charge and present an indictment in no way depends upon a preliminary examination.*^ In some states an indictment is allowed to be founded on the minutes of a preliminary examina- tion, and the rule there would be different.*' *3 Markwell v. Warren Co., 53 Iowa, 422, 5 N. W. 570. 44Templeton v. People, 27 Mich. 501; State v. Ritty, 23 Ohio St. 562; Cowell V. Patterson, 49 Iowa, 514; Ex parte Walsh, 39 Cal. 705; State v. Jones, 16 Kan. 608. *5 As to the sufficiency of the return, see People v. Dowdigan, 67 Mich. 95, 38 N. W. 920. *8 Osborn v. Com. (Ky.) 20 S. W. 223; Slate v. Schieler (Idaho) 37 Pac. 272. Contra, Com. v. Hughes, 11 Pa. Co. Ct. R. 470. 47 See State v. Wise, 83 Iowa, 596, 50 N. W. 59; State v. Helvin, 65 Iowa, 289, 21 N. W. 645. Ch. 3] PRELIMINARY EXAMINATION. 81 In those states, however, where the prosecuting attorney is al- lowed to file an information against the accused in lieu of an in- dictment, the preliminary examination is intended to taJie the place of a presentment by the grand jury, and furnish the same protection against prosecutions without cause. Here a proper preliminary examination, unless it is waived,** is not only a right of the accused, but is essential to the validity of an information upon which he is to be tried.** In such jurisdictions, where the statute requires the examining justice to hold the accused to answer, when he is satis- fled that an offense has been committed, and that there is probable cause to believe the accused guilty, it has been held that the de- cision of the justice on these points is a judicial determination nec- essary to the jurisdiction of the higher court, and that an informa- tion filed in the higher court before any return has been made, showing such a decision by the justice, should be quashed, and this, notwithstanding a proper return is made pending the motion to quash. ^'' Presumption of Regularity of Proceedings. The proceedings before the magistrate are presumed to have been regular."^ Where a statute, for instance, allows a magistrate to try a complaint where the punishment may be within or beyond his jurisdiction to try, and to bind over the accused for trial in the higher court if in his opinion the offense is so aggravated as to re- quire a greater punishment than he can impose, his record need not show that the offense was so aggravated as to require binding over, for the presumption in favor of his judgment binding him over will supply the omission.^^ So, also, where the testimony at the preliminary examination is not required to be, and is not, reduced to writing, it will be presumed, in the absence of any showing to the «8 Stuart v. People, 42 Mich. 255, 3 N. W. 863; ante, p. 78. 49 O'Hara v. People, 41 Mich. 623, 3 N. W. 161; People v. Evans, 72 Mich. 367, 40 N. W. 473. BO People v. Evans, supra. It has been held, however, that, where the jus- tice's return fails to show a waiver of examination, the court may order a further return, and when it is made the information will be upheld. People V. Wright, 89 Mich. 70, 50 N. W. 792. 51 Boynton v. State, 77 Ala. 30. B2 State V. Watson, 56 Conn. 188, 14 Atl. 797. But see People v. Evans, 72 Mich. 367, 40 N. W. 473. CKIM.PKOC. — 6 82 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 contrary, that it was suflQcient to authorize the decision of the mag- istrate, whatever that decision may be.°' Waiter of Objections. As we have seen, the accused may waive his right to a prelimi- nary examination. He may also, though he has not waived an ex- amination, waive the objection that he was not given one, and he may waive any irregularities in the examination. As a rule, he will be deemed to have waived them if he has failed to make objec- tions at the proper time. If, for instance, he enters into a recog- nizance, or gives a bail bond, for his appearance at court to stand his trial, without making any objection to the suflBciency of the warrant on which he was arrested, or the suflflciency of the com- plaint or information on which he is held, he waives any defects in this respect.^* Giving bail is also a waiver of any irregularity in the order of commitment.' ° Failure to plead in abatement in the trial court is a waiver of the objection that there has been no preliminary examination. °° And, generally, objections to matters of form in the commitment proceed- ings are waived, if not raised before plea and trial."' Power to Convict and Punish. In all the states magistrates have exclusive jurisdiction to try and punish for certain petty offenses. In some states they have concurrent jurisdiction with the higher court over certain offenses. They act in a twofold capacity, — the one, that of an examining magistrate preparatory to binding the party to answer to the higher court upon presentment to be made by the grand jury, or, in some states, information to be filed by the prosecuting attorney; the other, that of a court competent to exercise final jurisdiction, or, in other words, a concurrent jurisdiction with the higher court to try the case, subject to an appeal, in which case a trial de novo is had in the higher court on the original complaint." It has been held us Redmond v. State, 12 Kan. 172. 04 State v. Longton, 35 Kan. 375, 11 Pac. 163: Cunningham v. State, 116 Ind. 433, 17 N. E. 904; State v. Perry, 28 Minn. 455, 10 N. W. 778. 5 5 Cunningham v. State, supra. 5 6 State V. Woods, 49 Kan. 237, 30 Pac. 520. B7 March v. Com. (Pa. Sup.) 14 Atl. 375; People v. Hanifan, 98 Mich. 32, 56 N. W. 1048. S8 Com. V. Harris, 8 Gray (Mass.) 470. Ch. 3] BAIL. 83 that a magistrate clothed with this double power may, iii cases where the higher court has a concurrent original jurisdiction, bind over the party if the circumstances of the case seem to demand a higher pun- ishment than he can inflict, although he has jurisdiction to deter- mine the case and punish the offender by a penalty more limited than might be imposed by the higher court.°° In some states the statute expressly so provides.' BAIL. 36. Bail is security gjiven by a person charged with a crime for his appearance for further examination, or for trial, whereupon he is sujffered to go at large.*" Admission to bail has been said to consist in the delivery, or bail- ment, of the accused to his sureties on their giving security, he also entering into his own recognizances, for his appearance, at the time and place of trial, there to surrender and take his trial. In the meantime he is allowed to be at large, being supposed to remain in their friendly custody.*^ This definition is still good as far as it goes, but it does not cover all cases. A person accused of crime may, on adjournment of his preliminary examination, be admitted to bail to secure his appearance for further examination, and not for trial.** And in some cases he may be released on his own re- cognizance, without sureties. Another form of security for the appearance of a person charged with crime was mainprise, but it is now obsolete. "The chief, if not only, difference between bail and mainprise seems to be this, that a man's mainpernors are barely his sureties, and cannot justify the detaining or imprisoning of him themselves, in order to secure his appearance ; but that a man's bail are looked upon as his jailers of his own choosing, and the person bailed is, in the eye of the law, 59 Com. V. Harris, supra; Com. v. Sullivan, 156 Mass. 487, 31 N. E. 647. «^o We are here dealing witli bail before trial and conviction. In some cases bail may be allowed after a conviction, pending an appeal or writ of error. 01 Harris, Cr. Law, 343; 4 Bl. Comm. 297; Nichols v. IngersoU, 7 Johns. (N.. Y.) 145. 82 Goodwin v. Dodge, 14 Conn. 206. 84 PEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 for many purposes, esteemed to be as much in the prison of the court by which he is bailed as if he were in the actual custody of the proper jailer." °^ The form of security is either a bond or a recognizance. These will be presently explained at length. It is sufficient to say here that a bail bond is a contract under seal, just like any ordinary bond, conditioned that the accused shall appear as therein pro- vided. A recognizance is similar in so far as the obligation to pay money and the condition is concerned, but, instead of being a con- tract under seal, it is a contract of record, being acknowledged by the parties, and then entered or filed in the records of the court At common law a deposit of money by the accused in lieu of fur- nishing sureties was not allowed, but it is now allowed by statute in some cases. At common law any magistrate, judge, or court having jurisdic- tion to examine a charge of crime, and commit for trial, or to try and punish for, a crime, has, as incident to such jurisdiction, the power to admit to bail in cases where the offense is bailable. Ju- risdiction to admit to bail is now very generally regulated by stat- ute. It is conferred upon magistrates before or at the preliminary examination, and provision is also made for application to the higher courts or judges, including the judges of the supreme court. The question must be determined in each state by reference to the statute. The power to admit to bail is a judicial power.'* It can only be exercised by those having judicial powers. It cannot be exercised by a clerk, or other ministerial officer,' ' nor can it be delegated." 6 8 2 Hawk. P. 0. c. 15, §§ 2, 3. 64 Gregory v. State, 94 Ind. 384; Linford v. FItzroy, 13 Q. B. 240; State V. Mills, 2 Dev. (N. C.) 555; Reg. v. Badger, 4 Q. B. 468; and see cases here- after cited. «6 Gregory v. State, supra; State r. Mills, supra; State v. Wlninger, 81 Ind. 51; State v. tlill, 3 Ired. (N. 0.) 398; Wallenwcber v. Com., 3 Bush (Ky.) 68; State v. Jones, 3 La. Ann. 9; Solomon v. People, 15 111. 291; Com. v. Roberts, 1 Duv. (Ky.) 199; Dugan v. Com., 6 Bush (Ky.) 305; Com. v. Lee, 3 J. J. Marsh. (Ky.) 698; Governor v. Jackson, 15 Ala. 703. It cannot be 6 6 Butler V. Foster, 14 Ala. 323; Jacquemine v. State, 48 Miss. 280; State V. Clark, 15 Ohio, 596; Morrow v. State, 5 Kan. 563: Antonez v. State, 26 Ala. 81. Ch. 3] RIGHT TO RELEASE ON BAIL. 85 A statute allowing the clerk of the court to determine whether an offense is bailable, or to fix the amount of bail, would be unconsti- tutional, as conferring judicial powers on a ministerial officer/^ A ministerial officer, however, may be, and is in many jurisdictions, allowed to approve and accept bail, after it has been allowed and fixed by the magistrate or judge, as that is a ministerial act^° A magistrate may become criminally liable either for wrongfully denying bail, or for wrongfully allowing it. To refuse or delay to bail any person entitled to bail, or to willfully require excessive bail, is a misdemeanor, not only by statute, but also at common law.*" On the other hand, a magistrate who releases a prisoner on bail, where the offense is not bailable, is guilty of a negligent escape.'"' SAME— RIGHT TO RELEA.SE ON BAIL. 37. At common la-w it -was -witliirL the discretion of the magistrate, judge, or court to allo'w or deny bail in all cases. It could be allo-wed -wrhenever it was deemed suf- ficient to insure the appearance of the accused, but not otherwise, and w^as therefore always allowed in cases of misdemeanor, but w^as generally denied in cases of fel- ony, and almost always denied in cases of felony punish- able by death, 38. It is now generally declared by the constitutions of the different states, or provided by statute, that the accused shall have an absolute right to give bail in all exercised by the governor of the state. Governor v. Fay, 8 La. Ann. 490. In England a sheriff had judicial powers to a certain extent, and it seems that he was allowed to admit to bail. See 1 Chit Or. Law, 98; Bengough v. Rossiter, 2 H. Bl. 418; Posteene v. Hanson, 2 Saund. 59. He has also been allowed the power in this country, in some jurisdictions. Dicisinson v. Kings- bury, 2 Day (Conn.) 1; McCole v. State, 10 Ind. 50; Schneider v. Com., 3 Mete. (Ky.) 411. But see cases above cited. 8 7 Gregory v. State, supra. 6 8 State V. Wininger, 81 Ind. 51; Wallenweber v. Com., 3 Bush (Ky). 68; State V. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La, Ann. 524; State v. Benzion, 79 Iowa, 467, 44 N. W. 709. 6 4 Bl. Comm. 297; Evans v. Foster, 1 N. H. 374. 70 4 BL Comm. 297; 2 Hawk. P. C. c. 15, § 7; Rex v. Clarke, 2 Strange, 1216; State v. Arthur, 1 McMul. (S. C.) 456. 86 PRELIMINAKY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 cases except -where the punishment may be death, and even in those cases except -where the proof is e-vldent or the presumption great. The ground upon which a magistrate commits a prisoner to jail, pending or after a preliminary examination and before trial, is to insure his appearance for examination or trial, and not to punish him. He is committed solely because there is a probability that he will not otherwise appear. For this reason, bail should be taken whenever it will insure his appearance, but not otherwise. It was therefore the general rule at common law that the accused should be released on bail in all cases except cases of felony, for in all such cases, the punishment being generally a mere fine or a short term of imprisonment in the county jail, it was thought that bail would insure the appearance of the accused. There was, however, no absolute right to release on bail, even in cases of misdemeanor, though it was generally, if not always, allowed. If there were any reason to believe the accused would fail to appear, bail could be denied in any case. Where the offense was a felony punishable by death, bail was scarcely ever allowed, for it was not thought that any pecuniary consideration could weigh against the desire to live.''^ Even when the felony was not punishable by death, bail was generally denied, unless the guilt of the accused was very doubtful. "Where guilt is clear," it was said, "and a rigorous and disgraceful imprisonment may follow for a great length of time, the presumption is strong that the accused will not appear and surrender himself to the de- mands of justice to avoid a mere forfeiture of property. The safest course, therefore, in cases of felony, where the guilt of the criminal is clear, is to deny bail."''^ In cases of felony, however, the maiiistrate or court might always admit to bail in his discretion.'" Even in capital cases, bail was 71 See Cole's Case, 6 Parker, Cr. R. (N. Y.) 695; State v. Holmes, 3 Strob. (S. C.) 272. , ' 72 Per Sutherland, J., in Ex parte Tayloe, infra; People v. Dixon, •^'if'arker, Cr. B. (N. Y.) 651. 73 Ex parte Tayloe, 5 Cow. (N. Y.) 39; Ex parte Baronnet, 1 El. & Bl. 1; People V. "Van Home, 8 Barb. (N. T.) 158; Com. v. Trask, 15 Mass. 277; Peo- ple V. Dixon, 4 Parker, Cr. R. (N. Y.) 651; State v. Summons, 19 Ohio, 139; State v. McNab, 20 N. H. 160. Ch. 3] EIGHT TO EEI.EASE ON BAIL. 87 sometimes allowed, for instance where there was a well-founded doubt of guilt; ^* or where the accused was ill, and his confinement endangered his life;''^ or where several continuances had been granted at the instance of the state.' ° And in California, when it was a new state, and the courts had not been fully organized, or their terms prescribed, and where there was no jail in which pris- oners could be securely kept, prisoners were for this reason ad- mitted to bail in a capital case." In most of our states there are constitutional or statutory pro- visions giving persons arrested for crime an absolute right to release on bail, except where the offense is punishable by death, and the proof is evident or the presumption great. It will be noticed that the common law is chaAged by these provisions. The magistrate, judge, or court no longer has a discretion in all cases as to whether he will allow bail. He must allow it in all cases except where the offense is punishable by death, and even then he must allow it un- less the proof is evident or the presumption great. These provi- sions are for the benefit of the accused, and it does not seem that they should be held to deprive the courts of the common-law power to admit to bail under special circumstances in capital cases, even T* Barronet's Case, 1 El. & Bl. 1; Ex parte Bridewell, 57 Miss. 39; U. S. V. Jones, 3 Wasli. C. C. 224, Fed. Cas No. 15,495; TJ. S. v. Hamilton. 3 Dall. 17; State v. Hill, 1 Ttead. Const. (S. C.) 242; People v. Perry, 8 Abb. Pr. (N. S.) 27; State v. Rockafellow, 6 N. J. Law, 332; Com. v. Semmes, 11 Leigh (Va.) 665; Archer's Case, 6 Grat. (Va.) 705; State v. Summons, 19 Ohio, 139. 75 Aylesbury's Case, 1 Salk. 103; Rex v. Wyndham, 1 Strange, 2, 4; Har- vey's Case, 10 Mod. 334; U. S. v. Jones, 3 Wash. C. C. 224, Fed. Cas. No. 15,495; Archer's Case, 6 Grat. (Va.) 705. Sickness is no ground for release of a person on bail, unless confinement aggravates his illness, and endangers his life. Bex v. Wyndham. supra; Ex parte Pattison, 56 Miss. 161; Lester v. State, 33 Ga. 192; Tlji^s v. State, 40 Tex. 6. 76 Fitzpatrick's GjiC 1 Salk. 103; Crosby's Case, 12 Mod. 66; U. S. v. Jones, 3 Wash. O.'c. 224, Fed. Cas. No. 15,495; People v. Perry, 8 Abb. Pr. (N. S.) 27; B«^ v. Wyndham, 1 Strange, 2, 4. It is so by statute in many states. See Ex parte Chaney, 8 Ala. 424; Ex parte Stiff, 18 Ala. 464. An omission to prosecute at the first term after the arrest is not ground for bail, unless the omission has operated oppressively. State v. Abbott, R. M. Charlt (Ga.) 244. T7 People V. Smith, 1 Cal. 9. 88 PEELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 though the proof is evident and the presumption great; but it has been held in Pennsylvania that no power at all to admit to bail ex- ists in such cases.'* In construing the words, "when the proof is evident," the Texas court at first held that bail should be denied if the evidence adduced on the examination would sustain a verdict of murder 'in the first degree, but otherwise bail should be allowed.'* But in a later case that decision was overruled, and it was held, following an Alabama case, that "if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he will probably be punished capitally if the law be administered, bail is not a matter of right." ^^ SAME— SUFriCIBNCT OF BAIL. 39. The bail reqtiired. should be such, and such only, as will be suf&cient to insure the appearance of the accused. It is declared by the constitution of the United States, and those of the different states, that excessive bail shall not be required, and there are statutes in most jurisdictions limiting the amount of bail that may be required to such a sum as will, in the opinion of T8 Com. V. Keeper, 2 Ashm. (Pa.) 227. 7 8 Bx parte Foster, 5 Tex. App. 625. 80 Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte McAnally, 53 Ala. 495. And see, as to this point, Com. v. Keeper, supra; Ex parte Wray, 30 Miss. 673; UUery v. Com., 8 B. Mon. (Ky.) 3; State v. Summons, 19 Ohio, 139; Shore v. State, 6 Mo. 640; Ex parte Goans, 99 Mo. 193, 12 S. W. 635. It has been held that, except under extraordinary circumstances, an indictment creates such a presumption of guilt as to absolutely prevent ad- mission to bail. Evidence to rebut the presumption was excluded. People V. Tinder, 19 Cal. 539; Hight v. U. S., 1 Morris (Iowa) 407. But see Lynch V. People, 38 111. 494; Lumm v. State, 3 Ind. 293; State v. Hill, 3 Brev. (S. C.) 89; Com. v. Rutherford, 2 Rob. (Va.) 767; Tayloe's Case, 5 Cow. (N. y.) 39. Doubt as to prisoner's sanity when the crinie was committed may be ground for bail. Zembrod v. State, 25 Tex. 519. As to drunkenness as not raising doubt, see Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343 (Hurt, J., dissenting). Where the jury are unable to agree on two trials for mur- der, bail should be allowed. People v. Perry, 8 Abb. Pr. (N. S.) 27. Ch. 3] SUFFICIENCY OF BAIL. 89 the judge or magistrate, secure the presence of the accused. This is merely a declaration of the common law. The object of requir- ing bail is to insure the presence of the accused to stand his trial, and the amount of bail required should be such only as to accom- plish this object. "It has been sometimes argued that bail should be arbitrarily graded to meet the heinousness of the offense. But this is a dangerous principle, as it tends to show that on the rich who can find bail, and afford to forfeit it, there is no necessary cor- poral punishment imposed. Far wiser is it to adopt the principle that, in determining and adjusting bail, the test to be adopted by the court is the probability of the accused appearing to take his trial." *^ In applying this test, the circumstances and character of the accused, his means, the probability of his guilt, the nature of the crime charged, and the possible punishment, are all to be considered.'^ Where the punishment is a fine only, there is noth- ing to prevent the magistrate from requiring bail in an amount greater than the maximum fine. Indeed, it should be so required.*^ It has been held that a magistrate who has taken insufftcient bail cannot direct the rearrest of the accused for the purpose of increas- ing it; ** but it is otherwise by statute in some jurisdictions. Sufficiency of Sureties — Justification. The magistrate or judge will act according to his discretion as to the sufficiency of the sureties, and, to determine their responsi- bility, he may orally examine them upon oath as to their means, or require them to justify by affidavit.*" Such justification by the su- reties is generally required by statute. Failure to justify, or justi- fication in a less sum than fixed by law. cannot be urged by the sureties to escape liability.*" siWhart. Or. PI. & Prac. § 76. And see People v. Cunningham, 3 Par- ker, Or. R. (N. T.) 520; Reg. v. Scaife, 9 Dawl. 553, 5 Jur. 700; Com. v. Rutherford, 5 Rand. (Va.) 646; Com. v. Semmes, 11 Leigh (Va.) 665; Lumm V. State, 3 Ind. 293; State v. Hill, 3 Brev. (S. O.) 89. 82 Whart Cr. PI. & Prac. § 76; People v. Cunningham, supra; In re Bar- ronet, 1 El. & Bl. 1; State v. Hopson, 10 La. Ann. 550. 8 3 State V. Martinez, 11 La. Ann. 23. 84 Ingram v. State, 27 Ala. 17. 85 1 Chit. Cr. Law, 99; 2 Hale, P. 0. 125; People v. Vermilyea, 7 Cow. (N. r.) 108. ■ 8 6 People V. Carpenter, 7 Oal. 402; People v. Shirley, 18 Cal. 121. 90 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 Same — Who may Become Bail. At common law, neither a married woman, nor an infant, nor an insane person, nor a person convicted of an infamous crime, could become bail." But the disability of married women in this respect has been very generally removed by statute. Unless the statutes provide otherwise, there is no reason why any person who is capa- ble of contracting may not become bail. An infant may enter into a bail bond or recognizance as principal.^^ SAME— REMEDY OF ACCUSED ON DENIAL OP BAIL. 40. A prisoner, if he is denied bail, or if excessive baU is required, has a remedy by application for a writ of habeas corpus. If a person under arrest on a charge of crime is denied release on bail, or if excessive bail is required, he may apply to the proper judge or court for a writ of habeas corpus. After a hearing, the court will admit him to bail if his offense is bailable, and will fix the amount of bail.*° Where, however, the magistrate or judge by whom bail was denied, was required to determine whether under the evidence and circumstances of the particular case bail should be allowed, so that the matter rested in his discretion, and was not bound to admit to bail as a matter of course, the higher court or judge will not interfere, except where that discretion has been ex- ercised in an arbitrary, unjust, and oppressive manner. This ap- plies not only to cases in which bail has been denied entirely,"' but also to cases in which it is claimed that excessive bail has been re- quired."^ The subject of habeas corpus is for treatment in a subse- quent chapter. 87 1 Chit. Cr. Law, 100; Rex v. Edwards, 4 Term R. 440; Bennet v. Wat- son, 3 Maule & S. 1. 8 8 Clark, Cont. 225. 8 9 Evans V. Foster, 1 N. H. 374. 00 Lester v. State, 33 Ga. 192; Ex parte Jones, 20 Ark. 9; Ex parte Os- born, 24 Ark. 185; People v. McLeod, 25 Wend. (N. Y.) 483, 1 Hill (N. Y.) 377. 01 People V. Perry, 8 Abb. Pr. (N. S.) 27; Lynch v. People, 38 111. 494; Lumm V. State, 3 Ind. 293; Lester v. State, 33 Ga. 192. Ch. 3] THE BOND OR RECOGNIZANCE. 91 SAME— THE BOND OR RECOGNIZANCE. 41. A bond or recognizance cannot be taken unless au- thorized by la-w, and, when authorized, it must be taken in the manner and form prescribed by law. If unauthor- ized or illegally taken, or if it is not in proper form, it is void, and of no effect. As we have heretofore stated, bail may be either in the form of a bond or of a recognizance. A bail bond is like any other bond, except in its condition.* It is a contract under seal between the accused and his sureties on the one side, and the state on the other, whereby the former bind themselves to pay the latter a certain sum of money if the accused fails to appear as therein provided. In some states this form of security is no longer used. A recognizance is an obligation similar to the obligation created by a bail bond, acknowledged by the accused and his sureties before the magistrate, judge, or court, the acknowledgment being entered or filed in the records of the court. The practice now in giving a recognizance is generally to draw up and sign an instrument simi- lar in form to a bond, and, instead of sealing it, to acknowledge it * The following is a form of bail bond: Know all men by these presents: That we, C. D. and E. F., are held and firmly bound unto the state Cor commonwealth) of in the penal sum of dollars, for true payment whereof, well and truly to be made, we bind ourselves and our heirs, jointly and severally. The condition of the above obligation is such that if the above-bound C. D. shall personally appear before the judge of the court of the county of , state (or commonwealth) of , on the first day of the next term thereof, then and there to answer the state (or commonwealth, or people of the state) of , for and concerning a certain felony (or misdemeanor) by him committed, in this: that (describing the offense),— wherewith he, the said C. D., stands charged, and shall not depart thence without the leave of the said court, then this obligation to be void; otherwise to remain in full force and virtue. Witness our hands and seals this the day of , A. D. . C. D. [Seal.] E. P. [Seal.] 92 PEELIMINAEY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 before the magistrate or judge. The instrument is certified as hav- ing been acknowledged, and is filed. Unless required by statute, however, this formality is not necessary. "The manner of taking a recognizance is that the magistrate repeats to the recognizors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a short memorandum, which it is not necessary that they should sign, * * * From this short minute the magistrate may afterwards draw up the recognizance in full form, and certify it to the court. This is the most regular and proper way of proceeding." *" When the acknowledgment of obligation is entered in the records of the proper court, or filed therein, it becomes a matter of record. It is a contract, not under seal, but a contract of record, with all the characteristics of such a contract.®* Since, therefore, a bail bond or recognizance is a contract between the parties who execute it and the state, in determining its validity and effect we must not only look to see whether special statutory or common-law requirements are complied with, but also to see whether it accords with the rules relating to contracts generally. Parties cannot be held liable on an attempted bail bond or recog- nizance if for any reason they have failed to make a valid contract. We can notice shortly those requirements only which spring from the nature of this particular kind of obligation, or are prescribed by statute. Other questions that may arise will be answered by the law of contracts generally. In the first place, to be valid, a bail bond or recognizance must be authorized, and must be taken in the mode prescribed by law. If a magistrate, judge, or court assumes without jurisdiction to admit a prisoner to bail, or if, though authorized to admit to bail, he exceeds his powers, or fails to comply with the requirements of the law, the bond or recognizance is void, and neither the accused nor the sureties are liable thereon. It has no effect whatever.®* »2 Com. V. Emery, 2 Bin. (Pa.) 434. 03 1 Chit. Cr. T^aw, 90; People v. Kane, 4 Denlo (N. X.) 535; Bridge v. Ford, 4 Mass. 641; State v. Crippen, 1 Ohio St. 401. 8* Com. V. Loveridge, 11 Mass. 337; Com. v. Fisher, 2 Duv. (Ky.) 376; State V. Kruise, 32 N. J. Law, 313; State v. Harper, 3 La. Ann. 598; Com. V. Otis, 16 Mass. 198; Governor v. Fay, 8 La. Ann. 490; Branham v. Com., 2 Bush (Ky.) 3; State v. Nelson, 28 Mo. 13; Cooper v. State, 23 Arli. 278; Ch. 3] THE BOND OR KECOGNIZANCE. 93 The same is true where a ministerial officer assumes to admit to bail."^ Whether or not a bond or a recognizance should be taken must generally depend on the statutes of the particular state. If a stat- ute expressly requires a bond, a recognizance might not do; and if it expressly requires a recognizance, a bond might be insufficient, unless in the latter case the bond, being filed of record, may be treated as a recognizance. At common law, and under a statute which is silent as to the form of bail, either a bond or a recognizance may be talcen."" A bail bond, like any other contract under seal, must be signed, sealed, and delivered, or it cannot take effect as a contract."' A recognizance, however, being a contract of record, need not be un- der seal.®* Nor, unless it is so required by statute, need it be signed by the parties; for it is the a&nowledgment and record thereof that gives it validity. If signed, the signatures may be re- jected as surplusage."" At common law, and under the statutes in most states, the accused need not necessarily execute the bond or enter into the recognizance. The sureties may do so alone.^"' The bond or recognizance, to be valid, "must contain, and ex- press in the body of it, the material parts of the obligation and con- dition."^"^ By the weight of authority at common law, and gen- State V. Berry, 8 Greenl. (Me.) 179; Com. v. Canada, 13 Pick. (Mass.) 86; Powell v. State, 15 Ohio, 579; Solomon v. People, 15 111. 291; Darling v. Hubbell, 9 Conn. 350; State v. Randolph, 26 Me. 213; WUliams v. Shelby, 2 Or. 144; State v. Wenzel, 77 Ind. 428. 9 5 Ante, p. 84. 96 Pugh v. State, 2 Head (Tenn.) 227. 97 Clark, Cont 73. Signing is probably necessary, though there seems to have been some doubt on the question. Id. 9 8 siaten v. People, 21 111. 28; Campbell y. State, 18 Ind. 375; HaU v. State, 9 Ala. 827; State v. Foot, 2 MUl Const. (S. C.) 123. 9 9 1 Chit. Cr. Law, 90; Irwin v. State, 10 Neb. 325, 6 N. W. 370; King v. State, 18 Neb. 375, 25 N. W. 519; Madison v. Com., 2 A. K. Marsh. (Ky.) 131; Com. v. Mason, 3 A. IC Marsh. (Ky.) 456; Com. v. Emery, 2 Bin. (Pa.) ■434. Contra, Cunningham v. State, 14 Mo. 402; State y. Foot, 2 Mill Const. (S. C.) 123. 100 State V. Patterson, 23 Iowa, 575; People v. Dennis, 4 Mich. 609; Com. V. Mason, 3 A. K. Marsh. (Ky.) 456; Com. v. Eadford, 2 Duv. (Ky.) 9; Minor v. State, 1 Blackf. (Ind.) 230. But see State v. Doax, 19 La. Ann. 77; State V. Taylor, Id. 145. 101 State v. Crippen, 1 Ohio St. 399. 94 PEELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 erally under the statutes, a bond or recognizance must state the offense for which the accused is held. It need not state the cir- cumstances under which the offense was committed, nor need it state all the facts necessary to constitute the offense; ^"^ but it must describe the offense itself accurately and with reasonable cer- tainty.^"' If it states a charge for which an indictment will not lie, it is void.^"* It has also been held that a material variance in the description of the offense between the warrant, complaint, or indictment on which the accused is held and the bond or recog- nizance is fatal.^"" There is authority for the proposition that the fact that the ac- cused is subsequently indicted for a higher offense than that for which he recognized does not affect the validity of the recognizance, and that it is forfeited if he fails to appear to answer to the indict- ment; '^"^ but it is difficult to see how a contract, — and the bond or recognizance is nothing more, — binding a person to appear to answer for one offense, can be construed to bind him to appear and answer for another and a different offense.^"^ Since all the terms of the contract must be contained in the bond or recognizance, it must correctly and with certainty state the time and place at which the accused is to appear, including a description of the court at which he must appear.^"' In a California case it 102 State V. Marshan, 21 Iowa, 143; Patterson v. State, 12 Ind. 86; State V. Hamer, 2 Ind. 371; Young v. People, 18 111. 566; People v. Baughman, Id. 152; Hall v. State, 15 Ala. 431; Browder v. State, 9 Ala. 58; People v. Dennis, 4 Mich. 609; Com. v. Downey, 9 Mass. 520; Com. v. Daggett, 16 Mass. 447; Hampton v. Brown, 32 Ga. 251; Daniels v. People, 6 Mich. 381; State V. Williams, 17 Ark. 371; Besinier v. People, 15 111. 439; People v. Blankman, 17 Wend. (N. Y.) 252. 103 Nicholson v. State, 2 Ga. 363; Simpson v. Com., 1 Dana (Ky.) 523; -Goodwin v. Governor, 1 Stew. & P. (Ala.) 465. But see State v. Loeb, 21 Iva. Ann. 599. 104 Dailey v. State, 4 Tex. 417; Cotton v. State, 7 Tex. 547; Tousey v. State, 8 Tex. 173; McDonough v. State, 19 Tex. 293. 10 5 Dillingham v. U. S., 2 Wash. C. C. 422, Fed. Cas. No. 3,913; Welch V. State, 36 Ala. 277; People v. Hunter, 10 Cal. 502; State v. Woodley, 25 Ga. 235. 106 Pack V. State, 23 Ark. 235; State v. Bryant, 55 Iowa, 451, 8 N. W. 303. lOT People V. Hunter, supra; post, p. 99. 10 8 People V. Mack, 1 Parker, Cr. R. (N. Y.) 567; State v. Allen, 33 Ala. 422. In the , latter case, a recognizance taken by a justice of the peace, Ch. 3] THE BOND OR RECOGNIZANCE. 95 was held unnecessary to state the court, on the ground that it was fixed by law.^^^ Mere clerical errors will not invalidate the bond or recogni- zance.^^" Nor will it be avoided by recitals of unnecessary and ir- relevant matter, since such matter may be rejected as surplus- age.^^^ Nor does the fact that the words used are improperly ar- ranged affect the validity of the contract, where all the necessary words are inserted so that they can be understood.^^* A bail bond, to be valid, need not be filed, for the execution and delivery is what renders it binding. A recognizance, however, de- rives its validity and effect from the fact that it is a judicial rec- ord, and it must therefore be certified by the magistrate to the proper court of record, and be there filed or recorded. It then be- comes an obligation of record.^ ^^ When the recognizance has thus become a matter of record, it will be presumed that a charge was properly preferred and examined into, and a proper decision made before it was entered into and acknowledged.^^* By the weight of authority, a bond or recognizance taken before or approved by a person unauthorized by law, or in a case where the taking of it is unauthorized by law, so that it is invalid under the statutes, is invalid for all purposes. It cannot be upheld as a common-law obligation.^^^ conditioned for the prisoner's appearance, on a certain day, before him, or some other justice, was held void for uncertainty, because the place of ap- pearance was not specified. And a recognizance to appear to answer a charge on a day when the court does not sit is void. State v. SuUivant, 3 Yerg. (Tenn.) 281. 109 People V. Carpenter, 7 Cal. 402. 110 State V. Patterson, 23 Iowa, 575. 111 State V. Adams, 3 Head (Tenn.) 259; Howie v. State, 1 Ala. 113; Mc- carty V. State, 1 Blackf. (Ind.) 338; State v. Wellman, 3 Ohio, 14. 112 State v. Adams, supra. 113 People V. Huggins, 10 Wend. (N. X.) 464; People v. Kane, 4 Denio (N. Y.) 535; Bridge v. Ford, 4 Mass. 641; Com. v. Emery, 2 Bin. (Pa.) 431; King V. State, 18 Neb. 375, 25 N. W. 519. 11* Shattuck V. People, 4 Scam. (111.) 477. 116 Powell V. State, 15 Ohio, 579; Williams v. Shelby, 2 Or. 144; Dickin- son V. State, 20 Neb. 72, 29 N. W. 184. Contra, State v. Cannon, 34 Iowa, 325; Dennard v. State, 2 Ga. 137. 96 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. £Ch. 3 SAME— RELEASE OF SUBETIES. 42. The sureties will be discharged from liability — (a) By any change in the terms of the bond or recognizance made by the state ■without their consent. (b) By any action on the part of the state preju- dicing their rights. (c) By surrendering the accused; and for this purpose they may arrest him, either them- selves or by deputy, and at any time or place. The liability of sureties on a recognizance or bail bond is limited to the precise terms of their contract, and they will be discharged if any change is made therein without their consent; as, for in- stance, where the state agrees with the accused to postpone the trial until a later day or term than that named in the bond or recog- nizance.^^" The sureties are also discharged by any other action by the state, without their knowledge or consent, prejudicing their rights, as where it consents to the departure of the accused beyond their reach or control.^" Facts rendering the sureties unable to surrender the accused, other than his death, where they are not attributable to action by the state, will not release them.^^! For instance, they are not dis- charged or excused from their obligation by the fact that the ac- cused has, since his release on bail, been arrested and imprisoned in another state, so that they are unable to surrender him.^^» As is the case with any other kind of contract, the sureties will, of course, be discharged from their obligation, if the terms thereof 118 Reese t. U. S., 9 Wall. 13. And see Vincent v. People, 25 111. 500. 117 Reese v. TJ. S., supra. 118 Yarbrough v. Com., 89 Ky. 151, 12 S. W. 143. 118 State V. Scott, 20 Iowa, 63; Harrington v. Dennie, 13 Mass. 92; Taylor V. Taintor, 16 Wall. 366; Yarbrough v. Com., supra; King v. State, 18 Neb. 375, 25 N. W. 519. Uh. 3] RELEASE OF SUKETIES. 97 are complied with. What amounts to such a compliance will be presently shown.^^" Arrest and Surrender of Accused. The sureties are not compelled to act as bail for a longer time than they wish. As we have already said, the accused is, in the eye of the law, in the custody of his sureties, who are considered his keepers. If they fear his escape, or for any other reason wish to be released, they may rearrest him, and surrender him before the magistrate or court by which he was bailed. They will then be dis- charged.^''' The accused, however, will be allowed to find new sureties. The sureties may depute another to take and surrender the accused,^"'' and either they or their agent may seize him at any time, and in any place, even in another state.'"' 120 Post, p. 98. 121 1 Chit. Cr. Law, 104; Harp v. Osgood. 2 Hill (N. T.) 216; Parker v. Bidwell, 3 Conn. 85; State v. Le Cerf, 1 Bailey (S. C.) 410; State v. Mahon, 3 Har. (Del.) 568; Com. v. Bronsan, 14 B. Mon. (Ky.) 291. The court or mag- istrate cannot compel a continuance of responsibility against the express dissent of the bail. People v. Clary, 17 Wend. (N. Y.) 373. A bail in arrest- ing his principal occupies substantially the same position as a person malc- ing any other authorized arrest. He becomes liable if he uses unnecessary force in the arrest or in the detention. Pease v. Burt, 3 Day (Conn.) 485. He may break open doors, as already explained. Nichols v. Ingersoll, 7 Johns. (N. Y.) 145; Com. v. Brickett, 8 Pick. (Mass.) 138; Bean v. Parker, 17 Mass. 604; TJ. S. v. Bishop, 3 Yeates (Pa.) 37; Broome v. Hurst, 4 Yeates (Pa.) 123; Read v. Case, 4 Conn. 166. The accused, in order that the sure- ties may be discharged, must be surrendered to the proper magistrate or court, or to some officer who has authority to commit him to jail. State v. Le Cerf, 1 Bailey (S. C.) 410; Com. v. Bronson, 14 B. Mon. (Ky.) 361. Merely to deliver him to the deputy sheriff is not sufficient. State v. Le Cerf, supra; Stegars v. State, 2 Blackf. (Ind.) 104. If the accused is indicted and arrested upon a warrant before default of appearance, this is equivalent to a sur- render, and the bail are discharged. People v. Stager, 10 Wend. (N. Y.) 431. 12 2 Nichols V. Ingersoll, 7 Johns. (N. Y.) 145; Harp v. Osgood, 2 Hill (N. Y.) 216. 128 Nichols V. IngersoU, supra; Com. v. Brickett, 8 Pick. (Mass.) 138; Read V. Case, 4 Conn. 166; Anon., 6 Mod. 231; State v. Beebe, 13 Kan. 589. CKIM.PSOC. — 7 98 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 SAME— BREACH OP BOND OB, RECOGNIZANCE, OR TOR- EEITURE OF BAIL. 43. As soon as the condition of tlie bond or recogni- zance is broken, the bail is said to be forfeited, and the sureties become absolutely liable on their obligation for the amount of the penalty. If, at the time fixed for the appearance of the accused, he is called and fails to appear, his bail is forfeited, and the sureties are abso- lutely liable for the amount of the penalty.^^* This liability is mot necessarily affected by the fact that he is afterwards surren- dered or arrested, or voluntarily appears, and is tried.^^° Gen- erally, however, the court has the power to remit the forfeiture, if good excuse is shown; ^^* and generally, by constitutional or statutory provisions, the governor is given power to remit fines and forfeitures, so that he can remit the forfeiture of a bail bond or recognizance, even after the liability has passed into judgment.^^' In felonies, a personal appearance by the accused is necessary, for he cannot be tried in his absence.^"* Where, however, under indictment for misdemeanor, the accused may, as is generally the -case, appear and plead by attorney, and be tried in his absence, the court has no power to declare his bond or recognizance forfeited for failure to appear, if his attorney appears and offers to plead for him.^^° The mere appearance of the accused at the time and place required by the recognizance does not discharge the sureties from their obligation, where the court does not by its oflBcer take 124 Com. V. Johnson, 3 Gush. (Mass.) 454. 120 Com. v. Johnson, supra; Shore v. State, 6 Mo. 640; Lee v. State, 25 Tex. App. 331, 8 S. W. 277. 128 U. S. v. Feeley, 1 Brock. 255, Fed. Cas. No. 15,082; Com. v. Dana, 14 Mass. 65. 127 Harbin v. State, 78 Iowa, 263, 43 N. W. 210. 128 state v. Rowe, 8 Rich. (S. C.) 17; post, p. 423. 129 People V. Bbner, 23 Cah 158; State v. Counehara, 57 Iowa, 351, 10 N. W. 677; post, p. 423. In an action on a recognizance as forfeited, however, a demurrer will not lie on this ground, unless it appears that the accused did appear by attorney. It is not enough that he could have so appeared. People V. Smith, 18 Cal. 498. Ch. 3] FORFEITURE OF BAIL. 99 Mm in custody;^*" but where the accused not only so appears, but is taken into custody, the sureties are discharged, and are not liable if he is subsequently released, /or if he escapes.^^^ If the obligation merely requires the accused to appear and an- swer to a certain indictment, or for a particular crime, it would seem that he cannot be required to appear and answer for any other crime, or to any other indictment, for the sureties are entitled to stand strictly on the terms of their contract; and it has been so held.^*^ But if the condition of the contract is not only that the accused shall appear, but also that he "shall not depart without the leave of the court," or "until discharged by due course of law," etc., then the condition is broken if he does so depart, without re- gard to whether the crime for which he is indicted is the same as the crime for which he was held.^^' A recognizance to appear in court from day to day to answer to a certain indictment, and not to depart without the leave of the court, is not discharged by the quashing of the indictment, but remains in force until the defend- ant has leave from the court to depart; and, if a new indictment is found, he and his sureties are bound for his appearance to an- swer it.^^* It is always essential to the breach of a bail bond or recognizance that the prisoner shall have been formally called before entry of his default, and in an action on the recognizance it must be proved that he was so called and failed to appear.^^" It has been held that where an indictment is fatally defective ISO Com. V. Ray, cited in Com. v. Coleman, 2 Mete. (Ky.) 386. And see Starr v. Com., 7 Dana (Ky.) 243. 181 Com. v. Coleman, 2 Mete. (Ky.) 382. And see Lyons v. State, 1 Blackf. (Ind.) 309; State v. Murphy, 10 Gill & J. (Md.) 365; Smith v. State, 12 Neb. 309, 11 N. W. 319. 1S2 Gray v. State, 43 Ala. 41; People v. Hunter, 10 Cal. 502. 133 u. s. V. White, 5 Oranch, C. C. 368, Fed. Cas. No. 16,678; Pack v. State, 23 Ark. 235; Gentry v. State, 22 Ark. 544; State v. Bryant, 55 Iowa, 451, 8 N. W. 303. 134 U. S. v. White, supra. 136 Dillingham v. U. S., 2 Wash. C. C. 422, Fed. Cas. No. 3,913; Mishler V. Com., 62 Pa. St. 55; Park v. State, 4 Ga. 329; State v. Grigsby, 3 Yerg. (Tenn.) 280; White v. State, 5 Yerg. (Tenn.) 183. The baU need not be called. Mishler v. Com., supra. 100 PEELIMINAEV EXAMINATION, BAIL, AND COMMITMENT. [Oh. 3 there can be no breach of a recognizance to appear and answer.^^' There are many cases, however, to the effect that thfe sureties on a bail bond cannot question the ralidity of the indictment,^" unless it was insufficient to confer jurisdiction, as where it was found by an illegally constituted grand jury.^^* This question, it would seem, must depend on the terms of the contract as above ex- plained.^^ ° The accused cannot be required to appear at any time other than that stipulated in the bond or recognizance, even though the legis- lature should change the time of holding the court.^*" As we have already seen, the sureties are not excused from lia- bility for breach of their contract by the fact that the accused has been arrested and imprisoned in another state, or by any other fact rendering it impossible for them to surrender him, other than his death, or action by the state.^*^ Forfeiture of bail cannot affect the right of the state to afterwards capture and punish the accused.**'' A forfeited bond or recognizance is enforced by entry of the for- feiture, and judgment, and by scire facias thereon, or by an action by the state on the obligation. The practice in this respect is gen- erally regulated by statute. COMMITMENT. ■ 44. If the offense is not bailable, or if bail is refused, or is not given, the accused is committed to jail to await his trial. If the offense is not bailable, or if the magistrate, in a proper ex- ercise of his discretion, determines not to allow bail, or the accused 18 8 state V. Lockhart, 24 Ga. 420. 137 Lee V. State, 25 Tex. App. 331, 8 S. W. 27T; State v. Loeb, 21 La, Ann. 599. 138 Wells V. State, 21 Tex. App. 594, 2 S. W. 806. 139 Ante, p. 94. 1*0 State V. Stephens, 2 Swan (Tenn.) 308; State v. Melton, Busb. (N. 0.) 426. 1*1 Ante, p. 96. 1*2 State V. Meyers, 61 Mo. 414; State v. Rollins^ 52 Ind. 168. Ch. 3] COMMITMENT. 101 fails to furnish sufiScient bail, and the evidence is suflQcientto require him to be held for trial, the magistrate must commit him to jail to await his trial. To authorize the detention of the accused after he is committed, a mittimus or warrant to the jailer is necessary, and, of course, it must be valid.^*^ A form is given below.* It must be in writing, under the hand, and, by the weight of authority at common law, under the seal,\** of the magistrate, and it must show the authority of the magistrate,^ *° and the time and place of making it.^*° It must run in the name of the state, or that of the magistrate, judge, 1*3 Sthreshley v. Fisher, Hardin (Ky.) 257. A magistrate may by parol or- der a person to be detained a reasonable time, until he can draw up a formal commitment. 1 Chit. Cr. Law, 109; 7 East, 537; 2 Hale, P. C. 122. It has been held that the order or sentence of a court of record, without any mitti- mus, is sufficient to authorize the detention of the accused (In re Wilson, 18 Fed. 37; People v. Nevins, 1 Hill [N. Y.] 154; State v. Heathmau, Wright [Ohio] 691); but this cannot apply to justices of the peace, for a justice's court is not a court of record. ♦State (or Commonwealth) of , County of , to wit. To the Sheriff or Any Constable of Said County, and the Jailer of Said County: These are to command you, in the name of the state (or commonwealth) of , forthwith to convey and deliver into the custody of the said jailer, together with this warrant, the body of C. D., charged before me, X. Y., a justice of the peace of said county, on the oath of A. B., with a felony (or misdemeanor) by him committed. In this: that he, the said 0. D., did, on the day of , A. D. , in said county (here describe the ofCense); and you, the said jailer, are hereby required to receive the said O. D. into your jail and custody, that he may be tried for said offense by the court of said county, and him there safely keep until he shall be discharged by due course of law. Given under my hand and seal this the day of A. D. . [Seal.] X. Y., J. P. 144 1 Chit Cr. Law, 109; 2 Hawk. P. C. c. 16, § 13; 2 Hale, P. C. 122: 4 BL Comm. 300; Somervell v. Hunt, 3 Har. & McH. (Md.) 113; State v. Caswell, Charlt (Ga.) 280. In some jurisdictions, a seal is not deemed necessary. State V. Vaughn, Harp. (S. C.) 313; Thompson v. Fellows, 1 Fost (N. H.) 425; Davis V. Clements, 2 N. H. 390. And in many It is rendered unnecessary by statute. 14 5 1 Chit. Cr. Law, 109. It must, for instance, show where the offense was committed, for it may have been committed beyond the magistrate's juris- 146 1 Chit. Cr. Law, 109; 2 Hale, P C. 122. 102 PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT. [Ch. 3 or court by whom it is issued.^*^ It must be directed to the proper jailer, and not be generally to carry the accused to prison.^** The accused must be described by his name, including his Christian name, if known, and, if not known, the fact should be stated, and he should be described so that he may be identihed.^*' It seems to be unnecessary to state that the accused has been charged upon oath,^^" and it is certainly unnecessary to set out any of the evi- dence adduced before the magistrate; ^"^ but the mittimus must state the offense with which the party is charged, and must state it with reasonable certainty.^ ^^ It is sufficient to state the nature of the crime. A detailed statement of the circumstances attending its commission is not necessary.^^^ It must point out the place of imprisonment, and not merely direct that the accused shall be taken to prison ;^^* and it should state the time of imprisonment, namely, "until he shall be discharged by due course of law." ^^° Errors in the commitment do not generally affect the validity of the examination and subsequent proceedings. The fact, for in- stance, that a magistrate erroneously commits the accused to trial, in a county other than that in which the offense was committed, diction. It should also show the character of the magistrate. The initials "J. P.," after his signature, are sufficient to show that he is a justice of the peace. State v. Manley, 1 Tenn. 428; Rex v. York, 5 Burrows, 2684. 1*7 1 Chit. Cr. Law, 109. 1*8 Hex V. Smith, 2 Strange, 934; Rex v. Fell, 1 Ld. Raym. 424. 148 1 Chit. Cr. Law, 110; 1 Hale, P. C. 577. 10 1 Chit. Cr. Law, 110; Rex v. Wyndham, 1 Strange, 3, 4; Rex v. Wilkes, 2 Wils. 158; Rex v. Piatt, 1 Leach, 107. iBi Rex V. Wilkes, 2 Wils. 158. 162 1 Chit. Cr. Law, 110; 2 Hale, P. C. 122; 4 Bl. Comm. 300; Rex v. Wilkes, 2 Wils. 158; Rex v. Judd, 2 Term R. 255; Rex v. Wyndham, 1 Strange, 2; Rex v. Marks, 8 East, 157; Rex v. Kendal, 1 Ld. Raym. 65; Col- lins V. Brackett, 34 Minn. 339, 25 N. W. 708; State v. Bandy, 2 Ga. Dec. 40; Day v. Day, 4 Md. 2G2; Com. v. Ward, 4 Mass. 497; In re Ricker, 32 Me. 37. Where the offense is statutory, the mittimus should so show. Rex v. Remnant, 5 Term R. 169. iss People V. Johnson. 110 N. Y. 134, 17 N. E. 684; Collins v. Brackett, supra; In re Kelly, 46 Fed. 653. 154 Rex V. Smith, 2 Strange, 934; Rex v. Fell, 1 Ld. Raym. 424. iBo 1 Chit Cr. Law, 111. Ch. 3] HABEAS COBPUS. 103 does not invalidate the examination and commitment, if it was oth- erwise proper, so as to prevent the filing of an information thereon in the proper county,^ °° HABEAS CORPUS. 45. When a person -who has been committed to jail, as just explained, is advised that his commitment is illegal, or that he is entitled to be discharged or baUed by a superior judge or court, he may obtain relief by writ of habeas corpus. The right to apply for this writ is not limited to persons illegally committed by an examining magistrate, but extends to every per- son who is illegally imprisoned. We shall therefore consider the subject in a separate chapter.^'''' We shall then see that irregulari- ties in the preliminary examination, wrongful refusal to admit to bail, or irregularity and defects in the commitment, do not neces- sarily entitle the accused to a discharge. 158 In re Schurman. 40 Kan. 533, 20 Pac. 277. 107 Post, p. 554. 104 MODE AND TIME OS ACCUSATION. [Ch. 4 CHAPTER IV. MODE OF ACCUSATION— TIME OP PROSECUTION— NOLLE PROSEQUI OR WITHDRAWAL. 46. In General of Mode of Accusation. 47-48. Indictment and Presentment— The Grand Jury. 49. Information. 50. Coroner's Inquisition. 51. Complaint. 52-53. Time of Prosecution. 54. NoUe Prosequi, or Withdrawal of Accusation. MODES or ACCUSATION— IN GENERAL. 46. The prosecution of a person charged with, crime may be either: (a) Upon an indictment or presentment upon oath by a grand jury. (b) Upon a coroner's inquisition in cases of homicide. (c) Upon an information preferred by the proper prosecuting ofiB.cer without the intervention of a grand jury. (d) Upon a complaint or information made under oath by a private person. A formal accusation is essential to every trial for crime. With- out it the court acquires no jurisdiction to proceed. Not even the consent of the accused can give it jurisdiction.^ And, where the law requires a particular form of accusation, that form of accusa- tion is essential. In a New York case in which the law required prosecution by indictment, a fatal defect in the indictment was 1 1 Bish. Cr. Proc. §§ 79, 95, et seq.; People v. Campbell, 4 Parlier, Cr. R. (N. Y.) 386; ante, p. 5. A conviction is bad where the charge does not In terms show a legal offense, though the meaning of the charge was understood by the defendant, and was in a form used time out of mind in the court In which It was made. Ex parte Hopliins, 61 Law J. Q. B. (N. S.) 240, 66 Law T. CN. S.) 53, 17 Cox, Cr. Cas. 444. Ch. 4] INDICTMENT AND PEESENTMENT GRAND JUBY. 105 sought to be remedied by stipulation of counsel that the case should be tried as if the omitted allegation had been inserted. This the court held was not sufflcient to give jurisdiction. "The charge as made, being a felony, the constitution of this state requires the pre- sentment or indictment of a grand jury as a prerequisite to trial; and, if the pleading they file with the court could be remodeled by stipulations between the counsel, the defendant would not be tried upon the presentment of the grand jury, but rather upon the con- sent of counsel. This court cannot acquire jurisdiction to try an offense by consent, nor can its jurisdiction over an offense be changed by consent, so as to embrace any other than that presented by the grand jury, where the action of that body is requisite." ' INDICTMEWT AND PRESENTMENT— GRAND JURY. 47. An indictment is a written accusation of a crime, presented on oath by a grand jury. 48, A presentment is the notice taken by a grand jury of an offense from their o-wm knowledge or information, or of their ow^n motion from infortnation derived from others, on -wrhich an indictment is afterwards framed. A distinction has been made between an indictment and a pre- sentment. By presentment is meant the notice taken by a grand jury of an offense from their own knowledge or observation, or of their own motion on information from others, without any bill of indict- ment having been laid before them. Upon such a presentment the proper ofQcer of the court afterwards framed an indictment or formal accusation.' By indictment is meant a written accusation 2 People v. Campbell, supra. And see Com. v. Adams, 92 Ky. 134, 17 S. W. 276; Com. v. Maher, 16 Pick. (Mass.) 120. 3 4 Bl. Comm. 301; State v. Cox, 8 Ark. 442; Id., 6 Ired. (N. 0.) 444; I^ewls v. Board of Com'rs, 74 N. C. 197; State v. MoiTis, 104 N. C. 837, 10 S. B. 454. "A presentment made in the ordinary way by a grand jury is regarded, in the practice at common law, as nothing more than instructions given by the grand jury to the proper oflacer of the court for framing an indictment for an offense which they find to have been committed. When the indictment has been prepared by him, it Is submitted to them; and, upon their finding it 106 MODE AND TIME OF ACCUSATION. [Ch. 4 of crime, drawn up, with us by the prosecuting attorney, and sub- mitted to the grand jury, and by them found and presented as true.* Wlien submitted to the grand jury, it is only a "bill" of indictment, and becomes an indictment when found and presented by them. This distinction, it has been said, though still recognized, is of no practical importance, for every indictment is in fact a finding and presentment; the grand jury find and "present" that the accused has committed a certain crime. ° This observation, however, does not apply in all states, and the distinction must be borne in mind. When Indictment Lies. An indictment lies for all treasons, felonies, or misdemeanors at common law. It has always been the usual mode of prosecution." If a statute prohibits a matter of public grievance, or commands a matter of public convenience, such as the repairing of highways, all acts or omissions contrary to the command or prohibition of the statute, being misdemeanors at common law, are punishable by in- dictment if the statute specifies no other mode of proceeding.'' If the statute specifies a mode of proceeding different from that by in- dictment, then, if the matter was already an indictable offense at common law, and the statute introduces merely a different mode of prosetution and punishment, and does not expressly or by necessary a true bill, the prosecution commences upon that indictment. The present- ment merged in the indictment ceas«s and becomes extinct. If, however, the ofiBcer of the court, who is the representative of the crown, and whose con- currence and co-operation in the prosecution are always required, declines framing an indictment upon these instructions, the presentment ceases to exist for any piu:pose." Com. v. Christian, 7 Grat. (Va.) 631. It has been, and may still be, the practice in some states to allow the presentment an efficacy not known at common law. It has been allowed for some purposes to stand as an indictment, or to stand as the foundation for further proceedings, as by information, against the party presented. Com. v. Christian, supra. *4 Bl. Comm. 302; Ganaway v. State, 22 Ala. 777; Mose v. State, 35 Ala. 425; Goddard v. State, 12 Conn. 452; Lougee v. State, 11 Ohio, 71; Wolf v. State, 19 Ohio St. 255; State v. Cox, 8 Arli. 442: Board of County Com'rs v. Graham, 4 Colo. 202; Vanderliarr v. State, 51 Ind. 93; State v. Tomlinson, 3 Ired. (N. C.) 33; State v. Wallcer, 10 Ired. (N. C.) 236; State v. Collins, 1 McCord (S. C.) 357; State v. Morris, 104 N. C. 837, 10 S. E. 454. B Com. V. Keefe, & Gray (Mass.) 290. 6 2 Hawk. P. C. c. 25, § 4. 7 Harris, Cr. Law, 349; Reg. v. Hall, L. R. 1 Q. B. 632. Ch. 4] INDICTMENT AND PEESENTMENT GEAND JUKY. 107 implication do away with indictment, the remedy is cumulative, and the prosecution may be either by indictment at common law, or by the mode pointed out by the statute.* When Indictment is Necessary. At common law all offenses above the grade of misdemeanor must be prosecuted by indictment, for it is the policy of the common law that no man shall be put upon his trial for felony until the necessity therefor has been determined by a grand jm'y on oath.° The con- stitution of the United States declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury."^" This provision does not apply to prosecutions by the states; ^^ but in many of the state constitutions there is a similar provision. In some states, instead of requiring an indictment in prosecutions "for a capital or other- wise infamous crime," it is required in all cases where the punish- ment is death or confinement at hard labor. In others, an indict- ment is necessary in every case where an indictment will lie. In others, it is required only where the punishment is death or impris- onment for life. There has been some conflict of opinion as to what constitutes an "infamous" crime, within the meaning of the constitution. By the weight of opinion the question is determined by the punishment with which the offense may be visited, rather than by the nature of the act itself, and all crimes are held to be infamous that may be punished by death or by imprisonment in the penitentiary.^^ If : Harris, Or. Law, 349; Rex v. Robinson, 2 Burrows, 799. » 1 Chit. Or. liaw, 844; 2 Hale, P. O. 151; 4 Bl. Comm. 310; 2 Hawk. P. C. c. 26, § 3; Com v. Barrett, 9 Leigh (Va.) 665. 10 Amend. Const. U. S. art. 5. "Cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger," are excepted. 11 Eowan v. State, 30 Wis. 129; Turner v. People, 33 Mich. 363; State v. Keyes, 8 Vt. 57; Jones v. Ptobbins, 8 Gray (Mass.) 345; Parris v. People, 70 lU. 274. 12 Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935; Mackin v. U. S., 117 TJ. S. 348, 6 Sup. Ct. 777; U. S. v. De Walt, 128 U. S. 893, 9 Sup. Ct. Ill; Jones V. Robbins, 8 Gray (Mass.) 347; U. S. v. Wong Dep Ken, 57 Fed. 206. Other offenses may be prosecuted by information. State v. Ebert, 40 Mo. 186; King V. State, 17 Fla. 183. 1U8 MODE AND TIME OF ACCUSATION. [Ch. 4 they may be so punished, the fact that they may receive a less pun- ishment is immaterial, for it is the possible punishment that makes the crime infamous.^^ The term "infamous crime" is not syn- onymous with "felony," except in those states where every offense that may be punished by death or imprisonment in the penitentiary is declared or held to be a felony.^* Where an indictment or presentment is required by the consti- tution, such an accusation is essential to the court's jurisdiction to try the offender.^" The defendant cannot even waive the benefit of the provision by consenting to be tried in another mode, for, as we have seen, jurisdiction cannot be conferred upon the court by con- sent.^* Where the constitution does not require an indictment, there is nothing to prevent the legislature from providing for the prosecution of all offenses, even capital, by information, and in some states such statutes have been enacted. There is another constitutional provision which has been claimed to render prosecutions for felony otherwise than by indictment ille- gal, because the common law required an indictment in such cases. This provision is that no person shall be deprived of life, liberty, or property without due process of law. It has been held, however, that it is not depriving a person of due process of law to do away with the grand-jury system and indictments, provided some other formal and sufiScient mode of accusation, as by information, is sub- stituted.i^ Powers of Grand Jury. The authorities are not agreed as to the powers and functions of the grand jury. Dr. Wharton ^^ points out three different views that have been advanced on the subject. The view taken by the English judges, and in which they are fol- lowed by some of the judges in this country, is that the grand jury IS See Clark, Or. Law, 34. 1* See Jones v. Robbing, supra. 15 Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781; Hewitt v. State, 25 Tex. 722; People V. Campbell, 4 Parker, Cr. R. (N. Y.) 386. 16 People V. Campbell, supra; ante, p. 104. iTHurtado v. California, 110 U. S. 516, 4 Sup. Ct. Ill, 292; Rowan v. State, 30 Wis. 145; State v. Boswell, 104 Ind. 541, 4 N. E. 675; State v. Led- ford, 3 Mo. 102. 18 Wbart. Cr. PI. & Prac. §§ 332-340. Ch. 4] INDICTMENT AND PKESENTMENT — GRAND JUKY. 109 has the power, on its own motion, to institute any prosecution it may see fit, and for this purpose to summon witnesses to appear be- fore them ; and that they "cannot be controlled in their action by the court or the prosecuting officer.^ ° Another, and perhaps a prevailing view in this country, is that they can inquire into and present all offenses which are of public notoriety and within their knowledge, and such offenses as are given them in charge by the court or the prosecuting officer, but that they cannot summon witnesses, and inquire into and present other of- fenses, unless the accused has been examined before a magistrate.^" A third view is that they cannot inquire into and present any of- fense unless there has been a preliminary examination of the ac- cused before a magistrate.^ ^ A grand jury cannot indict or present for an offense that is not within the jurisdiction of the court in which they are acting.'* It cannot present for offenses committed in another county.'* Selecting and Summoning the Grand Jury. The sheriff of every county was required by the common law to return to every term of the court having jurisdiction of offenses 24 men having the requisite qualifications; and from these men a grand jury were selected. The mode of selecting and sum- moning grand jurors is now generally regulated by statutes, and it is unnecessary to do more than refer to that fact, and leave the stu- dent to consult the statutes of his state. Same — Qualification of Jurors. The common law requires grand jurors to be good and lawful freeholders and inhabitants of the county in which the crimes they 19 Whart. Cr. PI. & Prac. § 334; Ward v. State, 2 Mo. 120; U. S. v. Tomp- kins, 2 Oranch, 0. C. 46, Fed. Gas. No. 16,483; Blaney v. State, 74 Md. 153, 21 Atl. 547; State v. Wilcox, 10-4 N. 0. 847, 10 S. E. 453. 2 Whart. Or. PI. & Prac. § 338; McCuUough v. Cam., 67 Pa. St. 33; Brown V. Com., 76 Pa. St. 319; Com. v. Green, 126 Pa. St. 531, 17 Atl. 878; People v. Horton, 4 Parker, Or. R. (N. Y.) 222; State v. Love, 4 Humph. (Tenn.) 255; State V. Lewis, S7 Tenn. 119, 9 S. W. 427; Lewis v. Board of Gounty Com'ra. 74 N. 0. 194. 21 Whart. Cr. PI. & Prac. § 339. 2 2 U. S. V. Hill, 1 Brock. 156, Fed. Gas. No. 15,364; Shepherd v. State, 64 Ind. 43; U. S. V. Keed, 2 Blatchf. 435, Fed. Cas. No. 16,134 2 3 Ante, p. 9; post, pp. 126, 390. no MODE AND TIME OF ACCUSATION. [Ch. 4 are to inquire into were committed. Tlie statutes sometimes re- quire simply tliat thej' shall be electors of the county, and some- times they prescribe other qualifications. In many states nothing but what is specified in the statute will disqualify a grand juror.^* The statutes generally exempt from jury duty persons who are over a certain age, or who occupy certain positions. This, however, is merely an exemption, which they may claim or not as they choose. It does not disqualify them.^^ Same — Constitution of Grand Jury — Impaneling, After the court has been opened in the usual way, the names of those summoned on the grand jury are called, and they are sworn. They must, at common law, number 12 at least, and not more than 23, so that 12 may be a majority, the concurrence of a majority and of that number being required to find an indictment. At corhmon law a finding by less than 12 or by more than 23 is void.'" 2* See Territory v. Hart, 7 Mont. 42, 14 Pac. 768. 2 6 State v. Wright, 53 Me. 328; State v. Quimby, 51 Me. 395; Green v. State, 59 Md. 123; State v. Forshner, 43 N. H. 89; Owens v. State, 25 Tex. App. 552, 8 S. W. 658; State v. Adams, 20 Iowa, 486; State v. Stunkle, 41 Kan. 456, 21 Pac. 675; Jackson v. State, 76 Ga. 551; post, p. 449. 26 2 Hale, P. C. 121; 2 Hawk. P. C. c. 25, § 16; King v. Marsh, 6 Adol. & EI. 236; Clyncajd's Case, Cro. Eliz. 654; State v. Barker, 107 N. 0. 913, 12 S. E. 115; People v. King, 2 Gaines (N. Y.) 98; Pybos v. State, 3 Humph. (Tenn.) 49; State v. Symonds, 36 Me. 128; People v. Thurston, 5 Gal. 69; Hudson v. State, 1 Blackf. (Ind.) 317; Leathers v. State, 26 Miss. 73; English v. State, 31 Fla. 356; 12 South. 689; Gom. v. Wood, 2 Gush. (Mass.) 149. In many of the states the maximum number that shall be necessary is prescribed by statute, and in some states more than 12 are required; but in very few states does the statute change the common-law requirement that there shall not be less than 12 nor more than 23, and that 12 must concur. Statutory provisions that there shall be a certain num- ber (the maximum) have been held merely directory, and not a change of the common law, so as to prevent a finding by a jury less than that number, but of at least 12. Gom. v. Wood. 2 Gush. (Mass.) 149; Gom. v. Sayers, 8 Leigh (Va.) 722; State v. Miller, 3 Ala. 343; State v. Clayton, 11 Rich. (S. C.) 581; Hudson V. State, 1 Blackf. (Ind.) 317; State v. Davis, 2 Ired. (N. G.) 153; Pybos v. State, 3 Humph. (Tenn.) 49; People v. Butler, 8 Cal. 435. Contra, Doyle v. State, 17 Ohio, 222. Where the constitution requires an indictment, it would seem that it requires such an indictment as was necessary at common law, and therefore an indictment found by the concurrence of at least 12 grand jurors; so that a statute allowing an indictment to be found on the con- Ch. 4] INDICTMENT AND PKESENTMENT GRAND JUKY. IH The oath administered to the jury is substantially the same in most of the states, and substantially the same as that administered at Gommon law. It is generally that they will diligently inquire and true presentment make of such articles, matters, and things as shall be given them in charge, or otherwise come to their knowledge, touching the present service, the commonwealth's or state's counsel, their fellows' and their own, they shall keep secr.et; that they shall present no one from envy, hatred, or malice, nor leave any one un- presented from fear, favor, affection, hope of reward, or gain, but shall present all things truly, as they come to their knowledge, ac- cording to the best of their understanding. The oaths administered in the different states vary somewhat, so that the statutes must be consulted. The foreman, when appointed by the court, is first sworn, and the rest of the jurors, several at a time, after him. They merely take the same oath without its being repeated to them.^' A foreman is appointed by the court before the jury is sworn, or else he is selected by the jurors after they retire, according to the practice in the particular jurisdiction.^* Same — Charge of the Court. After the grand jury has been sworn, the judge charges or in- structs them, the object of the charge being to show them their du- ties, and to assist them by stating the law applicable to the various cases that may come before them, and by pointing out matters which require special attention. The charge should not be inflamma- tory. It will not be a contempt of court to object to a charge on that ground, and, if the objection is properly talcen, it may be ground for setting the indictment aside. It should be taken by plea." currence of a less number than 12 would be unconstitutional; and so It bas been held. State v. Barker, 107 N. C. 913, 12 S. E. 115; English v. State, 31 Pla. 356, 12 South. 6S9. In some states the common-law requirement is not guarantied by the constitution, or is expressly changed, and there are statutes allowing a grand jury to consist of less than 12. See State v. Belvel (Iowa) 06 N. W. 54» 2T The record must show that all the jurors were sworn. Roe v. State (Ala.) 2 South. 459; note 97, infra. 2 8 See Blackmore v. State (Ark.) 8 S. W. 940. 29 Clair V. State, 40 Neb. 534, 59 N. W. 118. 112 MODE AND TIME OF ACCUSATION. [Oh. 4 Same — Finding of Indictments. After they have heard the charge, the grand jury withdraw from the court to their own room, where they are to conduct their ex- aminations, and hold their deliberations. Bills of indictment, which, as we have seen, are formal written accusations prepared in advance by the prosecuting officer of the county, and which do not become indictments until they are found true by the grand jury, are taken with them by the jury when they withdraw, or are sent or taken to them there by the prosecuting officer. The names of wit- nesses to be examined are sometimes indorsed on the bills by the prosecuting officer, but the latter, unless required by statute, need not so indorse them. He may summon and call or send such wit- nesses as he sees fit into the jury room, and in some states the jury may summon witnesses themselves.*" The witnesses whose names are indorsed on the bill, or who are called or sent in, are sworn in open court before going into the jury room,*^ and are examined by the grand jurors. Only the witnesses for the prosecution need be examined, since the function of the grand jiu'y is merely to inquire whether there is sufficient ground to put the accused upon his trial; but, as we have said, the jury may in some states call others, and they should do so if they may show that there is no ground for in- dictment. A person against whom a charge is pending has no right to be present himself nor by counsel, nor can he send witnesses to be examined in his behalf.^^ The grand jury should not hear any but legal evidence. If it is shown that an indictment was found entirely upon incompetent evi- dence, it will be quashed on plea in abatement." But, by the bet- so ward V. State, 2 Mo. 120; ante, p. 108. 81 The general practice has been to swear the witnesses In court before they go Into the grand jury room (State v. Kilcrease, 6 S. C. 444); but in some states they may be sworn in the grand jury room by the foreman (Bird v. State, 50 Ga. 585; Allen v. State, 77 111. 484); or, in Connecticut, by a magis- trate (State V. Fasset, 16 Conn. 457). 82 State V. Walcott, 21 Conn. 272; People v. Goldenson, 76 Cal. 328, 19 Pac. 161. ss State V. Logan, 1 Nev. 509; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Sparenberger v. State, 53 Ala. 486; Com. v. Knapp, 9 Pick. (Mass.) 498; Com. V. Green, 120 Pa. St. 531, 17 Atl. 878; Com. v. McComb, 157 Pa. St. 611, 27 Atl 794; Boone v. People, 148 111. 440, 3G N. E. 99. Contra, State v. Dayton, 23 N. J. Law, 49. Ch. 4] INDICTMENT AND PKESENTMENT^GRAND JURY. 113 ter opinion, where there was the slightest legal evidence, the court cannot inquire into its sufficiency, or set the indictment aside be- cause some illegal eTidence was received with it.^* A person who is accused of crime cannot be compelled to testify against himself, and the grand jury have no power to require him to testify. If they do so against his will, it is held by some courts that the indictment will be quashed.*" Other courts hold that, though this is a violation of the defendant's constitutional rights, still it is no ground for setting aside the indictment, if there was other, and legal, evidence before the grand jury.'* By the weight of authority, the prosecuting attorney may and should attend before the grand jury while they are receiving evi- dence, and may assist in the examination of witnesses;'^ and he may be accompanied by his assistants, including his stenographer." No one else can be present during the examination of witnesses, and no one, not even the prosecuting attorney, can be present during the deliberations of the jury.*^ 84 People v. Lauder, 82 Mich. 109, 46 N. W. 956; People r. Hulbut, 4 Denlo (N. Y.) 136; Hope v. People, 83 N. Y. 418; State v. Logan, 1 Nev. 509; Wash- ington V. State, 63 Ala. 189; Bloomer v. State, 3 Sneed (Tenn.) 69. State v. Passet, 16 Conn. 472; Stewart v. State, 24 Ind. 142; Creek v. State, Id. 151; State V. Tucker, 20 Iowa, 508; State v. Fowler, 52 Iowa, 103, 2 N. W. 983; State V. Boyd, 2 HiU (S. C.) 288. Contra, State v. Dayton, 23 N. J. Law, 49. «5 People V. Haines (Gen. Sess. N. Y.) 1 N. Y. Supp. 55; State v. Froiseth, 16 Minn. 297 (Gil. 260); dissenting opinion in People v. Lauder, infra. And see People v. Mondon, 103 N. Y. 211, 8 N. E. 496; Boone v. People, 148 111. 440, 36 N. E. 99; State v. Hawks (Minn.) 57 N. W. 455. If the defendant voluntarily testifies, he cannot object. People v. Lauder, 82 Mich. 109, 46 N. W. 956; People v. King, 28 Cal. 265. 38 People v. Lauder, 82 Mich. 109, 46 N. W. 956; U. S. v. Brown, 1 Sawy. 531, Fed. Gas. No. 14,671. But see the dissenting opinion in People v. Lauder, supra. 37 McCuUough V. Com., 67 Pa. St. 30; State v. Adam, 40 La. Ann. 745, 5 South. 30; Shoop v. People, 45 111. App. 110. as u. S. V. Simmons, 46 Fed. 65. And see Courtney v. State, 5 Ind. App. 856, 32 N. E. 335. 89 Wilson V. State (Miss.) 13 South. 225. In this case a conviction on indict- ment for forgery was reversed because it appeared that the attorney for the person defrauded by the forgery had been before the grand jury urging the bringing of the indictment. CRIM.PKOC. — 8 114 MODE AND TIME OF ACCUSATION. [Ch. 4 If a majority of the jurors (which must, as we have seen, be at least 12 of them) " think that the evidence adduced makes out a suf- ficient case, the words "A true bill" are indorsed on the back of the bill, and signed by the foreman. In some states omission of this indorsement is fatal to the indictment.*^ If they are of the oppo- site opinion, the words "Not a true bill" are so indorsed. In the former case, the bill is said to be found ; in the latter, it is said to be ignored or thrown out. The jury may find a true bill as to one count or charge in a bill, and ignore that in another; or as to one defendant, and not as to another; but they cannot return a special or conditional finding, or select part of a count as true and reject the other part. There must be sufiflcient evidence before the grand jury to show prima facie that the accused is guilty in order to warrant them in finding an indictment.** In New York it has been held that an in- dictment should be quashed if there was wanting an essential link in the proof of the charge, and an indictment alleging a prior con- viction was therefore set aside, because there was no testimony be- fore the grand jury identifying the accused as the prior convict.*' Many courts, however, hold that the court cannot look into the evi- 'dence before the grand jury to determine its sufficiency. If the grand jury find a true bill on insufficient evidence, they simply vio- late their oath. According to these decisions, the indictment can- not be set aside.** *" Clyncard's Case, Cro. Eliz. 654; ante, p. 110. *i Low's Case, 4 Greenl. (Me.) 453; Webster's Case, 5 Greenl. (Me) 432; Gardner v. People, 3 Scam. (111.) 83; Noimaque v. People, Breese (111.) 109; DuteU v. State, 4 G. Greene (Iowa) 125; State v. Elkins, 1 Meigs (Tenn.) 109; Com. V. Walters, 6 Dana (Ky.) 290; Strange v. State, 110 Ind. 354, 11 N. B. 357. In other states the contrary Is held. Com. v. Smyth, 11 Cush. (Mass.) 473; State V. Freeman, 13 N. H. 488; State v. Davidson, 12 Vt. 300; Sparks v. Com., 9 Pa. St. 354; State v. Cox, 6 Ired. (N. C.) 440. In some states this mat- ter is regulated by statute. See Strange v. State. 110 Ind. 354, 11 N. E. 357; McKee v. State, 82 Ala. 32, 2 South. 451; Patterson v. Com., 86 Ky. 313, 5 S. W. 387, 765. 4 2 People V. Hyler, 2 Parker, Cr. R. (N. Y.) 570; 1 Bish. Or. Proc. §§ 866, 867; State v. Cowan, 1 Head (Tenn.) 280. 43 People V. Price (Sess.) 2 N. Y. Supp. 414. 44 Spratt V. State, 8 Mo. 247. But see ante, p. 112. Ch. 4] INDICTMENT AND PRESENTMENT GRAND JURY. 115 Any number ot indictments may be preferred against the same person at the same time for distinct offenses; and even the fact that an indictment is pending for the same offense does not render a second indictment invalid.*" It has been held that where an indict- ment is quashed for informality, and the case is resubmitted to the same grand jury, they may find and present a second indictment without re-examining the witnesses,*" and there seems no good rea- son against this rule; but the contrary has been held.*' The fact that one grand jury has ignored a bill is no reason why a fresh bill may not be submitted to, and found by, a subsequent grand jury.** The power to find an indictment in a case under consideration does not cease until the jury have made their report, even if it ceases then. The fact, therefore, that the jury have voted not to find an indictment, will not prevent them from reconsidering the matter, and voting to find one, and they may do so without hearing any new evidence.*' At common law it is not necessary for the prosecuting officer to countersign an indictment, but it is made so by statute in some states." When bills have been found, the grand jurors come into court, and hand the bills to the clerk, who states to the court the name of the accused, the charge, and the indorsement of the grand jury. After this they are discharged by the court. The bills do not be- come valid indictments until they are thus presented to the court. "^ 45 Rosenberger v. Com., 118 Pa. St. 77, 11 Atl. 782; State v. Keena, 64 Conn. 212, 29 Atl. 470. 4 8 Mclntlre v. Com. (Ky.) 4 S. W. 1. " State V. Ivey, 100 N. C. 539, 5 S. E. 407. *8 4 Bl. Comm. 305; Potter v. Casterline, 41 N. J. Law, 27; State v. Cox, 6 Irecl. (N. O.) 444; State v. Brown, 81 N. C. 570; State v. Harris, 91 N. 0. 658; State v. Collis, 73 Iowa, 542, 35 N. W. 625. *9 U. S. v. Simmons, 46 Fed. 65. 00 Vanderkarr v. State, 51 Ind. 93; Com. v. Beaman, 8 Gray (Mass.) 490 Harrall v. State, 26 Ala. 53; Territory v. Harding, 6 Mont. 323, 12 Pac. 750 State V. Myers, 85 Tenn. 203, 5 S. W. 877; State v. Coleman, 8 S. C. 237 Taylor v. State, 113 Ind. 471, 16 N. E. 183; State v. Reed, 67 Me. 127. But see Teas v. State, 7 Humph. (Tenn.) 174. 51 And it is essential tliat the record shall show such presentation in open court. Mose v. State, 35 Ala. 425; Thornell v. People, 11 Colo. COS, 17 Pac. 904; State v. Pitts, 39 La. Ann. 914, 3 South. 118; State v. Squire, 10 N. H. 116 MODE AND TIME OF ACCUSATION. [Cll. 4 The grand jury, as already intimated, are not restricted to the consideration of bills which have been prepared and submitted to them by the prosecuting attorney, but may inquire into such mat- ters as are called to their attention by the court; and, as we have seen, they may in some states even inquire into matters of which they may learn through their investigations, or which may have oth- erwise come to their knowledge or the knowledge of individual ju- rors."" If any matter so coming under their investigation should oe prosecuted, they so state, and the prosecuting attorney draws an indictment. This statement by the grand jury is what ■»« nave al- ready described as a presentment. Same — Indorsing Names of Witnesses and of Prosecutor. In order to give the accused some knowledge of the evidence which he may have to meet at the trial, and for other purposes, it is provided in many states that the names of the witnesses examined by the grand jury shall be indorsed on the indictment, or returned with it into court; but this provision is generally regarded as being directory, and not mandatory, so that an omission to comply with it does not vitiate the indictment."' In a few states, minutes of the testimony are required to be taken, and returned into court None of these provisions, unless they expressly show that such was the intention of the legislature, prevent the prosecuting attorney from calling and examining other witnesses at the trial than those who were examined before the grand jury, and whose names are so in- dorsed on the indictment. It is also provided by statute in some states that the name of a private prosecutor shall be indorsed on the indictment, so that, if the prosecution is without cause, he may be taxed with the costs. 559; Waterman v. State, 116 Ind. 51, 18 N. E. 63; Collins v. State, 13 Pla. 658; .Tobnson v. State, 24 Fla. 162, 4 South. 535; Brown v. State, 5 Terg. (Tenn.) 168; State v. Cox, 6 Ired. (N. C.) 440; Nomaque v. People, Breese (111.) 146; State v. Vincent, 91 Mo. 662, 4 S. W. 430; Gardner v. People, 20 111. 430. As to entry of the fact on the record nunc pro tunc, see Waterman v. State, su- pra; Johnson v. State, supra. 6 2 JlcCuUough V. Com., 67 Pa, St 30. 6 3 State V. Shores, 31 W. Va. 491, 7 S. E. 413; State v. Holllngsworth, 100 N. C. 535, 6 S. B. 417; Hathaway v. State, 32 Fla. 50, 13 South. 592; Shel- toa v. Com., 89 Va. 450, 16 S. E. 355. Ch. 4] INDICTMENT AND PRESKNTMENT GHAND JUKY. 117 Same — Dissolution of Grand Jury. The grand jury is dissolved either by being discharged by the court, or by final adjournment of the court, and expiration of the term of its service. It cannot dissolve itself.^* Objections to Organization, Constitution, and Qualifications of Grand Jury or Jurors. Objections to the manner in which the grand jury were selected, summoned, or impaneled — as, for instance, because the venire to summon them was not sealed as required by law, or because they were not drawn as required by law, etc. — may be taken by challenge to the array, before indictment, by any person whose case is to come before them.°° If the objection is not discovered before indictment, or if there is no opportunity to challenge, and in some states, even where there is such opportunity, the objection may be raised against the indictment, by plea in abatement, or, where the defect appears on the face of the record, by motion to quash."' It must be raised in one or the other of these ways, or it will be waived. It cannot be raised after pleading to the indictment on the merits."^ In some jurisdictions it is held that objections to the manner of selecting and summoning the grand jury cannot be raised against an indict- ment by plea in abatement or otherwise, where the jurors were qualified and competent"* 04 Clem V. State, 33 Ind. 148; In re Gannon, 69 Cal. 541, 11 Pac. 240. OB People V. Jewett, 3 Wend. (N. Y.) 314; State v. Duncan, 7 Yerg. (Tenn.) 271; Logan v. State, 50 Miss. 269. 6 6 State V. "Ward, 60 Vt. 142, 14 Atl. 187; Reich v. State, 53 Ga. 73; State v. Flemming, 66 Me. 142; Avirett v. State, 76 Md. 510, 25 Atl. 676, 987; Peters V. State, 98 Ala. 38, 13 South. 334. 67 Wallace v. State, 2 Lea (Tenn.) 29; Ellis v. State, 92 Tenn. 85, 20 S. W. 500; State v. Easter, 30 Ohio St. 542; Holland v. Com., 82 Pa. St. 306; Taylor V. Com. (Va.) 17 S. E. 812; Barron v. People, 73 111. 256; Conkey v. People, 5 Parker, Cr. R. (N. Y.) 31; State v. Martin, 2 Ired. (N. C.) 101; State v. Carver, 49 Me. 588; State v. Whitton, 68 Mo. 91; State v. Clarissa, 11 Ala. 57; State V. Greenman, 23 Minn. 209; McQuiUen v. State, 8 Smedes & M. (Miss.) 587; State V. Borroum, 25 Miss. 203; Byrne v. State, 12 Wis. 519; Brown y. Com., 73 Pa. St. 34; People v. Hidden, 32 Cal. 445. In some states the rule is in same cases changed by statute. 08 state v. Bleekley, 18 Mo. 428; State v. Matthews, 88 Mo. 121; U. S. v. Eagan, 30 Fed. 60a 118 MODE AND TIME OF ACCUSATION. [Ch. 4 Objections to individual jurors on the ground that they are not qualified may be taken by challenge to the polls, before the jury is sworn, by any one against whom a charge of crime is pending or may be made, or by some person as amicus curiae."" In most juris- dictions, as we shall see, the objection may in many cases be raised against the indictment by plea in abatement or motion to quash, if not waived by failure to challenge. In no case can it be raised after pleading to the indictment."" In some states it is expressly provided by statute that objections to the qualifications of grand jurors, or to the organization of the grand jury, can only be taken by challenge to the array, or to the polls before the jury are sworn; that they cannot be raised against the indictment.'^ In some jurisdictions it has been held that a juror cannot be ob- jected to, even before the jury are sworn, on the ground that he originated the prosecution of one whose case will come before the jury, or has formed an opinion, or is otherwise biased."^ But, in most jurisdictions where the question has arisen, grand jurors have been allowed to be challenged on this ground before being sworn. B9 2 Hawk. P. C. c. 25, § 16; 3 Bac. Abr. "Jtu-ies," A; 1 Chit. Or. Law. 309; U. S. V. "Williams, 1 Dill. 492, Fed. Cas. No. 16,716; U. S. v. Blodgett, 35 Ga. 337; Mershon v. State, 51 Ind. 14; State v. Hamlin, 47 Conn. 95; Com. v. Burton, 4 Leigh (Va.) 645; Com. v. Smith, 9 Mass. 107; State v. Clarissa, 11 Ala. 57. But see, contra, as to objections by amicus curiae, People v. Horton, 4 Parker, Cr. R. (N. Y.) 222; Hudson v. State, 1 Blackf. (Ind.) 318. 00 Doyle v. State, 17 Ohio, 222; State v. Easter, 30 Ohio St. 542; State v. Symonds, 36 Me. 128; Conkey v. People, 5 Parker, Cr. R. (N. Y.) 31; State v. Martin, 2 Ired, (N. C.) 101; Com. v. Williams, 5 Grat. (Va.) 702; State v. Car- ver, 49 Me. 588; Vanhook v. State, 12 Tex. 252; State v. Clarissa, 11 Ala. 57: State v. Town of Newfane, 12 Vt. 422; McQuillen v. State, 8 Smedes & M. (Miss.) 587; State v. Borroum, 25 Miss. 203; Wilbum v. State, 21 Ark. 198; Byrne v. State, 12 Wis. 519; State v. Duncan, 7 Yerg. (Tenn.) 276. 81 Under such a statute, even the nonresidence or alienage of a grand juror cannot be raised against the Indictment. Lienburger v. State (Tex. Cr. App.) 21 S. W. 603; Lacy v. State, 31 Tex. Cr. R. 78, 19 S. W. 896. And see State V. Henderson, 29 W. Va. 147, 1 S. B. 225. 6 2 Tucker's Case, 8 Mass. 286; State v. Clarissa, 11 Ala. 57. And see State V. Easter, 30 Ohio St. 542. See, for an extreme case, Baldwin's Case, 2 Tyler (Vt.) 473. Ch. 4] INDICTMENT AND PRESENTMENT GEAND JURY, 119 either by one whose case is to come before them, or by some person as amicus curiae."^ It has been held in some jurisdictions that no personal disquali- fication of grand jurors can be made the ground of objection to an indictment.** The general rule, however, in the absence of a stat- ute, is to the contrary, where the disqualification is not only pro- nounced by the common law or by statute, but is one that absolutely disqualifies, such as alienage/" If there is one person on the jury «str. S. V. Aaron Burr (U. S. Cir. Ct. Va.) Burr's Trial by Robertson, 38; TJ. S. V. White, 5 Cranch, O. C. 457, Fed. Cas. No. 16,679; People v. Jewett, 3 Wend. (N. Y.) 314; Com. v. Clark, 2 Browne (Pa.) 325; Musick t. People, 40 lU. 268; State v. Quimby, 51 Me. 395. Other grounds whicb, while not ab- solutely disqualifying a grand juror, so as to vitiate an indictment, have been said to be sufficient to sustain a challenge, are that the juror is related to the prosecutor, or person killed in cases of homicide, or otherwise has a per- sonal interest in the prosecution. See Whart. Cr. PI. & Prac. § 348; U. S. v. Williams, 1 Dill. 485, Fed. Cas. No. 16,716. But the fact that he is a member of an association for the detection of crime is no ground for challenge. Musick V. People, 40 HI. 268. A grand juror may be challenged if he has con- scientious scruples which will prevent his finding an indictment for a capital offense, If such an ofEense is to be inquired into. State v. Rockafellow, 6 N. J. Law, 332; State y- Duncan, 7 Yerg. (Tenn.) 271; Gross v. State, 2 Cart. (Ind.) 329. 64 Com. v. Smith, 9 Mass. 107 (but see Com. v. Parker, 2 Pick. [Mass.] 550); Com. v. Gee, 6 Cush. (Mass.) 174; Boyington y. State, 2 Port. (Ala.) 100; Peo- ple v. Jewett, 3 Wend. (N. Y.) 314; Hardin v. State, 22 Ind. 347; Mershon v. State, 51 Ind. 14; People y. Beatty, 14 Cal. 566. As already stated, it is so provided by statute in some jurisdictions. 6 5 State V. Hamlin, 47 Conn. 95; State v. Sharp, 110 N. 0. 604, 14 S. E. 504; State y. Rockafellow, 6 N. J. Law, 340; Com. v. Sherry, 2 Va. Cas. 20; Com. y. St. Clair, 1 Grat. (Va.) 556; Stanley v. State, 16 Tex. 557; Thayer y. Peo- ple, 2 Doug. (Mich.) 417; State v. Ostrander, 18 Iowa, 438; State v. Middle- ton, 5 Port. (Ala.) 484; Barney v. State, 12 Smedes & M. (Miss.) 68; State v- Duncan, 7 Yerg. (Tenn.) 271; Huling v. State, 17 Ohio St. 583; Doyle v. State, 17 Ohio, 222 (but see State y. Easter, 30 Ohio St. 542); Kitrol y. State, 9 Fla. 9. "It is certainly not reasonable to require a person, who has not been held to answer, to object to the juror before he is impaneled; for he may be on the other side of the globe, or he may have no reason to suppose he is going to be indicted, being guiltless. And, even if a person has been held to answer, he may be in prison, or sick at home, or, if in court, he may be ignorant without fault of the disqualification of the juror until after he has been sworn. Indeed, a person may be indicted for an offense committed pending the in- 120 MODE AND TIME OF ACCUSATION. [Ch. 4 who is absolutely disqualified, the indictment is bad.°° Objections to an indictment have been sustained on the ground that one of the grand jurors was an alien ;°' that he was not a freeholder or elector;'^ that he had n©t paid his taxes as required by statute;*" that he had served on a petit jury which convicted the defendant of the same offense. ''° On the other hand, objections to a grand juror on grounds which do not absolutely disqualify him, as because he had formed and expressed an opinion as to the guilt of the accused, or was related to the person killed by the accused, or to the prose- cutor, cannot be raised against the indictment.'^ This is the gen- erally accepted rule, though there are some cases to the contrary. In many states it is provided that no indictment shall be deemed insufiScient by reason of any defect in matter of form, and under such a statute it has been held that an indictment cannot be ob- jected to because one of the grand jurors was not a qualified elector, quest. Moreover, the action of the grand jury is ex parte and preliminary, and it is contrary to principle to hold that a person shall forfeit his rights by not intervening in a proceeding to which he is not a party." State v. Davis, 12 R. I. 492. 6 6 Barney v. State, 12 Smedes & M. (Miss.) 68; State v. Cole, 17 Wis. 674; State V. Duncan, 7 Yerg. (Tenn.) 271; Kitrol v. State, 9 Fla. 9; State v. Jacobs, 6 Tex. 99. 6 7 Reich V. State, 53 Ga. 73. 6 8 State V. Rockafellow, 6 N. J. Law, 332; State v. Davis, 12 R. I. 492; State v. Doyle, 17 Ohio, 222. 6 9 State V. Diurham Fertilizer Co., Ill N. C. 658, 16 S. E. 231. TO U. S. V. Jones, 31 Fed. 725. 71 State V. Easter, 30 Ohio St. 542; Tucker's Case, 8 Mass. 286; State T. Sharp, 110 N. C. 604, 14 S. E. 504; State v. Rickey, 10 N. J. Law, 83; Musick V. People, 40 111. 268; U. S. v. White, 5 Cranch, C. C. 457, Fed. Cas. No. 16,679; People V. Jewett, 3 Wend. (N. Y.) 314; U. S. v. Williams, 1 Dill. 485, Fed. Cas. No. 16,716; State v. Chairs, 9 Baxt. (Tenn.) 190; Lee v. State, 69 Ga. 705; Com. V. Brown, 147 Mass. 585, 18 N. E. 587; State v. Brainerd, 56 Vt.532; Com. V. Strother, 1 Va. Cas. 186; State v. Maddox, 1 Lea (Tenn.) 671. It was held In a late Massachusetts case that an indictment is not bad merely because one of the grand jurors, before the meeting of the jury, made a personal in- vestigation into the guilt of the accused, and secreted himself in a roam with an officer for the purpose of listening to declarations and admissions of the accused, and heard the same, and listened to statements of officers as to his guilt, and believed him guilty. Com. y. Woodward, 157 Mass. 516, 32 N. E. 939. Ch. 4] INDICTMENT AND PRESENTMENT GBAND JURY. 121 as required by statute,'^ or assessed for taxes.'' It was even said that all personal disqualifications of grand jurors are matters of form, within the meaning of the statute,'* though this is probably going too far.'" Secrecy as to Proceedings of Grand Jury. It has always been the policy of the law that the proceedings of grand juries should be kept secret. At common law, as well as un- der most of the statutes, the jurors are sworn to secrecy, — that "the secrets of the cause, their own, and their fellows' they will duly ob- serve and keep." "The secrets of the cause," it has been said, "re- late to the persons accused, the witnesses, who they are, and what they testified. Their own and their fellows' secrets must refer to the deliberations and the votes of 'the grand jurors themselves."'® As a rule, therefore, no objection can be raised in a criminal case at any stage which must necessitate a disclosure of the proceedings before or by the grand jury. Grand jurors cannot ordinarily be compelled to testify to what was given in evidence before them, or as to irregularities in their proceedings; but there are exceptions to the rule, and there is some conflict in the authorities as to the ex- tent of the rule." It has even been held that witnesses called be- 7 2 U. S. V. Ewan, 40 Fed. 451. 7 3 U. S. V. Benson, 31 Fed. 896. T4 U. S. V. Tuska, 14 Blatchf. 5, Fed. Gas. No. 16,550. '0 U. S. V. Ewan, supra. 7 6 State V. Hamlin, 47 Conn. 95. 77 State V. Hamlin, 47 Conn. 95; State v. Fasset, 16 Conn. 465; Beam v. Link, 27 Mo. 201; People v. Hulbut, 4 Denio (N. Y.) 133; Zeigler v. Com. (Pa. Sup.) 14 Atl. 237; State v. Hayden, 45 Iowa, 11; State v. Gibbs, 39 Iowa, 318; Tindle v. Nichols, 20 Mo. 326; Perkins v. State, 4 Ind. 222; Ex parte Sontag, 64 Cal. 52.5, 2 Fac. 402. But see Com. v. Green, 326 Pa. St. 531, 17 Atl. 878. The grand jury cannot be made to disclose "how any member voted, or the opinion expressed by their fellows or themselves upon any question before them, nor to disclose the fact that an indictment for a felony has been foamd against any person, not in custody or under recognizance, nor to state in de- tail the evidence on which the indictment is founded." Com. t. Hill, 11 Cush. (Mass.) 137. And see People v. Hulbut, supra; Freeman v. Arkell, 1 Car. & P. 137; Huidekoper v. Cotton, 3 Watts (Pa.) 56. But a grand juror Is a competent witness to testify that a certain person did or did not tes- tify before the grand jury. Com. v. Hill, supra; Ex parte Schmidt, 71 Cal. 212, 12 Pac. 55. And it has been held that the testimony of grand jurors la 122 MODE AND TIME OP ACCUSATION. [Ch. 4 fore the grand jury cannot testify to what took place before that body, as this would nullify the rule requiring the proceedings before the grand jury to be kept secret.^" Although there are some authorities to the contrary, it has been generally held that it is inadmissible to show the number of jurors who concurred in finding an indictment, for the purpose of an ob- jection that it was found by less than the 12 required by law, since this could be shown only by the testimony or aflfidavits of the grand jurors themselves.'" admissible to prove that one of the witnesses for the prosecution testified dif- ferently on his examination before them. It was said that, though the au- thorities on this point were not uniform, the weight of authority was in favor of the ruling. "The reasons on which the sanction of secrecy which the com- mon law gives to proceedings before grand juries Is founded are said in the books to be threefold. One is that the utmost freedom of disclosure of al- leged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, If known, it would be to the interest of the accused or their confederates to attempt to disprove by procinring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape, and elude arrest upon it. before the presentment is made. To accomplish these purposes, the rule excluding evidence, to the extent stated in Com. v. Hill, 11 Cush. (Mass.) 140, seems to be well established, and it Is embodied substantially in the words of the oath of office which each grand juror takes on entering on the discharge of his duties. But, when these pur- poses are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. 'Cessante ratione, cessat regula.' After the indict- ment is found and presented, and the accused is held to answer, and the trial before the traverse jury is begun, all the facts relative to the crime charged and its prosecution are necessarily opened, and no harm can arise to the cause of public justice by no longer withholding facts relevant and material to the Issue, merely because their disclosure may lead to the development of some part of the proceedings before the grand jury. On the contrary, great hardship and injustice might often be occasioned by depriving a party of important evidence, essential to his defense, by enforcing a rule of exclusion, having its origin and foundation in public policy, after the reasons on which this rule is based have ceased to exist." Com. v. Mead, 12 Gray (Mass.) 169. And see State V. Broughton, 7 Ired. (N. C.) 96; Perkins v. State, 4 Ind. 222; Com. v. Green, 126 Pa. St. 531, 17 Atl. 878; People v. Reggel, 8 Utah, 21, 28 Pac. 955. ■fs State V. Fasset, supra. TO ^tate V.Hamlin, 47 Conn. 95; People v. Hulbut, 4 Denio (N. Y.) 133; Green ■ "-ite, 28 Miss. 687; State v. Baker, 20 Mo. 347; Tlndle v. Nichols, Id. 326; Ch. 4] INDICTMENT AND PRESENTMENT GRAND JtlRY. 123 In some cases grand jurors may be allowed to testify to what took place before them where the ends of justice require it, as in a prosecution of a person for perjury before them. And by statute in some jurisdictions it is expressly provided that grand jurors may be compelled to disclose the testimony of witnesses before them in certain cases. Record and Caption of Indictment. The caption is no part of the indictment itself; it is only a formal statement of the proceedings, describing the court before which the indictment was found, the time and place where it was found, and the jurors by whom it was found.^" These particulars, as we shall see, must be set forth with sufflcient certainty.*^ It has been said that the record of the prosecution will not be perfect without the caption, and would not be admissible in evidence, for it would not show by what authority the indictment was found ;*^ but it has been held that the omission of a caption does not make the indict- ment itself bad, and that the emission may be supplied from other parts of the record.'^ The name of the county should appear in the caption, unless' it is inserted in the margin, and is referred to in the body of the caption as "the county aforesaid."** If stated in the body of the caption, it may be omitted in the margin.*" The caption must set forth with sufflcient certainty the court in Imlay v. Rogers, 7 N. J. Law, 347. Contra, Low's Case, 4 Greenl. (Me.) 439; Territory v. Hart, 7 Mont. 42, 17 Pac. 718. 80 1 Bast, P. O. 113; State v. Gary, 36 N. H. 359; People v. Jewett, 3 Wend. (N. Y.) 319; Rose v. State, Minor (Ala.) 29; State v. Brickell, 1 Hawks (N. C.) 354; State v. WilllaDas, 2 McCord (S. O.) 301; U. S. v. Bomemann, 35 Fed. 824; McClure v. State, 1 Yerg. (Tenn.) 260; State v. Hunter, Peck (Tenn.) 166; Noles v. State, 24 Ala. 672; State v. Smith, 2 Har. (Del.) 533; State v. Jones, 11 N. J. Law, 289. 81 2 Hale, P. C. 165; 2 Hawk P. C. c. 25, §§ 16, 17, 118-120; State v. Conley, 39 Me. 78; Reeves v. State, 20 Ala. 33; English v. State, 4 Tex. 125; State v. Hunter, supra. 82 Cooke V. Maxwell, 2 Starkie, 183. 83 state V. Gilbert, 13 Vt. 647; State v. Wasden, 2 Taylor (N. C.) 163; post, p. 126. 84 2 Hale, P. C. 165, 166. 86 1 Chit. Or. Law, 327. It is enough if the county be stated in the body of the indictment Tefflt v. Com., 8 Leigh (Va.) 721; State v. Lane, 4 Ired. (N. C.) 113. i--l MODE AND TIME OF ACCUSATION. [CJh. 4 which the indictment was found, so as to show that the court had jurisdiction.** It is not necessary, however, to set forth the founda- tion of the court's authority, if it be exercised in the course of ordi- nary jurisdiction,*^ but It is probably otherwise if the indictment is found in a special court.** An indictment with this caption: "Commonwealth of Massachusetts, Essex, to wit: At the court of common pleas, begun and holden at Salem, within and for the county of Essex," on a certain day, — is suflflcient, and suflSciently shows that the court was held in the commonwealth.*" The place at which the court is held, including the name of the county, must be stated."" This is necessary to show that the place is within the limits of the court's jurisdiction. As already stated, the county may be stated in the margin, and merely referred to in the body of the caption as "the county aforesaid." Such a refer- ence or an express statement of the county is essential."^ The caption must also specify the day and year on which the in- dictment was presented, and if it state an uncertain, future, or im- possible day, or merely lay a day of the week, or state the time with repugnancy, it will be fatally defective,"^ unless the omission or mis- take is supplied by other parts of the record."* «■! 2 Hale, P. C. 166; 2 Hawk. P. G. c. 25, §§ 16, 17, 118-120; State v. Wil- liams, 2 McCord (S. C.) 301; State v. Sutton, 1 Murph. (N. C.) 281; Dean v. State, Mart. & Y. (Tenn.) 127; Taylor v. Com., 2 Va. Cas. 94; Burgess v. Com., Id. 483. In many states it is provided that defects in form may be amended or cured by verdict, and it has been held that omission of the name of the court from the caption Is such a defect. State v. Brennan, 2 S. D. 384, 50 N. W. 625. 8 7 Rex T. Royce, 4 Burrows, 2085; Rex v. Gilbei-t, 1 Salk. 200; 2 Hawk. P. C. c. 25, § 125. 88 1 Chit. Cr. Law, 329; Fost. 3; State v. Williams, 2 McCord (S. C.) 301. 8» Com. V. Fisher, 7 Gray (Mass.) 492; State v. Conley, 39 Me. 78. 80 2 Hale, P. C. 166; 2 Hawk. P. C. e. 25, § 128; Lusk v. State, 64 Miss. 845, 2 South. 256. See State v. Conley, 39 Me. 78. 81 2 Hale, P. C. 166; 2 Hawk. P. C. c. 25, § 128; State v. Williams, 2 Mc- Cord (S. C.) 301; Dean v. State, Mart. & Y. (Tenn.) 127; Taylor v. Com., 2 Va. Cas. 94; Burgess v. Com., Id. 483; Com. v. James, 1 Pick. (Mass.) 375. »2 2 Hawk. P. C. a 25, § 127; Rex v. Warre, 1 Strange, 698; 4 Coke, 48; Rex V. Fearnley, 1 Term R. 31 "5, 1 Leach, Crown Cas. 425; Rex v. Roysted, 1 Ld. Keny. 255. 03 Post, p. 126. Ch. 4] INDICTMENT AND PRESENTMENT GRAND JURY. 1'25 It was formerly held that, in addition to the description of the court, and the time and place at which it is held, the caption must name the judges or justices, or so many of them as the law requires to constitute the court, and allude to the rest by the words "and others their fellows";"* and this may still be necessary in some jurisdictions. There is no reason, however, why it should be re- quired if the name of the judge otherwise appears on the record; and in some states it has held not to be necessary, while in others the approved forms of caption do not contain if The indictment must always be shown to have been found upon oath, or upon oath and affirmation; and, if an allegation of this fact is omitted, the caption will be bad.°' The names of the jurors need not be specified in the caption, though they must appear some- where on the record."' It should also appear on the record that the bill is found by at least 12 jurors,"" though it need not appear in the caption.^"" It is usual to describe the jurors as "good and law- ful men," and there is authority for saying that such a description is necessary.^"^ But they have been held to be unnecessary.^"^ These words include every qualification required by law for grand jurors.^"" Where some of the jurors are aflQrmed instead of sworn, the record, it has been held, must show that this was authorized, as B4 2 Hale, P. 0. 116; 2 Hawk. P. C. c. 25, § 124; 1 Chit. Cr. Law, 331; State V. Zule, 10 N. J. Law, 348; State v. Price, 11 N. J. Law, 203. It is not nec- essary to show their appointment. Rex v. Royce, 4 Burrows, 2084. 8 Com. V. Stone, 3 Gray (Mass.) 453. »7 2 Hale, P. C. 167; 2 Hawk. P. C. c. 25, § 126; Rex v. Evans, 1 Keb. 329; Roy v. Inhabitants of Yarton, 1 Sid. 140; Roe v. State (Ala.) 2 South. 459. 8 8 1 Chit. Cr. Law. 333; U. S. v. Insurgents, 2 Ball. 335, Fed. Cas. No. 15,443; Mahan v. State, 10 Ohio, 232. See Stone v. State, 30 Ind. 115; State v. Norton, 23 N. J. Law, 33. 99 2 Hale, P. O. 167; 2 Hawk. P. 0. e. 25, §§ 16, 126; ayncard's Case, Cro. Eliz. 654; Rex v. Darley, 4 East, 175. 100 Young V. State, 6 Ohio, 435; Turns v. Com., 6 Mete. (Mass.) 225. 1012 Hale, P. C. 167; Oily's Case, Cro. Jac. 635. 102 state V. Yancey, 1 Tread. Const. (S. C.) 237; 1 Chit. Cr. Law, 333. 103 Jerry v. State, 1 Blackf. (Ind.) 396; State v. Glasgow, Cam. & N. (N. C.) 38; State v. Price, 11 N. J. Law, 203; Collier v. State, 2 Stew. (Ala.) 388: Bonds V. State, Mart & Y. (Tenn.) 143; Cornwell v. State, Id. 147. 126 MODE AND TlMJfi OB' ACCUSATION. [Ch. 4 that they alleged that they had conscientious scruples against tak- ing an. oath; "* but the weight of authority is to the contrary. The caption must state that the jurors are "of the county afore- said," or by some other means state that they are of the county for which they are inquiring."^ It was formerly regarded in England as necessary to describe them as "then and there sworn and charged to inquire for our said lord, the king, and the body of the said county";^"* but these words are not necessary if it otherwise ap- pear that they were sworn.^"' When there is any material defect in the caption, the court may, in its discretion, either quash the in- dictment, or leave the defendant to demur, or raise the objection in some other way.^"* This we shall explain in another connection.^"' As we shall see, an indictment, being a finding of the grand juiy on oath, cannot be amended by the court. The caption, however, being no part of the indictment, but merely a ministerial act to make up the record of the court, may be amended at any time, even after conviction, so as to cure defects, by making it conform to the other records of the term.^^" And omissions or mistakes in the caption, in the description of the court, or the statement of time of the finding of the indictment, or in any other respect, may be sup- 104 state V. Fox, 9 N. J. Law, 244; State v. Harris, 7 N. J. Law, 361. But see Mulcahy v. Reg., L. R. 3 Ir. 300; Com. v. Fisher, 7 Gray (Mass.) 492. It is also held now in New Jersey that such an omission is a defect of form, which under a statute in that state Is waived if not objected to by demurrer or motion to quash. State v. Engeman (N. J. Sup.) 23 Atl. 676. 105 2 Hale, P. C. 167; 2 Hawk. P. C. c. 25, §§ 16, 126; Lewson v. Reddleston, Cro. Eliz. 677; Tipton v. State, Peek (Tenn.) 307; C!ornwell v. State, Mart. & Y. (Tenn.) 147; Woodsides v. State, 2 How. (Miss.) 655. 106 2 Hale, P. C. 167; Bell v. People, 1 Scam. (111.) 399; People v. Guernsey, 3 Johns. Gas. (N. Y.) 265. 107 1 Chit. Or. Law, 334. 108 2 Hawk. P. C. e. 25, § 146. lOB Post, p. 362. 110 1 Chit Cr. Law, 335, and old authorities there collected; Philips v. Smith, 1 Stra,pge, 138; Rex v. Hayes, 2 Ld. Raym. 1518, 2 Strange, 843; Rex v. Dar- ley, 4 East, 175; State v. Williams, 2 McCord (S. C.) 301; State v. Gilbert, 13 Vt. 647; Dean v. State, Mart. & Y. (Tenn.) 127; Com. v. James, 1 Pick. (Mass.) 375; Burgess v. Com., 2 Va. Gas. 483; Taylor v. Com., Id. 94. ^t»- 4] INFOEMATION. 127 plied or corrected by other parts of tlie record, as by the certificate of the clerk on the back of the indictment.^^^ In many states, the caption, instead of being made up by the clerk, is prefixed to the bill before it is submitted to the grand jury, and forms a part of the bill as presented by them. This, however, does not make it any part of the indictment proper.^^^ Being a part of the bill, however, when submitted to the grand jury, and considered by them, the indictment proper may refer to it for the name of the county, just as it may refer to the county in the margin.^^^ In North Carolina it has been held that a caption is not necessary unless the court is acting under a special commission.^ ^* INFORMATION. 49. An information is a "written accusation of crime preferred by the prosecuting officer -without the inter- vention of a grand juiy. An information lies at common law for all misdemeanors. It will not lie for a felony, for, as we have seen, it has always been the policy of the common law that no man shall be put upon his trial for a felony until the necessity therefor has been determined by the oath of the grand jury."° As we have seen, however, in speaking 111 Com. V. Mullen, 13 Allen (Mass.) 551; Penn'a v. Bell, Addis. (Pa.) 175; Com. V. Hines, 101 Mass. 33; U. S. v. Bornemann, 35 Fed. 824; Com. v. Stone, 3 Gray (Mass.) 453; Com. v. Colton, 11 Gray (Mass.) 1; State v. Robinson, 85 Me. 147, 26 Atl. 1092; State v. Jones, 9 N. J. Law, 357; State v. Briclsell, 1 Hawks (N. C.) 356; State v. Gilbert, 13 Vt 647 (in this case it was held that the entire omission of a caption might be supplied by the minutes of the clerk on the bill, and the general records of the term). An Indictment which pur- ports in its caption to have been found on the first day of the term, but charges an offense of a later day, may be shown, by reference to the clerk's certificate indorsed thereon, to have been actually returned into court after this date. Com. v. Stone, supra. 112 Ante, p. 123. 113 Com. V. Edwards, 4 Gray (Mass.) 1; Com. v. Fisher, 7 Gray (Mass.) 492. 114 State V. Brickell, 1 Hawks (N. C.) 354; State v. Haddock, 2 Hawks (N, C.) 462. 115 Ante, p. 107; 2 Hale, P. O. 151. 128 MODE AND TIME OF ACCUSATION. [Ch. 4 of indictments, there is nothing, in the absence of constitutional provisions requiring an indictment, to prevent the legislature, if it sees fit, from doing away with indictments altogether, and substi- tuting information as the mode of accusation. This the legislature has done in some states. We have shown that in the constitutions of the United States and of some of the states there are provisions requiring all prosecutions in certain cases to be by indictment, and that in such cases no other mode of accusation will do.^^° An indictment, as we have seen, is sanctioned by the oath of the grand jury. An information, on the other hand, is the mere alle- gation of the prosecuting officer by whom it is preferred. The practice of filing informations existed at common law, and may be traced to the earliest period.^^' "As the Mug was bound to prose- cute," it is said by Blackstone, "or, at least, to lend the sanction of his name to a prosecutor, whenever a grand jury informed him upon their oaths that there was a sufficient ground for instituting a crim- inal suit; so, when his immediate officers were otherwise suffix ciently assured that a man had committed a gross misdemeanor, either personally against the king or his government, or against the public peace or good order, they were at liberty, without waiting for any further intelligence, to convey that information to the court of king's bench, by a suggestion on the record, and to carry on the prosecution in his majesty's name."^^* Under the common law of England, informations were of two kinds. The first was filed by the attorney general, as a rule, for offenses more immediately against the king or the public safety; but such an information could be filed by him for any other misde- meanor, though an offense more particularly against an individ- yrjj 119 rjijjg second was filed by the masters of the crown office, and it was the usual mode of proceeding by information for offenses against individuals. Formerly both of these informations could be iiled without leave of court, and without further oath or affidavit than the oath of office of the officer preferring it. By an early Eng- 118 Ante, p. 107. 117 1 Chit. Or. Law, 843; 2 Hawk. P. C. c. 26, § 85. 118 4 Bl. Ck)mm. 309. 110 3 Bac. Abr. tit. "Informations," B; 2 Hawk. P. 0. c. 26, § 1; Territory V. Cutlnola, 4 N. M. 160, 14 Pac. 809. Ch. 4] INFOEMATION. 129 lish statute,^^" however, whicli is old enough to have become a part of our common law, if applicable to our conditions, it was provided that informations by masters of the crown office could only be filed by leave of court, and that they should be supported by the affidavit of the person at whose suit they were preferred.^^^ The law remained that informations fUed by the attorney general (and, as already stated, he could file them for any misdemeanor) need not be verified, and that he was the sole judge of the necessity or propriety of filing them. Leave of court was not necessary. Nor was the accused entitled to opportunity to show cause against the proceeding.^ ^'^ The attorney general usually acted on affidavits of witnesses laid before him, but this was not necessary. There is some authority for the proposition that the kind of in- formation to be used at common law in this country is that which in England was filed by the masters of the crown office, and that this is the kind contemplated by statutes which show no intention to the contrary;^*' and, if this is so, leave of the court and affidavit would be necessary. But, by the better opinion, the other kind of informa- tion is the one in use with us. "In our states the <;riminal informa- tion should be deemed to be such, and such only, as in England is presented by the attorney or solicitor general. This part of the English common law has plainly become common law with us. As with us the powers which in England were exercised by the at- torney or solicitor general are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court.""* The mode of procedure is in many states almost entirely regulated by statute. In some the information must be under the oath of the 120 4 & 5 w. & M. c. 18. 121 Bac. Abr. 635, tit. "Informations." 122 1 Chit. Cr. Law, 845; 4 Bl. Comm. 312; 11 Harg. St. Tr. 270; State t. Dover, 9 N. H. 468. 123 State V. Gleason, 32 Kan. 245, 4 Pac. 363. And see U. S. v. Tureaud, 20 Fed. 621. 121 1 Bish. Cr. Proa §§ 144, 604, 606; Wliart. Cr. PI. & Prac. § 87; State v. Kelm, 79 Mo. 515; State v. Moore, 19 Ala. 514; Territory v. Outinola, 4 N. M. 160, 14 Pac. 809; State v. Keena, 64 Conn. 212, 29 Atl. 470. CKIM.PKOC. — 9 130 MODE AND TIME OF ACCUSATION. [Ch. 4 prosecuting officer, or of some witness, and, if not so verified, it is invalid.^^° Unless verification is required by statute, however, it is not necessary; for, as we liave seen, it was not required at com- nion law. In some states it is necessary to the filing of an informa- tion that there shall have been a complaint on oath and preliminary examination before a magistrate, and a finding by the magistrate of probable cause for the prosecution.^^" Though, in general, as stated above, the prosecuting officer is the sole judge of the necessity and propriety of filing an information, his action is now very much restricted by statute ; and he must fol- low the statutory provisions. It has been held that even at com- mon law he cannot prefer an information where the grand jury have inquired into the alleged offense, and found that the evidence did not justify an indictment, unless he has new evidence which was not brought before the grand jury.^''^ But the soundness of this de- cision is doubtful. In all cases, an information, to be valid, must be preferred by the proper prosecuting officer, and not by a private person.^^* CORONER'S INQUISITION. 50. A coroner's inquisition is the record of the finding of the jury s^worn by the coroner to inquire super visum corporis, concerning the death of a person. On this a person may, at common law, be prosecuted for murder or manslaughter without the intervention of a grand jury, for the finding of the coroner's jury is itself equivalent to the finding of a grand jury. The accused is arraigned on the inquisition as on an indictment, and the subsequent proceedings are the same.^^° No indictment is necessary unless required by statute, but the practice is generally to indict, and the trial is then had on the indictment. 126 State v. Hay ward, 83 Mo. 303; State v. Calfer (Mo. Sup.) 4 S. W. 418; Wadgyinar v. State, 21 Tex. App. 459, 2 S. W. 768; Lackey v. State, 14 Tex. App. 164. 126 o'Hara v. People, 41 Mich. 623, 3 N. W. 161. See ante, p. SO. 127 Richards v. State, 22 Neb. 145, 34 N. W. 340. 128 People V. ICelm, 79 Mo. 515. 12 9 Reg. V. Ingham, 9 Cox, Cr. Cas. DOS. Ch. 4] COMPLAINT. 1"1 The mode of conducting a coroner's inquest is generally regulated by statute. On receiving notice of a death under circumstances re- quiring investigation, the coroner causes a jury consisting of six men (in some jurisdictions perhaps more, and in some less) to be summoned. After the jury are sworn, they view the body. Wit- nesses are examined on oath, and their evidence is reduced to writ- ing by the coroner. He has authority, like a magistrate, to cause the material witnesses to enter into a recognizance for their appear- ance to testify at court in case of a trial. The inquisition consists of three parts : The caption or incipitur, the verdict of the jury, and the attestation. The rules as to cer- tainty, description, etc., which apply to indictments, and which we shall presently discuss, apply also to an inquisition. When the jury have returned a verdict of murder or manslaughter against a person, the coroner must commit him for trial, if present. If he is not in custody, the coroner may issue a warrant for his ar- rest, and order him to be brought before himself or some magistrate of the jurisdiction, in order that he may be so committed. Coroners are generally authorized to admit to bail. If an inquest ought to be held over a dead body, it is a misde- meanor to so dispose of the body as to prevent the coroner from holding the inquest^^" COMPLAINT. 51. By statute in most states, certain minor offenses may be prosecuted before inferior courts upon a com- plaint or information made under oath, by a private per- son. This kind of a complaint or information is very different from the information which we have already explained. Instead of being presented by the prosecuting officer, it is made by a private person. It is more in the nature of a complaint made by a private person for the purpose of an arrest. It is allowed by statute only, and was unknown to the common law, and it is allowed only in the case of petty misdemeanors. The prosecution is instituted in an inferior ISO Reg. V. Price, 12 Q. B. Div. 24T; Reg. v. Stephenson, 13 Q. B. Div. 331. 132 MODE AND TIME OF ACCUSATION. [Ch. 4 court, as before a justice of the peace or municipal court. In case of a conviction, an appeal to the higher court is provided for in some cases, and a trial de novo is there had on the same complaint or in- formation. TIME OF PROSECUTION. 52. Et is generally provided by statutes, known as the "statutes of limitation," that prosecutions shall be barred unless commenced -vp-ithin a certain time after the offense was committed. In the absence of such a provision, there is no period beyond which a prosecution may not be in- stituted. 53. In some states it is provided by statute that a per- son under arrest on a charge of crime shall be discharged from imprisonment unless a presentment, indictment, or information is found or filed within a prescribed time after his arrest. But these statutes do not operate as a bar to prosecutions. Courts look with disfavor on unreasonable delay in commencing prosecutions, '^^^ but, in the absence of statutory limitation, there is no time within which a prosecution must be commenced. But in most jurisdictions statutes have been enacted barring prosecutions unless commenced within a prescribed time after the offense is al- leged to have been committed. These statutes are to be liberally construed in favor of the defendant.^'^ It has been held that the statutes apply to offenses committed before their enactment,^'* but there is authority to the contrary.^'* In New York the courts have held that a statute extending the time for commencing prosecutions only applies to subsequent offenses.'*" 181 See Reg. v. Robins, 1 Cox, Or. Cas. 114. 182 Whart Cr. PI. & Prac. § 316. 188 Johnson v. U. S., 3 McLean, 89, Fed. Cas. No. 7,418; TJ. S. v. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507. 184 Martin v. State, 24 Tex. 61. 18B People V. Martin, 1 Parker, Or. R. (N. Y.) 187. Ch. 4] TIME OF PEOSECDTION. 133 The statute commences to run on the day the offense is consum- mated,"" unless the offense is continuous, in which case it com- mences when the act or neglect constituting the offense ceases.^'^ The commencement of the prosecution, stopping the running of the statute, is in some jurisdictions the finding of an indictment, filing of an information, or, in case of inferior misdemeanors prosecuted by complaint, filing of the complaint, and not the filing of a com- plaint for the issuance of a warrant of arrest or a preliminarv hear- ing, or the issuance of a warrant.^^^ In other jurisdictions the issu- ance of a warrant, at least where the arrest is made within a reason- able time afterwards,^^" or binding over or commitment,^*" will stop the running of the statute. The statutes generally except from their operation cases in which the offender conceals himself or is a fugitive from justice or a non- resident of the state,^*^ and may contain other exceptions. In some states the statute does not run until the offense is known. ^*^ 136 Whart. Cr. PI. & Prac. § 321; Glse v. Com., 81 Pa. St. 428; State v. As- bury, 26 Tex. 82; Scoggins T. State, 32 Ark. 205; U. S. v. Irvine, 98 V. S. 450. 18 7 Whart Or. PI. & Prac. § 321; U. S. v. Irvine, supra. 138 u. S. V. Slacum, 1 Cranch, C. C. 485, Fed. Gas. No. 16,311; Com. v. Slieriff, 3 Brewst. (Pa.) 394. The sending ol an indictment to the grand jury does not stop the running of the statute. State v. Tomlinson, 3 Ired. (N. C.) 32; State V. Morris, 104 N. C. 837, 10 S. E. 454. Presentment by a grand jury is suffi- cient, though the statutory period elapses before indictment. Brock v. State, 22 Ga. 98. But see U. S. v. Slacwm, supra. If a nolle prosequi of an indict- ment is entered, the running of the statute is not interrupted. U. S. v. Bal- lard, 3 McLean, 469, Fed. Gas. No. 14,507; Contra, by statute, State v. Child, 44 Kan. 420. 24 Pac. 952. 13 9 Reg. V. Parker, 9 Cos, Cr. Gas. 475; In re Glyne, 52 Kan. 441, 35 Pac. 23; Foster v. State, 38 Ala. 425; Ross v. State. 55 Ala. 177; People v. Clement, 72 Mich. 116, 40 N. W. 100. Filing complaint for issuance of warrant is not sufficient. In re Glyne, supra; People v. Clement, supra; State v. Miller, 11 Humph. (Tenn.) 505; People v. Clark, 33 Mich. 120; In re Griffith, 35 Kan. 377, 11 Pac. 174. The arrest need not be made within the statutory period. Id. 140 Reg. V. Austin, 1 Car. & K. 621. 1*1 As to these exceptions, see U. S. v. White, 5 Oranch, 0. C. 116, Fed. Gas. No. 16,677; Robinson v. State, 57 Ind. 113; State v. Harvell, 89 Mo. 588, 1 S. W. 837; State v. Heller, 76 Wis. 517, 45 N. W. 307; Graham v. Com., 51 Pa. St. 255; People v. McCausey, 65 Mich. 72, 31 N. W. 770. .112 Dale V. State, 88 Ga. 552. 15 S. E. 287. 134 MODE AND TIME OF ACCUSATION. [Ch. 4 No other exceptions than those specified in the statute will defeat its operation.^** The fact that an indictment found in time is quashed as defective, and a new indictment presented after the statutory period has elapsed, does not reTire the statute so as to bar the prosecution;^** but it has been held that the running of the statute is not inter- rupted by an indictment on which a nolle prosequi is entered.^*^ The effect of the statute cannot be avoided by charging a crime not barred, and convicting of an offense which is included in the charge, but which was barred. Thus, where a person is indicted for murder, for which no limitation is prescribed, and is found guilty of assault with intent to murder, which was barred when the in- dictment was found, a motion in arrest of judgment should be sus- tained."* In some states it is provided that a person in jail on a criminal charge shall be dismissed from imprisonment if a presentment, in- dictment, or information be not found or filed against him before the end of the second term (the time varies in the different states) of the court at which he is held to answer. These statutes do not operate, like the statutes of limitation of which we have spoken, as a bar to the prosecution of the defendant. He must be discharged from imprisonment if not formally charged within the time pre- scribed, but he may be again arrested and tried upon any indictment that may be subsequently found against him.^*^ In most states, by statute, a person who has been indicted or in- formed against, and is in custody, must be brought to trial within a certain time, or he will be entitled to a discharge. This, how- ever, relates to the time of trial, rather than of the prosecution.^*' "8 Com. V. Sheriff, 3 Brewst. (Pa.) 394; In re Griffith, 35 Kan. 377, 11 Pac. 174. 1** Com. V. Sheriff, 3 Brewst. (Pa.) 394; Poster v. State, 38 Ala, 425; State v. Johnston, 5 Jones (N. C.) 221; State v. Hailey, 6 Jones (N. O.) 42; TuUy v. Com., 13 Bush (Ky.) 142. 1*5 u. S. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507. 1*6 Fuecher v. State (Tex. Cr. App.) 24 S. W. 292. 1*7 WaUer v. Com., 84 Va. 492, 5 S. E. 364. It is sufficient under such a statute that the defendant has been indicted at every term of court, though for a different crime from that for which he is finally Indicted and tried. Wal- ler V. Com., supra. 148 Post, p. 410. Ch. 4] NOLLE PROSEQUI. 135 NOLLE PROSEQUL 54. A nolle prosequi is a formal entry upon the record by the prosecuting officer, by which he declares that he will no farther prosecute the case, either as to some of the counts of the indictment, or part of a divisible count, or as to some of the defendants, or altogether. It may be entered at any time before judgment without, the de- fendant's consent; but if the trial has commenced, and the indictment is sufficient, it will amount to an acquittal. At common law, the state may at any time before judgment,^*' without the defendant's consent, voluntarily withdraw the indict- ment or other accusation altogether, or as to some counts which are objectionable, or as to part of a count which is diyisible, or as to some of several defendants where the offense is joint and several.^ ^^ This is done by the entry of such a withdrawal on the record. The entry is essential. Until the entry is made on the record, there is no binding withdrawal, but it may be retracted, and the prosecution may proceed on the same charge.^ °^ The entry of a nolle proseijui as to one count does not affect the right to proceed to judgment on the others, nor does such an entry as to one of several defendants affect the proceeding as to the others, where the offense is several as well as joint.^"* If the entry is made before the trial has com- menced by the swearing of the jury, or even if made afterwards, where the indictment was fatally defective, a new prosecution may 1*9 Com. V. Briggs, 7 Pick. (Mass.) 178; Com. v. Tuck, 20 Pick. (Mass.) 357; State V. Burke, 38 Me. 574; Levison v. State, 54 Ala. 520; State v. Roe, 12 Vt. 93. iBo Com. v. Briggs, supra; Com. v. Tuck, supra; Com. v. Smith, 98 Mass. 10; U. S. v. Watson, 7 Blatchf. 60, Fed. Gas. No. 16,652; State v. Bruce, 24 Me. 71; State v. Boe, 12 Vt. 93; People v. Porter, 4 Parker, Cr. R. (N. Y.) 524; Wright V. State. 5 Ind. 290; State v. Fleming, 7 Humph. (Tenn.) 152; Lacey V. State, 58 Ala. 385. iBi Com. V. Wheeler, 2 Mass. 172; Com. v. Tuck, supra; Wortham v. Com., 5 Rand. (Va.) 669. m See the cases above cited. 136 MODE AND TIME OF ACCUSATION. [Ch. 4 be instituted for the same ofEense;"' but by the weight of author- ity, as we shall see, there can be no further prosecution if the indict- ment is sufflcient to sustain a conviction, and the entry is made after the jury have been sworn.^^* In some states, by statute, the consent of the court to the entry of a nolle prosequi is necessary; ^■"' and in others it has been held nec- essary in the absence of such a statute after the jury are sworn, and before verdict; ^^* but, by the better opinion, it was not neces- sary at all at common law.^^' IBS Post, p. 385; Com. v. Wheeler, 2 Mass. 172; Com. v. Briggs, 7 Pick. (Mass.) 179; State v. Benham, 7 Comi. 418; Lindsay v. Com., 2 Va. Cas. 345; Wortham v. Com., 5 Rand. (Va.) 669; V. S. v. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; State v. McNeill, 3 Hawks (N. C.) 188; State v. Haskett, 3 HiU (S. C.) 95. 154 Post, p. 385. 1 OB See People v. McLeod, 1 Hill (N. Y.) 404. 1B8 u. S. V. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; Com. v. Tuck, 20 Pick. (Mass.) 357; State v. I. S. S., 1 Tyler (Vt.) 178; State v. Moody, 69 N. C. 529. 1B7 People V. McLeod, 1 Hill (N. Y.) 404. The following is related of Sir John Holt, chief justice of the king's bench in the reigns of William and Anne: "There were some persons in London who pretended the power of foretelling futm-e events, and who were called the 'French prophets.' Holt having, upon occasion, committed one of these to prison, a disciple of his came to the chief justice's house, and desired to see him. On being ad- mitted, he said: 'I come from tie Lord, who bade me desire thee to gi-ant a nolle prosequi for John Atkins, his servant, whom thou hast thrown into prison.' 'Thou art a false prophet and lying knave,' returned the chief jus- tice. 'If the Lord had sent thee, it would have been to the attorney gen- eral; for the Lord knoweth that it is not in my power to grant a nolle pros- «qui.' " 1 Hill (N. Y.) 405, from 1 Law & Lawy. (Phil. Ed.) 293, 294. ^h. 5] PLEADIiS'G THE ACCUSATION, 137 CHAPTEE, V. PLEADING— THE ACCUSATION. 55. Form of Indictment— In General, 56. The Commencement. 57. The Statement. 58. Name and Description of Defendant. 59. Statement of OfEense— In General. 60. Stating Ingredients of Offense. 61. Facts to be Stated, and not Conclusions of Law. 62. Identifying OfCense. 63. Mode of Averment — Argument and Inference. 64. Unnecessary Matter. 65. Facts Necessarily Implied from Facts Stated. 66. Facts Judicially Noticed. 67. Conclusions of Law from Facts Stated. 68. Matters of Evidence. 69. Matters of Defense. 70. Facts Particulatly vs^ithin Knowledge of Defendant 71. Pacts not Known. 72. Disjunctive or Alternative Allegations, 73. Repugnancy. 74. English Language. 75. Abbreviations. 76. Use of Videlicet or Scilicet 77. Clerical or Grammatical Errors. 78. Inducement 79. Innuendo. 80. Surplusage. We have seen that no man can be put upon his trial for an offense without being formally accused, and we have explained the differ- ent modes of accusation; namely, by indictment, by information, and by complaint. It is not only necessary that there shall be an accusation, but it must be in the form required by law. Certain allegations are essential, and they must observe certain rules. We will now show what these essential allegations are, and explain the rules of pleading which govern the construction of an accusation. We shall in terms speak of indictments only, but the rules apply 138 PLEADING THE ACCUSATION. [Ch. 5 with equal force to informations and complaints, except in so far as the difference in the nature of the accusations necessarily ren- ders them inapplicable. In general, the rules and principles of pleading with respect to the structure of a declaration in a civil action are applicable to an indictment, and therefore, where the criminal law is silent as to the form of an indictment in a particular case, resort may be had to decisions on the requisites of pleading in civil actions.^ There are many questions of pleading in criminal cases, however, which are peculiar to them, and, even where this is not the case, a correct knowledge of the principles and rules of pleading in criminal cases cannot be acquired by a study of the rules of pleading in civil ac- tions only. A special discussion is necessary. FORM OF INDICTMENT. 65. An indictment is divided into three parts, namely: (a) The commencement. (b) The statement. (c) The conclusion. An indictment for larceny at common law would be in the follow- ing form: State of , County of , to wit: The jurors for the county aforesaid upon their oath present (a) that John Doe, at B , in the county aforesaid, on the first day of January, in the year of our Lord 1895, one overcoat, of the value of one hundred dollars, of the goods and chattels of Richard Roe, fe- loniously did steal, take and carry away, (b) against the peace and dignity of the state. From the beginning to the letter (a) is the commencement; from the letter (a) to the letter (b) is the statement; and from the letter (b) to the end is the conclusion. What is called the caption of the indictment precedes the com- mencement. As we have seen, it is a statement of the court before which the indictment was found, and of certain other matters. It 1 1 Chit Cr. Law, 168; Rex v, Lawley, 2 Strange, 904; Reg. v. Castro, 6 App; Cas. 229. Ch. 5] FORM OF INDICTMENT. 13& is merely the heading of the record of the indictment, and forms no part of the indictment itself. ^ We shall in the following pages take up and explain each of these parts separately and in detail, but before doing so it is necessary to say something about the form of indictments generally, and to call attention to the variance between the forms used in the differ- ent states, and to the effect of modern statutes on the common-law rules. The form of indictment given above is sufflcient at common law; and it is therefore sufficient in all of our states unless there is something in the statutes, decisions, or peculiar practice requir- ing a different form. It must not be supposed that these exact words are essential, and that no other words will do, for this is not true. It is required, as we shall see, that certain matters shall ap- pear in an indictment, and that they shall be stated in a certain manner. If these requirements are met, nothing more is necessary. It is best that there should be a particular form of indictment, and that it should in practice be followed in all cases, but a departure from the exact form which is generally used does not necessarily make an indictment bad. The fact that certain averments or omis- sions are found in precedents of forms which have been used does not show that they may not be dispensed with. "It would be giv- ing too much force to mere precedents of forms, which often con- tain unnecessary and superfluous averments, to hold that a par- ticular allegation is essential to the validity of an indictment, be- cause it has sometimes, or even generally, been adopted by text writers or by cautious pleaders."' Nor, on the other hand, does the fact that an indictment follows the form which has been in gen- eral use necessarily show that it is good. Convictions may be had on 99 indictments, all of which are in exactly the same form, simply because no objection is made to a defect therein, or because an ob- jection is erroneously overruled by the court. This, however, is no reason why the one hundreth indictment should be sustained, if it is in fact defective. The rules of pleading must be applied to every indictment, and it is by those rules (in connection with the statutes, of course) that its sufficiency is to be determined. If the 2 Ante, p. 123. s Com. V. Hersey, 2 Allen (Mass.) 179; Com. v. Wright, 1 Cush. (Mass.) 64. And see State v. Brooks, 94 Mo. 121, 7 S. W. 24. 140 PLEADING THE ACCUSATION. [Ch. 5 pleader adopts a form, he should first test it by these rules. "If, upon inquiry, it is found that a form which has long been pursued is inconsistent with the rules of law and good pleading, it cannot be too soon reformed; and the consequences, which are suggested to be so alarming in prospect, appear to amount to no more than to require that in the future the pleader should attend to the lan- guage of the statute upon which the proceeding is adopted, instead of copying a faulty precedent." * The forms of indictment and information vary more or less in the different states, because of particular constitutional or statu- tory provisions, or because of local usage. In some states the word "state" is used in the commencement and conclusion, while in others the word "commonwealth" is used, and in others the words "the people of the state" are used. In many of the states forms of in- dictment are .prescribed by statute. The object of the legislature is to simplify the drawing of indictments and other accusations, and dispense with the necessity of purely formal and technical aver- ments, which, though really useless, are considered essential at common law, and the omission of which would often defeat an in- dictment which is perfectly good in substance. These statutes merely do away to some extent with the strictness required by the common law; they do not, as a rule, render insufScient an indict- ment which would have been good at common law.° The English parliament has plenary power to prescribe any form of accusation it may see fit, but with us the power of congress and of the state legislatures is greatly restricted by constitutional pro- visions. Some of the constitutions, as we have seen, require cer- tain prosecutions to be by indictment. Most of them require the accusation, in whatever form it may be, to be suflScient in sub- stance to fully inform the accused of the specific charge against him ; and most, if not all, provide that no person shall be deprived of life, liberty, or property without due process of law. None of these provisions prevent the legislature from abolishing common- * Rex V. Morley, 1 Younge & J. 221. A conviction is bad -where the charge does not in terms show a legal offense, though it is in a form used time out of mind in the court before which the party was so charged. Ex parte Hop- kins, 61 Law J. Q. B. 240, 66 Law T. (N. S.) 53, 17 Cox, Gr. Oas. 444. State v. BrooliS, 94 Mo. 121, 7 S. W. 24. Ch. 5] THE COMMENCEMENT. 141 law forms of accusation (except, of course, that there must be an indictment when it is required by the constitution), or from dis- pensing with particular allegations which are necessary at common law, provided the form substituted or allowed is sufficient to give the accused reasonable notice of the charge against him." No form, however, will suffice, even though it may be authorized by statute, if it fails to set forth any essential element of the offense; ^ or if it fails to state such particulars of the offense, as distinguished from its essential legal elements, as may be necessary to inform the accused of the specific offense charged, and not merely the char- acter of the offense.* THE COMMENCEMENT. 56. The commencement of the indictment must state: (a) The venue. This is the name of the county from ■which the grand jury have come, and in Tvhich the trial is to be had, and gener- « State V. Corson, 59 Me. 137; Morton v. People, 47 HI. 468; State v. Learned, 47 Me. 426; State v. Comstock, 27 Vt. 553; State v. Hodgson, 66 Vt. 134, 28 Atl. 1089; Rowan v. State, 30 Wis. 129; State v. Morgan, 112 Mo. 202, 20 S. W. 456; State v. Beswick, 13 R. I. 211. That a statute may dispense with the necessity to state the means, manner, and circumstances of the killing in an indictment for homicide, see Newcomb v. State, 37 Miss. 383; Cathcart v. Com., 37 Pa. St. 108; Noles v. State, 24 Ala. 672; Wolf v. State, 19 Ohio St. 248; Rowan v. State, 30 Wis. 129. 7 State V. Mace, 76 Me. 64; Com. v. Harrington, 130 Mass. 35; Hewitt v. State, 25 Tex. 722; Mcljaughlin v. State, 45 Ind. 338; State v. Learned, 47 Me. 426; State v. Startup, 39 N. J. Law, 432; People v. Campbell, 4 Parker, Or. E. (N. Y.) 386. 8 State V. Mace, 76 Me. 64; Bradlaugh v. Reg., 3 Q. B. Div. 607; Murphy y. State, 24 Miss. 590, 28 Miss. 637; McLaughlin v. State, 45 Ind. 338; Kilrow v. Com., 89 Pa. St. 480; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State t. Learned, 47 Me. 426; People v. Dumar, 106 N. Y. 502, 13 N. E. 325; People v. Stark, 136 N. Y. 538, 32 N. E. 1046; State v. Daugherty, 30 Tex. 360; Com. V. Buzzard, 5 Grat. (Va.) 694; State v. Comstock, 27 Vt. 553; Blumeubers v. State, 55 Miss. 528; Williams v. State, 35 Ohio St. 175; State v. Flumiu-, 117 Mo. 377, 22 S. W. 1024; State v. Reynolds, 106 Mo. 146, 17 S. W. 322. As to what are mere matters of form, and what are matters of substance, see post, pp. 317, 321, 324. 142 PLEADING THE ACCUSATION. [Ch. 5 ally of the coimty in wliicli the offense was committed, (b) The fact of presentment by the grand jurors upon oath or afi&rmation. The commencement of an indictment at common law in England was: "Middlesex, to wit. The jurors for our lord, the king, upon their oath present," etc. And in this country a proper form would be: "State (or Commonwealth) of , County of , to wit. The jurors for the state (or commonwealth, or the people of the state, according to the practice) of , in and for the body of the county of (or for the state and county aforesaid, or the .county aforesaid), upon their oath present," etc. By statute or usage, the form used varies in the different states, but the above form would be sufficient in most of them.* Subsequent counts of an indictment commence: "And the jurors aforesaid upon their oath aforesaid further present," etc.^" Statement of Venue. The statement of the venue is usually said to be a statement of the county in which the offense was committed and the trial is to be had. In effect this is generally true, but it is more accurate to say that it is a statement of the county from which the grand jury have come, and for which they are to inquire. It is also the county in which the offense was committed, because generally a grand jury for any other county would have no authority to present the indict- ment, and the county in which the trial is to be had, for the trial is generally had in the county where the offense was committed. The county is usually stated in the margin of the indictment, but it need not be if it appears in the body of the commencement or in the body of the caption ; and in the latter case is referred to in the commencement as the "county aforesaid." ^^ 9 See State v. Nixon, 18 Vt. 70; Hurley v. State, 6 Ohio, 399; Woodsides v. State, 2 How. (Miss.) 655. 10 A second or tliird count so commencing sufficiently refers to the state- ment in the first count that the jurors are for the county therein named. The statement need not be repeated. State v. Vincent, 91 Mo. 662, 4 S. W. 430. n 2 Hale, P. C. 165; Com. v. Quin, 5 Gray (Mass.) 478; TefCt v. Com., 8 Leigh (Va.) 721. Ch. 5] THE COMMENCEMENT. 143 It has been held that the omission of the name of the state does not render the indictment defective.^* Even if it should be deemed necessary to name the state, the name alone without the words "State of" would be sufficient." Showing as to Presentment. It is essential that it appear that the indictment is presented by a grand jury. Since no other jury can find an indictment, the word "jurors" in the commencement will be taken to mean "grand ju- rors," and will be sufficient. It is not necessary to use the latter term.^* It would seem that it should appear in the body of the indictment, by some proper reference, that the grand jury was au- thorized to inquire into the offense, and therefore that they should be described as the "jurors for the county of ," or "for the county aforesaid"; but this does not seem to be necessary where the county is mentioned in the margin or caption.^" Therefore, though it is usual to state in the commencement the county from which the jury have come, it is probably not essential. But it is essential that the record shall show that they come from the proper county.^" In some states it is usual to state that the grand jury are "inquiring for," or are "sworn to inquire for," the county, or in and for the body of the county, etc. This, however, is not neces- sary, for the law presumes as much from the fact that the grand jury can be impaneled and sworn for no other purpose.^^ The num- 12 State V. Lane, 4 Ired. (N. C.) 113; Greeson v. State, 5 How. (Miss.) 33; Woodsides v. State, 2 How. (Miss.) 655; note 19, infra. 13 See State v. Anthony, 1 McCord (S. C.) 285. 14 Com. V. Edwards, 4 Gray (Mass.) 1. 10 The form in Massachusetts, including the caption, as given by Dr. Whar- ton, is: Commonwealth of Massachusetts. Suffolk, to wit. At the supreme judicial court of said commonwealth of Massachusetts, be- gun and holden at Boston, within and for the county of Suffolk, on the first Monday of , in the year of our I^rd, . The jurors for the commonwealth of Massachusetts upon their oath present, etc. 1 Whart. Free. Ind. 28, from Com. v. Fisher, 7 Gray (Mass.) 492. 16 Tipton V. State, Peck (Tenn.) 307; Cornwell v. State, Mart. & Y. (Tenn.) 147. 17 Hurley v. State, 6 Ohio, 399; State v. England, 19 Mo. 386. 144 PLEADING THE ACCUSATION. [Ch. 5 ber of the grand jurors should, as we have seen, appear on the rec- ord, but they need not be specified in the indictment itself.^' A formal statement in the indictment that it is found by the authority of the state is not necessary, if it appears from the record that the prosecution is in the name of the state.^' It is essential that it shall appear that the indictment is pre- sented by the jurors under oath, or under oath and aflarmation when some are affirmed; ^^ and this must appear in every count, either by direct allegation or by a proper reference to a preceding count.^* It is therefore stated that the jurors "upon their oath (or oath and affirmation) present." The use of the word "oaths" instead of "oath" does not render the indictment defective; either word will do."'' It has been held that an indictment purporting to be pre- sented upon oath and affirmation need not state the reasons why some of the jurors affirmed instead of being sworn, so as to show that affirmation was authorized,"^ but there is some authority to the effect that the reasons must appear on the record."* The fact of presentment must be expressed by the use of the word "present," or of some other appropriate word showing that the grand jury charge the defendant;"" and it must be expressed in the present tense. If an indictment were to read "did present," it would be fatally defective."" 18 Ante, p. 125; Young v. State, 6 Ohio, 435. 19 Greeson v. State, 5 How. (Miss.) 33; State v. Doe, 6 "Wash. 587, 34 Pac 154; State v. Kerr (N. D.) 58 N. W. 2T. 20 Cro. Jac. 635; Huffman's Case, 6 Rand. (Va.) 685; Curtis v. People, Breese (111.) 256. 21 State v. McAllister, 26 Me. 374; State v. Wagner, 118 Mo. 626, 24 S. W. 219; post, p. 208. In State v. McAllister, supra, the first count of the indict- ment alleged that the jurors "upon their oaths present," etc. The third count merely alleged that "the jurors aforesaid for the state aforesaid do further present," etc., and it was held that this was not a sufficient reference to the allegation of the first count of a finding upon oath, as it did not say "as afore- said, or in manner aforesaid." 22 Com. v. Sholes, 13 Allen (Mass.) 554; Jerry v. State, 1 Blackf. (Ind.) 395; State V. Dayton, 23 N. J. Law, 49. 23 Com. V. Fisher, 7 Gray (Mass.) 492; Anon., 9 Car. & P. 78; ante, p. 125. 24 State V. Han-is, 7 N. J. Law, 361; ante. p. 125. 2 5 Vanvickle v. State, 22 Tex. App. 625, 2 S. W. 642. 26 1 Chit. Cr. Law, 202. Ch. 5] NAME AND DESCRIPTION OF THE DEFENDANT. 145 Mere clerical and grammatical errors in the commencement, as where the indictment commences, "The grand jurors within and the body of the county," omitting the word "for," will not vitiate the indictment. ''^ THE STATEMENT. 67. The statement is that part of the indictment which charges the offense. For convenience in treatment we shall divide it into two parts: (a) The description of the defendant, and (b) The statement of the offense. NAME AND DESCRIPTION OF THE DEFENDANT. 58. The indictment should describe the accused by his full Christian name and surname, if they are known. At common law a misnomer of the defendant is fatal to the particular indictment, if the objection is taken by plea in abatement before pleading to the merits; but it can only cause delay, for a new indictment may be presented.^ Objection on this ground cannot be made after pleading to the merits. The indictment must correctly state the name of the defendant, including his full Christian name, if his name is known.^* If a man 27 state V. Brady, 14 Vt. 353. See post, p. 174, as to clerical errors. 2 8 In some jurisdictions, by statute, the indictment may be amended in this respect. A new indictment is not necessary. Post, p. 315. 2 9 Hex V. Shakespeare, 10 Bast, 83; Com. v. PerMns, 1 Pick. (Mass.) 388; Com. V. HaU, 3 Pick (Mass.) 262; Turner v. People, 40 111. App. 17; En- wright V. State, 58 Ind. 567; Picking v. State, 6 Ohio, 274; State v. Hand, 1 Eng. (Ark.) 165. See Pancho v. State, 25 Tex. App. 402, 8 S. W. 476. If the defendant's name is stated with repugnancy, as where it is differently stated in two places, the indictment is fatally defective. Kinney v. State, 21 Tex. App. 348, 17 S. W. 423. Where, by statute, an indictment is not to be held invalid for a defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits, the substitution of in- itials for the Christian name of the defendant does not render the indictment bad. State v. Johnson, 93 Mo. 317, G S. W. 77; post, 822. CBI I.PROC. — 10 146 PLEADING THE ACCUSATION. [Uh. 5 has initials for his Christian name, or is in the habit of using ini- tials therefor, and is known by them, they may be used to describe him.^" In most states a middle name or initial is not recognized as a part of the name, and need not be stated; nor by the weight of authority, if it is unnecessarily stated, need it be proven." Some courts, while holding that a middle name or initial need not be stated, hold that, if it is stated, it becomes part of the description, and cannot be rejected as surplusage.^^ Other courts seem to regard the middle name or initial as a part of the name necessary to be stated.^' The words "junior," "senior," etc., are no part of a person's name, and their omission can ordinarily make no difference.'* But where a father and son have the same name, and are both indicted, some «uch mode of distinguishing them should be adopted.'" so Reg. V. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council V. King, 4 McCord (S. C.) 4S7; State v. Black, 31 Tex. 560 (statutory); State V. Kean, 10 N. H. 347; Vandermark v. People, 47 111. 122; State v. Johnson, D3 Mo. 73, 317, 5 S. W. 699, and 6 S. W. 77; State v. Johnson, 67 N. 0. 58. If the Initial is not so used as the name, the fuU name must be given. Ger- rish V. State, 53 Ala. 476; State v. Webster, 30 Ark. 166. 31 Choen v. State, 52 Ind. .S47; Franklin v. Talmadge, 5 Johns. (N. Y.) 84; Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463; Edmundson v. State, 17 Ala. 179; Thompson v. Lee, 21 lU. 242; Erskine v. Davis, 25 lU. 251; Bletch v.' John- son, 40 111. 116; Wood v. Fletcher, 3 N. H. 61; State v. Martin, 10 Mo. 391; Dilts V. Kinney, 15 N. J. Law, 130; Isaacs v. Wiley, 12 Vt. 674; Allen v. Taylor, 26 Vt. 599; State v. Feeny, 13 R. I. 623; Hart v. Llndsey, 17 N. H. 235; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet. 1; Mc- Kay V. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; State v. William^, 20 Iowa, 98; People v. Lockwood, 6 Cal. 205. 3 2 Price V. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.) 261. 33 Jones V. MacquiUin, 5 Term R. 195; Com. v. Perkins, 1 Pick. (Mass.) 388; Com. V. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, 11 Gush. (Mass.) 546. 3 4 Com. V. Perkins, 1 Pick. (Mass.) 388; Dekentland v. Somers, 2 Root (Conn.) 437; Kincaid v. Howe, 10 Mass. 205; Cobb v. Lewis, 15 Pick. (Mass.) 7; State v. Grant, 22 Me. 171; Brainard v. Stilphin, 6 Vt. 9; People v. Col- lins, 7 Johns. (N. Y.) 549; Padgett v. Lawrence, 10 Paige (N. Y.) 170; Allen V. Taylor, 26 Vt. 599; Headley v. Shaw, 39 111. 354; Com. v. Parmenter, 101 Mass. 211; post, p. 235. But see State v. Vittum, 9 N. H. 519; Pell v. Prevost, 2 Caines (N. Y.) 164. 3 5 1 Chit. Or. Law, 211. See State v. Vittum, 9 N. H. 519; Rex v. Bailey, 7 Car. & P. 264. But by the better opinion, it is not necessary. Rex v. Peace, Ch, 5] NAME AND DESCRIPTION OF THE DEFENDANT. 147 If the true name and the name given in the indictment are idem sonans, — that is, if the sound is not affected by the mistake in spell- ing it, — ^there is no misnomer; ^^ and 4t has been said that if the two names are the same in original derivation, and are taken pro- miscuously in common use, there is no misnomer, though they may differ in sound.^^ If a person is known by more than one name, either may be used.'* And if a man, by his words or conduct, holds out a name as his, he is answerable under that name.'' In case of doubt a second name may be given after an alius dictus.*" If the name of the defendant (either his Christian name, or both Christian name and surname) is unknown, and he refuses to disclose it, an indictment against him as a person whose name is to the jurors unknown, but who is personally brought before them by the jailer, will be sufficient.*^ The general practice is to use an as- sumed name, and drive the defendant to a plea in abatement, which, as we shall see, must give his true name. If he does not plead in abatement, the conviction, as we shall see, is good; while if he does so plead, a new indictment may be presented, or in some states the indictment may be amended.*^ A corporation is indicted by its full corporate name, which must be accurately stated, and the names of the natural persons compos- 3 Barn. & Aid. 579; Com. v. Parmenter, 101 Mass. 211. And see cases cited in ttie preceding note. 38 Bex V. Shakespeare, 10 East, 84: Dicltinson v. Bowes, 16 Bast, 110; Petrie v. Wood worth, 3 Gaines (N. Y.) 219; State v. Upton, 1 Dev. (N. C.) 513. See post, p. 341, note 75, where illustrations are collected. 87 2 Rolle, Abr. 135; Bac. Abr. tit. "Misnomer"; 1 Chit. Cr. Law, 203. 88 1 Chit. Cr. Law, 203; Com. v. Gale, 11 Gray (Mass.) 320; State v. Pierre, 39 La. Ann. 915, 3 South. 60. He need not be as well known by one as by the other. State v. Pierre, supra. 30 People V. Leong Quong, 60 Oal. 107; City Council v. King, 4 McCord (S. C.) 487; State y. Bell, 65 N. C. 313; Newton v. MaxweU, 2 Cromp. & J. 215. *o State V. Graham, 15 Rich. (S. C.) 310; Evans v. State, 62 Ala. 6. 411 Chit. Cr. Law, 203; Rex v. , Russ. & R. 489; State v. Angel, 7 Ired. (N. C.) 27; Bryant v. State, 36 Ala. 270; Kelley v. State, 25 Ark. 392. Merely to state that his name is unknown, without any statement to identify him, is not suflScient. Rex v. . Russ. & R. 489. Such a description is bad, and a misnomer, if the grand jury knew the defendant's real name. Jones v. State, 63 Ala. 27; post, p. 340. 42 Post, pp. 149, 315. In some states the statute prescribes this practice. See State V. Geiger, 5 Iowa, 484. 148 PLEADING THE ACCUSATION. [Ch. 5 ing it are not mentioned.*' This applies not only to private cor- porations, but also to cities, towns, and other municipal corpora- tions. The city or town bj its corporate name, and not the in- habitants thereof, is indicted.** The inhabitants of a county or unincorporated town are generally indicted simply as such, and not by the name of the county, nor by their individual names.*" It is possibly allowable, however, to indict them by the name of the county or town.** Addition of Defendant. Even at common law, in England, it was necessary to state the rank and degree of the defendant, in addition to his name, if he was a knight, or of any higher dignity. And at common law, where a person is indicted in respect of his ofiSce, that addition is necessary.*' The necessity for additions was extended to other cases by the stat- ute of 1 Henry V. c. 5, known as the "Statute of Additions." It re- quired that additions should be made in indictments in the name of the defendants "of their estate, or degree, or mystery, and of the towns, or hamlets, or places and counties, of which they were, or be, or in which he or they were conversant." By the terms "estate" and "degree" were meant the title, rank, condition, etc., of the de- fendant; as knight, laborer, widow, spinster, etc. By "mystery" was meant his calling, trade, or profession; as merchant, tailor, broker, hostler, baker, etc.*' This statute is old enough to be a part of our common law, but in most jurisdictions it has either been abrogated by statute or is not recognized. In some states, how- *8 Reg. V. Birmingham & G. Ry. Co., 3 Q. B. 223; Rex. v. Patrick, 1 Leach, Crown Cas. 253; Com. v. Demuth, 12 Serg. & R. (Pa.) 389. And it has been held that there must be an averment that the corporation is in esse; for in- stance, thus: "The Vermont Central Raih'oad Company, a corporation exist- ing under and by force of the laws of this state, duly organized and doing business." State v. Vermont C. R. Co., 28 Vt. 583. But see State v. Great Works Milling, etc., Co., 20 Me. 41; Com. v. Turnpike Co., 2 Va. Cas. 362; Clark, Cr. Law, 78. See post, p. 235, note. ** City of Lowell v. Morse, 1 Mete. (Mass.) 473; Com. v. Dedham, 16 Mass. 141. 45 2 Rolle, Abr. 79. *8 See Com. v. Dedham, supra; City of Lowell v. Morse, supra. 47 1 Chit. Cr. Law, 204; 2 Inst. 666. 48 1 Chit. Cr. Law, 204-208; 2 Hawk. P. C. c. 33, § 111. Ch. 5] NAME, AND DESCRIPTION OF THE DEFENDANT. 149 ever, it or a similar statute has been or still is in force.*® A woman is described as tbe wife of some person properly described, or as a widow, or spinster, where an addition is necessary; but in many states no such addition is required.^" In some jurisdictions it is still necessary, and in others it is at least customary, to add the resi- dence of the defendant as required by the statute of additions; but it is usual to give as his residence the place where the offense was committed, even though he may in fact live elsewhere, because he is considered as having been conversant in that place. '^ Repeating Name and Description of Defendant. Where the defendant has been once fully named and described, he may afterwards be referred to as the said (giving his Christian name only)."'' It has been held that this applies to in- dictments containing several counts; that, if the defendant is fully described in the first count, he may be described as the said (giving his Christian name) in the subsequent counts."' Where there is only one count in the indictment, a previous description of a person so referred to need not be repeated;"* but it seems that such a reference in a second count cannot import a description con- tained in the first count; that, where there are several counts, the description must be repeated."" Effect of Misnomer. Misnomer of the defendant does not render the indictment fatally defective, so that a conviction cannot be had thereon. Objection can be taken only by a plea in abatement before pleading to the merits. The effect is merely to delay the trial, for the plea must give the true name of the defendant, and a new indictment may be presented."' Or the state may join issue on the plea, or reply that unleay, 157 Mass. 386, 32 N. B. 356; King v. State, 27 Tex. App. 567, 11 S. W. 525; Tomby v. State, 87 Ala. 36, 6 South. 271; Sliannon v. State, 109 Ind. 407, 10 N. E. 87. 181 Com. V. Hinds, 101 Mass. 209. 136 Com. V. Spilman, 124 Mass. 327. 136 Ante, pp. 176, 177. 137 Rex V. Wilcox, Russ. & R. 50; State v. Stephen (La.) 12 South. 883; State V. Ward, 6 N. H. 529; State v. Hay den, 15 N. H. 355. 138 Reg. V. Williams, 2 Denison, Crown Gas. 61; Com. t. Castles, 9 Gray (Mass.) 124. Ch. 6] SETTING FORTH SPOKEN WORDS. 213 tion. On the other hand, however, an indictment is not bad be- cause it describes the writing as being, and not merely purporting to be, such an instrument, "false, forged, and counterfeited." The latter words necessarily imply that it is not a genuine instrument, just as the terms "void will" or "void note" imply that the instru- ment merely purports to be a will or note.^'' If any part of a true instrument be altered, the indictment may allege it as a forgery of the whole instrument.^*" But where the forgery is of a mere addition to an instrument, like the indorsement on a bUl or note, or interest coupons attached to a bond, or an ac- knowledgment to a deed, etc., and has not the effect of altering the instrument itself, but is merely collateral to it, the forgery must be specially alleged; ^*^ and it must, as we have seen, be expressly shown by proper allegations that the part thus forged bore such a relation to the instrument proper that it could be the subject of forgery. To charge the forgery of an indorsement on a note, merely describing it as such, without showing its relation to the note, is not enough.^*'' Ordinarily, where the instrument is given according to its tenor, it must be proven verbatim as laid. This question we shall here- after consider.^*^ If the instrument as described in the indictment does not corre- spond with the instrument as set out, the inconsistency will be fatal.^" SETTING rOBTH SPOKEN WORDS. 90. Where spoken -words are the gist of the offense, they must be accurately set out in the indictment. The rules are substantially the same as in the case of -written words.*** 139 U. S. V. Howell, 11 Wall. 432; Rex v. Birch, 2 East, P. C. 980. 140 1 Hale, P. C. 684; 2 East, P. C. 978; Com. v. Woods, 10 Gray (Mass.) 480; Rex v. Atkinson, 7 Car. & P. 669; Com. v. Butterlck, 100 Mass. 18. 141 Com. V. Woods, supra. 142 Com. V. Spilman, 124 Mass. 327. 143 Post, p. 332. 144 Com. V. Clancy, 7 Allen (Mass.) 537; Com. v. Lawless, 101 Mass. 32. 14 5 Ante, p. 171. 214 PLEADING THE ACCUSATION. [Ch. 6 We have just explained the necessity of setting out written words where they constitute the gist of the offense charged. For the same reason, where the offense consists of spolien words, they must be set out, or the indictment will be fatally defective.^*' But, where the words do not constitute the gist of the offense, only their substance need be stated.^*' The rules under this head are substantially the same as those just stated in treating of written words. In indictments for attempting to extort money from a person by threatening to accuse him of a crime, it is sufficient to. set out the exact words used by the defendant. If these clearly import a threat of accusation of crime, and they are alleged to have been uttered with the unlawful intent to extort money, the offense is sufficiently described. The indictment need not set out with technical accuracy the crime the accusation of which is alleged to have been threat- ened.^*' The question of variance between the words set out in the indictment and the words proven to have been spoken will be considered when we come to treat of variance.^*' DESCRIPTION OF REAL PROPERTY. 91. When real property is the subject of the oflFense charged, the premises must be so described as to show their character and ownership or occupancy, w^here that is material; and, in addition to this, they must be de- scribed with suflacient particularity to identify them. Whenever real property is the subject of the offense, it must be described to such an extent that the court may see on the face of the charge that the premises are such as could have been the sub- ject of the offense; otherwise the indictment would fail to set out 1*0 Bradlaugh v. Reg., 3 Q. B. Div. 607, 616; Sacheverell's Case, 15 How. St. Tr. 467; Updesraph v. Com., 11 Serg. & R. (Pa.) 394; State v. Bradley, 1 Hayw. (N. C.) 403; State v. Coffey, 2 Murph. (N. C.) 320; State v. Brew- ington, 84 N. C. 783; Com. v. Moulton, 108 Mass. 307; Robinson v. Com., 101 Mass. 27; Walton v. State, 64 Miss. 207; McMahan v. State, 13 Tex. App. 220. 14T Com. V. Moulton, 108 Mass. 307. 148 Com. V. Murphy, 12 Allen (Mass.) 449; Com. v. Dorus, 108 Mass. 488. "9 Post, p. 332. Ch. 6] dj:scription of eeal property. 215 everything necessary to constitute the offense. An indictment for burglary or arson at common law, describing the premises simply as a certain house or building, would clearly be insufficient, for these offenses would not be committed by breaking into or burning a warehouse or store, or any building other than a dwelling house or outhouse used in connection with it.^"" And an indictment for the statutory offense of breaking and entering or burning a certain kind of building, as a warehouse, shop, schoolhouse, etc., must show that the building is within the statute.^ °^ One who bums, or breaks and enters with intent to commit a felony, a house owned or occu- pied by himself, does not commit arson or burglary; hence an in- dictment for these offenses must show the ownership or occupancy of the premises.^"^ Further than this, the premises must be so described, as to loca- tion and otherwise, as to identify the offense, and to apprise the defendant of the particular charge against him. In all indictments, therefore, for burglary and other housebreakings, arson and other malicious burnings, forcible entry and detainer, trespass, fraudu- lent conveyance of land, etc., the premises must be described with certainty to a common intent, and the description must be borne out by the evidence.^"' An indictment for conveying land without giving notice of incumbrances thereon was held bad for uncertainty, because it merely named the city and county in which the land was situated. "There is nothing," it was said, "by which to fix the identity of the offense. The indictment lacks certainty to a com- mon intent. The defendant may have owned other parcels of land in the city of Salem, which he conveyed to the prosecutor on the day alleged. From the indictment alone, therefore, it is impossible to say with certainty to what parcel of land the charge relates, or iBo state V. Atkinson (Wis.) 58 N. W. 1034; Tliomas v. State, 97 Ala. 3, 12 South. 409; State v. Miller, 3 Wash. 131, 28 Pac. 375. 151 State V. Bedell, 65 Vt 541, 27 Atl. 208; State v. Atkinson (Wis.) 58 N. W. 1034; Thomas v. State, 97 Ala. 3, 12 South. 409; Bigham v. State, 31 Tex. Or. R. 244, 20 S. W. 577; Kincaid v. People, 139 111. 213, 28 N. E. 1060; State r. Fleming, 107 N. C. 905, 12 S. E. 131. 102 State V. Keena, 63 Conn. 329, 28 Atl. 522; post, p. 229. 153 Com. v. Brown, 15 Gray (Mass.) 189; State v. Malloy, 34 N. J. Law, 410. As to the question of variance between the pleading and proof, see post, p. 335. 216 PLEADING THE ACCUSATION. [Ch. 6 to know that the conveyance proved at the trial was of the same parcel as that on which the indictment was founded. Whenever, in charging an offense, it is necessary to describe a house or land, the premises must be set out in terms suflQciently certain to identify them. Thus, in an indictment for forcible entry and detainer, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or certain lands belonging to the house, is bad; for the same certainty is required as in a declaration in eject- ment." "* An indictment for erecting a nuisance in a public highway which merely described the erections as "a number of sheds and buildings" was held bad for uncertainty.^"*" But an indictment for a nuisance in keeping a house of ill fame, a gaming house, or house for the un- lawful sale of intoxicating liquors, or other disorderly house, need not further describe the premises than as a certain house or tene- ment, giving the city and county in which it is located.^"' DESCBIPTION OF PERSONAL PROPERTY. 92. When personal property is the subject of the of- fense, it must be described -with certainty to a common intent; and in those eases in ■which the value is material, as in case of larceny, the value must be stated. Prop- erty may and should be described by the name usually appropriated to it; or, as it is sometimes expressed, the common acceptation governs the description. In all indictments for offenses in relation to personal property it is necessary to describe the property. In some cases the particular kind, quantity, number, or value of the property enters into the nature of the offense, and must be stated for this reason. Some things, for instance, are not the subject of larceny, and an indict- ment for larceny must, at the very least, so describe the thing stolen that the court may see that it could be the subject of larceny, or it does not state any offense. An indictment alleging the fe- ns* Com. v. Brown, 15 Gray (Mass.) 189. JB6 Com. V. Hall, 15 Mass. 240. 1B6 Com. V. Skelley, 10 Gray (Mass.) 464; State v. Nixon, 18 Vt 70. Oh. 6] DESCEIPTION OF PERSONAL PROPEKTY. 217 ' lonious taking and carrying away of a railroad ticket was held bad because it failed to state that the ticket was stamped, dated, and signed, since, unless it was, it was worthless, and not the subject of larceny.^ '^ And, as we shall presently see, an indictment for stealing animals which may have been ferae naturae, or for stealing minerals, must show, in the first case, that the animals had been killed or reclaimed, and, in the second, that the minerals had been severed from the realty, and become personal property.^"* Even, where the description is not necessary to show that an of- fense has been committed, it is necessary to describe the property with certainty, in order that the accused may know with what of- fense he is charged; in order that it may be seen that the property with reference to which the offense is proven to have been com- mitted is the same as that with reference to which the offense is charged in the indictment; and in order that the accused may be able to plead an acquittal or conviction in bar of a subsequent in- dictment for the same cause.^°° An indictment charging that the accused took and carried away a certain person's goods and chattels, without describing them, or a case of merchandise, without further description of it, or a certain pape?-, without further description, is bad for uncertainty.^"" And, by the better opinion, an indict- ment under a statute for wounding or stealing cattle, without stat- ing the species of the cattle, is insuflflcient.'^'^ And an indictment against a bankrupt for concealing his effects, describing a part of them as "100 other articles of household furniture," and "a certain debt due from one A. to the defendant to the value of £20 and up- wards," was held bad.^*^ The general rule is that the property 1B7 McCarty v. State, 1 Wash. 377, 25 Pac. 299; State v. Holmes CWash.) 37 Pac. 283. 168 Post, pp. 222, 224. 109 2 Hale, P. C. 182; Com. v. Strangford, 112 Mass. 289. "0 2 Hale, P. C. 182; State v. Dawes, 75 Me. 51; State v. Dowell, 3 Gill & J. (Md.) 310; Com. v. Kelly, 12 Gray (Mass.) 176; Com. v. Gavin, 121 Mass. 55; State v. Edson, 10 La. Ann. 229; Com v. Strangford, 112 Mass. 2S9; Robinson v. Com., 32 Grat. (Va.) 866. lei Rex V. Chalkley, Russ. & R. 258. Contra, People v. Littlefield, 5 CaL 355. m Rex V. Foreyth, Russ. & R. 274. 218 PLEADING THE ACCUSATION. [Oil. 6 must be described with as much certainty as the nature of the case will permit.^"' But minute details are not necessary. If the descriptive terms used are- sufficient in their common and ordinary acceptation to show with certainty to a common intent what the property was, and to fully identify it, they will be sufficient.^"* In describing a handkerchief or a sheet, for instance, it may be described simply by those terms, without stating the color or size, or the material of which it is made.^*" So where six handkerchiefs are in one piece, uncut, each being designated by the pattern, they may be described as six handkerchiefs.^"" And a 10-carat gold watch may be de- scribed simply as a gold watch, if it is commonly known as such, though it is not so known by jewelers.^" And it has been held that a hide may be described as one hide, of a certain value, with- out stating the kind of animal from which it was taken.^"' And animals may be described, as "one mare, the property of W., of the value of," etc., or "a certain hog, said hog being the property and chattel of one L.," etc., without giving the color, kind, weight, mark, or brand. Such particularity is never required.^"* If an article has acquired in common parlance a particular name, it is erroneous to describe it by the name of the material of which it is composed.^'"' An indictment, therefore, for the larceny or em- bezzlement of cloth and other materials is not good as an indict- ment for the larceny or embezzlement of an overcoat into which the materials had been made.^'* 183 See the cases above cited. 181 Kex V. Johnson, 3 Maule & S. 539; Alkenbrack v. People, 1 Denlo (N. Y.) 80; Rex v. Gillham, 6 Term R. 267; Rex v. Burdett, 1 Ld. Raym. 149; Reg. v. Mansfield, Car. & M. 140; Widner v. State, 25 Ind. 234; Pfister v. State, 84 Ala. 432, 4 South. 395; Com. v. James, 1 Pick. (Mass.) 3T6; Com. V. Campbell, 103 Mass. 436; Com. v. Shaw, 145 Mass. 349; 14 N. E. 159. 16B Rex v. Johnson, supra; Alkenbrack v. People, supra. 188 Rex V. Gillham, 6 Term R. 2G7; Rex v. Burdett, 1 Ld. Raym. 149. 187 Pfister V. State, supra. 188 state V. Dowell, 3 (Jill & J. (Md.) 310. 189 People V. Stanford, 64 Cal. 27, 28 Pac. 106; State v. Friend, 47 Minn. 449, 50 N. W. 692; post, p. 222. 170 Com. V. Clair, 7 Allen (Mass.) 527; Rex v. Edwards, Russ. & R. 497; Rex V. HoUoway, 1 Oar. & P. 128; Reg. v. Mansfield, Car. & M. 140. 171 Com. V. Clair, supra. Ch. 6] DESCRIPTION OF PERSONAL PROPERTY. 219 If articles have been chemically mixed, they should be described by the name of the mixture.^" It has been held that, where ar- ticles have been mechanically mixed, they should be described as a certain mixture consisting of the specific articles, describing them, and not as a certain quantity of each article. Thus, an indictment for stealing "one bushel of oats, one bushel of chaflE, and one bushel of beans" was held bad where these articles were mixed together. They should have been described, it was said, as mixed; as "a cer- tain mixture, consisting of one bushel of oats," etc."' But this is at least doubtful.^''* If articles, when mechanically mixed, change their character, and are known by another name, as where wood and iron is manufactured into a wagon, or wool and silk into an overcoat, it is clear that they should be described as a wagon or an overcoat; "" but where, though mixed, they still retain their nature and qualities, and are known by the same names, they should be de- scribed by those names. There seems no better way of determin- ing the question than by applying the rule that the common accepta- tion governs the description. The description of property is subject to the rule that the law only requires such certainty as the nature and circumstances of the case will permit.^''* In all cases, of course, the description must be sufficient to show that the offense was committed; but a more particular description than is necessary to meet this requirement is not essential if it is impossible. The excuse, however, should be stated, as that further particulars are unknown.^'" Written Instruments. In indictments for the larceny or possession of written instru- ments, it is never necessary, as in the case of forgery, to set forth 172 Reg. v. Bond, 1 Denison, Crown Cas. 521. "s Rex V. Kettle, 3 Chit. Cr. Law, 947a. "4 Reg. V. Bond, supra. 17B See note 171, supra. 17 6 Com. V. Grimes, 10 Gray (Mass.) 470; Wilson v. State, 69 Ga. 224; Com. V. Sawtelle, 11 Gush. (Mass.) 142; Larned v. Com., 12 Mete. (Mass.) 240; Hamblett v. State, 18 N. H. 384; Low v. People, 2 Parker, Cr. R. (N. Y.) 37. ITT Hamblett v. State, 18 N. H. 384; Low r. People, 2 Parker, Cr. R.' (N. Y.) 37. 220 PLEADING— THE ACCUSATION. [Ch. 6 the instniment verbatim; but it is sufficient to describe It like any other chattel.^^^ An indictment under a statute for the larceny of particular instruments therein specified must so describe the instru- ment as to bring it within the statute. Ordinarily, to designate it by the term employed in the statute will be sufficient.^'* Thus, where a statute punishes the larceny of bank notes, bank bills, prom- issory notes, receipts, acquittances, etc., these terms may be used in describing the instrument, and many of the cases hold that no further description is necessary. Under a statute punishing the larceny of bank notes, it has been held sufficient to describe the instrument simply as a bank note of a certain value; ^^^ but it would not do to describe it as "a note commonly called a "bank note.'"^*^ The statutes punishing the larceny of written instru- ments vary in the different states, and, besides this, there is much conflict in the cases. The scope and size of this work will not per- mit us to do more than refer to some of the authorities.^** 178 Rex V. Johnson, 3 Maule & S. 539; Com. v. Richards, 1 Mass. 387; State V. Cassel, 2 Har. & G. (Md.) 407; State v. Stevens, 62 Me. 284; Baldwin v. State, 1 Sneed (Tenn.) 411; McDonald v. State, 8 Mo. 283; State v. Williams, 19 Ala. 15; Com. v. Brettun, 100 Mass. 206. IT 9 Com. V. Richards, 1 Mass. 337; State v. Cassel, 2 Har. & G. (Md.) 407; McDonald v. State, 8 Mo. 283; Com. v. Brettun, 100 Mass. 206. ISO Com. V. Richards, 1 Mass. 337. 181 Rex V. Craven, Russ. & R. 14. And see Rex v. Chard, Id. 488; Dame- wood V. State, 1 How. (Miss.) 262. 182 The student will find the question discussed and the cases collected in Whart Cr. PI. & Prac. §§ 184-202. Bank notes and bank bills. Com. v. Rich- ards, 1 Mass. 337; Lamed v. Com., 12 Mete. (Mass.) 240; Com. v. Ashton, 125 Mass. 384; People v. Holbrook, 13 Johns. (N. Y.) 90; Com. v. Boyer, 1 Bm. (Pa.) 201; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Rout, 3 Hawks (N. C.) 618; McDonald v. State, 8 Mo. 283; Salisbury v. State, 6 Conn. 101; Craven's Case, 2 East, P. C. 601; State v. Stimson, 24 N. J. Law, 9; State V. Stevens, 62 Me. 284. Promissory notes. Com. v. Brettun, 100 Mass. 206; Spangler v. Com., 3 Bin. (Pa.) 533; Com. v. Ashton, 125 Mass. 384; Hobbs V. State, 9 Mo. 855; Stewart v. State, 62 Md. 413; Phelps v. People, 72 N. Y. 334. Bills of exchange, Reg. v. Harper, 44 Law T. (N. S.) 615; Reg. v. Cooke, 8 Car. & P. 582; Rex v. Birkett, Russ. & R. 251; Rex v. Wicks, Id. 149; People v. Howell, 4 Johns. (N. Y.) 296; Com. v. Butterick, 100 Mass. 12; Phelps V. People, 72 N. Y. 334. United States treasury notes, U. S. v. Bennett, 17 Blatchf. 357, Fed. Gas. No. 14,572; Com. v. Oahill, 12 Allen (Mass.) 540; Hummel v. State, 17 Ohio St. 628; State v. Thomason, 71 N. 0. 146; Dull Ch. 6] DESCRIPTION OF PERSONAL PROPERTY. 221 Mmiey. The term "money" includes everything that is made legal tender and is current as money.^'° It does not cover bank notes, bank bills, promissory notes, etc., unless they are made legal tender.^** Unless a statute provides otherwise, as it does in some states,^'"* money cannot be described simply as so many dollars in money, or money of a certain value, etc., but the particular kind of money must be stated.^*' An indictment for the larceny of coin or paper money should state the kind of coin or paper, but need not de- scribe each particular coin or bill. It is sufficient to describe them as sundry treasury notes, etc., or sundry pieces of silver, gold, or copper coin, or sundry gold or silver or copper coins or coin,^*^ according to the circumstances, of the United States, or current in the state, giving the aggregate value, with an averment that a more V. Com., 25 Grat. (Va.) 965. Receipts, Eex v. Martin, 1 Moody, Crown Cas. 483; Reg. v. Boardman, 2 Moody & R. 147; Rex v. Goldstein, Russ. & R. 473; Testick's Case, 2 Bast, P. C. 925; Com. v. Lawless, 101 Mass. 32; State V. Humphreys, 10 Humph. (Tenn.) 442. Acquittance, Com. v. Ladd, 15 Mass. 526. Checks, Bonnell v. State, 64 Ind. 498; Hawthorn v. State, 56 Md. 530; Whalen-v. Com. (Va.) 19 S. B. 182. Railroad tickets, McCarty v. State, 1 Wash. 377, 25 Pac. 299; ante, p. 216. 183 Reg. V. West, 7 Cox, Cr. Cas. 183. 184 Major's Case, 2 East, P. C. 1118; State v. Jim, 3 Murph. (N. 0.) 3; Com. V. Swinney, 1 Va. Cas. 146; McAuly v. State, 7 Yerg. (Tenn.) 526; Wil- liams v. State, 12 Smedes & M. (Miss.) 58; Johnson v. State, 11 Ohio St. 324. 185 Lewis V. State, 113 Ind. 59, 14 N. B. 892; State v. Rush, 95 Mo. 199, 8 S. W. 221; People v. Chuey Ying Git, 100 Cal. 437, 34 Pac. 1080. 186 Eex V. Fry, Russ. & R. 482; Merwin v. People, 26 Mich. 298; Lavarre V. State, 1 Tex. App. 685; Smith v. State, 33 Ind. 159; State v: Stimson, 24 N. J. Law, 9; State v. Longbottoms, 11 Humph. (Tenn.) 39; People v. Ball, 14 Cal. 101; Leftwich v. Com., 20 Grat. (Va.) 716; State v. Murphy, 6 Ala. 845; Wofford v. State, 29 Tex. App. 536, 16 S. W. 535; State v. Oakley, 51 Ark. 112, 10 S. W. 17. Thus, an indictment describing the stolen property as "$200 in United States bank notes, of the value of $200; $200 United States currency, of the value of $200; and $200 of United States treasury notes, of the value of $200,"— is bad for not more particularly describing the prop- erty, or alleging that a more particular description is unknown. Baggett v. State, 69 Miss. 625, 13 South. 810. But see Goldstein v. State (Tex. Cr. App.) 23 S. W. 686. 187 Com. V. Gallagher, 16 Gray (Mass.) 240, in which it was held that "coin," being a collective word, was equivalent to "coins." 222 PLEADING THE ACCUSATION. [Ch. 6 particular description cannot be given, or, according to some of the cases, without such an averment.^'* Animals, etc. At common law, an indictment for stealing an animal must de- scribe it specifically, and any substantial variance between the in- dictment and the proof will be fatal.^*" An indictment for steal- ing a colt, without stating whether it was a mare or a horse, has been held bad."" And where the indictment charged the larceny of a gray horse, and the proof showed it was a gray gelding, the variance was held fatal.^°^ And it has been held that an indict- ment for stealing a pig cannot be sustained under an act against stealing hogs."'' As in other cases, certainty to a common intent only is required. At common law an animal may be described simply as "one horse," "one mare," "one hog," etc., giving the owner- ship and value. It is not necessary to go further into details, and give the color, size, kind, weight, or marks.*°° This rule is qualified as applied to indictments under a statute. With regard to the description of animals under a statute pun- ishing offenses in relation to them, the rule has been stated to be that, "where a statute uses a single general term, this term is to be regarded as comprehending the several species belonging to the genus; but that, if it specifies each species, then the indict- ment must designate specifically," and "that, when a statute uses a nomen generalissimum as such (e. g. cattle), then a particular species can be proved, but that when the statute enumerates 188 Com. V. Gallagher, supra; Com. v. Sawtelle, 11 Gush. (Mass.) 142; Mc- Kane v. State, 11 Ind. 195; State v. Jackson, 26 W. Va. 250; Bravo v. State, 20 Tex. App. 177; Haskins v. People, 16 N. Y. 344; People v. Dimick, 107 N. Y. 13, 14 N. E. 17S. 189 Post, p. 335. 100 Rex V. Beaney, Russ. & R. 41G. Nor Is "a yearliug" sufficient StoUen- werk V. State, 55 Ala. 142. 191 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see Baldwin v. People, 1 Scam. (111.) 304, where it was held that proof of steal- ing a mare or gelding would sustain an indictment for stealing a horse. 102 State V. M'Lain, 2 Brev. (S. C.) 443. But see Lavender v. State, 60 Ala. 60. 103 People V. Stanford, 64 Oal. 27, 28 Pac. 106; State v. Friend, 47 Minn. 449, 50 N. W. 692; State v. Grow, 107 Mo. 341, 17 S. W. 745; State v. Baden, 42 La. Ann. 295, 7 South. 582. Ch. 6] DESCRIPTION OP PERSONAL PROPERTY. 223 certain species, leaving out others, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the intention of the legislature to use it as such." ^°* Where a statute punishes the stealing of cows, bulls, steers, and calves, and does not specifically mention heifers, an indictment for stealing a heifer may describe it as a cow."° But, if the statute mentions both cows and heifers, it must be described as a heifer.^"* So, where a statute punishes the stealing of horses only, a mare or a gelding may be described as a horse,^'' though it is otherwise where the statute mentions mares and geldings.^®* Where a statute punishes larceny or other offenses in relation to "cattle," "neat cattle," or "beasts," using one of those terms only, any description bringing the animal within tlie general term may be used, as horse, cow, sheep, hog, etc. It need not state, further, that the animal is a beast or cattle or neat cattle.^°° In such a case, however, it would not do to describe the animal as a beast or cattle, but the kind of beast or cattle would have to be specified. It cannot in reason be supposed that the legislature, in using so general a term, intended to so far do away with the requirement of certainty.^"" "Four head of neat cattle" is a sufficient description, for neat cattle means a particular kind of cattle; it applies to animals of the genus bos only.^"^ 18* Whart. Cr. PI. & Prac. § 237; State v. Plunket, 2 Stew. (Ala.) 11. 195 People V. Soto, 49 Cal. 70. 198 Cooke's Case, 2 East, P. C. 616. 197 People V. Pico, 62 Cal. 50; Jordt v. State, 31 Tex. 571; State v. Plunket, 2 Stew. (Ala.) 11. 198 state V. Plunket, 2 Stew. (Ala.) 11. 199 Moyle's Case, 2 East, P. C. 1076; State v. Hambleton, 22 Mo. 452; Rex V. Whitney, 1 Moody, Crown Cas. 3; Bex v. Chappie, Russ. & R. 77; Mott's Case, 2 East, P. C. 1075; Taylor v. State, 6 Hnmph. (Tenn.) 285; State v. Bowers (Mo. Sup.) 1 S. W. 288. 200 As we have already stated, "it is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indict- ment shall charge the ofCense in the same generic terms as in the definition; but it must state the species,— it must descend to particulars.' " U. S. v. Oruikshank, 92 U. S. 542; ante, p. 159; post, p. 264. 201 State V. Hoffman (Kan.) 37 Pac. 138. Under a statute punishing larceny of "neat cattle," to describe the property stolen as "certain cattle, to wit, one cow," is sufficient State v. Crow (Mo. Sup.) 17 S. W. 745. 224 PLEADING THE ACCUSATION. [Ch. 6 An indictmeiit for stealing a dead animal should state that it was dead, for, in the absence of any averment to the contrary, it will be presumed that a live animal is intended, and proof that a dead animal was stolen will be a fatal variance. The presumption being that the animal was alive, an indictment for stealing a live animal need not state that it was alive. An indictment for stealing two turkeys, it has been held, will be taken to mean living turkeys, and will not be sustained by proof of stealing dead ones.^°^ So, on in- dictment for stealing a pheasant, of the goods and chattels of the prosecutor, it was held that from the description it must be taken to be a pheasant alive, and so ferae naturae, and not the subject of larceny; that, to show the offense, the indictment should have shown that the bird was dead or reclaimed, and the stating it to be the goods and chattels of the prosecutor did not supply the deficiency.^ "^ This doctrine respecting the description of animals in an indict- ment applies only to living animals, not to dead animals or parts of the carcasses of animals.^"* An indictment for stealing a ham may describe it simply as a ham, without describing the animal of which it had been a part.^"^ An indictment for stealing meat would not be sufficient. ^"^ Where an animal or bird alleged to have been stolen exists in a wild state, like the fox or the pheasant, it is necessary to show that it had been killed or reclaimed, for animals ferae naturae are not the subject of larceny.""' Miner ak, Trees, etc. Since only personal property is the subject of larceny, the indict- ment must show that the property stolen was personal. An indict- ment, therefore, for stealing coal or other minerals, must state that 202 Rex V. HaUoway, 1 Car. & P. 128; Rex v. Edwards, Russ. & R. 497; Com. T. Beaman, 8 Gray (Mass.) 497. 203 Rough's Case, 2 East, P. C. 607. 204 Reg. V. Gallears, 1 Denison, Crown Cas. 501. 20 5 Reg. V. Gallears, supra. 20 e state v. Morey, 2 Wis. 494; State v. Patrick, 79 N. C. 656. 207 Rough's Case, 2 East, P. C. 607; Clark, Cr. Law, 245; Reg. v. Cox, 1 Car. & K. 494. In this case an indictment for stealing eggs without otherwise describing them was held bad, because the eggs of birds ferae naturae are not the subject of larceny. Ch. 6] DESCEIPTION OF PERSONAL PROPERTY. 225 they had been severed" from the realty."" And at common law an indictment for the larceny of trees, shrubbery, fruit, or vegetables must show that they had been severed.^"* As we have seen in an- other work, a severance and carrying away by the thief as part of one and the same transaction is not sufficient,^^" and it follows that the indictment must show a severance prior to the carrying away, and not as a part of the same transaction. Number, Quantity, and Value. Not only must the kind of property be stated in an indictment for larceny or other offense in relation to personal property, but gen- erally the number or quantity must also be stated; and, where sev- eral different kinds of property are alleged, the number or quantity of each must be given.^^^ This is necessary in order to meet the requirement of certainty. Thus, an indictment for engrossing, which charged that the accused did engross and get into his hands by buying, etc., "a great quantity of fish, geese, and ducks," with in- tent to sell them again, was held bad, because it failed to state the quantity of each.^^^ And so it has been held where an indictment charged the stealing of "twenty sheep and ewes," without stating the number of each,"^" and where it charged the sale of "diversas quantitates" of beer in unlawful' measures.^^* "It is not suflQcient to say 'felonice furatus est oves,' without saying how many." "^^ A charge of stealing a "parcel of oats," however, was held sufficiently certain.*^' 208 People v. WiUiams, 35 Cal. 671; State v. Burt, 64 N. C. 619; Clark, Or. Law, 243. 2 00 State V. Foy, 82 N. C. 679. 210 Clark, Or. Law, 243, 244. 211 2 Hale, P. C. 182, 183; Rex v. Gilbert, 1 East, 583; Anon., Cro. Car. 881; Rex v. Foster, 1 Ld. Raym. 475; Rex v. Gibbs, 1 Strange, 497; Com. v. Max- well, 2 Pick. (Mass.) 139, 143; Stewart v. Com., 4 Serg. & R. (Pa.) 194; Left- wich v. Com.. 20 Grat. (Va.) 716. 212 Rex V. Gilbert, 1 East, 583. And see Anon., Cro. Car. 381; Rex v, Foster, 1 Ld. Raym. 475. 213 2 Hale, P. C. 182. «i4 Rex V. Gibbs, 1 Strange, 497. 216 2 Hale, P. C. 183; Com. v. Maxwell, 2 Pick. (Mass.) 139, 143; Stewart ▼. Com., 4 Serg. & R. (Pa.) 194. 216 State V. Brown, 1 Dev. (N. 0.) 137. CKIM.PBOC— 15 226 PLEADING THE ACCUSATION. [Ch. 6 Whenever the value of property is material, it must be stated; and, where several different kinds of property are described, the value of each should be given.^^' In case of larceny the value must be shown, not only in order that it may appear whether the offense is grand or petit larceny, but also that it may appear on the face of the indictment that the property has value, for property that is of no value is not the subject of larceny.^*' And, where several articles of a different kind are alleged to have been stolen, the value of each article, and not the aggregate value of all the articles, should be stated; for, unless there is a conviction of the larceny of all the articles, the indictment will be insufl- cient.^^* With respect to indictments for larceny under statutes, it has been said that the statutes punish for larceny "with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long-established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment, and thaj; where an indictment alleges a larceny in vaiious articles, and adds only the collective value of the whole, such allegation is not sufficient, where the defendant is not found guilty of the larceny as to the whole." "" Where a number of articles of the same kind are alleged to have been stolen, and it is impossible to give the exact number, and the value of each, or probably even where the value of each can be given, they may be described and valued collectively. Thus, an indictment for stealing bank notes or coin may describe them as sundry bank notes, sundry gold coin, etc., of the aggregate value of a certain sum, and the indictment will be sustained by proof of the larceny of any of such articles if a sufficient value is shown.'*^ 21T 1 Hale, P. 0. 531; 2 Hale, P. 0. 185. And see the cases hereafter cited. 2i« 1 Hale, P. C. 531; 2 Hale, P. C. 185; Rex v. Fuller, Russ. & R. 40T; Payne v. People, 6 .Tohns. (N. Y.) 103; State v. Tlllery, 1 Nott & McC. (S. C.) 0; State v. Thomas, 2 McCord (S. G.) 527; Wilson v. State, 1 Port. (Ala.) 118; State v. Allen, R. M. Charlt. (Ga.) 518; People v. Wiley, 3 Hill (N. Y.) 194: State v. Goodrich, 46 N. H. 186; Merwin v. People, 26 Mich. 298; State v. Fenn, 41 Conn. 590. 210 Com. V. Smith, 1 Mass. 245; Hope v. Com., 9 Mete. (Mass.) 134; Cam. V. CahiU, 12 Allen (Mass.) 540; Collins v. People, 39 111. 233. 220 Hope V. Com., supra. 221 Com. V. O'Connell, 12 Allen (Mass.) 451; Com. v Grimes, 10 Gray (Mass.) 470; Lamed v. Com., 12 Mete. (Mass.) 240; State v. Taunt, 16 Minn. Ch. 6] OWNEESHIP OF PROPERTY. 227 As we have just seen, this does not apply where the articles are of a different kind.. In discussing the general rules of pleading, we saw that it is not necessary to state matters of which the court must take judicial notice.''" If from the facts stated, or. the character of the prop- erty described, the court must take judicial notice of its value, the value need not be alleged. Thus, an indictment for stealing "eighty dollars in money, consisting of ten-dollar bills and twenty-dollar bills, currency of the United States," need not state the value of the money, for the court will take judicial notice that such bills are worth their face value.^^^ When the value of property described in an indictment is alto- gether immaterial, it need not be stated. Thus, where a statute punishes the stealing of certain property, or property in a certain place, without regard to its value, the value need not be alleged.*'* Accuracy of Description — Variance. We shall hereafter consider the necessity to prove the property as described in the indictment, and the number, quantity, and value stated, and the effect of a variance between the pleading and proof in this respect.""" OWNEESHIP or PEOPEETT. 93. In indictments for offenses committed upon prop- erty, real or personal, the name of the general or special o"wner must be accurately stated. To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another, and indictments for such offenses must name the 109 (Gil. 99). But see Hamblett v. State, 18 N. H. 384; Low v. People, 2 Parker, Or. K. (N. Y.) 37. 2 22 Ante, p. 165. 223 Gady v. State, 83 Ala. 51, 3 South. 429; Grant v. State, 55 Ala. 201; State V. Stimson, 24 N. J. Law, 9. 22 4 Ritchey V. State, 7 BlacUf. (Ind.) 168; State v. Hill (La.) 15 South. 145. And see State v. Bowers (Mo. Sup.) 1 S. W. 288; Territory v. Pendry, 9 Mont. 67, 22 Pac. 760; Walker v. State, 50 Ark. 532, 8 S. W. 939; State v. Castor, 93 Mo. 242, 5 S. W. 906. 22 5 Post, p. 335. 228 PLEADING THE ACCUSATION. [Ch. 6 owner; and a variance in this respect between the indictment and the proof will be fatal.^^'' It is also necessary in order to identify the offense. The property may be described as the real owner's, though he never had the actual possession.^^' And property may be laid in a special owner or possessor, as well as in the general owner. Prop- ' erty in the hands of a bailee, for instance, may be laid either in the bailor or bailee.^^' Personal property stolen from a corpse, or be- longing to the estate of a dead person, should be laid, not in the decedent, but in the executor or administrator, or, if necessary, in a person unknown.^^" Property of a corporation must be laid in the corporation.^'^ At common law, if the goods stolen were the 227 1 Hale, P. C. 512; 1 Chit. Or. Law, 213; Rex v. Baxter, 2 Leach, Crown Cas. 578; Com. v. Morse, 14 Mass. 217; State v. Ryan, 4 McCord (S. 0.) 16; Flora V. State, 4 Port. (Ala.) Ill; Haworth v. State, Peck (Tenn.) 89; Long V. State (Tex. Cr. App.) 20 S. W. 576; Boles v. State, 58 Ark. 35, 22 S. W. 887. Contra, in robbery, Clemons v. State, 92 Tenn. 282, 21 S. W. 525. But see Boles v. State, supra. An indictment for larceny alleging that the de- fendant stole certain property from a person named, without alleging that such person was the owner, is fatally defective. State v. Ellis, 119 Mo. 437, 24 S. W. 1017. 2 28 Rex V. Remnant, Russ. & R. 136. 229 2 Hale, P. C. 181; Re'x v. Remnant, Russ. & R. 136; Rex v. Bramley, Id. 478; Rex v. Adams, Id. 225; Reg. v. Webster, 9 Cox, CSr. Cas. 13; Com. v. Morse, 14 Mass. 217; Fowler v. State (Ala.) 14 South. 860; Kennedy v. State, 31 Fla. 428, 12 South. 858; Com. v. Blanchette, 157 Mass. 486, 32 N. E. 658; State y. MacRae, 111 N. C. 665, 16 S. E. 173; State v. Allen, 103 N. C. 433, 9 S. E. 626. A carrier, lessee for years, or a party to whom goods are pawned or bailed, may be described as owner, or the property may be laid in the person beneficially interested. 1 Hale, P. C. 512; 2 East, P. C. 652. Goods stolen from a laundress who has them in charge to wash them may be described as hers. 3 Chit. Or. Law, 947b. So property of a guest stolen from an inn may be laid in the innkeeper or in the guest, 3 Chit. Cr. Law, 947b; property stolen from a coach, in the driver or in the owner. Rex V. Deakin, 2 Leach, Crown Cas. 862. A servant having custody of his master's property holds it for his master, and has not even a special property, and the property cannot be laid in him. 1 Hale, P. C. 513; Com. v. Morse, 14 Mass. 217; Norton v. People, 8 Cow. (N. Y.) 137; Poole v. Symonds, 1 N. H. 289. 230 1 Hale, P. 0. 515; 2 Hale, P. C. 181; 2 East, P. C. 652; Hayne's Case, 12 Coke, 113; State v Davis, 2 Carr. Law Repos. 291. 281 Rex V. Patrick, 2 East, P. 0. 1059, 1 Leach, Crown Cas. 253; Rex v. Wil- kins. Id. 523. Ch. 6] OWNERSHIP OP PROPERTY. 229 property of a partnersMp or of other joint owners, the names of all the partners or joint owners must be stated. If, therefore, an in- dictment lays the ownership of the goods stolen in A. B. "& Co.," without stating the names of the partners composing the firm, or alleging that A. B. & Co. is a corporation, it is bad.^^^ Property of a convicted felon, undergoing his sentence, is in England laid in the king or queen; "^^ but in this country, where a conviction of crime does not cause a forfeiture of property, it would be otherwise. Property stolen from one who has himself stolen it may be laid in him.^** At common law, a married woman's prop- erty must be laid in her husband, except where she is regarded un- der particular circumstances as owner at common law."'" The mar- ried women's acts have had the effect of changing this rule to a great extent. Where a married woman's property does not vest in her husband, but remains in her, it may be laid in her in the indictment.^'* If the owner of property is unknown, it may be laid in a person to the jurors unknown; for, as we have seen, the law generally requires such certainty only as the circumstances will per- mit.'" The rule applies as well to offenses committed upon real property. Thus, the offense of burglary is not committed by one who breaks and enters his own house, nor by a woman who breaks and enters her husband's house; and therefore an indictment for burglary must describe the owner of the building, so that the court may see from the indictment itself that the offense has been committed, and any variance between the allegation and proof in this respect will 28 2 People V. Bogart, 36 Cal. 248; McCowan v. State, 58 Ark. 17, 22 S. W. 955. By the weight of authority, it Is otherwise where the statute provides that an indictment is sufficient if it contains a statement of the acts con- stituting the offense in ordinary and concise language, and in such a manner as to enable a person of ordinary understanding to know what is Intended. Reed v. Com., 7 Bush. (Ky.) 641; People v. Ah Sing, 19 Cal. 598. But see McCowan v. State, supra. s«8 Beg. V. Whitehead, 9 Car. & P. 429. 28* Com. V. Finn, 108 Mass. 466; Ward v. People, 3 Hill (N. Y.) 396. 28 B 1 Hale, P. 0. 513. 28 8 Kollins v. State, 98 Ala. 79, 13 South. 280. 28T 2 Hale, P. 0. 181; State v. Hadcock, 2 Hayw. (N. O.) 162; ante p. 168; post, pp. 233, 340. 230 PLEADING THE ACCUSATION. [Ch. 6 be fatal. An allegation of ownership is also necessary in order to render the charge certain.^'' The same rule applies to statutory housebrealcings and to statutory larcenies in buildings.-'" In like manner, and for like reasons, an indictment for arson at common law, and generally for statutory burnings, must state the ownership of the dwelling house or other building, and a variance between the indictment and the proof will be fatal.^*" Arson and burglary are offenses against the habitation, and must therefore describe the building as the dwelling house of the person in possession of it as his dwelling, and not of the person who has the legal title, but is not in possession. The former is regarded as the owner for the purpose of the charge.^*^ Where a building was described in an indictment for arson as the building of the owner, and the proof showed that it was in the possession of a tenant, the variance was held fatal. ^*^ An indictment for arson in burning a jail was held to properly describe the building as the dwelling house of the jailer who lived there. "If one be indicted for burning the dwelling house of another," it was said, "it is sufficient if it be in fact the dwelling house of such person. The court will not inquire into the tenure or interest which such person has in the house burnt. It is enough that it was his actual dwelling at the time." ^*' Where an indictment for an offense with reference to real or personal property, like arson or larceny, alleges the property to have been in one person, and the proof shows that snch person was joint genernl or special owner with another, the variance is fatal 23 8 Rex V. White, 1 Leach, Crown Cas. 252; Rex v. Jenks, 2 Leach, Crown Cas. 774; Rex v. Stock, 2 Leach, Crown Cas. 1018; Rex v. Stocli, Russ. & R. 1S.5; Bosgett v. Fi-ier, 11 East, 301; 2 East, P. C. 514; People v. Parker, 91 Cal. 91, 27 Pac. 537; Winslow v. State, 26 Neb. 308, 41 N. W. 1116; Thomas r. State, 97 Ala. 3, 12 South. 409. 2 3 Com. v. Hartnett, 3 Gray (Mass.) 450, and cases there cited; 2 Hale, P. C. 244; Rex v. Rogers, 1 Leach, Crown Cas. 89; Rex v. Jenks, 2 Leach, Crown Cas. 774; Com. v. Perris, 108 Mass. 1; Rex v. Belstead, Russ. & R. 411. = 40 Rex V. Rickman, 2 East, P. C. 1034; People v. Gates, 15 Wend. (N. Y.) 150; People v. Fairchild, 48 Mich. 36, 11 N. W. 773; Carter v. State, 20 Wis. 650; Com. v. Mahar, 16 Pick. (Mass.) 120; State v. Keena, 63 Conn. 329, 28 AU. 522; Smoke v. State, 87 Ala. 143. 6 South. 376. 241 People V. Gates, 15 Wend. (N. Y.) 159; Woodford v. People, 62 N. Y. 12T. 24 2 People V. Gates, supra. 243 People V. Van Blaa-cum, 2 Johns. (N. Y.) 105. Ch. 6] DESCRIPTION OF THIRD PERSONS. 231 at common law.^** But in some jurisdictions this is changed by statute. In Massachusetts, for instance, it is provided that, in the prosecution of offenses in relation to or affecting real or personal es- tate, it shall be suflQcient, and shall not be deemed a variance, if it is proved on the trial that either the actual or constructive posses- sion or the general or special property in the whole or in part of such real or personal estate was in the person alleged to be the owner thereof.''*" Ownership of personal property is usually alleged by using the words "of the goods and chattels of" the owner, or "of the moneys," "of the cattle," etc.^*° The words "belonging to" are sufficient.^*' No particular words are necessary in any case. Thus, it has been held that an indictment for burglarizing "a certain building of one N., there situate, the same being used and occupied by the said N. as a saloon," sufficiently alleged the ownership.^** DESCRIPTION or THIRD PERSONS. 94. The indictment must correctly state the full Chris- tian name and surname of the person against ■whom the offense -was committed, or -who must be described in order to state the offense -with certainty, if his name is kno-wn, and, if his name is unknoAvn, it must be so stated. In some cases it is necessary to name third persons in order to show on the face of the indictment that an offense has been com- mitted. This, as we have seen, is one of the reasons why it is nec- essary to state the name of the owner of the property in an indict- ment for an offense against property, or against the habitation. 24* Com. V. Trimmer, 1 Mass. 476; Com. v. Arrance, 5 Allen (Mass.) 517. See note 232, supra. 24 B Com. V. Arrance, 5 Allen (Mass.) 517. This provision applies to the un- divided property of tenants in common. Com. v. Arrance, supra; Com. v. Harney, 10 Mete. (Mass.) 426; Com. v. Goldstein, 114 Mass. 272. 246 Long's Case, Cro. Eliz. 490; Eex v. Sadi, 1 Leach, Crown Gas. 468; Coon. V. Morse, 14 Mass. 217; Com. v. Manley, 12 Pick. (Mass.) 173. 247 Gom. V. Hamilton, 15 Gray (Mass.) 480; State v. Fox, 80 Iowa, 312, 45 N. W. 874. 24 8 State V. Tyrrell, 98 Mo. 354, 11 S. W. 734. 232 PLEADING THE ACCUSATION. [Ch- 6 It is necessary not only in these cases, but in every other case, for the further reason that without such certainty the offense would not be, identified with sufficient certainty. Wherever, therefore, the name of the party injured by the of- fense, or of any other third person whom it is necessary to mention in describing the offense, is known, it is absolutely necessary to state it, and to state it accurately. A failure to state it, or a ma- terial variance between the statement and the proof, will be fa- tal.''*" In an indictment for larceny, as we have seen, the goods may be laid to be the property of persons unknown, if that is ac- tually the case; but, if the owner be really known, he must be named and correctly named, or the accused must be discharged from that indictment, and tried upon a new one rectifying the mis- take.'^" And indictments for burglary, arson, and similar offenses must correctly state the name of the owner of the house entered or burned.^"^ An indictment for murder, manslaughter, assault, rape, or any other offense against the person would be fatally defective if it failed to correctly name the person killed, assaulted, or raped. And an indictment for taking divers sums of money from divers persons for toll, or for selling intoxicating liquors to divers persons without a license, is fatally defective, and would not support a con- viction.""* As will be seen from the latter of these cases, the rule is not limited to the names of the persons against whom the offense was committed, but extends to every case in which it is necessary to name a person or persons in order to describe the offense with sufficient certainty.""' 2*9 2 Hawk. P. C. c. 25, § 72; 1 Chit. Cr. Law, 213, and authorities there cited; Com. v. Shearman, 11 Cush. (Mass.) 546. An indictment for bigamy must accurately name the person to whom the defendant was bigamously married. Rex v. Deeley, 4 Car. & P. 579. But it has been held that it need not name his or her first wife or husband. Hutchins v. State, 28 Ind. 34; Com. V. Whaley, 6 Bush (Ky.) 266. But see, contra, State v. La Bore, 26 Vt 265. 2 50 Ante, p. 227. 261 Ante, pp. 214, 229. 262 1 Chit Cr. Law, 211; State v. Stucky, 2 Blackf. and.) 289. 2BsAn indictment under a statute punishing embezzlement by a bailee, which charged a person who had executed a chattel mortgage, and who was Intrusted with its delivery to the recorder, with failure to deliver the same, Ch. 6] DESCEIPTION OF THIRD PERSONS. 233 If the names of third persons are unknown, it is sufflcient to de- scribe them as persons to the jurors unknown.^"* Thus, an indict- ment for harboring thieves unknown is sufficient from the neces- sity of the case, and the fair presumption which exists that their names cannot be ascertained.^ "^ So, upon the same ground, if the dead body of a person murdered be found, and it is impossible to discover who he was, an indictment for killing a person unknown would be sufflcient.""' And, as we have already seen, if stolen goods are found on a person, and it is not known to whom they be- long, he may be indicted for stealing the goods of a person or per- sons unknown.""^ If a person is described as unknown, and it shall appear that he was known, the variance will be fatal."'' There is the best authority for the further proposition that a person can- not be described as unknown if, though unknown, the grand jury have constructive notice of his name, and it may by reasonable dili- gence be ascertained; and this would seem to be a good rule, but some courts have held the contrary.""" In naming a third person, all that is generally necessary is that he be described with such certainty that it is impossible to mis- take him for any other; or, as it is generally expressed, there must be certainty to a common intent. Nothing more than this is re- quired."'" He' may, like the accused, be described by the name by which he is usually known; "°^ and, if he is well known by more was held fatally defective because it did not state by whom the mortgage was delivered to the accused, since it did not meet the constitutional right of the accused to be informed of the nature and cause of the accusation. State V. Grlsham, 90 Mo. 163, 2 S. W. 223. 2 0* Com. V. Tompson, 2 Gush. (Mass.) 551; Rex v. Smith, 6 Car. & P. 151; Holford V. State, 2 Blackf. (Ind.) 103. 2 6 5 1 Chit. Cr. Law, 212; 2 Hale, P. C. 181. 2 08 1 Chit. Cr. Law, 212; 2 Hale, P. C. 181. 267 Ante, p. 229. 2 68 Post, p. 340. 269 Post, p. 340. 280 1 Chit. Or. Law, 215; Rex v. Sulls, 2 I^each, Crown Cas. 861; State v. Crank, 2 Bailey (S. C.) 66. 281 Ante, p. 147; Rex v. Berriman, 5 Car. & P. 601; Rex v. Lovell, 1 Leach, Crown Cas. 248; Rex v. Norton, Russ. & R. 510; WUlls v. People, 1 Scam. 234 PLEADING THE ACCUSATION. [Ch. 6 than one name, he may be described by either.^'^ It has been held, for instance, that an indictment for an assault on John, parish priest of D., without giving his surname, was sufficiently certain; **' and an indictment for larceny, laying the goods stolen to be the property of Victory Baroness Tuckheim, by which appellation she was generally known, was held good, though her real name was Selima Victoire.'"* So an indictment for forgery of a draft ad- dressed to Messrs. Drummond & Co., Charing Cross, by the name of Mr. Drummond, Charing Cross, without stating the names of his partners, was held sufficient.^"" A mere statement of the Christian name, without any addition to show the precise individual, is bad for uncertainty. ""^ Much of what we have already said in treating of the name and description of the defendant applies as well to the name and de- scription of third persons. If a man has initials for his Christian name, or is in the habit of using initials therefor, and is known by them, they may be used to describe him.^°^ In some states, as we have seen, a middle name or initial is recognized by the law as a part of the name, and its omission, or a mistake in stating it, will render the indictment defective.^"* But in most jurisdictions the law recognizes but one Christian name. The middle name or ini- (111.) 401; Rex v. , 6 Car. & P. 408; Clark's Case, Russ. & R. 358; Com. V. Lampton, 4 Bibb (Ky.) 261; Kex v. Williams, 7 Car. & P. 298; State v. France, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. B. 656; Slaughter v. State (Tex. Cr. App.) 21 S. W. 247; State v. Davis, 109 N. C. 780, 14 S. E. 55. 26 2 Ante, p. 147; 2 Hale, P. C. 244, 245; Rogers v. State, 90 Ga. 463, 16 S. E. 205; State v. France, 1 Overt. (Tenn.) 434. And see the cases cited in the preceding note. This applies to names of corporations. Rogers v. State, supra. 2 63 Anon., Dyer, 285a; 1 Chit. Or. Law, 215. J6 4 Rex V. Sulls, 2 Leach, Crown Cas. 861. 265 Rex V. Lovell, 1 Leach, Crown Cas. 248; 1 Chit. Cr. Law, 215. 26 6 1 Chit. Cr. Law, 215. 267 Reg. V. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council T. King, 4 McCord (S. C.) 487; State v. Kean, 10 N. H. 347. 26 8 Com. V. Perkins, 1 Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, 11 Cush. (Mass.) 546. Ch. 6] DESCRIPTION OF THIRD PERSONS. 236 tial is no part of the name, and need not be stated.^'' The words "junior," "senior," etc., are no part of the name.^^" Where it is necessary to state the name of a corporation, as in indictments for stealing the property of a corporation, the name of the corporation, it has been held, must be stated with absolute pre- cision. To describe the "Boston & Worcester Railroad Corpora- tion" as the "Boston & Worcester Railroad Company" was held a fatal variance.'''^ What constitutes a variance between the name or description of third persons, as given in the indictment and as shown by the evi- dence, will be further considered when we come to treat of vari- ance."'* Addition of Third Persons. The statute of additions (1 Hen. V. c. 5)^'^ extends only to the ac- cused, and does not at all affect the description either of the prose- cutor, or any other individuals whom it may be necessary to 289 Choen v. State, 52 Ind. 347; Franklin v. Talmadge, 5 Johns. (N. Y.) 84; Roosevelt v. Gai-dinier, 2 Cow. (N. T.) 463; Langdon v. People, 133 111. 382, 24 N. E. 874; Edmundson v. State, 17 Ala. 179; Thompson v. Lee, 21 111. 242; Brskine v. Davis, 25 111. 251; Bletch v. Johnson, 40 HI. 116; Wood v. Fletcher, 3 N. H. 61; State v. Martin, 10 Mo. 391; Dilts v. Kinney, 15 N. J. Law, 130; Isaacs V. Wiley, 12 Vt. 674; AUen v. Taylor, 26 Vt. 599; Hart v. Lindsey, 17 N. H. 235; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet. 1; McKay v. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; People v. Lockwood, 6 Oal. 205. But in a few states, if it is unnecessarily alleged, it becomes material matter of description. Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.) 261. 270 Com. V. Perkins, 1 Pick. (Mass.) 388; Geraghty v. State, 110 Ind. 103, 11 N. E. 1; De Kentland v. Somers, 2 Root (Conn.) 437; Kincaid v. Howe, 10 Mass. 205; Cobb v. Lucas, 15 Pick. (Mass.) 7; State v. Grant, 22 Me. 171; Brainard v. StilpMn, 6 Vt. 9; People v. Collins, 7 Johns. (N. Y.) 549; Pad- gett V. Lawrence, 10 Paige, 170; Headley v. Shaw, 39 lU. 354; Com. v. Par- menter, 101 Mass. 211. But see State v? Vittum, 9 N. H. 519; Jackson v. Pre- vost, 2 Caines (N. Y.) 164. 271 Com. V. Pope, 12 Cush. (Mass.) 272. But it has been held that. If the corporation Is commonly known by the name given, there is no misnomer. Rogers v. State, 90 Ga. 463, 16 S. E. 205; ante, p. 234. As to necessity to allege fact of incorporation, see Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Duncan v. State, 29 Fla. 439, 10 South. 815. See ante, p. 148, note 43. ' 27 2 Post, p. 339. 27 3 Ante, p. 148. 236 PLEADING THE ACCUSATION. [Ch.. 6 name.*'* No addition, therefore, is necessary in any case unless two or more persons whose names are similar are referred to.^" Even this does not seem absolutely necessary, for where, upon an indictment for assaulting Elizabeth Edwards, it appeared that there were mother and daughter of that name, and that the assault was upon the daughter, the indictment was held suflScient.^" 274 1 Chit. Cr. Law, 211; 2 Hale, P. C. 182; Bex v. Sulls, 2 Leach, 861; Rex V. Ogilvie, 2 Car. & P. 230; Com. v. Vamey, 10 Cush. (Mass.) 402. 2T6 1 Chtt. Cr. Law, 211; 2 Hale, P. C. 182; Rex v. Sulls, 2 Leach, Crown Cas. 861. 276 Rex T. Peace, 3 Barn. & Aid. 579. And see Rex v. Bailey. 7 Car. & P. 264. Ch. 7] STATEMENT OF TIME. ii37 CHAPTER Vn. PLEADING— THE ACCUSATION (Contiaued). 95. Statement of Time. 96. Statement of Place. 97. Repeating Time and Place. STATEMENT OF TIME. 95. At common law an indictment must state the day, month, and year in which the offense is supposed to have been committed; but a variance betw^een the statement and the proof in this respect is immaterial, unless the time is of the essence of the offense. At commoii law, it is necessary that the indictment shall state that the offense was committed on a specific day, month, and year,^ though, as we shall see, the time need not in all cases be accurately stated. The year alone is not enough, and, if the day and month alone be given, without the year, the indictment is bad, and can- 12 Hale, P. O. 177; 2 Hawk. P. C. c. 25, § 77; Id. c. 23, § 88; 4 Bl. Comm. 306; State v. Roach, 2 Hayw. (N. C.) 352; State v. G. S., 1 Tyler (Vt.) 295; State V. Johnson, 32 Tex. 96; State v. Brown, 3 Murph. (N. C.) 224; State v. Baker, 34 Me. 52; Shelton v. State, 1 Stew. & P. (Ala.) 208; State v. Anthony, 1 McCord (S. C.) 285; State v. Hanson, 39 Me. 337; Allen v. Com., 2 Bibb ■(Ky.) 210; State v. Beaton, 79 Me. 314, 9 Atl. 728; State v. Dodge, 81 Me. 391, 17 Atl. 313; State v. Beckwith, 1 Stew. (Ala.) 318; Roberts v. State, 19 Ala, 526; State v. OfCutt, 4 Blackf. (Ind.) 355; Jane v. State, 3 Mo. 45; State v. ■O'Donnell, 81 Me. 271, 17 Atl. 66. An averment that the acts charged were ■committed "on sundry and divers days and times between" certain specified days is not sufficient. State v. Beaton, 79 Me. 314, 9 Atl. 728. But it has 'been lately held (citing no authorities, however) that, where time Is not of the essence of the offense, the indictment is not bad because the day of the month Is left blank. U. S. v. Conrad, 59 Fed. 458. "On or about" a certain speci- fied day is sufficient, since the words "on or about" may be rejected as sur- ;plusage, and the time taken to be the day specified. State v. McCarthy, 44 La, Ann. 323, 10 South. 673. See Pruitt v. State (Ark.) 11 S. W. 822; State ■V. Thompson, 10 Mont. 549, 27 Pac. 349. 238 PLEADING THE ACCUSATION. [Ch. 7 not be aided by intendment* An allegation, for instance, tbat an offense was committed "on the lOth day of September now past," is insuflflcient, for failure to state the year." It has been said that there is an exception to the rule that time must be stated in cases where a mere negative or omission is averred; that in such a case, as a rule, no time need be mentioned;* but this is doubtful. It cannot be, for instance, that an indictment against a public ofBcer for neglect to perform his duty need not state a certain day on which, or certain days between which, he was guilty of the omis- sion, or that time may be dispensed with in an indictment for man- slaughter by negligence." Generally, as we shall see, the time when the offense was com- mitted need not be accurately stated. A time must always be stated at common law, but any time before the finding of the indict- ment and within the period of limitation may be given, and a differ- ent time may be shown at the trial. This, however, only applies where the precise time is not material. If the offense could only be committed at a certain time, it must be alleged to have been then committed. An act prohibited by statute on certain days only must be charged as having been committed on one of those days, for the time laid is a material element in the offense, and, unless laid on a day within the statute, no offense would be charged. Thus, where a statute prohibited the maintenance of closed weirs in certain waters on Saturdays and Sundays between the 1st of April and the 15th of July, and an indictment alleged that the offense was committed on the 1st day of June (Tuesday), and "on divers other days" between the 1st of June and the 15th of July, the indictment was held bad, because it did not show on its face that the acts were done on Saturday or Sunday." The rule also 2 1 Chit. Cr. Law, 217; Com. v. Griffin, 3 Gush. (Mass.) 523; Com. v. Hut- ton, 5 Gray (Mass.) 89; Serpentine v. State, 1 How. (Miss.) 260; Clark v. State, 34 Ind. 436. Contra, by statute, whei-e day of month is blank. State V. Parker, 5 Lea (Tenn.) 568. 8 Com. V. Griffin, supra. 4 Kex V. HoUond, 5 Term R. 616; 2 Hawk. P. C. c. 25, § 79; U. S. v. Smith, 2 Mason, 146, Fed. Cas. No. 16,338. See Com. v. Inhabitants of Sheffield, 11 Gush. (Mass.) 178; State v. Behm, 72 Iowa, 533, 34 N. W. 319; State v. McDowell, 84 N. C. 798. 9 State V. Dodge, 81 Me. 391, 17 Atl. 313. Ch. 7] STATEMENT OF TIME. 239 applies to indictments for violation of tlie Sunday laws. The acts must be shown by the indictment to have been committed on that particular day of the week.'' To constitute a homicide at common law, the death must occur within a year and a day after the stroke, and an indictment for homicide must show that it did so occur, or it will state no offense.' Sometimes it is of the essence of the offense that several acts shall have been simultaneous, and in such cases the indictment must show that they were so, or it will fail to describe the offense. An indictment under a statute, for instance, for having in posses- sion ten or more counterfeit bank bills, must show that the accused had them in his possession at the same time, and an averment that he had them in his possession on the same day is not sufficient.* Where the time of the day is not necessary to ascertain the offense, the indictment need not set forth the hour of the day; ^" but where the time of the day does give complexion to the crime, 1 Megowan v. Com., 2 Mete. (Ky.) 3; State v. Land, 42 Ind. 311. "Sabbath" for "Sunday," or vice versa, has been held suflacient. State v. Drake, 64 N. C. 589. The proof need not show commission of the offense on the particular day stated, but some other day, on which the offense could be committed, may be proven. Post, p. 344. s 1 Chit. Or. Law, 223; Brassfield v. State, 55 Arl£. 556, 18 S. W. 1040; State v. Luke, 104 Mo. 563, 16 S. W. 242; Palmer v. People, 138 111. 3o6, 28 N. E. 130; State v. Blakeney, 33 S. 0. Ill, 11 S. B. 637; Timmerman v. Territory, 3 Wash. T. 445, 17 Pac. G24. The indictment, as will be seen from the above cases, need not allege in direct terms that death ensued within a year and a day from the fatal blow. The allegation of the respective dates of the injury and of the death are enough, if it appears from this that the death was with- in a year and a day from the blow. "This may be done either by stating that the deceased died instantly of the wound, or that he languished of the same till the day mentioned, when he died of the said mortal woimd." 1 Hale, P. C. 343, 344. In an Arkansas case the indictment alleged that the blow was given on October 25, 1890, but did not expressly state when the death occurred. It did, however, allege that death ensued, and the caption of the indictment showed that it was returned by the grand jury at the Feb- ruary term, 1891, which term could not, under the law, have continued to October 26, 1891. It was held that it sufficiently appeared that the death oc- curred within a year and a day from the blow. Brassfield v. State, 55 Ark. 556, 18 S. W. 1040. » Edwards v. Com., 19 Pick. (Mass.) 124. 10 1 Chit. Cr. Law, 219; 2 Hawk. P. C. c. 25, § 76. 240 PLEADING THE ACCUSATION. [Ch. 7 as in case of burglary, the hour, or an hour, must be stated.^ ^ This applies not only to burglary, but also to statutory offenses which must be committed in the nighttime or in the daytime, as the case may be.*'' Where the nighttime is defined by statute, an indict- ment for burglary need not allege, as at common law, the hour at which the offense was committed, but it will be sufficient to state that it was committed in the nighttime, since, "whenever 'nighttime' is now used in an indictment, as descriptive of the time of the commission of an offense, it is to be understood of the nighttime as defined by this statute." *' It was said by Chitty, and it seems to be established by the weight of authority, that, where the time for the prosecution is limited by statute, the time averred in the indictment should appear to be within the limit, or else the facts necessary to take the case out of the operation of the statute should be alleged, otherwise the indictment shows on its face that the prosecution is barred.** In 11 2 Hale, P. C. 179; 2 East, P. C. 513; State v. G. S., 1 Tyler (Vt.) 295; Shelton v. Com., 89 Va. 450, 16 S. E. 355; State v. Bancroft, 10 N. H. 105. But see People v. Burgess, 35 Cal. 115. "The reason for this seems to have been that one might, with a felonious intent, have broken and entered a building at a time properly called in popular language 'nighttime,' and yet not have committed the crime of burglary; the time in which that offense can be com- mitted being not so far extended as to embrace the nighttime in the ordinary use of that word, but a period when the light of day had so far disappeared that the face of a person was not discernible by the light of the sun or twi- light." Com. V. Williams, 2 Gush. (Mass.) 589. See Clark, Cr. Law, 237. 12 2 Hale, P. C. 179. 13 Com. V. Williams, 2 Cush. (Mass.) 589. 14 1 Chit. Cr. Law, 223; People v. Gregory, 30 Mich. 371; State v. Davis, 44 La. Ann. 972, 11 South. 580; State v. Robinson, 29 N. H. 274; State v. Beckwith, 1 Stew. (Ala.) 318; Shelton v. State, 1 Stew. & P. (Ala.) 208; State V. Hobbs, 39 Me. 212; State v. Roach, 2 Hayw. (N. 0.) 352; McLane v. State, 4 Ga. 335; State v. Ingalls, 59 N. H. 88; Hatwood v. State, 18 Ind. 492; Lam- kin V. People, 94 111. 501; People v. Miller, 12 Cal. 291. In some states it is held, contrary to some of the above cases, that an indictment need not state the facts bringing the case within the exceptions contained in the statute. Blackman v. Com., 124 Pa, St. 578, 17 Atl. 194. In some states the indict- ment is not necessarily the commencement of the prosecution, and for this reason it was held in Vermont that an indictment is not bad because it does not show that the offense was committed within the prescribed time before It was presented. State v. Stevens, 64 Vt. 590, 25 Atl. 838. Ch. 7] STATEMENT OF TIME. 241 New York, however, it has been held that the time laid in the in- dictment is wholly immaterial for all purposes, and that an indict- ment, therefore, at least on motion in arrest of judgment, is not defective because it alleges that the offense was committed at such a time that the prosecution appears to be barred by the statute of limitations, since a later time may have been shown at the trial.^' When the alleged offense may have continuance, as is the case, for instance, with the offense of keeping a disorderly house, the time may be laid with a continuando; that is, it may be alleged to have been on a single day certain and also on divers other days; but those other days must be alleged with the same legal exactness as is required in alleging a single day.^° Such exactness is ob- tained by alleging that the offense was committed on a day certain and on divers other days between two days certain.^^ The fact that the continuando is not sufficiently certain will not render the whole indictment bad, if it can be rejected as surplusage, and the indictment be sustained as to the day certain. "And the general rule is well established that when an offense, which may have continuance, is alleged to have been committed on a day certain and on divers other days, which are uncertainly alleged, the indict- ment is effectual for the act alleged on the day certain, and void only as to the act alleged on the other days." ^* If a continuance of acts is necessary to constitute the offense, it is essential to lay them with a continuando.^' Cumulative offenses, which can be committed only by a repetition of acts of the same kind, — such as the offense of being a common seller of intoxicating liquors, to con- stitute which there must be at least three sales, — should be thus laid. If an indictment for this offense alleges that the accused was a 1 B People V. Van Santvoord, 9 Cow. (N. Y.) 655. And see Blackman v. Com., 124 Pa. St. 578, 17 Atl. 194; U. S. v. Cook, 17 Wall. 168. 18 Wells V. Com., 12 Gray (Mass.) 326; Com. v. Adams, 4 Gray (Mass.) 27. 17 Wells V. Com., supra. To allege that the acts were committed "on sundry and divers days between" certain specified days is not enough. State v. Bea- ton, 79 Me. 314, 9 Atl. 728. 18 Wells V. Com., supra; Rex v. Dixon, 10 Mod. 335; People v. Adams, 17 Wend. (N. Y.) 475; State v. Munger, 15 Vt. 290; State v. May, 4 Dev. (N. C.) 328; U. S. V. La Coste, 2 Mason, 140, Fed. Cas. No. 15,548. 19 2 Hawk, P. C. c 25, S 62; State v. Munger, 15 Vt. 290; State v. Tem- ple, 38 Vt. 37. CRIM.PROC. — 10 242 PLEADING THE ACCUSATION. [Ch. 7 common seller on a single day certain, and on divers other days uncertainly alleged, it will not support a verdict and judgment, for the accused may have been found guilty, on proof, of sales, some or all of which were made on a day or days insuflSciently alleged."* An indictment in such a case, alleging that the accused was a com- mon seller on a single day only, omitting the continuando alto- gether, would be sufScient, for it would be presumed that three sales were proven on the day alleged. ''^ If the indictment lay the offense to have been committed on an impossible day, as on the 30th day of February, or the 31st day of June, or on a future day, it is just as bad as if no time at all were stated."'' And the indictment will also be insufficient if the same offense, is alleged to have been committed at different times,"' or 20 Com. V. Adams, 4 Gray (Mass.) 27; Wells v. Com., supra, 21 Wells V. Com., supra. 22 1 Chit. Cr. Law, 225; 2 Hawk. P. C. c. 25, § 77; Pennsylvania v. McKee, Add. (Pa.) 36; State v. Litch, 33 Vt. 67; State v. Sexton, 3 Hawks (N. 0.) 184; Jacobs v. Com., 5 Serg. & E. (Pa.) 316; Serpentine v. State, 1 How. (Miss.) 256; State v. O'Doimell, 81 Me. 271, 17 Atl. 66; Com. v. Doyle, 110 Mass. 103; Markley v. State, 10 Mo. 291; Lee v. State, 22 Tex. App. 547, 3 S. W. 89; State v. Pratt, 14 N. H. 456; State v. Blaisdell, 49 N. H. 81; Peo- ple V. Mather, 4 Wend. (N. Y.) 229; State v. Noland, 29 Ind. 212; State v. Smith (Iowa) 55 N. W. 198; Andrews v. State (Tex. App.) 14 S. W. 1014. This is changed by statute in some states. See State v. Crawford, 99 Mo. 74, 12 S. W. 354; post, p. 245. As will be found from the cases above cited, an indictment charging the ofCense to have been committed on the same day the indictment was found is bad if It does not show that it was committed before the finding of the indictment, since it may, so far as the charge shows, have been committed afterwards; and the indictment cannot be aided by argument or inference, ante, p. 162; but where it does expressly show commission of the offense before indictment, though on the same day, it is good. See Com. V. Miller, 79 Ky. 451; Gill v. State (Tex. Cr. App.) 20 S. W. 578. But see People V. Squires, 99 Cal. 327, 33 Pac. 1092. It was held in Kentucky that an indictment alleging that the offense was committed on a day subsequent to its return was not bad where it alleged that the defendant "did" do the acts alleged, since it was thought that this showed that the offense was com- mitted before the Indictment was found. Williams v. Com. (Ky.) 18 S. W. 1024; Vowells v. Com., 84 Ky. 52. This, however, Is contrary to the cases cited above. 23 1 Term R. 316; State v. Dandy, 1 Brev. (S. C.) 395; Hutchinson v. State, 62 Ind. 556. Ch. 7] STATEMENT OF TIME. 243 otherwise on such a day as renders it repugnant.^* And no defect of this nature is aided by verdict.^" An indictment for murder is vitiated by a repugnancy in this respect in the conclusion, as, if the assault and stroke be alleged on the 10th of December, and the death on the 20th of December following, and it is then alleged that the accused so murdered the deceased on the 10th of December aforesaid, since the felony is not complete until the death occurs.''* An allegation that the offense was committed between a day certain and "the day of finding this indictment" fixes the time with sufiScient certainty, notwithstanding the grand jury may have power to find an indictment at any time during the term of the court, and even for an offense committed after the term has commenced. When there is nothing on the record showing the contrary, the time of finding the bill is to be taken to be the first day of the term. When, therefore, an averment is made that an offense was committed between a day certain and the day of finding the indict- ment, and there is nothing on the record showing the day when the indictment was found, it is equivalent to an averment that it was committed between the first day alleged and the day on which the term of the court commenced.^' It is always competent to resort to the record for the purpose of fixing the exact day on which the indictment was found, whenever it becomes necessary to prove that it was found after the first day of the term, as it is sometimes done in order to avoid the objection that the offense was actually committed after the finding of the bill. The actual time can be shown by the certificate of the clerk indorsed on the indictment, or other proper entry.^* Since the day of finding and presentment of an indictment by the grand jury is not necessarily, or by any reasonable intendment, identical with the day of the filing of it by the clerk, but, on the contrary, several days may elapse between 2* 2 Hawk. P. C. c. 25, § 7; Rex v. Stevens, 5 East, 244; JefCries v. Com., 12 Allen (Mass.) 145; State v. Jones, 8 N. J. Law, 307; McGehee v. State, 26 Ala. 154. 2» 1 Chit Cr. Law, 225; 2 Hawk. P. C. c. 25, § 77; Rex v. Stevens, 5 East, 244; State v. Litch, 33 Vt. 67. 2 6 Heydon's Case, 4 Coke, 42a; 2 Hawk. P. C. c. 23, § 88. 27 Com. v. Wood, 4 Gray (Mass.) 11. 28 Com. V. Wood, supra; Com. v. Stone, 3 Gray (Mass.) 453. 244 PLEADING THE ACCUSATION. [Ch. 7 them, an allegation that an offense was committed between a speci- fied day and "the day of the finding, presentment, and filing of this indictment" is bad for uncertainty.^' The mere fact that the time is ungrammatically stated, if it is so stated that the time cannot be mistaken, will not vitiate the indict- ment; as, for instance, where an offense is alleged to have been committed on "the 1st March" instead of "the 1st day of March." '" But an indictment laying the offense on the 2d day of March, A. D. "one thousand eight," instead of "eighteen hundred," ** or an indict- ment omitting the words "in the year," or the letters "A. D.," or words "Anno Domini," before the number of the year,'^ is insuffi- cient. The words "in the year" need not be used if the letters "A. D.," or words "Anno Domini," are used, as they mean "in the year of our Lord"; ^^ nor need the latter be used if the word "year" is used, or the figures as generally used for dates, for it will be taken to mean "year of our Lord." '* As we have already stated, by statute in England indictments must be in words at length, and abbreviations or figures cannot be used. All dates, therefore, must be expressed in words at length.^ '^ This should be the rule everywhere, for it is always safer; but in this country, where we have no statute on the subject, it is generally held that the usual initials and figures may be used for dates.^" "On the 1st day of •S8 Com. V. Adams, 4 Gray (Mass.) 27; Com. v. Keefe, 9 Gray (Mass.) 290. so Simmons v. Com., 1 Rawle (Pa.) 142; ante, p. 174. SI State V. G. S., 1 Tyler (Vt.) 295. 8 2 Com. v. McLoon, 5 Gray (Mass.) 91; Wells v. Com., 12 Gray (Mass.) 326; State v. Lane, 4 Ired. (N. C.) 121; Whitesides v. People, 1 Breese (111.) 21. But see, to the effect that the "year of our Lord," or its equivalent, may be omitted, note 34, infra. S3 State v. Reed, 35 Me. 4S9; State v. Hodgeden, 3 Vt. 481; Com. v. Clark, 4 Cush. (Mass.) 596; Eawson v. State, 19 Conn. 292; State v. Tuller, 34 Conn. 2S0; Winfield v. State, 3 Iowa, 339; State v. Seamons, 1 Iowa, 418. 84 Com. v. Doran, 14 Gray (Mass.) 38; Hall v. State, 3 Ga. 18; Engleman V. State, 2 Ind. 91. SB Ante, p. 172. 88 State v. Hodgeden, 3 Vt. 481; State v. Gilbert, 13 Vt. 647; Com. v, Clark, 4 Cush. (Mass.) 596; State v. Haddock, 2 Hawks (N. 0.) 461; State v. Reed, 35 Me. 489; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Munch, 22 Minn. ■67; Hall v. State, 3 Kelly (Ga.) 18; Lazier v. Com., 10 Grat. (Va.) 708. For the conflict on this point, see the cases cited in the preceding notes. Ch. 7] STATEMENT OF PLACE. 245 January, A. D. 1895," for instance, would be sufficient. It is better, however, always to write out the date at length, particularly in the body of an indictment. Any other practice shows carelessness, and may result in error. Though the allegation of a specified time is necessary in nearly all cases, yet, except where the time enters into the nature of the offense, it is not necessary to prove that the offense was committed on the precise day or year mentioned in the indictment.' ' In other words, it is immaterial, except in those cases, whether the time is correctly stated or not. The rule applies to cases in which it is necessary to state the time of the day at which the offense was committed, as in an indictment for burglary.' ' It does not apply, however, to continuing offenses, such as that of being a com- mon seller of intoxicating liquors.'* - In some states it is provided by statute that an indictment shall not be held bad for stating the time imperfectly, unless time is of the essence of the offense. Under such a statute, where an indict- ment for illegal voting, returned on November 3, 1886, charged that the offense was committed on November 4, 1886, "the same being the day upon which the general election was then and there held in said state * * » for the election of governor • » *^ as was then and there required and authorized by law," it was held that this portion of the indictment had reference to a past offense, and showed that the offense had been committed before the return of the indictment; and that, time not being of the essence of the offense, the indictment must be upheld.^" STATEMENT OP PLACE. 96. The indictment must always state the place where the offense was committed with sufficient particularity to show that it was committed within the jurisdiction of the f Post, p. 344. " Post, p. 344. 39 Post, p. 345. 40 State v. Patterson, 116 Ind.-45, 10 N. E. 289, and 18 N. E. 270. And see State V. McDaniel, 94 Mo. 301, 7 S. W. 634. And under such a statute. Indict- ments giving no date at all have been sustained. Fleming v. State (Ind. Sup.) 36 N. B. 154. As to the constitutionality of such statutes, see ante, p. 140; post, pp. 316, 322. 246 PLEADING THE ACCUSATION. [Ch. 7 cotirt. Where the particular place within the jurisdic- tional limits of the court is of the essence of the offense, it must be stated in order to state the oflFense. The par- tictilar place should also be stated, not as venue, but as matter of local description, in an indictment for a local offense, such as burglary, arson, larceny from a building, etc. Except where the particular place thus enters into the nature of the offense, or is alleged as matter of local description, it is sufB.cient to prove that the offense was committed at any place within the jurisdiction of the court, though not at the place alleged. The venue should be stated, not only in the margin and com- mencement of the indictment, as already explained, but also in the statement. Its omission will be fatal, and may be taken advantage of even in arrest of judgment.*^ This is necessary, in order that it may appear that the grand jury had jurisdiction to inquire into , the oifense and present the indictment, for a grand jury can only inquire into offenses committed within their county; and it is also necessary in order that it may appear that the court has jurisdiction to try the accused, for generally an offense must be tried in the county in which it was committed. It is further necessary in some cases in order to make the accusation certain, and inform the *i2 Hawk. P. C. c. 25, §§ 34, 83; Rex v. Burrldge, 3 P. Wms. 496; Rex v. HoUond, 5 Term R. 624; Reg. v. O'Connor, 5 Q. B. 16; Rex v. Haynes, 4 Maule & S. 214; McCoy v. State, 22 Neb. 418, 35 N. W. 202; Thompson v. State, 51 Miss. 353; People v. Craig, 59 Cal. 370; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380; Connor v. State, 29 Fla. 455, 10 South. 891; Jones v. Com., 86 Va. 950, 12 S. B. 950. Place must be repeated expressly or by reference In. each count. .Tones v. Com., 86 Va. 950, 12 S. B. 950; post, p. 298. In some states, however, it is provided by statute that It shall not be necessary to state any venue in the body of the indictment, but tlie jurisdiction named in the margin shall be taken to be the venue of all the facts alleged, except where a local description is required. People v. Schultz, 85 Mich. 114, 48 N. W. 293; State v. Arnold (Mo. Sup.) 2 S. W. 269; State v. Beaucleigh, 92 Mo. 490, 4 S. W. 666. And see Territory v. Pratt, 6 Dak. 483, 43 N. W. 711. And In some states the statute dispenses altogether with the necessity for a state- ment of venue, only requiring that it be proved at the trial. Toole v. State, 89 Ala. 131, 8 South. 95. Ch. 7] STATEMENT OF PLACE. 247 accused of the charge against him.*^ For this reason, if the offense is alleged to have been committed at a certain town or other place, without naming the county by reference or otherwise, the indictment will be fatally defective,*^ and will not be aided by the statement of the county in the margin.** If the jurisdiction of the court does not extend over the entire county, the place of the commission of the offense must be laid with sufficient particularity to show that it was committed within the jurisdiction of the court.*" Where the county is mentioned in the margin or commencement, or perhaps even in the caption only, it will be sufficient to refer to it afterwards by the words, "in the county aforesaid," or "then and there." *' It has been held that where two counties are mentioned, — as where one is stated in the margin, and then a fact is alleged to have arisen in another county, — a subsequent averment that the offense was committed at a certain place "in the county aforesaid" *zGom. V. Reily, 9 Gray (Mass.) 1; State v. Jolinson, 32 Tex. 96; U. S. v. Burns, 54 Fed. 351. *3 Com. V. Barnard, 6 Gray (Mass.) 488. But see Tower v. Com., Ill Mass. 417. Where the indictment alleges that "P., of New Braintree, in county of Worcester, sold intoxicating liquor at New Braintree," it will be understood that he sold at the same New Braintree previously mentioned, and failure to repeat the county is not bad. Com. v. Cummings, 6 Gray (Mass.) 487. " Rex V. Burridge, 3 P. Wms. 496; 2 Hawlj. P. C. c. 25, § 34; 2 Hale, P. G. 166; Reg. v. O'Connor, 5 Q. B. 16; Stephen's Case, 2 Leigh (Va.) 759; State v. Godfrey, 3 Fair. (Me.) 361. Otherwise by statute. Note 41, supra. «» People V, Wong Wang, 92 CaL 277, 28 Pac. 270; McBride v. State, 10 Humph. (Tenn.) 615; Taylor v. Com., 2 Va. Cas. 94. 48 2 Hale, P. C. 180; 2 Hawk. P. 0. c. 25, § 34; Rex v. Burridge, 3 P. Wms 496; Haskins v. People, 16 N. Y. 344; Barnes v. State, 5 Yerg. (Tenn.) 186; Strickland v. State, 7 Tex. App. 34; State v. Conley, 39 Me. 78; Turns v. Com., 6 Mete. (Mass.) 224; State v. Ames, 10 Mo. 743; State v. Cotton, 4 Fost. (N. H.) 143; State v. Slocum, 8 Blackf. (Ind.) 315; Evarts v. State, 48 Ind. 422; State v. Bell, 3 Ired. (N. C.) 506; State v. Tollever, 5 Ired. (N. C.) 452; Noe v. People, 39 111. 96; Hanrahan v. People, 91 111. 142; State v. Salts (Iowa) 39 N. W. 167; State v. Reid, 20 Iowa, 413. An information that did not state in its body the place where the offense was committed was neverthe- less held sufficient, where the county was mentioned in the caption, and the words of reference, "then and there," were used in charging the crime. State V. S. A. L., 77 Wis. 467, 46 N. W. 49a 248 PLEADING THE ACCUSATION. [Ch. 7 will be insufficient.*' But in New York it has been beld that, where two counties are mentioned, and it is then alleged that the offense was committed at a certain town "in said county," the indictment is sufficient if the town is one created by statute, since the court will take judicial notice of the statute, and can determine the county.** If an indictment laid the offense in a certain town, with- out stating any county at all, it is doubtful whether this decision would be followed, even though there might be an incorporated town of that name in the county in which the indictment was found. There are many towns of the same name in the different states, and in some states there are more than one town of the same name. Such an indictment would certainly be uncertain. The statement that the offense was committed in the county must be certain, and cannot be aided by inference. Thus, where the offense was alleged to have been committed "near the town of Arizona City, in said county of Yuma, and territory of Arizona," Arizona City being situated near the boundary of the county, the averment was held not sufficiently certain, since the offense might have been committed near the town, and yet not in the county.** Formerly the trial jury were summoned from the neighborhood in which the offense was committed, and not, as is now the practice, from the county at large. It was at that time necessary, therefore, to state in the indictment, not only the county, but also the partic- ular parish, vill, hamlet, or other place within the county at which the offense was committed. It was not sufficient to give the county only."" The practice, though possibly not necessary, still exists in England, but to a much less extent than formerly." If the offense is transitory in its nature, not even the form re- mains in this country. Since the trial jury are drawn from the county at large, and not from any particular neighborhood, the offense need only be laid in the county, and the charge will be *il Chit. Cr. Law, 194; Reg. v. Rhodes, 2 Ld. Raym. 888; 2 Hale, P. 0. 180; State v. McCracken, 20 Mo. 411; note 75, infra, *8 People v. Breese, 7 Cow. (N. Y.) 429. And see Com. v. Inhabitants of Springfield, 7 Mass. 9. *» Territory v. Doe, 1 Ariz. 507, 25 Pac. 472. »o 1 Chit. Cr. Law, 196; 2 Hawk. P. 0. c. 25, § 83; 2 Hale, P. 0. 180. 51 1 Chit. Cr. Law, 196. Ch. 7] STATEMENT OF PLACE. 249 sustained by proof that it was committed at any place in the county." By the weight of authority, robbery/^ assaults,^* homi- cide,'*^ simple larceny," disturbance of an assemblage for religious worship, or of any other public assemblage,"' gaming,"** etc., are transitory offenses, and it is sufficient to allege that they were com- mitted in the county, without stating the particular place in the coimty; and generally, if a particular place is stated, it need not be proved."' Where the offense is not transitory, but local, — that is, where it is of such a character that the place in which it is committed colors it, or "is of the essence of the crime," ^° — the particular place within the county at which it was committed must be stated. Some offenses can only be committed in a certain place. Here, of course, the particular place must be stated in order to state any offense at all. Thus, where a statute punishes the keeping of closed weirs in a particular part only of a river, an indictment charging that they were kept in the river, without showing in 52 Rex V. Wardle, Kuss. & R. 9; Carlisle v. State, 32 Ind. 55; State v. Goode, 24 Mo. 361; State v. Smith, 5 Har. (Del.) 490; Com. v. ToUiver, 8 Gray (Mass.) 386; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Lamon, 3 Hawks (N. C.) 175; Heikes v. Com., 26 Pa. St. 513; People v. Honeyman, 3 Denio (N. Y.) 121; Wingard v. State, 13 Ga. 396; Com. v. Lavery, 101 Mass. 207; Covy v. State, 4 Port (Ala.) 186. In Massachusetts, howeveri It has been said that in indictments for capital offenses the strictness of re- quiring the indictment to lay the offense, not only in a certain county, but also in a cettain town, has always been there adhered to, and in favor of life the court perhaps would not feel authorized to depart from the ancient rule. Com. V. Inhabitants of Springfield, 7 Mass. 9. 53 Rex V. Wardle, Russ. & R. 9. 5 4 Com. V. ToUiver, 8 Gray (Mass.) 386. 55 state V. Lamon, 3 Hawks (N. C.) 175; Carlisle v. State, 32 Ind. 55. Con- tra, Com. V. Inhabitants of Springfield, 7 Mass. 19. 56 Rex V. Bullock, Moody, Crown Cas. 324, note; People v. Honeyman, 3 • Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101 Mass. 207. o' state V. Smith, 5 Har. (Del.) 490. is Covy V. State, 4 Port. (Ala.) 186; Wingard v. State, 13 Ga. 396. Riot, Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastardy, Fleikes v. Com., 26 Pa. St. 513. 69 Post, p. 347. 6 1 Chit. Cr. Law, 200. 250 PLEADING THE ACCUSATION. [Ch. 7 what particular part of it, is insufficient. It states no offense, for they may, for all that appears, have been kept in a place where they were not prohibited.'^ Again, there are offenses which, though they may be committed in different parts of the county, can only be committed in relation to property which has a fixed location. This property must be described in stating the offense, and its location must be stated, not as venue, however, but by way of description. By the weight of authority, burglary and house breaking,*^ arson,"' statutory lar- cenies from a shop, warehouse, dwelling house, etc.,°* nuisances with respect to highways,"" such as failure to repair highways," and, according to some of the cases, other nuisances,*'' including the keeping of a disorderly house, and similar offenses," desecra- tion of, disfiguring, and other offenses in relation to cemeteries," being found armed in a close at night,'" etc., — are offenses of this character. Place must be stated, not as venue but as matter of local description. As we shall see, the particular locality must not only be stated, but, being stated by way of local description, and not as venue, it must be proved as stated.'^ As already stated, if the jurisdiction of the court does not extend over the whole county, then the place where the offense was com- mitted must in all cases be more particularly alleged, for the indict- •1 State V. Turnbull, 78 Me. 1, 6 Atl. 1. «2 Rex V. Bullock, Moody, Crown Gas. 324, note; Reg. v. St. John, 9 Car. & P. 40. But see State v. Meyers (Wash.) 36 Pac. 1051. 83 Rex V. Woodward, Moody, Crown Cas. 323; People v. Slater, 5 Hill (N. Y.) 401. Contra, State v. Meyers (Wash.) 36 Pac. 1051. 84 Rex V. Napper, 1 Moody, Crown Cas. 44; People v. Honeyman, 3 Denio CN. Y.) 121. 8 5 Rex V. White, 1 Burrows, 333. 80 Com. V. Inhabitants of North Brookfield, 8 Pick. (Mass.) 462; Rex v. Great Canfield, 6 Esp. 136; Rex v. Marchioness Dowager, 4 Adol. & E. 232; Rex V. Inhabitants of St. Weonard's, 6 Car. & P. 582. 8T Com. V. Heffron, 102 Mass. 148; Cornell v. State, 7 Baxt (Tenn.) 520. But see, contra, State v. Sneed, 16 Lea (Tenn.) 450, 1 S. W. 282; State v. Jacobs, 75 Iowa, 247, 39 N. W. 293. 88 state V. Nixon, 18 Vt. 70; Com. v. Logan, 12 Gray (Mass.) 136. e» 1 Chit. Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300. '0 Rex V. Ridley, Russ. & R. 515. 71 Post, p. 348. Oh. 7] REPEATING TIME AND PLACE '.'THEN AND THEBE." 251 ment must show on its face that the offense was committed within the jurisdiction of the court. ''^ If the indictment fails to allege that the offense was committed in the county in which it was found and in which the trial is had, the defect is fatal, for the court acquires no jurisdiction; and the objection may, therefore, be raised at any time. It is not a defect that can be aided by verdict or judgment.'^ The same is true where the place is stated with repugnancy or uncertainty.''* If, for Instance, two places are named, and afterwards a fact is laid as having happened "then and there," the indictment is bad, because it is uncertain to which it refers.'"' So it is, also, where an indict- ment lays an offense at B. "aforesaid," when B. has not been pre- viously mentioned;^' or where an indictment for murder lays the stroke in one county, and the death in another, and concludes that so the accused murdered the deceased in the former county.''^ The words "from" and "into" are construed in an exclusive sense. Thus an allegation from H. "into" G. has been held to exclude the latter place, and the words "to and from the town of B." have been held to exclude that town itself* The questions of repugnancy and of variance between the allegation and proof with respect to place are elsewhere considered.'" REPEATING TIME AND PLACE— " THEN" AND THEBE." 97. The statement of time and place should be repeated to every issuable and triable fact. It may be so repeated by using the words "then and there." T2 Note 45, supra. 78 Rex v. Cartwright, 4 Term R. 490; Rex v. Mathews, 5 Term R. 162; Rex V. Harris, 2 Leach, Crown Cas. 800; People v. Gregory, 30 Mich. 371. Cases cited in note 41, supra, and in the succeeding notes. 1* 2 Hawk. P. C. c. 25, § 83; Jane v. State, 3 Mo. 45. "62 Hale, P. C. 180; Cases cited in note 47, supra. 76 Cholmley's Case, Cro. Car. 465; Wingfield's Case, Cro. Eliz. 739; 2 Hawlj. P. O. c. 25, § 83; Com. v. Pray, 13 Pick. (Mass.) 359. 77 2 Hawk. P. C. c. 25, § 83; Hume v. Ogle, Cro. Eliz. 196. 7 8 2 RoUe, Abr. 81; Rex v. Inhabitants of Gamlingay, 3 Term R. 513; Ham- mond V. Brewer, 1 Burrows, 376; State v. Bushey, 84 Me. 459, 24 Atl. 940; State V. Landry, 85 Me. 95, 26 Atl. 998. 78 Post, p. 346; ante, p. 171. 252 PLEADING THE ACCUSATION. [Ch. 7 Tn general, the place ought not merely to be mentioned at the be- ginning of the indictment, or in connection with the first allegation of fact, but it should be repeated to every issuable and triable fact; and the same is true of time, for, as a rule, wherever a venue is necessary, time should be united with it.'" The mere conjunction "and" will in many cases be insufficient to apply previous state- ments of time and place to an allegation following it. In an indictment for robbery, for instance, it has been held that it is not suflScient to allege that the accused made an assault on the person robbed at a certain time and place, and took the property from him ; but the taking must also be alleged to have been at that time and place.*^ And in an indictment for murder it has been held that it is not sufficient to allege that the accused, at a certain time and place, made an assault on the deceased, and feloniously struck him, but the time and place must be repeated to the stroke.'^ In an indictment for homicide it is not sufficient merely to state the day and place of the stroke, but the day and place of the death must also be stated, so that it may appear that the death was within a year and a day of the stroke, and within the jurisdiction of the court.*' And an indictment for a rescue must show the year and day both of the arrest and the rescue.'* In indictments for misdemeanors there is not the same strictness- in requiring repetition of time and place as there is in cases where the life or liberty of the prisoner is in danger. "* Thus, where a mere trespass was charged, it was held sufficient to state that the 80 Rex V. Hollond, 5 Term R. 620; State v. Bacon, 7 Vt. 219; Crichton v. People, 6 Parker, Or. R. (N. Y.) 363; Rex v. Haj-nes, 4 Maule & S. 214; State V. Welker, 14 Mo. 398; State v. Beckwith, 1 Stew. (Ala.) 318; Roberts v. State, 19 Ala. 526; State v. Lyon, 45 N. J. Law, 272. 81 2 Hale, P. C. 178; 2 Hawk. P. C. c. 23, § 88; Wingfield's Case, Cro. Ellz. 739; State v. WiUls, 78 Me. 70. But see Com. v. Bugbee, 4 Gray (Mass.) 206. 82 2 Hale, P. C. 178, 180; 2 Hawk. P. O. c. 23, § 88. But see Com. v. Barker,. 12 Cush. (Mass.) 186. S3 2 Hale, P. 0. 179; 2 Hawk. P. C. c. 25 § 77; Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761; State v. Orrell, 1 Dev. (N. C.) 139; State v. Blakeney, 33- S. C. Ill, 11 S. E. 637; ante, p. 239. But see Davidson v. State, 135 Ind. 254, 34 N. E. 972; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122. 84 2 Hawk. P. O. c. 25, § 77. SB 1 Chit. Cr. Law, 221; 2 East, P. C. 780; 2 Hale, P. 0. 178: Chamling- ton's Case, Cro. Jac. 345. Ch. 7] REPEATING TIME AND PLACE "THEN AND THEEE." 253 accused, at a certain place and time, made an assault on the prose- cutor, and beat him, without saying that he beat him at that time and place, because the time and place mentioned in the beginning refer to all subsequent averments.*' In some states the rule has been disregarded even in cases of felony; *'' and under statutes pro- viding that it shall be suflScient if the indictment contain the charge against the accused expressed in a plain, intelligible, and explicit manner, it has been held that the strict rule of the common law does not apply.** In repeating the place it is not necessary to repeat the whole description. Where the town and county, for instance, have once been mentioned, it will be sufficient to afterwards use the words "at [the town] aforesaid." *° And the same is true in re- peating time. And generally, after the time and place have once been named with certainty in the statement, it is sufficient to after- wards refer to them by the words "then and there," which will have the same effect as if the time and place were repeated in full.*" An indictment for murder, for instance, instead of alleging that the accused, "on the day of , A. D. 1895, at , in the county of , made an assault, and on the day of , A. D. 1895, at in the county of , feloniously struck" the deceased, may allege, after stating the assault, that he "then and there struck," etc. This, of course, cannot apply where two times or places have been previously mentioned, because it would be 86 2 Hale, P. C. 178; Stout v. Com., 1 Serg. & R. (Pa.) 127. And in an in- dictment for a forcible entry it is enough to state that the accused entered and dispossessed, without a second statement of time and venue. Baude's Case, Cro. Jac. 41. 87 Com. V. Bugbee, 4 Gray (Mass.) 206; Com. v. Barker, 12 Ciish. (Mass.) 186; State v. Price, 11 N. J. Law, 210. 88 State V. Cherry, 3 Murph. (N. C.) 7. 89 People V. Baker, 100 Cal. 188; 34 Pac. 649. 90 2 Hale, P. C. 178; 1 Chit. Cr. Law, 220; 2 Hawk. P. 0. c. 25, § 78; Id. c. 23, § 88; Jacobs v. Com., 5 Serg. & R. 315; State v. Cotton, 4 Post (N. H.) 143; Stout V. Com., 11 Serg. & R. (Pa.) 177; State v. Johnson, 1 Walk. (Miss.) 392; State v. Ferry, 61 Vt 624, 18 Atl. 451; State v. Bacon, 7 Vt. 219; State V. Bailey, 21 Mo. 484; State v. Williams, 4 Ind. 235; Davidson v. State, 135 Ind. 254, 34 N. E. 972; State v. Blakeney, 33 S. C. Ill, 11 S. S. 637; Palmer V. People, 138 lU. 356, 28 N. E. 130. 254 PLEADING THE ACCUSATION. [Ch. 7 uncertain to which the words referred.*^ Nor can it apply where it is necessary to show the particular act to hare been done, not merely on the day named before, but at a certain time of that day.'* The word "immediately" is too uncertain an allegation when time constitutes part of the offense, and therefore, where, on an indict- ment for robbery, the special verdict found the assault, and then in a distinct sentence that the prisoners then and there immediately took up the prosecutor's money, this was held to be insufficient to fix the prisoners with the offense of robbery, because of the great latitude of the word "immediately." "^ Nor is the word "instantly" or "whilst" equivalent to the words "then and there." ** And it is said that the word "being" (existens) will, unless necessarily con- nected with some other matter, relate to the time of the indictment, rather than of the offense. It was therefore held that an indict- ment alleging a forcible entry on land "being" the prosecutor's free- hold, without saying "then being," was insufficient. "^ If the indictment allege that the defendant feloniously and of malice aforethought made an assault, and with a certain sword, etc., then and there struck, the previous omission will not be mate- rial; for the words "feloniously and of malice aforethought," pre- viously connected with the assault, are by the words "then and there" sufficiently applied to the murder.®* In a Massachusetts case, an indictment for manslaughter, which, after averring an »i 2 Hale, P. O. 180; Jane v. State, 3 Mo. 45; Connor v. State, 29 Fla. 455, 10 South. 891; State v. McCracken, 20 Mo. 411; State v. Hayes, 24 Mo. ^o6; Com. V. Goldstein, 114 Mass. 272; State v. Jackson, 39 Me. 291; Bell v. Com., 8 Grat. (Va.) 600. 82 Thus, in an indictment on a statute for having in possession 10 or more counterfeit bank bills, it is necessaiy to show that the defendant had them in his possession at the same time of the day, and an averment that he had them In his possession on the same day is not sufficient. Edwards v. Com., 19 Pick. (Mass.) 124. •a 1 Chit. Cr. Law, 220; Rex v. Francis, 2 Strange, 1015. 9* Reg. V. Brownlow, 11 Adol. & E. 119; Reg. v. Pelham, 8 Q. B. 959; Lester V. State, 9 Mo. CG6; State v. Lakey, 65 Mo. 217. SB 1 Chit. Cr. Law, 220; Rex v. Ward, 2 Ld. Raym. 1467; Bridge's Case, Cro. Jac. 639. But see Rex v. Boyall, 2 Burrows, 832. 86 1 Chit. Cr. Law, 220; Heydon's Case, 4 Coke, 41b; 1 East, P. 0. 346; Buckler's Case, 1 Dyer, 69a. Ch. 7] HEPEATING TIME AND PLACE — "THEN AND THEEB." 255 assault at a certain time and place, alleged tliat the accused then and there struck the deceased, "giving" him a mortal wound, etc., was held sufficient."^ In some cases the words "then and there" are even more certain than a repetition of the day and year, for the latter will not be sufficient where, in order to complete the offense, connected acts must be shown to have been done at the same time, but the terms "then and there" must be used."* Repeti- tion of time and place in different counts is elsewhere considered." »7 Turns v. Com., 6 Mete. (Mass.) 224. »s 1 Chit Cr. Law, 221; Rex v. Williams, 1 Leach, Crown Oas. 529; Com. V. Butterick, 100 Mass. 12; Com. v. Goldstein, 114 Mass. 2T2. »» Ante, p. 142; post, p. 298. 256 PLEADING THE ACCUSATION. [^Ch. 8 CHAPTER Vm. PliEADING— THE ACCUSATION (Continued). 98. Indictments on Statutes. INDICTMENTS ON STATUTES. 98. An indictment based on a statute is subject to the following rules: (a) It is generally subject to the rules already stated as applying to indictments at common law. (b) It need not recite the statute upon which it is founded. (c) It must state all the facts and circumstances w^hich go to make up the offense as defined in the statute, so as to bring the defendant pre- cisely -within it; and the fact that it concludes "contra formam statuti" w^ill not aid a defect in this respect. {d) The exact offense defined in the statute must be described with precision and certainty, and it is therefore generally necessary to use the tech- nical terms employed in the statute. Where, how^ever, the offense may be exactly described by other expressions they may be used. It is al^ways safer to follow^ the language of the stat- ute. (e) It is not alw^ays sufficient merely to follow^ the language of the statute, ■vrithout more. It will be sufficient to do so if the indictment will thereby comply with rule (c) above stated, and will state the particulars of the offense suffi- ciently to meet the requirement of certainty, but not otherwise. Ch. 8] INDICTMENTS ON STATUTES. 257 (f) Where the statute on ■which an indictment is founded, or some other statute, contains excep- tions or provisos, which are not so connected with the clause defining the offense, generally called the "enacting clause," that they are a part of the description of the offense, it is not necessary to negative them; but it is otherwise if they are so connected with that clause, either by being contained in it, or by being made a part of it by reference. In treating of indictments founded on a statute, we shall only show the cases in which they differ from indictments at common law, and mention those rules which are peculiar to them. Gen- erally the rules which we have discussed as applicable to indict- ments at common law also apply to indictments on statutes. Reciting or Referring to the Statute. An indictment on a public statute need never recite the statute, — ^that is, state its date, title, contents, etc., — or by any other express reference show the particular statute upon which it is based, for the court is bound to take judicial notice of all public statutes; and, as we have seen, it is never necessary to state facts of which the court must take judicial notice.^ By recital of a statute is meant stating its contents, quoting it, referring to it by its title, etc. The statute must be counted upon, and must be pleaded; but this is very different from reciting it. By saying that the statute must be counted upon, we mean that the indictment must purport to be based upon it. This is done, as we shall see, by simply stating in the conclusion of the indictment that the offense was committed "contra formam statuti," or, as it is now generally expressed, "contrary to the form of the statute in such cases made and provided." ^ By saying that the statute must be pleaded, we lAnte, p. 165; 2 Hale, P. C. 172; 2 Hawk. P. C. c 25, § 100; Reg. v. Pugh, 6 Mod. 140; Farr v. East, Cro. Bliz. 186; Vander v. Griffith, Id. 23G; Com. V. Griffin, 21 Pick. (Mass.) 523; Com. v. Colton, 11 Gray (Mass.) 1; U. S. v. Nickerson, 17 How. 204; Com. v. Hoye, 11 Gray (Mass.) 462; Rex v. Sutton, 4 Maule & S. 542. 2 Poet, p. 309. CBIM.PKOC. — 17 258 PLEADING THE ACCUSATION. [Ch, 8 mean simply that the indictment must state the facts necessary to bring the case within the statute, not that it must expressly refer to the statute. If the indictment does recite the statute, and counts upon that particular statute, as by concluding "contrary to the form of said statute," a variance will be fatal if it is material, though not if it is immaterial; but if it concludes, "contrary to the form of the statute in such case made and provided," omitting any reference to the recital, the recital may be rejected as surplus- age, and a variance will be disregarded.^ If a statute, though unnecessarily recited, is so misrecited as to make it senseless, as where it is referred to as an act entitled an act concerning the manufacture and sale of "spritious and intoxitating" liquor, the indictment will be bad.* If, in any case, an indictment can be founded on a private statute, it must set out the act specially, since the court can take judicial notice of public acts only.' It is never necessary to indicate in the indictment the particular statute, or section of the statute, on which it is founded. It is only necessary to set out such facts as bring the case within the provisions of some statute which was in force when the act was done, and when the indictment was found ; and if the facts properly laid in the indictment, and found by the verdict, show that the act done was a crime punishable by any statute, it is sufficient to warrant the court in rendering judgment." Where by different statutes, or by different sections of the same statute, there is a gradation of offenses of the same species, as in the various degrees of punishment annexed to the offense of malicious burning of buildings, or in the various grades of the offense of larceny, it is not necessary to set forth a negative allega- tion that the case is not embraced in some other statute or section 8 2 Hale, P. C. 172, 173; 2 Hawk. P. O. c. 25, § 104; Piatt v. Hill, 1 Ld. Raym. 382; Rex v. Hill, Cro. Car. 232; Rex v. Marsack, G Term R. 773; Peo- ple V. Walbridge, 6 Cow. (N. Y.) 512; Reg. v. Westley, Bell, Crown Cas. 193; Com. V. Burke, 15 Gray (Mass.) 408; note 4, infra, * Com. V. , 6 Gray (Mass.) 489; Murray v. Fitzpatrick, 3 Calnes (N. Y.) 38. 1 Chit Cr. Law, 277; 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 103; Goshen & S. Turnpike Co. v. Sears, 7 Conn. 92; State v. Cobb, 1 Dev. & B. (N. 0.) 115. • Com. V. Grlffln, 21 Pick. (Mass.) 523; Com. v. Thompson, 108 Mass. 461. Ch. 8] INDICTMENTS ON STATUTES. 259 than that which, upon the evidence, may be found to apply, and by virtue of which the punishment is to be imposed.' So if certain acts are by force of the statute made punishable with greater severity when accompanied with certain aggravating circumstances, thus creating two grades of crime, it is no objection to an indict- ment that it charges the acts which constitute the minor offense, unaccompanied by any averment that the aggravating circum- stances did not exist. In such cases the offense charged is to be deemed the minor offense, and punishable as such.' On this prin- ciple jt has been held that, where there are two statutes, one punishing the offense of breaking in the nighttime into an oflftce adjoining a dwelling house, and the other that of breaking in the nighttime into an office not adjoining a dwelling house, each im- posing a similar punishment, it is not necessary to state in the indictment whether or not the office was adjoining a dwelling house.' In no case is it necessary to state the time when the statute was enacted so that it may appear on the face of the indictment that it was enacted before the offense was committed. This is also a matter of which the court will take judicial notice.^' Description of the Offense. It is the rule that all indictments upon statutes must state all the facts and circumstances which go to make up the offense as defined in the statute, so as to bring the defendant precisely within it. "I take it for a general rule," it is said by Hawkins, "that, unless the statute be recited, neither the words 'contra formam statuti' nor any periphrasis, intendment, or conclusion will make good an indictment, which does not bring the fact prohibited or commanded, in the doing or not doing of which the offense con- sists, within all the material words of the statute." ^^ Offenses 7 Lamed v. Com., 12 Mete. (Mass.) 241; Com. v. Squire, 1 Mete. (Mass.) 258. State v. Kane, 63 Wis. 260, 23 N. W. 488; Com. v. Thompson, 108 Mass. 461. 8 Lamed v. Com., supra; Com. v. Cox, 7 Allen (Mass.) 577. » Larned v. Com., supra. And see Com. v. Hamilton, 15 Gray (Mass.) 480; State V. Kane, 63 Wis. 260, 23 N. W. 488. But see Rex v. Marshall, 1 Moody, Crown Cas. 158. 10 Reg. V. Westley, Bell, Crown Cas. 193; Com. v. Keefe, 7 Gray (Mass.) 332; People v. Reed, 47 Barb. (N. Y.) 235; post, p. 261. 11 2 Hawk. P. C. c. 25, § 110; 2 Hale, P. C. 170; 2 East, P. C. 985; Brown 260 PLEADING — THE ACCUSATION. [Gh. 8 created by statute, as well as offenses at common law/'' must be accurately and clearly described in the indictment. It is a uni- versal rale that no indictment, whether at common law or under a statute, can be good if it does not accurately and clearly allege all the ingredients of which the offense is composed.^ ^ Thus, under a statute making the failure to sound the whistle or ring the bell upon a locomotive, as it approaches a highway crossing, a public offense, an indictment charging that a railroad company "did unlawfully fail and neglect to ring the bell and sound the whistle," is bad, since it charges a failure to do both acts, when either one of them would have been a compliance with the law.^* An indictment under a statute for violation of a written contract to serve as a laborer must set out the contract, and show that it was of such a character as that described in the statute.^" So, where a man was indicted for robbery "in a certain king's footway leading from London to Islinton," he was admitted to the benefit of clergy, because the statute which took it away from the crime described the place as "in" or "near a king's highway." ^' And, where a statute provided that if any person "shall, with any offensive weapon or instrument, unlawfully and maliciously assault, or shall by menaces, or in or by any forcible or violent manner, demand any goods or chattels, he shall be adjudged guilty of felony," it was held not enough to state an assaulting and men- acing with intent to rob, but that it must be alleged either that the assault was made with an offensive weapon, or that money or goods were demanded.^' And an indictment is bad if it charges the defendant with killing deer in a certain place where they are V. Com., 8 Mass. 65; State v. Kansas City, S. & M. Ey. Co., 54 Ark. 546, 16 S. W. 567; State v. O'Bannon, 1 BaUey (S. C.) 144; State v. Bagwell, 107 N. C. 859, 12 S. E. 254; UpdegrafC v. Com., 6 Serg. & R. (Pa.) 5; GUes v. State, .89 Ala. 50, 8 South. 121; State v. Jacksoa, 43 La. Ann. 183, 8 South. 440. 12 Ante, p. 153. IS D. S. V. Cook, 17 Wall. 168. 1* State V. Kansas City, S. & M. E. Co., 54 Ark. 546, 16 S. W. 567. 15 State V. Williams, 32 S. C. 123, 10 S. E. 870. 18 1 Chit. Cr. Law, 282; FuUambe's Case, Moore, 5; 1 Hale, P. C. 535. 17 1 Chit. Cr. Law, 282; Eex v. Thomas, 1 Leach, Crown Cas. 330; 1 East, P. C. 419. Ch. 8] INDICTMENTS ON STATUTES. 261 usually kept, without describing the place as "inclosed," as in the statute; ^^ or with unlawfully killing fish, without adding, as in the statute, "without the consent of the owner of the water;" ^* or with having a gun in his house, when the words of the statute are, "use to keep a gun in his house;" ^° or with insuring a ticket in the lottery without saying "the state lottery." ^^ Where the scienter, or knowledge of particular facts, is by the statute expressly or impliedly made an essential ingredient of the offense, it must always be expressly alleged in the indictment.''^ "Where a general word is used, and afterwards more special terms, defining an oflfense, an indictment charging the offense must use the most special terms; and if the general word is used, though it would embrace the special term, it is inadequate." ''^ If a statutory offense is correctly described in the indictment in the words of the statute, or their equivalent, or if the acts con- stituting it are stated, the indictment will not be vitiated by the fact that a name is given to the offense which is technically wrong, for the name may be rejected as surplusage.^* It is said by Chitty that where the statute is recent it is usual to allege expressly that the offense was committed after the making of the statute, but where the statute is ancient this is not usual; and, he adds, it does not seem to be necessary in any case."* It is IS Reg. V. Moore, 2 Ld. Eaym. 791. i» Rex V. Mallinson, 2 Burrows, 679. 20 Rex V. Lewellin, 1 Show. 48. 21 Rex V. Trelawney, 1 Term R. 222. 2 2 Ante, p. 192; Gatewood v. State, 4 Ohio, 386. asWhart. Cr. PI. & Prac. § 223; State v. Bryant, 58 N. H. 79; State v. Raiford, 7 Port. (Ala.) 101; Rex v. Cook, 1 Leach, 105; State v. Plunket, 2 Stew. (Ala.) 11; ante, pp. 159, 161. "When a statute uses a nomen generalis- slmum as such (e. g. cattle), then a particular species can be proved; but when the statute enumerates certain species, leaving out othess, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the intention of the legislature to use it as such." Whart. Cr. PI. & Prac. § 237; Rex v. Welland, Russ. & R. 494; Rivers v. State, 10 Tex. App. 177. 24 U. S. v. Elliot, 3 Mason, 156, Fed. Cas. No. 15,044; U. S. v. Lehman, 39 Fed. 768; State v. Shaw, 35 Iowa, 575; State v. Davis, 41 Iowa, 311; State V. Wyatt, 76 Iowa, 328, 41 N. W. 31; ante, p. 181. 2B 1 Chit. Or. Law, 285. 262 PLEADING THE ACCUSATION. [Ch. 8 now well settled that it is not necessary."' The indictment, as we have seen, should state the time of the offense, and it would not do for the time to be laid prior to the enactment of the statute, for it would then appear on the face of the indictment that the act was not prohibited when committed. Where a particular time is limited for the prosecution, the indictment, as we hare seen, need not expressly allege that the prosecution was commenced within that period, but this should appear on the face of the pro- ceedings.^' If the indictment shows on its face that the prosecu- tion is barred, by the weight of authority, it is bad.** Necessity to Follow Language of Statute, It is generally necessary, subject to exceptions which we shall explain, not only to set forth all the facts and circumstances which go to make up the offense as defined in the statute, but also to pursue the precise and technical language of the statute in which they are expressed. If the words are technical, and have no equiv- alent, it is well settled that no other words can be substituted for them, for no others are exactly descriptive of the offense." 28 Ball V. Cobus, 1 Burrows, 366; State v. Chandler, 2 Hawks (N. O.) 439; ante, p. 259. 27 Lee V. Clarke, 2 East, 333; Eex v. Steventon, Id. 302. 2 8 Ante, p. 240. 2 8 1 Chit Cr. Law, 283; 2 Hale, P. C. ITO; 2 Hawk. P. C. c. 25, § 110; Rex V. Johnson, 2 Leach, Crown Cas. 1107; U. S. v. Bachelder, 2 Gall, 15, Fed Cas. No. 14,490; U. S. v. Lancaster, 2 McLean, 431, Fed. Cas. No. 15,556; U. S. V. Britton, 107 U. S. 655, 2 Sup. Ct 512; U. S. v. Staats, 8 How. 41; Com. V. Twitchell, 4 Cush. (Mass.) 74; Com. v. Burlington, 136 Mass. 435; State V. Brown, 4 Port. (Ala.) 410; State v. Brilly, 8 Port. (Ala.) 472; Mason v. State, 42 Ala, 543; Com. v. Walters, 6 Dana (Ky.) 291; Com. v. Turner, 8 Bush (Ky.) 1; Respublica v. Tryer, 3 Yeates (Pa.) 451; Hamilton v. Com., 3 Pen. & W. 142; UpdegrafC v. Com., 6 Serg. & R. (Pa.) 5; State v. Shuler, 19 S. C. 140; State v. Casados, 1 Nott & McC. (S. C.) 91; State v. Raines, 3 McCord (S. C.) 533; Chambers v. People, 4 Scam. (111.) 351; Whiting v. State, 14 Conn. 487; State v. Cady, 47 Conn. 44; State v. Rougher, 3 Blackt (Ind.) 308; State v. Rust, 35 N. H. 438; State v. Keneston, 59 N. H. 36; State v. Perkins, 63 N. H. 368; People v. Allen, 5 Denio (N. Y.) 76; Phelps v. People, 72 N. Y. 334; People v. West, 106 N. Y. 293, 12 N. E. 610; State v. Stanton, 1 Ired. (N. C.) 424; Ike v. State, 23 Miss. 525; State v. Hover, 58 Vt. 496, 4 Atl. 226; Sharp v. State, 17 Ga. 290; Jackson v. State, 76 Ga. 551; Com. V. Hampton, 3 Grat. (Va.) 590; Howel v. Com., 5 Grat. (Va,) 664; State C'h. 8] INDICTMENTS ON STATUTES. 263 So an indictment for rape must use the word "ravished," contained in the statute, and no expression of force and carnal knowledge will supply its omission.'" And, by the better opinion, an indict- ment under a statute using the word "willfully" or "maliciously" or "wantonly," or two or more of such terms, in defining the offense, must also use the same term or terms, though at common law that precise term is not necessary, but may be supplied by others con- veying the same idea.'^ The term "maliciously" will not supply the place of the term "willfully," or the term "wantonly," used in a statute to define an offense.' '^ So, if the term "unlawfully" ia used in a statute to define the offense, it is, by the weight of opinion, absolutely essential to use it in an indictment thereon." All that is required in any indictment, whether under a statute or at common law, is that it shall describe the offense with suffi- cient certainty, as we have explained that termj that it shall state everything necessary to constitute the offense, and state it with certainty. To do this, technical words used in the statute to describe the offense must be used in the indictment. This is the reason, and the only reason, why the technical language of the statute must be followed. If it were necessary to use the exact language of the statute, other than the technical terms, in order to V. Buster, 90 Mo. 514, 2 S. W. 834; State v. Davis, 70 Mo. 467; Kinney v. State, 21 Tex. App. 348, 17 S. W. 423; People v. Murray, 67 Cal. 103, 7 Pac. 178; People v. Burk, 34 Cal. 661. 8 2 Hawk. P. G. c. 23, §§ 77, 110. 31 2 Hale, P. C. 87; 2 Hawk. P. C. c. 25, § 110; 3 Inst. 167; Rex v. Davis, 1 Leach, Crown Cas. 493; Lembro & Hamper's Case, Cro. Eliz. 147; Anon., Id. 201; Roberts v. Trenayne, Cro. Jac. 508; U. S. v. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490; State v. Parker, 81 N. C. 548; State v. Massey, 97 N. C. 465, 2 S. E. 445; State v. Morgan, 98 N. C. 641, 3 S. B. 927; State v. Gove, 34 N. H. 510; State v. Nickleson, 45 La. Ann. 1172, 14 South. 134. But see, contra, Chapman v; Com., 5 Whart (Pa.) 427; State v. Brown, 41 La. Ann. 345, 6 South. 541. 32 Rex V. Davis, 1 Leach, Crown Cas. 492; 1 Bast, P. C. 412. And see the cases above cited. 88 2 Hawk. P. C. c. 25, § 96; Rex v. Ryan, 2 Moody, Crown Cas. 15; Rex V. Turner, 1 Moody, Crown Cas. 239; Com. v. Twitchell, 4 Cush. (Mass.) 74. Contra, where there is a statute providing that the words of a statute defin- ing the offense need not be strictly followed. Davis v. People, 151 U. S. 262, 14 Sup. Ct. 328. 264 PLEADING THE ACCUSATION. [Ch. 8 fully and certainly describe the offense as defined in the statute, then it would be necessary to use it; but this is not always the case. Technical terms must generally be used, because no other terms exactly express their meaning. Other expressions need not necessarily be followed with verbal accuracy. If the words sub- stituted for them express the same meaning, and are an exact equivalent, they are sufficient.'* It has been held, for instance, that in an indictment against an accessory before the fact in murder the words "excite, procure, and move" were equivalent to "com- mand, hire, or counsel," which were used in the statute." So, in an indictment for obtaining money by false pretenses, it is not necessary to allege, as in the statute, that the defendant "falsely pretended," but it may be alleged that he pretended, and then that the pretenses were false.^° And under a statute punishing the disinterment and removal of "the remains of any dead person" it is sufficient to charge disinterment and removal of "the dead body of" a person named.* ^ And an indictment may use the word "violently" instead of "forcibly," as in the statute.'* We have already seen that where a statute employs a general term, and afterwards more special terms, defining the offense, an indictment which uses the general term only is bad, though in its meaning it comprehends the special term.*° While, as we have seen, it is not always absolutely necessary to follow the exact language of the statute in describing the offense, 8 4 U. S. V. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490; State v. Little, 1 Vt 331; Rex v. Fuller, 1 Bos. & P. 180; State v. Hickman, 8 N. J. Law, 299; TuUy V. People, 67 N. Y. 16; State v. Fames, 39 La. Ann. 986, 3 South. 93; People V. Enoch, 13 Wend. (N. Y.) 172; State v. McGaffin, 36 Kan. 315, 13 Pac. 560; State v. Keen, 34 Me. 500; Eckhardt v. People, 83 N. Y. 462; Wil- liams V. State, 64 Ind. 553; State v. Welch, 37 Wis. 196; McCutcheon v. People, 69 IlL 601; State v. Shaw, 35 Iowa, 575; State v. De Lay, 30 Mo. App. 357; State v. Watson, 65 Mo. 115; Roberts v. State, 55 Miss. 421; State V. Thome, 81 N. C. 558. It is sufficient to charge shooting "on" a highway, instead of "in" a highway. Woods v. State, 67 Miss. 575, 7 South. 495. 36 1 Hale, P. C. 521, 522; McDaniel's Case. Fost. Crown Cas. 130; 1 And. 195. S8 Rex V. Alrey, 2 East, 30; Rex v. Perrott, 2 Maule & S. 379. 87 state V. Little, 1 Vt 331. 8 8 U. S. V. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490. 89 Ante, pp. 161, 223; note 23, sipra. Ch. 8] INDICTMENTS ON STATUTES. 265 it is always safer to do so, for by substituting other words and plirases there is danger of failing to describe the offense by em- ploying terms which the court may not deem equivalent to those used in the statute. A few illustrations will show how great this danger is. An indictment charging that the defendant had posses- sion of tools for the purpose of counterfeiting current silver coins "of this state and of the United States" was held bad because the statute used the words, "which shall be made current by the laws of this or the United States," since "money may be current in the United States that is not made so by any law." *° And an indictment charging the defendant to have caused a vessel to sail away, with intent that she "should be employed" in the slave trade, was held bad because the statute used the words "with intent to employ," which import an intent on the defendant's part to employ her, whereas an intent that she should be employed by a third person would come within the indictment.*^ So, where a statute punished as a felony the shooting at a person "willfully and maliciously," and the indictment used the words, "unlawfully, maliciously, and feloniously," it was held bad.*^ When Sufficient to Follow Language of Statute. It is often said, and sometimes without qualification, that an indictment on a statute is sufficient if it sets out the offense in the language of the statute; but this is by no means true in all cases, for the rule that an indictment must state all the facts necessary to constitute the offense, and must state them with certainty, ap- plies to indictments on statutes as well as to indictments at com- mon law. There is no exception to this rule, nor, under most of our constitutions, can there be any; and any rule that may be laid down in the text-books, or opinions of the judges, must be taken to be subject to it.** "It is an elementary principle of criminal *o state v. Bowman, 6 Vt. 594. 247; Davis v. State, 39 Md. 355. Ch. 8] INDICTMENTS ON STATUTES. 269 statute, allege that the money was the property of the person robbed, or of some third person, and that it was carried away by the defendant; since these facts are necessary to constitute the offense intended to be punished. The statute does not set forth, nor is it intended to set forth fully, directly, and expressly, all that is necessary to constitute the offense." It is sufficient to pursue the very words of the statute if, by doing so, the act in the doing of which the offense consists is fully, directly, and expressly alleged, without any uncertainty or am- biguity. In many cases no allegation of anything more than the words of the statute ex vi terminorum import is necessary in order to show that the defendant has committed the offense, and to charge the offense with certainty. Here it is always sufficient to charge the offense in the words of the statute.^' The indictment is sufficient in these cases, not merely because it uses the words of the statute, but because, in using those words, it states everything necessary to constitute the offense, and states it with sufficient cer- tainty. Thus, under a statute declaring it an offense to "keep a house of ill fame, resorted to for the purpose of prostitution or lewdness," it was held sufficient to follow the language of the stat- ute, without further alleging, according to precedents, that the house was resorted to by divers citizens, men as well as women, and that the defendant kept and maintained said house for her own lucre and gain.^^ So, where a statute punishes "every person, who shall willfully and maliciously administer poison" to any horse, the lan- guage of the statute is sufficient, because those words ex vi termi- norum import all that is necessary to a legal description of the offense. It need not be further averred that the poison was ad- ministered with intent to kill or injure the horse, or with any 6 Com. V. Clifford, 8 Cush. (Mass.) 215. But see Rex v. Rosslter, Jebb, Crown Gas. 50. 67 2 Hawk. P. 0. c. 25, § 111; Com. v. Ashley, 2 Gray (Mass.) 357; U. S. v. Mills, 7 Pet 142; People v. Taylor, 3 Denio (N. Y.) 91; People v. West, 106 N. X. 293, 12 N. E. 610; State v. Click, 2 Ala. 26; State v. Scribaer, 2 Gill & J. (Md.) 246; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Kesslering, 12 Mo. 565; Com. v. Hai-ris, 13 Allen (Mass.) 534; HufCman v. Com., 6 Rand. (Va.) 685; U. S. v. Gooding, 12 Wbeat. 460; State v. Lockbaum, 38 Conn. 400; State V. Jackson, 39 Conn. 229. 8 Com. v. Ashley, 2 Gray (Mass.) 356. 270 PLEADING THE ACCUSATION. [Ch. 8 other intent than the words "willfully and maliciously" import, nor that the horse was injured or killed."" Where several circumstances are mentioned disjunctively in a statute, any one of which is sufficient to constitute the offense, it is sufficient, following the language Com. V. Clair, 7 AUen (Mass.) 527. ** Rex V. Kettle, 3 Chit. Cr. Law, 947a. «6 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see Baldwin v. People, 1 Scam. (111.) 304, where It was held that proof of stealing a mare or gelding would sustain a charge of stealing a horse. *8 See State v. M'Lain, 2 Brev. (S. C.) 443. *i Rex V. Halloway, 1 Car. & P. 128; Rex v. Edwards, Russ. & R. 497; Rough's Case, 2 East, P. C. 607; Com. v. Beaman, 8 Gray (Mass.) 497. is State V. Cockfield, 15 Rich. (S. C.) 316. <8 Ante, p. 182, Ch. 10] PLEADING AND PROOF VABIANCE. 337 80 it is if described as a sheep and proved to be a lamb. And where a party was indicted for stealing one bushel of oats, one bushel of chaff, and one bushel of beans, and the proof was that they were mixed together when stolen, the variance was held to be fatal. Here the property was described with unnecessary minute- ness and particularity, but, being so described, the proof must correspond with it." '"' So where an indictment charged the lar- ceny of two "barrels of turpentine," and it was not shown that the turpentine was in barrels; °^ and where an indictment charged the larceny of a number of "bottles" of liquor, and the proof showed that the defendant drew the liquor from casks into bottles which he took with him for the purpose; '"' and where an indictment charged that the defendant had in his possession, with intent to sell the same "one pint of adulterated milk, to which milk water had been added," and the proof showed that the milk in question was adulterated by adding water to pure milk,"' — the variance was in each case held fatal. The fact that the indictment, in its description of property, 'is not sustained as to all the articles will not be fatal if it is sustained as to enough to make out the offense. An indictment for stealing two horses would be sufflciently supported to warrant a, conviction, if the evidence corresponded with the description as to one of them, though it varied as to the other, for the larceny of one is sufficient to make out the offense."* In like manner, though it is often necessary that the number or quantity of property shall be stated, in order to meet the requirement of certainty," ° it is not necessary to prove the whole number or quantity, if, on the rejection of the part not proved, the offense will be complete."' On indictment for 50 Alkenbrack v. People, 1 Denio (N. Y.) 80. 01 State V. Moore, 11 Ired. (N. C.) TO. 02 Com V. Gavin, 121 Mass. 54. »» Com. V. Luseomb, 130 Mass. 42. 04 Haskins v. People, 16 N. Y. 344; Com. v. Eastman, 2 Gray (Mass.) 76; People V. Wiley, 3 Hill (N. Y.) 194; State v. Martin, 82 N. 0. 672. Ante, p. 225. 08 State V. Cameron, 40 Vt. 555; Com. v. Williams, 2 Gush. (Mass.) 583; Com. V. O'Connell, 12 Allen (Mass.) 452; State v. Fenn, 41 Conn. 590; State y. Williams, 10 Humph. (Tenn.) 101; State v. Martin, 82 N. 0. 672; Lorton v. State, 7 Mo. 55; State v. Hennessey, 23 Ohio St. 339. cniM.PROC— 33 338 PLEADING AND PROOF. [Ch. 10 usury, for instance, it is not necessary to prove the exact sum laid in the indictment."^ Nor is it necessary, on a prosecution for extortion, to prove the exact sum alleged to have been extorted."' In like manner, it is often necessary — always in indictments for larceny— to state the value of the property with reference to which the offense was committed, but, in general, it is not necessary to prove the whole value as stated, provided the value proved is sufficient to constitute the offense.°° Where, however, value to a particular amount is necessary to constitute the offense, and the value is ascribed to many articles of different kinds, collectively, the offense must be made out as to every one of those articles, for the grand jury has only ascribed that value to all the articles col- lectively.** Where the articles are of the same kind, and they are thus valued collectively, the rule does not apply. Thus where an indictment for stealing sundry bank notes, or sundry gold coin, or a certain number of bushels of oats, etc., states an aggregate value, it is suffi- cient to prove the la,rceny of less than the quantity or number alleged, if a sufficient value is shown.*^ Ownership of Property. We have seen that indictments for larceny, embezzlement, false pretenses, malicious mischief, or other offenses in relation to per- sonal property, or for burglary, arson, or other offenses in relation to real property, must state the ownership of the property or the premises.'^ The allegation of ownership is essential to the charge, and must be supported by the proof. Any material variance will 07 Rex V. Glllham, 6 Term E. 265. 68 Rex V. Burdett, 1 Ld. Raym. 149; Rex v. Gillham, 6 Term R. 267. BO Com. V. McKenny, 9 Gray (Mass.) 114; Rex v. Carson, Russ. & R. 303; State V. Harris, 64 N. C. 12T. 80 Rex V. Forsyth, Russ. & R. 274; Duppa v. Mayo, 1 Saund. 286; Pinkney V. Inhabitants of East Hundred, 2 Saund. 379; Hope v. Com., 9 Mete. (Mass.) 134; Collins v. People, 39 111. 233; Com. v. La very, 101 Mass. 207; Com. v. Falvey, 108 Mass. 304; State v. Longbottoms, 11 Humph. (Tenn.) 39; Shep- pard V. State, 42 Ala. 531; ante, p. 220. «i Com. V. O'Connell, 12 Allen (Mass.) 451; Com. v. Grimes, 10 Gray (Mass.) 470; Lamed v. Com., 12 Mete. (Mass.) 240; State v. Taunt. 16 Minn. 109 (Gil. 99); ante, p. 226. •2 Ante, p. 227. Ch. 10] PLEADING AND PEOOF VARIANCE. 339 be fatal. We have already explained how ownership must be alleged, and in doing so have shown what will constitute a variance, and collected some of the cases on the subject.'* Where the ownership of property is not in any way material, it not only need not be stated, but, if stated, it need not be proved, but may be rejected as surplusage."* This rule does not apply where the allegation of ownership is a part of the description of the offense. Here, though unnecessarily alleged, it is material, because descriptive of that which is material, and cannot be rejected as surplusage." On a trial for conspiracy to commit robbery, if the indictment alleges possession of the property intended to be stolen in one person and the title in another, both allegations must be proved, though the latter was unnecessary."* Names and Description of Third Persons. When it is necessary to name or describe third persons in the indictment,"^ they must be named or described accurately. A material error in the names of third persons is much more serious than a mistake in the name of the accused. A mistalie in the name of the accused, as we have seen, can only be objected to by a plea in abatement, the effect of which is only to delay the trial."' A material variance in the name of a third person, however, is in the description of the offense, and will be sufficient ground for arrest- ing judgment, when the objection appears on the face of the indict- ment, or if it appears from the evidence it will cause an acquittal." «s Ante, p. 227, and cases there cited. 8* Pye's Case. 2 East, P. C. 7S5; Reg. v. Newboult, L. R. 1 Crown Cas. 344; U. S. V. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Stevens v. Com., 4 Leigh (Va.) 683; Rivers v. State, 10 Tex. App. 177. 8 5 Com. V. "Wade, 17 Pick. (Mass.) 399. 86 Ward V. State (Tex. Cr. App.) 21 S. W. 250. 6T Ante, p. 231. 68 Ante, p. 149. 89 2 Hawk. P. O. c. 25, § 72; 1 East, P. C. 514; 1 Chit. Or. Law, 213, 216; Graham v. State, 40 Ala. 659; Lewis v. State, 90 Ga. 95, 15 S. E. 697; Os- borne V. State, 14 Tex. App. 225; Owens v. State (Tex. Cr. App.) 20 S. W. 558; State v. Sherrill, 81 N. C. 550; State v. English, 67 Mo. 136; State v. Reyn- olds, 106 Mo. 146, 17 S. W. 322; Humbard v. State. 21 Tex. App. 200, 17 S. W. 126; Cronin v. State, 30 Tex. App. 278, 17 S. W. 410; Rex v. Berri- man, 5 Car. & P. 601; U. S. v. Howard, 3 Sumn. 12, Fed. Gas. No. 15,403; 340 PLEADING AND PROOF. [Ch. 10 As we have seen, if the names of third i)ersons are unknown, they may be described as persons to the grand jurors unknown; ■"• but if a person is so described, and it appears that his name was in fact known, the variance will be fatal.' ^ By the weight of authority, where a person is described as unknown, and it appears that his name could have been ascertained by the exercise of reasonable diligence, this will constitute a variance.''' A third person, like Reg. V. Wilson, 1 Denison, Crown Cas. 284; Timms v. State, 4 Cold. (Tenn.) 138; Rex V. Norton, Russ. & R. 509; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469; State V. Bell, 65 N. C. 313; State v. Scurry, 3 Rich. (S. C.) 68; State v. Trapp, 14 Rich. (S. C.) 203; State v. Owens, 10 Rich. (S. 0.) 169. Name of the owner of the premises on indictment for arson or burglary, or larceny from the house. Com. v. Wade, 17 Pick. (Mass.) 398; Rex v. White, 1 Leach, Crown Cas. 252; State v. Rushing, 2 N. & McCord (S. C.) 560; State v. Elli- son, 58 N. H. 325; Graham v. State, 40 Ala. 659. But see Com. v. Price, 8 Leigh (Va.) 757. Name of purchaser on indictment for unlawful sale of in- toxicating liquors. Com. v. Shearman, 11 Cush. (Mass.) 546; Com. v. Brown, 2 Gray (Mass.) 358. Name of the owner or builder of a railroad on indictment for obstructing an engine passing thereon. Com. v. Pope, 12 Cush. (Mass.) 272. Name of woman on indictment for rape, incest, etc. Taylor v. Com., 20 Grat. (Va.) 825; Owens v. State (Tex. Cr. App.) 20 S. W. 558. Name of person to whom rooms were rented for gaming. Cronin v. State, 30 Tex. App. 278, 17 S. W. 410. Name of person libeled or slandered. Humbard v. State, 21 Tex. App. 200, 17 S. W. 126. Name of person intended to be defrauded. State v. Reynolds, 106 Mo. 146, 17 S. W. 322; note 16, supra; ante, pp. 190, 191. Name of deceased, or person assaulted, on indictment for murder or assault. Hardin v. State, 26 Tex. 113; Lewis v. State, 90 Ga. 95, 15 S. E. 697; Osborne V. State, 14 Tex. App. 425; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Timms v. State, 4 Cold. (Tenn.) 138. 10 Ante, p. 233. 71 2 Hawk. P. C. c. 25, § 71; 2 Bast, P. 0. 561; Rex v. Walker, 3 Camp. 264; Rex v. Bush, Russ. & R. 372; White v. People, 32 N. Y. 465; Barkman v. State, 8 Eng. (Ark.) 703; State v. Wilson, 30 Conn. 500; Jones v. State, 63 Ala. 27; Com. v. Tompson, 2 Cush. (Mass.) 551; Moore v. State, 65 Ind. 213; State T. Mclntire, 59 Iowa, 264, 13 N. W. 286; Jorasco v. State, 6 Tex. App. 483. But if the name was in fact unknown at the time the indictment was found, its subsequent discovery will not constitute a variance, or render the indictment defective. White v. People, 32 N. Y. 465; Com. v. Hill, 11 Cush. (Mass.) 137; Cheek v. State, 38 Ala. 227; Com. v. GaUagher, 126 Mass. 54; •State V. Bryant, 14 Mo. 340; Zellers v. State, 7 Ind. 659; Reed v. State, 16 Ark. 499. T2 2 East, P. C. c. 16, § 163; Rex v. Walker, 3 Camp. 264; Rex v. Deakin, 2 :Leach, Crown Cas. 863; Reg. v. Campbell, 1 Car. & K. 82; Reg. v. Stroud, Ch. 10] PLEADING AND PROOF VARIANCE. 341 the accused, may be described by the name by which he is usually known, and if he is well known by more than one name he may be described by either.''* And it is held generally that, if a third person is so described that it is impossible to mistake him for any other, a mistake in the name will be disregarded.^* Where the name of a person is misspelled, this will not render the indictment bad if the name as given and the correct name are idem sonans." 2 Moody, Crown Cas. 270 (but see the report of this case in 1 Car. & K. 187) Presley v. State, 24 Tex. App. 494, 6 S. W. 540; Blodget v. State, 3 Ind. 40S Contra, Com. v. Sherman, 13 Allen (Mass.) 248; Com. v. Glover, 111 Mass. 401 Wells T. State, 88 Ala. 239, 7 South. 272; Jackson v. State (Ala.) 15 South. 344. T3 Rex V. SuUs, 2 Leach, Crown Cas. 861; Eex v. Norton, Russ. & R. 510 Rex V. Berriman, 5 Car. & P. 601; Rex v. , 6 Car. & P. 408; Jones v. State, 65 Ga. 147; Taylor v. Com., 20 Grat. (Va.) 825; Com. v. Trainor, 123 Mass. 414; State v. Peterson, 70 Me. 216; State v. Bundy, 64 Me. 507; State V. Johnson, 67 N. C. 58; Rogers v. State, 90 Ga. 463, 16 S. B. 205; State v. Trance, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. E. 656; Slaughter v. State (Tex. Cr. App.) 21 S. W. 247; State v. Davis, 109 N. C. 780, 14 S. E. 55; ante, pp. 233, 234, and cases there cited. T4 Ante, pp. 233, 234. Thus, where an Indictment against Charles "Herron" alleged that he killed Lula "Herring," but expressly described the woman as the defendant's wife, the variance in her name was disregarded on motion in arrest. Herron v. State (Ga.) 19 S. E. 243. See Mason v. State, 55 Ark. 529, 18 S. W. 827. TBRex V. Foster, Russ. & R. 412; Ahitbol v. Beniditto, 2 Taunt. 401; W^Il- lams.v- Ogle, 2 Strange, 889. In the following cases the names were held idem sonans: "Gigger" (pronounced "Jigger") for "Jiger," Com. y. Jennings, 121 Mass. 47; "WUlie Fanes" for "Willis Fain," State v. Hare, 95 N. C. 682; "Chambles" for "Chambless," Ward v. State, 28 Ala. 60; "Herriman" for "Har- riman," State v. Bean, 19 Vt. 530; "Lossene" for "Lawson," State v. Pullens, 81 Mo. 387; "Banhart," "Benhaxt," "Bernhardt." for "Bernhart," State v. Witt, S4 Kan, 488; "Gidines" for "Gidings" or "Giddings," State V. Lincoln, 17 Wis. 579; "Donnelly" for "Donly," Donnelly v. State, 78 Ala. 453; "Anthron" for "Antrum," State v. Scurry, 3 Rich. (S. C.) 68; "Whyneard" for "Win- yard" (the latter being pronounced "Winnyard"), Rex v. Foster, Russ. & R. 412; "Segrave" for "Seagrave," Willams v. Ogle, 2 Strange, 889; "Usrey" for "Usury," Gresham v. Walker, 10 Ala. 370; "Benedetto" for "Beniditto," Ahit- bol V. Beniditto, 2 Taunt. 401; "McLauglin" for "McGloflin," McLauglin, v. State, 52 Ind. 476; "Petris" for "Petrie," Petrie v. Woodworth, 3 Caines (^. y.) 219; "Hutson" for "Hudson," State v. Hutson, 15 Mo. 512; "Georg" for "George," Hall v. State, 32 Tex. Cr. R. 594, 25 S. W. 292; "Blankenship" for "Blackenship," State v. Blankenship, 21 Mo. 504; "Preyer" for "Prior," Page V. State, 61 Ala. 16; "Michal" for "Michaels," State v. Houser, Busb. (N. C.) 342 PLEADING AND PROOF. [Ch. 10 But where a person has two Christian names, a transposition of them, as James Richard for Richard James , or Jules Henry for Heniy Jules , is fatal,'* except in those jurisdictions where only one Christian name is recognized, and the other, if alleged, need not be proved.'''' If the name is stated with an alias dictus, as may be done,''* it is suflScient to prove either name.'* Any variance between the name of a corporation necessarily stated in an indictment and the name as shown by the evidence will be fatal. In Massachusetts, where the "Boston & Worcester Railroad Corporation" was described as the "Boston & Worcester Railroad Company," the variance was held fatal.*" This decision certainly seems a doubtful one, in view of the other cases we have mentioned. If the name is immaterial, — that is, if it is not necessary to a statement of the offense, — it may be rejected as surplusage, and a variance therein will have no effect.*^ 410; "Fourai" for "Forrest," State v. Timmens, 4 Minn. 331 (Gil. 241); "Ban- ner" for "Dannalier," Gahan v. People. 58 111. 160. The following have been held not to be idem sonans: "M'Cann" for "M'Carn," Rex v. Tannet, Russ. & R. 351; "Shutliff" for "Shirtlifif," 1 Chit Cr. Law, 216; "Lynes" for "Lyons," Lynes v. State, 5 Port (Ala.) 236; "Woods" for "Wood," Neiderluck v. State, 21 Tex. App. 320, 17 S. W. 467; "Sedbetter" for "Ledbetter," Zellers v. State, 7 Ind. 659; "Mclnnls" for "Mc- Ginnis," Barnes v. People, 18 111. 52; "Tarbart" for "Tabart," Bingham v. Dickie, 5 Taunt. S14; "Shakepear" for "Shakepeare," Rex v. Shakespeare, 10 Bast, 83; "Comyns" for "Cummins," Oruikshank v. Comyns, 24 111. 602; "Don- nel" for "Donald," Donnel v. U. S., Morris (Iowa) 141; "Franks" for "Frank," Parchman v. State, 2 Tex. App. 228; "Amann" for "Ammon," Amann v. People, 76 111. 188; "Burral" for "Burrill," Com. v. Gillespie, 7 Serg. & R. (Pa.) 469; "Melville" for "Melvin," State v. Curran, 18 Mo. 320; "Delia" for "Del- 11a," Vance v. State, 65 Ind. 460. 7 6 Jones V. Macquillin, 5 Term R. 195; Reg. v. James, 2 Cox, Cr. Cas. 227. TT Ante, p. 234. '« Ante, p. 147. 7 8 State V. Peterson, 70 Me. 216; Haley v. State, 63 Ala. 89; Kennedy v. People, 39 N. Y. 245; Hunter v. State, 8 Tex. App. 75. 8 Com. V. Pope, 12 Cush. (Mass.) 272. 81 Savory v. Price, 1 Ryan & M. 1; 2 East, P. C. 593; Rex v. Morris, 1 Leach, Oown Cas. 109; Com. v. Hunt, 4 Pick. (Mass.) 252; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Farrow v. State, 48 Ga. 30. Ch. 10] PLEADING AND PROOF VARIANCE. 343 Where it is claimed that the true name and the name given in the indictment are idem sonans, and that, therefore, there is no variance,''' the question, when it arises in evidence on the general issue, should be submitted to the jury as a question of fact, for it is not a question of spelling, but of pronunciation, depending less upon rule than upon usage.*' If, however, the accused does not ask that the jury be allowed to pass on the question, he cannot, on appeal, object because the court decided it as a matter of law.'* On demurrer to a plea in abatement, the question is for the court.'" Ordinarily, it is not necessary to describe third persons further than by their name." If an addition, however, is stated, it must be proved, because it is descriptive of the identity of the person. Thus, in an indictment for bigamy, if the woman whom it is alleged that the defendant bigamously married is described as a widow, and the evidence shows that she was a spinster, the variance will be fatal." So where the defendant was charged with procuring Laura A. Fairbanks, "of Worcester, in said county of Worcester," in Massachusetts, to commit perjury, and the evidence showed that the Laura A. Fairbanks who testified on the occasion alleged was at the time and continued a resident of another state, the variance was held fatal, though the woman need not have been described further than by name." "Whenever a person or thing necessary to be mentioned in an indictment is described with unnecessary par- ticularity, all the circumstances of the description must be proved; for they are essential to its identity." '* sa Note 75, supra. S3 Com. V. Donovan, 13 Allen (Mass.) 571; Keg. v. Davis, 2 Denison, Crown Cas. 231, 5 Cox, Cr. Cas. 237; Girous v. State, 29 Ind. 93; Com. v. Jennings, 121 Mass. 47; State v. Thompson, 10 Mont. 549, 27 Pac. 349; Lawrence v. State, 59 Ala. 61. In Com. v. Gill, 14 Gray (Mass.) 400, the supreme court de- clined to pass on the question on exceptions after a conviction, on the ground that as the question depended on pronunciation, and could only be determined by hearing the name spoken, they had no means of determining it «* Com. v. Gill, supra. 8 6 State V. Havely, 21 Mo. 498. 88 Ante, p. 235. 8T Eex V. Deeley, 1 Moody, Crown Cas. 303. 88 Com. V. Stone, 152 Mass. 498, 25 N. E. 967. 80 Com. V. Wellington, 7 Allen (Mass.) 299; Com. v. Stone, supra. And see 344 PLEADING AND PROOF. [Ch. 10 As to Time. As we have seen, it is necessarj' in nearly all cases to allege that the offense was committed at a specified time, in order that the indictment may be certain. "' It is not necessary, however, except where time enters into the nature of the offense, to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the indictment, and within the period pre- scribed by the statute of limitations.*^ The rule applies to cases in which it is necessary "''to allege the time of the day at which the offense was committed. Thus, though an indictment for burglary at common law must state at or about what hour it was committed, so that it may appear that it was committed in the nighttime, the evidence need not correspond with the allegation further than to show that the offense was committed at some time of the night, and not in the daytime. Neither the day nor the precise hour need be proved as laid."' An indictment for acts committed on Sunday in violation of the Sunday laws, or for acts committed on any other particular day of the week on which alone they are prohibited,"* must, of course, state Wallace v. State, 10 Tex. App. 255. It was held, however, that, where an Indictment for adultery alleged that the woman with whom the defendant committed the act was over 18 years old, the allegation might be rejected as surplusage. State v. Ban (Iowa) 58 N. W. 89S. »o Ante, p. 237. •11 Chit Or. Law, 224, and authorities there cited; 3 Inst 230; Vane's Case, Kel. 14; People v. Van Santvoord, 9 Cow. (N. Y.) 655; State v. G. S., 1 Tyler (Vt.) 295; State v. Hunger, 15 Vt 291; Willams v. State, 12 Tex. App. 226; State v. Haney, 1 Hawks (N. C.) 460; State v. Swaim, 97 N. C. 462, 2 S. E. 68; Jacobs v. Com., 5 Serg. & R. (Pa.) 316; Turner v. People, 33 Mich. 363; Com. V. Harrington, 3 Pick. (Mass.) 26; Com. v. Kelly, 10 Cush. (Mass.) 69; Com. V. Sigo, 125 Mass. 210; Com. v. Dillane, 1 Gray (Mass.) 483; State v. Farrell, 22 W. Va. 759; Cook v. State, 11 Ga. 53; Jackson v. State, 88 Ga. 787, 15 S. E. 905; Clarke v. State, 90 Ga. 448 16 S. B. 96; McDade v. State, 20 Ala. 81; Palin v. State, 38 Neb. 862, 57 N. W. 743; State v. Davis, 6 Baxt (Tenu.) 605; Com. v. Davis (Ky.) 23 S. W. 218; Medlock v. State, 18 Ark. 363; State V. Bell, 49 Iowa, 440; State v. Branham, 13 S. C. 389; State v. Magrath, 19 Mo. 678. • 2 Ante, p. 239. 83 2 Hale, P. C. 179; 2 East. P. 0. 513; State v. Bancroft, 10 N. H. 105; People V. Burgess, 35 Cal. 115. »* Ante, p. 238. Ch. 10] PLEADING AND PROOF VARIANCE. 345 that the acts were done on that particular day of the week, in order to describe the offense, and must give a day of the month and year; but the charge will be supported by proof of acts done on any such day of the week before the finding of the indictment, and during the period of limitation, though not on the day of the month named.'" It has been held that the rule does not apply to continuing offenses,"" such as being a common seller of intoxicating liquors, "We take the rule to be well settled in criminal cases that when a continuing offense is alleged to have been on a certain day, and on divers days and times between that and another day specified, the proof must be confined to acts done within that time." " The same is true where the indictment alleges that the continuing offense was committed on a single day. The state cannot prove acts on any other day than that specified.** If an offense not necessarily continuing in its nature is laid with a continuando, the continuando may be rejected as surplusage."' In prosecutions for homicide the death must not only be alleged, but must be proved, to have occurred within a year and a day of the blow, or the crime is not proved,^"" but it need not be shown to have occurred at the exact time after the blow alleged in the indictment.^"' It is said that in an indictment for perjury the day on which the perjury was committed must be truly laid, and that a variance will be fatal; '"" but this is very doubtful. There seems to be no good reason why, if the offense of perjury is otherwise proved as laid, a variance should be fatal ; and in a late case it was held that a person charged with perjury in a proceeding alleged to have been 9»Com. v. Harrison, H Gray (Mass.) 308; State v. Bryson, 90 N. C. 747; Megowan v. Com., 2 Mete. (Ky.) 3; Hoover v. State, 56 Md. 584; State v. Brunker, 46 Conn. 327. As to use of "Sabbath" for "Sunday," see State v. Drake, 64 N. C. 589. ee Ante, p. 241. ■T Com. V. Briggs, 11 Mete. (Mass.) 573. »8 Com. V. El well, 1 Gray (Mass.) 463; Com. v. Traverse, 11 Allen (Mass.) 260. »» State V. Nichols, 58 N. H. 41. 100 2 Hawk. P. O. c. 23, § 90; ante, p. 239; Clark, Or. Law, 130. 101 See Cudd v. State, 28 Tex. 124, 12 S. W. 1010. 102 Whart. Cr. Ev. § 103a. 346 PLEADING AND PROOF. [Ch. 10 had on a certain day may be convicted, though it is shown that the proceeding was had on a different day.'^"' As we have seen, where written instruments are set out in the indictment, the date of the instrument as given must be proved. A variance will be fatal.^"* While the state is not limited to proof of an offense on the day named in the indictment, it is limited to a trial for one offense. "When there are several offenses, for either one of which the accused may be convicted under the indictment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that offense, unless the case is within some of the exceptions which render the proof of other distinct offenses admissible. After one offense is proved, the prosecution should not have the liberty of the wind, to blow where it listeth. The authorities are not harmonious as to when the prosecution will be required to make election in such case, or as to how long a prose- cuting officer will be permitted 'to fish with his witnesses for evi- dence,' before electing the offense for which he will ask conviction ; but it is believed that justice is best promoted by allowing the testimony for the prosecution to go far enough to identify and show one distinct offense, and when this is done to restrict the evidence to that offense." ""> As to Place. It is not only necessary to allege in the indictment that the offense was committed within the jurisdiction of the court, as that it was committed in the county, or in that particular part of the county, over which the court has jurisdiction, in order that the jurisdiction may appear on the face of the indictment; ^°* but it is also absolutely essential to prove that the offense was committed within the jurisdiction of the court. Proof that it was committed los Com. V. Davis (Ky.) 23 S. W. 218. And see Rlchey v. Com., 81 Ky. 524.' Some courts have held that, if the date is matter of record, it must be proved as laid. U. S. v. McNeal, 1 Gall. 337, Fed. Gas. No. 15,700. lot Note 27, supra. 106 King V. State, 66 Miss. 502, 6 South. 188. And see State v. Crimmins, 31 Kan. 376, 2 Paa 574; State v. Lund, 49 Kan. 209, 30 Pac. 518. 106 Ante, p. 245; People v. Barrett, 1 Johns. (N. Y.) 72. Ch. 10] PLEADING AND PROOF VAEIANCE. 347 out of the jurisdiction of the court, or an omission to prove any venue at all, will entitle the defendant to an acquittal, and the defect cannot be aided by verdict."^ If it is shown that the offense was committed within the juris- diction of the court, it is not always necessary to further prove that it was committed at the particular place within the jurisdic- tion alleged in the indictment. Some offenses, as we have seen, are local in their nature, while others are transitory. In prosecutions for the former the partic- ular place within the county must be stated, not as venue, but by way of local description, and the place must be proved as laid; but in prosecutions for the latter, place is not material, and if a particular place in the county is stated it need not be proved. Robbery,^"* assaults,^"® by the weight of authority, homicide,^^" simple larceny,^^^ disturbance of public assemblages for religious loT Moore v. People, 150 111. 405, 37 N. B. 909; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380; Justice v. State, 99 Ala. 180, 13 South. 658; Stazey v. State, 58 Ind. 514; McCombs v. State, 66 Ga. 581; Jones v. State, 58 Ark. 390, 24 S. W. 1073; State v. Hartnett, 75 Mo. 251; State v. Burgess, Id. 541; Ran- dolph V. State (Ala.) 14 South. 792; Tld-well v. State, 70 Ala. 33; Williamson V. State, 13 Tex. App. 514; Henderson v. State, 14 Tex. 503; Berry v. State (Ga.) 17 S. E. 1006; Harlan v. State, 134 Ind. 339, 33 N. E. 1102; Williams V. State, 21 Tex. App. 256, 17 S. W. 624; Frazler v. State, 56 Ark. 242, 19 S. W. 838. The proof of venue need not be direct, but may be inferential, as where, on a prosecution for homicide, it is shown that the body of the de- ceased was found in the county in such a condition, and under such circum- stances, as to raise the inference that some one put it there. C!om. v. Cost- ley, 118 Mass. 2. And see Sullivan v. People, 114 111. 24, 28 N. E. 381; Cluck V. State, 40 Ind. 263; Burst v. State, 89 Ind. 133; State v. Farley, 87 Iowa, 22, 53 N. W. 1089; Hicks v. Territory (N. M.) 30 Pac. 872; State v. McGin- niss, 74 Mo. 245; State v. Daugherty, 106 Mo. 182, 17 S. W. 303; Moore v. State, 22 Tex. App. 117; Dumas v. State, 62 Ga. 58; State v. Sanders, 106 Mo. 188, 17 S. W. 223; Duncan v. State, 29 Fla. 439, 10 South. 815. 108 Rex V. Wardle, Russ. & R. 9. Where an indictment for robbery stated that it was committed in a field near the king's highway, and there wds no proof that it was committed near any highway, a conviction was nevertheless sustained. Rex v. Wardle, supra. 109 Com. V. Tolliver, 8 Gray (Mass.) 386. 110 State V. Lamon, 3 Hawks (N. 0.) 175; Carlisle v. State, 32 Ind. 55. Contra, Com. v. Inhabitants of Springfield, 7 Mass. 19. 111 Rex V. Bullock, 1 Moody, Crown Cas. 324, note; People v. Honeyman, 348 PLEADING AND PROOF. [Ch. 10' worship, or for other purposes,^ ^* gaming, etc.,**' are transitory^ offenses, and if they are unnecessarily alleged to have been com- mitted at a particular town or other place within the county, they may nevertheless be shown to have been committed at some other place. All that is necessary to sustain the charge is to show that they were committed within the jurisdiction of the court.*** On the other hand, burglary and housebreaking,**" arson,**' stat- utory larcenies from the shop, dwelling house, or other particular place,**' nuisances with respect to highways,* *° failure to repair high- ways,**" keeping disorderly house, and similar nuisances,*'"' accord- ing to most of the cases, other nuisances,*"* offenses in relation tO' cemeteries, etc.,*''^ being found armed in a close at night, etc.,*^* are- local in their nature. An indictment therefor must not only state 3 Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101 Mass. 207; State v. Cotton, 4 Fost. (N. H.) 143. 112 State T. Smith, 5 Har. (Del.) 490. lis Covy V. State, 4 Port (Ala.) 186; Wlngard v. State, 13 Ga. 396. Riot,. Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastardy, Heikes v. Com., 26 Pa. St. 513. 114 Ante, p. 248; 1 Chit. Cr. Law, 200. 115 Rex V. Bullock, 1 Moody, Crown Cas. 324, note; Reg. v. St. John, 9 Car.. & P. 40. But see State v. Meyers (Wash.) 36 Pac. 1051. 118 Rex V. Woodward, 1 Moody, Crown Cas. 323; People v. Slater, 5 Hill) (N. Y.) 401. Contra, State v. Meyers, supra. In People v. Slater, supra, the- indictment described the building burned as situated in the Sixth ward of the city of New York, and the evidence showed that it was in the Fifth ward,, and the variance was held fatal. 117 Rex V. Napper, 1 Moody, Crown Cas. 44; People v. Honeyman, 3 Denio- (N. Y.) 121. 118 Rex V. White, 1 Burrows, 333. 11 » Com. V. Inhabitants of North Brookfield, 8 Pick. (Mass.) 462; Rex v. Great Canfield, 6 Esp. 136; Rex v. Marchioness Dowager, 4 Add. & E. 232;; Rex V. Inhabitants of St Weonard's, 6 Car. & P. 582. 120 state V. Nixon, 18 Vt 70; Com. v. Logan, 12 Gray (Mass.) 136. But; see State v. Crogan, 8 Iowa, 523. 121 Com. V. HefCron, 102 Mass. 148; Wertz v. State, 42 Ind. 161; Dennis v.- State, 91 Ind. 291; Droneberger v. State, 112 Ind. 105, 13 N. E. 259; Comellt V. State, 7 Baxt (Tenn.) 520. But see, contra. State v. Sneed, 16 Lea (Tenn.)- 450, 1 S. W. 282; State v. Jacobs, 75 Iowa, 247, 39 N. W. 293. 122 1 Chit Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300. 123 Rex V. Ridley, Russ. & R. 515. "Ch. 10] PLEADING AND PROOF VAEIANCE. 349 the particular place within the county at which they were commit- ted, but must state it accurately. The particular place is stated not as venue, but by way of local description, and if the proof shows that the offense was committed at any other place, though within the county, than the place alleged, the variance will be fatal.^^* If the place is stated unnecessarily, or with unnecessary par- ticularity not as venue, but as matter of local description, the state- ment is part of the description of the offense, and, like other alle- gations which are descriptive of that which is essential, must be proved.^ ^° An indictment for desecrating a public burying ground, ■for instance, need not describe it by metes and bounds, but if it ■does so, the metes and bounds must be proved as alleged.^^* In some cases the crime can only be committed in a particular place. Here, of course, the place must not only be alleged, but it must be proved, in order to show that the offense has been com- mitted."^ Indictments on Statutes. The same rules with respect to variance apply to indictments on statutes as to indictments at common law, but there are a few •questions peculiar to them. As we have seen, an indictment on a public statute need not recite the statute.^ ^' If it does recite a statute, and then counts upon that particular statute, as by con- cluding "contrary to the form of said statute," a material variance between the statute and the recital will be fatal. If, however, it concludes "contrary to the form of statute in such case made and provided," thus counting generally on some statute, the recital of a particular statute may be rejected as surplusage, and a variance will be disregarded.^^' 124 1 Chit. Cr. Law, 200, 201; ante, p. 250. 12 Moore v. State, 12 Ohio St. 387; Com. v. Wellington, 7 Allen (Mass.) 299; Withers v. State, 21 Tex. App. 210, 17 S. W. 725; State v. Crogan, « Iowa, 523; Reg. v. Cranage, 1 Salk. 385; O'Brien v. State, 10 Tex. App. 544. 126 Com. V. Wellington, supra. 127 Ante, p. 249; State v. TurnbuU, 78 Me. 1, 6 Atl.- 1. 128 Ante, p. 257. 128 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 101; Vander Plunken v. Grif- fith, Cro. EUz. 236; Boyce v. Whitaker, 1 Doug. 94; 4 Coke, 48a; Piatt v. Hill, 1 Ld. Raym. 382; Rex v. Marsack, 6 Term R. 776; Murray v. Fitz- 350 PLEADIKG AND PROOF. [Ch. 10 Effect of Modem Statutes. In discussing the question of variance we have merely stated the common-law rules. These rules have to some extent been changed by statute in most jurisdictions, so that it is necessary for the stu- dent at this point to consult the statutes of his state. It is provided in some jurisdictions that, whenever on the trial of an indictment or information, there appears to be any variance between the allegations and the evidence offered in proof thereof, (1) in the name of any place mentioned or described therein; or (2) in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which forms the subject of any offense charged therein; or (3) in the name and description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offense; or (4) in the Christian name or surname, or both Christian name and sur- name, or other description whatsoever, of any person or persons whomsoever therein named or described; or (5) in the name and description of any matter or thing whatsoever therein named or described; or (6) in the ownership of any property named or de- scribed therein, — the court before which the trial is had, may, if it considers such variance not material to the merits of the case and that the defendant cannot be prejudiced thereby in his defense on such merits, order such indictment or information to be amended to conform to the proof, on such terms as to postponing the trial, etc., as the court may think reasonable. In some states it is pro- vided that the variance, instead of being cured by amendment, may be disregarded. Such statutes do not exist in all the states. We have already shown the effect of provisions like this under our constitutional provisions.^'* Patrick, 3 Caines (N. Y.) 41; Com. v. Washburn, 128 Mass. 421. But not If the variance is Immaterial. Eeg. v. Westley, Bell, Crown Cas. 193; People v. Walbridge, 6 Cow. (N. Y.) 512; Com. v. Burke, 15 Gray (Mass.) 408. And see ante, p. 258. ISO Ante, pp. 140, 316, 324. Ch. 10] CONVICTION OF MINOli OFFENSE. 351 CONVICTION OF MINOR OTTENSB. 123. If the whole of the offense charged is not proved, but so much of it as to constitute a substantive offense is proved, the defendant may be acquitted of the offense charged, and convicted of the offense proved, provided, at common law, each offense is either a felony or a misde- meanor. In most of our states, either by statute, or in- -dependently of any statute, on indictment for felony, there may be a conviction of a misdemeanor included therein. The offense proved must be necessarily in- cluded in the charge. The jury in order to convict the defendant need not necessarily find the whole of the offense, or the highest offense, charged in the indictment, but may convict of any minor offense, included in the charge.^^* "It is a general rule which runs through the whole crim- inal law, that it is sufficient to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified." ^'^ "It is a general rule at common law, 'where the accu- sation in the indictment includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious.' " ^'' This rule has been expressly declared by statute in many of our states. At common law, as we shall pres- ently see more at length, there could be no conviction of a mis- 181 1 Chit. Or. Law, 250; People v. White, 22 Wend. (N. Y.) 167; Wyatt v. State, 1 Blackf. (Ind.) 257; Com. v. Hope, 22 Pick. (Mass.) 1; People Y. Mc- Gowan, 17 Wend. (N. Y.) 386; Borum v. State, 66 Ala. 468; Clarke v. Com., 25 Grat (Va.) 908; State v. Brannon, 55 Mo. 63; State v. Brady, 14 Vt 353; State V. Bno, 8 Minn. 220 (Gil. 190); State v. Burk, 89 Mo. 635, 2 S. W. 10; State v. Taylor, 3 Or. 10; Stevens v. State, 19 Neb. 647, 28 N. W. 304; Beck- with v. People, 26 111. 500; Carpenter v. People, 4 Scam. (111.) 197; Dinkey v. Com., 17 Pa. St. 126; Herman v. People, 131 lU. 594, 22 N. B. 471; Rogers v. People, 34 Mich. 345; People v. Jackson, 3 Hill (N. Y.) 92; and the numer- ous cases hereafter referred to. 132 1 Chit. Cr. Law, 250; ante, p. 329; Durham v. State, 1 Blackf. (Ind.) 33. 133 State V. Coy, 2 Aiken (Vt.) 181. 352 PLEADING AND PROOF. [Gh.'lO demeanor on indictment for a felony, and this rule is still recog- nized in a few states; but in most states it is not recognized, or has been changed by statute. To thus allow a conviction for a minor offense included in the charge, does not in any way prejudice the rights of the defendant, or deprive him of the constitutional right to formal notice of the charge against him, for he is not only accused of the highest offense charged in the indictment, but he is also formally accused of every other offense necessarily included in the charge.^'* Illustrations of the Rule. In accordance with the rule above stated, it is held that the defendant may be convicted of statutory larceny from the dwelling house, or of simple larceny, on an indictment charging burglary with intent to commit larceny, and an actual stealing, for the in- dictment charges these offenses as well as the offense of burglary. They are necessarily included in the charge.^ '° For the same reason, there may be a conviction of a lower degree of burglary than charged, if all the essential elements of the lower degree are charged; ^^° of petit larceny on indictment for grand larceny; ^'^ of grand larceny in the second degree on indictment for grand lar- ceny in the first degree; ^^* by the weight of authority, of simple larceny on indictment for robbery, or for stealing from the person,^'' 13* See State v. Burk, 89 Mo. 635, 2 S. W. 10. 13 5 2 Hale, P. O. 302; 2 East, P. C. 513; Rex v. Withal, 1 Leach, Crown Cas. 88: Rex v. Vandercomb, 2 Leach, Crown Gas. 711; Com. v. Tuck, 20 Pick. (Mass.) 360; State v. Cocker, 3 Har. (Del.) 534; State v. Grisham, 1 Hayw. (N. C.) 17; Breese v. State, 12 Ohio St. 146; State v. Colter, 6 R. I. 195; Polite v. State, 78 Ga. 347; Com. v. Lowery, 149 Mass. 67, 20 N. E. 697; People V. Jacks, 76 Mich. 218, 42 N. W. 1134; People v. White, 22 Wend. (N. Y.) 176. But the actual larceny must be sufEciently charged. State v. Mc- Clung, 35 W. Va. 280, 13 S. E. 654. 136 State V. Fleming, 107 N. O. 905, 12 S. E. 131. Of burglary, without be- ing armed with a dangerous weapon, on indictment for burglary, being so armed. S.tate v. Morris, 27 La. Ann. 481; State v. Miller, 45 La. Ann. 1170, 14 South. 136. 13T Boiling v. State (Ala.) 12 South. 782; People v. McCallam, 103 N. Y. 587, 9 N. E. 502. 13 8 People V. McCallam, supra. Of simple larceny on indictment for horse- stealing. Rex V. Beaney, Russ. & R. 416. 13 » 1 Chit Cr. Law, 250; 1 Hale, P. C. 534; 2 Hale, P. 0. 203; 2 Hawk. P. Gh. 10] CONVICTION OF MINOR OFFENSE. 353 or for the statutory offense of stealing in a shop or dwelling house, etc."" So, also, there may be a conviction of voluntary manslaughter on indictment for murder; ^*^ of murder in the second degree on indictment for murder in the first degree; ^*^ of assault with intent to kill, or a less aggravated assault, or assault and battery, or simple assault, on indictment for murder, at least where, as is generally the case, there may be conviction for misdemeanor on in- dictment for felony, and provided, of course, all the essentials of the less offense appear in the charge; ^*' or of assault and battery on indictment for manslaughter.^** Subject to the same limita- tions, there may be conviction of assault with intent to rape, or a less aggravated assault, or assault and battery, or simple assault, or indecent assault, on an indictment for rape or carnal knowledge of a female under the age of consent; ^*° of fornication on indictment C. c. 47, § 6; 2 Bast, P. C. 513, 515, 516, 736, 784; Rex v. Sterne, 1 Leach, Crown Cas. 473; Morris v. State, 97 Ala. 82, 12 South. 276; State v. Kee- land, 90 Mo. 337, 2 S. W. 442; State v. Steifel, 106 Mo. 129, 17 S. W. 227; Haley v. State, 49 Ark. 147, 4 S. W. 746; Stevens v. State, 19 Neb. 647, 28 N. W. 304; Brown v. State, 34 Neb. 448, 51 N. W. 1028; Snllivan v. Com. (Ky.) 5 S. W. 365; People v. White, 22 Wend. (N. Y.) 176. Some of the courts hold that this could not be allowed at common law. Rex v. Francis, 2 Strange, 1014; Haley v. State, supra. 140 Rex V. Etherington, 2 Leach, Grown Cas. 671; Brown v. State, 90 Ga. 454, 16 S. E. 204. Ill 1 Hale, P. C. 449; 2 Hale, P. C. 302; Co. Litt. 282a; 2 Hawk. P. C. c. 47, § 4; State v. Parish, 2 Hayw. (N. C.) 73; Brown v. State, 31 Fla. 207, 12 South. 640; U. S. v. Leonard, 2 Fed. 669; Boulden v. State (Ala.) 15 South. 341; White v. Territory, 3 Wash. T. 397, 19 Pac. 37. 142 State V. Talmage, 107 Mo. 543, 17 S. W. 990; State v. Lindsey, 19 Nev. 47, 5 Pac. 822. 145 Ex parte Oumow, 21 Nev. 33, 24 Pac. 430; Lang v. State, 16 Lea (Tenn.) 433, 1 S. W. 318; Bean v. State, 25 Tex. App. 346, 8 S. W. 278. 144 State V. Scott, 24 Vt. 127. 146 state V. Bagan, 41 Minn. 285, 43 N. W. 5; State v. Mueller, 85 Wis. 203, 55 N. W. 165; Poison v. State (Ind. Sup.) 35 N. E. 907; People v. Abbott, 97 Mich. 484, 56 N. W. 862; Pratt v. State, 51 Ark. 167, 10 S. W. 233; State v. May, 42 La. Ann. 82, 7 South. 60; State v. Kyne, 86 Iowa, 616, 53 N. W. 420; Reg. V. Williams, 5 Reports, 186 [1893] 1 Q. B. 320; Jones v. State, 118 Ind. 3&, 20 N. E. G34; State v. White, 52 Mo. App. 285. CTHM.PROC— 23 354 PLEADING AND PEOOF. [Ch. 10 for rape/*' adultery,^*' or seduction;^** or of incest where the defendant is charged with rape of his own daughter.^*" And generally where an aggravated assault is charged, — as as- sault with Intent to murder, to kill, to rape, or to rob, or any less aggravated assault, — the defendant may be convicted of any minor aggravated assault, all the essential elements of which appear in the charge, or, in other words, which is necessarily included in the charge, or of assault and battery, where actual violence is charged, or of simple assault.^" 146 Com. V. Parker, 146 Pa. St 343, 23 Atl. 323. But the indictment must show that the woman was not the defendant's wife. Com. v. Murphy, 2 Allen (Mass.) 163. 147 Com. V. Roberts, 1 Yeates (Pa.) 6; State v. Cowell, 4 Ired. (N. 0.) 231. But see Maull v. State, 37 Ala. 160. 14 8 Dinkey v. Com., 17 Pa. St. 126. 149 Com. V. Goodhue, 2 Mete. (Mass.) 193. iBo State V. Coy, 2 Aiken (Vt.) 181; State v. Evans, 40 La. Ann. 216, 3 South. 838; Foster v. State, 25 Tex. App. 543, 8 S. W. 664; Jenkins v. State (Ga.) 17 S. E. 693; Pittman v. State, 25 Pla. 648, 6 South. 437; Peo- ple v. BUsworth, 90 Mich. 442, 51 N. W. 531; People v. Prague, 72 Mich. 178, 40 N. W. 243; OXeary v. People, 4 Parker, Cr. R. (N. Y.) 187; Kennedy v. People, 122 111. 649, 13 N. E. 213. But see, for a doubtful case. State v. Al- len, 40. La. Ann. 199, 3 South. 537. Of assault with intent to abuse on indict- ment for assault with intent to carnally know and abuse. 1 Chit. Cr. Law, 251. Of assault on indictment for assault with intent to rape, or of assault and battery on such an indictment, where actual violence is charged. State V. Keen (Wash.) 38 Pac. 880; State v. McAvoy, 73 Iowa, 557, 35 N. W. 630. Of simple assault on indictment for assault with intent to kill or to murder, or of assault and battery in such a case, where actual violence is charged. Stewart v. State, 5 Ohio, 241; State v. Coy, 2 Aiken (Vt.) 181; Horn v. State, 98 Ala. 23, 13 South. 329; People v. Chalmers, 5 Utah, 201, 14 Pac. 131; State V. Brent, 100 Mo. 531, 13 S. W. 874; Malone v. State, 77 Ga. 767; State V. Robinson, 31 S. C. 453, 10 S. E. 101; State v. Triplett, 52 Kan. 678, 35 Pac. 815; Chacun v. Territory (N. AI.) 34 Pac. 448; People v. Ellsworth, 90 Mich. 442, 51 N. W. 531. Of assault with intent to kill on indictment for assault with intent to murder. State v. Waters, 39 Me. 54. Of assault and battery on indictment for assault (and battery) with intent to rob. Barnard v. Com. (Ky.) 22 S. W. 219. Of unlawfully irointing a pistol at another on in- dictment for 'assault with Intent to murder by pointing, aiming, and dischar- ging a loaded pistol at him. Jenkins v. State (Ga.) 17 S. E. 693. Of assault and battery, armed with a dangerous weapon, "with intent to do bodily harm," on indictment for assault and battery committed with a deadly weapon, "with Ch. 10] CONVICTION OF MINOR OFFENSE. 355 So where an indictment charged the burning of a barn adjoining a dwelling house, which offense was made punishable by one section of the statutes, and the proof showed that the house was not a dwelling, it was held that the defendant could be convicted under another section for burning a building not adjoining a dwelling house.^"^ This, however, is doubtful.^"*^ In Iowa it has been held that on an indictment for breaking and entering a house in the nighttime, the defendant may be con^i:ct«d^ of the minor offense of breaking and entering in the daytime;^'* but the soundness of this decision is at least doubtful.^"* intent to kill." State v. Johnson, 3 N. D. 150, 54 N. W. 547. And see State v. CoUyer, 17 Nev. 275, 30 Pac. 891. Of assault with a deadly weapon on indictment for assault with such a weapon with intent to kill. Pittman v. State, 25 Fla. 648, 6 South. 437; State v. McLennen, 16 Or. 59, 16 Pac. 879, and cases there collected; State v. Delaney, 28 La. Ann. 434; People v. Bent- ley, 75 Cal. 407, 17 Pac. 436; Evans v. Territory (Ariz.) 36 Pac. 209. Of assault on indictment for assault with a deadly weapon with intent to inflict great bodily harm, or of assault and battery, where actual violence is charged. Kennedy v. People, 122 111. 649, 13 N. E. 213; People v. Ellsworth, 90 Mich. 442, 51 N. W. 531. Of assault with intent to kill on indictment for assault with intent to kill while lying in wait. State v. Evans, 40 La. Ann. 216, 3 South. 838. And see State v. Price, 45 La. Ann. 1430, 14 South. 250. Of assault with intent to commit manslaughter on indictment for assault with intent to murder. State v. White, 41 Iowa, 316; State v. Connor, 59 Iowa, 357, 13 N. W. 327; Horn v. State, 98 Ala. 23, 13 South. 329. Of assault with intent to inflict great bodily injury, or to do bodily harm, on indictment for assault with intent to murder, or to kill. People v. Davidson, 5 Cal. 133; State V. King (Mo. Sup.) 20 S. W. 299; Bean v. State, 25 Tex. App. 346, 8 S. W. 278; People v. Prague, 72 Mich. 178, 40 K. W. 243; State v. Scheie, 52 Iowa, 608, 3 N. W. 632; Territory v. Galliff (Okl.) 37 Pac. 809. Contra, State V. Yanta, 71 Wis. 669, 38 N. W. 333. Of assault and battery on indict- ment for assault (and battery) with a deadly weapon with intent to kiU, or assault (and battery) with intent to maim. O'Leary v. People, 4 Parker, Or. R. (N. Y.) 187; State v. Jennings, 104 N. C. 774, 10 S. E. 249. iBi State V. Thornton, 56 Vt. 35. 152 Contra, on the ground that the latter offense is not included in the for- mer. Com. V. Hayden, 150 Mass. 332, 23 N. E. 51. 103 State V. Jordan, 87 Iowa, 86, 54 N. W. 63. 1B4 Guynes T. State, 25 Tex. App. 584, 8 S. W. 667. 356 PLEADING AND PROOF. £Ch. 10 Minor Offense Must be Charged. In all cases the minor offense must be necessarily included in the charge. The indictment must on its face show every essential element of it, otherwise the defendant would be convicted of an offense, without having been accused of it.^"" "No one can be convicted of an offense which is not charged in the information, where the elements of the offense are not embraced in some greater offense charged." ^" "The lesser offense must be included in the greater by necessary words of description, so that, if the words defining the greater offense are stricken out of the information, there would remain a sufficient description of the lesser offense." "'' On indictment for assault with intent to do great bodily harm, expressly alleging that the defendant "did beat, bruise, and ill-treat" the person assaulted, there may be a conviction of assault and bat- tery, since a battery is charged;^"' but if the information merely charges the assault with such intent, and does not show that there was actual violence, there may be a conviction of simple assault, but not of assault and battery, for a battery is not necessarily included in the charge.^"' So, on indictment for assault with intent to rape, though there may be conviction for simple assault, there cannot be conviction for assault and battery, unless actual violence is charged. Assault with intent to commit rape does not necessarily imply a battery.^*" 1B6 State V. Ackles (Wash.) 36 Pac. 597; Com. v. Murphy, 2 Allen (Mass.) 163; Wamer v. State, 54 Ark. 660, 17 S. W. 6; State v. Melton, 102 Mo. 683, 15 S. W. 139. 166 Turner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310. 107 state V. Shear, 51 WiS; 460, 8 N. W. 287; State v. Yanta, 71 Wis. 669, ■38 N. W. 333. In the case last cited the rule does not seem to have been cor- rectly applied. It was held that a charge of willfully, maliciously, and feloni- ously assaulting, cutting, stabbing, and wounding, with intent to murder, •did not include the charge of assault with intent to do great bodily harm. It is difficult to suppose it possible to assault, cut, stab, and wound a man with intent to murder him, without intending to inflict rather serious bodily harm. See, contra, cases cited in note 150, supra. los People V. Ellsworth, 90 Mich. 442, 51 N. W. 531. And see the cases ■cited in note 150, supra. 169 Tui-ner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310 (ex- plained in People v. Ellsworth, supra). 160 State V. McAvoy, 73 Iowa, 557, 35 N. W. 630; State v. Keen (Wash.) 38 Pac. 880. Ch. 10] CONVICTION OP MINOR OFFENSE. 357 It is otherwise, of course, where the consummated crime of rape is charged.^"^ The same is true of assaults with intent to murder, to inflict bodily harm, to rob, assault with a deadly weapon, etc. Conviction of simple assault may always be authorized, but not for assault and battery, unless the indictment shows on its face that there was actual violence.^'* Under this rule it would seem that the defendant should not be convicted of burning or breaking and entering a building not a dwelling house, on an indictment for burning or breaking and entering a dwelling house, nor for burning or breaking and entering a building in the daytime, on an indict-nent for doing so in the nighttime, but, as we have seen, there is a conflict in the cases.^"' On a charge of murder by shooting or stabbing, or other acts of intentional violence, the defendant may well be convicted of assault with intent to kill, or with intent to do great bodily harm; ^^* but could he be so convicted on indictment for murder committed unintentionally while engaged in the commission of such a felony as rape, arson, or burglary? ^°° On an indictment for murder which does not, as allowed by statute, set out the manner or means by which the crime was committed, there cannot be a conviction, under a statute, of intentionally pointing a pistol, and accidentally discharging the same, and killing the deceased.^** On indictment for rape, as we have seen, there may, in a proper case, be conviction of fornication, but there cannot be such a con- viction unless the indictment shows that the woman was not the defendant's wife.^*^ So it has been held that on an indictment for rape (charging that the defendant "feloniously, forcibly, and against her will, did car- nally know J. J.," saying nothing about her age) the defendant can- lei Note 145, supra. 162 Turner v. Muskegon Circuit Judge, supra; State v. Marclis (N. D.) 58 N. W. 25; State v. Melton, 102 Mo. 683, 15 S. W. 139. 183 Notes 151-154, supra. 18* Notes 141-143, 150, supra. 16 5 Ex parte Cumow, 21 Nev. 33, 24 Pac. 430. 168 Lucas V. State, 71 Miss. 471, 14 Soutla. 537. 167 Com. V. Murphy, 2 Allen (Mass.) 163. 358 PLEADING AND PEOOF. [Ch. 10 not be convicted of the offense of carnally knowing a female child under the age of puberty.^"* Nor can there be conviction of mali- cious mischief on an indictment for arson; ^°' nor of embezzlement on indictment for larceny, or vice versa/'" unless a statute, as is the case in some states, expressly allows it.^'* Nor of assault with intent to murder on indictment for robbery; "^ or for maiming; "' nor of wounding, maiming, and disfiguring on an indictment for assault with a slung shot with intent to kill, which does not allege the infliction of an injury;^'* nor of the statutory offense of stab- bing another, not designing thereby to effect his death, nor in self- defense, nor in an attempt to preserve the peace, nor in doing any other legal act, whereby death resulted, on indictment for murder.*" Felony and Misdemeanor. At common law, in England, because of the fact, as explained on a former page,^'° that the defendant had certain rights on trial for a misdemeanor which he could not claim on trial for a felony, a felony could not upon the trial be modified into a misdemeanor. In olher words, on indictment for a felony the defendant could not be convicted of a misdemeanor.^'' And this rule has been recog- nized in some of our states.^" The Massachusetts court based the 168 Warner v. State, 54 Ark. 660, 17 S. W. 6. And see Whitcher v. State (Wash.) 26 Pac. 268. 180 Crockett v. State, 80 Ga. 104, 4 S. E. 254. 170 Griffin v. State, 4 Tex. App. 390; Lott v. State, 24 Tex. App. 723, 14 S. W. 277; State v. Harmon, infra. iTi State V. Williams, 40 La. Ann. 732, 5 Soutli. 16; State v. Harmon (Mo. Sup.) 18 S. W. 128; Reg. v. Gorbutt, 1 Dears. & B. Crown Cas. 166. 1T2 Munson v. State, 21 Tex. App. 329, 17 S. W. 251. 178 Davis V. State, 22 Tex. App. 45, 2 S. W. 630. 174 State V. Melton, 102 Mo. 683, 15 S. W. 139. 17 5 Wood V. Com. (Ky.) 7 S. W. 391. 17 8 Ante, p. 294. 17 7 1 Chit. Cr. Law, 251; 2 Hawk. P. C. c. 47, § 8; Rex v. Westbeer, 1 Leach, Crown Cas. 14, 2 Strange, 1133; Rex v. Monteth, 2 Leach, Crown Cas. 702; 2 East, P. C. 737, 738. 178 Com. V. Roby, 12 Pick. (Mass.) 496 (oven'uling Com. v. Cooper, 15 Mass. 187); Com. v. Newell, 7 Mass. 249; Com. v. Gable, 7 Serg. & R. (Pa.) 423; State V. Valentine, 6 Yerg. (Tenn.) 533; State v. Flint, 33 La. Ann. 1288; Black V. State, 2 Md. 376; Barber v. State, 50 Md. 161; McWhirt v. Com., 3 Grat. (Va.) 594. In most of these states, however, the rule has been changed by statute. Ch. 10] CONVICTION OF MINOR OFFENSE. 359 rule on "the broader consideration tliat the offenses are, in legal contemplation, essentially distinct in their nature and character," ^" but this is not the reason of the rule. Where the rule is recognized there could not be a conviction of simple assault, assault and battery, or assault with intent to kill (where such aggravated assault is a misdemeanor only), on indict- ment for murder or manslaughter; ^"' nor of simple assault, assault and battery, indecent assault, or assault with intent to rape (when a misdemeanor only), on an indictment for rape.^^^ The same would be true of indictments for robbery. So where several per- sons were indicted for a burglary, in breaking and entering a dwelling house in the nighttime with intent to maim and disfigure the owner by cutting off one of his ears, which was charged as a burglarious breaking and entry with a felonious intent, the court, on demurrer, being of opinion that the offense charged did not amount to a felony, the question was raised whether it would war- rant a judgment for the misdemeanor of aggravated assault; but it was decided that at common law this could not be done, and the defendants were bound over to answer for the misdemeanor upon another indictment.^ ^* Many, perhaps most, of our courts have refused to recognize the rule that there cannot be a conviction of misdemeanor on indict- ment for felony, on the ground that the reasons which made the rule proper in England do not exist in this country, there being no privilege to which the defendant is entitled on trial for a misde- meanor that he could not claim on trial for a felony; and so the maxim, "Cessante ratione legis, cessat et ipsa lex," applies.^*' In 1T9 Com. v. Roby, 12 Pick. (Mass.) 496. ISO Com. V. Roby, 12 Pick. (Mass.) 496; Com. v. Cooper, 15 Mass. 187. 181 Id. 182 Com. V. Newell, 7 Mass. 249. 183 Herman v. People, 131 111. 594, 22 N. E. 471; People v. Jackson, 3 Hill (N. Y.) 92; People v. White, 22 Wend. (N. Y.) 175; Rogers v. People, 34 Mich. 345; State v. Scott, 24 Vt. 127; Prindeville v. People, 42 111. 217; State V. Kennedy, 7 Blackf. (Ind.) 233; Hunter v. Com., 79 Pa. St. 503; Hess v. State, 5 Ohio, 1; Stewart v. State, Id. 241; State v. Stedman, 7 Port (Ala.) 495; State v. Johnson, 30 N. J. Law, 185; State v. Wimberly, 3 McCord (S. C.) 190; State v. Shepard, 7 Conn. 54; State v. Watts, 82 N. C..656; Cameron v. State, 8 Eng. (Ark.) 712; People v. Chalmei-s, 5 Utah, 201, 14 Pac. 131. 360 PLEADING AND PROOF. [Ch. 10 many states the rule has been expressly abrogated by statute.^'* In some states it is expressly provided by statute that where a person is charged with the actual commission of a crime, and the evidence shows that he was guilty only of an attempt to commit it, he may be convicted of the attempt.^'" Conviction of Minor, on Proof of Higher, Offense. In most states it is held, where there is no statute to the con- trary, that where a person is convicted of a minor offense necessarily included in the charge, he cannot complain that the evidence showed him to be guilty of the higher offense charged.^*" But in some states, where the offense charged is a misdemeanor, and the offense proved is a felony, it is held that there can be no conviction of the misdemeanor on the ground that it merges in the felony.* In some jurisdictions, however, statutes have been enacted, provid- ing, in substance, that no person shall be convicted of an assault with intent to commit an offense, or of any other attempt to commit an offense, when it shall appear that the offense intended or attempted was actually perpetrated.^''' Such a statute is valid, and does not conflict with a statute authorizing a conviction for any degree of offense inferior to that charged in the indictment, nor with a statute authorizing a conviction for a less offense where the charge is for an assault with intent to commit a felony, and authorizing the jurj' to convict "of any offense, the commission of which ia necessarily included in that charged." ^** 18* See Com. v. Drum, 19 Pick. (Mass.) 479; State v. Crummey, 17 Minn. 72 (Gil. 50) ; Hill v. State, 53 Ga. 125; State v. Purdie, 67 N. C. 26, 326; People V. Abbott, 97 Mich. 484, 56 N. W. 862. isB In re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. Frank, 103 Mo. 120, 15 S. W. 330. 188 Poison V. State (Ind.) 35 N. E. 907; Hamilton v. State, 36 Ind. 280; State V. Keeland, 90 Mo. 337, 2 S. W. 442; Com. v. Creadon (Mass.) 38 N. E. 1119; Hardy v. Com., 17 Grat. (Va.) 592; State v. Archer, 54 N. H. 465; State V. Parmelee, 9 Conn. 259; Lohman v. People, 1 N. Y. 379; Reg. v. Neale, 1 Car. & K. 591; Com. v. Burke, 14 Gray (Mass.) 100; Com. v. M'Pike, 3 Cush. (Mass.) 181; Brown v. State, 31 Fla. 207, 12 South. 640. But see Id., 34 Neb. 448. 51 N. W. 1028. * Post, p. 403. 18T State V. Lacey, 111 Mo. 513, 20 S. W. 238; State v. White, 35 Mo. 500; State T. Mitchell (Kan.) 38 Pac. 810. 188 state T. Lacey, supra. Ch. 10] CONVICTION OF HIGHER OFFENSE. 361 Indictment Bad as to Higher Offense. It has been held that an indictment which is bad for the higher offense sought to be charged will not support a conviction for a minor offeoise which, if it were good, would necessarily be included therein; ^'' but the rule seems to be established that, if the offense of which the defendant is convicted is sufficiently charged, it can make no difference that the higher offense which it was intended to- charge, and of which the defendant was acquitted, was not suflB- ciently diarged.^'* CONVICTION OF HIGHER OFFENSE. 123. There can be no conviction for a higher offense than is charged in the indictment. We should not take the space to state so obvious a proposition,, except for the fact that an appellate court has actually been called upon to decide that there can be no conviction for grand larceny on an indictment for petit larceny.^'^ 189 Territory v. Dooley, 4 Mont. 295, 1 Pac. 747. i»» Crumbley v. State, 61 Ga. 582; State v. Trlplett, 52 Kan. 67S, 35 Pac. 815. 181 McOulIough V. State, 132 Ind. 427, 31 N. E. 1116. 362 MOTIO.N TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. H CHAPTER XI. MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS OF DEFENDANT. 124-126. Motion to Quash. 127-128. The Arraignment and Pleas. 129. Confession— Plea of Guilty— Nolo Contendere. 130. Plea to the Jurisdiction. 131. Plea in Abatement. 132. Demurrer. 133-135. Pleas in Bar. 136-138. Pleas of Autrefois Acquit and Convict, or Former Jeopardy. 139. Plea of Pardon. 140. Agreement to Turn State's Evidence. 141. Plea of Not Guilty— General Issue. MOTION TO QUASH. 124. A motion to quash the indictment will lie, if it is insufficient as a matter of law, because of any defect ap- parent on the face of it or of the record, or if counts are joined in it which, by law, ought not to be joined; and in the latter case the court may, in its discretion, quash one or more counts. In some states the motion will lie for defects not apparent on the face of the record. 135. The motion may be made at any time before ver- dict, unless it is otherwise provided by statute. 126. All motions to quash are, at common law, ad- dressed to the discretion of the court; and it may, if it thinks proper, leave the defendant to his remedy by de- murrer, motion in arrest of judgment, or writ of error. The motion to quash is always a proper way of objecting to the indictment for insuflBciency on its face, or on the face of the record, in point of law, from whatever cause the insufficiency may arise; ^ 1 Reg. V. Wilson, 6 Q. B. 620; Rex v. Combs, Comb. 243; Rex v. Stratton, 1 Doug. 239; State v. Dayton, 23 N. J. Law, 49; State v. Albln, 50 Mo. 419; State V. Cole, 17 Wis. 674; Swiney v. State, 119 Ind. 478, 21 N. B. 1102. Ch. 11] MOTION TO QUASH. 363 and it is also a proper way to object that different counts or parties are improperly joined, though this, as we have seen, may not render the indictment'bad, as a matter of law. In some states the motion will not lie for defects not apparent on the face of the indictment or record,^ but in others the rule is different.' There are various ways in which the defendant may raise objec- tion to the sufficiency of the indictment in point of law. He may do so by motion to quash it, by plea, by demurrer, by motion in ar- rest of judgment, or on writ of error or appeal. He can attack it by demurrer or plea only after he has been arraigned or called upon to answer the charge, and generally before he has pleaded to the merits; by motion in arrest only after a verdict of guilty; by writ of error or appeal only after a judgment of conviction; but he may attack it by motion to quash at any time after the indictment is presented, and before verdict. It has been said that a motion to quash must be made before the defendant has been arraigned and pleaded; that it comes too late, for instance, after a plea of not guilty.* But this is not true. Whenever it is clear that no judgment could be rendered on a ver- dict of guilty, because of the insutBciency of the indictment, a mo- tion to quash may be made and granted, in the discretion of the court, at any time before verdict, for it would be absurd to require the trial to proceed further, when it is clear that a conviction could not be sustained.^ A motion to quash for misjoinder of counts or 2 See Com. v. Church, 1 Pa. St. 105; State v. Ward, 60 Vt. 142, 14 Atl. 18T; State V. Rickey, 9 N. J. Law, 293; Com. v. Fredericks, 119 Mass. 199; Com. V. Donahue, 126 Mass. 51; Bell v. State, 42 Ind. 335. 3 See Com. v. Bradney, 126 Pa. St. 199, 17 Ati. 600; Com. v. Green, 126 Pa. St. 531, 17 Atl. 878; State v. Wall. 15 Mo. 208; State v. Bishop, 22 Mo. App. 435; State v. Horton, 63 N. C. 595. 4 Rex T. Frith, 1 Leach, Crown Cas. 11; Rex v. Semple, Id. 420; Rex v. Wynn, 2 East, 226; State v. Burlingham, 15 Me. 104; People v. Walters, 5 Parker, Cr. R. (N. Y.) 661; People v. Monroe Oyer and Terminer, 20 Wend. (N. Y.) 108; Deitz v. State, 123 Ind. 85, 23 N. E. 1086. In some states, by statute, the time is limited. See State v. Taylor, 43 La. Ann. 1131, 10 South. 203; State v. Schumm, 47 Minn. 373, 50 N. W. 362; People v. Bawden, 90 Oal. 195, 27 Pac. 204. 6 Reg. V. James, 12 Cox, Or. Cas. 127; Nichols v. State, 5 N. J. Law, 621; State V. Riffe, 10 W. Va. 794; Parrish v. State, 14 Md. 238; State v. Reeves, 364 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 parties may also be made at any time before verdict. It cannot, in any case, be made after verdict." At common law, a motion to quash an indictment is always ad- dressed to the discretion of the court, and, by the weight of au- thority, its ruling is not reviewable.' But the court, in the exercise of its discretion, is guided by certain rules. Where the offense is a serious one, such as a felony, or a misdemeanor which immediately affects the public at large, the motion should not be granted except upon the clearest and plainest ground, but the party should be driven to a demurrer, or motion in arrest of judgment, or writ of error.* The motion will be granted when it is clear that the indictment would not support a judgment of conviction, but not otherwise. "Such a motion should not be allowed to prevail in a doubtful case, but only when the insufficiency of an indictment is so palpable as clearly to satisfy the presiding judge that a verdict thereon would not authorize a judgment against the defendant." " Indictments have been quashed because found on the testimony of an interested person, or of a person not under oath; ^^ because 97 Mo. 668, 10 S. W. 841; Com. v. Cbapman, 11 Gush. (Mass.) 422; State v. Golly er (Nev.) 30 Pac. 891; State v. Eason, 70 N. C. 90. e State V. Barnes, 29 Me. 561. 1 1 Chit. Cr. Law, 300; 2 Hawk. P. C. c. 25, § 146; Rex v. Wheatly, 2 Bur- rows, 1127; Rex v. Inhabitants of Belton, 1 Salk. 372; Rex v. Johnson, 1 Wils. K. B. 325; Rex v. Wynn, 2 East, 226; People v. Eckford, 7 Cow. (N. Y.> 535; Com. v. Eastman, 1 Gush. (Mass.) 214; State v. Dayton, 23 N. J. Law, 49; Richards v. Com., 81 Va. 110; Strawhern v. State, 37 Miss. 422; State v. Barnes, 29 Me. 561; State v. Hurley, 54 Me. 562; State v. Jones, 5 Ala. 666; State V. Black (N. J. Sup.) 20 Atl. 255; Stout v. State, 96 Ind. 407; State v. Conrad, 21 Mo. 271. In some states the rule does not obtain. See Com. v. Bradney, 126 Pa. St. 199, 17 Atl. 600. 8 1 Chit. Cr. Law, 300; Rex v. Inhabitants of Belton, 1 Salk. 372; State v. Dayton, supra; People v. Eckford, 7 Cow. (N. Y.) 535; State v. Colbert, 75 N. O. 368; State v. Proctor (N. J. Sup.) 26 Atl. 804; Com. v. Litton, 6 Grat. (Va.) 691; State v. Flowers, 109 N. G. 841, 13 S. B. 718; State v. Rector, 11 Mo. 28. » Com. v. Eastman, 1 Gush. (Mass.) 214; Com. v. Hawkins, 3 Gray (Mass.) 464. 10 State v. Fellows, 2 Hayw. (N. C.) 340; State v. Cain, 1 Hawks (N. C.) 352; U. S. v. Coolidge, 2 Gall. 364, Fed. Gas. No. 14,858; ante, p. 112, and cases there cited. Ch. 11] MOTION TO QUASH. 365 the time of the offense was not stated, or the offense was laid on a future day,^^ or appeared to be barred by the statute of limita- tions;^^ because of repugnancy;^' because the court in which it was found was without jurisdiction;^* because it failed to state any offense;^" because it failed to give the addition of the defend- ant; ^* because of a defect in the caption; " because of omission of a material averment; ^* and for misjoinder of parties,^' or offenses.^" In some states it is expressly provided by statute that no ground for demurrer shall be ground for motion to quash;''* and in some the grounds for a motion to quash are specified, and the motion will not lie for any other cause. ^^ In some states it is provided by statute that the first of two indictments for the same offense shall be quashed, or shall be deemed suspended and quashed.^' Except where there is such a provision, however, it is no ground for quash- ing an indictment that another indictment is pending for the same offense, unless, under the particular circumstances, the court may think the defendant may suffer injustice.^* 11 State v. Eoach, 2 Hayw. (N. C.) 352; State v. Sexton, 3 Hawks (N. C.J 184; ante, p. 237, and cases there cited. 12 State V. J. P., 1 Tyler (Vt.) 283; ante, p. 240. 18 Ante, p. 171; State v. Johnson, 5 Jones (N. C.) 221. 1* Rex V. Williams, 1 Burrows, 389; Rex v. Bainton, 2 Strange, 1088; Bell V. Com., 8 Grat. (Va.) 600; Justice v. State, 17 Ind. 56. IB State V. Mitchell, 1 Bay (S. C.) 269; People v. Eckford, 7 Cow. (N. Y.) 535; State V. Albin, 50 Mo. 419; State v. Rickey, 9 N. J. Law, 293; Smith v. State, 45 Md. 49; Williams v. State, 42 Tex. 392. 16 Rex V. Thomas, 3 Dowl. & R. 621; State v. Hughes, 2 Har. & McH. (Md.) 479. 17 Rex V. Brown, 1 Salk. 376; State v. Hickman, 8 N. J. Law, 299; Res- publica V. Cleaver, 4 Yeates (Pa.) 69; ante, p. 123, and cases there cited. 18 Rex V. Trevilian, 2 Strange, 1268; Rex v. Lease, Andrews, 226; Rex v. Burkett, Id. 230; note 15, supra. i» Rex V. Weston, 1 Strange, 623; ante, p. 300. 20 Ante, p. 286. SI See State v. Edlavitch, 77 Md. 144, 26 Atl. 406. 2 2 See People v. Schmidt (Cal.) 30 Pac. 814; State v. Security Bank, 2 S. D. 538, 51 N. W. 337. 28 See State v. Arnold (Mo. Sup.) 2 S. W. 269; State v. Baton, 71 Mo. 45; State V. Vincent, 91 Mo. 662, 4 S. W. 430; Ball v. State, 48 Ark. 94, 2 S. W. 462; State v. Hall, 50 Ark. 28, 6 S. W. 20. 2* Rowand v. Com., 82 Pa. St 405. 366 MOTION TO QUASH, ARRAIGNMENT, DEMUEEEE, AND PLEAS. [Ch. 11 It has been said that the court must quash the whole indictment or none; that it cannot strike out one or more counts and leave others;^' but by the better opinion each count being a separate indictment, one or more of them may be quashed without affecting the rest of them which are good.''" "After an indictment against the defendant has been quashed, a new and more regular one may be preferred against him.^' He can gain therefore in general very little advantage, except delay, by such an application, and therefore usually reserves his objec- tions till after the verdict, when, if the indictment be found to be insuflScient, the fiourt is bound, ex debito justitiae, to arrest the judgment." ^* By statute now some objections are required to be raised by demurrer or motion to quash, or they will be deemed to be waived, and no objection can be made after verdict THE ARRAIGNMENT AND PLEAS. 127. There can be no valid, trial until the defendant is arraigned and pleads to the indictment. But in some states a formal arraignment may be expressly or im- pliedly -waived. 128. In the arraignment the defendant must be called to the bar of the court, the indictment must be distinctly read to him, and he must be asked -whether he pleads guilty or not guilty. If he stands mute, and obstinately refuses to answer, a plea of not guilty is entered for him by the court. A trial without a proper arraignment and plea is a nullity, unless the defendant has expressly or impliedly waived a formal arraign- as Rex v. Pewtress, 2 Strange, 1026, Cas. t. Hardw. 203; Kane v. People, 3 Wend. (N. Y.) 363; Dukes v. State, 11 Ind. 557. 28 Scott V. Com., 14 Grat (Va.) 687; State v. Wishon, 15 Mo. 503; Williams V. State, 42 Tex. 392; Jones v. State, 6 Humph. (Tenn.) 435; Com. v. Lap- Uam, 156 Mass. 480, 31 N. E. 638; Com. v. Stevenson, 127 Mass. 446; ante, p. 298. 27 See Perkins v. State, 66 Ala. 457. 28 1 Chit. Cr. Law, 304; Rex v. Wheatly, 2 Burrows, 1127. Ch. 11] THE AHRAIGNMENT AND PLEAS. 367 ment. Not only is the arraignment necessary,''* but the plea is equally so, for without a plea there can be no issue to try.*" And the fact of arraignment and plea must appear on the record.'^ By the weight of authority, the arraignment and plea must precede the inipaneling and swearing of the jury. An omission thereof cannot be cured by an arraignment and plea after the trial has commenced.^* In some states it is held that an arraignment and plea is a mere matter of form, and may be expressly or impliedly waived by the defendant, or be cured by statute, or by a trial and verdict without objection.^* Where the defendant has been arraigned, tried, and convicted, and obtains a new trial, he need not be again arraigned before the second trial; ^* nor need there be an arraignment in the circuit 28 2 Hale, P. C. 218; 2 Hawk. P. C. c. 28, § 6; Parkinson v. People, 135 111. 401, 25 N. E. 764; State v. Hughes, 1 Ala. 655; State v. Williams, 117 Mo. 379, 22 S. W. 1104; State v. Wilson, 42 Kan. 587, 22 Pac. 622; Stoneham v. Com., 86 Va. 523, 10 S. B. 238; State v. Montgomery, 68 Mo. 296; Miller v. People, 47 HI. App. 472. 30 Jefeerson v. State, 24 Tex. App. 535, 7 S. W. 244; State v. Hunter, 43 La. Ann. 157, 8 South. 624; Territory v. Brash (Ariz.) 32 Pac. 260; Munson v. State (Tex. App.) 11 S. W. 114; State v. Wilson, 42 Kan. 587, 22 Pac. 622; Parkinson v. People, 135 111. 401, 25 N. E. 764; Miller v. People, 47 111. App. 472; Bowen v. State, 98 Ala. 83, 12 South. 808. Th^t the defendant's attor- ney may plead for him in his presence, and with his acquiescence, see Stewart V. State, 111 Ind. 554, 13 N. E. 59. 81 See the cases cited in the above notes. And see Johnson v. People, 65 111. 301; State v. Walker, 110 Mo. 467, 24 S. W. 1011; Clark v. State, 32 Tex. Cr. E. 412, 24 S. W. 29; State v. Taylor, 111 Mo. 448, 20 S. W. 193; State v. Pontenette, 45 La. Ann. 902, 12 South. 937; Bowen v. State, 98 Ala. 83, 12 South. 808. Sufllciency of showing on the record. Stoneham v. Com., 86 Va. 523, 10 S. E. 238. If there has been an anuignment and plea, the record may be made to show the fact by an. entry nunc pro tunc. Long v. People, 102 111. 331; Parkinson v. People, 135 111. 401, 25 N. E. 764. 32 Parkinson v. People, 135 111. 401, 25 N. E. 764; State v. Hughes, 1 Ala. 655; State v. Montgomery, 63 Mo. 296. Contra, Morris v. State, 30 Tex. App. 95, 16 S. W. 757. S3 See State v. Jones, 70 Iowa, 505, 30 N. W. 751; AUyn v. State, 31 Neb. 593, 33 N. W. 212; U. S. v. Malloy, 31 Fed. 19; People v. McHale (Sup.) 15 N. Y. Supp. 496; State v. Glave, 51 Kan. 330, 33 Pac. 8; Ransom v. State, 49 Ark. 176, 4 S. W. 658; Bateman v. State, 64 Miss. 233, 1 South. 172. 34 State V. Stewart, 26 S. C. 125, 1 S. E. 468; Byrd v. State, 1 How. (Miss.) 247; Hayes v. State, 58 Ga. 35; Custis v. Com., 87 Va. 589, 13 S. E. 73. 368 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 court on appeal from a conviction in a justice's court; '" nor, where a change of venue is demanded and granted after arraignment, need there be a second arraignment in the court to which the case is taken.'* But a second arraignment in these cases is not error.'' (The arraignment formerly consisted of three parts: (1) Calling the prisoner to the bar by his name, and commanding him to hold up his hand; (2) reading the indictment to him; and (3) demanding of him whether he is guilty or not guilty, and asking him how he will be tried^ It is still necessary to call the defendant to the bar," but the practice of compelling him to hold up his hand, which was for the purpose of identifying him, and which was probably never absolutely necessary," is no longer customary. When arraigned, the defendant should be free from any shackles or bonds, unless there is evident danger of an escape.*" \In felonies he must be brought to the bar of the court in person,*^ but in mis- demeanors he may waive the right to be present, and appear and plead by attorney.*^ It is always necessary to read the indictment to the defendant distinctly, in order that he may understand the charge; *' and this requirement is not dispensed with by the fact that he has had a copy of the indictment, as provided by statute.** After the indict- ment has been read, the clerk asks: "How say you, A. B.? Are you guilty or not guilty?" If the defendant confesses the charge, he is said to plead guilty. The confession is recorded, and judg- ment is given as on a conviction.*" The defendant may, in some 8B State V. Haycroft, 49 Mo. App. 488. s« Davis V. State, 39 Md. 355; State v. Stewart, 26 S. C. 125, 1 S. E. 468. There need be no arraignment in the first court if there is an arraignment in the second. State v. Renfrew, 111 Mo. 589, 20 S. W. 299. S7 Shaw V. State, 32 Tex. Or. R. 155, 22 S. W. 588. 88 2 Hale, P. C. 219. s»2 Hale, P. C. 219; 2 Hawk. P. C. c. 28, § 2; 1 Chit Cr. Law, 415; 4 Bl. ■Comm. 323. 40 2 Inst. 315; 3 Inst. 34; 2 Hale, P. 0. 119; 2 Hawk. P. C. c. 28, § 1; J. Kelyng, 10. 41 Post, p. 423. *2 Reg. V. St. George, 9 Car. & P. 483; post, p. 423. 48 2 Hale, P. 0. 219; 4 BI. Comm. 323. 44 Rex V. Hensey, 1 Burrows, 643. -45 Post, p. 372. Ch. 11] THE AEKAIGNMENT AND PLEAS. 369 cases, instead of confessing in such a way as to say expressly that he is guilty, do so impliedly, by a nolo contendere, which has the same effect, for the purposes of the prosecution.** If the defend- ant denies the charge, he answers "Not guilty," to which the prose- cuting officer replies that he is guilty. The answer of the defend- ant, and the replication or similiter, are entered on the record, and the general issue is thus formed. The court then proceeds to im- panel and swear the jury and try the issue, unless a continuance or change of yenue is asked and allowed. Formerly, after issue was joined, the clerk asked the defendant how he would be tried; but as the trial by jury is now the only mode of trial in criminal cases, except in proceedings before inferior courts, the question is not necessary nor usual.*' By general statutory provision, if the defendant stands mute, that is, does not answer at all, or answers irrelevantly, the court will direct a plea of not guilty to be entered, and the effect will be the same as if the defendant had so pleaded.*^ If the defendant is deaf and dumb, he may nevertheless, if he understand the use of signs, be arraigned, and the meaning of the clerk in addressing him may be conveyed to him, by some proper person, by signs, and his signs in reply may be explained to the court.*' If he is insane he cannot be arraigned or tried at all until he becomes sane."" If several persons are charged in the same indictment they ought 46 Post, p. 374. «T U. S. V. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204. *8 Com. v. Lannan, 13 Allen (Mass.) 563; EUenwood v. Com., 10 Mete. (Mass.) 223; Com. v. Place, 153 Pa. St. 314, 26 Atl. 620; Com. v. McKenna, 125 Mass. 397; Com. v. Quirk, 155 Mass. 296, 29 N. B. 514. Formerly, if the defendant obstinately, or of malice, as it was expressed, stood mute in cases of felony, a sentence of peine forte et dure followed, and he was slowly pressed to death with heavy weights; while In treason and misdemeanor it was equivalent to a conviction. Later it was equivalent to a conviction in all cases. If he was dumb ex visitatione Dei, the trial proceeded as if he had pleaded not guilty. Now, however, by statute, even where he stands mute of malice, a plea of not guilty will be entered in all cases. *9 Rex V. Jones, 1 Leach, Crown Cas. 102; Com. v. Hill, 14 Mass. 207; State V. De Wolf, 8 Conn. 93; Rex v. Pritchard, 7 Gar. & P. 303. 60 Post, p. 427. CKIM.PBOC— 34 370 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 all to be arraigned before any of them are brought to trial."^ They have the right to plead severally not guilty, but a plea of not guilty by all of them will be deemed a several plea.°* The Various Pleas. There are various objections which the defendant may raise be- fore answering to the merits, and which, as a rule, he must raise before then, if he raises them at all. As we have seen, he may move to quash the indictment, but objection may be made in this way at any time before verdict.°^ If the court has no jurisdiction, he may raise the question by a plea to the jurisdiction, though, as we shall see, he may take advantage of this objection in other ways, and the plea is not necessary." If there is any defect, whether apparent on the face of the indictment or record, or founded upon some matter of fact extrinsic of the record, which renders the par- ticular indictment insuifieient, he may take advantage of it by plea in abatement, and, if the plea is sustained, the indictment will be abated or quashed."" The most frequent use of this plea is in cases where the defendant is misnamed in the indictment. If, admitting every fact properly alleged in the indictment to be true, it appears on the face of the indictment and record that, as a matter of law, the defendant cannot be required to answer, because the indictment fails to charge any offense, or is otherwise insufQ- cient, or because of want of jurisdiction, the defendant may demur."' If, without entering into the merits of the charge, and independ- ently of any question of guilt or innocence, there is some extrinsic fact which prevents any prosecution at all for the offense charged, and does not go merely to the suificiency of the indictment, as where the defendant has already been acquitted or convicted of the same offense, or has been pardoned, he must specially plead this matter in bar of the indictment. This plea is called a special plea in bar."'' After this comes the plea of not guilty, which is a plea to the merits, and forms the general issue. We will presently take up each of these pleadings in turn. ei 1 Chit. Cr. Law, 418. bb Post, p. 375. 02 State V. Smith, 2 Ired. (N. C.) 402. bo Post, p. 379. 03 Ante, p. 362. »' Post, pp. 382, 407. 0* Post, p. 375. Ch. 11] THE ABEAIGNMENT AND PLEAS. 371 Number of Pleas — Successive Pleas. At common law it was the rule, both in civil and criminal cases, that the defendant must rely upon one ground of defense, and pleading double was never allowed. By the statute 4 Anne, c. 16, §§ 4, 5, it was provided that in civil actions the defendant might, by leave of court, plead as many matters as he should see fit, but the statute expressly provided that it should not extend to criminal cases, so that the rule remained that no more than one plea could be put in to answer any indictment or information. °* The rule was general that, in all cases of misdemeanor, if a defendant pleaded in abatement or specially in bar, and an issue of fact thereon was determined against him, or if he demurred, and the demurrer was overruled, he lost any right to a trial on the offense itself, and sentence could be pronounced as on a regular conviction,"" though the court could, in its discretion, allow him to plead over."" In case of felony, however, if the defendant pleaded in abatement or specially in bar, or demurred, he was allowed at the same time, or even afterwards, to plead over to the indictment on the merits, as if he had never relied upon any other ground of defense; because it was thought that, though a man might lose his property by mis- pleading, he ought not to forfeit his life by any technical nicety or legal error. "^ As we shall see, the defendant may, at any time before verdict, withdraw his plea of not guilty and confess or plead guilty. A fortiori may he withdraw a demurrer, plea to the jurisdiction, or in abatement, or specially in bar, to do so. We shall also see that at any time before sentence the defendant will generally be allowed to withdraw a plea of guilty and plead not guilty. 68 1 Ohit Cr. Law, 434; Com. v. Blake, 12 Allen (Mass.) 188; Eeg. v. Charlesworth, 1 Best & S. 460. B92 Hawk. P. C. c. 31, § 7; 1 Chit. Cr. Law, 435; Rex v. Gibson, 8 East, 110; Kirton v. Williams, Cro. Eliz. 495. See State v. Copeland, 2 Swan. (Tenn.) 626; Hill v. State, 2 Yerg. (Tenn.) 248. CO Crosby v. Wadsworth, 6 East, 602; Kex v. Gibson, 8 East, 110; Reg. v. Goddard, 2 Ld. Raym. 922. 81 1 Chit. Cr. Law, 435; 2 Hale, P. C. 255; 4 Bl. Comm. 338; 2 Hawk. P. C. c. 23, § 128; Id., c. 31, § 6; Reg. v. Goddard, 2 Ld. Raym. 922; Rex v. Gibson, 8 East, 110; State v. Reeves, 97 Mo. 668, 10 S. W. 841; State v. Mc- Coy, 111 Mo. 517, 20 S. W. 240. S72 MOTION TO QUASH, ARRAIGNMENT, DEMOEREE, AND PLEAS. [Ch. 11 Time of Pleading. When the defendant has any special matter to plead in abate- ment or in bar, as a misnomer, or a former acquittal or conviction, he should plead it at the time of his arraignment, before a plea of not guilty. He cannot so plead after a plea of guilty, unless by leave of the court.°^ The same rule applies to a demurrer. The rule does not apply where matter sought to be pleaded in abate- ment or specially in bar arose after the plea of not guilty. In such a case the matter may be set up by a plea puis darrein con- tinuance.°* Duplicity. We have seen that an indictment is bad for duplicity if it charges more than one offense in a single count.°* In like manner, and for the same reason, a plea is bad if it sets up two distinct defenses, either in abatement or in bar.'" CONFESSION— PLEA OF GUILTY— NOLO CONTENDERE. 129. If the defendant confesses his guilt, either ex- pressly by a plea of guilty, or impliedly by a plea of nolo contendere, it is equivalent to a conviction; but he may generally retract and plead not guilty at any time before sentence. A confession of the defendant may be either express or implied. An express confession is where he pleads guilty, and thus directly, and in the face of the court, confesses the accusation."" This is called a plea of guilty, and is equivalent to a conviction. The court must pronounce judgment and sentence as upon a verdict of guilty,"^ but it will hear the facts of the case from the prose- 82 2 Hale, P. 0. 219; 1 Chit. Cr. Law, 435; Com. v. Lannan, 13 Allen (Mass.) 567; Com. v. Blake, 12 Allen (Mass.) 188. 63 Reg. v. Charlesworth, 1 Best & S. 460. 8 4 Ante, p. 278. 8 5 State V. Emery, 59 Vt. 84, 7 Atl. 129; Reg v. Sheen, 2 Car. & P. 634. «» 2 Hawk. P. C. c. 31 § 1; 2 Hale, P. C. 225; 1 Chit Cr. Law, 428. «7 1 Chit Cr. Law, 429; 4 Bl. Comm. 329; People v. Luby (Mich.) 57 N. W. 1092. "A plea of guilty may be supported whenever a verdict of a jury finding a party guilty of a crime would be held valid. A conviction of crime may be Ch. 11] CONFESSION PLEA OF GUILTY NOLO CONTENDERE. 373 cuting officer, and any statement that the defendant or bis counsel may wish to make. The defendant may plead guilty in a capital case as well as in any other, and the court must pronounce the proper judgment ar.d sentence, though it may be death.'^ It cannot compel him to plead not guilty, and submit to a trial, but it may, and generally will, advise him to withdraw his plea, and plead not guilty, and, instead of immediately directing the plea to be entered, will give him a reasonable time to consider and retract it.'" Before sentence has been passed the defendant will generally, but not necessarily, be allowed to retract his plea of guilty, and plead not guilty, but he cannot do so after sentence.'" A defendant may also retract a plea of not guilty, even after it is recorded, and plead guilty." A plea of guilty is a confession of guilt, but it is a formal con- fession before the court in which the defendant is arraigned. It is altogether different from a free and voluntary confession formally made before a magistrate, or to some other person. The latter is merely evidence of guilt.' ^ had in two ways; either by the verdict of a jury, or by the confession of the offense by the party charged by a plea of guilty, 'which is the highest convic- tion.' And the effect of a confession Ss to supply the want of evidence. When, therefore, a party pleads guilty to an indictment, he confesses and convicts himself of all that is duly charged against him in that indictment." In the case from which we have quoted it was therefore held that since, under the Massachusetts statutes, an indictment for murder, in the usual form, is suf- ficient to charge murder in the first degree, though it also includes the second degree, a plea of guilty is equivalent to a conviction of the first degree, and warrants a sentence of death. Green v. Com., 12 Allen (Mass.) 155, 172. 6 8 Com. V. Green, 12 Allen (Mass.) 155. In some states, by statute, a plea of guilty is not allowed in a capital case. But such a statute does not prevent a plea of guilty of a minor offense included in a capital charge. People v. Smith (Sup.) 28 N. Y. Supp. 912. 88 2 Hale, P. C. 225; 2 Hawk. P. C. e. 31, § 2; 4 Bl. Comm. 329; Com. v. Battis, 1 Mass. 94. TO Reg. V. Sell, 9 Car. & P. 346; State v. Shanley (W. Va.) 18 S. E. 734; Mastronada v. State, 60 Miss. 86; Pattee v. State, 109 Ind. 545, 10 N. E. 421; State V. Yates, 52 Kan. 566, 35 Pac. 209; Purvis v. State (Miss.) 14 South. 268; Monahan v. State, 135 Ind. 216, 34 N. E. 967; State v. Williams, 45 La, Ann. 1356, 14 South. 32, 71 2 Hawk. P. C. q. 31, § 1; 4 Harg. St Tr. 778, 779; State v. Shanley, 38 W. Va. 518, 18 S. E. 734. T2 Post, p. 528. 374 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 An implied confession, or, as it is termed, a plea of nolo con- tendere, "is where, in a case not capital, a defendant does not directly own himself to be guilty, but tacitly admits it by throwing himself on the king's mercy, and desiring to submit to a small fine, which the court may either accept or decline, as they think proper." If they grant the request, an entry is made to this effect, that the defendant 'non vult contendere cum domina regina, et posuit se in gratiam curiae,' without compelling him to a more direct confes- sion.'' ''* The chief advantage of such a confession is that it will not prevent a plea of not guilty in an action of trespass for the same injury, while a plea of guilty or direct confession will.'" The plea of nolo contendere has the same effect in a criminal case as a plea of guilty, to the extent that a judgment and sentence may be pronoun- ced as if upon a verdict of guilty." It is not necessary that the court shall adjudge that the defendant is guilty for that follows by necessary legal influence from the implied confession. All that the court is required to do is to pass the sentence of the law affixed to the crime.'' Generally, after a plea of guilty, and a fortiori after a plea of nolo contendere, the court will allow the defendant to offer evidence in mitigation of the sentence.'^ A plea of guilty or nolo contendere will not estop the defendant from taking exception in arrest of judgment to fatal defects appar- ent in the record; '° but it is a waiver of all merely formal defects to which he could have objected by some other plea.'" 7 3 Com; V. Horton, 9 Pick. (Mass.) 206. t* 1 Chit Cr. Law, 431; 2 Hawk. P. C. c. 31, § 3; Reg. v. Templeman, 1 Salk. 55; Com. v. Horton, supra. 75 2 Hawk. P. C. c. 31, §§ 1, 3; Keg. v. Templeman, 1 Salk. 55; Com. v. Horton, supra. 78 1 Chit. Cr. Law, 428; Com. v. Horton, supra; Com. v. Ingersoll, 145 Mass. 381, 14 N. E. 449. 77 Com. V. Horton, supra; Com. v. Ingersoll, supra. 7 8 Com. v. Horton, supra. 7» 1 Chit. Cr. Law, 431; 2 Hawk. P. C. c. 31, § 4. As that the Indictment charges no offense. State v. Levy (Ma Sup.) 24 S. W. 1026. 80 Com. v. Hinds, 101 Mass. 210. Ch. 11] PLEAS IN ABATEMENT. 375 PLEA TO THE JURISDICTION". 130. By a plea to the jurisdiction the defendant objects that the court before which the indictment is preferred has no jurisdiction of the oflfense, or of the person of the defendant. This plea is seldom used, as the objection may be taken in other -ways. This plea will be proper when the court before which the indict- ment is preferred has no cognizance of the particular crime, either because of the nature of the crime, or because it was not committed within the territorial jurisdiction of the court, or when the court has no jurisdiction of the defendant's person.*^ Objection to the jurisdiction may generally be taken advantage of under the plea of not guilty, or the general issue, and need not be specially plead- ed,*" or it may be successfully raised by motion in arrest of judg- ment, or on appeal or writ of error, or by demurrer, when the want of jurisdiction appears on the face of the indictment or in the cap- tion."' A plea to the jurisdiction is therefore seldom resorted to.'* The plea, being dilatory, must be certain to every intent. The highest degree of certainty is required. "° A plea to the jurisdiction will not lie on the ground that the presiding judge was not entitled to the offlce, since the right of the judge to ofiflce, at least if he is a de facto judge, cannot be tried in a collateral way, but only in a direct proceeding in which he is one of the parties.** PLEAS IN ABATEMENT. 131. Any defect, -whether apparent on the face of the indictment, or founded upon some matter of fact extrinsic 81 4 Bl. Comm. 333; 2 Hale, P. C. 256. 82 Parker v. Elding, 1 Bast, 352; Rex v. Johnson, 6 Bast, 583. But see 2 Hawk. P. C. c. 38, § 5. 83 Kex V. Fearnley, 1 Term K. 316, 1 Leach, 425. 84 Whart. Cr. Prac. & PI. § 422. 85 Ante, p. 151; post, p. 377; Taylor v. State (Md.) 28 Atl. 815. 8 6 State V. Conlan, 60 Conn. 483, 23 Atl. 150, and cases there cited. 376 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 of the record, -whicli renders the indictment insufiBLcient, may be taken advantage of by plea in abatement. Any defect apparent on the face of the indictment, or founded on some matter extrinsic of the record, rendering the indictment in- sufficient, may be made the ground of a plea in abatement, and, if found for the defendant, will abate the indictment.*' Thus, if the indictment does not describe the defendant by any addition, where an addition is necessary, it is defective on its face, and the defend- ant may plead in abatement.*' So, also, if the defendant is mis- named or misdescribed, which is an objection founded on an ex- trinsic fact, a plea in abatement will lie.** So, where an indict- ment for failure to repair a highway does not sufficiently describe the highway, the objection may be raised in this way.*" If the defect is apparent on the face of the indictment, without reference to any extrinsic fact, it is more usual to move to quash the indict- ment, or to demur. But in most jurisdictions, where extrinsic facts must be shown, the plea is necessary. As we hare seen, all mistakes in the name or addition of the defendant must be taken advantage of in this manner, for the objection cannot be raised on motion in arrest, or on writ of error.*^ When a misnomer is pleaded in abatement, the state may either allow the plea, for the defendant must give his true name therein, and will be concluded thereby,^^ or it may reply, either denying the truth of the plea, or alleging that the defendant is as well known by one name as the other, so that he may be properly indicted by either, thus raising an issue of fact."* 87 2 Hale, P. C. 236, 238; Donald v. State, 31 Fla. 255, 12 South. 695; Day V. Com., 2 Grat. (Va.) 562; Com. v. Long, 2 Va. Cas. 318. 88 1 Chit. Cr. Law, 445; ante, p. 148. 88 2 Hawk. P. C. c. 25, § TO. 80 Eex V. Hammersmith, 1 Starkie, 357, 358. - 81 Ante, p. 149; Com. v. Dedham, 16 Mass. 146; Com. v. Gillespie, 7 Serg. & R. (Pa.) 479; People v. Collins, 7 Johns. (N. Y.) 549; Turns v. Com., 6 Mete. (Mass.) 225; Scott v. Soans, 3 East, 111; Com. v. Fredericks, 119 Mass. 199. 82 2 Hale, P. O. 238; 4 Bl. Comm. 335; Com. v. Sayers, 8 Leigh (Va.) 722. 83 State V. Malia, 79 Me. 540, 11 Atl. 602; Com. v. Gale, 11 Gray (Mass.) 320. Where a plea of misnomer is sufficient in form, the question of idem sonans, Ch. 11] PLEAS IN ABATEMENT. 377 It is well settled that the pendency of one indictment is no ground for a plea in abatement or in bar to another indictment for the same cause,^* though it might be ground for the exercise of the court's discretion to quash one or the other of them. No prejudice to the defendant can well arise, for whenever either of them, and it is immaterial which, is tried, and a judgment rendered on it, the judgment may be pleaded in bar to the other.^" A plea in abatement is merely a dilatory plea. If successful, the only advantage generally gained is delay, for the defendant may be detained in custody, and a new indictment may be presented, or, in some cases, as we have seen, the indictment may be amended.*' The plea must be verified by affidavit,'' and must be certain to every intent. In these dilatory pleas the highest degree of cer- tainty is required."* A plea in abatement must be filed before any plea in bar.*' If the plea is insufficient either in point of form or in substance, the prosecuting officer may demur, thereby forming an issue of law on the plea,^"" The court will not, on motion, quash the plea,^"^ being a question of fact, must be raised by replication, and not by demurrer. State V. Malia, supra. 9* 1 Chit. Or. Law, 446; 2 Hawk. P. C. c. 34, § 1; Reg. v. Goddard, Ld. Raym. 922; Rex v. Stratton, Doug. 240; Withipole's Case, Cro. Car. 134, 147; Com. V. Drew, 3 Cush. (Mass.) 282; Dutton v. State, 5 Ind. 534; Kalloch v. Superior Court, 56 Cal. 236; State v. Eaton, 75 Mo. 586; State v. Security Bank, 2 S. D. 538, 51 N. W. 337; White v. State, 86 Ala. 69, 5 South. 675; Eldrldge v. State, 27 Fla. 162, 9 South. 448; Vaughn v. State, 32 Tex. Cr. R. 407, 24 S. W. 26; ante, p. 115; post, p. 385. The rule does not apply to qui tam and penal actions. Com. v. Drew, supra; Com. v. Churchill, 5 Mass. 175. 8 6 Com. v. Drew, supra; post, p. 382. 06 Rowland v. State, 126 Ind. 517, 26 N. E. 485; ante, p. 315. 8T Com. V. Sayers, 8 Leigh (Va.) 722. 88 4 Bac. Abr. 51; State v. Ward, 60 Vt. 142, 14 Atl. 187; State v. Emery, 59 Vt. 84, 7 Atl. 129; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Dolan v. People, 64 N. Y. 485; State v. Bryant, 10 Yerg. (Tenn.) 527; State v. Brooks, 9 Ala. 9; Hardin v. State, 22 Ind. 347; Reeves v. State, 29 Fla. 527, 10 South. 901; Tilley v. Com., 89 Va. 136, 15 S. E. 526; Brennan v. People, 15 111. 511; Dyer v. State, 11 Lea (Tenn.) 509; State v. Duggan, 15 R. I. 412, 6 Atl. 597. 89 2 Hale, P. C. 175; 2 Hawk. P. C. c. 34, § 4; Martin v. Com., 1 Mass. 347; State V. Dibble, 59 Conn. 168, 22 Atl. 155. 100 1 Chit Cr. Law, 449; Rex v. Dean, 1 Leach, Crown Cas. 476. 101 Rex V. Cooke, 2 Bam. & O. 618. 378 MOTION TO QUASH, AEKAIGNMENX, DEMURRER, AND PLEAS. [Ch. 11 nor can it be amended. ^"^ If the prosecuting officer denies the plea, he replies to that effect, and an issue of fact on the plea is thus formed.^"' If the replication is insufficient in law, the defend- ant may demur,^"* or he may answer it on the facts, by a rejoinder, and so on until an issue on the plea is reached. Issue must be thus taken on a plea in abatement, either by demurrer or reply, and the issue must be tried and determined. It is error to summarily overrule a plea, without an issue thereon.^ '"' At common law, when, a plea in abatement to an indictment for misdemeanor is found in favor of the defendant, he was dischar- ged,^ °° but in case of felony, where the objection was for a mis- nomer, he was detained, as we have seen, until a new indictment could be presented.^"' If a plea on the ground of misnomer by one of several defendants is sustained, the indictment will be quashed as to that one only.^"* If the plea is found against the defendant on the facts, he is allowed to plead over in cases of felony,^"" but in cases of misdemeanor the judgment is final, as upon a convic- tion."" The latter proposition does not apply to judgment against him on demurrer to his plea, or on his demurrer to the replication to his plea; in such case he is entitled to plead over.*^^ These are 102 Rex V. Cooke, 2 Bam. & C. 871. 103 Rex V. Dean, 1 Leach, Crown Cas. 476; note 93, supra. 104 Rex V. KnoUys, 2 Salk. 509. los Martin v. State, 79 Wis. 165, 48 N. W. 119; Baker r. State, 80 Wis. 416, 50 N. W. 518. If the plea Is bad on its face, the error is not ground for reversal. Baker v. State, supra. 108 2 Hale, P. C. 238; Rex v. Shakespeare, 10 East, 88. 107 2 Hale, P. C. 176, 238; 2 Hawk. P. C. c. 34, § 2; note 96, supra. .108 2 Hale, P. C. 177. 109 2 Hale, P. C. 239, 255; 2 Hawk. P. G. c. 31, § 6; 4 Bl. Comm. 338; Rex V. Gibson, 8 East, 110; Rex v. Goddard, 2 Ld. Raym. 922. 110 2 Hawk. P. C. c. 31, § 7; Eichorn v. Le Maitre, 2 Wils. 367; Rex v. Gib- son, 8 East, 107; Barge v. Com., 3 Pen. & W. 262; Guess v. State, 1 Eng. (Ark.) 147; Com. v. Carr, 114 Mass. 280. 111 Rex V. Johnson, C Bast, 583; Bowen v. Shopcott, 1 East, 542; Eichorn v. LeMaitre, 2 Wils. 308. "This distinction between the result of a verdict against the defendant on his plea in abatement, and a judgment against him on demurrer thereon, is founded on this principle, that wherever a man pleads a fact which he knows to be false, and a verdict be against him, the judg- ment ought to be final, for every man must be presumed to know whether his Ch. 11] DEMURRER. 379 the common-law rules, but they may not now obtain under the prac- tice of some of the states, and in some states they have been modi- fied by statute. DEMURRER. 132. By a demurrer the defendant raises the objection that on the face of the indictment and record, admitting the truth of every fact which is well pleaded, he ought not, as a matter of law, be required to answer. A de- murrer lies not only by the defendant to the indictment, but by the state to every plea of the defendant, and by the defendant to every plea of the state, if it is insuflBL- cient as a matter of law. A demurrer admits the truth of every fact which is suflflciently alleged, but raises the objection that, as a matter of law, the indictment does not charge an offense, or does not charge such an offense that the defendant can be, as a matter of law, required to answer.^ ^^ If a defendant is feloniously indicted for stealing prop- erty which is not the subject of larceny, the indictment is bad on demurrer; for, admitting the taking, it charges no offense. The demurrer puts the legality of the whole proceedings in issue, and compels the court to examine the whole record, so that, for in- stance, if it appears from the caption of the indictment that the court has no jurisdiction, a demurrer will be sustained.^^' Facts which are not well pleaded, even though material, are not admitted, nor does the demurrer admit allegations of the legal effect of the facts pleaded.^^* In civil pleading a demurrer may be general or special. The plea be true or false in matter of fact; but upon demurrer to a plea in abate- ment, there shall be a respondeat ouster, because every man shall not be presumed to know the matter of law which he leaves to the judgment of the court." Elchorn v. LeMaiU-e, 2 Wils. 3G8; 1 Chit Or. Law, 451. 112 4 Bl. Comm. 334; State v. Ball, 30 W. Va. 382, 4 S. E. 645; Lazier v. Com., 10 Grat. (Va.) 708; Holmes v. State, 17 Neb. 73, 22 N. W. 232; Com. V. Trimmer, 84 Pa. St. 65. 113 1 Chit. Cr. Law, 440; Rex v. Feamley, 1 Term R. 316, 1 Leach, Crown Cas. 425; Com. v. Trimmer, 84 Pa. St. 65. 114 Whart. Cr. PI. & Prac. § 403; Com. v. Trimmer, 84 Pa. St. 65. 380 MOTION TO QUASH, AEEAIGNMENT, DEMOREEE, AND PLEAS. [Ch. 11 former assigns no special ground of objection, while the latter doe» specify the objection. In criminal pleading, at common law, there is no such distinction.^^" At common law, in cases of misdemeanor, the defendant cannot, as of right, plead over to the indictment, after the overruling of hi» demurrer, where the demurrer is general, but the decision on the demurrer operates as a conviction, for the demurrer admits the facts; *^' nor, it seems, can he plead over, as a matter of right, in cases of felony.^ ^' The court, however, may, in the exercise of its discretion, allow him to plead over in cases of misdemeanor,^^* and' generally will do so in cases of felony.^^* By statutes, in some juris- dictions, it is provided that in all cases where a demurrer is over- ruled the judgment shall be respondeat ouster, thus giving the right to plead over, and in some states, even in the absence of a statute, this is the rule. If the indictment contains two distinct and independent charges for two separate offenses, in separate counts, or in the same count, and the defendant demurs generally, though one of the offenses be not indictable, or be insufflciently alleged, the indictment will be sustained as to the good count or charge, for it may be good in part."" On demurrer to an information or complaint, defects may be cured by amendment,^^^ and the same is true of defects in the caption of an indictment.^^'' An indictment itself, however, cannot be amend- ed, unless it is allowed by statute.^"' lis Eeg. V. Brown, 3 Cox, Cr. Gas. 133. 118 2 Hawk. P. C. c. 31, § 7; 2 Hale, P. C. 257; Rex v. Gibson, 8 Bast, 107; State V. Passaic Agr. See, 54 N. J. Law, 260, 23 Atl. 680; People v. Taylor, 3 Denlo (N. Y.) 98; State v. Abresch, 42 Minn. 202, 43 N. W. 1115. iiT Bennett v. State, 2 Yerg. (Tenn.) 472. 118 1 Obit Cr. Law, 439. 110 2 Hawk. P. C. c. 31, § 6; Wilson v. Laws, 1 Salk. 59; Hume v. Ogle, Cro. Bliz. 196; Barge v. Com., 3 Pen. & W. 262; Foster v. Com., 8 "Watts & S. (Pa.) 77; Com. v. Goddard, 13 Mass. 456. 120 Ingram v. State, 39 Ala. 247; Hendricks v. Com., 75 Va. 934; State v. McClung, 35 W. Va. 280, 13 S. E. 654; Gibson v. State, 79 Ga. 344, 5 S. E. 76; ante, p. 299. 121 Rex V. Holland, 4 Term R. 458; ante, p. 315. 122 Ante, p. 126. 123 Ante, p. 315. "Ch. 11] DEMUEEEE. 381 A demurrer should regularly be interposed before pleading to the indictment. The defendant cannot, as a matter of right, withdraw his plea and demur. Whether he shall be allowed to do so rests in the discretion of the court.^^* If the demurrer is on the ground that the facts stated do not ■constitute a crime, and it is sustained, the defendant must be dis- charged from custody.*" But, if the objection is to the form of the indictment, he only obtains a delay, for, though the indictment may be quashed, he may be detained until a new indictment is ifound,*''' or, by statute, until the indictment is amended. At common law the defendant could take the chance of a com- plete acquittal, and, failing in this, he could, on motion in arrest -of judgment, obtain almost any advantage that he could have ob- tained on demurrer,*^' so that there was little to be gained by •demurrer, unless the indictment clearly failed to charge any offense. In the latter case it was, and still is, advisable, for, if sustained, the defendant, as we have just seen, must be discharged from cus- tody, and a trial will be avoided. By statutes now, in most states, the remedy by motion in arrest of judgment is not as effectual as formerly, and some defects, such as duplicity, uncertainty, etc., must be raised by motion to quash, or demurrer, if raised at all. In some states it is provided that demurrer shall not lie for ■certain specified grounds, such as uncertainty; or the grounds of demurrer are specified by statute, and a demurrer will not lie for any other ground.*''' As we have seen, misjonder of counts, since it does not render an indictment bad as a matter of law, is not ground for demurrer.*"" 12* Reg. v. Brown, 3 Cox, Cr. Cas. 127; Reg. v. Purchase, Car. & M. 617; Com. T. Chapman, 11 Cush. (Mass.) 422; People v. Villarino, 66 Cal. 228, 5 Pac. 154. 125 Rex V. Lyon, 2 Leach, Crown Cas. 600; Rex v. Haddock, Andrews, 137; Rex v. Fearnley, 1 Term R. 316; Rex v. Burder, 4 Term R. 778. 128 1 Chit. Cr. Law, 443; Rex v. Haddock, Andrews, 147; ante, -p. 366. 127 4 Bl. Comm. 324; 1 Chit. Cr. Law, 442. 128 See People v. Schmidt (Cal.) 30 Pac. 814; People y. Markham (CaL) 30 !Pac. 620. i2» Ante, p. 296. 382 MOTION TO QUASH, AEEAIGNMENT, DEMUREEB, AND PI.EAS. [Ch. 11 PLEAS IN BAR. 133. A plea in bar goes to show that the defendant cannot be punished for the offense charged. It may be: (a) Special, or (b) General. 134. A special plea in bar does not go to the merits, and deny the facts alleged in the indictment, but sets up some extrinsic fact, by reason of -which the defendant cannot be tried at all for the offense charged. The usual special pleas in bar are: (a) Autrefois acquit or convict, or former jeop- ardy. (b) Pardon. 135. The general plea in bar is the plea of not guilty. SAME — PLEAS OF AUTREFOIS ACQUIT AND CONVICT, OR FORMER JEOPARDY. 136. At common la,M7 an acquittal or conviction of an offense in a court having jurisdiction, and on a sufficient accusation, may be pleaded in bar of any subsequent prosecution for the same offense. 137. The constitution of the United States, and the dif- ferent state constitutions, provide, in substance, that no person shall be twice put in jeopardy for the same of- fense. Most of the courts hold that this is merely a declaration of the common law^ rule. 138. To constitute a former jeopardy — (a) The court in which the former prosecution took place must have had jurisdiction, and must have been legally constituted. (b) The indictment or other accusation must have been sufficient to sustain a convic- tion, and the proceedings must have been valid. Ch. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 383 (c) Jeopardy only begins when the defendant has been arraigned and has pleaded, and the jury have been sworn and charged with his deliverance. (d) There is no jeopardy if the prosecution fails through the fault or procurement of tlie defendant, or, by the weight of opinion, through necessity, as because of the death or sickness of a juror or inability of the jury to agree. (e) The offenses must be the same in fact and in law. By the weight of authority, they are not the same if the defendant could not have been convicted under the first indict- ment on proof of the facts charged in the second. A conviction or acquittal under one indictment w^ill bar a prosecution un- der another for any offense of which the defendant could have been convicted under the first. It is a universal maxim of the common law that no person is to be twice placed in jeopardy for the same offense.^ ^^ Whenever a man is once acquitted upon any indictment or other accusation, before any court having jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation of the same crime.^^^ This is called the plea of autrefois acquit. So if a per- son has, in like manner, once been tried and convicted, he may plead such conviction in bar of any subsequent accusation for the same oflense.^'^ This is called a plea of autrefois convict. By the constitution of the United States, it is declared that "no per- son shall be * * * subject, for the same offense, to be twice put in jeopardy of life and limb." This provision applies only to prosecutions in the federal courts, but there are similar provisions ISO Ex parte Lange, 18 Wall. 163. lai 4 BL Comm. 335; Keg. v. Bird, 2 Denison, Grown Gas. 216, 182 4 Bl. CQmm. 336. 384 MOTION TO QUASH, AERAIGNMBNT, DEMURRER, AND PLEAS. [Ch. 11 in the state constitutions. Some of them omit the words "of life or limb," and merely prohibit putting a person twice in jeopardy for the same offense, or twice trying him for the same offense, but the purpose and meaning are the same. They are "equivalent to a declaration of the common-law principle that no person shall be twice tried for the same offense." ^'* "The question recurs, what is the meaning of the rule that no person shall be subject for the same offense to be twice put in jeopardy of life or limb? Upon the fullest consideration which I have been able to bestow on the subject, I am satisfied that it means no more than this: that no man shall be twice tried for the same offense. • * • The test by which to decide whether a person has been once tried is perfectly familiar to every lawyer, — it can only be by a plea of autrefois acquit, or a plea of autrefois convict." ^^* Some of the courts thus construe the constitutional provision as being merely declaratory of the common-law rule. Others have given it a broader construc- tion, and have sustained a plea of former jeopardy, when a common- law plea of autrefois acquit or convict could not have been sus- tained. It will not be possible for us to go at length into the cases on the question of former jeopardy, and show the points on which they are conflicting. All that we can do is to state and explain the general rules. The student must then consult the decisions of his own state. Of course, a plea of autrefois convict can only be sustained by showing a verdict of guilty, for without this there can be no con- viction. A verdict of not guilty, however, was not necessary to a plea of autrefois acquit. If, after jeopardy really attached, the prosecution was discontinued unnecessarily, and without the de- fendant's fault or consent, this was equivalent to an acquittal. What Constitutes Jeopardy. Jeopardy does not begin until the defendant is put upon his trial before a court of competent jurisdiction, upon an accusation which is, suflQcient to sustain a conviction, and the jury has been sworn and charged with his deliverance. They are always so charged IBS Com. V. Roby, 12 Pick. (Mass.) 501; People v. Goodwin, 18 Johns. (N. Y.) 202. 184 People V. Goodwin, supra. Cb. 113 PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 386 as they are sworn. In the first place, the defendant must be put upon his trial. The discharge of a prisoner by a committing magistrate, or the refusal of a grand jury to indict him, does not prevent a subsequent indictment, for there has been no jeopardy,^^" Nor, for the same reason, does the quashing of an indictment, or the sustaining of a demurrer or plea in abatement, or plea to the juris- diction, before a plea to the merits and swearing of the jury, pre- vent a subsequent indictment for the same offense.^'* And a plea of former arraignment,^'^ or that another indictment is pending,^" is bad. Jeopardy only begins when the defendant has been duly arraigned, and has pleaded not guilty, and has been put upon his trial, and this is not until the jury has been fully impaneled and sworn. At any time before this the prosecution may be discon- tinued without prejudice to the right to institute another prosecu- tion.^^" Swearing part of the jurors is not enough to put the defendant in jeopardy.^*" By the weight of authority, as soon as the jury are entirely sworn, and charged with the deliverance of the defendant, jeopardy at- 1SB2 Hale, P. C. 243, 246; 2 Hawk. P. O. c. 35, § 6; McCann v. Com., 14 Grat. (Va.) 570; Gaffney v. Circuit Judge Missaukee Co., 85 Mich. 138, 48 N. W. 478; Com. v. Hamilton, 129 Mass. 479; Ex parte Crawlin, 92 Ala. 101, 9 South. 334; Com. v. Miller, 2 Ashm. (Pa.) 61; Jambor v. State, 75 Wis. 664, 44 N. W. 963; State v. Whipple, 57 Vt 637; Ex parte Clarke, 54 Cal. 412; State v. Harris, 91 N. C. 656. 136 Com. V. Gould, 12 Gray (Mass.) 171; Stuart v. Com., 28 Grat. (Va.) 950; State V. Redman, 17 Iowa, 333. 137 Fost. Cr. Law, 104, 105. 138 Reg. V. Goddard, 2 Ld. Raym. 920; Rex v. Sti-atton, Doug. 240; Withi- pole's Case, Cro. Car. 147; State v. Benham, 7 Conn. 418; Com. v. Drew, 3 Oush. (Mass.) 279; People v. Fisher, 14 Wend. (N. Y.) 9; O'Meara v. State, 17 Ohio St. 515; Stuart v. Com., 28 Grat. (Va.) 950; State v. Dixon, 78 N. C. 558; State v. Webb, 74 Mo. 333; Miazza v. State, 36 Miss. 614; ante, p. 377. 139 People V. Fisher, 14 Wend. (N. Y.) 9; . Com. v. Tuck, 20 Pick. (Mass.) 356; Stuart v. Com., 28 Grat. (Va.) 950; State v. Champeau, 52 Vt. 313; State V. Hastings, 86 N. C. 596; Ferris v. People, 48 Barb. (N. Y.) 17; Gardiner v. People, 6 Parker, Cr. R. (N. Y.) 155; Bryans v. State, 34 Ga. 323; Alexander v. Com., 105 Pa. St. 1; State v. Main, 31 Conn. 572; State v. Burket, 2 Mill, Const. (S. C.) 155; State v. M'Kee, 1 Bailey (S. C.) 651; Patterson t.- State, 70 Ind. 341; Clarke v. State, 23 Miss. 261; State v. Paterno, 43 La. Ann. 514, 9 South. 442. 1*0 State V. Burket, supra. CKIM.PROC— 25 386 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 taches; and if, after that, a nolle prosequi is entered, or the jury are unnecessarily discharged, without the defendant's consent, this will amount to an acquittal, and he cannot be again tried either on that indictment or on another indictment for the same offense.^*^ The discharge of the jury does not amount to an acquittal if through the escape, death, sickness, or misconduct of a juror, or the disqualification of a juror not discovered before the jury -are sworn, or because of the illness of the prisoner or of the judge, or the expiration of the term of court, or any other case of urgent neces- sity, the progress of the trial is interrupted. In such a case an- other jury may be impaneled, and the defendant may be again put upon his trial.'*'' Nor, by the great weight of authority, does it amount to an acquit- tal to discharge the jury without the defendant's consent, even in a capital case, where they have been deliberating so long that there 141 state V. Robinson (La.) 15 South. 146; Com. v. Cook, 6 Serg. & R. (Pa.) .577; State v. M'Kee, 1 Bailey (S. C.) 651; Morgan v. State, 13 Ind. 215; Com. v. Hart, 149 Mass. 7, 20 N. E. 310; People v. Webb, 38 Cal. 467; Peo- ple V. Cage, 48 Cal. 323; Bryans v. State, 34 Ga. 323; Nolan v. State, 55 Ga. 521; Mount v. State, 14 Ohio, 295; Teat v. State, 53 Miss. 439; O'Brian v. Com., 9 Bush (Ky.) 333; Klock v. People, 2 Parker, Or. R. (N. T.) 676; Stewart v. State, 15 Ohio St. 159; "Wright v. State, 5 Ind. 290; Price v. State, 19 Ohio, 423; People v. Barrett, 2 Caines (N. Y.) 304; Lee v. State, 26 Ark. 260; Joy V. State, 14 Ind. 139; State v. Walker, 26 Ind. 346; Hines v. State, 24 Ohio St. 134; Gruber v. State, 3 W. Va. 699; Bell v. State, 44 Ala. 393; State v. Redman, 17 Iowa, 329; McFadden v. Com., 23 Pa. St. 12; People v. Ny Sam Chung, 94 Cal. 304, 29 Paa 642. Where the jury separates after rendering a verdict which is void because delivered to the judge outside of the court- house, the accused, having been once in jeopardy is entitled to be discharged. Jackson v. State (Ala.) 15 South. 351. 1*2 Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171; Rex v. Stevenson, 2 Leach, Crown Cas. 546; Nugent v. State, 4 Stew. & P. (Ala.) 72; Rex v. Edwards, 4 Taunt. 309; Stocks v. State, 91 Ga. 831, 18 S. E. 847; State v. Hall, 9 N. J. Law, 256; State v. Allen, 46 Conn. 531; State v. M'Kee, 1 Bailey (S. C.) 651; Com. v. Purchase, 2 Pick. (Mass.) 521; Com. v. Roby, 12 Pick. (Mass.) 502; Com. v. McCormick, 130 Mass. 61; Com. v. Fells, 9 Leigh (Va.) 613; Stone v. People, 2 Scam. (111.) 326; People v. Cage, 48 Cal. 323; State V. Moor, Walk. (Miss.) 134; People v. Ross, 85 Cal. 383, 24 Pac. 789; State V. Honey cutt, 74 N. C. 391; Hector v. State, 2 Mo. 166; Barrett v. State, 35 Ala. 406; Mixon v. State, 55 Ala. 129; Lester v. State, 33 Ga. 329; Ex parte McLaughlin, 41 Cal. 211; Hoftman v. State, 20 Md. 425. Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 387 is no reasonable expectation tliat they will be able to agree, and they state in open court that they will not be able to agree.^** "These decisions cannot be regarded as a Tiolation of the maxim under consideration, because, although in a certain sense it may be said that the prisoner was put in jeopardy by the first trial, yet the event has shown that there was no legal trial, and, therefore, that he was in no such jeopardy or danger of conviction as the maxim regards." ^** The discharge of the jury, even unnecessarily, does not amount to an acquittal where the defendant consents, for he may waive his rights in this respect.^*' Jurisdiction of Former Court. To constitute a former jeopardy, the court in which the former prosecution took place must have been legally constituted, and must have had jurisdiction of the offense and of the person of the defend- ant; otherwise its judgment must have been null and void.^*" 143 Com. v. Purchase, 2 Pick. (Mass.) 521; People v. Goodwin, 18 Johns. (N. Y.) 187; People v. Olcott, 2 Johns. (N. Y.) 301; U. S. v. Perez, 9 Wheat. 579; Winsor v. Reg., L. R. 1 Q. B. 289; C!om. v. Bowden, 9 Mass. 494; Com. V. Roby, 12 Pick. (Mass.) 502; Ex parte McLaughlin, 41 Cal. 212; State v. Woodruff, 2 Day (Conn.) 504; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,- 204; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617; State v. Whitson, 111 N. O. 695, 16 S. E. 332; State v. Champeau, 52 Vt 313; People v. Pline, 61 Mich. 247, 28 N. W. 83; Com. v. Olds, 5 Litt. (Ky.) 137; State v. Moor, Walk. (Miss.) 134; People v. Greene, 100 Cal. 140, 34 Pac. 630. Contra, Com. V. Cook, 6 Serg. & R. (Pa.) 577; Com. v. Clue, 3 Rawle (Pa.) 498; Williams V. Com., 2 Gi'at. (Va.) 570. So by statute now in Virginia. Jones v. Com., 86 Va. 740, 10 S. E. 1004. If the court abuses its discretion in discharging the jury for failure to agree, the discharge will operate as an acquittal. Where a jury had been out for four days, the judge sent the sheriff to inquire whether they could agree, and, on his bringing a reply that they could not, discharged the jury, without further inquiry as to their ability to agree. It was held that this amounted to an acquittal. People v. Cage, 48 Cal. 323. The discharge must not be in the defendant's absence. Rudder v. State, 29 Tex. App. 262, 15 S. W. 717. 14* Com. V. Roby, 12 Pick. (Mass.) 502. 14 B Reg. v. Deane, 5 Cox, Cr. Cas. 501; Com. v. Sholes, 13 Allen (Mass.) 554; People r. Kerm, 8 Utah, 268, 30 Pac. 988; People v. Gardner, 62 Mich. 307, 29 N. W. 19; State v. M'Kee, 1 Bailey (S. C.) 651; Stewart v. State, 15 Ohio St. 155. 148 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130, 388 MOTION TO QUASH, ARRAIGNMENT, DEMCRBEE, AND PLEAS. [Ch. 11 Thus, an acquittal or conviction in a court of the "United States, on indictment for an offense of which that court has no jurisdiction, is no bar to an indictment against him for the same offense in a state court.^*^ And a trial and acquittal or conviction which is void because one of the presiding judges was related to the defend- ant cannot support a plea of former jeopardy.^*' Chnrader of the Court. If the court in which the defendant was formeriy prosecuted was legally constituted, and had jurisdiction, it makes no difference what court it was. The former jeopardy will bar a subsequent prosecution by the same sovereign in any tribunal whatever.^*' Where two separate courts of the same sovereign have concur- rent jurisdiction of the offense, the one which first rightfully as- sumes jurisdiction acquires control to the exclusion of the other.^^" Errors and Irregularities on Former Prosecution. Though the court may have had jurisdiction of the former prose- cution, yet if the proceedings were so illegally or irregularly con- ducted that a conviction could not have been sustained, as where there was no arraignment or no plea, the acquittal therein will not 36 N. B. 807; Reg. v. Bowman, 6 Car. & P. 337; Dunn v. State, 2 Ark. 229; McOlain v. State, 31 Tex. Cr. R. 558, 21 S. W. 365; Com. v. Peters, 12 Mete. (Mass.) 387; Com. v. Dascom, 111 Mass. 404; State v. Odell, 4 Blackf. (Ind.) 156; Weaver v. State, 83 Ind. 289; State v. Green, 16 Iowa, 239; State v. Parker, 66 Iowa, 586, 24 N. W. 225; State v. Little, 1 N. H. 257; State v. Hodgkins, 42 N. H. 474; Phillips v. People, 88 111. 160; Campbell v. People, 109 111. 565; State v. Weatherspoon, 88 N. C. 19; Com. v. Myers, 1 Va. Cas. 188; Com. v. Jackson, 2 Va. Cas. 501; State v. Epps, 4 Sneed (Tenn.) 552; Foust V. State, 85 Tenn. 342, 3 S. W. 657; State v. Payne, 4 Mo. 376; State v. PhilUps, 104 N. C. 786, 10 S. B. 463; Alford v. State, 25 Fla. 852, 6 South. 857. 147 Com. V. Peters, 12 Mete. (Mass.) 387; Blyew v. Com., 91 Ky. 200, 15 S. W. 356. 148 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130, .36 N. B. 807. 148 2 Hawk. P. C. e. 35, § 10; 1 Chit. Cr. Law, 458; Wemyss v. Hopkins, L. R. 10 Q. B. 378; Com. v. Goddard, 13 Mass. 459; Com. v. Cunningham, Id. 247; Com. v. Miller, 5 Dana (Ky.) 320; Wortham v. Com., 5 Rand. (Va.) 669; Bailey's Case, 1 Va. Cas. 258. 160 Whart. Cr. PI. & Prac. § 441; Burdett v. State, 9 Tex. 43. Ch. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 389 constitute a bar.^°* But errors or irregularities which do not render the proceedings a nullity will not defeat a plea of autrefois ac- quit."* The same is true to a certain extent of the plea of autrefois con- vict. If the proceedings were so irregular that the conviction is an absolute nullity, and the sentence has not been performed, the conviction is no bar.^°* But irregularities which do not render the proceeding an absolute nullity, but merely render it reversible on error, will not defeat the plea of former conviction, where the judg- ment has not been reversed.^''* If the prosecution was carried on without fraud on the defendant's part, and he has not only been convicted, but has performed the judgment, he will be protected against a subsequent prosecution, notwithstanding irregularities in the proceedings, though they may have been such as to render the judgment void.^°° Insufficiency of Former Indictment — Variance. There must have been a sufficient accusation on the former prose- cution; otherwise the court could have no jurisdiction. If, there- fore, the indictment was insufficient because of fatal defects in the organization or constitution of the grand jury, or because it was so defective in form or substance that a conviction upon it could not have been sustained, an acquittal upon it cannot be pleaded.^" If, 151 State V. Mead, 4 Blackf. (Ind.) 309; Finley v. State, 61 Ala. 201; Com. V. Bosworth, 113 Mass. 200. 102 2 Hawk. P. C. c. 35, § 8; 2 Hale, P. C. 274; Com. v. Goddard, 13 Mass. 458; Stevens v. Fassett, 27 Me. 266; Hines v. State, 24 Ohio St. 134; O'Brian v. Com., 9 Bush (Ky.) 333; State v. Brown, 16 Conn. 54. 163 People V. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130, 36 N. E. 807; Com. v. Alderman, 4 Mass. 477; Wariner v. State, 3 Tex. App. 104. 154 Com. V. Loud, 3 Mete. (Mass.) 328. 165 Com. V. Loud, 3 Mete. (Mass.) 328; Ex parte Lange, 18 Wall. 163. In the latter case it was held that the provisions of the eommon law and of the federal constitution that no man shall be twice placed in jeopardy of life or limb, are mainly designed to prevent a second punishment for the same offense, and hence, when the court has imposed fine and imprisonment where the statute only conferred power to impose fine or imprisonment, and the fine has been paid, it cannot, even during the same term, modify the judgment by Imposing imprisonment only. As to the effect of fraud, see post, p. 393. 166 2 Hale, P. O. 245; 2 East, P. C. 519; Rex v. Vandercomb, 2 Leach, 390 MOTION TO QUASH, AEKAIGNMENT, DEMUEREE, AND PLEAS. [Ch. 11 for instance, a person who has been indicted and tried in one county is afterwards indicted in another, he cannot plead former jeopardy in bar of the latter indictment, because one indictment must be bad, since the offense will be proved to have been beyond the jurisdiction of the grand jury in one case or the other.^"^ And if an indictment for larceny lay the property in the goods in the wrong person, or erroneously describes the property, and the defendant is acquitted, he may be tried on another indictment correctly stating the owner- ship or describing the property, for the former indictment was fatally defective, and there was no jeopardy; ^"^ and the same is true of prosecutions for arson or any other offense, where the first indictment was bad for mistake in naming the owner of the prem- ises.^^° And the rule applies to other cases in which there has been an acquittal on the ground of variance.^"" Nor will a conviction on an insuflScient indictment bar a subse- quent indictment, if the conviction has been set aside, or the judg- ment arrested.^ °^ Not even will an unreversed judgment consti- tute a bar in such a case where the sentence has not been execut- ed.^*^ If the sentence has been executed, it is otherwise.^" Ci-own Cas. 708; Rex v. Emden, 9 East, 441; Reg. v. Vaux, 4 Coke, 44a; Weston V. State, 63 Ala. 155; People v. Barrett, 1 Johns. (N. Y.) 66; Munford V. State, 39 Miss. 558; Kohllielmer v. State, Id. 548; Hite v. State, 9 Yerg. (Tenn.) 357; People v. Clark, 67 Cal. 99, 7 Pac. 178; Pritchett v. State, 2 Sneed (Tenn.) 285; Com. v. Somerville, 1 Va. Cas. 164; Gerard v. People, 3 Scam. (111.) 363; State v. Ray, Rice (S. C.) 1; State v. Smith (Iowa) 55 N. W. 198; State v. Meakins, 41 La. Ann. 543, 6 South. 822. 1B7 2 Hale, P. 0. 245. IBS Rex V. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Clair, 7 Allen (Mass.) 525; Parchman v. State, 2 Tex. App. 228; Thompson v. Com. (Ky.) 25 S. W. 1059; State v. Williams, 45 La. Ann. 036, 12 South. 932. But see Knox V. State, 89 Ga. 259, 15 S. E. 308. 160 Com. V. Mortimer, 2 Va. Cas. 325; Com. v. Wade, 17 Pick. (Mass.) 400; State v. Brown, 33 S. C. 151, 11 S. E. 641. ISO See Com. v. Chesley, 107 Mass. 223; Guedel v. People, 43 111. 226. 161 People v. Casborus, 13 Johns. (N. Y.) 351; Com. v. Hatton, 3 Grat. (Va.) 623; Guedel v. People, 43 111. 226; State v. Elder, 65 Ind. 282; Robinson v. State, 52 Ala. 587; Com. v. Chesley, 107 Mass. 223. 162 U. S. V. Jones, 31 Fed. 725; State v. Gill, 33 Ark. 129; Kohlheimer v. State, 39 Miss. 548. 163 Com. v. Loud, 3 Mete. (Mass.) 328. Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 391 If a verdict is erroneously set aside, or the judgment erroneously arrested, on a good indictment, not on defendant's application, he cannot be again tried.^°* Mistrial Through DeJendanCs Fault or by Consent. If there is a mistrial, through the defendant's fault, he cannot set up the prosecution in bar of a subsequent trial. He is precluded from claiming an acquittal, for instance, if he absents himself when the verdict is rendered, so that there is a mistrial,*" or if he fails, before the jury are discharged, to raise objections to a verdict that is so defective that a judgment cannot be rendered on it. He cannot acquiesce in the verdict until it is too late to remedy the defect, and then claim the benefit of the defect. "° So if he with- draws a plea of guilty by leave of the court, and consents to a nolle prosequi he may be again tried. '^'^ And, as we have seen, if he consents to a discharge of the jury, he cannot claim an acquittal.* °' Verdict Set Aside — Judgment Arrested or Reversed — New Trial. We have just seen that where the defendant does not object to a verdict, which is so defective that no judgment can be entered on it, until after the jury have been discharged, he cannot claim an acquit- tal. Many of the courts seem to go further than this, and hold without qualification that, where the jury return a verdict upon which no lawful judgment can be entered, their discharge without the defendant's consent does not operate as an acquittal.*"^ But it is not believed that if objection is made to the form of the verdict before the jury are discharged, and the defect may be remedied by sending them back to correct it, the court may discharge the jury without doing so. Such a discharge would, no doubt, operate as an acquittal. 164 State V. Norvell, 2 Yerg. (Tenn.) 24; note 141, supra. 166 State V. Hughes, 2 Ala. 102; People v. Higgins, 59 Cal. 357. 16 6 Wright V. State, 5 Ind. 527; Wilson v. State. 20 Ohio, 26; State v. Sut- ton, 4 Gill. (Md.) 494; Gibson v. Com., 2 Va. Gas. Ill; Com. v. Smith, Id. 327; Com. v. Gibson, Id. 70; State v. Valentine, 6 Yerg. (Tenn.) 533; State V. Spurgin, 1 McCord (S. C.) 252; Com. v. Hatton, 3 Grat. (Va.) 623; State V. Redman, 17 Iowa, 329; Murphy v. State, 7 Cold. (Tenn.) 516; Cobia v. State, 16 Ala. 781. 167 Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631. 168 Note 145, supra. 169 Ex parte Brown (Ala.) 15 South. 602, and cases there collected. 392 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 Whenever, on the defendant's application, a verdict or judgment of conviction is set aside, arrested, or reversed, as on motion for a new trial, motion in arrest of judgment, writ of error or appeal, he may be again tried.^''° If a person is found guilty on one only of several counts, and ob- tains a new trial on motion, or reversal of the judgment on appeal or error, he cannot be again tried on the other counts.^ ^^ And, by the weight of authority, if a person is convicted, not of the highest offense charged, but of a minor offense included in the charge, as of manslaughter on an indictment for murder, or simple assault on an indictment for an aggravated assault, this is an acquittal of every higher offense of which he could have been convicted, and, on obtaining a new trial, he cannot be again tried for the higher offense.^'* I'o Reg. V. Drury, 3 Car. & K. 193; Com. v. Roby, 12 Pick. (Mass.) 502; Sutcliffe V. State, 18 Ohio, 469; Com. v. Green, 17 Mass. 515; Clark v. State, 4 Humph. (Tenn.) 254; Gibson v. Com., 2 Va. Cas. Ill; People v. Casborus, 13 Johns. (N. Y.) 351; People v. McKay, 18 Johns. (N. Y.) 212; Com. v. Gould, 12 Gray (Mass.) 173; Lane v. People, 5 Gilm. (111.) 305; State v. Lee (N. C.) 19 S. E. 375; Johnson v. State, 82 Ala. 29, 2 South. 466; Joy v. State, 14 Ind. 139; State v. Benjamin (La.) 14 South. 71; State v. Knouse, 33 Iowa, 365; State v. Redman, 17 Iowa, 329; Robinson v. State, 23 Ten. App. 315, 4 S. W. 904; People v. Barric, 49 Cal. 342; Lovett v. State, 33 Fla. 389, 14 South. 837; Gannon v. People, 127 111. 507, 21 N. E. 525; People v. Schmidt, 64 Cal. 260, 30 Pac. 814; People v. Hardisson, 61 Cal. 378; State V. Rhodes, 112 N. C. 857, 17 S. B. 164; Veatch v. State, 60 Ind. 291. Contra, Nolan V. State, 55 6a. 521. The rule does not apply where a verdict is erro- neously set aside, or the judgment erroneously arrested, and not on the de- fendant's application. State v. Elden, 41 Me. 165; State v. Parrish, 43 Wis. 395; State v. Norvell, 2 Yerg. (Tenn.) 24. 171 Campbell v. State, 9 Yerg. (Tenn.) 333; Brennan v. People, 15 111. 511; Morris v. State, 8 Smedes & M. (Miss.) 762; Hunt v. State, 25 Miss. 378; State V. Kattlemann, 35 Mo. 105. 172 Brennan v. People, 15 111. 511; Johnson v. State, 29 Ark. 31; People v. Gordon, 99 Cal. 227, 33 Pac. 901; State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 121; Huff v. State (Tex. Cr. App.) 24 S. W. 903; Robinson v. State, 21 Tex App. 160, 17 S. W. 632; Johnson v. State, 27 Fla. 245, 9 South. 208; Slaughter v. State, 6 Humph. (Tenn.) 410; post, p. 400. But see, contra. State V. Behimer, 20 Ohio St. 572; Com. v. Arnold, 83 Ky. 1; State v. Me- Cord, 8 Kan. 232. Cll. 11] PI.EAS OF AUTREFOIS ACQUIT AND CONVICT. 393 Writ of Error or Appeal by the State — Ne>o Trial after Acquittal. At common law, the state cannot appeal or sue out a writ of error to review a judgment for the defendant in a criminal case, even on demurrer, much less on a verdict of acquittal; and it would seem suflflciently clear that it is not within the power of the legislature, under our constitutions, to allow a writ of error by the state and a new trial after the defendant has been acquitted by the jury on the facts, notwithstanding errors of law may have been committed at the trial.^'* By statute, in many of the states, a writ of error or appeal is allowed the state from an adverse judgment on motion to quash or demurrer, or motion in arrest of judgment, or where a statute has been held unconstitutional; ^'* and it is also allowed by statute in case of an acquittal by the jury on the facts for the purpose of determining and settling questions of law, but not for the purpose of obtaining a new trial.^''° Very recently, however, the Connecticut court has held that it is not putting a person twice in jeopardy for the same offense to grant a new trial on appeal by the state, under statutory authority, from an acquittal, because of error in the exclusion of evidence offered by the state.^^° No direct authority is cited to sustain the decision, and it remains to be seen whether other courts will follow it. Effect of Fraud in Former Prosecution. A prosecution instituted and carried on by or in the interest of an offender, in order to escape punishment, can never be relied upon to sustain a plea either of former acquittal or conviction. It may IT 3 Com. V. Cummings, 3 Gush. (Mass.) 212; People v. Coming, 2 N. X. 9; U. S. V. More, 3 Cranch, 159; State v. Reynolds, 2 Hayw. (Tenn.) 110; State V. Kemp, 17 Wis. 669; U. S. v. Sanges, 144 U. S. 312, 12 Sup. Ct. 609; People V. Dill, 1 Scam. (111.) 257; Martin v. People, 13 111. 341; Com. v. Stelmling, 156 Pa. St 400, 27 Atl. 297; Com. v. Han-ison, 2 Va. Cas. 202; State v. Lee, 49 Kan. 570, 31 Pac. 147; State v. Solomons, 6 Terg. (Tenn.) 360; State v. Simmons, 49 Ohio St. 305, 31 N. E. 34; Com. v. Cain, 14 Bush (Ky.) 525; Com. V. Sanford, 5 Litt (Ky.) 289; State v. PoweU, 86 N. C. 640; State v. Phillii>s, 66 N. C. 647; State v. Copeland, 65 Mo. 497. 17 4 State V. Burgdoerfer, 107 Mo. 1, 17 S. "W. 646; Com. v. Wallace, 114 Pa. St. 405, 6 Atl. 685; State v. Hufifman, 51 Kan. 541, 33 Pac. 377. 17B state V. Ward, 75 Iowa, 637, 36 N. W. 765. 17 6 state V. Lee (Conn.) 30 Atl. 1110. And see State v. Buchanan, 5 Har. & J. (Md.) 317. 894 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 be treated as void by the state and ignored because of the fraud, or on the ground that the state was not in any sense a party to it^'''' Thus, where an offender fraudulently institutes a prosecution against himself in a justice's court, and pays or perforins the judg- ment against him, for the purpose of preventing an indictment against him, which purpose may well be implied from the circum- stances, he cannot set up his conviction to defeat an indictment subsequently presented.^^* This, it has been held, does not apply where the state is in fact a party to the prosecution. Where a prosecution in behalf of the state is regularly commenced by the prosecuting attorney, and carried on to final judgment, the state is a party to the prosecu- tion, and it has been held that the judgment will bar a subsequent prosecution for the same offense, notwithstanding the fact that the prosecutor was corrupted during the pendency of the prosecu- tion.i" Several Soverdgnties. Where the same act constitutes an offense against each of sev- eral sovereigns, a prosecution by one does not necessarily bar a prosecution by the other.^*" Thus, an act which constitutes an offense both against a state and against the United States may be punished by both, provided the offense has two aspects, so that the 177 Shideler v. State, 129 Ind. 523, 28 N. E. 537, and 29 N. E. 36; Com. v. Alderman, 4 Mass. 477; State v. Lowry, 1 Swan (Tenn.) 34; State v. Colvin, 11 Humph. (Tenn.) 599; State v. Yarbrough, 1 Hawks (N. C.) 78; Com. v. •Dascom, 111 Mass. 404; State v. Little, 1 N. H. 257; State v. Wakefield, 60 Vt. 618, 15 Atl. 181; State v. Battle, 7 Ala. 259; Com. v. Jackson, 2 Va. Cas. 501; State v. Epps, 4 Sneed (Tenn.) 552; State v. Green, 16 Iowa, 239; State V. Brown, 16 Conn. 54; State v. Simpson, 28 Minn. 66, 9 N. W. 78; McFar- land V. State, 68 Wis. 400, 32 N. W. 226; State v. Cole, 48 Mo. 70. 178 Com. V. Aldei-man, 4 Mass. 477; De Haven v. State, 2 Ind. App. 376, 28 N. E. 562. And see Wariner y. State, 8 Tex. App. 104. 179 Shideler v. State, 129 Ind. 523, 28 N. B. 537, and 29 N. E. 36. ISO U. S. V. Barnhart, 10 Sawy. 491, 22 Fed. 285; Bloomer v. State, 48 Md. 521; Com. v. Green, 17 Mass. 515; U. S. v. Amy, 14 Md. 149, note. Of com-se, one sovereign may, in Lis discretion, refrain from punishing a man who has aU-eady been punished for the same act by another sovereign, or the fact of such punishment may be considered by the court in mitigation of the pun- ishment. See U. S. V. Pirates, 5 Wheat. 184. Ch. 11] PLEAS OF AUTBEFOIS ACQUIT AND CONVICT. 395 United States may punish it in one aspect, and the state may punish it in another, as where the uttering of a forged coin may be pun- ished by the state as a cheat, and by the United States as a forgei-y or counterfeiting.^" A prosecution under a municipal ordinance for a violation thereof is no bar to a prosecution by the state for the same act as an offense against the state.^^^ Nor will a prosecution by the state bar a prosecution under the ordinance. ^^^ So it has been held that a prosecution before a federal court martial will not bar a prosecution by the state, or vice versa.^** Necessity for Former Judgment. It has been held that not only a plea of former acquittal, but a plea of former conviction as well, may be sustained, though no judg- ment was ever rendered in the former prosecution.*'" This is true, of course, of the plea of former acquittal ; but there are many cases which hold the contrary in case of a plea of former conviction, since a verdict of guilty may be set aside in some cases, or the judgment may be arrested on defendant's application, without prejudice to the right to institute another prosecution. ^'^ It has been held that a plea of guilty, if outstanding, will support 181 Whart. Or. PI. & Prac. § 442; U. S. v. Bamhart, supra; Abbott v. State, 75 N. Y. 602; Hendrick v. Com., 5 Leigh (Va.) 707; Campbell v. People, 109 111. 565; Phillips v. People, 55 111. 430; Moore v. Illinois, 14 How. 13. 182 State V. Clifford, 45 La. Ann. 980, 13 South. 281; Greenwood v. State, 6 Baxt. (Tenn.) 567; McRea v. Mayor, 59 Ga. 168; Wragg v. Penn T]p., 94 111. 11; Robbins v. People, 95 111. 175; People v. Stevens, 13 Wend. (N. T.) 841; State T. Oleson, 26 Minn. 507, 5 N. W. 959; State v. Lee, 29 Minn. 445, 13 N. W. 913; Levy v. State, 6 Ind. 281; Ambrose v. State, Id. 351; Town of Van Buren v. Wells, 53 Ark. 368, 14 S. W. 38. But see Preston v. People, 45 Mich. 486, 8 N. W. 96; State v. Thornton, 37 Mo. 360. 183 See the cases above cited. 184 State V. Rankin, 4 Cold. (Tenn.) 145; 3 Op. Attys. Gen. 750; Steiner's Case, 6 Op. Attys. Gen. 413; Whart. Or. PI. & Prac. § 439. 18 5 state V. Parish, 43 Wis. 395; State v. Norvell, 2 Yerg. (Tenn.) 24; Mount V. State, 14 Ohio, 295; State v. Benham, 7 Conn. 414; Hurt v. State. 25 Miss. 378; State v. Elden, 41 Me. 165. 186 Com. V. Lahy, 8 Gray (Mass.) 461; Com. v. Lockwood, 109 Mass. 329; Com, V. Fraher, 126 Mass. 265; U. S. v. Olsen, 57 Fed. 579; Coleman v. Ten- nessee, 97 U. S. 530; People v. Casborus, 13 Johns. (N. Y.) 351; Brennan v. People, 15 111. 511. 396 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 a plea of former conviction, though no judgment has been entered on it.^" This would seem doubtful, however, since, as we have seen, a plea of guilty may be withdrawn by leave of the court, to allow a plea of not guilty. Identity of Offenses. To sustain a plea of autrefois acquit or convict, the offenses must be the same. Neither an acquittal nor a conviction of one offense will bar a prosecution for another.^ '^ It is often very diffl- cult to determine when the offenses are the same, and there is much conflict in the cases. All we can do in the limited space which we can devote to the subject is to state the general rules, and give such illustrations of them as may be necessary to make them clear. (1) It is the general rule that if the crimes are so distinct, either in fact or in law, that evidence of the facts charged in the second indictment would not have supported a conviction under the first, the offenses are not the same, and the second indictment is not barred.^ *° An indictment for uttering a forged instrument is not barred by an acquittal on an indictment for forging the same instrument,^"'* unless by statute, as is the case in some jurisdictions, a person may be convicted of forgery on proof of uttering. Nor, it has been held, is an indictment for a burglarious entry with intent to steal barred by acquittal on an indictment charging the same burglarious en- try and an actual stealing, since, though the burglary is the same, the defendant could not have been convicted on the first indictment on proof of a mere intention to steal.* '^ And it has been laid down 187 People V. Goldstein, 32 Cal. 432. 188 2 Hawk. P. C. c. 25, §§ 1, 3; Id. c. 36, § 10; 2 Hale, P. C. 253; 1 Chit. Cr. Law, 452, 462. 18 9 2 Hawk. P. O. c. 35, §§ 11, 12; 2 East, P. C. 522; 2 Hale, P. C. 244; Rex V. Vandercomb, 2 Leach, Crown Cas. 717; Rex v. Emden, 9 East, 437; Com. V. Roby, 12 Pick. (Mass.) 502; Rex v. Plant, 7 Car. & P. 575; Reg. v. Salvi, 10 Cox, Cr. Cas. 481, note; Com. v. Clair, 7 Allen (Mass.) 525; People V. Handley, 93 Mich. 46, 52 N. W. 1032; People v. Kerm, 8 Utah, 268, 30 Pac. 988; Winn v. State, 82 Wis. 571, 52 N. W. 775. iBO Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066; Reddick v. State, 31 Tex. Cr. R. 587, 21 S. W. 684. 181 2 Hawk. P. C. c. 35, § 5; 1 Chit. Cr. Law, 456; Rex v. Vandercomb, 2 Leach, Crown Cas. 716; Com. v. Roby, 12 Pick. (Mass.) 503. Ch. 11] PLEAS OP AUTREFOIS ACQUIT AND CONVICT. 397 as a general rule that an acquittal or conviction of burglary ia no bar to an indictment for larceny, or vice versa.^*" For the same reason, an acquittal or conviction on an indictment under a statute for a nuisance in keeping a tenement for the unlaw- ful sale of intoxicating liquors is no bar to an indictment for being a common seller of intoxicating liquors at the same time and place, and the reverse of the proposition is also true.*"' "The gist of one offense is the keeping a tenement for an illegal purpose, which makes it a nuisance; of the other, the doing certain acts which constitute an offense, to the commission of which it is not necessary that the defendant should have been the keeper of any building or tenement whatever. On the trial of the first indictment the jury would have been properly instructed to acquit the defendant if he did not keep the tenement described, however great a number of sales of intoxicating liquors he might have made within it. The rule has been often stated 'that, unless the first indictment was such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.' " *°* In like manner, an acquittal of keeping a shop open on Sunday will not bar an indict- ment for a nuisance in keeping the same shop at the same time for the illegal sale of intoxicating liquors.**' If, at common law, a person is indicted as an accessory after the fact, and acquitted, he may be indicted as a principal, for proof of one charge will not support the other."' The same is true where a person is acquitted on an indictment as accessory before the fact, 192 2 Hale, P. C. 245, 246; 2 Hawk. P. C. c. 35, § 5; State v. Warner, 14 Ind. 572; Wilson v. State, 24 Conn. 57; State v. Hackett, 47 Minn. 425, 50 N. W. 472; Bell v. State, 48 Ala. 684; People v. Garnitt, 29 Cal. 622; Smith v. State, 22 Tex. App. 350, 3 S. W. 238; Eust v. State, 31 Tex. App. 75, 19 S. W. 763. 183 Com. V. Bnbser, 14 Gray (Mass.) 83; Com. v. Cutler, 9 Allen (Mass.) 486; Com. V. Hogan, 97 Mass. 122. And see Com. v. Brelsford (Mass.) 36 N. E. 677. 194 Com. V. Bubser, supra. 19 6 Com. V. Shea, 14 Gray (Mass.) 386. And see Com. v. Trickey, 13 Allen (Mass.) 559. 196 1 Hale, P. 0. 625, 626; 2 Hale, P. C. 244; 1 Chit Or. Law, 457; 2 Hawk. P. O. c. 35, § 11. 898 MOTION TO QUASH, ARUAIGNMENT, DEMUEREB, AND PLEAS. [Ch. 11 and is afterwards indicted as principal, or vice versa; ^°' though it would probably be held otherwise where, by statute, a person in- dicted as principal may be convicted as accessary. We have seen that, if an acquittal results from a variance be- tween the indictment and the proof, the defendant has not been in jeopardy for the offense proven, because the indictment is insuffi- cient to support a conviction; ^"^ that, for instance, an acquittal on an indictment for stealing the property or burning the building of one person, because the ownership is proven to have been in another person, is no bar to an indictment laying the ownership in the proper person.^" Another reason why this is true is because the offenses are not the same. Proof of the second indictment would not have sustained the flrst.^*"* As we shall presently see, an acquittal or conviction on one in- dictment will bar a subsequent indictment for a minor offense so included in the first charge that the defendant could have been convicted of it.^"'^ This rule cannot apply, however, where the first indictment was for a felony, and the second is for a misde- meanor, and the defendant was acquitted because in the particular jurisdiction there could be no conviction of misdemeanor on indict- ment for felony.^"* In some states, where a felony merges a misdemeanor arising out of the same act, there can be no conviction on indictment for a misdemeanor on proof of a felony. In these states, where an aggravated assault, such as an assault with intent to rape, to mur- 187 2 Hale, P. C. 244; 1 Chit. Cr. Law, 457; 2 Hawk. P. C. c. 35, § 11; Rex v. Blrchenough, 1 Moody, Crown Cas. 477; Rex v. Plant, 7 Car. & P. 575; Reynolds v. People, 83 111. 479; State v. Larkin, 49 N. H. 36; Morrow v. State, 14 Lea (Tenn.) 475. 198 Ante, p. 389. 199 Rex V. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Mortimer, 2 Va. Cas. 325; Parchman v. State, 2 Tex. App. 228; Com. v. Wade, 17 Pick. (Mass.) 400. 200 Com. V. Wade, supra; Com. v. Clair, 7 Allen (Mass.) 525; State v. Wil- liams, 45 La. Ann. 936, 12 South. 932. 201 Post, p. 400. 202 1 Chit. Cr. Law, 45G; 2 Hawk. P. C, c, 35, § 5; Rex v. Webster, 1 Leach, Crown Cas. 12; Crosby v. Leng, 12 East, 415; Com. v. Roby, 12 Pick. (Mass.) 504. Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 399 der, or to rob, is a felony, there can be no conviction on indictment for a simple assault or assault and battery on proof of an aggra- vated assault; and it is held that acquittal or conviction on indict- ment for simple assault or assault and battery will not bar a prose- cution for aggravated assault; and on the same reasoning, where an aggravated assault is a misdemeanor, it is held that an acquittal or conviction on an indictment for assault with intent to rape, murder, or rob will not bar a prosecution for rape, murder, or rob- bery.^" ^ (2) If the charges are in fact for the same offense, though the indictments differ in immaterial circumstances, the defendant may plead his former acquittal or conviction, with proper averments to show the identity of the charges. "It would be absurd to suppose that, by varying the day, parish, or any other allegation the precise accuracy of which is not mate- rial, the prosecutor could change the rights of the defendant, and subject him to a second trial." """^ Thus, if a person is indicted for homicide on a certain day or by certain means, and acquitted, and is afterwards indicted for killing the same person on a different day or by different means, the difference between the indictments does not make the offenses different.^"" And the same is true of other offenses, for, though it is possible for several acts of the same kind to be committed at different times by the same person, it lies in averment, and the party indicted may always show by parol evidence that the same charge is intended.^" 203 See Com. v. Roby, 12 Pick. (Mass.) 502; State v. Hattaborough, 66 Ind. 223; Severin v. People, 37 111. 414; People v. Saunders, 4 Parker, Cr. R. (N. Y.) 196; State v. Littlefleld, 70 Me. 452; Murphy v. Com., 23 Grat. (Va.) 960; Reg. V. Morris, 10 Cox, Cr. Cas. 480. But see People v. Purcell (Gen. Sess. N. y.) 16 N. Y. Supp. 199; State v. Smith, 43 Vt. 324; Com. v. Arner, 149 Pa. St. 35, 24 Atl. 83; Franklin v. State, 85 Ga. 570, 11 S. E. 876; dissenting opinion of Biddle, J., in State v. Hattaborough, supra. And see post, pp. 400, 403. 205 1 Chit Cr. Law, 452; Rex v. Coogan, 1 Leach, Crown Cas. 448; Rex V. Emden, 9 East, 437; 2 Hawk. P. C. c. 35, § 3; Com. v. Roby, 12 Pick. (Mass.) 504; Com. v. Cunningham, 13 Mass. 245; People v. McGowan, 17 Wend. (N. Y.) 386; State v. Brown, 16 Conn. 54. 20 6 2 Hale, P. C. 179, 244; 2 Hawk. P. C. c. 35, § 3; Rex v. Clark, 1 Brod. & B. 473. 207 2 Hale, P. C. 179, 244; Duncan v. Com., 6 Dana (Ky.) 295; People r. 400 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 (3) If the defendant could have been convicted under the first indictment of the offense charged in the second, an acquittal under the former indictment is a bar to the second. As we have shown in another connection,'"'* on an indictment for murder the defendant may be convicted of manslaughter, or, in most jurisdictions, of assault with intent to kill, and, in some jurisdictions, of assault and battery or simple assault. So, on indictment for rape or robbery, there may be, in most jurisdictions, a conviction of assault with intent to rape or rob, or simple assault. The same is true of other offenses. The defendant may be ac- quitted of the highest offense charged, and convicted of a minor offense included in the charge. Wherever, therefore, the defendant is acquitted entirely on an indictment, this is not only an acquittal of the highest offense charged, but is an acquittal of every minor offense of which he could have been convicted under that indict- ment, and the acquittal may be pleaded in bar of a subsequent indictment for the minor offense.""* So where the defendant, instead of being altogether acquitted on the indictment, is convicted of a minor offense included in the charge, this is an acquittal of the higher offenses charged, and bars any subsequent indictment, or a further prosecution on the same indictment, for a higher offense of which he might have been con- victed."" McGowan, supra. So where the two indictments describe the person killed differently, but sufficiently, it may be shown that the same person is in- tended. 2 Hale, P. G. 244. In such case the plea must show that the party was known by both names, so as to show that the first proceedings were valid. Id.; 2 Hawk. P. C. c. 35, § 3. 2 08 Ante, p. 351. 209 2 Hale, P. C. 246; Wrote v. Wiggee, 4 Coke, 4ob; Com. v. Roby, 12 Pick. (Mass.) 504; Reg. v. Gould, 9 Car. & P. 364; Dinkey v. Com., 17 Pa. St. 126; People v. McGowan, 17 Wend. (N. Y.) 386; State v. Brannon, 55 Mo. 63; Hamilton v. State, 36 Ind. 280. 210 2 Hale, P. C. 246; Rex v. Dawson, 3 Stai-kie, 62; State v. Dearborn, 54 Me. 442; Com. y. Herty, 109 Mass. 348; People v. Knapp, 26 Mich. 112; Rolls v. State, 52 Miss. 391; State v. Belden, 33 Wis. 121; State v. Lessing, 16 Minn. 75 (Gil. 64); State v. Eeed, 40 Vt. 603; Clem v. State, 42 Ind. 420; Slaughter v. State, 6 Humph. (Tenn.) 410; Morris v. State, 8 Smedes & M. ^Miss.) 762; State v. Brannon, 55 Mo. 63; State v. Shepard, 7 Conn. 54; Gold- ing V. State, 31 Fla. 262, 12 South. 525; People v. Jones, 53 Gal. 58; Brennan V. People, 15 111. 511; ante, p. 391, and cases there cited. Ch. 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 401 As we have seen, in those jurisdictions in which there can be no conviction of a misdemeanor on indictment for a felony, an ac- quittal on indictment for a felony will not bar a subsequent prose- cution for a misdemeanor included in the charge.^^^ (4) If the defendant could have been convicted of the offense charged in the first indictment on proof of the facts charged in the second, though he could not have been convicted of the whole offense charged in the second, then the second indictment is barred, for the former acquittal has negatived the existence of the facts charged in the second. If a person can be convicted of an offense charged on proof of a higher offense, his acquittal of the offense charged necessarily negatives his guilt of the higher offense, and he cannot afterwards be prosecuted therefor. An acquittal on an indictment for voluntary manslaughter will bar a future prosecution for the same act as murder, for the de- fendant could have been convicted of manslaughter on proof of murder.* The acquittal negatives the facts charged in the second indictment. ''^'' For the same reason, an acquittal on an indictment for assault or assault and battery will bar a prosecution for the same act as an aggravated assault, such as an assault with intent to murder, to rape, or to rob, provided (and this qualification is important) that, in the particular jurisdiction, there could have been a conviction of the simple assault or assault and battery on proof of the aggravated assault; and, subject to the same qualification, an acquittal on an indictment for an assault with intent to rape, to rob, or to murder will bar a subsequent prosecution for the consummated crime of rape, robbery, or murder.''^' 211 Ante, p. 398. 212 1 Chit. Cr. Law, 455; 2 Hale, P. C. 246; Wrote v. WIgges, 4 Coke, 45b, 46; Com. v. Roby, 12 Pick. (Mass.) 504. 213 People V. Purcell (Gen. Sess. N. Y.) 16 N. Y. Supp. 199; State v. Smith, 43 Vt 324; Com. v. Amer, 149 Pa. St. 35, 24 Atl. 83; Franklin v. State, 85 6a. 570, 11 S. E. 876; dissenting opinion of Biddle, J., in State v. Hatta- borough, 66 Ind. 223. In People v. Purcell, supra, it was held that an acquittal on a charge of assault and battery is a bar to an indictment for rape. In State V. Smith, supra, it was held that an acquittal or conviction of assault with in- tent to rape will bar a prosecution for rape. In Com. v. Amer, supra, it CRIM.PBOC— 26 402 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 In some states, as we have seen, where the aggravated assault is a felony, it is held that it merges the misdemeanor of assault or assault and battery, so that there could be no conviction of the latter on proof of the former, and, therefore, that acquittal of the misdemeanor cannot be a bar to an indictment for the felony. And in other states, where the aggravated assault is a misdemeanor, it is held, on the same principle, that an acquittal thereof cannot bar a prosecution for the consummated offense M-hich is a felony.''^* (5) In reason, and by the weight of authority, if the prosecuting ofQcer elects to prosecute for an act as constituting a certain of- fense, and the defendant is convicted of that offense, he cannot after- wards be prosecuted for the same act under aggravating circum- stances which change its legal character. But, if the aggravating circumstances do not intervene until after the first conviction, it is otherwise. Some of the cases, as we shall see, are in conflict with this rule. A conviction of larceny, for instance, under an indictment for burglary and larceny, was held a bar to an indictment chaining the same felonious taking as a robbery. To hold otherwise, it was said, would be to subject the defendant to a second prosecution for the same felonious taking.^^^ So, where a person has been convicted of assault with intent to commit rape, he cannot afterwards be prosecuted for rape.^^* And, where a person has been convicted of fornication and bastardy, he cannot afterwards be prosecuted for the same act as rape.^^^ So, where a man is indicted and convicted of an assault and battery, he cannot be afterwards indicted for the same transaction as a riot. "The state," it was said in such a case, "cannot divide an offense consisting of several trespasses into as was held that a person who has been convicted of fornication and bastardy cannot thereafter be tried for rape for the same act. In Franklin v. State, supra, it was held that an acquittal on an indictment for simple assault will bar a prosecution for aggravated assault. 214 Com. V. Roby, 12 Pick (Mass.) 502; State v. Hattaborough, 66 Ind. 223; Severin v. People, 37 111. 414; People v. Saunders, 4 Parker, Cr. R. (N. Y.) 196; State v. Littlefleld, 70 Me. 4.52; Murphy v. Com., 23 Grat. (Va.) 960; Reg. V. Morris, 10 Cox, Cr. Cas. 480. 215 State V. Lewis, 2 Hawks (N. C.) 98. 210 State V. Smith, 43 Vt. 324. 21T Com. V. Arner, 149 Pa. St. 35, 24 Atl. 83. Ch, 11] PLEAS OF AUTREFOIS ACQUIT AND CONVICT. 403 many indictments as there are acts of trespass that would separately support an indictment, and afterwards indict for the offense com- pounded of them all; as, for instance, to indict for an assault, then for a battery, then for imprisonment, then for a riot, then for a mayhem, etc. But, upon an indictment for any of these offenses, the court will inquire into the concomitant facts, and receive in- formation thereof, by way of aggravating the fine and punishment, and will proportion the same to the nature of the offense, as en- hanced by all these circumstances, and no indictment will after- wards lie for any of these separate factsi done at the same time." ^" It has been held that, where a person assaults and wounds two persons at the same time, a prosecution for the offense against one will bar a prosecution for the offense against the other.^'* The rule does not apply where the aggravating circumstances did not intervene until after the former conviction. Thus, where a man is convicted and punished for an assault and battery, or assault with intent to kill, and the person subsequently dies, he may be prosecuted for themurder or manslaughter.^^" There are cases of high authority which conflict with this rule. It is held, as we have seen, in those states where an assault with intent to murder or to rape is a felony, and where a felony merges a misdemeanor arising out of the same act, that an acquittal on an indictment for simple assault and battery will not bar a prosecution for the aggravated' assault, since there could be no conviction of the former on proof of the latter; and the same is true of a prosecution for a consummated felony after an acquittal on an indictment for aggravated assault with intent to commit the felony, in those states where the aggravated assault is a misdemeanor and merges in the felony. To this extent these decisions may be sound enough in reason, for the acquittal does not negative the higher offense. But these courts go further, and hold that a conviction of the mis- demeanor will not bar a prosecution for the felony, on the ground that the offenses are essentially different.^" 218 state v. Ingles, 2 Hayw. (N. O.) 4. 210 State V. Damon, 2 Tyler (Vt.) 387. But see Keeton v. Com., 92 Ky. 522, 18 S. W. 359. 2 20 Reg. v. Morris, 10 Cox, Or. Cas. 480; People v. Purcell (Gen. Sess. N. Y.) 16 N. Y. Supp. 199. 221 See the cases dted in note 214, supra. But these decisions have been 404 MOTION TO QUASH, AEKAIGNMENT, DEMUKREE, AND PLEAS. [Ch. 11 (6) Where the same act, or different acts in the same transaction, constitute separate and distinct offenses, neither an acquittal nor a conviction of one of such offenses will bar a subsequent prosecu- tion for another; but, since a felony merges a misdemeanor arising out of the same act, a conviction of the felony will bar a subsequent prosecution for the misdemeanor. To sustain a plea of former conviction, the offenses must be the same.^^^ If a man should rob and then murder another, his con- viction of the robbery would not bar a prosecution and punish- ment for the murder, for the offenses are distinct, and one felony does not merge in another.^^' The same is true of misdemeanors. Where the same act or acts constitute separate and distinct misdemeanors, the defendant may be separately prosecuted and punished for each. Under the Massa- chusetts statutes, keeping a tenement for the illegal sale of intoxi- cating liquors is one offense, while keeping liquors with intent to sell them is another offense. A conviction for keeping a tenement may therefore be had, though the only evidence is as to liquors for the keeping of which with intent to sell the defendant has al- ready been convicted and punished."^* And generally, if several acts of trespass, though growing out of the same transaction, are separate and distinct, each may be prose- cuted as a separate offense." ^^ Thus, where a person assaults A. with intent to kill him, and, when B. comes to A.'s assistance, assaults B. with a like intent, the two offenses are distinct, and a prosecu- tion for the assault on A. will not bar a prosecution for the assault criticised. See 1 Bish. New Cr. Law, § 1057. And see the cases cited In note 213, supra. 222 1 Chit. Cr. Law, 452, 462; 2 Hawk. P. O. c. 25, §§ 1, 3; Id. c. 36, § 10; 2 Hale, P. C. 253. 2 23 Clark, Cr. Law, 35. 224 Com. V. McShane, 110 Mass. 502. See, also, as to punishment for sep- arate offenses arising out of the same act, State v. Inness, 53 Me. 536; Smith V. Com., 7 Grat. (Va.) 593; Keeton v. Com. (Ky.) 18 S. W. 359; post, p. 405. 226Ashton V. State, 31 Tex. Cr. R. 482, 21 S. W. 48; Samuel v. State, 25 Tex. App. 538, 8 S. W. 656; Womack v. State, 7 Cold. (Tenn.) 508; State v. Parish, 8 Rich. (S. C.) 323; State v. Nash, 86 N. C. 650; Smith v. Com., 7 Grat. (Va.) 593; Vaughan v. Com., 2 Va. Cas. 273; Greenwood v. State, 64 Ind. 250. Ch. 11] PLEAS OJJ' AUTEEFOIS ACQUIT AND CONVICT. 405 on B.''''* And it has been held that where a man presents a pistol at two persons at the same time, and demands their property, com- pelling a surrender thereof by both at the same time, he commits two separate and distinct offenses, — an assault and robbery of each, — and may be prosecuted for both.^^' At common law, where the same act constitutes both a felony and a misdemeanor, the latter is merged in the former. A conviction of rape or murder or robbery, for instance, would bar a subsequent prosecution for assault with intent to rape, murder, or rob.^''* Pleading — Issue and Judgment on Plea. The special plea of autrefois acquit or convict is necessary, for a former acquittal or conviction is not admissible under the general issue of not guilty, nor is it admissible on demurrer, motion in arrest of judgment, or writ of error.^^' The plea consists partly of matter of record and partly of matter of fact. The matter of record is the foi-mer indictment and acquittal or conviction, and the mat- ter of fact is the averment of the identity of the offense and of the person. The plea must set forth the record of the former acquittal or conviction,^^" and it must state that the charge and person are the same as in the first prosecution.^" In case of felony, it was formerly necessary in such a plea to plead over not guilty of the offense charged,"*" but this does not now seem to be required."'* 2 26 Ashton V. State, supra. Z2T Keeton v. Com. (Ky.) 18 S. W. 359. Some of the courts, however, would hold this only a single ofCense. See ante. p. 403; State v. Damon, 2 Tyler (Vt.) 387. 228 Clark, Cr. Law, 35. 229 State V. Barnes, 32 Me. 534; Com. v. Merrill, 8 Allen (Mass.) 547; Com. V. Chesley, 107 Mass. 223; Com. v. O'Nell (Mass.) 29 N. E. 1146; Zachary v. State, 7 Baxt (Tenn.) 1; Justice v. Com., 81 Va. 209; Kickles v. State, 68 Ala. 538; U. S. v. Moller, 16 Blatchf. 65, Fed. Oas. No. 15,794. But see Han- kins V. People, 106 111. 628; Clem v. State, 42 Ind. 420. 280 2 Hale, P. C. 241, 243, 255; 1 Chit. Or. Law, 459; 2 Hawk. P. C. c. 35, § 2; Vaux's Case, 4 Coke, 44a; Rex v.Wildey, 1 Maule & S. 188; Rex v. Bm- den, 9 East, 438; Rex v. Vandercomb, 2 Leach, Crown Cas. 712; Grisham v. State, 19 Tex. App. 504. 2311 Hale, P. C. 255, 392; 2 Hale, P. C. 241; 1 Chit. Cr. Law, 460; 2. Hawk. P. C. c. 35, § 3; Smith y. State, 52 Ala. 407. 282 2 Hale, P. C. 255; 1 Chit Cr. Law, 460. 288 Com. T. Goddard, 13 Mass. 455; Barge v. Com., 3 Pen. & W. 262. 406 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 The prosecuting officer may either reply, taking issue upon the aver- ments of identity, or nul tiel record (no such record) if he intends to dispute the fact of an acquittal or conviction,^'* or he may demur if he relies on its insufficiency as a matter of law.^'" The plea con- cludes with a prayer for defendant's discharge, and must be veri- fied.^'° As we have seen, a plea setting up two distinct defenses is bad for duplicity.^'^ If, therefore, in a plea of autrefois acquit, the defendant were to set up two distinct records of acquittal, the plea would be bad.^*' In case of felony, if the plea is held bad, the judg- ment is respondeat ouster, unless the defendant has pleaded over in the plea, in which case the jury are merely charged again to inquire of the second issue.^'° In England and in some of our states, in cases of misdemeanor, the defendant cannot plead over, and the judgment against him on the plea is final and as upon a convic- tion."*" Generally, however, in this country, no such distinction between felonies and misdemeanors is recognized, but the defendant is allowed to plead over in all cases.^*^ In all cases when the plea is sustained the defendant is discharged."*" These pleas must always be pleaded after the acquittal or con- 234 2 Hale, P. C. 255; 1 Cmt. Cr. Law, 460; Rex v. Wildey, 1 Maule & S. 184; Rex v. Bowman, 6 Car. & P. 101, 337; Hite v. State, 9 Yerg. (Tenn.) 357. 23 6 Kex V. Vandercomb, 2 Leach, Crown Cas. 715, 716; State v. Locklin, 59 Vt. 654, 10 Atl. 464. 236 2 Hale, P. C. 392; Rex v. Vandercomb, 2 Leach, Crown Cas. 715. 2 37 Ante, p. 372. 238 Rex V. Sheen, 2 Car. & P. 634. 239 Rex V. Roche, 1 Leach, Crown Cas. 134; Rex v. Wildey, 1 Mamie & S. 184; Rex v. Coogan, 1 Leach, Crown Cas. 448; Rex v. Vandercomb, 2 Leach, Crown Cas. 721; Com. v. Roby, 12 Pick. (Mass.) 510; Com. v. Wade, 17 Pick. (Mass.) 402. Where there Is a plea over in the plea of autrefois acquit or con- vict, the juiy cannot be charged at the same time with both issues, but they must first determine the plea of former acquittal or conviction. Rex v. Roche, 1 Leach, Crown Cas. 135; Com. v. Merrill, 8 Allen (Mass.) 545. 24 1 Chit Cr. Law, 461; Rex v. Taylor, 3 Bam. & C. 502; Reg. v. God- dard, 2 Ld. Raym. 922; Rex v. Gibson, 8 East, 107; Reg. v. Bird, 5 Cox, Cr. Cas. 11. 241 Com. V. Golding, 14 Gray (Mass.) 49; Com. v. Goddard, 13 Mass. 455; Fiilkuer v. State, 3 Heisk. (Tenn.) 33; McFarland v. State, 68 Wis. 400, 32 N. W. 226. 24 2 2 Hale, P. G. 391. Ch. 11] PLEA OF PARDON. 407 viction. They cannot be taken advantage of as a plea in abatement that another indictment for the same offense is pending.^*' As we have already seen, autrefois acquit and convict are favored pleas, being pleas in bar, and admit of a lower degree of certainty than an indictment, and a still lower degree of certainty than pleas in abatement or other dilatory pleas.^** SAME— PLEA or PAEDON. 139. If the defendant has been pardoned, he must spe- cially plead that fact in bar, in order to take advantage of it, unless the pardon is by a public statute, of \\rhich the court must take judicial notice. If an offender has been pardoned, he cannot be tried for the offense. If the pardon is by a public statute, the court must take judicial notice of it; but if it is a special pardon, of which the court cannot thus take notice, it must be specially pleaded.^*^ A pardon, if pleaded at all before verdict, must be pleaded before the general issue, unless the date is subsequent to the pleadings, for the defendant is estopped by his plea of not guilty and issue there- ^)jj 24 6 Failure to plead a pardon will prevent the defendant from taking advantage of it in bar of the trial and conviction; but it does not necessarily subject him to punishment. It may be taken advantage of at any time, even after conviction and judgment.^*^ At common law, production of a pardon after judgment of convic- tion would cause reversal of the judgment, but would not remove the attainder consequent upon the judgment.*** 243 1 Chit. Or. Law, 463; Reg. v. Goddard, 2 Ld. Raym. 920; Rex v. Strat- ton, Doug. 240; Withipole's Case, Cro. Car. 147; State v. Benham, 7 Conn. 418; ante, pp. 151, 375, 377. 244 Ante, p. 151; Harp v. State (Ark.) 26 S. W. 714. 240 3 Inst. 234; 2 Hawk. P. C. c. 37, § 61; U. S. v. Wilson, 7 Pet 150; Id., 1 Baldw. 91, Fed. Cas. No. 16,730. 248 Fost. Cr. Law, 43; 2 Hawk. P. C. c. 37, § 57; U. S. v. Wilson, 7 Pet. 150; Com. v. Lockwood, 109 Mass. 339. 24T4 Bl. Comm. 337; 1 Chit Cr. Law, 466; 2 Hawk. P. C. c. 37, § 59; 6 Coke, 14; Com. v. Lockwood, 109 Mass. 323. 2 48 4 Bl. Comm. 337. 408 MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS. [Ch. 11 SAME— AGREEMENT TO TURN STATE'S EVIDENCE. 140. In Texas, and perhaps in other states, the defend^ ant may plead in bar an agreement "with the state's at- torney to turn state's evidence against his accomplice. This question was considered at some length by the Texas court in a recent case, and it was held that the trial court erred in sus- taining a demurrer to such a plea on the ground that it was unau- thorized by law. It was held that the state's attorney had a right to maire such an agreement, and that the defendant might set it up, and claim a discharge at the hands of the court.^*' The plea is addressed solely to the court, and the sufQciency of the evidence to support it is not a question for the jury.^^" SAME— PLEA or NOT GUILTY— GENERAL ISSUE. 141. If the defendant pleads not guilty, he thereby de- nies every fact and circumstance necessary to make him guilty of the crime charged. When the issue is joined, this forms -what is called the "general issue." The plea of not guilty puts in issue the whole of the charge, not merely whether the defendant actually did the acts charged, but also the criminal intention with which he is alleged to hare done them, and the legal quality of the guilt to be deduced from the whole. "'^ In civil cases, if the facts are admitted, and the defense is that they were rendered legal by circumstances, a special justi- fication must be pleaded; but in criminal cases all matters of justi- fication or excuse may be shown under the general issue. ''^^ In an 2*9 Camron v. State, 32 Tex. Or. R. 180, 22 S. W. 682, and authorities there cited. 2 00 Camron v. State, 32 Tex. Or. R. 180, 22 S. W. 682; Id. (Tex. Or. App.) 25 S. W. 288. 261 1 Chit. Or. Law, 470; 4 Bl. Comm. 338. 2B2 2 Hale, P. O. 258; 4 Bl. Comm. 338; Martin v. Com., 1 Mass. 347; Sav- age V. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 South. 106; Hodge V. State, 29 Fla. 500, 10 South. 556; State v. Farr, 12 Rich. (S. 0.) 24; Rich- ards V. State, 82 Wis. 172, 5;! N. W. 652; Mills v. State, 76 Md. 274, 25 Atl. 229; Cooper v. State, 64 Md^, 20 Atl. 986. Ch. 11] PLEA OF NOT GUILTY GENERAL ISSUE. 409 indictment for murder, for instance, the defendant cannot plead that he killed the deceased while in a passion caused by proToca- tion, so that the offense was manslaughter only; or that he killed him to prevent his escape from arrest for felony, and was therefore justified; or that he killed him in self-defense, and was therefore excusable; or that he was of tender years, or insane; but he must simply plead "not guilty," and he may show these circumstances under that plea.^"' In civil actions the statute of limitations must generally be spe- cially pleaded, but in criminal cases this is not necessary, for it may be shown under the plea of not guilty that the prosecution is barred."* A plea of not guilty, as we have seen, may always be withdrawn, to admit of a confession or plea of guilty; "" but a plea of not guilty cannot be withdrawn so as to allow the deft' od ant to demur or plead in abatement or specially in bar, unless by leave of the court.'""' Other questions in relation to the plea of not guilty have been already considered.^ ^' 2 63 2 Hale, P. C. 258, 304; 4 Bl. Comm. 338. 254 u. S. V. Brown, 2 Lowell, 267, Fed. Gas. No. 14,665. 2 56 Ante, p. 373. 268 Ante, pp. 372, 377, 381, 267 Ante, p. 366. 410 TRIAL AND VERDICT. [Ch. 12 CHAPTER Xn. TRIAL AND VERDICT. 142-143. Time of Trial— Continuance. 144. Place of Trial— Change of Venue. 145. Right to Public Trial. 146-147. Custody and Restraint of Defendant. 148. Presence of Defendant. 149. Insanity of Defendant 150. Furnishing Copy of Indictment and List of Jurors and Witnesses. 151. Bill of Particulai-s. 152. Loss of Indictment or Information. 153. Presence of Judge. 154. Separate Trial of Joint Defendants. 155. Consolidation of Indictments. — 15&-157. Counsel. 158. The Petit Jury— Right to Jury Trial, and Waiver. 159. Number of Jurors. 160. Selecting and Summoning Jurors. 161-166. Qualification and Exemption of Jurors— Challenges, 167. Swearing the Jury. 168. Opening of the Case by Counsel. 169. View by Jury. 170. Misconduct of Prosecuting Attorney. 171. Misconduct of Judge. 172-173. Summing up and Argument of Counsel. 174-176. Instructions or Charge of the Court to the Jury. 177. Demurrer to Evidence. 178-180. Custody, Conduct, and Deliberations of Jui-y. 181-185. Tlie Verdict TIME or TRIAL— CONTINUANCE. 142. The defendant is entitled to a speedy trial, and, if it is denied him, he must be discharged. But this does not prevent a reasonable continuance on application of the prosecution, in order that it may properly prepare for trial. 143. The defendant may be arraigned and tried imme- diately upon presentation of the indictment, unless he Ch. 12] TIME OF TRIAL CONTINUANCE. 411 can sho-wr ground for a continuance. If, without fault on his part, he is unprepared for trial, or if it appears that a fair and impartial trial cannot then be had, a continu- ance should be granted him. Defendant's Right to Speedy Trial. Every person held on a criminal charge has the legal right to demand a speedy trial, and, if it is denied him, he is entitled to be discharged on habeas corpus. The right was guarantied to the English people by the Magna Charta, and confirmed by subsequent bills of right, which are a part of our common law. Independently of this, the same right is guarantied to us by the constitutions of the United States and the different states. "The speedy trial to which a person charged with crime is entitled under the constitu- tion is a trial at such a time, after the finding of the indictment, regard being had to the terms of court, as shall afford the prosecu- tion a reasonable opportunity, by the fair and honest exercise of reasonable diligence, to prepare for a trial; and, if the trial is delayed or postponed beyond such period, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial." ^ Eeason- able and necessary delay is not a denial of the right. "It is very clear that one arrested and accused of crime has not the right to demand a trial immediately upon the accusation or arrest being made. He must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indict- ment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment or the arrest upon it. It simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law does not exact impossibilities, extraordinary efforts, dili- gence or exertion from the courts or the representatives of the state ; nor does it contemplate that the right to a speedy trial shall operate to deprive the state of a reasonable opportunity of fairly 1 U. S. V. Fox, 3 Mont. 512, quoted in Black, Const. Law, 503. 412 TRIAL AND VERDICT. [Ch. 12 prosecuting criminals." " Whenever, therefore, without fault on the part of the prosecution, delay is necessary in order that it may procure the attendance of material witnesses, or otherwise prepare properly for trial, or because the prosecuting oflflcer is sick, or unable to attend, a reasonable continuance should be granted.' But the court has no power to grant a continuance on application of the state without good cause therefor being shown. Mere want of preparation on the part of the state is not sufficient cause if, by the exercise of reasonable diligence, it could have been pre- pared.* By statute, in most jurisdictions, it is expressly declared that the defendant must be brought to trial within a certain time, or be discharged, unless good excuse is shown for the delay. Defendant's Eight to Delay — Continuance. There is nothing at all, unless there may be statutory provisions in particular jurisdictions, to prevent the state from arraigning the defendant, and putting him upon his trial, at the same term at which the indictment is presented, or even on the same day, pro- vided the defendant cannot show sufficient ground for a continu- ance.' Same — Want of Preparation. Every person charged with crime should be allowed a reasonable time for preparing his defense. If he and his counsel have used due diligence, and have been unable to properly prepare for trial, a motion for a continuance should be granted.* For this reason the defendant should not ordinarily be forced to a trial immediately after the indictment is presented, but should be given until the 2 Ex parte Stanley, 4 Nev. 116. And see Stewart v. State, 13 Ark. 720; Nixon V. State, 2 Smedes & M. (Miss.) 497; City of Creston v. Nye, 74 Iowa, 369, 37 N. W. 777. 8 Com. V. Garter, 11 Pick. (Mass.) 278; People v. Shufelt, 61 Mich. 237, 28 N. W. 79; People v. Weeks, 99 Mich. 86, 57 N. W. 1091. * U. S. V. Fox, 3 Mont 513; Klock v. People, 2 Parker, Cr. R. (N. Y.) 676; Benton v. Com. (Va.) 18 S. B. 282. 5 1 Chit. Cr. Law, 483; 2 Hale, P. C. 28, 29; 2 Inst 568; 4 Inst 164; 4 Bl. Comm. 351. • North V. People, 139 lU. 81, 28 N. E. 966; State v. Deschamps, 41 La. Ann. 1051, 7 South. 133; Blackman v. State, 76 Ga. 288; State v. Brooks, 39 La. Ann. 239, 1 South. 421. Oh. 12] TIME OF TRIAL CONTINUANCE. 413 following term to engage counsel, procure attendance of witnesses, and otherwise prepare for his defense. There may be cases in which he should be prepared for an immediate trial, as where he has been in custody, charged with the 'crime, for some time before the presentation of the indictment, and has had the advice and assistance of counsel, or an opportunity to procure such assistance; and, if this is the case, he has no right to a continuance. A con- tinuance should never be granted merely for delay, or for the mere convenience of the defendant or his counsel.' If the defendant has been negligent in not preparing for trial, want of preparation is no ground for a continuance, and negligence of his counsel must ordinarily be imputed to him.' If his counsel has acted treacher- ously or in bad faith, a continuance should be granted.* ■Same — Absence or Sickness of Defendant or His Counsel. As we shall presently see, there can be no trial for a felony, in the absence of the defendant. In misdemeanor cases, where the defendant is too ill to attend the trial, or is otherwise unable to attend, without fault on his part, a cooitinuance should be granted.^" If the counsel for defendant is too ill to attend, and the defendant has had no time, or was unable, to procure other counsel, he is en- titled to a continuance.^^ But the mere absence of counsel because •engaged in other business, or even because of sickness, where the defendant is represented by other counsel, or could have procured •other counsel, is ordinarily no ground for a continuance.^^ If the T Vance v. Com., 2 Va. Cas. 162; People v. Jackson, 111 N. Y. 362, 19 N. B. 54; State v. Duncan, 6 Ired. (N. C.) 98. 8 Rex v. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Smith v. State, 132 Ind. 145, 31 N. E. 807; People v. McGcnegal, 62 Hun, 622, 17 N. Y. Supp. 147; People V. Collins, 75 Cal. 411, 17 Pac. 430; Price v. People, 131 III. 223, 23 N. E. 639; <3om. V. Buccieri, 153 Pa. St. 535, 26 Atl. 228; May v. State, 38 Neb. 211, 56 N. W. 804; Maloney v. Traverse, 87 Iowa, 306, 54 N. W. 155; Ballard v. State, 51 Fla. 266, 12 South. 865; Dobson v. State (Ark.) 17 S. W. 3. See North v. People, 139 111. 81, 28 N. E. 966. 9 State V. Lewis, 74 Mo. 222.- 10 Hays V. Hamilton, 68 Ga. 833. But not where his inability to be present !is due to his voluntary intoxication. State v. Ellvin, 51 Kan. 784, 33 Pac. 547. 11 Hayley v. Grant, Sayer, 63; People v. Logan, 4 Oal. 188; Daughtery v. State (Tex. Cr. App.) 26 S. W. 60; Loyd v. State, 45 Ga. 57. 12 State V. Koontz, 31 W. Va. 127, 5 S. E. 328; State v. Stegner, 72 Iowa, 13, 33 N. W. 340; State v. Rainsberger, 74 Iowa, 196, 37 N. W. 153; Harvey 414 TRIAL AND VERDICT. [Ch. 12 defendant's counsel has suddenly withdrawn from the case without leaving time or opportunity to employ other counsel, a continuance should be granted.^* Same — Absence of Witness. A continuance should be granted because of the absence of a material witness for the defendant, if due diligence has been used to procure his attendance, and there is a reasonable prospect of his being present at the time to which the continuance is asked." The expected testimony must be material," and it is not material if it is altogether irrelevant;^® nor if it is merely cumulative, or if the facts could be proved by other witnesses present; " nor if it is T. State, 67 Ga. 639; Burnett v. State, 87 Ga. 622, 13 S. E. 552; Robinson t. State, 82 Ga. 535, 9 S. B. 528; Nixon v. State, 85 Ga. 455, 11 S. B. 874; Long r. People, 135 111. 435, 25 N. E. 851; People v. Goldenson, 76 Cal. 328, 19 Pac. 161; Stockholm v. State, 24 Tex. App. 598, 7 S. W. 338; Roberts v. People, 9 Colo. 458, 13 Pac. 630; State v. Bailey, 94 Mo. 311, 7 S. W. 425; Stephens v. Com. (Ky.) 6 S. W. 456; Bates v. Com. (Ky.) 16 S. W. 528; Newberry v. State, 26 Fla. 334, 8 South. 445; State v. Sullivan, 43 Kan. 563, 23 Pac. 645; State v. Murdy, 81 Iowa, 603, 47 N. W. 867. 13 Jackson v. State, 88 Ga. 784, 15 S. E. 677; Wray v. People, 78 111. 212. 14 Rex V. D'Bon, 1 W. Bl. 510, 3 Burrows, 1513; Hewitt's Case, 17 Grat. (Va.) 629; Hunt v. Com. (Ky.) 24 S. W. 623; Phillips v. Com. (Va.) 18 S. B. 841; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21; Walton's Case, 32 Grat. (Va.) 863; People v. Vermilyea, 7 Cow. (N. Y.) 383; State v. Maddox, 117 Mo. 667, 23 S. W. 771; Pettit v. State, 135 Xnd. 393, 34 N. E. 1118; Bowlin v. Com. (Ky.) 22 S. W. 543; Walker v. State, 32 Tex. Cr. R. 175, 22 S. W. 685; North V. People, 139 111. 81, 28 N. E. 960; Sutton v. People, 119 111. 250, 10 N. E. 376. 10 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; People v. Anderson, 53 Mich. 60, 18 N. W. 561; Hurd v. Com., 5 Leigh (Va.) 715; State v. Spillman, 43 La. Ann. 1001, 10 South. 198; Dow v. State, 31 Tex. Cr. R. 273, 20 S. W. 583; Knowles v. State, 31 Tex. Cr. R. 383, 20 S. W. 829; Jackson v. State, 31 Tex. Cr. R. 342, 20 S. W. 921; Steele v. People, 45 111. 152; Barp v. Com., 9 Dana (Ky.) 302. 18 State V. Turlington, 102 Mo. 642, 15 S. W. 141; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408. 17 Henderson v. Com. (Ky.) 15 S. W. 782; State v. Hillstock, 45 La. Ann. 298, 12 South. 352; Scott v. State (Tex. Cr, App.) 25 S. W. 783; Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925; Higglnbotham v. State (Tex. Cr. App.) 20 S. W. 360; Nelson v. Com. (Ky.) 23 S. W. 350; Sneed v. State, 47 Ark. 180, 1 S. W. 68. But see People v. Ah Lee Doon, 97 Cal. 171, 31 Pac. 933. Ch. 12] TIME Off TKIAL CONTINUANCE. 415 merely impeaching;'* nor if it is as to character;^' nor in some states by statute, if it is probably false.^" The defendant must not have been guilty of laches, but must have used due diligence to pro- cure the attendance of the witness, or to procure his deposition.^^ It must also appear that there is a reasonable prospect that the at- tendance of the witness will be procured at the time to which the continuance is asked, and therefore a continuance will not or- dinarily be granted where the witness is beyond the jurisdiction of the court, so that he cannot be compelled to attend.^^ If the state admits that the absent witness will testify as stated by the defendant, and the statement is admitted as evidence, a continuance will generally be denied.^ ^ 18 Earp V. Com., 9 Dana (Ky.) 302; State v. Howell, 117 Mo. 307, 23 S. W. 263. 19 Eex V. Jones, 8 Bast, 34; McNealy v. State, 17 Fla. 198; People v. Wilson, 3 Parker, Cr. E. (N. Y.) 199; Rhea v. State, 10 Yerg. (Tenn.) 258; State v. Kllnger, 43 Mo. 127. Except, perhaps, under peculiar circumstances. State V. Nash, 7 Iowa, 347. 20 Maull V. State (Tex. Cr. App.) 26 S. W. 199; Loakman v. State, 32 Tex. Cr. R. 583, 25 S. W. 22; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421. 21 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Jamison v. People, 145 III. 357, 34 N. E. 486; People v. Ah Lee Doon, 97 Oal. 171, 31 Pac. 933; Price v. State, 57 Ark. 165, 20 S. W. 1091; Com. v. Buccieri, 153 Pa. St. 535, 26 Atl. 228; Dingman v. State, 48 Wis. 485, 4 N. W. 668; Stultz t. State (Tex. Cr. App.) 24 S. W. 649; Scott v. State (Tex. Or. App.) 25 S. W. 783; Gibson v. State, 59 Miss. 341; Lowis v. State, 89 Ga. 803, 15 S- E. 772; State v. Farrington (Iowa) 57 N. W. 006; State v. Banks, 118 Mo. 117, 23 S. W. 1079; Marler v. Com. (Ky.) 24 S. W. 608; State v. McCoy, 111 Mo. 517, 20 S. W. 240; Glover v. State, 89 Ga. 391, 15 S. E. 496; Wormeley v. Com., 10 Grat. (Va.) 658; Early V. Com., 86 Va. 921, 11 S. E. 795; Holt v. Com., 2 Va. Cas. 156; Rousell v. Com., 28 Grat (Va.) 930; Unsel v. Com., 87 Ky. 368, 8 S. W. 144. 2 2 Rex V. D'Eon, 1 W. Bl. 510, 3 Burrows, 1513; Com. v. Millard, 1 Mass. 6; Mull's Case, 8 Grat. (Va.) 695; Woolfolk v. State. 85 Ga. 69, 11 S. E. 814; State V. Files, 1 Tread. Const. (S. O.) 234; Skates v. State, 64 Miss. 644, 1 South. 843; State v. Duffy, 39 La. Ann. 419, 2 South. 184; People v. Lewis, 64 Cal. 401, 1 Pao. 490. But a continuance may, in the discretion of the court, be granted to take the deposition of a witness abroad, where depositions may be used, or to procure his attendance where he will probably voluntarily attend. Rex V. Morphew, 2 Maule & S. 602; White v. Com., 80 Ky. 480; McDermott V. State, 89 Ind. 187; State v. Klinger, 43 Mo. 127. 23 Com. V. Knapp, 9 Pick. (Mass.) 515; People v. Wilson, 3 Parker, Cr. R. (N. Y.) 199; Johnson v. Com. (Ky.) 23 S. W. 507; Baker v. State, 58 Ark. 513, 416 TRIAL AND VERDICT. [Ch. 12 Error in refusing to grant a continuance on this ground is cured if the witness appears in court before the trial is ended, and the de- flendajit examines him, or is given an opportunity to examine him.^* Same — Local Prejudice and Excitement — Tampering with Jury. In some cases local prejudice against the defendant may be ground for a continuance. The defendant should not be forced to a trial at a time when the public excitement is so great that it may probably intimidate or otherwise influence the jury, and pre- vent a fair and impartial trial.*" There must be something more than mere public excitement; it must be such as will probably thus unduly influence the jury, and this probability must be shown.* ^ Where means have been used to unduly influence the jury, a continuance should be granted.^' Practice. In all cases a motion for a continuance must be supported by an affidavit or affidavits setting forth the grounds upon which it is asked.*' Care should be exercised, in preparing the affidavit, to state sufficient facts to entitle the applicant to a continuance, for if the affidavit is insufficient, the application will be denied. It is not sufficient in applying for a continuance because of the absence of a material witness, to state in the affidavit that the witness is 25 S. W. 603; Hickam v. People, 137 111. 75, 27 N. E. 88; Van Meter v. People, 60 111. 168; State v. Stickney (Kan.) 36 Pac. 714; Wise v. State, 34 Ga. 348; Hood y. State (Ga.) 18 S. E. 553; Browning v. State, 33 Miss. 48; Hall v. Com., (Ky.) 22 S. W. 333; Roberts v. Com., Id. 845; Pace v. Com., 89 Ky. 204, 12 S. W. 271. But see State v. Hickman, 75 Mo. 416. Some but not all courts require the state to admit the truth of the expected testimony. See the cases cited supra, and see People v. Vermilyea, 7 Cow. (N. Y.) 369; Olds v. Com., 3 A. K. Marsh. (Ky.) 467. 21 Mitchell V. State, 22 Ga. 211; State v. Banks, 118 Mo. 117, 23 S. W. 1079; Vaughn v. Com. (Ky.) 23 S. W. 371. 2B Com. V. Dunham, Thatcher, Cr. Cas. (Mass.) 516; Reg. v. Bolam, 2 Moody & R. 192; Bishop v. State, 9 Ga. 121. 26 Ballard v. State, 31 Ela. 266, 12 South. 865; Baw v. State (Tex. Cr. App.) 24 S. W. 293; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Woolfolk v. State, 85 Ga. 69, 11 S. B. 814. See King v. State, 91 Tenn. 617, 20 S. W. 169. 2 7 Rex V. JoUifee, 4 Term R. 285; Rex v. Gray, 1 Burrows, 510. 28 1 Chit Cr. Law, 492; State v. Underwood, 44 La. Ann. 1114, 11 South. 823; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68. Ch. 12] TIME OF TEIAL CONTINUANCE. 4l7 a material one, and is absent, except perhaps where there is no cause to suspect that the application is made merely for delay."' The affidavit must state definitely what the defendant expects the absent witness to testify, so that the court may see that the testi- mony is material, and, further than this, it must show that due diligence has been used to procure the attendance of the witness, and that his attendance will probably be procured.^" The affidavit on application by the defendant may be made by himself, and should be so made where he knows the facts, and is competent to swear to them. It need not necessarily be made by him. It should in all cases be made by the person or persons who are able to swear to the facts stated. If the defendant knows the facts, and can swear to them, he should malce the affidavit; otherwise it may be made by his counsel or by third persons.^^ Some courts allow counter affidavits to be filed in opposition to the motion,^ ^ but others hold that it is unauthorized.'^ Joint Defendants. Where there are several defendants, who may be tried separately, the case may be continued as to some and denied as to others.^* 29 Rex V. D'Bon, 1 W. Bl. 510, 3 Burrows, 1513; Kex v. Jones, 8 Bast, 37. 30 Eex V. D'Eon, 1 W. Bl. 514, 3 Burrows, 1513; Rex v. Jones, 8 East, 31, 37; Hurd v. Com., 5 Leigh (Va.) 715; State v. Underwood, supra; State v. Harrison, 36 W. Va. 729, 15 S. E. 982; Green v. Com. (Ky.) 24 S. W. 623; Boyd v. State, 33 Fla. 316, 14 South. 836; Martin v. State, 32 Tex. Cr. r; 441, 24 S. W. 512; Rollins v. State, 32 Tex. Cr. R. 566, 25 S. W. 125; State v. Whitton, 68 Mo. 91; State v. Aired, 115 Mo. 471, 22 S. W. 363; State v. Fox, 79 Mo. 109; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; Smith V. State, 132 Ind. 145, 31 N. E. 807; Faulkner v. Territory (N. M.) 30 Pac. 905; Moody v. People, 20 111. 315; Sutton v. People, 145 111. 279, 34 N. E. 420; North v. People, 139 111. 81, 28 N. B. 966; Long v. People, 135 lU. 435, 25 N. E. 851; Davis v. State, 85 Tenn. 522, 3 S. W. 348; Carthaus v. State, 78 Wis. 560, 47 N. W. 629; White v. State, 86 Ala. 69, 5 South. 674; Warner v. State, 114 Ind. 137, 16 N. E. 189; Beavers v. State, 58 Ind. 530. 81 Moody V. People, 20 111. 315; Reg. v. Langhurst, 10 Cox, Cr. Cas. 353. 82 state V. Murdy, 81 Iowa, 603, 47 N. W. 867; State v. Bailey, 94 Mo. 311, 7 S. W. 425; State v. Simien, 30 La. Ann. 296. 88 Price V. People, 131 111. 223, 23 N. B. 639; Miller v. State, 29 Neb. 437, 45 N. W. 451. It has been held that error in allowing a counter affidavit is harmless. Price v. People, supra. 3 4 White V. State, 31 Ind. 262. ORIM.PKOC— 37 418 TRIAL AND VERDICT. [Ch. 12 Discretion of Court. A motion for a continuance is addressed to tlie discretion of the court, and its ruling thereon will not be reviewed except in a clear case of abuse of discretion.'" The court, however, cannot act arbi- trarily, but must be guided by rules of law. An abuse of dis- cretion will in most states be ground for reversing a conviction.'" In a few states the ruling of the court on a motion for a continuance because of absence of a witness^ and perhaps on other grounds, will not be reviewed at all.'^ PLACE OF TBI AL— CHANGE OE VENUE. 144. Ordinarily tlie trial must take place in the county in -which the offense was committed and the indictment was presented; but either at common law or by statute, if the defendant cannot have a fair and impartial trial in that county, the case may be taken to an adjoining county. This is called a change of venue. We have already shown that a criminal prosecution must gen- erally be instituted, and the trial had, in the county in which the offense was committed; and we have also shown the exceptional cases in. which a prosecution may be instituted and carried on in one county for an offense committed in another." At common law, if a fair and impartial trial could not be had in the county in which the offense was committed, the defendant could apply for and obtain a change of the place of trial to an adjoining county.' ° This is what is meant by change of venue. There is doubt as to the extent to which the common law in this respect is in force in this country. The question was fully considered by the 8B People V. Collins, 75 Gal. 411, 17 Pao. 430; State v. Bradley, 90 Mo. 160, 2 S. W. 284; State v. Primeaux, 39 La. Ann. 673, 2 South. 423; Brown v. State, 85 Tenn. 439, 2 S. W. 895; Hicks v. State, 25 Fla. 535, 6 South. 441. »6 gee the cases heretofore cited. 87 Walker v. State, 91 Ala. 76, 9 South. 87; State v. Wise, 33 S. 0. 582, 12 S. B. 656; State v. Pankey, 104 N. C. 840, 10 S. E. 315. "•Ante, p. 9. »» 1 Chit. Cr. Law, 494; Rex v. Cowle, 2 Burrows, 834; State v. Albee, 61 N. H. 423. Ch. 12] PLACE OF TRIAL — CHANGE OF VENUE. 419 New Hampshire court in a late case, and it held that the common law was there in force, so as to authorize a change of venue on the defendant's application.*" In Vermont, on the other hand, where a statute provided generally that the trial should be had in the county in which the offense was committed, which, as we have seen, is merely a declaration of the common law, it was said (not held) that there could be no change of venue unless authorized by a stat- ute.*^ It is now expressly provided by statute, perhaps in all the states, that the defendant shall be entitled to a change of venue on showing one of the grounds therefor specified in the statute, and the common law is therefore unimportant. A statute allowing a change of venue on the defendant's applica- tion, or with his consent, is not in violation of the constitutional pro- vision that the trial shall be had in the county where the offense was committed or the indictment was presented, for the defend- ant may waive his privilege to be there trled.*^ But in some states the change cannot be made on application of the prosecuting attor- ney, nor by the court ex mero motu, without the defendant's con- sent.*^ All of the statutes are designed to give the defendant a change of venue when he cannot have a fair and impartial trial in the county in which the offense was committed. The grounds upon which the change may be demanded are prejudice or disqualifica- tion of the judge,** prejudice in the minds of the people of the 40 state V. Albee, 61 N. H. 423. See People v. Vermilyea, 7 Cow. (N. Y.) 108; People v. Mather, 3 Wend. (N. Y.) 434. *i State V. Howard, 31 Vt. 414. 4 2 State V. Albee, 61 N. H. 423; Dula v. State, 8 Yerg. (Tenn.) 511; Perteet V. People, 70 111. 171. 4 3 State V. Denton, 6 Cold. (Tenn.) 539; Wheeler v. State, 24 Wis. 52; Dou- gan T. State, 30 Ark. 41; Cochrane v. State, 6 Md. 400; Bramlett v. State, 31 Ala. 376; State v. Gut, 13 Minn. 341 (Gil. 315); Id., 9 Wall. 35; State v. Knapp, 40 Kan. 148, 19 Pac. 728; Ex parte Elvers, 40 Ala. 712. But see, contra. People v. Webb, 1 Hill (N. Y.) 179; Adams v. State (Tex. Cr. App.) 23 S. W. G91; People v. Peterson, 93 Mich. 27, 52 N. W. 1039; Com. v. David- son, 91 Ky. 162, 15 S. W. 53; McMillan v. State, 68 Md. 307, 12 Atl. 8; People V. Fuhrman (Mich.) 61 N. W. 865. 44 Ex parte Curtis, 3 Minn. 274 (Gil. 188); Vanderkarr v. State, 51 Ind. 91; State V. Henning (S. D.) 54 N. W. 536. Contra, Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985. 420 TRIAL AND VERDICT. [Ch. 12 county in which the offense was committed/" in some states diffi- culty in obtaining a jury on a second trial.*" Conyenienee of wit- nesses is not sufficient cause.*' Affidavits must be filed or testimony produced by the defendant in support of the motion,** and the affidavits and witnesses must state the facts showing that an impartial trial cannot be had. It is not sufficient merely to state that a fair and impartial trial cannot be had.** The state may in like manner file counter affidavits in op- position to the motion.'"' But in some states an affidavit of preju- dice of the judge cannot be resisted by counter affidavits."^ The motion, when made on the ground of local prejudice, is ad- dressed to the discretion of the presiding judge, and, if he is satis- fled that the prejudice is not sufficient to prevent a fair and im- partial trial, he may deny the motion; and, unless there is a clear abuse of discretion in denying the motion, his ruling will not be reviewed.'* In case of abuse of discretion, denial of the motion *5 People V. Lee, 5 Oal. 353; People v. Graham, 21 Cal. 261; State v. Crof- ton (Iowa) 56 N. W. 257; Jamison v. People, 145 111. 357, 34 N. E. 486; State V. Olds, 19 Or. 397, 24 Pac. 394; Garcia v. State (Pla.) 16 South. 223; Bow- man V. Com. (Ky.) 27 S. W. 870. 48 Com. V. Cleary, 148 Pa. St. 26, 23 Atl. 1110. 47 People v. Harris, 4 Denio (N. Y.) 150. 48 The requirement of affidavits is satisfied if witnesses in support of the motion are produced in open court, sworn by the judge, and their statements taken down by the official stenographer. State v. Sullivan, 39 S. C. 400, 17 S. E. 865. In some states affidavits of others than the defendant are neces- sary. See State v. Turlington, 102 Mo. 642, 15 S. W. 141. 49 People V. Bodine, 7 Hill (N. Y.) 147; Wormeley v. Com., 10 Grat (Va.) 658; Peters v. U. S. (Okl.) 33 Pac. 1031. Salm v. State, 89 Ala. 56, 8 South. 66. As to examination of affiants to test their credibility, see Jackson v. State, 54 Ark. 243, 15 S. W. 607. 00 State V. Belvel (Iowa) 56 N. W. 545; Baw v. State (Tex. Cr. App.) 24 S. W. 293; Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; Perrin v. State, 81 Wis. 135, 50 N. W. 516. 61 Cautwell v. People, 138 IlL 602, 28 N. E. 964. 02 Jamison v. People, 145 111. 357, 34 N. E. 486; Gitchell v. People, 146 111. 175, 33 N. E. 757; Hickam v. People, 137 111. 75, 27 N. E. 88; State v. Poster (Iowa) 59 N. W. 8; Howard v. Com. (Ky.) 26 S. W. 1; State v. Belvel (Iowa) 56 N. W. 545; State v. Conable, 81 Iowa, 60, 46 N. W. 759; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Eussell, 13 Mont. 164, 32 Pac. 854; People V. Vincent, 95 Cal. 425, 30 Pac. 581; Com. v. Buccieri, 153 Pa. St. 535, 26 Ch. 12] BIGHT TO PUBLIC TEIAL. 421 will be ground for setting a conviction aside."' In most states it is held that the court has no discretion where the application is based on the prejudice of the judge, and that the change must be granted as a matter of course."* In some states the defendant is limited to one application for change of venue, and, after having obtained a change, he cannot apply for another change on the ground that there is prejudice in the county to which the case was sent, or of the judge of such county."' There may be a change of venue as to one only of several de- fendants."* As we have seen, if there was an arraignment in the first courts the defendant need not be again arraigned. And if there has been no arraignment he may be arraigned for the first time in the court to which the case is taken."' The jurisdiction of the court in which the prosecution is pending is not affected by its erroneous denial of a motion for a change of venue."* RIGHT TO PUBLIC TRIAL. 145. Under the constitution of the United States, and of most, if not all, the states, the accused has a right to a public trial; but this does not prevent the court from ex- Atl. 228; Com. v. Delamater, 145 Pa. St. 210, 22 Atl. 1098; Horn v. State, 98 Ala. 23, 13 South. 329; Adams v. State, 28 Fla. 511, 10 South. 106; Martin v. State, 21 Tex. App. 1, 17 S. "W. 430; Power v. People, 17 Colo. 178, 28 Pac. 1121; Perrin v. State, 81 Wis. 135, 50 N. W. 516; Muscoe v. Com., 87 Va. 460, 12 S. E. 790; Edwards v. State, 2 Wash. St. 291, 26 Pac. 258; Qulnn v. State, 123 Ind. 59, 23 N. E. 977. 03 Garcia v. State (Fla.) 16 South. 223; State v. Crafton (Iowa) 56 N. W. 257; Higgins v. Com. (Ky.) 21 S. W. 231; Bowman v. Com. (Ky.) 27 S. W. 870. 5* Manly v. State, 52 Ind. 215; Oantwell v. People, 138 111. 602, 28 N. E. 964; State v. Henning (S. D.) 54 N. W. 536. But see City of Emporia v. Volmer, 12 Kan. 622. CO See Perrin v. State, 81 Wis. 135, 50 N. W. 516; Baker v. State (Wis.) 59 N. W. 570; State v. Wofford, 119 Mo. 375, 24 S. W. 764. But see Yates v.. State, 58 Ind. 299; State v. Minski, 7 Iowa, 336. oe State v. Martin, 2 Ired. (N. C.) 101. 07 Ante, p. 368. 88 Turner v. Conkey, 132 Ind. 248, 31 N. E. 777. 422 TEIAL AND VERDICT. [Ch. 12 eluding in a proper case, for the protection of the public morals, young persons or persons attending merely from idle curiosity. "It is required that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and wit- nessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with, and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly observed if, without partiality or favorit- ism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether." °® ■ The court, however, cannot make an order excluding all persons from the court room. It has been held, for instance, that even on a trial which involves an inquiry into a question of sexual im- morality, an order excluding all persons from the court room, ex- cept the defendant and the ofScers of the court, violates the defend- ant's right to a public trial.'" CUSTODY AND RESTRAINT OF DEFENDANT. 146. In prosecutions for felony, and in some jurisdic- tions in prosecutions for misdemeanors involving cor- 60 Cooley, Const. Lim. (oth Ed.) 312; People v. Hartman, Infra; Grimmett v. State, 22 Tex. App. 36, 2 S. W. 631; State v. Brooks, 92 Mo. 573, 5 S. W. 257, 330; People v. Kerrigan, 73 Cal. 222, 14 Pac. 849. 6 People v. Hartman (Cal.) 37 Pac. 153; People v. Murray, 89 Mich. 276, 50 N. W. 995. Ch. 12] PRESENCE OF DEFENDANT. 423 poral punishment, the defendant should be taken into custody during the trial so as to insure his presence. In misdemeanors involving punishment by a mere fine, and, in most jurisdictions, in all other cases of misdemeanor, he may remain at large on bail. 147. The defendant must not be subjected to unneces- sary restraint during the trial. Necessary restraint is not illegal. Unless the defendant has been admitted to bail, he is always in custody during the trial. And in cases of felony, and in some jurisdictions in cases of misdemeanor where corporal punishment may be inflicted, he must be taken into custody, even though he has been admitted to bail,°^ for, as we shall see, in most jurisdic- tions he must be present at the trial, whether he wishes it or not; and a trial in his absence, even with his consent, would be illegal. In cases of misdemeanor, where the punishment is a mere fine, and, by the weight of authority, even where the penalty may be corporal punishment, he may remain at large.°^ The defendant should not be kept tied or in shackles during the trial, unless he is unruly, or there is danger of an escape. If he is unnecessarily bound, or otherwise subjected to unnecessary re- straint, the trial will be illegal, for it is not considered that he is as well able to make his defense when bound.*^ Necessary restraint will not render a conviction bad. Thus it has been held that it is perfectly proper to permit a dangerous and desperate man, charged with murder, to be attended by an armed guard."* PRESENCE OF THE DEFENDANT. 148. In all criminal prosecutions, the defendant has a right to be personally present during the entire proceed- 61 Eeg. V. Simpson, 10 Mod. 248; People v. Beauchamp, 49 Cal. 41; post, p. 424. 62 Rex V. Carlile, 6 Car. & P. 636; Whart. Cr. PI. & Prac. § 540a; post, p. 427. 63 State T. Kring, 1 Mo. App. 438, 64 Mo 591; Palre v. State, 58 Ala. 74; Lee V. State, 51 Miss. 560. «4 State V. Duncan, 116 Mo. 288, 22 S. W. 699. 424 TRIAL AND VERDICT. [Ch. 12 ing from arraignment to sentence. He cannot, according to the weight of authority, waive the privilege in cases of felony, nor, according to some, but not all, of the author- ities, in cases of misdemeanor involving corporal punish- ment. By the weight of authority, how^ever, he may w^aive the privilege in all cases of misdemeanor. The record must show that he w^as present when his presence was necessary. It is well settled that eren at common law the personal presence of the defendant is essential to a valid trial and conviction on a charge of felony. He must be personally present, not only when he is arraigned and pleads to the charge, but at every subsequent stage of the f>rosecution, up to and including the time when sen- tence is pronounced. If he is absent, or if the record does not show his presence, when the jury is called and sworn, or when evidence is introduced, or the jury is charged, or arguments of counsel are made, or the verdict is rendered, or sentence is pronounced, a conviction will be set aside."" The legislature cannot change this rule of the 8B Dunn V. Com., 6 Pa. St. 385; Hamilton v. Com., 10 Pa, St. 129; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202; Harris v. People, 130 111. 457, 22 N. E. 826; Brooks v. People, 88 111. 327; Sperry v. Com., 9 Leigh (Va.) 623; Nolan V. State, 55 Ga. 521; Coleman v. Com. (Va.) 19 S. E. 161; State v. Cross, 27 Mo. 332; Palmquist v. State, 30 Fla. 73, 11 South. 521; French v. State, 85 Wis. 400, 55 N. W. 566; Shelton v. Com., 89 Va. 450, 16 S. E. 355; Scraggs v. State, 8 Smedes & M. (Miss.) 722; Stubbs v. State, 49 Miss. 716; Rolls v. State, 52 Miss. 391. See, for cases in which convictions have been set aside because the defendant was not present, or the record did not show his pres- ence, at the arraignment. State v. Jones, 61 Mo. 232; Hall v. State, 40 Ala. 698; Jacobs v. Com., 5 Serg. & R. (Pa.) 315; at the calling and swearing of the jury, Dougherty v. Com., 69 Pa. St 286; State v. Crocket (State v. Smith), 90 Ma 37, 1 S. W. 753; Rolls v. State, 52 Miss. 391; at discharge of jury, for sick- ness of juror, State v. Smith, 44 Kan. 75, 24 Pac 84; at the reception of evi- dence, Dougherty v. Com., supra; People v. Perkins, 1 Wend. (N. Y.) 91; State V. Hughes, 2 Ala. 102; Jackson v. Com., 19 Grat (Va.) 656; State v. Moran, 46 Kan. 318, 26 Pac. 754; Andrews v. State, 2 Sneed (Tenn.) 550; State V. Cross, 27 Mo. 332; while codefendant was testifying, Richards v. State, 91 Tenn. 723, 20 S. W. 533; Garman v. State, 66 Miss. 196, 5 South. 385; when the case was continued, Com. v. Coleman (Va.) 19 S. E. 161; Shel- ton V. Com., 89 Va. 450, 16 S. B. 355; contra, State v. Duncan, 7 Wash. 336, 35 Pac. 117; at a view by the jury, People v. Jones (Cal.) 11 Pac. 501; State Oh. 12] PRESENCE OP DEFENDANT. 425 common law, for to try him in his absence would be to try him without due process of law, and would therefore be unconstitu- tional; or if testimony were received in the defendant's absence, it would violate his constitutional right to be confronted by the wit- nesses against him.°° Some of the courts hold that the defendant cannot waive this privilege even by consenting, to a trial, or part of the trial, in his absence; "^ but other courts hold that the privi- lege, being for his benefit, may be waived by him.°* V. Sanders, 68 Mo. 202; Foster v. State (Miss.) 12 South. 822; Benton v. State. 30 Ark. 328; State v. GraJiam, 74 N. 0. 646; contra, State v. Reed (Idaho) 35 Pac. 706; State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103; while the court was charging or recharging the jury, or finally submitting the case to them, Allen V. Com., 86 Ky. 642, 6 S. W. 645; Brewer v. Com. (Ky.) 8 S. W. 339; Richie V. Com. (Ky.) 8 S. W. 913; Jackson v. Com., 19 Grat. (Va.) 656; Witt v. State, 5 Cold. (Tenn.) 11; Wilson v. State, 87 Ga. 583, 13 S. B. 566; State v. Myrick. 38 Kan. 238, 16 Pac. 330; Wade v. State, 12 Ga. 25; Maurer v. People, 43 N. Y. 1; Linbeck v. State, 1 Wash. St. 336, 25 Pac. 452; contra. People v. Rob- inson, 86 Mich. 415, 49 N. W. 260; Roberts v. State, 111 Ind. 340, 12 N. B. 500; when the verdict was received from the jury, Prine v. Com., 18 Pa. St. 103; Dougherty v. Com., 69 Pa. St. 286; Com. v. Tobin, 125 Mass. 203; State v. Bpps, 76 N. C. 55; Andrews v. State, 2 Sneed (Tenn.) 550; Stubbs v. State, 49 Miss. 716; Finch v. State, 53 Miss. 363; Jackson v. Com., 19 Grat. (Va.) 656; at the time of sentence, Dougherty v. Com., 69 Pa. St. 286; State v. Hurlbut, 1 Root (Conn.) 90; Peters v. State, 39 Ala. 681; Stubbs v. State, 49 Miss. 716; Rolls v. State, 52 Miss. 391. But it seems that absence at the time of sentence merely entitles him to be remanded for a new sentence, and does not entitle him to a new trial. See Cole v. State, 5 Eng. (Ark.) 318; Kelly V. State, 3 Smedes & M. (Miss.) 518. That it is sufficient if the record shows defendant's presence by necessary or reasonable implication, see Brown V. State, 29 Fla. 543, 10 South. 736; State v. Nickleson, 45 La. Ann. 1172, 14 South. 134; Snodgrass v. Com., 89 Va. 679, 17 S. B. 238. That continuance of presence may be presumed, see State v. Miller, 100 Mo. 606, 13 S. W. 832; Bumey v. State, 32 Fla. 253, 13 South. 406. But see, contra, the cases above cited, and Territory v. Day (Okl.) 37 Pac. 806; Shelton v. Com., 89 Va. 450, 16 S. B. 355. 8 6 Hopt V. Utah, 110 U. S. 574, 4 Sup. Ct. 202; Harris v. People, 130 111. 457, 22 N. E. 826. 6T Prine v. Com., 18 Pa. St. 103, and the cases above cited. 68 State V. Reed (I^aho) 35 Pac. 706; Hite v. Com., infra; State v. Kelly, 97 N. C. 404, 2 S. E. 185; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270 (fel- onies not capital). ■ Even if the defendant may waive his right to be present, a waiver because of well-founded fear of mob violence will not render a con- viction in his absence valid. Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758. 426 TRIAL AND VERDICT. [Ch. 12 It has been held that if the defendant's conduct is snch that it is necessary to remove him temporarily from the court room, or if he runs away, or otherwise absents himself, his absence will not affect the validity of the trial.'' This, however, is treading on doubtful ground. It has also been held that temporary absences from the court room because of sickness are no ground for setting aside a conviction, if there was no request to suspend the trial, and no prejudice is shown.'" By the weight of authority, presence of the defendant is not necessary when motions are made and heard, such as motions in arrest of judgment, or for a new trial, etc., or when anything else is done that forms no part of the trial.' ^ And his presence is not necessary in an appellate court to which he has taken the case by appeal or writ of error, for he is not there on trial.'^ It has been said that the right of the defendant thus to be personally present during the trial extends also to misdemeanors where the punishment may be corporal, and that, in these cases, as 80 U. S. V. Davis, 6 Blatchf. 464, Fed. Cas. No. 14,923; Lee v. State, 56 Ark. 4, 19 S. W. 16; Fight v. State, 7 Ohio, 180; State v. Kelly, 97 N. C. 404, 2 S E. 185. And see State v. Grate, 68 Mo. 22. 7 Hite V. Com. (Ky.) 20 S. W. 217. Ji Rex V. Boltz, 5 Bam. & C. 334; People v. Van Wyck, 2 Gaines (N. Y.) 333; Jewell V. Com., 22 Pa. St. 94; State v. Elkins, 63 Mo. 159; Com. v. Costello, 121 Mass. 371; Com. v. Andrews, 97 Mass. 543; Anon., 31 Me. 592; Godfreid- son V. People, 88 111. 284; HaE v. State, 40 Ala. 698; State t. West, 45 La. Ann. 928, 13 South. 173; State v. Dominique, 39 La. Ann. 323, 1 South. 665. But see Simpson v. State, 56 Miss. 297; Long v. State, 52 Miss. 23; Hooker v. Com., 13 Grat (Va.) 763. Absence of the defendant when the court asks the jury if they desii'e further instructions is not error, where no instructions are given in his absence. State v. Coley, 114 N. G. 879, 19 S. E. 705. And see State V. Jones, 29 S. C. 201, 7 S. E. 296. Nor is it eiTor for the clerk, in the defendant's absence, to set the case for trial. Smith v. State, 98 Ala. 55, 13 South. 508; or for the court to appoint an attorney to assist in the prosecution, Hall V. State, 132 Ind. 317, 31 N. E. 536; or to amend the information before trial. State v. Beatty, 45 Kan. 492, 25 Pac. 899. Some of the courts hold that a view by jury or a continuance is no part of the trial, but this is doubtful. See note 65, supra, where the cases on these points are cited. 12 Schwab V. Berggren, 143 U. S. 442, 12 Sup. Ct. 525; Donnelly v. State, 26 N. J. Law, 464; People v. Clark, 1 Parker, Cr. R. (N. Y.) 360; Tooke v. State, 23 Tex. App. 10, 3 S. W. 782; State v. Buhs, 18 Mo. 310. Ch. 12] INSANITY OF DEFENDANT. 427 in cases of felony, he cannot waive the right; ^' but, in so far as the waiver of the privilege is concerned, the weight of authority is clearly to the contrary.'* In cases of misdemeanor, where the pun- ishment is a mere fine, and, by the weight of authority, in all cases of misdemeanor, the defendant may waive this privilege, and he may do so impliedly by voluntarily absenting himself.'" If there is no express or implied weiver of the right to be present in cases of misdemeanor, absence will generally be fatal to a conviction, though there is not the same strictness in these cases as in cases of felony.'" INSANITY OP DEFENDANT. 149. The defendant cannot be arraigned or tried or sentenced -while he is insane, though he may have been sane -when the offense -was committed. Insanity of the defendant at the time for the trial must be dis- tinguished from insanity at the time the offense was committed. In the latter case he cannot be punished at all, however sane he may be at the time for trial, for he is not guilty." His insanity in such T3 Lawn V. People, 11 Colo. 343, 18 Pac. 281; Ex parte Tracy, 25 Vt. 93; Nomaque v. People, Breese (111.) 145; People v. Ebner, 23 Cal. 158; Com. v. Crump, 1 Va. Cas. 172; Warren v. State, 19 Ark. 214. 74 Shifflett T. Com. (Va.) 18 S. E. 838; State v. Epps, 76 N. C. 55; U. S. v. Santos, 5 Blatchf. 104, Fed. Cas. No. 16,222; Douglass v. State, 3 Wis. 820; State V. Keckards, 21 Minn. 47; Stephens v. People, 19 N. Y. 549; Cook v. State, 26 Ga. 593; State v. WWte, 19 Kan. 445; State v. Lucker, 40 S. C. 549, 18 S. E. 797; People v. Corbett, 28 Cal. 330; Dixon v. State, 13 Fla. 631, 63G; Hill V. State, 17 Wis. 6T5; State v. Guinness, 16 K. I. 401, 16 Atl. 910; State v. Vaughan, 29 Iowa, 286; Holmes v. Com., 25 Pa. St. 221. T6 State V. Guinness, 16 R. I. 401, 16 Ati. 910; Shefflett v. Com. (Va.) 18 S. E. 838; Ex parte Tracy, 25 Vt. 93; People v. Ebner, 23 Cal. 158; State v. Hale (Iowa) 59 N. W. 281; City of Bloomington v. Heiland, 67 111. 278. Un- avoidable absence, because of sickness, necessitating removal from the court room, is not a waiver. Rex v. Streek, 2 Car. & P. 413. 7 6 Duke's Case, 1 Salk. 400; People v. Winchell, 7 Cow. (N. Y.) 525; Stubbs V. State, 49 Miss. 716; Tabler v. State, 34 Ohio St. 127; State v. Cross, 27 Mo. 332; Clark v. State, 4 Humph. (Term.) 254; State v. Ford, 30 La. Ann. 311. But see Stephens v. People, 19 N. Y. 549; Holmes v. Com., 25 Pa. Sc. 221; Grimm v. People, 14 Mich. 300. Ti Clark, Cr. Law, 51. 428 TRIAL AND VERDICT. [Ch. 12 case does not prevent his being tried if he has since become sane, but is a matter of defense to be brought out at the trial under his plea of not guilty. If he is insane when brought into court to be arraigned, though there is no question as to his sanity when the offense was committed, he cannot be arraigned; and if he becomes insane at any time before judgment and sentence the prosecution must end.''^ The reason is that an insane person cannot properly make his defense. This rule does not exempt him from liability to punishment, but merely suspends the right to try him during his insanity. When at the time of the arraignment, therefore, or at any stage of the trial, there appears to be doubt as to the defend- ant's sanity, a jury must be sworn to ascertain the state of his mind, and if they find him insane he must be committed as an insane person. If the defendant does not seem able to distinguish between a plea of guilty and a plea of not guilty, or if he has not sufficient intellect to comprehend the nature or course of proceedings, so as to make a proper defense, and challenge jurors, and the like, this is enough to warrant a finding that he is of unsound mind.'^' This question must not be confounded with the question of insanity at the time the offense was committed. FURNISHING COPY OF INDICTMENT AND LIST OF JURORS AND WITNESSES. 150. In some states by statute a copy of the indictment and a list of the jurors and witnesses must be furnished the defendant a certain time before trial. But these are privileges which he may w^aive, and he does so by not objecting before trial. Formerly the defendant had no right, in cases of felony, to have a copy of the indictment furnished him, but such right is now given him by statute in England and in many of our states.'" It is also 78 4 Bl. Comm. 24; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270; State v. Pritchett, 106 N. 0. 667, 11 S. E. 357. i» Rex V. Piitchard, 7 Car. & P. 308; Reg. v. Berry, 1 Q. B. Div. 447. 80 See Robertson v. State, 43 Ala. 325; Hubbard v. State, 72 Ala. 164; Lo- gaji V. U. S., 144 U. S. 263, 12 Sup. Ct. 617; Fouts t. State, 8 Ohio St. 98; State v. Fuller, 39 Vt. 74. Oh. 12] BILL OF PARTICULARS. 429 provided by statute in some states that he shall be furnished a list of the witnesses, or that the names of the witnesses shall be in- dorsed on the indictment,'^ and in some states that he shall be furnished in advance of the day set for the trial a copy of the venire, or list of the jurors summoned.'^ The defendant waives his rights under these statutes by going to trial without objection.'* The prosecuting officer is not precluded from calling witnesses, par- ticularly in case of surprise, whose names are not on the list fur- nished or indorsed on the indictment.'* BILL OF PARTICULARS. 151. Where the charge is general, the court may require the prosecuting officer to furnish the defendant with a bill of particulars sho-ndng the particular acts relied upon. Generally an indictment must be sufficiently certain to give the defendant notice of the particular charge against him, so that or- dinarily a bill of particulars will be unnecessary. But there are some cases, as we have seen, in which, from the nature of the crime, the charge may be general. Thus a person may be charged gen- erally with being a common barretor, or common scold, or common seller of intoxicating liquors, or the keeper of a common bawdy or gaming house, or a common night walker or prostitute, without set- ting out the particular acts relied upon.'" In these cages' it is held that the defendant may ask the court to require the prosecuting officer to furnish him with a bill of particulars showing the acts 81 See Hill v. People, 26 Mich. 496; Scott v. People, 63 111. 508. 82 Kellum V. State (Tex. Or. App.) 24 S. W. 89T; State v. PoUet, 45 La. Ann. 1168, 14 South. 179. 83 Reg. V. Frost, 9 Car. & P. 162; State v. Norton, 45 Vt. 258; State v. How- ard, 118 Mo. 127, 24 S. W. 41; Fonts v. State, 8 Ohio St. 98; State v. Beeder, 44 La. Ann. 1007, 11 South. 816; Lord v. State, 18 N. H. 173; People v. Har- ris, 95 Mich. 87, 54 N. W. 648. 84 Hill V. People, 26 Mich. 496; Bulliner v. People, 95 IlL 394; State v. Townsend, 7 Wash. 462, 35 Pac. 367; State v. Loehr, 93 Mo. 103, 5 S. W. 696; Simons v. People, 150 111. 66, 36 N. B. 1019; Gifford v. People, 148 111. 173, 55 N. E. 754; People v. Machen (Mich.) 59 N. W. 664; State v. Boughner (S. D.) 59 N. W. 736, 8 5 Ante, p. 161. 430 TRIAL AND VERDICT. [Ch. 12 relied upon, so that he may know what eridence he will be called upon to meet, and may properly prepare his defense.** And the court may compel the prosecuting officer to furnish a bill of par- ticulars in other cases where the charge is too general to show what particular acts are to be shown in support of it, as on indict- ment for adultery or embezzlement.*^ LOSS OF INDICTMENT OR INrOBMATION. 152. If the indictment or information is lost or de- stroyed before or during or after the trial, a copy may be substituted if conclusively proved to be exact. When an information has been lost from the files or destroyed, its place may, on motion of the state's attorney, be supplied by a copy.'* And by the better opinion the rule also applies in case of a lost or destroyed indictment.*' In either case the substituted copy must be exact, and must be conclusively proved.®" The fact that an indictment or information is mutilated does not destroy it, or prevent its use.*^ PRESENCE OF JUDGE. 153. The judge must be present during the -whole trial. If he absents himself, and the trial proceeds in his ab- sence, a conviction -will be set aside. se 2 Hawk. P. 0. c. 25, § 59; Rex v. Mason, 2 Term R. 586; Com. v. Pray, 13 Pick. (Mass.) 359; Com. v. Davis, 11 Pick. (Mass.) 434; State v. Uliltty, 1 Bailey (S. C.) 379; State v. Russell, 14 R. I. 506; Goersen v. Com., 99 Pa. St. 388; Williams v. Com., 91 Pa. St. 493. 87 People V. Davis, 52 Mich. 569, 18 N. W. 362. And see U. S. v. Brooks, 44 Fed. 749 (embezzlement). But see, contra. State v. Quinn, 40 Mo. App. 627. 88 Long V. People, 135 111. 435, 25 N. E, 851. 88 Long V. People, supra; 1 Bish. New Cr. Proc. § 1400; State v. Gardiner, 13 Lea (Tenn.) 134; State v. Rivers, 58 Iowa, 102, 12 N. W. 117; State v. Harrison, 10 Yerg. (Tenn.) 542; Mount v. State, 14 Ohio, 295; Buckner v. State, 56 Ind. 208; State v. Simpson, 67 Mo. 647. Contra, Ganaway v. State, 22 Ala. 772; Bradsliaw v. Com., 16 Grat (Va.) 507. "o Authorities above cited. 01 Com. V. Roland, 97 Mass. 598. Ch. 12] SEPARATE TRIAL OF JOINT DEFENDANTS. 431 The presence of the judge at every stage of the trial is essential to the validity of the proceedings. If he absents himself, and any part of the trial is conducted in his absence, even with the consent of the defendant, a conviction cannot be sustained, and it makes no difference whether his absence is during the reception of evi- dence or merely during the argument of counsel. He must be present at' every stage of the trial. Any substantial proceeding carried on in his absence is coram non judice.*' SEPARATE TBIAL OP JOINT DEFENDANTS. 154. It is within the discretion of the court -whether persons jointly indicted shall be tried separately or to- gether. Where several persons are jointly indicted, as for murder, they are not entitled, as a matter of right, to separate trials; but it is a matter resting in the discretion of the court, to be determined under all the circumstances of the case.°° It is held that the state may claim a severance as a matter of right."* If it appears that the defendants, or either of them, may be prejudiced by a joint trial, as where the defenses are antagonistic, or one of them has made a confession, a severance should be granted; ®° but, if no prejudice can result to either by a joint trial, 92 Merdeth v. People, 84 111. 479; Thompson v. People, 144 111. 378, 32 N. B. 968; O'Brien v. People, 17 Colo. 561, 81 Pac. 230; Palin v. State, 38 Neb. 862, 57 N. W. 743. Contra, Pritchett v. State (Ga.) 18 S. E. 536; O'Shields V. State, 81 Ga. 301, 6 S. E. 426. 8 3 Doyle V. People, 147 111. 394, 35 N. E. 372; State v. Lee (La.) 15 South. 159; Com. v. Bingham, 158 Mass. 169, 33 N. E. 341; Com. v. Robinson, 1 Gray (Mass.) 555; Com. v. Jenks, 138 Mass. 484; U. S. v. White, 4 Mason, 158, Fed. Cas. No. 1C,G82; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68; Com. v. Gillespie, 7 Serg. & R. 469; Curran's Case, 7 Grat. (Va.) 619; Redman v. State, 1 Blackf. (Ind.) 431; Com. v. Lewis, 25 Grat (Va.) 938; Com. v. Place, 153 Pa. St 314, 26 Atl. 620; Ballard v. State, 31 Fla, 266, 12 South. 865; State T. Oxendine, 107 N. 0. 783, 12 S. E. 573. »* State V. Bradley, 9 Rich. (S. C.) 168; State v. McGrew, 13 Rich. (S. C.) 316; Hawkins v. State, 9 Ala. 137. 9 6 Com. T. James, 99 Mass. 438; U. S. v. Kelly, 4 Wash. C. C. 528, Fed. Cas. No. 15,516; State v. Soper, 16 Me.. 293; State v. Taylor, 45 La, Ann. 605, 12 South. 927; Maton v. People, 15 111. 530. 432 TRIAL AND VERDICT. [Ch. 12 they should be tried together."' The defendants must ask for a seyerance before the trial is begun."'' When a severance is granted it is within the discretion of the prosecuting officer which defendant he will try first."' Though the practice may work inconvenience, and even difficulty, the court may, in its discretion, grant separate trials in cases of riot and conspiracy, as well as in other cases."" CONSOLIDATION OP INDICTMENTS. 155. In most states, if separate indictments are pending against the same defendant for offenses whicli could be joined in separate counts in the same indictment, and tried together, the defendant may be tried on both at the same time. It would seem clear that if the offenses in two or more separate indictments pending against the same defendant are such that the defendant could not object to being tried for all at the same time, if they were joined in different counts of the same indictment, he should not be allowed to object to the indictments being consoli- dated and tried at the same time; and there are numerous cases allowing such a practice.^"" If the offenses are such that they could not be joined in different counts of the same indictment, and tried together, the indictments must be tried separately.^ "^ COUNSEL. 156. The state is represented at the trial by the regular prosecuting attorney, but he may call in other counsel to »« Note 93, supra; State v. Conley, 39 Me. 78; State v. O'Brien, 7 R. I. 336. 8 7 McJunkins v. State, 10 Ind. 140. 98 Patterson v. People, 46 Barb. (N. Y.) 625; People v. Mclntyre, 1 Parker, Or. R. (N. Y.) 371. Contra, by statute, Davis v. State (Tex. Or. App.) 26 S. W. 410. OB Casper v. State, 47 Wis. 535, 2 N. W. 1117. 100 Withers v. Com., 5 Serg. & R. (Pa.) 59; Cummins v. People, 4 Colo. App. 71, 34 Pac. 734; State v. Lee, 114 N. C. 844, 19 S. E. 375. 101 state V. Devlin, 25 Mo. 175; Cummins v. People, supra. Ch. 12] COUNSEL. 433 assist him, or, if he permits, private counsel m.ay be em- ployed by the prosecutor or other private persons to as- sist. 157. The defendant may either employ counsel, or, if he is unable to do so, the court will appoint counsel, to de- fend him. In the latter case the defendant cannot insist on the appointment of counsel selected by him, and, if he refuses to accept the services of counsel, he may be tried without. In ordinary cases the regular prosecuting attorney or his as- sistant will act alone in conducting the prosecution, but, if he chooses to do so, he may accept assistance from other counsel, and frequently does so in difficult cases, or cases which involve a great amount of labor.^"^ Private persons may also employ and pay counsel to assist in the prosecution, if the regular prosecuting attor- ney chooses to accept such assistance.^"^ If the regular prosecuting attorney is sick, or otherwise unable to appear, the court may ap- point an attorney to conduct the prosecution.^"* If the defendant is able to do so, he employs his own counsel.^ °° If he cannot do so, the court must appoint counsel for him.^"' In some states provision is made for compensating the counsel so appointed, but in others they are expected to act without compen- sation, and must do so unless the court will excuse them. The de- fendant cannot compel the judge to appoint an attorney whom he has selected, instead of one whom the judge has appointed.^"' 102 state V. Mack, 45 La. Ann. 1155, 14 South. 141; State v. Orrick, 106 Mo. 111. 17 S. W. 1T6. 103 State V. Bartlett, 55 Me. 200; Bennlngfleld v. Com. (Ky.) 17 S. W. 271; State v. Grafton (Iowa) 56 N. W. 257; People v. Powell, 87 Cal. 348, 25 Pac. 481; Keyes v. State, 122 Ind. 527, 23 N. B. 1097. 104 Keithler v. State, 10 Smedes & M. (Miss.) 192; State v. Johnson, 12 Tex. 231; Dukes v. State, 11 Ind. 557; White v. Polk Co., 17 Iowa, 413. lOB Cross V. State, 132 Ind. 65, 31 N. E. 473. ^106 Hendryx v. State, 130 Ind. 265, 29 N. E. 1131. Formerly, though the de- fendant had at common law the right to the advice and assistance of coun- sel, he could not be represented by counsel at his trial 1 Chit. Cr. Law, 407; Y. B. 30 & 31 Edw. I. 529; 2 Hawk. P. C. c. 39, §§ 1, 4. 107 Baker v. State, 86 Wis. 474, 56 N. W. 1088. CRIM.PROC. — 28 434 TRIAL AND VERDICT. [Ch. 12 If the defendant refuses to accept the services of counsel, he may be tried without counsel. Where the court has oflEered and insisted on assigning counsel to the defendant, and he has refused to allow it to be done, or to accept the counsel's services, the court cannot force counsel upon him, but must proceed to try him without.^"* THE PETIT JURY— BIGHT TO JURY TRIAL, AND WAIVER. 158. In all criminal prosecutions the defendant is enti- tled to a trial by jury. In some states he cannot waive this right in any case where the trial was by jury at common law. In other states he may waive the right in prosecutions for a misdemeanor, and in others he may also waive it in cases of felony. Right to Trial by Jury. The right of every person charged with crime to a trial by jury has from the earliest period existed at common law.^"' It was recognized and secured to the English people by the Magna Charta, and with us it is guarantied by our federal and state constitu- tions.^^" The language of the different provisions varies to some extent, but their object and effect is the same, namely, to secure to every person charged with a crime the same right to a jury trial, and only the same right, as had always existed at common law. No new right is conferred, but the common-law right is guarantied so that the legislature cannot take it away nor impair it. The legislature may regulate the mode of trial by jury, pro- vided it does not deprive the accused of his substantial common- law rights, but it cannot take away a single one of these rights.^^^ 10 s state V. Moore (Mo. Sup.) 26 S. W. 345. 10 1 Chit. Cr. Law, 500. 110 The constitution of the United States declares that In all criminal pros- ecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury. The same provision appears in some of the state constitu- tions. In others it is merely declared that the right of trial by jury shall remain inviolate. And in others the guaranty is expressed in other words, but the purpose and effect are substantially the same. > 111 1 Bish. Cr. Prcc. §§ 890-894; Black, Const Law, 493-497; Swart v. Kimball, 43 Mich. 443, 5 N. W. 635; Ross v. Irving, 14 111. 171; Work v. State, 2 Ohio St. 296; and cases hereafter referred to. Ch. 12] THE PETIT JUBY. 435 At common law a person accused of petit offenses, such as va- grancy, disorderly conduct, violation of a municipal ordinance, and trivial breaches of the peace, of which justices of the peace and po- lice magistrates had jurisdiction, had no right to demand a trial by jury, and by the weight of authority he has no such right under the constitutional guaranty, for, as we have seen, it was only intended to guaranty the same right as had always existed at common law.^^'' The constitutional guaranty of a jury trial only applies to crim- inal prosecutions. It does not apply, for instance, to a proceeding to punish for contempt of court.^^' By the weight of authority a statute authorizing a trial without a jury is valid if the defendant is at the same time given an unquali- fied and unfettered right of appeal and a trial by jury in the appel- late court.^^* Waiver of Jury Trial. Whether or not the right to a jury trial is a right which the de- fendant can waive is a question upon which the authorities are conflicting. Some of the courts have held that a jury may be waived in all cases, provided there is a statute authorizing the court to try the case without a jury; ^^^ that the constitutional right to a trial by jury is not infringed when the accused may have it or not at his election.^'" Many of the cases so holding were cases of 112 People V. Justices, 74 N. Y. 406; Wong v. City of Astoria, 13 Or. 538, 11 Pac. 295; Byers v. Com., 42 Pa. St. 89, 94; State v. Glenn, 54 Md. 573; Com. V. Horton, 1 Va. Cas. 335; Inwood v. State, 42 Ohio St. 186; State v. Conlin, 27 Vt. 318; McGear v. Woodruff, 33 N. J. Law, 213; Frost v. Com., 9 B. Mon. (Ky.) 362; Williams v. City Council of Augusta, 4 Ga. 509; State v. M'Cory, 2 Blackf. (Ind.) 5; State v. Ledford, 3 Mo. 102. A jury trial is sometimes al- lowed by statute in these inferior courts. 113 Black, Const. Law, 496; Ex parte Grace, 12 Iowa, 208; Ex parte Tenr, 128 U. S. 289, 9 Sup. Ct. 77. Nor to proceedings to commit a child to the in- dustrial school. Ex parte Ah Peen, 51 Cal. 280. Nor to proceedings by a court martial. Rawson v. Brown, 18 Me. 216. 114 Jones V. Bobbins, 8 Gray (Mass.) 329; Emerick v. Harris, 1 Bin. (Pa.) 416; Murphy v. People, 2 Cow. (N. Y.) 815; Beers v. Beers, 4 Conn. 535; Black, Const Law, 497; Emporia v. Volmer, 12 Kan. 622; Wong v. Astoria, 13 Or. 538, 11 Pac. 295. Contra, Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301. 116 Dillingham t. State, 5 Ohio St. 283. 116 In re Staff, 63 Wis. 285, 23 N. W. 587; State v. Worden, 46 Conn. 349; 436 TRIAL AND VERDICT. [Ch. 12 felony, but most of them were cases of misdemeanor, and it is probable that the court in some of the latter cases did not intend to lay down any such rule for cases of felony.*^' Many of the cases hold that trial by jury cannot be waived in prosecutions for felony.^^* It is difficult to understand how there can be any distinction in this respect between a prosecution for a felony, and a prosecution for such a misdemeanor as at common law entitled the defendant to a jury trial. It would seem in reason that if a jury cannot be waived in one it cannot be waived in the other, and that if it oan be waived in one it can be waived in the other. The grade of the crime should be immaterial, provided it is such a crime as entitled the defendant to a jury trial at common law, for, as we have seen, the constitutions guaranty the same right as existed at common law. If, therefore, a jury trial cannot be waived in one case in which it was necessary at common law, it cannot, in reason, be waived in another.^^^ Where the constitu- tion or a statute expressly requires a jury trial, and does not merely give the accused the right to such a trial, a jury can in no case be waived, for it is intended to protect the state as well as the defendant.^=» Dalley v. State, 4 Ohio St 58; Dillingham v. State, 5 Ohio St. 283; People t. Goodwin, 5 Wend. (N. Y.) 251; Ward v. People, 30 Mich. 116; Darst v. Peo- ple, 51 111. 286; State v. Moody, 24 Mo. 560; Murphy v. State, 97 Ind. 579. iiT See Dalley v. State, supra; Dillingham v. State, supra; and then com- pare Williams v. State, 12 Ohio St. 622. lis Williams v. State, 12 Ohio St. 622; Hill v. People, 16 Mich. 351; Ward T. People, 30 Mich. 116; Allen v. State, 54 Ind. 461; State v. Maine, 27 Conn. 281; State v. Mansfield, 41 Mo. 470; State v. Davis, 66 Mo. 684; Neales v. State, 10 Mo. 498; State v. Lockwood, 43 Wis. 403; Arnold v. State, 38 Neb. 752, 57 N. W. 378; Com. v. Shaw, 1 Plttsb. R. (Pa.) 492 (collecting the author- ities). lis "A plea of not guilty to an information or Indictment for crime, whether felony or misdemeanor, puts the accused upon the countiy, and can be tried by a jury only. The rule is universal as to felonies; not quite so as to mis- demeanors. But the current of authority appears to apply it to both classes •of crime; and this court holds that to be safer and better alike in principle and practice. The right of trial by jury, upon indictment or information for crime, is secured by the constitution upon a principle of public policj^ and cannot be waived." State v. Lockwood, 43 Wis. 405. And see Com. v. Shaw, 1 Pittsb. R. (Pa.) 492. But see In re Staff, 63 Wis. 285, 23 N. W. 587. 120 Arnold v. State, 38 Neb. 752, 57 N. W. 378. Ch, 12] THE PETIT JUEY. 437 Where the right to a jury trial is given by statute in cases which could be tried without a jury at common law, as in prosecutions for petit misdemeanors before inferior tribunals, the right may, of course, be waived.^*^ In all cases the right to a jury may be waived by pleading guilty, for in such a case no trial at all is necessary.* ''^ Where a jury trial may be waived, it is not necessary that there shall be an express waiver; it is sufficient if a jury is not demanded, or if the case is tried and submitted to the court* ^° It has also been held that it is not necessary that the coi^rt shall inform the accused of his right to demand a trial by jury.*''* In all cases the waiver must be by the defendant personally, and not by his attorney for him, unless in his presence, and with his acquiescence.**' SAME— NUMBER OP JURORS. 169. In most, but not all, states, the jury must consist of not less nor more than twelve men, as at common la-w. But, -where the defendant may waive his right to a jury, he may consent to be tried by a jury of less or more than tw^elve. The constitutional guaranty of a trial by jury implies there shall be, as at common law, a jury of not more nor less than twelve men.**' A statute providing for a greater or less number would be unconstitutional,**' unless, as in some states, the constitution 121 People V. Weeks, 99 Mich. 86, 57 N. W. 1091. 122 State V. Almy (N. H.) 28 Atl. 372. 123 Dailey v. State, 4 Ohio St 58; People v. Goodwin, 5 Wend. (N. Y.) 251. 124 People V. Goodwin, supra; State v. Larger, 45 Mo. 510. But see Brown y. State, 16 Ind. 496. 12B Brown v. State, supra. 126 2 Hale, P. C. 161; 1 Chit. Or. Law, 505; Black, Const. Law, 494; Work T. State, 2 Ohio St. 296; People v. Kennedy, 2 Parker, Or. R. (N. Y.) 312; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. (Ind.) 561; People V. O'Neil, 48 Cal. 257; Bowles v. State, 5 Sneed (Tenn.) 360; Doebler v. Com., 3 Serg. & R. (Pa.) 237; People v. Luby, 56 Mich. 551, 23 N. W. 218. 127 See the cases above cited. This does not apply to summary proceed- ings before a justice of the peace or other inferior tribunal for petit ofCenses, 438 TRIAL AND VERDICT. [Ch. 12 authorizes the legislature to provide for trial by a jury of less than twelve."' In some jurisdictions it has been held that, if the defendant consents to being tried by a jury of less than twelve, he cannot complain of the irregularity; ^'° but it would seem, at least in those jurisdictions where it is held that a jury trial can- not be waived, that the right to a full jury of twelve men is a right which cannot be waived, and so it has been held.^'* SAME— SELECTING AND SUMMONING JURORS. 160. The jurors must be selected and summoned as re- quired by la-w. The mode of selecting and summoning jurors is regulated by statute in the different states. These statutes vary in many re- spects, and it would be impracticable to undertake to refer to them specifically. The student must be left to consult the statutes and decisions of his state. SAME— QUALiriCATION AND EXEMPTION OF JURORS- CHALLENGES. 161. The jurors must not only be properly selected and summoned, but they must be individually qualified to serve. If they are disqualified they may be challeuged by either side, and must be excluded. Challenges are either, (a) To the array, that is, to the jury as a whole; or (b) To the polls, that is, to individual jurors. 162. A challenge to the array is an objection to all the jurors collectively because of some defect of the panel as a -wrhole, and is either, in which a jury trial cannot be demanded ai3 of right Ante, p. 435; Work v. State, supra. 128 Baurose v. State, 1 Iowa, 378. 129 Com. v. Dailey, 12 CusIl (Mass.) 80; Murphy v. Com., 1 Mete. (Ky.) 365; Tyra v. Com., 2 Mete. (Ky.) 1. 130 Cancemi v. People, 18 N. Y. 128. Ch. 12] THE PETIT JURY. 439 (a) Principal challenge, — where the defect ren- ders the jury prima facie incompetent, as ■where the oflacer selecting or summoning them "vtras related to the prosecutor or de- fendant, or they -vrere not selected or sum- moned in the manner required by lavr, etc, Ob) Challenge for favor, — where the defect does not amount to ground for principal chal- lenge, but there is a probability of partial- ity. 163. Challenges to the polls are challenges to individual jurors, and are (a) Principal challenges, — (1) Propter defectum, — ^w^here the juror is incompetent to serve on any jury, as Where he is an alien, infant, nonresi- dent of the county, etc., or has not particular qualifications prescribed by statute. (S) Propter affectum, — w^here there is some circumstance rendering him prima facie partial or biased in the particular case, as where he is related to one of the parties, or has formed an opinion, etc. (3) Propter delictum, — where the particular juror, by some act, has ceased, in the eye of the law, to be probus et legalis homo, as w^here he has been convicted of an infamous crime. (b) Challenge to the favor, — where the circum- stances show a probability of bias and iasa- partiality, but are not sufB.cient to render the juror prima facie disqualified, so as to be ground for principal challenge propter affectum. 164. Peremptory challenges are such as the court is bound to allow w^ithout any cause being assigned or 440 TRIAL AND VERDICT. [Ch. 12 sho'wn. A certain number of these challenges are allo-w^ed to the defendant, and, in most states, to the prosecution. 165. Ordinarily objections to jurors must be made before the jury is s-worn, or the swearing is begun; but this rule does not apply -where the disqualification is not discovered until afterwards, and due diligence has been used to dis- cover it. 166. The fact that a juror is exempt from jury service does not disqualify him, if he consents to serve. Challenges. The right to a jury trial Implies that the jury shall be impartial, and that it shall consist of men who are legally competent to act as jurors, and that they shall be legally selected, summoned, and impaneled. The constitutions guaranty the right to such a jury as the accused was entitled to demand at common law. In deter- mining the qualifications of jurors, we must therefore look to the common law. The legislatures may and often do require quali- fications which were not required by the common law, and pro- vide other modes of selecting, summoning, and impaneling jurors, and they sometimes do away with requirements of the common law; but they cannot constitutionally declare any common-law requirement unnecessary, if by doing so they deprive the accused of any substantial right which he had at common law.^'^ To se- cure the right to an impartial jury, the accused must have the right to challenge or object to any juror who is disqualified for any cause. The legislature may prescribe the time and manner of objecting to jurors, and the manner of determining objections, but it cannot take away the right to object.^'" Challenges are either to the array or to the polls, and are either principal challenges or challenges to the favor. 181 Ex parte Termilyea, 6 Cow. (N. Y.) 562. . 1S2 Black, Const Law, 494; Palmore v. State, 29 Ark. 248. Laws limiting the number of peremptory challenges to be allowed to the defendant, or grant- ing peremptory challengeB to the state, are not unconstitutional. Black, Const. Law, 494; post, p. 449. Nor is a law unconstitutional which allows the court to admit a juror as competent, although he has formed and expressed an opin- ion as to the guilt of the accused, if the court is satisfied that he will render an impartial verdict. Id.; post, p. 444. Ch. 12] THE PETIT JURY. 441 Challenges to the Array. A challenge to the array is an objection, not to individual jurors, but to all the jurors, collectively, and is based, not upon any sup- posed disqualification of individual jurors, but upon some defect of the panel as a whole.*'' It is ground for principal challenge to the array, that the oflEicer who summoned the jurors is re- lated within the ninth degree, either by affinity or by consanguinity, to the prosecutor or to the defendant; *'* that one or more of the jurors was selected and summoned at the instance of one of the parties; *'" that there are relations existing between the officer and one of the parties prima facie implying favor or iU will on the part of the officer; *'* that the jurors were not selected or sum- moned in the manner required by law.*''' The array may be challenged for favor whenever there are cir- cumstances which, whUe not sufficient ground for principal chal- lenge, are such as show a probability that the officer who selected or summoned the jury was biased.*'' It has been said that a challenge may be made to the array on account of any bias on the part of the officer who summoned them which would be ground for challenge to a juror.*'* OhaUenges to the Polls. Challenges to the polls are objections to individual jurors. Like challenges to the array, they are either principal challenges, or chal- lenges to the favor. Principal Challenges to the Polls. Principal challenges to the polls have been classified as chal- lenges propter honoris respectum, propter defectum, propter af- 133 Co. Litt. 156, 158; 3 Bl. Comm. 359; Gardner v. Turner, 9 Johns. (N. Y.) 261. 134 Vanauken v. Beemer, 4 N. J. Law, 364. 13 6 Co. Litt. 156. 138 Baylls V. Lucas, Cowp. 112. 137 Gardner v. Turner, 9 Johns. (N. T.) 260; State v. Clark, 42 Vt. 629; Glad- den v. State, 13 Fla. 623; Lamb v. State, 36 Wis. 424; Morgan v. State, 31 Ind. 193; State v. McAfee, 64 N. 0. 339; Reid v. State, 50 Ga. 556. 138 Co. Litt. 156. 138 People V. Coyodo, 40 Cal. 588. 442 TRIAL AND VEEDICT. [Ch. 12 fectum, and propter delictum.^** The first is not recognized in this country, because it depends upon a title of nobility^ The other three are recognized. Same — Propter Defectum. A challenge propter defectum is on the ground that the juror is not qualified at all to serve on any jury. It will lie where the juror is an alien; ^^^ or not a resident of the county;^*'' or, in some states by statute, and possibly at common law, not a free- holder; ^*^ or, by statute in many jurisdictions, because he has not 1*0 Co. Litt. 156; Archb. Cr. PI. & Prac. 165, note. 1*1 Borst V. Beecker, 6 Johns. (N. Y.) 332; Rex t. Sutton, 8 Barn. & C. 417; Richards v. Moore, 60 Vt. 449, 15 Atl. 119; HoUingsworth v. Duane, 4 Dall. 353, Fed. Gas. No. 6,618; Seal v. State, 13 Smedes & M. (Miss.) 286; Schu- maker v. State, 5 Wis. 324; State v. Quarrel, 2 Bay (S. 0.) 150; People v. Chung Lit, 17 Cal. 320. By statute in many states, a person who has de- clared his intention to become a citizen, for the purpose of naturalization, is a competent jutor. There is an exception to this rule where the defendant is an alien. By an early English statute (28 Edw. III. c. 13, § 2), it was pro- vided, in substance, that where the defendant in a criminal case (or either party in a civil case) was an alien, part of the jurors should be aliens. This statute has been recognized as a part of the common law in some of our states, but rejected in others, and in some states similar statutes have been enacted. Such a panel of jurors is called a "panel de medietate linguae." See 1 Bish. Cr. Proc. §§ 927-930; Respubliea v. Mesca, 1 Dall. (Pa.) 73; Richards v. Com., 11 Leigh (Ta.) 690; Brown v. Com., Id. 711; People v. McLean, 2 Johns. (N. Y.) 381; State v. Antonio, 4 Hawks (N. C.) 200. i<2 Co. Litt 156b. The jurors must be summoned from the vicinage. This has always been essential at common law, and is still so. Swart v. Kimball, 43 Mich. 443, 5 N. W. 635. Under our constitutional provisions, as we have seen, or under most of them, this is a requirement which the legislature can- not dispense with. Swart v. Kimball, supra. Jurors were at one time in England required to be summoned from the very ville or other place in the county where the offense was committed, but by statute they are now sum- moned from the body of the county, and not from any particular place in it. Such is also the rule with us. A juror may be a resident of the county with- out being an elector or voter. State v. Fairlamb, 121 Mo. 137, 25 S. W. 895. 143 Co. Litt. 156; Byrd v. State, 1 How. (Miss.) 163; Bradford v. State, 15 Ind. 347; Shoemaker v. State, 12 Ohio, 43; Nelson v. State, 10 Humph. (Tenn.) 518; Dowdy v. Com., 9 Grat. (Va.) 727; Aaron v. State, 37 Ala. 106. There is some doubt as to whether this qualification is necessary at common law with us. The matter is generally set at rest by statutes, some of which de- clare it necessary, while others declare it unnecessary. Ch. 12] THE PETIT JURY. 443 paid his taxes; ^** or because he is an infant;^*" or is over the age limited by statute;^*^ or is an idiot or lunatic or drunken;^*^ or a woman; ^*^ or does not understand the English language; ^■'° or, by statute in some states, is unable to read or write; ^°'' or, by statute, has within a certain time served on a prior jury; ^"^ or is deaf, or otherwise in such a bad condition physically as to be unable to act as a juror.^"'' Same — Propter Affectum. A principal challenge propter affectum is based on some cir- cumstance that raises the presumption of bias or partiality in the particular case. Any partiality or bias, whether it be in favor of the defendant or against him, will disqualify a juror. Such a challenge will always lie where a juror is related to the prosecutor or to the defendant within the ninth degree,^"' either by aflQnity, that is, by marriage,^ ^* or by consanguinity.^ °° 144 state V. Davis, 109 N. O. 780, 14 S. E. 55; State v. Reed (Kan.) 37 Pac. 174; Collins V. State, 31 Fla. 574, 12 South. 906. 145 Co. Lltt 157. i4« Co. Lltt 157; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. If the stat- ute merely exempts persons over a certain age, the exemption is a personal privilege, which they may waive. It does not disqualify, them. Post, p. 449. 147 state V. Scott, 1 Hawks (N. C.) 24; Thomas v. State, 27 Ga. 287. 148 3 Bl. Comm. 362. See Harland v. Territoiy, 3 Wash. T. 131, 13 Pac. 453. 149 state V. Push, 23 La. Ann. 14; People v. Davis (Cal.) 36 Pac. 96; Long V. state, 86 Ala. 36, 5 South. 443. But see In re Allison,. 13 Colo. 525, 22 Pac. 820. As to sufficiency of knowledge of language, see State v. Dent, 41 La. Ann. 1082, 7 South. 694; State v. Ford, 42 La. Ann. 255, 7 South. 696. 160 Mabry v. State, 71 Miss. 716, 14 South. 267; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252. 151 First Nat. Bank v. Post, 66 Vt. 237, 28 Atl. 989. 152 Jesse V. State, 20 Ga. 156; Hogshead v. State, 6 Humph. (Tenn.) 59; Rhodes v. State, 128 Ind. 189, 27 N. B. 866. 153 In some jurisdictions the relationship must be within the fourth degree, Kahn v. Reedy, 8 Ohio Cir. Ct. R. 345; in others, the third degree. Page v. State (Tex App.) infra. 154 1 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Lltt. 157a; State v. Potts, 155 1 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Lltt 157a; People v. Clark, 62 Hun, 84, 16 N. Y. Supp. 473, 695; Mahaney v. St Louis & H. R. Co., 108 Mo. 191, 18 S. W. 895; State v. Merriman, 34 S. C. 16, 12 S. B. 619; State V. Williams (Del.) 18 Atl. 949; Page 7. State, 22 Tex. App. 551, 3 S. W. 745. Relationship to prosecuting attorney does not disqualify. People v. Waller, 70 Mich. 237, 38 N. W. 261. 444 TEIAL AND VERDICT. [Ch. 12' Such a challenge will also lie where a juror is under the power of either party, ^" or in his employment, ^"^ or if he is to receiTe part of the flne,^"* or if since he was summoned he has eaten or drank at the expense of either party,^" or if there are actions pending be- tween a juror and either party which imply hostility,^'" or if one of the parties has given a juror money to influence his verdict.*'^ A principal challenge propter affectum will also lie where a juror has expressed his wishes as to the result of the trial; ^" or if he has formed and expressed, or merely formed, a decided, and not a conditional or hypothetical, opinion as to the guilt or innocence of the defendant.^'* There are some cases to the effect 100 N. 0. 457, 6 S. E. 657; Powers v. State, 27 Tex. App. 700, 11 S. W. 646. But see Moses v. State, 11 Humph. (Term.) 232. Affinity ceases on the dis- solution, by death or divorce, of the marriage by which it was created. State V. Shaw, 3 Ired. (N. C.) 532. Marriage will relate each party by affinity, to the other's blood relations, but it will not relate the blood relations of one of them to the blood relations of the other. A juror, therefore, is not incompe- tent because his stepdaughter married the brother of one of the parties. Cen- tral Railroad & Banking Co. of Georgia v. Roberts, 91 Ga. 513, 18 S. E. 315. See, also. Burns v. State, 89 Ga. 527, 15 S. B. 748; McDuffie v. State, 90 Ga. 786, 17 S. E. 105; Kirby v. State, 89 Ala. 63, 8 South. 110. 108 1 Chit. Cr. Law, 541. 1B7 1 Chit. Cr. Law, 542; Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 South. 360. See State v. Coella, 3 Wash. St. 99, 28 Pac. 28. 108 1 Chit. Cr. Law, 542. Tliat an inhabitant of a town to wtilch a fine will go is disqualified, see State v. Williams, 30 Me. 484. Contra, Treasurer of Middletown v. Ames, 7 Vt. 166. 109 1 Chit. Cr. Law, 542; Co. Litt. 157. That one of the parties has been entertained at the juror's house is only a ground of challenge to the favor. Anon., 3 Salk. 81; post, p. 448. 160 1 Chit. Cr. Law, 542; Co. Litt 157. 161 Co. Litt. 157. 162 1 Chit. Cr. Law, 542. 163 1 Chit. Cr. Law, 542; 2 Hawk. P. C. c. 43, § 28; People v. Rathbun, 21 Wend. (N. Y.) 509; Freeman v. People, 4 Denio (N. Y.) 9; WUlis v. State, 12 Ga. 444; Sprouce v.Com.,2 Va.Cas.375; Osiander v. Com., 3 Leigh (Va.) 780; Armlstead v. Com., 11 Leigh (Va.) 657; Ned v. State, 7 Port. (Ala.) 187; Noble v. People, Breese (111.) 54. There is much conflict and confusion in the cases on this point, and some very fine distinctions have been drawn. We cannot go into the question at any length, but must content ourselves with referring to some of the cases, and leave the student to follow up the subject by reading them. It has been held that if the opinion expressed is merely conditional or hypothetical, and not un- qualified, it does not disqualify. People v. Mather, 4 Wend. (N. Y.) 243; Du- Ch. 12] THE PETIT JURY. 445 that a juror who has served in one case, and returned a verdict of guilty, is not disqualified to serve in another case against a rell V. Mosher, 8 Johns. (N. Y.) 347; State v. Potter, 18 Conn. 166; Smith v. Com., 7 Grat. (Va.) 593; State v. Foster (Iowa) 59 N. W. 8. The courts are virtually agreed that an opinion formed on being an eyewitness of the trans- action, or on hearing or reading the statements or testimony of eyewitnesses either out of court or in a prior judicial proceeding, will disqualify. Ex parte Vermilyea, 6 Cow. (N. Y.) 555; Mabry v. State, 71 Miss. 716, 14 South. 267. By the weight of authority, the opinion need not have been formed from any favor or ill will. Ex parte Vermilyea, 6 Cow. (N. Y.) 555; and cases hereafter cited. But see Rex v. Edmonds, 4 Barn. & Aid. 471; State v. Spencer, 21 N. J. Law, 196. It has been said, and is so provided by statute In some states, that, if the opinion formed by a juror is not strong enough to influence him in his trial of the case, it does not disqualify him. Com. v. Webster, 5 Cush. (Mass.) 295; People v. Honeyman, 3 Denio (N. Y.) 121; People v. Puller, 2 Paxker, Or. R. (N. Y.) 16; State v. Ellington, 7 Ired. (N. C.) 61; Shannon v. State (Tex.) 26 S. W. 410; Lewis v. State (Ind.) 36 N. E. 1110; State v. Le- dufC (La.) 15 South. 397; King v. State, 5 How. (Miss.) 730; Hendrick v. Com., 5 Leigh (Va.) 707; Pollard v. Com., 5 Rand. (Va.) 659. It has even been held under such a statute that an opmion does not disqualify, though some evi- dence may be necessary to remove it. State v. Field (Iowa) 56 N. W. 276; Shannon v. State (Tex.) 26 S. W. 410. Many, probably most, of the courts, have held that an opinion formed or expressed, on common report or rumor, or on newspaper reports, will not disqualify, if the juror believes and states on oath that such opinion will not influence him or prevent him from rendering a true verdict on the evidence, and the court is satisfled that such is the case, and in many states it is so provided by statute. Com. v. Berger, 3 Brewst. (Pa.) 247; Moses v. State, 10 Humph. (Tenn.) 456; State v. Williams, 3 Stew. (Ala.) 454; Quesenberry v. State, 3 Stew. & P. (Ala.) 308; M'Gregg v. State, 4 Blackf. (Ind.) 101; Baldwin v. State, 12 Mo. 223; Moran v. Com., 9 Leigh (Va.) 651; Smith v. Com., 6 Grat. (Va.) 696; Payne v. State, 3 Humph. (Tenn.) 375; State v. Morea, 2 Ala. 275; State v. Ellington, 7 Ired. (N. C.) 61; State V. Dove, 10 Ired. (N. C.) 469; Nelms v. State, 13 Smedes & M. (Miss.) 500; Lee V. State, 45 Miss. 114; Baker v. State (Wis.) 59 N. W. 570; State v. Duffy (Mo.) 27 S. W. 358; State v. De GrafC, 113 N. C. 688, 18 S. E. 507; State v. Frier, 45 La. Ann. 1434, 14 South. 296; State v. Gile, 8 Wash. 12, 35 Pac. 417; though it would require evidence to remove the impression. Com. v. Crossmire, 156 Pa. St. 304, 27 Atl. 40. Other courts, in the absence of such a statute, have held that the ground upon which the opinion has been formed is imma- terial; that there is no distinction between an opinion founded on being an eyewitness, or on hearing the testimony of those who were present at the trans- action, and an opinion based on rumors, reports, and newspaper publications; that in either case the opinion disqualifles. People v. Mather, 4 Wend. (N. Y.) 229; Neely v. People, 13 111. 687; State v. Webster, 13 N. H. 491; Leach v. 446 TEIAI, AND VERDICT. [Ch. 12 joint defendant who has taken a separate trial, involying the same state of facts, but the better opinion is to the contrary.^"* And gen- erally a person who has served in a prior case against another, or against the same defendant, involving the same questions of fact, is disqualified.^ "^ So if a person has served on the grand jury which indicted the defendant, he is incompetent to serve on the petit jury.^" People, 53 111. 311; Clem v. State, 33 Ind. 418; Lithgow v. Com., 2 Va. Gas. 297; Reynolds v. State, 1 Kelly (Ga.) 222; and see Boon v. State, Id. 631; and that a juror who has formed an opinion on the merits does not become quali- fied because he declares that, if the circumstances on which his opinion is based are not supported by the proof, his opinion of the defendant's guilt will be removed. "Too much stress ought not to be laid on the juror's declaration that, if the circumstances on which his opinion was founded should not be sup- ported by the evidence, his opinion of the defendant's guilt would be removed. The disqualifying bias which the law regards is one wliich in a measure oper- ates unconsciously on the juryman, and leads him to indulge his own feelings when he tliinks he is influenced entirely by the weight of evidence." People v. Mather, 4 Wend. (N. Y.) 244. And see Coleman v. Hagerman, cited 4 Wend. (N. Y.) 243; Baxter v. People, 3 Oilman (111.) 368; Canceml v. People, 16 N. Y. 501; Payne v. State, 3 Humph. (Tenn.) 375; People v. Keefer, 97 Mich. 15, 56 N. W. 105; U. S. v. Han way, 2 Wall. Jr. 150, Fed. Cas. No. 15,299; Trimble V. State, 2 Greene (Iowa) 404; Sam v. State, 13 Smedes & M. (Miss.) 189. In some states it is provided by statute that an opinion or impression as to the guilt of the accused shall not be ground for challenge for cause if the juror states on oath that he can render an impartial verdict notwithstanding such opinion, and if the court is satisfied that the opinion will not influence his verdict. Such a statute has been held constitutional, as it does not talce away the right to trial by an impartial jury. Stokes v. People, 53 N. Y. 164; Palmer V. State, 42 Ohio St. 596. There is authority for saying that an opinion must not only be formed, but must be expressed, before it will disqualify. Noble V. People, Breese (111.) 54; Boardman v. Wood, 3 Vt. 570. But In reason, and by the weight of authority, formation of opinion is alone enough. McGowan V. State, 9 Yerg. (Tenn.) 184; People v. Rathbun, 21 Wend. (N. Y.) 509; Peo- ple V. Mather, 4 Wend. (N. Y.) 229. And see cases cited above. 18* 2 Hawk. P. C. c. 43, § 29; State v. Sheeley, 15 Iowa, 404; People v. Troy, 96 Mich. 530, 56 N. W. 102; Stephens v. State, 53 N. J. Law, 245, 21 Atl. 1038. 105 People V. Troy, supra; Edmondson v. Wallace, 20 Ga. 660; State v. James, 34 S. C. 49, 12 S. B. 657; Garth waite v. Tatum, 21 Ark. 336. For limitations of the rule, see Com. v. Hill, 4 Allen (JIass.) 591. See State v. Maloney, 118 Mo. 112, 23 S. W. 1084. 160 Rex V. Perclval, Sid. 243; State v. Cooler, 30 S. 0. 105, 8 S. E. 692; Rice Ch. 12] THE PETIT JURY. 447 By the OTerwhelming weight of authority, conscientious scruples against the infliction of capital punishment will disqualify a juror in a case where the punishment may be death.^'^ This has been said to be ground for challenge to favor only.^** Scruples against convicting on circumstantial evidence is ground for challenge."" But the fact that a juror is in favor of the law alleged to have been violated, and voted for it, does not disqualify him,^'" Nor is he disqualified because of his prejudice against the crime, if not prejudiced against the defendant.^" If, however, a juror is so prejudiced against the law which is alleged to have been violated, V. state, 16 Ind. 298; Stewart v. State, 15 Ohio St. 155. He must have ac- tually served on the grand jury. Rafe v. State, 20 Ga. 60; Rouse v. State, 4 Ga. 136. That one who served as coroner at an inquest is competent to serve as a juror on an indictment for the murder, see O'Connor v. State, 9 Fla. 215. 167 Logan V. U. S., 144 U. S. 263, 12 Sup. Ct 617; People v. Damon, 13 Wend. (N. Y.) 351; People v. Carolin, 115 N. Y. 058, 21 N. E. 1059; Gates v. People, 14 111. 433; State v. Mcintosh, 39 S. C. 97, 17 S. E. 446; Com. v. Lesher, 17 Serg. & R. (Pa.) 155; State v. Stewart, 45 La. Ann. 1164, 14 South. 143; Davidson v. State, 135 Ind. 254, 34 N. E. 972; Martin v. State, 16 Ohio, 364; State v. Town, Wright (Ohio) 75; Jones v. State, 2 Blackf. (Ind.) 475; Clore's Case, 8 Grat. (Va.) 606; Stalls v. St^te, 28 Ala. 25; Lewis v. State, 9 Smedes & M. (Miss.) 115; Burrell v. State, 18 Tex. 713; People v. Tanner, 2 Cal. 257; Williams v. State, 3 Kelly (Ga.) 453; Gonzales v. State, 31 Tex. Cr. E. 508, 21 S. W. 253; Pierce v. State, 13 N. H. 536; State v. Jewell, 33 Me. 583; State v. Ward, 39 Vt. 225; Bell v. State, 91 Ga. 15, 16 S. B. 207. It has been held in some states that mere opposition to capital punishment does not disqualify a juror who states that he can nevertheless render a ver- dict according to the evidence. Com. v. Webster, 5 Gush. (Mass.) 295; People V. Stewart, 7 Cal. 140; Atkins v. State, 16 Ark. 568. i»8 state V. Mercer, 67 N. C. 266. 189 Griffin v. State, 90 Ala. 596, 8 South. 670; Gates v. People, 14 111. 433; Com. V. Heist, 14 Pa. Co. Ct. R. 239; State v. Barker (La.) 15 South. 98; State V. Young, 119 Mo. 495, 24 S. W. 1038; State v. Frier, 45 La. Ann. 1434, 14 South. 296; People v. Fanshawe, 65 Hun, 77, 19 N. Y. Supp. 865, 137 N. Y. 68, 32 N. E. 1102; Johnson v. State, 34 Neb. 257, 51 N. W. 835; State v. Leabe, 89 Mo. 247, 1 S. W. 288. So where there is a prejudice against an informer's testimony. People v. Mahoney, 73 Hun, 601, 26 N. Y. Supp. 257. 170 People V. Keefer, 97 Mich. 15, 56 N. W. 105. 171 Williams v. State, 3 Kelly (Ga.) 453; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616; People v. Reynolds, 16 Cal. 128; Com. v. Poisson, 157 Mass. 510, 32 N. E. 906. But see People v. Wheeler, 96 Mich. 1, 55 N. W. 371. 448 TEIAL AND VERDICT. [Ch. 12 because he believes it unconstitutional, or because he thinks it should not be enforced, that he would be biased against its enforce- ment, he may be challenged by the state.^'^ A bad opinion of the defendant's character does not disqualify.^" Same — Propter Delictum. A challenge propter delictum is based on the ground that the juror objected to has for some act ceased to be, in the eye of the law, probus et legalis homo, as because he has been convicted of an infamous crime.^^* Challenges to the Polls for Favor. The challenge to the polls for favor is of the same nature with the principal challenge propter affectum, but of an inferior degree. The general rule of law is that the juror shall be indifferent; and, if it appear probable that he is not so, this may be made the subject of challenge, either principal or to the favor, according to the de- gree of probability of his being biased. The cause of principal chal- lenge to the polls, as we have seen, is such matter as carries with it, prima facie, evident marks of suspicion, either of malice or of favor. But when from any circumstance whatever it appears prob- able that a juror may be biased in favor of or against either party, and such circumstances do not amount to matter for a principal challenge, it may be made the ground of challenge to the favor.^T° The effect of the two species of challenge is the same.^^° A juror may be challenged to the favor after a challenge for principal cause has been overruled.^'^ 172 Com. V. Austin, 7 Gray (Mass.) 51; Com. v. Buzzell, 16 Pick. (Mass.) 153. ITS Helm V. State, 67 Miss. 562, 7 South. 487. 174 Co. Litt. 158; Arch. Cr. PI. & Prac. 1G5, note; 2 Hawk. P. C. c. 43, § 25. 176 A challenge to the favor has been sustained, for instance, because the juror was attending court in the expectation of being called as a witness for the opposite party, though he expected to testify as to the defendant's character. State v. Barber, 113 N. C. 711, 18 S. E. 515. Such a challenge was overruled where it was based on the ground that the juror had said the defendant was a tough citizen, the examination on his voir dire showing that there was no prejudice. State v. Anderson (Mont.) 37 Pac. 1. 176 Arch. Cr. PI. & Prac. 165, note. 177 Carnal v. People, 1 Parker, Cr. K. (N. Y.) 272. Ch. 12] THE PETIT JOEY. 449 Exemption from Jury Service. If the statute merely exempts a person from jury service, as be- cause he is over the statutory age, or is an oflScer of the United States, or a doctor, dentist, lawyer, fireman, policeman, etc., or has already served on a jury within a certain time, etc., and does not declare him incompetent to serve, it does not disqualify him. He can claim his exemption, but if he consents to serve, and is other- wise qualified, he cannot be challenged.^'* Peremptory Challenges. A peremptory challenge is a challenge which may be interposed or not at the pleasure of the party challenging, and without assign- ing or showing any cause. It is the right to have a juror ex- cluded without cause, and the court is bound to allow it.^'° At common law the defendant had the right to thirty-five peremp- tory challenges in cases of felony,^*" while the king had in all cases the right to challenge any number, without any limit whatever.^'^ The common law has been changed in England by statutes tak- ing away the right of the king to such challenges, and reducing the number to be allowed the defendant, and some of these stat- utes became a part of our common law. It is not necessary to do more than refer to these statutes, for the matter is now regulated by statute in all of our states.^*^ The number of peremptory chal- lenges allowed will be found to vary in the different states, and in the same state it will vary, according as the offense is a capital or a less felony, or merely a misdemeanor. In some states no peremptory challenges are allowed in cases of misdemeanor. And in some states the state is not allowed the right at all. 17 8 2 Hawk. P. C. c. 43, § 26; State y. Forshner, 43 N. H. 89; Davis v. People, 19 111. 74; State v. Quimby, 51 Me. 395; State v. Day, 79 Me. 120, 8 Atl. 544; State V. Toland, 36 S. C. 515, 15 S. E. 599; Thomas v. State, 27 Ga. 287; People V. Lange, 90 Mich. 454, 51 N. W. 534; People v. Rawn, 90 Mich. 377, 51 N. W. 522; State v. Jackson, 42 La. Ann. 1170, 8 South. 297. Therefore, the fact that the court erroneously refused a juror's claim of exemption is no ground of complaint by the defendant. State v. Jackson, supra. 178 1 Bish. Cr. Proc. § 935; 1 Chit. Cr. Law, 534. ISO 1 Chit. Cr. Law, 534; 1 Bish. Or. Proc. §§ 941, 942. 181 2 Hawk. P. C. c. 43, § 2. 182 The history of the law on this subject will be found in 1 Bish. Cr. Proc. {§ 935-945. GRIM. PROC. —29 450 TRIAL AND VERDICT. [Ch. 12 Statutes reducing the number of peremptory challenges to be allowed the defendant, or taking them away altogether, or al- lowing peremptory challenges to the state, are not unconstitu- ti&nal.^*' Passing Jurors at Request of the State. The common-law right of the king to challenge peremptorily was taken away by an early English statute,^** in substance re- quiring the king to show cause for his challenges. Under this statute it was held that the king need not show any cause for his challenge, until the whole panel was gone through, and it appeared that there would not be a full jury without a person challenged by him. And the defendant was required to show all his causes of challenge as the jurors were called, and before the king could be required to show any.^"* The English practice, after this statute, is thus stated by Mr. Bishop: "The course of things is for the court, on the application of the counsel for the prosecution, when the list of jurors returned is being called over, and the prisoner is being required to accept or challenge each juror as he appears at the call of his name, to direct such jurors to stand aside as are objected to on behalf of the prosecution. The panel is thus gone through with; and, if a full jury is obtained, without calling upon those who are required to stand aside, the proceed- ing is tantamount to a peremptory challenge on the part of the government. But, if a full jury is not thus obtained, and some of the jurors who were called did not, as it sometimes happens, answer to their names, then the panel is called over a second time, omitting those whose cases have been finally disposed of, yet including both those who did not answer, and those who were set aside at the instance of the prosecution; and on this second call the government can challenge only for cause. And, if the state challenges for cause in the first instance, the panel may still be gone through with before the question is tried ; so that, if the jury 188 Dowllng V. State, 5 Smedes & M. (Miss.) 664; Walter v. People, 32 N. Y. 147; Hartzell v. Com., 40 Pa. St. 462; Jones v. State, 1 Kelly (Ga.) 610; Walston v. Com., 16 B. Mon. (Ky.) 15; Cregler v. Bunton, 2 Strob. (S. 0.) 487. 184 33 Edw. I. St. 4. 185 2 Hawk. P. C. c. 43, § 3. Ch. 12] THE PETIT JURY. 451 becomes full before the panel is exhausted, all necessity of in- quiry into the causes of challenge is avoided." ^*° In some of our states, either under the English statute and de- cisions, as a part of the common law, or by their own statutes, the sanie practice obtains.^*' In other states it is not recognized, or has been abolished.^** Kme and Mode of Challenge — Practice. With regard to the time for interposing a challenge, the mode of challenging, the mode of trying and determining the objection, etc., there is considerable difference in the practice of the differ- ent states, and there is some conflict of opiuion on various ques- tions. In some states the whole matter is regulated by statute. As we have already stated, where the constitution of a state guaranties the right to a trial by jury, it guaranties the right to an impartial jury. The legislature may, within proper limits, reg- ulate the mode of objecting to jurors, but it cannot take away or impair the right. Any statute which undertakes to do so is void. The accused has a right to insist that no prejudiced or other- wise incompetent person shall serve as a juror, but this is a right which he may waive, and he may waive his objection impliedly by failing to object at the proper time. A challenge to the array must be made, if at all, not only before the jury is sworn,^'® but before a challenge to the poUs.^'" If the defendant knows or could know that a juror is ^disqualified for cause, and fails to ob- ject to him while the jury is being impaneled, and before they are 186 1 Bish. Or. Proc. § 938. 187 See State v. Bone, 7 Jones (N. C.) 121; Warren v. Com., 37 Pa. St. 45; Com. V. Addis, 1 Browne (Pa.) 285; Jewell v. Com., 22 Pa. St. 94; U. S. v. Douglass, 2 BlatcM. 207, Fed. Cas. No. 14,989; State v. Craton, 6 Ired. (N. 0.) 164; State v. Arthur, 2 Dev. (N. 0.) 217; State v. Barrontine, 2 Nott & McC. (S. C.) 553; State v. Stalmaker, 2 Brev. (S. C.) 1. 188 See Sealy v. State, 1 Kelly (Ga.) 213; Reynolds v. State, Id. 222; People V. Henries, 1 Parker, Cr. R. (N. Y.) 579. 18 1 Chit. Cr. Law, 544. 180 1 Chit. Or. Law, 545; Co. Litt. 158a; People v. M'Kay, 18 Johns. (N. X.) 212. 452 TRIAL AND VERDICT. [Ch. 12 sworn, or the swearing is begun,^'^ he waives his objection, and cannot afterwards raise it.^°* Even where the incompetency of a juror is not in fact known before he is sworn, the accused will waive his right to object if he does not use due diligence to discover it; and he does thus waive his objection if he fails to interrogate him, when by doing so he might bring out his incompetency.^"^ If the juror is interrogated, and testifies falsely, due diligence is shown, and the objection may be raised when the facts are dis- covered, even after verdict.*'* There are some cases in conflict with the rule stated, but the great weight of authority is in its favor. It would seem that any other rule, whether laid down by the court or by a statute, must be unconstitutional, as depriv- ing the defendant, without any fault on his part, of an impartial and competent jury. In some cases it has been held that the court may, in the exer- cise of a sound discretion, discharge a juror for incompetency, after he has been sworn, and before any evidence has been in- troduced, though the cause existed before the juror was sworn, and could have been discovered; *°° but there is much authority to the contrary.*"* 191 Reg. V. Frost, 9 Car. & P. 129, and cases cited In the following note. The swearing is not begun where the juror takes the book without authority. Reg. V. Frost, supra. i»2 Co. Litt. 158a; 2 Hawk. P. C. c. 43, § 1; 1 Chit. Cr. Law, 545; Reg. v. Frost, 9 Car. & P. 129; Com. v. Knapp, 10 Pick. (Mass.) 477, 480; State v. Driscoll, 2 Bay (S. C.) 153; Croy v. State, 32 Ind. 384; King v. State, 5 How. (Miss.) 730; Van Blaricum v. People, 16 111. '364; Schnell v. State (Ga.) 17 S. E. 966; Ward v. State, 1 Humph. (Tenn.) 253; McClure v. State, 1 Yerg. (Tenn.) 206; Gillespie v. State, 8 Yerg. (Tenn.) 507; Lisle v. State, 6 Mo. 426; Com. V. Jones, 1 Leigh (Va.) 598; Dilworth v. Com., 12 Grat. (Va.) 689; Beck V. State, 20 Ohio St. 228; McFadden v. Com., 23 Pa. St. 12; State v. Morea, 2 Ala. 275. 193 Brown v. People (Colo. Sup.) 36 Pac. 1040; State v. Nash, 45 La. Ann. 1137, 13 South. 732; Beck v. State, 20 Ohio St. 228. 194 Brown v. People, supra; State v. Nash, supra. Contra, McClure v. State, 1 Yerg. (Tenn.) 206. 19 5 In New York, in a capital case, a juror was so discharged because he had scruples against capital punishment. People v. Damon, 13 Wend. (N. Y.) 351. And see Tooel v. Com., 11 Leigh (Va.) 714; McGuire v. State, 37 Miss. 369. 198 Ward V. State, 1 Humph. (Tenn.) 253; ante, p. 385. Ch. 12] THE PETIT JUKY. 453 In some states it is held that the right to challenge perempto- rily must be exercised, if at all, before the jurors are interrogated as to their bias, or challenged for cause.^*' In others it is held that the right to challenge a juror peremptorily remains open un- til he is sworn, and this seems to be the better doctrine, for a challenge for cause may create a prejudice in the juror's mind."* Challenges to the array must be in writing, but challenges to the polls are made orally.^®' In all cases of challenge for cause, either principal or to the favor, the cause must be specified, or the court may disregard the challenge.""" The practice is to examine the juror himself on oath, such an examination being called an examination on his Toir dire; but it is also competent to introduce other witnesses to prove disquali- fication. In examining a juror on his voir dire, he occupies the position of a witness, and he cannot be compelled to answer ques- tions tending to criminate him or disgrace him or render him in- famous.''"^ The court as well as the parties may examine a juror on his voir dire.""" In misdemeanor cases, it has been held that there is no right to examine a juror upon his voir dire without first challenging him.""' The mode of trying a challenge varies in the different states. Probably in all of them a principal challenge propter defectum or affectum is submitted to the court. In many states this is also the practice in case of challenges to the favor, all challenges being deter- mined by the court. In other states the practice in the latter lOTCom. v. Webster, 5 Gush. (Mass.) 297; Com. v. Rogers, 7 Mete. (Mass.) 500. 198 1 Chit. Cr. Law, 545; Beauciamp v. State, 6 Blackf. (Ind.) 307; Munly V. State, 7 Blackf. (Ind.) 593; Morris v. State, Id. 607; Hooker v. State, 4 Ohio, 819; Hendrick v. Com., 5 Leigh (Va.) 707. 199 1 Chit. Cr. Law, 546. 200 Freeman v. People, 4 Denio (N. Y.) 9, Mann v. Glover, 14 N. J. Law, 195. But see Carnal v. People, 1 Parker, Cr. R. (N. Y.) 272. 201 Hudson V. State, 1 Blackf. (Ind.) 317. . For this reason it has been held that a jiu:or cannot be asked whether he has expressed an opinion adverse to the accused; but by the overwhelming weight of authority, and generally by statute, such questions are proper, at least in this country. 1 Bish. Cr. Froc. §934. 202 Montague v. Com., 10 Grat. (Va.) 767. 203 SchneU v. State (Ga.) 17 S. E. 966. 454 TEIAL AND VEHDICT. [Ch. 12 cases, and in others, is to submit the challenge to triors appointed by the court for the purpose. In most states the matter is now generally regulated by statute.""* Discharging and Excusing Jurors. It is not always necessary that a juror shall be challenged in order that the court may discharge him as incompetent. The court may of its own motion interrogate jurors, and if it finds them disqualified for any reason, whether for principal cause or for favor, discharge them, though no challenge has been inter- posed.""^ The court has the discretionary power, even where a juror is not disqualified, to excuse him because of siclmess, or for any other reasonable cause, at any time before the panel is completed. ""^ And it has been held, and seems to be well established, that the court may, in the exercise of a sound discretion, excuse a juror at his own request, as a favor to him, before he is accepted as one of the panel.""^ Effect of Error in Overruling Challenge. By the weight of authority, the defendant cannot complain of the erroneous overruling of his challenge for cause, if he after- wards challenged the juror peremptorily without exhausting his peremptory challenges, so that the juror did not serve; ^°* or, according to some of the cases, if he could have so peremptorily 204 If the accused consents that the challenge shall be determined by the court, he cannot afterwards complain that it was not submitted to triors. People V. Mather, supra. Nor can such consent be revoked and a demand be made for submission of the question to triors. People v. Rathbun, 21 Wend. (N. Y.) 509. 20 5 Marsh v. State, 30 Miss. 627; Lewis v. State, 9 Smedes & M. (Miss.) 115; State V. Marshall, 8 Ala. 302. 206 Patterson v. State, 48 N. J. Law, 381, 4 Atl. 449; State v. Hopgood (La.) 15 South. 406; Aaronson v. State (N. J. Sup.) 27 Atl. 937. So by statute in some states. Pierson v. State, 99 Ala. 148, 13 South. 550; Webb v. State (Ala.) 14 South. 865. 207 state v. Barber, 113 N. O. 711, 18 S. B. 515. 208 Freeman v. People, 4 Denio (N. Y.) 9; People v. Larubia, 140 N. Y. 87, 35 N. B. 412; State v. Moody, 7 Wash. 395, 35 Pac. 132. But see Dowdy v. Com., 9 Grat. (Va.) 727; Carroll v. State, 3 Humph. (Tenn.) 315. Ch. 12] THE PETIT JUKY. 455 challenged him.*"' But if , by such a challenge, he exhausted his peremptory challenges before the jury was completed, he is preju- diced, for his peremptory challenges have been thereby diminished, and the error will be ground for a new trial.^^" SAME— SWEARING THE JURY. 167. In all cases the jury must be sworn, and the fact that they were sw^orn must appear on the record. In no criminal prosecution can there be a valid trial unless every one of the jurors is sworn, and the fact of swearing must appear on the record."^ The form of oath is: "You shall well and truly try, and true deliverance make, between the state of and the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence, so help you G-od." '^^^ Ordinarily the oath is taken on the Bible, and the book is kissed, but this is not necessary where the juror has conscien- tious scruples against kissing the book.''^' And it is generally 208 Preswood v. State, 3 Heisk. (Tenn.) 468; State v. Leduff (La.) 15 SoutJti. 397; Prewitt v. Lambert, 19 Colo. 7, 34 Pac. 684; Jenkins v. Mitchell (Neb.) 59 N. W. 90; Blenklron v. State, 40 Neb. 11, 58 N. W. 587. But see, contra, People V. Larubia, supra; Freeman v. People, supra; People v. Bodine, 1 De- nio (N. Y.) 281. 210 See cases above cited; and see People v. Casey, 96 N. Y. 115; People v. Weil, 40 Cal. 268. But see Moore v. Com., 7 Bush. (Ky.) 191. 211 Rex V. MoiTis, 2 Strange, 901; Com. v. Knapp, 9 Pick. (Mass.) 496; Car- nett V State (Ark.) 6 S. W. 513; Johnson v. State, 47 Ala. 62; Baldwin v. Kansas, 129 U. S. 52, 9 Sup. Ct 193; Smith v. State, 25 Fla. 517, 6 South. 482; Judah v. M'Namee, 3 Blackf. (Ind.) 272; Pruitt v. State (Ark.) 11 S. W. 822; Stephens v. State (Tex. Cr. App.) 25 S. W. 286; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; Brown v. Com., 86 Va. 466, 10 S. E. 745. But the form of oath need not, and should not, appear on the record. . Lawrence v. Com., 30 Grat. (Va.) 845; Garner v. State, 28 Fla. 113, 9 South. 835; State v. Ice, 34 W. Va. 244, 12 S. E. 695. In some states, by statute, the jury must be sworn in a body, and a failure to so swear them will be fatal to a convic- tion. Stephens v. State, supra. 212 It is sufficient if the jury are sworn "well and truly to try the issues joined," the omisaon of the words "and true deliverance make" being imma- terial. Lancaster v. State, 91 Tenn. 267, 18 S. W. 777. 213 See Walker's Case, 1 Leach, Crown Cas. 498. 456 TRIAL AND VERDICT. [Ch. 12 provided that jurors who are conscientiously opposed to taking an oath may be afflrmed. OPENING OF THE CASE BY COUNSEL. 168. After the jury have been sworn, the prosecuting attorney opens the case for the state, by stating the cir- cumstances of the offense, and then introduces his evi- dence. The defendant's counsel then opens the defense in like manner, and introduces his evidence. It is not only the right but the duty of the prosecuting attorney to open the case by a statement to the jury.^^* The object is to show the jury the issue before them, and prepare them for the evidence. The attorney should state shortly what facts are neces- sary, and are relied upon as constituting the offense, and what proof he expects to offer. He has a right, it seems, to go fully both into the law and the facts. "The evidence and the law," says Mr. Bishop, "should be set side by side in such a way as to enable the jury to appreciate each piece of testimony as it is pre- sented to them. They should, in other words, be made acquainted in advance with what it is necessary to prove, and how the neces- sary matter is to be established in the particular case. Then, when a witness gives in his evidence, every word, if the evidence is well directed, tells; and it will not be in the power of opposing counsel to remove the impression by argument. But if the jury approach the case with minds clouded, — if they do not know what needs to be proved, or what proof it is proposed to present before them, — they cannot distinguish, when a witness is testifying, be- tween the unimportant and the important, or know what weight to give to anything. And the mass of half-remembered evidence may, when they coine to consider their verdict, produce its proper effect, or it may not."^^° It seems that at one time the defendant himself made his open- ing address or statement to the jury, but under the modem practice the statement must be made by his counsel.''^' »i4 Rex V. Gascoine, 7 Car. & P. 772. siBl Bish. Or. Proc. § 971. 210 Reg. V. Rider, 8 Car. & P. 539. Ch, 12] VIEW BY JUEY. 457 VIEW BY JURY. 169. When, it is necessary in order that the jury may more clearly understand the evidence, the court may, in its discretion, allo-wr the jury to view the scene of the crime. This is common practice, not only in prosecutions for homicide, but in any other case in which a view of the premises by the jury may aid them in reaching a proper verdict.^^' The matter rests, however, in the sound discretion of the court.*^* In cases of felony the defendant must be present,^^' unless he may and does waive his privilege in this respect.^'"' The jury must be under the charge of a sworn officer of the court, and must not be allowed to separate, or hold any communication with outsiders. "^^ An un- authorized view by the jury or a part of the jurors, on their own motion, and unaccompanied by an officer, will generally be ground for setting a conviction aside. ''^'' The judge, in some states, must accompany the jury.^^^ Where the premises have been fully de- scribed in the testimony, and there is- no material controversy as to the situation, it is no abuse of discretion for the court to re- fuse to allow a view by the jury.^^* 2" Reg. V. Martin, 12 Cox, Or. Cas. 204; Keg. v. Whalley, 2 Cox, Cr. Cas. 231; Chute v. State, 19 Minu. 271 (GU. 230); Sasse v. State, 68 Wis. 530, 32 N. W. 849. The purpose of a view is to aid the jury in determining the weight of conflicting testimony, and understanding the evidence; and an instruction that what they saw legally became a part of the evidence in the case is error. Sasse V. State, supra. 218 Com. V. Miller, 139 Pa. St 77, 21 Atl. 138; State v. Coella, 8 Wash 512, 36 Pac. 474. 219 Ante, p. 423, and cases there cited; State v. Graham, 74 N. C. 646; State V. Sanders, 68 Mo. 202; Rutherford v. Com., 78 Ky. 639. 220 state V. Buzzell, 58 N. H. 257; Shular v. State, 105 Ind. 289, 4 N. E. 870. 221 Reg. V. McNamara, 14 Cox, Cr. Cas. 229; Fleming v, State, 11 Ind. 234; People V. Queen, 53 Cal. 60. 22 2 Ruloff V. People, 18 N. Y. 179; Eastwood v. People, 3 Parker, Cr. R. (N. Y.) 25. But see Brown v. Com. (Va.) 19 S. E. 447. 223 People V. Yut Ling, 74 Cal. 569, 16 Pac. 489. 2 24 state V. Coella, 8 Wash. 512, 36 Pac. 474. 458 TRIAL AND VERDICT. [Ch. 12 MISCOWDTJCT or PROSECUTING ATTORNEY. 170. Misconduct of the prosecuting attorney prejudicial to the defendant will be ground for setting a conviction aside. A conviction of seduction has been set aside because the state's attorney, merely to prejudice the defendant before the jury, caused the prosecuting witness to take her baby with her on the stand.^^^ On a prosecution for murder, where the defense depended almost entirely on the defendant's testimony, the prosecuting attorney, while cross-examining the defendant as to his previous residence and manner of life, asked him whether he had not committed a crime, and been confined in the penitentiary; and held in his hand, in view of the jury, what appeared to be a letter, which he referred to while asking the questions. The defendant's attorney called this an artful effort to make the jury believe that the questions were based on facts, whereupon the prosecuting attorney stated that he had not referred to the paper for mere "buncombe," but that he had reliable information on which he asked the questions. The conviction was set aside because of this misconduct, though it was reprimanded by the court, and the jury were instructed that only the evidence in the case and the law as given them by the court were to be considered in arriving at a verdict.''^" So misconduct in asking a witness improper questions for the evi- dent purpose of prejudicing the defendant may be ground for a new trial. "^^ In a murder case in Wisconsin it appeared that, soon after the defendant had been placed in jail, the district attorney sent a person to her to represent himself as sent by her attorney, to obtain the facts of her defense, to convey to an attorney to be employed for her in another city. The district attorney also, 22 5 State v. Carter, 8 Wash. 272, 36 Pac. 29. 2 26 Holder v. State, 58 Ark. 473, 25 S. W. 279. For another case In which a conviction has been set aside because of misconduct and improper remarks of the prosecuting attorney, see Flint v. Com. (Ky.) 23 S. W. 346. As to im- proper argument, see post, p. 460. 227 People V. Wells, 100 Cal. 459, 34 Pac. 107S; People v. Mullings, S3 Oal. 138, 23 Pac. 229; Cargill v. Com. (Ky.) 13 S. W. 916. ■Ch. 12] MISCONDUCT OF JUDGE. 459 through the telephone, assured her he was her attorney, and coun- seled her to maJie disclosures to the person sent by him, which she did. It was very properly held that this misconduct disqualified the district attorney for prosecuting the case, and the defendant was given a new trial.''^* Such gross misconduct as this ought to disqualify an attorney for practicing at all. Ordinarily misconduct on the part of the prosecuting attorney may be cured by the court's rebuking him in the presence of the jury, and cautioning the jury not to let it influence them; '"" but it must appear that the defendant could not well have been preju- diced under all the circumstances.^'" MISCONDUCT or JUDGE. 171. Improper conduct or remarks by the court during the trial, if prejudicial to the defendant, -will be ground for setting a conviction aside. Thus a conviction has been set aside because the court, on a prosecution for murder, in which the defense was that the de- fendant's wife committed the crime, said to the jury that he some- times thought that the disposition of our first male ancestor to charge the fault upon the woman given to him did not die out with Adam, but was inherited by his descendants.^'^ So where, when a witness for the state, who was absent when wanted, was brought in by an officer, the court, in the presence of the jury, held a colloquy with the witness, which tended to discredit the defend- ant and his counsel, and lead the jury to believe that, if they were not guilty of procuring the absence of the witness, they were, in the opinion of the court, capable of committing it, a conviction was set aside." ^ Fortunately cases like these are not apt to arise often. 2 28 State V. Russell, 83 Wis. 330, 53 N. W. 441. 2 29 State v. Howard, 118 Mo. 127, 24 S. W. 41; Wheeless v. State (Ga.) 18 S. E. 303; State v. Ean (Iowa) 58 N. W. 898; People v. Pyckett (Mich.) 58 N. W. 621; State v. Reid, 39 Minn. 277, 39 N. W. 796. 230 Holder v. State, supra. 281 State v. Hawley, 63 Conn. 47, 27 Atl. 417. And see People v. Moyer, 77 Mich. 571, 43 N. W. 928. 23 2 People V. Abbott (Gal.) 34 Pac. 500. 460 TEIAL AND VERDICT. [Ch. 12 The judge should be careful not to do or say anything during the trial to reflect on a witness, or to express or intimate in any way any opinion on his credibility. A conviction has been reversed because the judge, after asking a witness if she knew how long three minutes were, took out his watch, asked her to tell three minutes, and then announced that what she called three minutes was only forty-five seconds.^^^ So if the judge, either during the examination of the witnesses or at any time during the trial, mak3S improper comments on the evidence, it may cause a reversal. ^^* If the particular conduct or remark of tbe court is called for by the remarks or conduct of the defendant or his counsel, or is war- ranted by the circumstances, the fact that the defendant must have been prejudiced thereby gives him no right to complain. It is not error, for instance, for the court, in the exercise of its discretion, to commit to jail, in the presence of the jury, one of the defendant's witnesses, because of the character of his testi- mony,^^'' or to rebuke defendant's counsel when the rebuke is warranted,^^^ or to fine him for contempt where he is guilty of a contempt. "'' SUMMING UP AND ARGUMENT OF COUNSEL. 172. In arguing the case to the jury, counsel must not go beyond, the evidence, nor make improper remarks. Generally improper remarks by the prosecuting attorney prejudicial to the defendant will be ground for setting 233 Burke v. People, 148 111. 70, 35 N. B. 376. And see Jefferson v. State, 80 Ga. 16, 5 S. E. 298. 234 Kelly V. State (Tex. Cr. App.) 24 S. W. 295; People v. Kindelberger, 100 Gal. 367, 34 Pac. 852; State v. Clements, 15 Or. 237, 14 Pac. 410; Sharp v. State, 51 Ark. 147, 10 S. W. 228. As where the judge, In admitting evidence, states that he is Inclined to think that in doing so he is overruling the supreme court State v. Hawley, 63 Conn. 47, 27 Atl. 417. 230 People V. Hayes, 70 Hun, 111, 24 N. T. Supp. 194; Id., 140 N. Y. 484, 35 N. E. 951. ?8e Pease v. State, 91 Ga. 18, 10 S. E. 113. 28 7 Goldstein v. State (Tex. Cr. App.) 23 S. W. 686; Miller v. State, 32 Tex. Cr. R. 266, 22 S. W. 880. Ch. 12] SUMMING UP AND ARGUMENT OF COUNSEL. 461 aside a conviction, if properly objected to by tlie defend- ant, and not cured by the action of the court; but, as a rule, if the defendant raises no objection, or if, on objec- tion being made, the court rebukes the attorney, and in- structs the jury not to regard the remark, a conviction will not be set aside. 173. The time for argument is w^ithin the sound discre- tion of the court. But for an abuse of discretion a con- viction may be set aside. After all the evidence has been introduced, and each side has rested his case, the respective counsel address the jury, summing up the evidence, and arguing the question of its effect and suf- flciency. The summing up and argument is first made by the prosecuting attorney, and then by the counsel for the defense, and in many states the prosecuting attorney is entitled to reply.^^* In the latter case the reply closes the argument; the counsel for the defense has no right to reply. Where there are more than one counsel for the state, one of them may make the first argument, and the other the reply. Several counsel for the defendant may be allowed to argue the case. The time at which the argument of counsel must be made rests within the discretion of the court. Ordinarily it is made as soon as the case is closed, and each counsel makes his argument as soon as the other has finished, but the court may allow an ad- journment before the argument of either or of one of them.^^' It is also within the discretion of the court to limit the time to be allowed for argument,**" but a prejudicial abuse of discre- tion will be ground for setting aside a conviction.**^ In their argument to the jury, counsel must keep within the facts of the case, and must be careful not to misstate the evidence, or 238 Doss V. Com., 1 Grat. (Va.) 557; State v. MUlican, 15 La. Ann. 557. .But see State v. Brisbane, 2 Bay (S. C.) 451; LoefCner v. State, 10 Ohio St. 598. 239 state V. Lewis, 118 Mo. 79, 23 S. W. 1082. 2 40 Mansfield v. State (Tex. Or. App.) 24 S. W. 901; Yeldell v. State (Ala.) 14 South. 570; Vaughan v. State, 58 Ark. 353, 24 S. W. 885. 241 People V. Green, 99 Cal. 564, 34 Pac. 231; McLean v. State, 32 Tex. Cr. R. 521, 24 S. W. 898. 462 TRIAL AND VERDICT. [Ch. 12 make improper remarks. If they do so, the court may rebuke them, and require them to proceed properly. Persistence in an il- legitimate line of argument in violation ' of the court's caution would be a contempt of court. Improper remarks by the prosecuting attorney is often the ground for setting a conviction aside and granting a new trial."*'' A con- viction has been set aside, for instance, where, in a prosecution for rape, the prosecuting attorney said to the jury that, as the friends of the prosecutrix had not hanged or burnt the defendant, his life should pay the penalty,"*^ and where he asked the jury to act "as detectives" in regard to the facts of the case.^** It is al- ways improper for the prosecuting attorney to throw the weight of his personal influence into a case by announcing his individual opin- ion as to the guilt of the defendant"^^ So, if the prosecuting at- torney makes improper comments on the testimony of the defend- ant,"*° or, in some states, by statute, if he comments at all on the defendant's failure to testify in his own behalf,"*' or explains to the jury that the state has no right to appeal from an erroneous acquittal, while the defendant may appeal from an erroneous con- viction,"** or comments on matters not in evidence, it may avoid a conviction."*® It would seem that in those jurisdictions where the jury are the judges of the law as well as the facts counsel should have the right to argue the law to them, and so it has been held;"" 212 Davis V. State (Ind. Sup.) 37 N. E. 397; Hall v. U. S., 150 U. S. 76, 14 Sup. Ct. 22; Butler v. State (Tex. Or. App.) 27 S. W. 128. 243 Thompson v. State (Tex. Or. App.) 26 S. W. 987. 244 People V. O'Brien, 96 Mich. 630, 56 N. W. 72. 240 State V. Mack, 45 La. Ann. 1155, 14 South. 141; People v. McGuire, 89 Mich. 64, 50 N. W. 786. But see State v. Beasley, 84 Iowa, 83, 50 N. W. 570. 24C state V. Fairlamb (Mo. Sup.) 25 S. W. 895; Lewis v. State (Ind. Sup.) 36 N. E. 1110. 247 Brazell v. State (Tex. Or. App.) 26 S. W. 723; Dawson v. State (Tex. Or. App.) 24 S. W. 414; Frazier v. State, 135 Ind. 38, 34 N. E. 817. 2 48 Brazell v. State, supra; Crow v. State (Tex. Cr. App.) 26 S. W. 209; Boone v. People, 148 111. 440, 36 N. E. 99; Vaughan v. State, 58 Ark. 353, 24 S. W. 885. 24» Dollar V. State, 99 Ala. 236, 13 South. 575; Pollard v. State (Tex. Cr. App.) 26 S. W. 70; State v. Woolard, 111 Mo. 248, 20 S. W. 27. 260 Lynch v. State, 9 Ind. 541; Com. v. Porter, 10 Mete. (Mass.) 263. Ch. 12] SUMMING UP AND ARGUMENT OF COUNSEL. 463 but there is authority to the contrary."'^ It has even been held, rather inconsistently, that counsel have this right where the jury must talie the law from the court; but in reason and by the weight of authority in the latter case there is no such right.*"" In those jurisdictions where the jury are the judges both of the law and the facts, it is proper, in arguing a criminal case, to read from reported decisions both the statement of facts and the decis>ions thereon.''"' But the court may and should refuse to allow this to be done in those jurisdictions where the jury are bound, to receive and apply the law as it is given to them by the court ''°* A line of argument by the prosecuting attorney which would otherwise be improper may be justified by the argument of the de- fendant's counsel, and vice versa. Thus on a prosecution for selling intoxicating liquors, where the defendant's counsel refers to the amount of the prosecuting attorney's fees in such cases, error cannot be predicated on the latter's statement to the jury that he would give up all his fees if he could put down the accursed traf- flc."" Ordinarily, in order that the defendant may, after a conviction, complain of improper remarks by the prosecuting attorney, he must object to them at the time they are made, so as to give the court an opportunity to rebuke the attorney, and caution the jury against being influenced by them. He cannot allow the remarks to be made without objection, and, after taking his chances on an ac- quittal, object to them for the first time on motion for a new trial or on writ of error or appeal.""* Generally, if the court rebukes counsel for making improper re- 2 51 Franklin v. State, 12 Md. 236. 2 52 Com. V. Porter, 10 Mete. (Mass.) 263; Com. v. Austin, 7 Gray (Mass.) 51. 2 68 Wohlford V. State, 148 III. 296, 36 N. E. 107. 2 64 state V. Boughner (S. D.) 59 N. W. 736. 26 5 Dollar V. State, 99 Ala. 236, 13 South. 575. And see Groom v. State, 90 Ga. 430, 17 S. B. 1003; Tipton v. State, 30 Tex. Xpp. 530, 17 S. W. 1097; Pier- son V. State, 21 Tex. App. 14, 17 S. W. 468. 266 Boone v. People. 148 111. 440, 36 N. E. 99: Garner v. State (Tex. Or. App.) 24 S. W. 420; State v. Mack, 45 La. Ann. 1155, 14 South. 141; People v. Lane, 101 Gal. 513, 36 Pac. 16; State v. Howard, 118 Mo. 127, 24 S. W. 41; Cart- wright V. State, 71 Miss. 82, 14 South. 526; State v. Sortor,.52 Kan. 531, 34 Pac. 1036; Wheeless v. State (Ga.) 18 S. E. 303. 464 TKIAL AND VERDICT. [Oh. 12 marks, and instructs the jury to disregard them, a conviction will not be set aside,^''^ but there may be cases in which the remarks cannot be thus cured. If they were such that the defendant must have been prejudiced by them notwithstanding the effort of the court to counteract their effect, they will be ground for setting the conviction aside.^^' INSTKUCTIONS OR CHARGE OP THE COURT TO THE JURY. 174. Tlie court should fully and correctly instruct the jury as to the la-wr by -wrhich they are to be governed in arriving at a verdict, and an erroneous and prejudicial in- struction will be ground for setting aside a conviction, if it -was properly excepted to. But ordinarily an omission to charge on any particular point is no ground for obj ec- tion after verdict, unless an instruction was requested, or the court's attention 'was called to the omission. 175. In a few states the jury are the judges of the law as w^ell as the facts; but in most states the court is the exclusive judge of the law, and the jury must foUow^ his instructions, though there is no remedy if they fail to do so. 176. In all states the jury are the exclusive judges of the facts, and in most states the court cannot charge thereon, or express any opinion on the credibility of the witnesses, or the weight and effect of the evidence. After the evidence is all in, and the counsel have finished their argument it becomes the duty of the court to charge or instruct the jury as to the law by which they are to be governed in deter- mining the case. In some states instructions are given before ar- 2 67 State v. Butler, 85 Me. 225, 27 Atl. 142; Vaughan v. -State, 58 Ark. 353, 24 S. W. 885; State v. HUl, 114 N. 0. 780, 18 S. E. 971; Handly v. Com. (Ky.) 24 S. W. 609; State v. Hack, 118 Mo. 92, 23 S. W. 1089; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080. 2 58 Cartwrlght v. State, supra. Ch. 12] INSTEOCTIONS OE CHARGE OF THE COURT TO THE JURY. 465 gument, but the court may give additional instructions, or modify those already given, during or after the argument.'"" Province of Court and Jury — Jurors as Judges of the Law. Some of the cases hold that it has always been the rule at com- mon law that in criminal cases, though not in civil, the jury are the judges both of the law and the facts.^^" This rule is recog- nized as a part of the common law in some of our states, while in others it is expressly declared in the constitution, or by statute.^ °^ It would be absurd to suppose from this that, even in these juris- dictions, the jury are to ascertain and determine the law for them- selves, and that the judge must not instruct them as to the law.''*'' Nothing like this is meant. All that is meant is that, contrary to the rule in civil cases, the jury in a criminal case may, if it sees fit, disregard the law as laid down by the court, and acquit the defend- ant, though, if they regarded the instructions, they would, under the facts, be bound to convict. It gives the jury the right to judge of the law over the head of the court in all criminal cases, but it does not prevent the court from telling them what the law is, and of the importance of regarding it; nor does it make it proper for the jury to disregard it; it merely allows them to do so. The rule is in- tended, on the ground of policy, to enable the jury to acquit con- trary to the judge's instructions only where such a course seems necessary and proper. The responsibility is cast upon the jury. 2 69 Wood v. State, 64 Miss. 761, 2 South. 247. The court, in trying the case, has a right to reserve its decision in regard to what instructions It will give till the evidence is all In, and cannot be compelled to charge the jury at stages In the evidence upon propositions which may or may not be applicable to the case. People v. McOallam, 103 N. Y. 587, 9 N. E. 502. 280 Oo. Litt. 228; 4 Bl. Comm. 361; dissenting opinion in Sparf v. U. S., 15 Sup. Ct. 296; Rex v. Woodfall, 5 Burrows, 2661; State v. Croteau, 23 Vt. 14 (since overruled. State v. Burpee, 65 Vt. 1, 25 Atl. 964). 261 State V. Croteau, supra; State v. McDonnell, 82 Vt. 491; State v. Meyer, 58 Vt. 457, 3 Atl. 195; Doss v. Com., 1 Grat, (Va.) 557; State v. Snow, 18 Me. 346; State v. Allen, 1 McCord (S. C.) 525; Armstrong v. State, 4 Blackf. (Ind.) 247; U. S. v. Taylor, 11 Fed. 470; Franklin v. State, 12 Md. 236; Swann v. State, 64 Md. 423, 1 Atl. 872 (under the constitution); Holden v. State, 5 Ga. 441 (by statute); Spies v. People, 122 111. 1, 12 N. E. 865 (by stat- ute); Patterson v. State, 2 Eng. (Ark.) 59 (by statute). 262 Murphy v. State, 6 Ind. 490; Grady v. State, 11 Ga. 253. CHIM.PEOC. — 30 466 TRIAL AND VERDICT. . [Ch. 12 For this reason it is not error for the court to say to the jury that this rule is not intended for ordinary criminal cases; that it is a matter of favor to the defendant, and should not be acted upon by the jury, except after the most thorough conviction of its neces- sity and propriety; that any departure by the jury from the law laid down by the court must be taken solely on their own responsi- bility; and that the safer and better and fairer way, in ordinary criminal cases, is to take the law from the court, and that they are always justified in doing so.^" On the other hand, in most jurisdictions, the doctrine that the jury are the judges of the law as well as the facts is not recognized at all; but it is held that the court is the sole judge of the law, and that the jury must follow the instructions in this respect.^'* Since a verdict of acquittal cannot be set aside, there is no remedy if the jury sees fit to decide contrary to the law of the case as laid down by the court; but in those states where it is held that the court is the sole judge of the law, the court may charge the jury that they are bound to be governed by the instructions. The court could not set aside a verdict of acquittal because of a disregard of its instruction, but either the trial court or an appellate court 263 state V. McDonnell, 32 Vt. 532; U. S. v. Taylor, 11 Fed. 470; Hunt v. State, 81 Ga. 140, 7 S. E. 142; Spies v. People, 122 111. 1, 12 N. E. 865, and 17 N. E. 898; U. S. v. Keller, 19 Fed. 633; Franklin v. State, 12 Md. 236; Schnier V. People, 23 111. 17; Fisher v. People, Id. 283; Lynch v. State, 9 Ind. 541; Williams v. State, 10 Ind. 503. 2«* Sparf V. U. S., 15 Sup. Ct. 273 (Mr. Justice Gray and Mr. Justice Shlras dissenting); U. S. v. Battiste, 2 Sumn. 240, Fed. Gas. No. 14,545; State v. Burpee, 65 Vt. 1, 25 Atl. 964; dissenting opinion of Bennett, J., in State v. Croteau, 23 Vt. 48; Duffy v. People, 26 N. Y. 588; Com. v. Porter, 10 Mete. (Mass.) 263; Com. v. Anthes, 5 Gray (Mass.) 185; Williams v. State, 32 Miss. 389; Hamilton v. People, 29 Mich. 173; Hardy v. State, 7 Mo. 607; State v. Schoenwald, 31 Mo. 147; Montgomery v. State, 11 Ohio, 427; Parrish v. State, 14 Neb. 60, 15 N. W. 357; Jackson v. State, 91 Ga. 271, 18 S. E. 298; Pierce V. State, 13 N. H. 536; State v. Smith, 6 R. I. 33; State v. Rheams, 34 Minn. 18, 24 N. W. 302; State v. McLain, 104 N. C. 894, 10 S. E. 518; Pierson v. State, 12 Ala. 153; Montee v. Com., 3 J. J. Marsh. (Ky.) 149; People v. An- derson, 44 Cal. 65; McGowan v. State, 9 Yerg. (Tenn.) 184; Dale v. State, 10 Yerg. (Tenn.) 551; Com. v. McManus, 143 Pa. St 64, 21 Atl. 1018, and 22 Atl. 761; Brown v. Com., 87 Va. 215, 12 S. E. 472. In Sparf v. U. S., supra, the question is considered at great length, and numerous cases are reviewed. Ch. 12] INSTRUCTIONS OR CHARGE Of THE COURT TO THE JURY. 467 could and should set aside a conviction on this ground if the con- viction is contrary to law.''*' The Judge in all the states may and always should instruct the jury fully as to the law; though, as we shall see, it cannot charge on the facts. The admissibility or competency of evidence is a question of law, and the court may charge as to what evidence the jury may and what they may not consider."'" And it may charge them on the law by which they should determine the credibility of the witnesses,""^ or the sufficiency of the evidence,"®* but it must be careful in most jurisdictions not to comment or express an opinion on the credibility of a witness or the effect and weight of the evidence."®' So, if the indictment does not charge an of- fense,"'" or, in most states, if the evidence, assuming it to be true, is insufficient, as a matter of law, to support the charge,"'^ the court may so charge, and direct an acquittal, for this is a matter of law. In like manner it is not error to instruct the jury that the defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to the minor offenses that might, under some circumstances, be included in the offense .charged, where there is no evidence whatever upon which any verdict could be properly returned except one of guilty, or one of not guilty, of the particular offense charged."'" 285 Dailey v. State, 10 Ind. 536; State v. Sims, Dud. (Ga.) 213. 280 state V. McDonnell, 32 Vt. 491. 267 Adam v. State (Tex. Cr. App.) 20 S. W. 548; Faulkner v. Territory (N. M.) 30 Pae. 905; People v. RoM, 138 N. Y. 616, 33 N. E. 933. 288 People V. Rohl, supra; Welsh v. State, 96 Ala. 92, 11 South. 450. 2 69 Horn V. State, 98 Ala. 23, 13 South. 329; Gibbs v. State (Tex. Cr. App.) 20 S. W. 919; Gilyard v. State, 98 Ala. 59, 13 South. 391; post, p. 468. 2 TO People V. Cook, 10 Mich. 164. 271 Post, p. 469; Com. v. Packard, 5 Gray (Mass.) 101. 272 Sparf V. U. S., 15 Sup. Ct. 273; Stiener v. State (Tex. Cr. App.) 26 S. W. 214; State v. Jordan, 87 Iowa, 86, 54 N. W. 63; People v. Barry, 90 Cal. 41, 27 Pae. 62; People v. McNutt, 93 Cal. 658, 29 Pac. 243; McCoy v. State, 27 Tex. App. 415, 11 S. W. 454; State v. McKlnney, 111 N. C. 683, 16 S. B. 235; Jones v. State, 52 Ark. 346, 12 S. W. 704; O'Brien v. Com., 89 Ky. 354, 12 S. W. 471; Robinson v. State, 84 Ga. 674, 11 S. E. 544. 468 TRIAL AND VERDICT. [Ch. 12 Same — Jury as Judges of the Fact. On the other hand, the jury are the exclusive judges of all ques- tions of fact. They are the sole judges of the weight and sufficiency of the evidence, including the credibility of the witnesses, and in most states, if the court in its charge expresses an opinion or com- ments on the weight and effect of the evidence,^" or the credibility of any witness,"'* the error, if against the defendant, will be ground for setting aside a conviction. This rule does not prevent the court from summing up the evidence that has been introduced, and bringing out its relation to the issues involved,"'" but care must be used not to comment on its weight. It is therefore error for the court in its charge to assume the existence of facts in issue,"" but not if the fact is conceded, or the evidence of it is uncontradicted."'' 278 Woodln V. People, 1 Parker, Cr. R. (N. Y.) 464; Lefler v. State, 122 Ind. 206, 23 N. E. 154; BiU v. People, 14 111. 432; Muely v. State, 31 Tex. Cr. App. 155, 18 S. W. 411, and 19 S. W. 915; Burtles v. State, 4 Md. 273; Newcomb V. State, 37 Miss. 383; Jim v. State, 4 Humph. (Tenn.) 289; McGuffie v. State, 17 Ga. 497; Noland v. State, 19 Ohio, 131. In some of the states the court may express an opinion on the weight and effect- of the evidence, if the jury are told that they are not bound by the opinion. White v. Territory, 1 Wash. St. 279, 24 Pac. 447; State v. Smith, 12 Rich. (S. C.) 430; McClain v. Com., 110 Pa. St. 263, 1 Atl. 45; People v. Rathbun, 21 Wend. (N. T.) 509; Sim- mons V. U. S., 142 U. S. 148, 12 Sup. Ct. 171; State v. Duffy, 57 Conn. 525, 18 Atl. 791; but in most states the rule is as stated in the text; and in some states it is expressly so declared by statute. 274 state V. Presley, 13 Ired. (N. C.) 494; Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; Com. v. Bosworth, 6 Gray (Mass.) 479; Hronek v. People, 134 111. 139, 24 N. E. 861; Lowe v. State, 88 Ala. 8, 7 South. 97; People v. O'Brien, 96 Cal. 171, 31 Pac. 45. But an instruction that the jury may con- sider the interest of a witness, etc., is proper where no opinion as to his credibility is expressed. Johnson v. State, 34 Neb. 257, 51 N. W. 835; State T. Turner, 110 Mo. 196, 19 S. W. 645; ante, p. 467. 27 B state V. Dawkins, 32 S. C. 17, 10 S. E. 772. 27 6 Com. V. McMahon, 145 Pa. St. 413, 22 Atl. 971; Newton v. State (Miss.) 12 South. 560; Fowler v. State (Ala.) 14 South. 860; Milligan v. State (Tex. •Cr. App.) 22 S. W. 414; State v. Walters, 7 Wash. 246, 34 Pac. 938; Scott V. People, 141 111. 195, 30 N. B. 329. 277 Hawkins v. State (Ind. Sup.) 36 N. B. 419; People v. Phillips, 70 OaL 61, 11 Pac. 493. Ch. 12] INSTRUCTIONS OB CHARGE OF THE COURT TO THE JURY. 469 Same — Directing Verdict. When the evidence is so defective or so weak that a verdict of guilty could not be sustained, the jury, in most states, should be instructed to return a verdict of not guilty, but where there is no variance between the allegations and the proof, and the evidence, though weak or defective, will support a verdict of guilty, such an instruction is properly refused.'"* The court can never direct a verdict of guilty when the facts are disputed, but some courts hold that, if all the facts showing guilt are admitted, there is nothing for the jury to pass upon, and the direction of a verdict of guilty is proper."" Character of the Charge — Whether Erroneous. We have shown when an instruction is erroneous as invading the province of the jury; but there are other questions as to the character of the charge which must be shortly considered. Of course, an instruction which incorrectly states the law is erroneous, and, unless it is clear that no prejudice could have resulted, will cause a conviction to be set aside. An instruction, though correct in so far as its separate statements of law are concerned, may be erroneous for other reasons. It is erroneous, for instance, if it is confused and misleading;"'* or if it consists of abstract proposi- tions of law, though the fact that an instruction is abstract will not necessarily cause a reversal on conviction,"'^ or if it is not sup- 278 State V. Cady, 82 Me. 426, 19 Atl. 908; State v. Jones, 18 Or. 256, 22 Paa 840; Pellum v. State, 89 Ala. 28, 8 South. 83. Contra, where the jury are the judges of the law as well as the facts. Goldman v. State, 75 Md. 621, 23 Atl. 1097. • 27 9 People V. Richmond, 59 Mich. 570, 26 N. W.'770; People v. Ackerman, 80 Mich. 588, 45 N. W. 367; People v. Neumann, 85 Mich. 98, 48 N. W. 290. Contra, State v. Winchester, 113 N. C. 641, 18 S. E. 657. 280 Dryman v. State (Ala.) 15 South. 433; Fountain v. State, 98 Ala. 40, IS South. 492; State v. Pettit, 119 Mo. 410, 24 S. W. 1014; State v. Hawley, 63 conn. 47, 27 Atl. 417; State v. Gile, 8 Wash. 12, 35 Pac. 417; Conrad v. State, 132 Ind. 254, 31 N. B. 805; People v. Harper, 83 Mich. 273, 47 N. W. 221. 281 state v. Hall, 39 Me. 107; State v. Clair, 84 Me. 248, 24 Atl. 843; Long v. State, 12 Ga. 295; Bonner v. State, 97 Ala. 47, 12 South. 408; Brister v. State, 26 Ala. 107; State v. Houser, 28 Mo. 233; State v. King, 111 Mo. 576, 20 S. W. 299; Browning v. State, 30 Miss. 656. It is error to read abstract propositions of law from text-books or reports. State v. McDonnell, 32 Vt 491- 470 TRIAL AND VERDICT. [Ch. 12 ported by the pleadings and by the eTidence,*'^ or is argumenta- tive,"'* or ignores some of the evidence, or singles out and gives undue prominence to particular parts of the evidence,"'* or refers to the details of other cases given in the books.""* Instructions which would ordinarily be improper may be justi- fied by improper argument of counsel. Thus where, on indictment for murder, the defendant's counsel alluded in argument to a higher law which he claimed the Bible sustained, it was held not error for the court in his charge to justify the laws of the state on the subject of murder and manslaughter."'" Inadvertent mistakes which do not render an instruction mis- leading, or otherwise prejudice the defendant, will be disre- garded."" It is well settled that the charge of the court is .to be considered and construed as a whole in determining whether a particular part of it, or a particular instruction, was erroneous."" An erroneous instruction may be cured by giving a correct one, if it is clear that the jury could not have been misled; "'° but generally, if the erro- 282 Coughlin V. People, 18 111. 266; Doyle v. People, 147 111. 394, 35 N. E. 372; People v. Hawes, 98 Cal. 648, 33 Pac. 791; Ratigan v. State (Tex. Or. App.) 20 S. W. 407; State v. Robinson, 39 Me. 150; State v. Collins, 8 Ired. (N. C.) 407; McCoy v. State, 15 Ga. 205; Jackson v. State, 91 Ga. 271, 18 S. E. 298; Corbett v. State, 31 Ala. 329; Daniels v. State, 24 Tex. 389; State v. Ross, 29 Mo. 32. 28 3 Horn V. State (Ala.) 15 South. 278; Miles v. State (Ga.) 19 S. E. 805; State V. O'Grady, 65 Vt. 66, 25 Atl. 905; Boiling v. State, 54 Ark. 588, 16 S. W. 658; Brassell v. State, 91 Ala. 45, 8 South. 679. 2 84 Cox V. State, 99 Ala. 162, 13 South. 556; Com. v. Hourigan, 89 Ky. 305, 12 S. W. 550; Scott v. People, 141 111. 195, 30 N. B. 329; State v. Cantlln, 118 Mo. 100, 23 S. W. 1091; People v. Hawes, 98 Cal. 648, 33 Pac. 791. 28 B Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct 410. 286 state V. Workman, 39 S. C. 151, 17 S. E. 694. 287 Daley v. State (Tex. Cr. App.) 24 S. W. 643; State v. Wilson (Wash.) 36 Pac. 967; People v. Derringer (N. Y. App.) 37 N. B. 565. 28 8 Com. V. Zappe, 153 Pa. St. 498, 26 Atl. 16; People v. Jassino (Mich.) 59 N. W. 230; State v. Reed, 117 Mo. 604, 23 S. W. 880; People v. Hawes, 98 CaL 648, 33 Pac. 791; Champ v. State, 32 Tex. Cr. R. 87, 22 S. W. 678; State V. Miller, 111 Mo. 542, 20 S. W. 243. 289 state V. Reed, supra; Thompson v. Com. (Ky.) 26 S. W. 1100; People v. Derringer (N. Y. App.) 37 N. E. 565; Padfleld v. People, 146 111. 660, 35 N. E. 469; Spies v. People, 122 111. 1, 12 N. E. 865, and 17 N. B. 898. Ch. 12] INSTRUCTIONS OR CHARGE OF THE COURT TO THE JURY. 471 neous instruction is not withdrawn, and both remain for the con- sideration of the jury, the error will not be cured.'""' On What Points Necessary — Necessity of a Request. It is the duty of the court to charge the jury fully on the law of the case; but ordinarily, if he omits to instruct them on a par- ticular point, counsel must call his attention to the omission, and request an instruction covering the point. If he remains silent, and fails to make the request, the defendant cannot afterwards complain of the omission.'''^ Granting or Refusing Requests. Any instruction requested by counsel should be given if it is proper, but it should be refused if it is bad within any of the rules above stated; as, for instance, where it is abstract, or argu- mentative, or confused and misleading, or not supported by the evi- dence.^" ^ It is improper to refuse any instruction which correctly states the law, and is applicable to the issues, and supported by the evidence. ^"^ If, for instance, an accomplice of the defendant has testified, the court should, on request of defendant, charge as to the effect of an accomplice's testimony, and the necessity for corrobo- ration.^"* So, in a proper case, it is error to refuse an instruc- tion as to the effect of circumstantial evidence; "^^ though, if there 290 piummer v. State (Ind. Sup.) 34 N. E. 968; State v. Brumley, 53 Mo. App. 126. 281 People V. Raher, 92 Mich. 165, 52 N. W. 625; Winn v. State, 82 Wis. 571, 52 N. W. 775; Dove v. State, 22 Ala. 23; Mead v. State, 53 N. J. Law, 601, 23 Atl. 264; State v. Marqueze, 45 La. Ann. 41, 12 South. 128; State v. O'Neal, 7 Ired. (N. C.) 251; State v. Jackson, 112 N. C. 851, 17 S. B. 149; People V. Fice, 97 Cal. 459, 32 Pac. 531; Burns v. Com., 3 Mete. (Ky.) 13; McMeen v. Com., 114 Pa. St. 300, 9 Atl. 878; People v. Marks, 72 Cal. 46, 13 Pac. 149; State v. Anderson, 26 S. C. 599, 2 S. E. 699; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. 292 Hill V. Com., 88 Va. 633, 14 S. E. 330; Bostic v. State, 94 Ala. 45, 10 South. 602; Com. v. Cosseboom, 155 Mass. 298, 29 N. E. 463; McCoy v. State, 15 Ga. 205; Floyd v. State, 82 Ala. 16, 2 South. 683. 293 Jones V. State, 30 Tex. App. 345, 17 S. W. 544; State v. Wilson, 2 Scam. (111.) 225; Davis v. State, 10 Ga. 101; Sparks v. State, 23 Tex. App. 447, 5 S. W. 135. 294 Brown v. State (Tex. Cr. App.) 20 S. W. 924. 295 Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764. 472 TRIAL AND VERDICT. [Ch. 12 is any direct evidence, such as the testimony of an eyewitness, or a confession of the accused, such an instruction is properly re- fused.=»* If the requested instruction is proper it ought to be given as asked, without modification or change in the language,^"^ but the defendant cannot demand as a matter of right that the language of the request be followed, and ia no case will a change in the lan- guage which does not prejudice him cause a reversal.^'' If the instruction is misleading or otherwise erroneous the court may cor- rect it, and then give it as modified.^"* Most courts hold that, if the instruction requested is partly er- roneous and partly good, the court need not correct it, or give that part which is good, but may refuse the whole. Some courts, how- ever, hold that the good part, or a similar instruction, should be given. ^"^ If the instruction has already been substantially given, either in the geijeral charge or in other special instructions, it may be refused, for the court is not bound to repeat.^"* Ordinarily requests for instructions come too late if not made be- fore the jury have retired to consider their verdict, and they may on this ground be refused; *"* though the court has the discretion to recall the jury for further instructions.'"* 2»e WUson v. State (Tex. Or. App.) 21 S. W. 361; Jones v. State, 31 Tex. Gr. R. 177, 20 S. W. 354; Vaughan v. State, 57 Ark. 1, 20 S. W. 588. «»7 State V. Evans, 33 W. Va. 417, 10 S. E. 792; Cotton v. State, 31 Miss. 504; Stanton v. State, 13 Ark. 317. 298 Com, V. Mullen, 150 Mass. 394, 23 N. E. 51; Long v. State, 12 Ga. 293; Gardner v. State, 55 N: J. Law, 17, 26 Atl. 30; People v. Lemperle, 94 CaL 45, 29'Pac. 709; Shultz v. State, 13 Tex. 401; Com. v. McManus, 143 Pa. St 64, 21 Atl. 1018, and 22 Atl. 761; Boles v. State, 9 Smedes & M. (Miss.) 284; State V. Durr, 30 La. Ann. 751, 2 South. 546. 2»9 Keithler v. State, 10 Smedes & M. (Miss.) 192; Baxter v. People, 3 Gilm. (111.) 368; Lambeth v. State, 23 Miss. 322; State v. Wilson, 2 Scam. (111.) 225; State v. Wilson, 8 Iowa, 407. SOI Stanton v. State, 13 Ark. 317; Swallow v. State, 22 Ala. 20. 802 Painter v. People, 147 111. 444, 35 N. E. 64; People v. Harris, 136 N. Y. 423, 33 N. E. 65; Hatcher v. State, 18 Ga. 460; Alexander v. Com. (Ky.) 20 S. W. 254; State v. Knight, 43 Me. 11; Trogdon v. State, 133 Ind. 1, 32 N. E. 725; Taylor v. Com. (Va.) 17 S. E. 812. 808 state V. Catlin, 3 Vt. 530; State v. Engeman (N. J. Sup.) 23 Atl. 676. 804 Post, pp. 476, 484. Ch. 12] DEMUKEEE TO EVIDENCE. 473 Objections and Exceptions. When an erroneous instruction is given an objection sliould be made, and an exception saved, in order to have the error reviewed, for in some cases, in the absence of an exception, the error will not be reviewed on appeal.'"^ And ordinarily the specific objec- tion should be pointed out. In many cases a general exception will be insufficient.'"* DEMURRER TO EVIDENCE. 177. In some states the defendant may demur to the evi- dence if, assuming it to be true, and admitting every legiti- mate inference that can be drawn from it, it is insufficient to authorize a conviction. A demurrer to the evidence not only admits the truth of the evidence, — that is, the existence of every fact of which there is any evidence at all, — but it admits the existence df every fact which it legitimately tends to prove, and leaves it to th.e court to say whether, as a matter of law, a conviction is authorized. Such a course may be taken in some states if the prosecuting officer chooses to join in the demurrer,^"^ but it is seldom taken. In most states the court may direct an acquittal if the evidence is clearly insufficient, and the better and safer course is to move for such a direction,^''* for on demurrer to the evidence the judgment of the court against the defendant is flnal.^"" The court may, in the exercise of its discretion, refuse to entertain a demurrer to the evidence.'^* 30 5 Fitzgerald v. State (Tex. Cr. App.) 23 S. W. 1107; Wheeless v. State (Ga.) 18 S. B. 303; State v. Richards, 85 Me. 252, 27 AtL 122; Noblln v. State (Ala.) 14 South. 767; State v. Kennade (Mo. Sup.)* 26 S. W. 347; Wood v. State, 31 Fla. 221, 12 South. 539. 808 Gardiner v. State (N. J. Sup.) 26 Atl. 30; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; People v. Hart (Utah) 37 Pac. 330. SOT Duncan v. State, 29 P'la. 430, 10 South. 815; Hutchison v. Com,, 82 Pa. St. 472; Doss v. Com., 1 Grat. (Va.) 557; Com. v. Parr, 5 Watts & S. (Pa.) 345; Brister v. State, 26 Ala. 108; Bryan v. State, Id. 65; Young v. State (Tex. Cr. App.) 24 S. W. 287. 308 Ante, p. 469. 309 Hutchinson v. Com., supra. 310 Duncan v. State, supra. 474 TRIAL AND VERDICT. [Ch. 12 CUSTODY, CONDUCT, AND DELIBERATIONS OP JURY. 178. In all criminal cases care must be taken to keep the jTiry free from improper influences. In cases of felony; particularly -where the punishment may be death, the fact that there was an opportunity for improper influence will generally render a conviction bad, unless the absence of such influence aflirmatively and clearly appears; therefore in these cases the jury must be kept together, and in charge of a sworn ofl&cer, until they have rendered their verdict, and must not be allow^ed to hold any communi- cation -with outsiders, unless the nature of the communi- cation is known to the court or the oflQ.cer. 179. Any misconduct on the part of the jury -wrhich may have been prejudicial to the defendant w^ill be ground for setting a conviction aside. 180. The jury should be left free in their deliberations. Any coercion of the jury as a whole, or of an individual juror, w^ill be ground for setting a conviction aside. It is almost a universal rule that, in cases where the punish- ment may be death, the jury must, during an adjournment, and at other times when not in the actual presence of the court, and until they have rendered, or at least found, a verdict, be kept in the charge of a sworn officer of the court, and not be allowed to separate, except in cases of necessity, and then only when the separating juror is accompanied by an offlcer.^^^ In many states the rule applies also to prosecutions for felonies not capital.'^'' In cases of misdemeanor the court may always allow the jury to separate before they have retired to consider their verdict, but they 311 Jumpertz v. People, 21 111. 375; Com. v. McCaul, 1 Va. Cas. 271; Mc- Lean V. State, 8 Mo. 153; Quinu v. State, 14 Ind. 589; State v. Godfrey, Brayt. (Vt.) 170; post, p. 478. 312 McLean v. State, 8 Mo. 153; Wiley v. State, 1 Swan (Tenn.) 256; Berry T. State, 10 Ga. 511; post, p. 478. Contra, McCreary v. Com., 29 Pa. St. 323; Davis v. State, 15 Ohio, 72; Sutton v. People, 145 111. 279, 34 N. E. 420. Ch. 12] CUSTODY, CONDUCT, AND DELIBERATIONS OF JURY. 475 should be cautioned not to converse with any one about the case."' When the jury retire to the jury room to consider their verdict, they should in all cases be placed in charge of a sworn *"* olficer, and should be kept together.'" If any of them separate from their fellows from necessity, an officer should accompany them. It has been held that, where the jury are required by law to be kept together, they cannot be allowed to separate, even with the defendant's consent, for the defendant ought not to be placed in the position of having either to consent, or perhaps to prejudice the jury by withholding his consent.'^' On this point, however, there are many cases to the contrary.'^' The jury, after they have retired, or even before then, in cases of felony, should not be allowed to hold any communication with outsiders;'^* nor should the officer hold any communication with 313 Rex V. Klnnear, 2 Barn. & Aid. 462; Davis v. State, 15 Ohio, 72. 314 The form of the oath differs in the various jurisdictions. It Is, in sub- statnce, that the oflScer shall well and truly keep the jury in some convenient and private place (formerly without meat, drink, or fire); that he shall not permit any person to speak to them, nor speak to them himself, except to jisk them if they have agreed ob their verdict. An oath by the officer has been held essential. Brucker v. State, 16 Wis. 355; Philips v. Com., 19 Grat. (Va.) 485. But a departure from the statutory form of oath will not render the verdict bad. Hittner v. State, 19 Ind. 48. In some states it is held that, if the officer is a regularly sworn officer of the court, a special oath is not essential. See Davis v. State, 15 Ohio, 72; People v. Hughes, 29 Cal. 257; State v. Frier, 118 Mo. 648, 24 S. W. 220; State v. Grafton (Iowa) 56 N. "W. 257; Alterberry v. State, 56 Ark. 515, 20 S. W. 411. But if he is not such an officer, but an unsworn person, the oath must be administered. Mc- Cann v. State, 9 Smedes & M. (Miss.) 465. 3 IB State V. Populus, 12 La. Ann. 710; State v. Leunig, 42 Ind. 541; post, p. 478. 316 Berry v. State, 10 Ga. 511; Wesley v. State, 11 Humph. (Tenn.) 502; Wiley V. State, 1 Swan (Tenn.) 256; PeifEer v. Com., 15 Pa. St. 468. It has been held that the defendant may consent to the jury's separating after they shall have agreed upon a verdict, and sealed it up. Reins v. People, 30 111. 256; Sanders v. State, 2 Iowa, 230; State v. Engle, 13 Ohio, 490; Friar v. State, 3 How. (Miss.) 422. 317 Stephens v. People, 19 N. Y. 549 (two judges dissenting); Quinn v. State, 14 Ind. 589; State v. Mix, 15 Mo. 153; Smith v. Com., 14 Serg. & R. (Pa.) 70. 318 Hoberg v. State, 3 Minn. 262 (Gil. 181); People v. Symonds, 22 Cal. 348; post, p. 479. 476 TRIAL AND VERDICT. [Ch. 12 them, further than to ask them whether they have agreed to a verdict, or to attend to their necessities."^" After the jury have retired, the judge cannot go to their room and communicate to them, for, except in open court, he occupies the same relation as any other outsider.'^" He may recall them and communicate with them in open. court, "^^ and if they wish to com- municate with him, to ask further instructions for instance, they may send him word by the officer, and they may then be recalled.'^* Such communications are a part of the proceedings, and the de- fendant should be personally present, though, if no further in- structions are given, his absence will not be prejudicial, or render the proceeding invalid."''^ The jury are generally kept in their room until they agree on a verdict, but in case of necessity they, or a part of them, may be taken out by an officer, and it has even been held that tliere is no impropriety in the officer's taking them out for recreation.*^* It seems that formerly, whUe deliberating on their verdict, they were kept without meat or drink,"^" but this is no longer required, and they may be given proper refreshments, providing they are ob- tained from a proper source.'^' It has been held that they may be given intoxicating liquor, if not in excess, but, by the great weight of authority, this is improper, not only while they are deliberating on their verdict, but, at least in capital cases and other cases of felony, at any time during the trial.'^' Whether it will vitiate the vprdict depends, as we shall see, upon the circumstances. 318 Post, p. 479. 320 Hoberg v. State, 3 Minn. 262 (Gil. 181); People v. Linzey, 79 Hun, 23,. 29 N. Y. Supp. 560. 321 Hall V. State, 8 Ind. 489. 3 22 Com. V. Ricketson, 5 Mete. (Mass.) 412. 32 3 Ante, p. 426; Wade v. State, 12 Ga. 25. 324 State V. Perry, Busbee (N. C.) 330. And see King v. State, 91 Tenn. 617, 20 S. W. 169. The fact that the jury are taken by the officer beyond Che confines of the state will not vitiate the verdict on the ground that they were thus In legal effect dispersed, and no longer under the control of the officer, where there was In fact no dispersal, and the authority of the officer was not questioned. King v. State, supra. 326 See U. S. V. Haskell, 4 Wash. 402, Fed. Cas. No. 15,321. 326 People V. Douglass, 4 Cow. (N. Y.) 35. 327 Jones V. State, 13 Tex. 168; State v. Baldy, 17 Iowa, 39; People v, Douglass, 4 Cow. (N. Y.) 26; State v. BuUard,' 16 N. H. 139; post, p. 479. Ch. 12] CUSTODY, CONDUCT, AND DELIBERATIONS OP JURY. 477 The jury must be given perfect freedom in their deliberations. Anything said to them by the court, or by the offlcer in charge, tending to force them to an agreement, will generally render the verdict invalid.^^* The jury must reach an agreement properly. A gambling verdict, — that is, a verdict arrived at by casting lots, — or a verdict found on facts personally known by one of the jurors, and communicated to the others, or a verdict to whibh one of the jurors has been coerced by the others to agree, etc., is illegal.'** Effect of Misconduct and Irregularities. Misconduct on the part of jurors in separating and departing from the ofiBcer's custody, or in drinking intoxicating liquors, or holding communications with outsiders when cautioned not to do so, or on the part of the officer in charge of the jury, or on the part of outsiders with respect to the jury, is not only a contempt of court which the court may summarily punish, but is also a mis- demeanor, rendering the offender liable to a criminal prosecution. Misconduct and irregularities, however, in respect to the matters which we have been discussing, do not necessarily vitiate the verdict, and entitle the defendant, as of right, to a new trial. G-reater strictness is observed in capital cases than in cases not capital, and in felonies than in misdemeanors, and where the mis- conduct or irregularity occurred after the jury retired to deliberate on their verdict, than where it occurred during the trial before re- tirement. There is such an irreconcilable conflict in the cases that nothing more can be done here than to refer to the cases. The stu- dent and practitioner must then follow up the matter by consulting the decisions of his own state. Because of the importance of the 328 state v. Hill, 91 Mo. 423, 4 S. W. 121; Com. v. Polsson, 157 Mass. 510, 32 N. E. 906. Thus, it is error for the judge to tell the jury that, if they agree by a certain hour, they will be discharged; otherwise they will be held until they do agree. State v. Hill, supra. But see Pope v. State, 36 Miss. 121. Merely to urge agreement is not coercion. Dow v. State, 31 Tex. Cr. R. 278, 20 S. W. 583; State v. Palmer, 40 Kan. 474, 20 Pac. 270. 32 8 Dooley v. State, 28 Ind. 239; Crabtree v. State, 3 Sneed (Tenn.) 302; Richards v. State, 36 Neb. 17, 53 N. W. 1027; McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970; Hunter v. State, 8 Tex. App. 75; Wood v. State, 13 Tex. App. 135; Williams v. State, 15 Lea (Tenn.) 129; Fletcher v. State, 6 Humph. (Tenn.) 249; Hali v. Com.. 6 Leigh (Va.) 615. 478 TEIAL AND VERDICT. [Ch. 12 subject and the conflict of authority, it has been deemed advisable to collect a number of the cases from the various states. Some of the courts have held that a verdict should be set aside in a capital case, if, at any time after the trial commenced, though before the jury retired, any of them separated from their fellows, and were out of the officer's custody, so that tliey became accessible to improper outside influence, and that it will not do to' say that the defendant was not in fact prejudiced.'^" And some courts have gone as far as this in cases of felony not capital.'^^ On the other hand, many of the courts — indeed, most of them — ^hold that a ver- dict will not be set aside on this ground, if the defendant has not been prejudiced by the separation; '^^ that is, perhaps, if there is no suspicion of abuse.' ^' Prejudice will be presumed unless the con- trary clearly appears, or, in other words, the state has the burden of showing that there was no prejudice.''* 330 Com. V. M'Caul, 1 Va. Cas. 271. "Although," it was said in this case, "there might be and probably was no tampering with any juryman in this case, yet in a free country, in deciding a particular cause, the decision is to be according to general principles as applied to that case; and more good will arise from preserving the sacred principle involved in this 'case than evil from granting a new trial, although in this individual instance a verdict has probably been given by twelve men in fact unbiased by the separation." Id. 306. And see State v. Foster, 45 La. Ann. 1176, 14 South. 180; McLain v. State, 10 Yerg. (Tenn.) 241; Maher v. State, 3 Minn. 444 (Gil. 329); McLean V. State, 8 Mo. 153. 331 Com. V. M'Caul, 1 Va. Cas. 271. 332 People V. Douglass, 4 Cow. (N. Y.) 26; State v. O'Brien, 7 U. I. 336; State V. Harrison, 36 W. Va. 729, 15 S. E. 982; State v. Belknap (W. Va.) 19 S. E. 507; Cornwall v. State, 91 Ga. 277, 18 S. E. 154; State v. Dugan, 52 Kan. 23, 34 Pac. 409; State v. Miller, 1 Dev. & B. (N. 0.) 500; State v. Hester, 2 Jones (N. C.) 83; State v. Tilghman, 11 Ired. (N. C.) 513; Jumpertz v. People, 21 111. 375; State v. Prescott, 7 N. H. 287; Roper v. Territory (N. M.) 33 Pac. 1014; Keenan v. State, 8 Wis. 132; People v. Symonds, 22 Cal. 348; Roberts V. State, 14 Ga. 8; Stout v. State, 76 Md. 317, 25 Atl. 299; Wyatt v. State, 1 Blackf. (Ind.) 257; Creek v. State, 24 Ind. 151; Cornelius v. State, 7 Eng. (Ark.) 782; Coker v. State, 20 Ark. 03; State v. Barton, 19 Mo. 227; State v. Harlow, 21 Mo. 446; State v. Igo, Id. 459; Com. v. Manfredi, 162 Pa. St. 144, 29 Atl. 404. 3 33 People V. Douglass, 4 Cow. (N. Y.) 26. 334 See the cases cited in the preceding note; and see Cartwright v. State, 71 Miss. 82, 14 South. 526; U. S. v. Swan (N. M.) 34 Pac. 533; State v. Place, 5 Wash. St. 773, 32 Pac. 736; Davis v. State, 35 Ind. 496. Ch. 12] CUSTODY, CONDUCT, AND DELIBEliATIONS OF JUEY. 479 There is also much conflict as to whether a new trial should be granted because the jurors held communications with out- siders,**' or' with the officer in charge of them.'*" And we meet with the same conflict of opinion as to when the drinking of in- toxicating liquors is ground for a new trial.*" ssBThat a new trial should be granted without regard to whether there was prejudice to the defendant, where the communication was after the jury had retired to consider their verdict, see Hoberg v. State, 3 Minn. 262 (Gil. 181). That a new trial will not be granted, even in such a case, where there was no prejudice, see King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Fair- lamb, 121 Mo. 137, 25 S. W. 895; Com. v. Roby, 12 Pick. (Mass.) 496; State V. Howell, 117 Mo. 307, 23 S. W. 263; State v. Tilghman, 11 Ired. (N. C.) 513; Cornwall v. State, 91 Ga. 277, 18 S. E. 154; People v. Symonds, 22 Cal. 348; State V. Allen (Iowa) 56 N. W. 261; Rowe v. State, 11 Humph. (Tenn.) 491; State V. Harrison, 30 W. Va. 729, 15 S. E. 982; Pickens v. State, 31 Tex. Or. R. 554, 21 S. W. 302; State v. Way, 38 S. C. 333, 17 S. E. 39; State v. Crane, 110 N. C. 530, 15 S. E. 231; Boles v. State, 13 Smedes & M. (Miss.) 398. As to remarks and applause by bystanders not being ground for a new trial, see State V. Jackson, 112 N. 0. 851, 17 S. E. 149; State v. Dusenberry. 112 Mo. 277, 20 S. W. 461; Burns v. State, 89 Ga. 527, 15 S. E. 748. But it has been held that the fact that, after the case was submitted to the jury, some of the jurors were allowed to stand on the courthouse porch, where they could hear citizens discussing the merits of the case, and insisting on the defend- ant's guilt, is ground for a new trial. Vaughan v. State, 57 Ark. 1, 20 S. W. 588. 836 That improper communications between the officer and the jury after the jury have retired will npt vitiate the verdict if the defendant was not prejudiced, see State v. Thompson (Iowa) 54 N. W. 1077; Reins v. People, 30 111. 256; State v. Tilghman, 11 Ired. (N. C.) 513; Pope v. State, 36 Miss. 121. It is otherwise if the defendant was prejudiced. State v. Langford, 45 La. Ann. 1177, 14 South. 181; Brown v. State, 09 Miss. 398, 10 South. 579. 3 37 That the use of intoxicating liquors after the jury have retired to con- sider their verdict will vitiate the verdict, without regard to whether the defendant was prejudiced, see Jones v. State, 13 Tex. 168; People v. Doug- lass, 4 Cow. (N. y.) 35; State v. Baldy, 17 Iowa, 39; State v. Bruce, 48 Iowa, 530; State v. Bullard, 16 N. H. 139; Davis v. State, 35 Ind. 496. But that the use of intoxicating liquors before the jury have retired will not vitiate the verdict if there was no prejudice, see State v. Bruce, 48 Iowa, 530; State V. Madigan (Minn.) 59 N. W. 490; State v. Reed (Idaho) 35 Pac. 706; Davis V. People, 19 111. 74; State v. Upton, 20 Mo. 397; Stone v. State. 4 Humph. (Tenn.) 27; Thompson v. Com., 8 Grat. (Va.) 637; Rowe v. State, 11 Humph. (Tenn.) 491; Pope v. State, 36 Miss. 121; Brown v. State (Ind. Sup.) 36 N. B. 1108; People v. Bemmerly, 98 Cal. 299, 33 Pac. 263; Com. v. Cleary, 148 Pa 480 TRIAL AND VERDICT. [Ch. 12 Any misconduct on the part of the jury which was prejudicial to the defendant will entitle him to a new trial.*** As to this there can be no conflict of opinion. THE VERDICT. 181. The verdict is the formal decision by the jury- that the defendant is guilty or not guilty. (a) It must be unanimous. (b) It must be formally delivered by the jury and accepted by the judge in open court. (c) It may be received on Sunday. (d) It need not be in -wrriting ujiless it is so re- quired by statute. • (e) It must be certain^ and find everjrthing that is necessary to support the judgment to be rendered. If it can be understood, infor- mality or surplusage will not vitiate it. 183. Before the verdict is accepted by the court the jury may retract or change it, and if it is irregular they may be sent back to correct it. After it has been fljaally accepted, it cannot be retracted or changed- in matter of substance, but it may, -with the jury's consent, be amended in matters of form. St. 26, 23 Atl. 1110. But see, contra, People v. Douglass, 4 Cow. (N. Y.) 26. And that the use of intoxicating liquors even after the jury have retired will not vitiate the verdict, if there was no prejudice, see King v. State, 91 Tenn. 617, 20 S. W. 169; Rowe v. State, 11 Humph. (Tenn.) 491; State v. Sparrow, 3 Murph. (N. C.) 487; State v. Tilghman, 11 Ired. (N. C.) 513; People v. Sansome, 98 Cal. 235, 33 Pac. 202. If there was prejudice, a new trial should be granted in all cases. Brown v. State (Ind. Sup.) 36 N. E. 1108. 33 8 People V. Mitchell, 100 Cal. 328, 34 Pac. 698. As to reading of news- papers, or possession of them, by the jury, see People v. Stokes (Cal.) 37 Pac. 207; State v. Dugan, 52 Kan. 23. 34 Pac. 409; Williams v. State (Tex. Cr. App.) 25 S. W. 629; Cartwright v. State, 71 Miss. 82, 14 South. 526; State V. Wilson, 121 Mo. 434, 26 S. W. 357. Statement by juror to his fellows of facts within his personal knowledge. Richards v. State, 36 Neb. 17, 53 N. W. 1027; Mc Williams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970. And see ante, pp. 474-479. Ch. 12] THE VEEDICT. 481 183. The court cannot, without the jury's consent, amend the verdict in matter of substance, nor can it do so with their consent after the verdict has been finally accepted. It may amend purely formal defects with, and in some states without, their consent. 184. A verdict is either, (a) General; that is, a finding of guilty or not guilty on the whole charge, and both on the law and' the facts. (b) Special; that is, where the jury find the facts only, and leave the law to be applied by the court. (c) Partial; that is, where the jury find the de- fendant guilty of part of the charge only. 185. A verdict, after its final acceptance, cannot be im- peached by the testimony or aflB.davits of a juror. The manner of arriving at the verdict having been considered, we come now to consider its rendition, and its sufficiency. The verdict is the unanimous and formal decision by the jury that the defendant is guilty or not guilty. It must be unanimous. When the jury ha,ve come to a unanimous determination with respect to their verdict, they return into court to deliver it, and the following formalities are generally observed: The clerk calls over their names, and asks them whether they have agreed on their verdict, to which, if they have, they reply in the affirmative. He then de- mands who shall say for them, to which they answer, their foreman. The clerk then tells the defendant to stand up, and says to the jury, "Look upon the prisoner, you that are sworn; how say ydu, is he guilty of the felony (oi* other crime) whereof he stands in- dicted, or not guilty?" The foreman answers "Guilty" or "Not guilty." The clerk then records the verdict, and then says to the jury, "Hearken to your verdict as the court hath recorded it; you say that A. is guilty (or not guilty) of the felony (or other crime) whereof he stands indicted, and so say you all"; and the jury as- sent.**' This is substantially the form of proceeding in all courts, 839 1 Chit. Or. Law, 635; 1 Bish. Gr. Proc. § 1001; Com. v. Roby, 12 Pick. (Mass.) 496. CEIM.PROC. — 31 482 triaIj and veedict. [Ch. 12 though it will Tary in unimportant details in the practice of the various states.'*" Failure to observe these formalities in unim- portant details will not vitiate the verdict,**^ but departures in a material matter may do so. By the weight of authority, it is es- sential that the verdict shall be delivered in open court. If it is delivered to the judge out of court, or in the court room when the court is not in session, it is void.^*^ It must, of course, be deliv- ered before expiration of the term of court.'*' As we have seen, the defendant must be present, unless he can and does waive his right to be present.'** The delivery and acceptance of a verdict are regarded as minis- terial, and not judicial, acts, and a verdict, therefore, is not in- valid because it was rfeceived on Sunday.'*" In some states, by statute, the verdict is required to be delivered in writing,'*' but in the absence of a statute it is delivered orally,'*' mo See Com. v. Tobin, 125 Mass. 203; Rogers v. Com. (Va.) 19 S. E. 162; Norton v. State. 106 Ind. 163, 6 N. E. 126; Com. v. Gibson, 2 Va. Cas. 70; Mitchell V. State, 22 Ga. 211; State v. Pankey, 104 N. C. 840, 10 S. E. 315. 341 See 1 Bish. Cr. Proc. § 1001, and note; Com. v. Gibson, 2 Va. Cas. 70; Mitchell v. State, 22 Ga. 211; Hall v. State, 3 Kelly (Ga.) 18; State v. Burge, 7 Iowa, 255. 842 State V. Mills, 19 Ark. 476; Waller v. State, 40 Ala, 325; Jackson v. State (Ala.) 15 South. 351; Nomaque v. People, Breese (111.) 109. That it may be received during an adjournment in some states, see Barrett v. State, 1 Wis. 175; In re Green, 16.111. 234; Mclntyre v. People, 38 111. 514; Davis v. State, 14 Ind. 358. 343 Morgan v. State, 12 Ind. 448. 844 Ante, p. 423. 846 Hoghtaling v. Osborn, 15 Johns. (N. Y.) 119; Reld v. State, 53 Ala. 402; True V. Plumley, 36 Me. 466; State v. Ricketts, 74 N. C. 187; State v. Wil- son (Mo. Sup.) 26 S. W. 357; McCorkle v. State, 14 Ind. 39; Meece v. Com., 78 Ky. 586; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Bales v. Com. (Ky.) 11 S. W. 470; State v. Canty, 41 La. Ann. 587, 6 South. 338. And see Blaney v. State, 74 Md. 153, 21 Atl. 547. But judgment cannot be rendered thereon on Sunday. Hoghtaling v. Osborn, supra; Shearman v. State, 1 Tex. App. 215; Baxter v. People, 3 Gilman (111.) 384. 3 46 It has been held that if a verdict required by statute to be In writing is, by mistake, and without objection, delivered orally, and duly recorded and assented to by the jury, it is valid. Hardy v. State, 19 Ohio St 579. 847 Lord V. State, 16 N. H. 325, Ch. 12] THE VERDICT. 483 and it has even been held that unless writing is required by statute it is irregular.'*' In some but not all states the jury are allowed, in cases not capital, to seal up their verdict and separate, where they agree upon a verdict after the court has adjourned, and bring the sealed verdict into court when it is opened.'** If the jury state that they cannot agree the court cannot do anything to coerce them into an agreement, but it may send them back to the jury room for further deliberations.' °° Or, if the court is satisfied that they will not be able to agree, it may dis- charge them, and in most states, as we have seen, their discharge will not prevent the state from again trying the defendant before another jury."^ Correction or Retraction by Jury. The control of the jury over their verdict does not cease as soon as it is delivered to the clerk, but only after it has been finally assented to by them, and accepted and recorded by the court'"^ At any time before then, they may correct it, or they may change their minds and withdraw their consent."" And they may, in the discretion of the court, be allowed to hear further evidence on points as to which they are in doubt.'"* After the verdict has been not only recorded, but finally accepted by the court, how- ever, the jury have no longer any control over it, in so far as its 8*8 Lord V. State, supra. But the written verdict may be disregarded, and an oral verdict delivered. Id. 3*8 See Stewart v. People, 23 Micli. 63; Com. v. Durfee, 100 Mass. 146; Com. V. Dorus, 108 Mass. 4S8; State v. Weber, 22 Mo. 321; State v. Fenlason, 78 Me. 495, 7 Atl. 385; Com. v. Slattery, 147 Mass. 423, 18 N. E. 399. 3 50 Ante, p. 472. sBi Ante, p. 386. 352 Burk V. Com., 5 J. J. Marsh. (Ky.) 675. 853 1 Bish. Or. Proc. § 1003; Sledd v. Com., 19 Grat. (Va.) 813; Burk v. Com., 5 J. J. Marsh. (Ky.) 675; State v.- Austin, 6 Wis. 205; Rothbauer v. State, 22 Wis. 468; Ford v. State, 12 Md. 514; State v. Harden, 1 BaUey (S. C.) 3. Thus, where they say "Not guilty," meaning to say "Guilty," they may correct the verdict, though the prisoner has been discharged, and has started to leave. Reg. v. Vodden, 6 Cox, Or. Cas. 226. »5* Burk V. Com., supra. 484 TRIAL AND VERDICT. [Ch. 12 substance is concerned; *""' and they cannot retract it, or say that they did not in fact consent.""" The court is not bound to receive a verdict which is erroneous as a matter of law in its finding, or is defective in matter of form, unless the jury insist upon it.""' When the verdict is delivered, and is found to be defective in form, the court may require the jury to correct or amend it; *°' and where it is erroneous as a matter of law, as where it fixes a greater or less term of punish- ment than the law allows, he may instruct the jury, and send them back to reconsider it.'°° As we have seen, however, he cannot coerce them into finding a verdict.'*" Some courts hold that, though the verdict has been accepted and recorded, and even though the jury have been discharged, yet, if they have not left the court room and separated, they may be re- called, for the purpose of correcting or amending the verdict in matters of form only."*^ They cannot be so recalled, however, after they have separated.'"" Polling the Jury. In order to make sure, before it is too late, that all of the jurors are in fact agreed on the verdict, either party is allowed, in most states as of right, to have the jury polled before the verdict is recorded; that is, to have each individual juror called by name, 3B0 state V. Weeks, 23 Or. 3, 34 Pac. 1005; People v. Lee Yune Chong, 94 Pac. 379, 29 Pac. 776. 8 56 2 Hale, P. 0. 299; Rex v. Wooller, 2 Starkle, 111; Mercer v. State, 17 Ga. 146. As to impeaclimeiit of verdict by jurors, see post, p. 490. 367 In which case, of course, he may set it aside. 8 58 Appeal of Nicely (Pa. Sup.) 18 Atl. 737; Robinson v. State, 23 Tex. App. 315, 4 S. W. 904; Cook v. State, 26 Ga. 593. 869 Mangum v. State, 87 Ga. 549, 13 S. E. 558; State v. Harris, 39 La. Ann. 1105, 3 South. 344; Nemo v. Com., 2 Grat. (Va.) 558; People v. Marquis, 15 Gal. 38; People v. Bonney, 19 Gal. 426; McGregg v. State, 4 Blackf. (Ind.) 101. 3 60 Ante, p. 477. 861 Reg. V. Vodden, 6 Cox, Or. Cas. 226; Brister v. State, 26 Ala. 107; Com. V. Breyesse, 160 Pa. St 451, 28 Atl. 824. But see Ellis v. State, infra; People V. Lee Yune Chong, supra. 862 People V. Lee Yune Chong, 94 Gal. 379, 29 Pac. 776; Sargent v. State, 11 Ohio, 472; Ellis v. State, 27 Tex. App. 190, 11 S. W. Ill; Mills v. Com., 7 Leigh (Va.) 751; Stuart v. Com., 28 Grat. (Va.) 950. Cfa. 12] THE VERDICT. 485 and asked whether the verdict as delivered by the foreman is his verdict''* If, on being asked the question, a juror dissents, then there is no verdict'** In a few states this is not allowed as of right'" A request to poll the jury comes too late after a verdict has been announced, recorded, and affirmatively responded to by the entire jury."* Amendment by Court, The court cannot at any time amend or change the verdict in any matter of substance without the jury's consent and direction;"' and, as we have seen, it cannot do so with their consent after the verdict has been finally accepted and recorded.'** It has been held, however, that it may at any time amend as to matters of form only.'*' If a verdict is otherwise good, an improper amend- ment by the court may be rejected as surplusage."* Sufficiency of Verdict — In General. The verdict must be sufficiently certain to clearly show what the jiury intend, or it will be fatally defective, unless, as we have seen, it may be corrected by the jury."^ It must also be respon- ses 2 Hale, P. C. 299; Biscoe v. State, 68 Md. 294, 12 Atl. 25; Brister v. State, 26 Ala. 107; Nomaque v. People, Breese (111.) 145; State v. John, 8 Ired. (N. 0.) 330; State v. Austin, 6 Wis. 205; Com. v. Schmous (Pa. Sup.) 29 Atl. 644; MitcheU v. State, 22 Ga. 211; Tilton v. State, 52 Ga. 478. 884 State V. Austin, 6 Wis. 205; Burk v. Com., 5 J. J. Marsh. (Ky.) 675; State V. Davis, 31 W. Va. 390, 7 S. E. 24; State v. Harden, 1 Bailey (S. C.) 3. But the fact that one of them says he agreed reluctantly does not vitiate. Parker v. State, 81 Ga. 332, 6 S. B. 600. That on one juror expressing disa- greement, the jury may be sent back to reconsider, see State v. Davis, 31 W. Va. 390, 7 S. E. 24. 385 state V. Wise, 7 Rich. (S. O.) 412; Com. v. Roby, 12 Pick. (Mass.) 496; State V. Hoyt, 47 Conn. 518. see Com. V. Schmous (Pa. Sup.) 29 Atl. 644. 887 Guenther v. People, 24 N. Y. 100; State v. McBride, 19 Mo. 239. 88 8 Ante, p. 483. 869 2 Hawk. P. C. c. 47, § 9; Bledsoe v. Com. (Ky.) 11 S. W. 84; Martin v. State, 25 Ga. 494; Com. v. Lang, 10 Gray (Mass.) 11. 87 Guenther v. People, 24 N. Y. 100; post, p. 486. S71 State V. Coon, 18 Minn. 518 (Gil. 464) ; People v. Piper, 50 Mich. 390, 15 N. W. 523; Guest v. State, 24 Tex. App. 530, 7 S. W. 242. A verdict, In a case where two defendants are jointly prosecuted, that reads, "We, the jury, 486 TBIAL AND VERDICT. [Ch. 12 sive to the charge, and consistent, and find everything that is neces- sary to enable the court to render judgment.''^ If the jury ac- quit, nothing more is necessary than the words "Not guilty." If they convict of the whole charge the words, "Guilty as charged in the indictment," "Guilty as charged," or ev^en "Guilty," in some cases, will be sufficient."'* A verdict is not bad for informality or clerical errors in the lan- guage of it, if it is such that it can be clearly seen what is intended. "It is to have a reasonable intendment, and is to receive a reason- able construction, and must not be avoided except from neces- sity." "* And a verdict which is otherwise good will not be vitiated by the insertion of matter that may be rejected as surplusage.* '° Thus a verdict will not be vitiated because it was improperly added find the defendant guilty as charged," is void for uncertainty. State v. Weeks, 23 Or. 3, 34 Pac. 1095. 37 2 State v. Benjamin (La. Ann.) 14 South. 71; Reg. v. Gray, 17 Cox, Or. Cas. 299; Westbrook v. State, 52 Miss. 777; Long v. State, 34 Tex. 566; State v. Harmon, 106 Mo. 635, 18 S. W. 128; Munson v. State, 21 Tex. App. 329, 17 S. W. 251. 373 state v. Lee, 80 Iowa, 75, 45 N. W. 545; Brown v. State, 111 Ind. 441, 12 N. B. 514; Hughes v. State, 65 Ind. 39; State v. Beming, 91 Mo. 82, 3 S. W. 588; Bond v. People, 39 111. 26; Hronek v. People, 134 111. 139, 24 N. B. 861; People v. Perdue, 49 Cal. 425; People v. Whltely, 64 Cal. 211, 27 Pac. 1104; People v. West, 73 Cal. 345, 14 Pac. 848; State v. Jones, 69 N. C. 364; Jones V. Com., 31 Grat (Ya.) 830; Blount v. State, 49 Ala. 381; Curry v. State, 7 Tex. App. 91. s'4 Poison V. State (Ind. Sup.) 35 N. B. 907; Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421; Lewallen v. State (Tex. Cr. App.) 24 S. W. 907; Preel t. State, 21 Ark. 212; Nabors v. State, 6 Ala. 200; Guenther v. People, 24 N, Y. 100; Page v. Com., 9 Leigh (Va.) 683; Gipson v. State, 38 Miss. 295; Kellum V. State, 64 Miss. 226, 1 South. 174; Partain v. State, 22 Tex. App. 100, 2 S. W. 854; State v. Wilson, 40 La. Ann. 751, 5 South. 52; Shelton v. State, 27 Tex. App. 443, 11 S. W. 457. On a trial of assault with intent to murder the jiu-y returned a verdict finding the accused "guilty with assault by sutinge with intent to murder," and it was held sufllcient to reasonably convey the idea that they intended to find him guilty of assault by "shooting" with in- tent to murder. State v. Wilson, supra. 8T5 Gipson V. State, 38 Miss. 295; .State v. Douglass, 1 Greene (Iowa) 550; People V. Boggs, 20 Cal. 433; Harvey v. Com., 23 Grat (Va.) 941; State v. Hutchinson, 7 Nev. 53; Stephens v. State, 51 Ga. 236; McBntee v. State, 24 Wis. 43; Cheek v. Com., 87 Ky. 42, 7 S. W. 403; post, pp. 487, 490. Ch. 12] THE VERDICT. 487 to or amended by the court, since the amendment may be re- jected.'^* Same — Finding Degree of Orime. In some states it is provided by statute that, wheneyer a crime is distinguished into degrees, the jury, if they convict, must find the degree of v?hich the defendant is guilty. Under such a statute a verdict failing to specify the degree of the crime of v?hich the jury convict is void.''^ Same — As to Punishment. Where it is for the court to fix the punishment, the verdict should not do so, but, if it does, this part of the verdict may be rejected as surplusage."* Where the jury ate required to fix the punish- ment, they must do so in their verdict, and must do so vyith cer- tainty, or the verdict will be bad.°^* If they fix a greater punr ishment than the law allows, the verdict, if not corrected, is void, and the defect cannot be cured by remitting the excess.'"" Some courts hold that a verdict fixing a less punishment than is author- ized is void.'*^ A recommendation to mercy is allowed in some states.*** In others it is improper, but it will not vitiate, for it may be rejected as surplusage.*** sre Guenther v. People, 24 N. Y. 100; ante, p. 485. STT Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070; People v. Bannister (Cal.) 34 Pac. 710; In re Black, 52 Kan. 64, 34 Pac. 414. 87 8 Harvey v. Com., 23 Grat (Va.) 941. And see State v. Hutchinson, 7 Nev. 53. 870 Com. v. Scott, 5 Grat (Va.) 697; Weatherford v. State, 43 Ala. 319; Hammett v. State, 52 Ga. 122; Wynn v. State, 1 Blackf. (Ind.) 28; Mills v. Com., 7 Leigh (Va.) 751; State v. Rohfrischt, 12 La. Ann. 382; People v. Lit- tlefield, 5 Cal. 355; Podfield v. People, 146 111. 660, 35 N. E. 469; Roberts v. State (Tex. Cr. App.) 24 S. W. 895; Eldridge v. Com., 87 Ky. 365, 8 S. W. 892. 880 Allen V. Com., 2 Leigh (Va.) 727; Jones v. Com., 20 Grat. (Va.) 848; Nemo V. Com., 2 Grat. (Va.) 558. The verdict may be corrected in this as , in other respects. Nemo v. Com., supra; ante, p. 483. As to rejecting excess as surplusage, see Veatch v. State, 60 Ind. 291; Cheek v. Com., 87 Ky. 42, 7 S. W. 403. 881 Jones V. Com., supra; contra, Hoskins v. State, 27 Ind. 470. 882 See Valentine v. State, 77 Ga. 470; Hannum v. State, 90 Tenn. 647, 18 S. W. 269. 3 83 Stephens v. State, 51 Ga. 236. 488 TRIAL AND VEEDICT. [Ch. 12 General Verdict. A general verdict is simply a finding of not guilty or guilty on the whole charge, and both upon the law and the facts, as distinguished from a special verdict, which, as we shall see, is a finding on the facts only, leaving the court to apply the law to the facts found. The jury is always at liberty to find such a verdict.''* A general verdict of guilty is a conviction of the highest of- fense which is properly charged in the indictment."'" Where the indictment contains several counts, a general verdict of guilty or not guilty is a conviction or acquittal on every count that is good. And if one or more counts is bad a general verdict of guilty will be sustained as to those counts that are good.'" This principle has also been applied where there was a general verdict of guilty on an indictment containing several counts, one of which was not sustained by any evidence."^ Special Verdict. A special verdict is where the facts of the case alone are found by the jury, and the legal inference to be derived from them is referred to the court. Though with us special verdicts are rare, the jury no doubt always have the right to find such a verdict un- less prevented by statute, and the court must give the proper judgment on it'" A special verdict must state positively the 884 4 Bl. Comm. 361; Co. Litt. 228; Reg. v. AUday, 8 Car. & P. 136; People V. Antonio, 27 Cal. 404. 88 6 state V. Eno, 8 Minn. 220 (Gil. 190); Adams v. State, 52 Ga. 565; State V. McClung, 35 W. Va. 280, 13 S. E. 654. If the highest ofEense charged is not sustained by the proof, a general verdict of guilty must be set aside, thougli there was sufiBcient proof of an ofCense included in the charge. State v. Eno, 8 Minn. 220 (Gil. 190). 886 Yarber v. State (Tex. Cr. App.) 24 S. W. 645; Baron v. People, 1 Parker, Or. E. (N. Y.) 246; Guenther v. People, 24 N. Y. 100; People v. Curling, 1 Johns. (N. Y.) 320; State v. Lee, 114 N. C. 844, 19 S. H. 375; Brown v. State, 5 Eng. (Ark.) 607; Com. v. Howe, 13 Gray (Mass.) 26; State v. Jennings, 18 Mo. 435; State v. Montgomery, 28 Mo. 594; Parker v. Com., 8 B. Mon. (Ky.) 30; ante, p. 299. 8 87 state V. Bugbee, 22 Vt. 32. And see State v. Long, 7 Jones (N. C.) 24. 888 Dowman's Case, 9 Coke, 7b; Com. v. Chathams, 50 Pa. St 181; Com. V. Eichelberger, 119 Pa. St. 254, 13 Atl. 422; McGuffle v. State, 17 Ga. 497; State v. Nash, 97 N. C. 514, 2 S. E. 645; State v. Duncan, 2 McCord (S. C.) Ch. 12] THE VEKDICT. 489 facts themselves, and not merely the evidence adduced to prove them, and it must find all the facts necessary to enable the court to give judgment. The court cannot supply by intendment or implication any defects in this respect.'*® A special verdict cannot find facts which are not in issue, but such findings are mere sur- plusage.''" The exact technical language of the indictment need not be followed.*"^ Partial Verdict. A partial verdict is a finding as to a part of the charge, as where the jury convict the defendant on one or more counts of the indict- ment, and acquit him of the residue, or convict him on one part of a divisible count, and acquit him of the residue. We have al- ready, in discussing the question of variance, seen when such a verdict as this may be found.' '^ If the verdict expressly states that the defendant is guilty on a certain count, giving its number, or of the crime charged therein, specifying it, and not guilty on the other count or counts, or of the crime or crimes therein charged, there is no difficulty in understand- ing the verdict, and rendering judgment on it;'®' but if it fails to show with certainty upon which count or counts, or of which of several offenses included in the charge, it is intended to con- vict, no judgment can be given.'"* The verdict must in all cases be sufficiently certain to enable the court to see of what offense the jury intend to convict, or it will be void.""* If the verdict is 129; State v. Ewing, 108 N. 0. 755, 13 S. E. 10; State v. Spray, 113 N. C. 686, 18 S. B. 700; State v. Divine, 98 N. C. 778, 4 S. B. 477. 88 Rex V. Francis, 2 Strange, 1015; 2 Hawk. P. C. c. 47, § 9; Rex v. Royce, 4 Burrows, 2073; Rex v. Plummer, J. Kel. Ill; Com. v. Call, 21 Pick. (Mass.> 509; People v. Wells, 8 Mich. 104; State v. FInlayson, 113 N. C. 628, 18 S. B. 200; State v. Lowry, 74 N. C. 121. It must find the county in which the acts were committed, as this is an essential fact. Com. v. Call, supra. ■ 8»o Stephens v., State, 51 Ga. 236; McEntee v. State, 24 Wis. 43. s»i Rex V. Dawson, 1 Strange, 19; Dowdale's Case, 6 Coke, 47a. 392 Ante, p. 351. 393 See Gipson v. State, 38 Miss. 295; Carter v. State, 20 Wis. 647; Guen- ther V. People, 24 N. Y. 100; Harris v. People, 64 N. Y. 148; Day v. People, 76 111. 380; Wright v. People, 33 Mich. 300; Page v. Com., 9 Leigh (Va.) 683. 384 Campbell v. Reg., 1 Cox, Cr. Cas. 269; State v. Izard, 14 Rich. (S. 0.) 209; Day v. People, 76 111. 380. 396 Com. V. Lowery, 149 Mass. 67, 20 N. B. 697; State v. West, 39 Minn. 321, 490 TRIAL AND VERDICT. [Ch. 12 sufficiently certain to meet this requirement it is sufficient to sup- port a judgment, though it is inartiflcially drawn, or is couched in language that does not strictly follow the words of the charge.''* The verdict will not be rendered insufficient by the insertion of mat- ter which is immaterial and may be rejected as surplusage.'" Sometimes a verdict finds the defendant guilty on one or more counts, and is silent as to the other counts, or finds him guilty of an offense included in the charge, and says nothing about the higher offense charged. In such cases the verdict is sufficiently certain to support a conviction on the count or counts, or of the offense, specified or referred to. It amounts to an acquittal on the counts, or of the offense, as to which it is silent.'" And therefore, as we have seen, the defendant cannot be again tried on the latter charges."" Impeachment of Verdict by Jurors, A juror cannot be allowed by his testimony, affidavit, or other- wise, to impeach the verdict after it has been recorded and finally accepted by the court.*"" He cannot, for instance, say that he did 40 N. W. 249; Sullivan v. State, 44 Wis. 595; Foster v. State, 88 Ala. 182, 7 South. 185; Bowen v. State, 28 Tex. App. 498, 13 S. W. 787. ses "We find the defendant not guilty in manner and form as charged In the indictment, but we find her guilty of murder in the second degree," was sustained as a conviction of murder in the second degree. Freel v. State, 21 Ark. 212. And, where the indictment contained several counts, a verdict of guilty "on the first charge" was sustained as a conviction on the first count. Nabors v. State, 6 Ala. 200. So, where an Indictment contained counts for larceny and for embezzlement, a verdict of "guilty of embezzlement" was sustained as a conviction on the count charging embezzlement. Guenther v. People, 24 N. X. 100. And see Gipson v. State, 38 Miss. 295; Page v. Com., 9 Leigh (Va.) 683. «»7 Gipson V. State, 38 Miss. 295; ante, p. 486. 388 Guenther v. People, 24 N. Y. 100; Morris v. State, 8 Smedes & M. 762; Edgerton v. Com., 5 Allen (Mass.) 514; Weinzorpflin v. State, 7 Blackf. (Ind.) 186; Kirk v. Com., 9 Leigh (Va.) 627; State v. McNaught, 36 Kan. 624, 14 Pac. 277; Stoltz v. People, 4 Scam. (111.) 168; State v. Kattlemann, 35 Mo. 105; State v. McCue, 39 Mo. 112; ante. pp. 286, 351. »»» Ante, p. 382. *oo Rex V. Wooller, 2 Starkie, 111; Smith v. State (Ark.) 26 S. W. 712; Cornwall v. State, 91 Ga. 277, 18 S. E. 154; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; State v. Best, 111 N. C. 638, 15 S. E. 930; Taylor v. Com. (Va.) Ch. 12] THE VERDICT. 491 not intend to agree.*'^ Jurors may testify as to any fact showing the existence of an extraneous influence, but they cannot give evi- dence as to the effect which such influence had on their minds, or as to the motives and influences generally which aflfected their de- liberations.*"* By statute in the various states it may be shown in certain cases by the testimony of jurors that the verdict was illegally arrived at, as by lot. 17 S. E. 812; State v. Rush (Mo.) 8 S. W. 221; Com. v. White (Mass.) 16 N. B. 707. But see McBean v. State, 83 Wis. 206, 53 N. W. 497. *oi Rex V. WooUer, supra; Mercer v. State, 17 Ga. 146; Stanton v. State, 13 Ark. 317; State v. Bennett, 40 S. C. 308, 18 S. E. 886. *02 Mattox V. U. S., 146 U. S. 140, 13 Sup. Gt. 50. 492 PROCEEDINGS AFTER VERDICT. [Ch. 13- CHAPTER Xm. PROCEEDINGS AFTER VERDICT. 186. Motion In Arrest of Judgment 187. Judgment and Sentence. 188. Cruel and Unusual Punishment. 189. New Trial. 190. Writ of Error, MOTION IN ARREST OF JUDGMENT. 186. Formerly almost any objection -wliicli -would have been fatal on demurrer could be made the ground of a motion in arrest of judgment, but this rule has been to a great extent changed by statute. Such a motion will lie, ho-wever, -whenever the indictment is insufficient to sustain a judgment, or the verdict is insufficient; but it -will not lie for any defect -which is cured by verdict at common la-w, or -which may be and is cured by statute. It only lies for matter appearing on the record. It was at one time held that a motion in arrest of judgment would lie for any defect which could have been attacked by a demurrer,* but in many states, as we have seen, statutes have been enacted cur- ing certain formal defects if objection is not made before verdict, or at a previous stage of the trial. We have already discussed these , statutes and their constitutionality.'' In some states the grounds of motion in arrest are specified in the statutes, and the motion will not lie on any other ground." Defects which are aided or cured by verdict cannot be made the ground of a motion in arrest* 1 4 Bl. Comm. 324; State v. City of Bangor, 38 Me. 592; State v. Doyle, 11 R. I. 574, 2 Ante, pp. 140, 317, 321, 324. See U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct 1; Coleman v. State, 111 Ind. 563, 13 N. E. 100; People v. Kelly, 94 N. Y. 526; Jones V. State, 32 Tex. Cr. R. 110, 22 S. W. 149. 8 State V. Smith, 12 Mont. 378, 30 Pac. 679. * Ante, p. 319; Lutz v. Com., 29 Pa. St. 441; State v. Hodgson, 66 \t 134, 28 Atl. 1089. Ch. 13] MOTION IN ARREST OF JUDGMENT. 493 In all cases the defect must appear on the face of the indict- ment, or some other part of the record, for the motion will not reach objections depending upon facts dehors the record, such as irregularities in the custody and conduct of the jury." If the indictment is clearly insufficient to sustain a judgment, as where it fails to charge an offense, or fails to charge the offense with sufficient certainty to meet the requirement of the constitution, the motion will lie." And it will lie because of the insufficiency of the verdict to sustain a judgment,^ or for any other defect or error in the proceedings, apparent on the record, rendering the trial illegal or a judgment unauthorized.* As we have seen, mis- nomer of the defendant is no ground for arresting judgment* Nor can the insufficiency of the evidence to support the verdict be made the ground of such a motion. We have already in various places shown what defects are and what are not ground for mo- tion in arrest of judgment^" At common law a motion in arrest may be made at any time after verdict and before sentence, but it cannot be made after judgment.^ ^ In some states, by statute or rules of court, it is required to be made within a certain time after verdict, but this wUl not prevent the court from entertaining it after the expiration of the time so limited if it sees fit to do so.^* B Bellasis v. Hester, 1 Ld. Raym. 281; Forbes v. Com. (Va.) 19 S. E. 164; Horsey v. State, 3 Har. & J. (Md.) 2; Com. v. Donahue, 126 Mass. 51; State v. Martin, 38 W. Va. 568, 18 S. E. 748; Hall v. Com., 80 Va. 562; State v. .Conway, 23 Minn. 291; State v. Carver, 49 Me. 588; Munshower v. State, 56 Md. 514; Herron v. State (Ga.) 19 S. B. 243; State v. Casey, 44 La. Ann. 969, 11 South. 583. « Ante, p. 153; Com. v. Morse, 2 Mass. 128; Com. v. Hinds, 101 Mass. 209; State V. Gove, 34 N. H. 510; Denley v. State (Miss.) 12 South. 698. T Ante, p. 485; State v. McCormick, 84 Me. 566, 24 Atl. 938; Com. v. Call, 21 Pick. (Mass.) 509. « State V. Meyers, 68 Mo. 266; Com. v. Kimball, 21 Pick. (Mass.) 373. Re- peal of statute creating offense, Rex v. McKenzie, Russ. & R. 429; Brennan v. Pec^le, 110 111. 535. And see ante, pp. 423, 437. » Ante, p. 149. 10 As to duplicity, see ante, p. 285. Misjoinder of counts, ante, p. 296. As to other defects In pleading, see the specific subject under that head, pp. 150- 361. Ill Chit. Cr. Law, 662; Rex v. Robinson, 2 Burrows, 801; State v. O'Neil (Vt.) 29 Atl. 376. 12 See State v. Bryan, 89 N. C. 531. 494 PROCEEDINGS AFTER VERDICT. [Ch. 13 The court may arrest the judgment on its own motion. A mo- tion in arrest by the defendant is not necessary to enable the court to act, though it is necessary to entitle the defendant to com- plain of its failure to act.^* As we have seen in discussing former jeopardy, a verdict on which judgment is arrested does not necessarily prevent another trial for the same offense.^* JUDGMENT AND SENTENCE. 187. It is the duty of the court to render judgment and pronounce sentence on the verdict. In cases of felony the defendant must first be asked -whether he has anything to say -wrhy the court should not pass sentence upon him. The judgment must be within the limit fixed by law. After the verdict has been accepted and recorded, and a motion in arrest or for a new trial that may have been made has been overruled, it becomes the duty of the court to render judgment and pronounce sentence. In capital cases, and, in some jurisdictions, in other cases of felony, the defendant must first be asked whether he has anything to say why sentence should not be passed upon him, and, in most jurisdictions, if this formality is omitted, the judg- ment will be set aside.^^ When any corporal punishment is to be inflicted, it is necessary that the defendant shall be personally before the court when sen- tence is pronounced, but this is not necessary where a mere fine, is to be imposed.^* 18 Rex V. Waddington, 1 Bast, 146; U. S. v. Plummer, 3 Cliff. 62, Fed. Cas. No. 16,056; Rex v. Burridge, 3 P. Wms. 499. 1* Ante, p. 391. " Schwab V. Berggren, 143 U. S. 442, 12 Sup. Ct. 525; Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761; Bex v. Geary, 2 Salk. 630; Rex v. Speke, 3 Salk. 358; Saflford t. People, 1 Parker, Cr. R. (N. Y.) 474; Messner v. People, 45 N. Y. 1; Hamilton v. Com., 16 Pa. St 129; James v. State, 45 Miss. 572; Perry v. State, 43 Ala. 21; Crim v. State, Id. 53; State v. Jennings, 24 Kan. 642; Grady V. State, 11 Ga. 253; Keech v. State, 15 Fla. 591. Contra, where the defend- ant is represented by counsel. Warner v. State (N. J. Err. & App.) 29 Atl. 505. 18 1 Chit. Cr. Law, 695; 2 Hawk. P. C. c. 48, § 17; Rex v. Harris, 1 Ld. Baym. 267; Shifflett v. Com. (Va.) 18 S. E. 838; Grim v. Reimbold, 13 Pa. Co. Ct R. 545. Contra, in some cases by statute. Shifflett v. Com., supra. Ch. 13] JUDGMENT AND SENTENCE, 495 Unless so required by statute, judgment need not be rendered nor sentence pronounced immediately upon conviction. The court may adjourn to another day, and then give judgment,^' and it has been held that judgment may be given at a subsequent term.^* Where more than one defendant is convicted on a joint indict- ment the judgment must be several against each,^* but sentence may be pronounced against them jointly.^" Generally the minimum and maximum punishment for the par- ticular offenses is fixed by statutes, varying in the different states, and it is within the discretion of the court to impose any punish- ment vrithin those limits. In some states, and in some cases, the jury are required or authorized to fix the punishment in their verdict. A judgment for a greater or less punishment than that prescribed by law is void.^^ Jurisdiction to render the particular sentence imposed is just as essential as jurisdiction of the person of the defendant and of the subject-matter."* When the defendant is in execution on a former judgment, sen- tence of imprisonment, and other penalties, may be given against him to commence from the expiration of the existing sentence.*' And it is held in England and in some of our states that where a per- son is charged with several offenses at the same time, of the same kind, he may be sentenced to several terms of imprisonment, one to commence after the conclusion of the other.** In some states, 17 1 Chit. Cr. Law, 699; 6 Harg. St Tr. S33. 18 State v. Guild, 10 N. J. Law, 163. 19 Caldwell v. Com., 7 Dana (Ky.) 229; MiUer v. People, 47 111. App. 472. 20 1 Chit. Cr. Law, 700; 6 Harg. St. Tr. 833. 21 Rex V. Bourne, 7 Adol. & E. 58; Ex parte Lange, 18 Wall. 163; Ex parte Cox (Idaho) 32 Pac. 197; State v. Williams, 40 S. C. 373, 19 S. E. 5. Thus, where the statute prescribes the punishment of imprisonment "or" fine, a judgment of imprisonment and fine is bad. Hargrove v. State (Tex. Cr. App.) 25 S. W. 967. So, where a statute prescribes imprisonment and fine, a sentence of imprisonment without any fine is invalid. Woodruff v. U. S., 58 Fed. 766. 22 Ex parte Cox (Idaho) 32 Pac. 197. 23 1 Chit. Cr. Law, 718; Rex v. Wilkes, 4 Burrows, 2577. 2* 1 Chit. Cr. Law, 718; Castro v. Reg., 6 App. Cas. 229; Rex v. Williams, 1 Leach, Crown Cas. 536; Brown v. Com., 4 Rawle (Pa.) 259; In re Walsh, 37 Neb. 454, 55 N. W. 1075; In re White, 50 Kan. 299, 32 Pac. 36; In re Packer, 18 Colo. 525, 33 Pac. 578. Such a sentence should not fix the date 496 PEOCEEDINGS AFTER VERDICT. [Ch. 13 however, in case of corporal punishment, cumulative sentences are not allowed.^" At common law every court invested with power to award execu- tion in criminal cases has the inherent power to suspend sen- tence.*' The courts frequently exercise this power by suspending sentence during good behavior. The power is not taken away from the courts by a statute merely making it their duty to impose the punishment prescribed.*' Excessive Punishment. The court, as stated above, cannot impose any greater punishment than is prescribed by law. But it or the jury, according to the prac- tice, can impose any amount of punishment within the limits fixed by law for the particular offense, and in most states the sentence will not be interfered with on the ground that the punishment is excessive.** If the punishment is cruel and unusual, within the constitutional prohibition to be presently explained, a different ques- tion is presented. SAME— CRUEL AND UNUSUAL PUNISHMENT. 188. In the federal constitution, and in most, if not all, of the state constitutions, there is a prohibition against cruel and unusual punishments. on which each successive term of imprisonment shall begin, but should di- rect each term to commence at the expiration of the former term, since tlie former sentence may be shortened by good conduct or otherwise. In re Walsh, supra. 2 5 People v. Liscomb, 60 N. Y. 559. 28 People V. Court of Sessions, 141 N. T. 288. 36 N. E. 386; 2 Hale, P. C. 412; 2 Hawk. P. C. c. 51, § 8; Com. v. Dowdigan, 115 Mass. 136; State v. Addy, 43 N. J. Law, 114; Weaver v. People, 33 Mich. 297; People v. Reilly, 53 Mich. 260, 18 N. W. 849; Com. v. Maloney. 145 Mass. 205, 13 N. B. 482; Sylvester v. State, 65 N. H. 193, 20 Atl. 954. 27 People V. Court of Sessions, supra. 2 8 People V. Kelly, 99 Mich. 82, 57 N. W. 1090; Ledgerwood v. State, 134 Ind. 81, 33 N. B. 631; People v. McGonegal, 136 N. Y. 62, 32 N.' B. 616. In some states the court, on appeal, reviews the sentence In this respect, but It will not interfere unless the punishment imposed is clearly excessive. See Sutton V. People, 145 111. 279, 34 N. B. 420; West v. Com. (Ky.) 20 S. W. 219. Ch. 13] NEW TRIAL. 497 This prohibition "is to be understood as forbidding any cruel or degrading punishment not known to the common law, and probably also any degrading punishments which, in the particular state, had become obsolete when its constitution was adopted, and also all punishments which are so disproportioned to the offense as to shock the moral sense of the community." ^° Under this pro- vision there can be no such punishment as torture, disemboweling, burning, branding, mutilation, the pillory or the ducking stool, but the ordinary modes of punishment, such as hanging, imprisonment, and fines, are not prohibited.'" Nor is the provision violated by requiring the death penalty to be inflicted by shooting, or by electrocution, or by requiring the accused to be kept in solitary confinement until execution.'^ Punishment by requiring the ac- cused to work out his fine by laboring on the street in chains is not cruel or unusual; '^ nor, it seems, is it a violation of the constitution to punish by stripes.^* NEW TRIAL. 189. A motion by the defendant for a new trial is a proper remedy for any error or irregularity during the trial -which prevented substantial justice, or because the verdict is contrary to the evidence, or because evidence ■which -nrould require a diflferent finding has been discov- ered since the verdict. A new trial may be granted for misconduct of the jury as where they determined upon their verdict by casting lots,'* or separated when they should not have done so, or held communications with 29 Black, Const Law, 510; In re Bayard, 25 Hun (N. Y.) 546; Cooley, Const. Lim. 329; Pearyear v. Com., 5 Wall. 475; Barker v. People, 3 Cow. (N. T.) 686. 80 Black, Const. Law, 510. 31 People V. Kemmler, 119 N. T. 580, 24 N. B. 9; In re Kemmler, 136 U. S. 436, 10 Sup. Ct 930; WUkerson y. Utah, 99 U. S. 130; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156. 82 Ex parte Bedell, 20 Mo. App. 125. 88 Com. V. Wyatt, 6 Rand. (Va.) 694; Foote v. State, 59 Md. 264; Garcia v. Territory, 1 N. M. 415. But see Cooley, Const. Lim. 329. 84 Ante, p. 477. CRIM.PKOC— 33 498 PEOCEEDINGS AFTER VERDICT. [Ch. 13 outsiders, or were otherwise guilty of misconduct prejudicial to the defendant." But, as we have seen, the testimony of the jurors themselves cannot be received to impeach their verdict' ' In most states a new trial may be granted on the merits, on the ground that the evidence is insufficient to sustain the verdict; " but the court will not set aside a verdict and grant a new trial on this ground unless the evidence is clearly insufficient. Ordinarily, if the evidence was conflicting, or if there is any evidence to sus- tain the verdict, a new trial will be denied, for the jury are the judges of the credibility of the witnesses and the weight of the evidence.'' Mere want of preparation on the part of the defendant is no ground for a new trial.'® Nor will a new trial be granted merely be- cause one of the witnesses made a mistake in testifying,*" or has since been discovered to be incompetent.*^ But where material wit- nesses have been prevented by illness from attending,*" or have gained credit on the trial by circumstances since falsified by affi- davit, or are afterwards convicted of perjury, or otherwise shown to have testified falsely,*' tne court may, and generally will, allow a new trial.** A new trial may also be granted for prejudicial errors in the charge of the court,*' or because of the erroneous admission or 8 5 Ante, p. 474. 3 6 Ante, p. 490. 37 Style, 462; 1 Chit. Or. Law, 654; Rex v. Mawbey, 6 Term R. 622; Macrow V. Hull, 1 Burrows, 12; Williams v. State, 85 Ga. 535, 11 S. B. 859; Ball v. Com., 8 Leigh (Va.) 726; Com. v. Briggs, 5 Pick. (Mass.) 429; State v. Spidle, 44 Kan. 439, 24 Pac. 965. 3 8 People V. Chun Heong, 86 Cal. 329, 24 Pac. 1021; U. S. v. Ducournau, 54 Fed. 138; Hardison v. State (Ga.) 19 S. E. 895; Nealy v. State, 89 Ga. 806, 15 S. E. 744. 3 Ford V. Tilly, 2 Salk. 653; 1 Chit Cr Law, 656. «o Huish V. Sheldon, Sayer, 27. Contra, Richardson v. Fisher, 1 Bing. 145. *i Turner v. Pearte, 1 Term R. 717; Walfforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741. *i Anon., 1 Salk. 645. But see Jackson v. State (Tex. Cr. App.) 25 S. W. 632. <3 Lister v. Mundell, 1 Bos. & P. 427; State v. Moberly (Mo. Sup.) 26 S. W. 364. But see State v. Anderson (Mont.) 37 Pac. 1. 44 1 Chit Cr. Law, 656. 4» Anon., 2 Salk. 649; How v. Sti-ode, 2 Wils. 273. Ch. 13] NEW TRIAL. 499 exclusion of evidence, though generally not in such a case where there is ample competent evidence to sustain the verdict.*' Another ground upon which a motion for a new trial is frequently based is after-discovered evidence.*' To authorize a new trial on this ground (1) the evidence miist have been discovered since the trial;** (2) it must be such as reasonable diligence on the part of the defendant could not have secured on the former trial; "" (3) it must be material, and not merely collateral or cumulative or cor- roborative or impeaching; "^ (4) it must be such as ought to pro- duce a different result on the merits on another trial; ^^ (5) it must go to the merits, and not rest on merely a technical defense."" By the great weight of authority a new trial cannot be granted at the instance of the state after a verdict of acquittal."* We have already shown, in the preceding pages, what consti- tute errors and irregularities during the trial, and it will be suffi- cient here to refer to the specific heads. Objections which can be raised by motion in arrest of judgment are ordinarily no ground for motion for a new trial. A motion for a new trial does not lie because of defects in pleading."" *7 Hex V. Ball, Russ. & R. 132. 48 Jolinson V. State (Tex. Cr. App.) 22 S. W. 595; Cooper v. State, 91 Ga. 362, 18 S. E. 303; State v. Carlos (S. 0.) 16 S. E. 832; Bailey v. State, 36 Neb. 808, 55 N. W. 241. 49 White V. State, 17 Ark. 404; State v. Cantlin, 118 Mo. 100, 23 S. W. 1091. BO Lilly V. People, infra; Bennett v. Com., 8 Leigh (Va.) 745; Thompson v. Com., 8 Grat. (Va.) 637; People v. Mack, 2 Parker, Or. K. (N. Y.) 673; State V. Dimmitt (Iowa) 55 N. W. 531; Runnels v. State, 28 Ark. 121; Avery v. State, 26 Ga. 233. Bi Lilly V. People, 148 111. 467, 36 N. E. 95; Childs v. State (Ga.) 19 S. E. 752; Mitchell v. State, Id. 893; State v. De Graff, 113 N. C. 688, 18 S. B. 507; State V. Howell, 117 Mo. 307, 23 S. W. 263; State v. Potter, 108 Mo. 424, 22 S. W. 89. But see Bailey v. State, 36 Neb. 808, 55 N. W. 241. B2 Field V. Com. (Va.) 16 S. E. 865; Yeldell v. State (Tex. Or. App.) 25 S. W. 424; Burgess v. State (Tex. Cr. App.) 24 S. W. 286; Peterson v. State, Id. 518; Simpson v. State (Ga.) 18 S. E. 526; People v. Urquidas, 96 Cal. 239, 31 Pac. 52; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Hendrlx, 45 La. Ann. 500, 12 South. 621. 8» Whart. Or. PI. & Prac. § 854; Cooper v. State, 91 Oa. 362, 18 S. E. 303. B* Ante, p. 393. BB White V. State (Ga.) 19 S. E. 49. 500 PROCEEDINGS AFTEB VEKDICT. [Ch. IS WRIT OP ERROR. 190. At common la-w the proceedings and judgment of a subordinate court may be taken to an appellate court for review by -writ of error, -wrhich is a -writ issuing from the appellate court commanding the subordinate court to send up the entire record. Such a writ lies only to a court of record. It does not lie until after judgment, and lies only for errors of record. The modes of reviewing the judg- ment and proceedings in a criminal case are now almost entirely regulated by statute. At common law the mode of reviewing the proceedings and judg- ment in a criminal case was by writ of error. This is a writ issu- ing from an appelliate court commanding a subordinate court to send up the entire record in the case. At common law this writ would lie only for matters apparent on the record, and it could only issue to a court of record. This, however, has been changed by statute in many states. In many of the states a writ of error is still used, the practice, however, being regulated almost entirely by statute. In other states the remedy by appeal is substituted, and in others the remedy is by a bill of exceptions. By the weight of authority, a writ of error or appeal does not lie at the instance of the state."* »« Ante, p. 393. Ch. 14] FACTS IN ISSUE. 501 CHAPTER XIV. EVIDBNOH. 191. Facts In Issue. 192-194. Facts Relevant to Facts in Issue. 195. Facts Necessary to Explain or Introduce Relevant Facts. 196. Motive. 197. Preparation for Act 198. Subsequent Conduct or Condition of Defendant 199. Statements Accompanying Acts. 200. Statements in the Presence of Defendant 201. Conduct and Complaint by Person Injured. 202. Res Gestae. 203. Other Crimes. 204-206. Acts and Declarations of Conspirators. 207. Hearsay. 208. Declarations of Persons other than Defendant 209-210. Dying Declarations. 211. Admissions and Declarations by Defendant 212-214. Confessions. 215. Evidence Given in Former Proceeding. 216. Opinion Evidence. 217. Expert Testimony. 218. Character. 219. Evidence Wrongfully Obtained. 220-222. Presumption of Innocence— Burden of Proof. 223. Witnesses— Competency— Examination. FACTS IN ISSUE. 191. Evidence of any fact in issue is admissible.* As we have seen, the general issue in a criminal case is formed by the accusation and the plea of not guilty." The plea of not guilty puts in issue not only every fact alleged in the accusation 1 By the term "fact" we mean to include the fact that any particular mental condition existed or exists, as the fact that the defendant, when he committed the crime charged, was insane, or was actuated by malice, or that he acted with. a certain intention, or that he acted with knowledge of certain facts. 2 Ante, p. 408. 502 EVIDENCE. [Ch. 14 which it is necessary to prove in order to secure a conviction, but it puts in issue every fact which will constitute a defense and prevent a conviction.' Every such fact may therefore be shown. The facts in issue are determined in each case by the charge in the indictment and by reference to the substantive criminal law. On indictment for murder and a plea of not guilty, the following facts, among others^ are or may be in issue: The fact that the defendant killed the deceased; the fact that he did so with malice aforethought; the fact that he was at the time so mentally insane, was acting under such an insane delusion, or, in some states, under such an insane irresistible impulse, or was of such tender years, as to be legally irresponsible; the fact that he did the lulling by excusable accident, or in excusable self-defense, or under circum- stances justifying him; and the facts that he had received, and that he acted under, such provocation from the deceased as re- duced the homicide to manslaughter. A plea of not guilty to an indictment for rape puts or may put in issue the fact that the defendant had carnal knowledge of the woman; the fact that she was his wife; the fact that she consent- ed, etc. A plea of not guilty to an indictment for larceny puts in issue the fact that the defendant took the property described in the indictment, that the property belonged generally or specially to the person named as owner, that the defendant took it under such circum- stances that he committed a trespass, that he carried it away, that he intended to steal it, etc. FACTS RELEVANT TO FACTS IN ISSUE. 192. Evidence of any fact wMch, thougli not itself in issue, is relevant to any fact in issue, is admissible. EXCEPTIONS— (a) Unless it is declared inadmis- sible by some arbitrary rule of law. (b) Unless the fact appears to be too remote to be material under all the circumstances of the case. » Ante, p. 408. Ch. 14] FACTS RELEVANT TO FACTS IN ISSUE. 603 193. Evidence of a fact -which is not relevant to any fact in issue is inadmissible. 194. A fact is relevant to a fact in issue if, according to the common course of events, either taken by itself or in connection with other facts, it logically tends in any de- gree to render probable the existence or nonexistence of that fact. From these rules it will be noticed that evidence, though relevant, may be inadmissible or incompetent because it is immaterial, and evidence, though both relevant and material, may be incompetent because some rule of law to be hereafter stated declares it so. "Relevancy," "materiality," and "competency" are not synonymous terms, though often used as synonymous both in the text-books and by the judges. Any fact is relevant to a fact in issue if it logically tends in any degree to show the existence or nonexistence of that fact. It is necessary, however, that the fact shall tend materially, in view of all the circumstances, to show the existence or nonexistence of the fact in issue. In other words, evidence to be admissible, must be both relevant and material. Unless the admissibility of evidence is settled by some arbitrary rule, or by controlling precedent, it is to be determined by reason in each particular case. The test is this: Does the fact offered in evidence, under all the circum- stances of the particular case, according to the common course of events, logically and materially tend, when taken either by itself or in connection with other facts, to show the existence or non- existence of a fact in issue? * If it does, then it is relevant and material. * Com. v. Jeffries, 7 Allen (Mass.) 563; Com. v. Abbott, 130 Mass. 473; State V. Alford, 31 Conn. 40. "The word 'relevant' means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future, existence or nonexistence of the other." Steph. Dig. Ev. (Chase's Ed.) 4. "It is only by appealing to hy- pothesis that questions of relevancy can be determined. 'My hypothesis,' so argues the prosecution, 'is that the act charged is part of a system of guilty acts.' To support such an hypothesis, proof of such a system is relevant. Or the defense argues, 'No man of good character would commit a crime such 604 EViDENCK. [Ch. 14 Having ascertained the relevancy and materiality of the evidence, we must next see whether there is any rule of law rendering it in- competent. The defendant's bad character may tend to render probable the fact that he committed the crime under investigation, and so may the fact that he committed a similar crime a year be- fore, and so may the fact that, a week after the crime was commit- ted, a third person was heard to say that he saw the defendant commit it; but rules of law declare this evidence inadmissible. It is relevant, but incompetent These rules will be presently stated and explained. In a prosecution for homicide, a witness may testify that he saw the defendant kill the deceased. This is admissible, because it is direct evidence of a fact ia issue. Evidence that the defendant was near the scene of the crime shortly before or shortly after it was committed would be admissible, not as evidence of a fact in issue, because the defendant's presence there before or after the crime is not in issue, but as evidence of a fact relevant to the fact that the defendant killed the deceased, which is a fact in issue. It tends to render that fact probable. For the same reason, it might be shown that before the homicide the defendant had threat- ened to kill the deceased; that after the homicide he had blood on his clothes, or had in his possession property which the deceased had on his person just before he was killed; that there were tracks near the place corresponding to the shape of defendant's shoes; that a piece of gun wadding was found near the place (the deceased having been killed with a gun), and was like the wadding as here charged,' and, to sustain this hypothesis, evidence of good character is relevant." Whart. Or. Bv. § 21. "Relevancy is that which conduces to the proof of a pertinent hypothesis; a pertinent hypothesis being that -which log- ically affects the issue. * * * Relevancy is to be determined by free logic, unless otherwise settled by statute or controlling precedent. All facts that go either to sustain or impeach a hypothesas logically pertinent are admissible. But no fact Is relevant which does not make more or less probable such a hy- pothesis. Relevancy, therefore, involves two distinct Inquiries to be deter- mined by free logic, unless otherwise arbitrarily prescribed by jurisprudence: (1) Ought the hypothesis proposed,- if true, to affect the issue? (2) Does the fact offered in evidence go to sustain this hypothesis?" Whart. Or. Bv. §S 23, 24. This statement makes no distinction between relevancy and material- ity. It defines evidence which is both relevant and material, and therefor© competent unless excluded by some arbitrary rule of law. Ch. 14] FACTS RELEVANT TO FACTS IN ISSUE. 505 afterwards found in one barrel of the defendant's gun, the other barrel having been discharged; " or that the defendant and his alleged accomplice practiced shooting at a mark before the homi- cide.* The defendant being charged with murder, the fact that he killed the deceased with malice aforethought is in issue, and any fact materially tending to show malice aforethought is admissible. Thus, it may be shown that atj the time of the killing he was resist- ing a lawful attempt of the deceased to arrest him; that he was trying to rob the deceased, or to commit some other felony, — ^for under such circumstances the law implies malice aforethought, though there was no intention to kill. And in like manner it may be shown that he had previously threatened to kill the deceased; that he had quar' pled with him; or that he was criminally intimate with the deceased's wife. On the part of the defendant, it may be shown that he was at another place at the time of the killing, that he was on friendly terms with the deceased, that he is a man of good character, etc.; or, the killing being admitted, he may show that the deceased was assaulting him, or was in the act of adultery with his (defendant's) wife, for under such circumstances the killing would be man- slaughter only. On the prosecution of a woman for assault on a woman living in an adjoining tenement, where the defendant claimed that the injury was inflicted by accident, the state was allowed, for the pur- pose of showing that it was intentional, to prove that the defendant did not, after the injury, in any way interest herself in the injured woman.' So, on a prosecution for homicide, where the defendant sets up self-defense, it may be shown that the defendant had previously threatened the deceased, or that the deceased had threatened the de- fendant, as tending to show which of them began the encounter. = And on the question whether the defendant had reasonable grounds 5 Hodge T. State, 97 Ala. 37, 12 South. 164. « People v. McGuire, 135 N. Y. 639, 32 N. E. 146. 7 State v. Alford, 31 Conn. 40. 8 Campbell v. People, 16 111. 18; Keener v. State, 18 Ga. 194; Stokes v. Peo- ple, 53 N. Y. 174. 606 EVIDENCE. [Ch. 14 to belieye that his life was in danger at the hands of the deceased, it may be shown that the deceased, to the defendant's knowledge, was in the habit of carrying weapons, and was a violent and dan- gerous man.° On the other hand, where, on indictment for murder, the defend- ant contends that he was an ofiQcer, and killed the deceased in over- coming his resistance to the execution of a lawful warrant of ar- rest, the state cannot show that the deceased was not guilty of the offense for which it was sought to arrest him, for the fact of his in- nocence is irrelevant.^" So, on indictment for a murder said to have resulted from the hostile relations of certain clans, it was held not competent to show other murders committed by such clans, nor the fact that armed men were employed to protect the county seat against invasion from them.^^ And, on an indictment for murder, a witness was not allowed to testify that he heard a gun fired about a mile from where the deceased was killed.^'' FACTS NECESSARY TO EXPLAIIf OK INTRODUCE RELE- VANT FACTS. 195. Facts are admissible: (a) If necessary to be known to explain or intro- duce a fact in issue, or relevant to the issue. (b) If they support or rebut an inference sug- gested by any such fact. (c) If they tend to establish or disprove the iden- tity of any thing or person whose identity is in issue, or is relevant to the issue. (d) If they fix the time or place at which any such fact happened. (e) If they show the relation of the parties by w^hom any such fact was transacted. » Horbach v. State, 43 Tex. 242; post, p. 537. 10 Roten y. State, 31 Fla. 514, 12 South. 910. 11 Spurlock V. Com. (Ky.) 20 S. W. 1095. 1* Spurlock y. Com., supra. Ch. 14] MOTIVE. 507 (f) If they afforded an opportunity for its occur- rence or transaction. (g) If they are necessary to be kno-wn in order to sho-wr the relevancy of other facts. Thus, on the question whether a writing published by one per- son of another is libelous or not, the position and relation of the parties at .the time when the libel was published may be shown, as introductory to the facts in issue. On the question whether A. wrote B. an anonymous letter, threat- ening him, and requiring Mm to meet the writer at a certain time and place to satisfy his demand, the fact that A. met B. at that time and place may be shown. The fact that A. had a reason, uncon- nected with the letter, for b^ing at that time at that place, may be shown to rebut the inference suggested by his presence.^' On a prosecution for riot, where the defendant is shown to have marched at the head of a mob, the cries of the mob are admissible as explanatory of the nature of the transaction.^* On the question whether A. poisoned B., the habits of B., known to A., which would afford A. an opportunity to administer the poison, are relevant.^ ^ On the question whether an employ^ has been embezzling from his employer, it may be shown that the defendant lived beyond his means.^° The defendant could show the sources from which he pro- cured money, to rebut the inference arising from this fact MOTIVE. 196. Any fact that sho-ws a motive to commit the crime charged is admissible. Any fact that supplies a motive for commission of the act charged by the defendant tends to render probable the fact that he did commit it, and is therefore relevant.^' 13 Barnard's Case, 19 How. State Tr. 815; Com. v. Brady, 7 Gray (Mass.) 320. " Gordon's Case, 21 How. State Tr. 520. IB Rex V. Donellan, Steph. Dig. Bv. (Chase's Ed.) 21. i»Hackett v. King, 8 Allen (Mass.) 144. "Eex V. Clewes, 4 Car. & P. 221; Com. v. Ferrigan, 44 Pa. St. 386; Com. V. Holmes, 157 Mass. 233, 32 N. E. 6; People v. Hai-ris, 136 N. Y. 423, 33 N. 508 EVIDENCE. [Ch. 14 Thus, on an indictment for murder, the fact that the deceased, 25 years before the murder, murdered a man at the instigation of the defendant, and that the defendant at or before that time used expressions showing malice against the man so murdered, are ad- missible as showing a motive on the defendant's part to commit the crime charged.^* For the same reason it may be shown that the de- fendant had been living in adultery with the wife of the deceased,^' or that the deceased had instituted a criminal prosecution against the defendant, in consequence of which the defendant had made threats against the deceased, or otherwise shown ill will towards him."* And on indictment for wife murder, it may be shown that the de- fendant had previously assaulted, or ill treated, or quarreled with, or separated from, the deceased.''^ So, on indictment for wife mur- der by poisoning, it may be shown that the defendant stated that he had been secretly married to another woman, since it tends to show that the marriage was bigamous, and bears on the question of mo- tive; "" and, for the same reason, unlawful relations between the defendant and another woman may be shown."* And, on indict- ment for fratricide, it may be shown that the defendant was disin- herited by his father's will, while the deceased was amply provided for; and that on a contest of the wiU, shortly before the homicide, the taking of the deceased's deposition was objected to by the de- fendant, and the hearing continued."* So, on an indictment of a bookkeeper of a bank for larceny of El 65; Sayres v. Com., 88 Pa. St. 291; Com. v. Webster, 5 Cush. (Mass.) 295; Perrln v. State, 81 Wis. 135, 50 N. W. 516; State v. Dickson, 78 Mo. 438; State r. Cohn, 9 Nev. 179. 18 Eex V. Clews, 4 Car. & P. 221. And see Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26. i» Com. V. Ferrlgan, 44 Pa. St. 386; Pate v. State, 94 Ala. 14, 10 South. 665; Pierson v. People, 79 N. Y. 424; Reinhart v. People, 82 N. Y. 607. 20 Hodge V. State, 97 Ala. 37, 12 South. 164; Butler v. State, 91 Ga. 161, 16 S. E. 984; Martin v. Com. (Ky.) 19 S. W. 580; Franklin v. Com. (Ky.) 18 S. W. 532. 21 Com. v. Holmes, 157 Mass. 233, 32 N. E. 6; Hall v. State, 31 Tex. Cr. R. 565, 21 S. W. 368; Painter v. People, 147 111. 444, 35 N. B. 64. 22 People T. Harris, 136 N. Y. 423, 33 N. E. 65. 2s Johnston v. State, 94 Ala. 35, 10 South. 667; Wilkerson v. State, 31 Tex. Cr. R. 86, 19 S. W. 903. 2* State V. Ingram, 23 Or. 434, 31 Pac. 1049. Gh. 14]i PEEPAEATION FOE ACT. 609 money, testimony that the money stolen was not the bank's, but be- longed to a third person, who had placed it there for safe-keeping, and that the defendant was, and had been for some months prior to the larceny, a defaulter to the bank, and had falsified the books to conceal the fact, is admissible for the purpose of showing a possi- ble motive for the larceny in the desire to pay back to the bank the amount of the defalcations.^" And on indictment for arson it may be shown that the defendant had taken out heavy insurance on the building burned.^' PBEPARATION FOR ACT. 197. Any fact which, shows preparation by the defend- ant for the act charged is admissible. Evidence tending to show that the defendant made preparations to commit the act charged is relevant, for it tends to render proba- ble the fact that he did commit it Thus, the fact that the defend- ant before the commission of the crime procured or possessed the instruments, or instruments like those, with which the crime was committed, may be shown.^' On indictment for murder by shooting, it may be shown that be- fore the killing the defendant and his alleged accomplice practiced shooting at a mark; "* or that, about 30 minutes before the shoot- ing, the defendant, with his hat pulled down over his face, ap- proached and touched his alleged accomplice, and that thereupon both walked off towards the place where the murder was commit- ted." So, on a prosecution for homicide, previous threats of the de- fendant to kill the deceased may be shown.'" 2 8 Perrin v. State, 81 Wis. 135, 50 N. W. 516. 28 State v. Cohn, 9 Npv. 179. 27 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 15; Com. v. Blair, 126 Mass. 40; Colt v. People, 1 Parker, Or. R. (N. Y.) 611; Com. v. Roacli, 108 Mass. 289. 28 People V. McGuire, 135 N. Y. 639, 32 N. E. 146. 29 Rodriquez v. State, 32 Tex. Cr. E. 259, 22 S. W. 978. 80 Com. V. Goodwin, 14 Gray (Mass.) 55; State v. Hoyt, 46 Conn. 330; Redd v. State, 68 Ala. 492. 610 EVIDENCE. [Ch. 14 SUBSEQUENT CONDUCT OR CONDITION OP DEFENDANT. 198. Any conduct or condition of the defendant subse- quent to the act charged, apparently influenced or caused by the doing of the act, and any act done in consequence of it, by or by the authority of the defendant, may be shown. But self-serving acts cannot be shown, by the defendant. The fact that the defendant, after the alleged crime, caused cir- cumstances to exist tending to give to the facts of the case an appear- ance favorable to himself; ^^ that he destroyed or concealed things or papers which might criminate him, or prevented the presence, or procured the absence, of persons who might have been witnesses,^' or suborned persons to give false testimony; ^^ or that he fled or concealed himself or otherwise attempted to escape, or resisted ar- rest,'* or made false statements as to his movements at or about the time of the crime, or as to other material facts,''' or after the crime had possession of the fruits of the crime, as of the property »i R. V. Patch, Steph. Dig. Ev. (Chase's Ed.) 15; Gardiner v. People, 6 Parker, Or. R. (N. Y.) 157; State v. Williams, 27 Vt. 226; Com. v. Webster, 5 Cush. (Mass.) 295. 32 Adams v. People, 9 Hmi (N. Y.) 89 33 State V. Williams, supra; Donohue v. People, 56 N. Y. 208. 34 Jamison v. People, 145 111. 357, 34 N. E. 486; Cummis v. People, 42 Mich. 142; Com. v. ToUiver, 119 Mass. 312; Fox v. People, 95 III. 71; Ryan v. Peo- ple, 79 N. Y. 593; Horn v. State (Ala.) 15 South. 278; State v. Mallon, 75 Mo. 355; State v. Taylor (Mo. Sup.) 22 S. W. 806. Or to escape from jail after arrest. Ryan v. State, 83 Wis. 486, 53 N. W. 836; Elmore v. State, 98 Ala. 12, 13 South. 427; State v. Howell, 117 Mo. 307, 23 S. W. 263; State v. Hob- good (La.) 15 South. 406. Aiding escape of accomplice. People v. Rathbun, 21 Wend. (N. Y.) 509. Living under assumed name in another state. State V. Whitson, 111 N. 0. 693, 16 S. E. 332. Possession of instruments to effect escape from jalL State v. Duncan, 116 Mo. 288, 22 S. W. 699. As to ex- planation of his conduct by the defendant, see Taylor y. Com. (Va.) 17 S. E. 812; Lewellen v. State (Tex. Cr. App.) 26 S. W. 832. 3s state V. Bradley, 64 Vt. 466, 24 Atl. 1053; Com. v. Johnson, 162 Pa. St 63, 29 Atl. 280; Com. v. Goodwin, 14 Gray (Mass.) 55. Ql. 14] STATEMENTS IN THE PRESENCE OF DEFENDANT. 511 stolen after a burglary, larceny, or robbery,'" or his attempt to dis- pose or disposition of it,''^ — may be shown against him. The defendant cannot show self-serving acts before or subse- quent to the crime, for this would permit him to make evidence for himself. Thus, on indictment for murder, the defendant cannot show that he went to the house of deceased and offered to wait on him," or that he offered to surrender himself.'" Silence of the defendant when charged with a crime is elsewhere considered.*" STATEMENTS ACCOMPANYING ACTS. 199. Whenever any act may be proved, statements ac- companying and explaining that act, made by or to the person doing it, may be proved, if they are necessary to understand it. Thus, where the question was whether a person was insane, and the fact that he acted upon a letter received by him was part of the facts in issue, the contents of the letter were held admissible as statements accompanying and explaining his conduct.** STATEMENTS IN THE PBESENCE OF DEFENDANT. 200. "When the defendant's conduct is in issue, or is relevant to the issue, statements made in his presence and hearing, by which his conduct is likely to be af- fected, are admissible. • 38 Stover V. People, 56 N. Y. 315; State v. Brewster, 7 Vt 122; State v. Hodge, 50 N. H. 510; Com. v. Parmenter, 101 Mass. 211. Provided the fact of such possession is not so long after the crime, or accompanied by such cir- cumstances, as to render it immaterial. Sloan v. People, 47 111. 76; Jones v. State, 26 Miss. 247. 87 Foster v. People, 63 N. Y. 619. 38 state V. Whitson, 111 N. 0. 695, 16 S. B. 332. s» State V. Smith, 114 Mo. 406, 21 S. W. 827. See State v. Wilkins, 66 Vt 1, 28 Atl. 323. *o Post, p. 512. 41 Steph. Dig. Ev. (Chase's Ed.) 19. 512 EVIDENCE. [Ch. 14 If a statement made in the hearing of a person is such that, if false, he would naturally deny it, his silence and acquiescence tend to show that the facts stated are true.*'' So, if a person is accused of a crime, and does not deny it, or if he allows a statement im- puting a crime to him to go unanswered, the statement and his conduct, including his silence if he does not answer, or his reply if he does, may be shown on his prosecution for the crime.* ^ The statement must have been made in his hearing, and must have been understood by himj ** and it must have been such a statement, and made under such circumstances, that he could and should have replied, *° — or his silence cannot be regarded as raising any inference against him. Some courts hold that a person when under arrest is not called upon to deny charges, and that his silence when accused under such circumstances cannot be used against him.*" Of course, it is always open for him to explain his silence and rebut the inference arising from it.*^ CONDUCT AND COMPLAINT BY PERSON INJURED. 201. In prosecutions for rape, the conduct of the 'woman, and particularly the fact that she made complaint after {according to some of the cases soon after) the crime was committed, may be sho^wn; but the particulars of the complaint are not admissible. *2 State V. Wilkins, 66 Vt. 1, 28 Atl. 323. 43 Rex V. Edmunds, 6 Car. & P. 164; Com. v. Bralley, 134 Mass. 527; Kelley V. People, 55 N. Y. 565; Com. v. Brown, 121 Mass. 69; State v. Bradley, 64 Vt 466, 24 Atl. 1053; Com. v. Trefethen, 157 Mass. ISO, 31 N. E. 961; Brown V. State, 32 Tex. Cr. R. 119, 22 S. W. 596; State v. Belknap (W. Va.) 19 S. E. 507. 44 Lanergan v. People, 39 N. Y. 39; Com. v. Sliney, 126 Mass. 49. 4 5 BeU V. State (Ga.) 19 S. E. 244; Broyles v. State, 47 Ind. 251; People v. Willett, 92 N. Y. 29; Com. v. Walker, 13 Allen (Mass.) 570; KeUey v. People, 55 N. Y. 571; Slatteiy v. People, 76 111. 217; Bob v. State, 32 Ala. 560. As where he was under arrest, or the statement was made in court, or he had promised to keep silent, etc. 4 6 Com. V. McDermott, 123 Mass. 440; Com. v. Kenney, 12 Meta (Mass.) 285. Contra, Kelley v. People, 55 N. Y. 565; Murphy v. State, 36 Ohio St 628. ■47 Slattery v. People, supra. Cb- 14] KES GESTAE. 613 This rule probably does not apply in any other cases than those of rape, unless the acts or complaint are done or made so soon after the crime that they may be considered a part of the res gestae; " but it is well settled that the rule applies in cases of rape.^^ The evidence is admitted only in corroboration of the tes- timony of the woman, and it seems that unless she testifies it is not admissible/" The evidence is in most, but not all, states, con- fined to the fact of complaint, and the state cannot prove the terms or particulars, — that is, what she said, — unless it can do so as part of the res gestae. °^ Some of the cases require that the complaint shall have been made soon after the crime, and this would seem to be a good rule.°^ Other courts do not place this restriction on the competency of the evidence, but leave the delay to be considered by the jury in weigh- ing the evidence."* RES GESTAE. 202. Every fact which is part of the same transaction as the facts in issue is to be deemed relevant to the facts in issue, although it may not be actually in issue, and although, if it -w^ere not part of the same transaction, it *8 Haynes v. Com., 28 Grat. (Va.) 942. *8 State V. Bedard, 65 Vt. 2T8, 26 Atl. 719; State v. Langford, 45 La. Ann. 1177, 14 South. 181; Baccio v. People, 41 N. Y. 265; State v. Knapp, 45 N. H. 148; State v. Warner, 74 Mo. 83; Johnson v. State, 17 Ohio, 593; Poison v. State (Ind. Sup.) 35 N. E. 907; State v. Xocum, 117 Mo. 622, 23 S. W. 765; Proper v. State, 85 Wis. 615, 55 N. W. 1035; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481; Kirby v. Territory (Ariz.) 28 Pae. 1134. BO See Hombeck v. State, 35 Ohio St. 277. 81 See the cases above cited, and see Higgins v. People, 58. N. Y. 377; Stat« V. Langford, supra; State v. Ivins, 36 N. J. Law, 233; State v. Fitzsimmen (R. I.) 27 Atl. 446; Thompson .v. State, 38 Ind. 39; OastUIo v. State, 31 Tex. App. 145, 19 S. W. 892; People v. Stewart, 97 Cal. 238, 32 Pac. 8. Contra, State V. Kinney, 44 Conn. 153; Burt v. State, 23 Ohio St 394. 52 Richards v. State, 36 Neb. 17, 53 N. W. 1027; People v. Loftus (Sup.) 11 N. Y. Supp. 905. 03 state v. Mulkern, 85 Me. 106, 26 Atl. 1017; State v. NUes, 47 Vt. 82; State V. Byrne, 47 Conn. 465. CMM.PKOC. — 33 514 EVIDENCE. [Ch. 14 might be excluded as evidence of another crime, or as hearsay. Facts ■which are thus a part of the same trans- action are said to be admissible as part of the res gestae. Facts which are not themselves in issue, but which are part of the same transaction as the facts in issue, or, as it is generally ex- pressed, part of the res gestae, are admitted because they explain or qualify the facts in issue, though, if they were not part of the same transaction, they might be excluded as hearsay, or might, though relevant, be excluded by some other arbitrary rule of law.''* Thus, on trial for murder of a police officer while repelling an •attack from associates of a man in his custody, whom he had arrested half an hour before, as one of a number of men engaged in firing guns in a public place, evidence that the accused had been among the men so engaged is admissible as part of the res gestae."' So, where, on a trial for murder, the evidence shows that the defendant fired the fatal shot while making an assault, with two 'Companions, on a dwelling occupied by the deceased, the state may prove that during the affray one of the defendant's companions, using the defendant's pistol, shot at and wounded another per- son."" Other Crimes. When a man is being tried for one crime, the state cannot prove the commission by him of another crime, in no way connected with the crime charged."^ But if the other crime was committed as part of the same transaction, and tends to explain or qualify the fact in issue, it may be shown."' Thus, on indictment for murder, evi- dence that the defendant, immediately after shooting the deceased, proceeded to shoot at and threaten the mother of the deceased, 04 Com. V. Costley, 118 Mass. 1; Lander v. People, 104 111. 248; Com. v. Densmore, 12 Allen (Mass.) 535; People v. Davis, 56 N. Y. 102; Eighmy v. People, 79 N. Y. 540; Little v. Com., 25 Grat. (Va.) 921. BO State V. Donelon, 45 La. Ann. 744, 12 South. 922. Bs People V. Parker, 137 N. Y. 535, 32 N. E. 1013. B7 Post, p. 510. 5 8 Hargrove v. State (Tex. Cr. App.) 20 S. W. 993; Davis v. State, 32 Tex. Cr. R. 377, 23 S. W. 794. Ch. 14] EES GESTAE. 515 who was present and witnessed the killing, is admissible as part of the res gestae to show the animus of the defendant."" So, on a prosecution for obtaining money by false pretenses, where it appears that about the time of the offense the defendant induced the prosecuting witness to invest another sum of money in bonds which she was afterwards informed by letters were worth- less, and that she showed the letters to the defendant, who re- fused an explanation, such letters are admissible, as part of the res gestae, to show the defendant's intent to defraud."" The other crime, however, must be a part of the same transac- tion.*^ Hearsay. Ordinarily, declarations are inadmissible as hearsay,'* but dec- larations which form part of the res gestae are admissible.*' Thus, on indictment for burglary, the complaining witness may testify that she gave the alarm, and told a police oflflcer the direc- tion she thought the burglar had taken in leaving the house.'* And, on indictment for robbery, descriptions of the offender given by eyewitnesses immediately after the robbery have been admitted as part of the res gestae.*" And, on prosecution for murder while resisting arrest, a remark of a bystander to an officer that "there is the man that did it" (that is, committed the offense for which the arrest was being made) is admissible.** On a prosecution for murder, it may be shown that a person in the room with the de- ceased when he was shot saw a man with a gun pass a window, and thereupon exclaimed, "There's Butcher!" (a name by which the 09 Killins V. State, 28 Fla. 313, 9 South. 711. And see State v. Gainor, 84 Iowa, 209, 50 N. W. 947; Wilkerson v. State, 31 Tex. Or. App. 86, 19 S. W. 903; Johnson v. State, 88 Ga. 203, 14 S. B. 208; Com. v. Scott, 123 Mass. 222; People V. Mead, 50 Mich. 228, 15 N. W. 95; Hargrove v. State (Tex. Cr. App.) 26 S. W. 993. 80 People V. Lewis (Sup.) 16 N. Y. Supp. 881. 61 People V. Lane, 100 Gal. 379, 34 Pac. 856; post, p. 517. «2 Post, p. 523. «3 Post, p. 524; People v. Stanley (Mich.) 59 N. W. 498. oi State V. Moore, 117 Mo. 395, 22 S. W. 1086. «5 Jordan v. Com., 25 Grat. (Va.) 943. 88 State V. Duncan, 116 Mo. 288, 22 S. W. 699. 616 EVIDENCE. [Ch, 14 defendant was known).* ^ On indictment for manslaugliter by care- lessly driving over the deceased, a statement made by the deceased, as to the cause of his accident, as soon as he was picked up, was allowed to be proved, though it was not a dying declaration.'* And, on a prosecution for murder, a statement made by the defend- ant a few minutes after the homicide, and near the place, and in the presence and hearing of eyewitnesses of the homicide, who were not introduced as witnesses by the state, should be" admitted, at the instance of the defendant, as part of the res gestae."® The declaration must be part of the same transaction. Thus on the prosecution of a physician for killing a woman in attempting to procure an abortion, a statement, made by the woman after re- turning home from the defendant's oflBce, as to what the defendant had said and done there, was excluded.'" OTHER CRIMES. 203. Evidence of another crime than that charged is only admissible in the following cases: (a) Where it falls within one of the rules heretofore stated, it is admissible. (b) Where it shows the existence at the time of the crime charged of any intention, knowledge, good or bad faith, malice, or other state of 97 R. V. BowKes, Steph. Dig. Bv. (Chase's Ed.) 9; Bedingfleld's Case, 14 Am. Law Rev. 817, 15 Am. Law Rev. 1, Yl. 68 Rex V. Foster, 6 Car. & P. 325. On an indictment against A. for murder by stabbing, a declaration by tbe deceased, made immediately after the mortal wound was inflicted, that "A. has stabbed me," is admissible as part of the res gestae. Com. v. Hackett, 2 Allen (Mass.) 136. And see Com. v. M'Pilie, 3 Gush. (Mass.) 184; Pilcher v. State, 32 Tex. Cr. R. 557, 25 S. W. 24; People V. Simpson, 48 Mich. 474, 12 N. W. 662. But see Reg. v. Bedingfield, 14 Cox, Cr. Cas. 341, in which it was held, on indictment of A. for cutting B.'s throat, where the question was whether A. or B. himself did the cutting, a statement by B. when running out of the room immediately after the act was done was not allowed to be proved. 60 Little V. Com., 25 Grat. (Va.) 921. 7 People V. Davis, 56 N. T. 95. And see People v. Newton, 96 Mich. 586, 56 N. W. 69; Shoecraft v. State (Ind. Sup.) 36 N. E. 1113, Ch. 14] • OTHER CRIMES. 517 mind, the existence of whicli is in issue or is relevant to the issue. But other crimes cannot be proved merely in order to show that the de- fendant was likely to commit the crime charged, (c) When there is a question whether the act charged w^as accidental or intentional, the fact that such act formed part of a series of similar occur- rences, in each of which the defendant w^as con- cerned, is admissible. This is called the proof of facts showing system. It is well settled that on a prosecution for one crime it cannot be shown that the defendant on another occasion committed another crime, even though it may be a crime of the same sort,'^ unless the case falls within one of the exceptions hereafter stated. Rules Heretofore Stated, If evidence of another crime is admissible under any of the rules heretofore stated, it is not rendered inadmissible merely because it shows the commission of another. Where evidence offered tends to prove commission of the crime charged, it is not inadmissible be- cause it also tends to prove the commission by the defendant of an- other crime.'' ^ Evidence of another and distinct crime is admissible if it was committed as part of the same transaction, and forms part of the res gestae. On indictment for murder, for instance, it may be shown that the defendant, immediately before or at the time of the murder, robbed the deceased, or that he killed or attempted to kill a bystander.'* Ti R. v. Cole, Steph. Dig. Ev. (Chase's Ed.) 24; Holder v. State, 58 Ark. 473, 25 S. W. 279; Chaffin v. State (Tex. Cr. App.) 24 S. W. 411; People v. Gibbs, 93 N. y. 470; State v. Young, 119 Mo. 495, 24 S. W. 1038; Com. v. Campbell, 7 Allen (Mass.) 541; ShafCner v. Com., 72 Pa. St. 60; People v. Lane, 100 Cal. 379, 34 Pac. 856? State v. Bates (La.) 15 South. 204; State v. Kelley, 65 Vt. 531, 27 Atl. 203. 7 2 State v. Madlgan (Minn.) 59 N. W. 490; Moore v. U. S., 150 U. S. 57, 14 Sup. Ot. 26; Horn v. State (Ala.) 15 South. 278; State v. Phelps (S. D.) 59 N. W. 471; Frazier v. State, 135 Ind. 38, 34 N. E. 817. T» Hargrove v. State (Tex. Cr. App.) 26 S. W. 993; Com. v. Scott, 123 Mass. 518 EVIDENCE. [Ch. 14 Again, if the commission of tlie other crime supplies a motive for the crime charged it may be proved.''* And it may be proved if it shows preparation for the crime char- ged/^ or if it constitutes conduct subsequent to the crime charged, and was apparently influenced thereby.''* Acts Showing Intention, Knowledge, Good Faith, etc. Whenever the existence of any particular intention, knowledge, good or bad faith, malice or other state of mind is in issue, and the commission of another crime tends to prove its existence, the other crime may be shown.''' The evidence is admitted for this pur- pose only, and not to show that the defendant was likely to commit the crime in question. For the latter purpose it is never admissible. On indictment for receiving stolen goods from a certain person, it has been held that it cannot be shown that the defendant at other times received stolen goods from other persons,'* but it may be shown that at other times he received other stolen goods from the same person, for the purpose of showing his knowledge that the goods in question had been stolen.'" So where the defendant is charged with uttering a forged instrument or counterfeit coin, knowing it to be counterfeit, it may be proved, for the purpose of showing the guilty Imowledge, that before and after the act charged he uttered counterfeit coin or forged instruments.*" And on an ac- 222; People v. Mead, 50 Mich. 228, 15 N. W. 95; ante, p. 514, and cases there cited. 7* Ante, p. 507; Painter v. People, 147 111. 444, 35 N. B. 64; People v. Dailey (N. Y. App.) 37 N. E. 823; Pierson v. People, 79 N. Y. 424; Com. v. Choate, 105 Mass. 458; Com. v. Ferrigan, 44 Pa. St. 386. T5 Ante, p. 509; State v. Fitzsimmons (K. I.) 27 Atl. 446; Com. v. Choate, 105 Mass. 458; Hope v. People, 88 N. Y. 418; People v. Wood, 3 Parker, Cr. E. (N. Y.) 681. 76 Ante, p. 510. 7 7 Dunn's Case, 1 Moody, Crown Cas. 146; People v. Shulman, 80 N. Y. 373, note; Copperman v. People, 56 N. Y. 591; Com. v. Bradford, 126 Mass. 4-2; Com. v. Jackson, 132 Mass. 16; Kramer v. Com., 87 Pa. St 299. 78 Coleman v. People, 55 N. Y. 81. 7 9 Dunn's Case, supra; Copperman v. People, 56 N. Y. 591. 80 Reg. V. Francis, L. R. 2 Crown Cas. 128: Reg. v. Cooper, 1 Q. B. Div. 19; Com. V. Coe, 115 Mass. 481; Langford v. State, 33 Fla. 233, 14 South. 815; Mayer v. People, 80 N. Y. 364; Anson y. People, 148 111. 494, 35 N. E. 145. Ch. 14] OTHER CRIMES. 519 tion or indictment for libel, other defamatory statements published by the defendant concerning the same person are admissible to show malice.'^ On indictment for murder it is always competent to show previous assaults or attempts by the defendant to kill the deceased for the purpose of rebutting the defense of accident, or self-defense, and to show the necessary malice aforethought.^^ And generally, for the purpose of showing a criminal intent or malice, previoiis attempts by the defendant to commit the same crime may be shown. Thus on indictment under a statute for maliciously burning a build- ing, or at common law for arson, it may be shown that the defend- ant had set fire to the same building three days before.^' Facts Showing System. When there is a question whether the act charged was accidental or intentional, the fact that the act formed part of a series of simi- lar acts, in each of which the defendant was concerned, is relevant, and the similar acts may be shown though they constitute separate crimes. The fact of system thus shown tends to prove that the act in question was not accidental but intentional.** Thus on indict- ment for setting fire to a house in order to obtain the insurance, it may be shown that the defendant had previously lived in two other houses successively, each of which he insured, in each of which a fire occurred, and that after each of these fires the defendant received payment from a different insurance office, since this tends to show that the fires were not accidental.*" On indictment for forgery and embezzlement it appeared that the defendant had been employed by the prosecutor to pay the wages of the latter's laborers, and that it was his duty to make entries in a book showing the amounts paid by him, and he made an entry show- ing that on a particular occasion he paid more than he really did pay. On the question whether the false entry was accidental or inten- 81 Barrett v. Long, 3 H. L. Cas. 414; State v. Riggs, 39 Conn. 498. 82 Painter v. People, 147 111. 444, 35 N. E. 64. 83 Com. v. Bradford, 126 Mass. 42; Com. v. McCarthy, 119 Mass. 354; Kra- mer v. Com., 87 Pa. St. 299. 8* Reg. v. Gray, 4 Fost. & F. 1102; People v. Wood, 3 Parker, Cr. R. (N. X.> 681; People v. Tomlinson (Cal.) 36 Pac. 506; State v. Lapage, 57 N. H. 245„ 294; State v. Walton, 114 N. C. 783, 18 S. E. 945. 8 6 Reg. V. Gray, supra. 520 EVIDENCE. [Ch. 14 tional it was held competent to show that for a period of two years the defendant made other similar false entries in the same book, the false entry in each case being in his favor.*^ On indictment of a woman for poisoning her husband in Sep- tember, 1848, where the question was whether the poison was ac- cidentally or intentionally administered, it was held competent to show that the deceased's three sons had the same poison admin- istered to them in December, 1848, March, 1849, and April, 1849, and that the meals of all four were prepared by the defendant, though the defendant was separately indicted for murdering the sons.*^ ACTS AND DECLARATIONS OF CONSPIBATOES. 204. When two or more persons conspire to commit any offense, everything said, done, or -written by one of thenx in tlie execution or furtherance of their common purpose is admissible as against each of them. 205. But statements by one conspirator as to meas- ures taken, or acts done, in the execution or further- ance of such common purpose, are not admissible as such as against any of the others unless made in their presence. So a confession made by one conspirator after the conspiracy \tras ended is not admissible against an- other, -when not made in his presence. 206. Evidence of acts or statements admissible under these rules cannot be given unless, apart from them, the existence of the conspiracy is prima facie proved. When two or more persons conspire together to commit any offense, each makes the other his agent for the execution of their common purpose, and every act, or oral or written declaration, done or made by one of them in the execution or furtherance of this purpose is deemed to be done or made by all of them, and is there- 86 Reg. V. Richardson, 2 Fost. & F 343. 67 Reg. V. Geering, 18 Law J. M. Gas. 215. Ch. 14] ACTS AND DECLARATIONS OF CONSPIRATORS. 521 fore admissible against each.** But declarations by one of tlie conspirators, not in execution or furtherance of the common pur- pose, but merely as a narrative of past acts or measures done or taken in the execution or furtherance of such purpose cannot be deemed the acts or declarations of all, and are not admissible except against those who did or made them, or in whose presence they were done or made.*' Thus where the question was whether two persons conspired together to cause certain imported goods to be passed through the customhouse on payment of too small an amount of duty, the fact that one of them had made in a book a false entry, necessary to be made in order to carry out the fraud, was held admissible against the other; but the fact that he had made an entry on his check book showing that he had shared the proceeds of the fraud with the other was held not to be admissible against the latter.*" So where the question was whether the defendant committed high treason, the overt act charged being that he presided over an organized political agitation calculated to produce a rebellion, and directed by a central committee through local committees, the facts that meetings were held, speeches delivered, and papers circulated in different parts of the country, in a manner likely to produce rebellion by, and by the direction of, persons shown to have acted in concert with the defendant, were held admissible against the defendant, though he was not present at those trans- actions, and took no part in them personally; but an account given by one of the. conspirators in a letter to a friend, of his own proceed- 88 Reg. V. Blake, 6 Q. B. 137; Rex v. Hardy, 24 How. State Tr. 451; Amer- ican Fnr Co. v. U. S., 2 Pet. 358; WiUiams v. State, 47 Ind. 568; Com. v. Scott, 123 Mass. 222; Com. v. Brown, 130 Mass. 279; Com. v. O'Brien, 140 Pa. St. 555, 21 Atl. 385; People v. Collins (Cal.) 30 Pac. 847; Seville v. State, 49 Ohio St. 117, 30 N. E. 621; State v. DufCy (Mo. Sup.) 27 S. W. 358. And as against conspirator joining after the acts were done or declarations made. Baker v. State, 80 Wis. 416, 50 N. W. 518; State v. Crab (Mo. Sup.) 26 S. W. 548. Threats by one conspirator on prosecution for murder. State v. Phillips, 117 Mo. 389, 22 S. W. 1079. Acts and declarations of employes of conspirator. State V. Grant, 86 Iowa, 216, 53 N. W. 120. 80 Reg. V. Blake, supra; Bex v. Hardy, supra; Logan v. tJ. S., 144 U. S. 2C3, 12 Sup. Ct 617; People v. Davis, 56 N. Y. 95; Heine v. Com., 91 Pa. St. 145. BO Reg. V. Blake, supra. 622 EVIDENCE. [Ch. 14 ings in the matter, not intended to further the common object, and not brought to the defendant's notice, was held inadmissible."^ Confessions or declarations made by one of the conspirators after the object of the conspiracy is abandoned or accomplished, not being declarations in the execution or furtherance of such object, are not admissible against the others when not made in their presence."" And, of course, declarations made or acts done by one conspirator before any conspiracy at all, and not ratified by the other, are not admissible against the latter."' To render acts or declarations of one person admissible against another under this rule, the court must be first satisfied that, apart from them, there are prima facie grounds for believing in the exist- ence of the conspiracy."* The conspiracy need not be shown by direct evidence as to the unlawful agreement. It is suflQcient to make out a prima facie showing by circumstantial evidence." ° The court will generally require such a showing before admitting evi- dence of the acts or declarations, but they may, in the discretion of the court, be admitted on the promise of the prosecuting attor- ney to afterwards show the conspiracy, and afterwards excluded on his failure to do so."® 91 Rex V. Hardy, supra. 02 Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37; State v. Grant, 86 Iowa, 216. 53 N. W. 120; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Com. v. Ingraham, 7 Gray (Mass.) 46; State v. Ross, 29 Mo. 32; State v. Donelon, 45 La. Ann. 744, 12 South. 922; Cable v. Com. (Ky.) 20 S. W. 220; State v. Minton, 116 Mo. 605, 22 S. W. 808; State v. Green, 40 S. C. 328, 18 S. E. 933; People v. Stevens, 47 Mich. 411, 11 N. W. 220; Gore v. State, 58 Ala. 391. Flight of one conspirator is not admissible as evidence against the others. People v. Stanley, 47 Cal. 113. 93 state V. Grant, supra; McGraw v. Com. (Ky.) 20 S. W. 279; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617; State v. Melrose, 98 Mo. 594, 12 S. W. 250; State V. Hilderbrand, 105 Mo. 318, 16 S. W. 948. 94 Crosby v. People, 137 111. 325, 27 N. E. 49; Ormsby v. People, 53 N. T. 472; McGraw v. Com. (Ky.) 20 S. W. 279; Amos v. State, 96 Ala. 120, 11 South. 424; Baker v. State, 80 Wis. 416, 50 N. W. 518; Belcher v. State, 125 Ind. 419, 25 N. E. 545; PofC v. Com. (Ky.) 25 S. W. 883; Jones v. State, 58 Ark. 390, 24 S. W. 1073. 9 5 Smith V. State (Tex. Cr. App.) 20 S. W. 576; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Kelley v. People, 55 N. Y. 565. 9 Hall V. State, 31 Fla. 170, 12 South. 449; Hamilton v. People, 29 Mich. 195; State v. Grant, 86 Iowa, 216, 53 N. W. 120; State v. Flanders, 118 Mo. 227, 23 S. W. 1086. Ch. 14] DECLARATIONS OF PERSONS OTHER THAN DEFENDANT. 623 HEABSAT. 207. Hearsay evidence is the testimony given by a -vrit- ness -who relates, not w^hat he knows personally but -wrhat others have told him, or -what he has heard said by oth- ers, and is admissible only in exceptional cases. DECLARATIONS OF PERSONS OTHER THAN DEEENDANT. 208. Declarations by persons other than the defendant cannot be proved, (a) Unless they are part of the res gestae, or (b) Unless they are admissible as dying declarations,^ or (c) Unless they are adraissible as declarations by au- thority of the defendant,'* or (d) Unless they are admissible as evidence given in a former proceeding.^ It Is only in very exceptional cases that the declarations of a third person can be shown. To prove the facts, the person himself must be called as a vritness to testify as to the facts.^°° Thus it is error in a criminal case to admit the cry of a third person, "There he goes!" referring to the defendant, when the ofl&cer went out to arrest him, since, if the person making the declaration saw the defendant, he should be placed on the stand to testify to that fact.^"^ So on an indictment for larceny it is not competent to prove state- ments of the owner of the property to the ofScer who made the 9T Post, p. 525. 8 Post, p. 52T. 89 Post, p. 532. 10 u. S. y. Wilson, 60 Fed. 890; Sanders v. State, 31 Tex. Cr. R. 525, 21 S. W. 258; Davis v. State, 32 Tex. Cr. R. 377, 23 S. W. 796; Bedford v. State, 36 Neb. 702, 55 N. W. 2C3; People v. Newton, 96 Mich. 586, 56 N. W. 69; Shoe- craft V. State (Ind. Sup.) 36 N. E. 1113; State v. Dukes, 40 S. C. 481, 19 S. E. 134. 101 Evers v. State, 31 Tex. Cr. R. 818, 20 S. W. 744. 524 EVIDENCE. [Ch. 14 arrest.^"* And on indictment for murder, or assault and battery, statements made by the person killed or assaulted, not so soon after the offense that they can be regarded as part of the res gestae, and not being dying declarations, cannot be proved.^"^ SdJ-Accusing Declarations of Third Persons. Under this rule the defendant cannot prove self-accusing declara- tions or confessions of third persons to show that they, and not he, committed the crime charged.^"* And it makes no difference that the person making the declaration has since escaped or died.^"' Ees Gestae. There is an exception to this rule where the declaration forms a part of the res gestae. Thus, on a prosecution for murder commit- ted while resisting arrest, a remark of a bystander to an offtcer that "there is the man that did it',' (i. e. committed the offense for which the arrest was being made), was held admissible on this ground.^"' And on a prosecution for murder, declarations made by the deceased during the affray in which he was killed, though not dying declara- tions, are admissible as part of the res gestae.^"* And on indict- ment for assault with intent to kill, the wife of the person assaulted was allowed to testify as to what her husband told her about the assault immediately after his return home from the scene of it, a dis- tance of a mUe and a quarter, and while suffering from the wounds there inflicted.^"® This question has already been considered, and some of the cases collected, in another place.* ^'' 102 Boiling V. State, 98 Ala. 80, 12 South. 782. 10 3 People V. Wong Ark, 96 Oal. 125, 30 Pac. 1115; State v. Daugherty, 17 Nev. 376, 30 Pac. 1074; State v. Raven, 115 Mo. 419, 22 S. W. 376. 104 State V. West, 45 La. Ann. 928, 13 Soutli. 173; State v. Duncan, 116 Mo. 288, 22 S. W. 699; Welsh v. State, 96 Ala. 92, 11 South. 450; State v. Fletcher, 24 Or. 295, 33 Pac. 575; Horton v. State (Tex. Cr. App.) 24 S. W. 28; State v. Hack, 118 Mo. 92, 23 S. W. 1089. lOB State V. West, 45 La. Ann. 14, 12 South. 7; Davis v. Com. (Ky.) 23 S. W. 585. 107 state V. Duncan, 116 Mo. 288, 22 S. W. 699. 10 8 state V. Henderson, 24 Or. 100, 32 Pac. 1030r 100 Moore v. State, 31 Tex. Or. R. 234, 20 S. W. 563. This case probably goes too far. See People v. Wong Ark, 90 Oal. 125, 30 Pac. ni5. 110 Ante, p. 515. Ch. 14] DYING DECLARATIONS. 625 DYING DECLAEATIONS. 209. In prosecutions for homicide, a statement made by the deceased as to the cause of his death, or as to any of the circumstances of the transaction w^hich re- sulted in his death, is admissible, if it appears to the satisfaction of the judge that ■when the statement -was made the deceased -was in actual danger of death, and had given up all hope of recovery. 210. The deceased must have been competent as a ^t- ness, and the facts stated must be such that he could have testified to them. Dying declarations are admissible under the circumstances above stated,^^^ but not otherwise. In the first place, they are only ad- missible in a prosecution for causing the death of the declarant. They would not be admissible in a prosecution for any other of- fense.*^" The dying declaration of A. that he murdered B. would not be admissible on a prosecution of 0. for murdering B.^^* If the deceased would have been incompetent to testify as a wit- ness, his statement is not admissible.^^* ■ Nor is the statement ad- missible if the facts stated are such as could not have been testi- fied to by him, as where they are hearsay, or matter of opinion, or altogether irrelevant.^^" But the fact that the deceased was solic- ited and urged to make the statement, and did so reluctantly, or 111 Rex V. Mosley, 1 Moody, Crown Cas. 98; State v. Talbert (S. C.) 19 S. E. 852; Jones v. State, 71 Ind. 66; State v. Cronin, 64 Conn. 293, 29 Atl. 536; State V. Dickinson, 41 Wis. 299; Simons v. People, 150 III. 66, 36 N. E. 1019; Montgomery v. State, 80 Ind. 338. A dying declaration is not inadmissible because made under oath. State v. Talbert, supra. 112 Reg. v. Hind, Bell, Crown Cas. 253; Scott v. People, 63 111. 508; People V. Davis, 56 N. Y. 95; Johnson v. State, 50 Ala. 456; State v. Dickinson, 41 Wis. 299. 113 Gray's Case, Ir. Cir. R. 76; Davis v. Com. (Ky.) 23 S. W. 585. 114 1 Greenl. Ev. § 157; Donnelly v. State, 26 N. J. Law, 463, 601; People V. Chin Mook Sow, 51 Cal. 597. 115 State V. Eddon, 8 Wash. 292, 36 Pac. 139; Jones v. State, 71 Ind. 60; State V. Wood, 53 Vt 560; Sullivan v. State (Ala.) 15 South. 264; People v. Shaw, 63 N. Y. 36. 526 EVIDENCE. [Ch. 14 that it was brought out by leading questions, does not render it inadmissible.^^' If the statement has been reduced to writing, and read over to and signed by the deceased, the written statement should be intro- duced; ^^^ but if for any reason the written statement is not com- petent, the declarations may be shown by parol evidence.^^* A witness, to be competent to testify to dying declarations, must be able to accurately state the substance of them as they were made, though he need not state them verbatim.^^' To admit dying declarations is not a violation of the constitu- tional right of the defendant to confront the witnesses against him.^="» It is absolutely essential in all cases to show that the declaration was made under a sense of impending death, and without any hope whatever of a recovery. Thus, where a statement of the deceased was taken down thus: "I make the above statement with the fear of death before me, and with no hope of recovery," and on its being read over to him he changed it to read, "with no hope at present of my recovery," the statement was held inadmissible.^"' The slightest hope of recovery will render the statement inadmissi- ble.i" If the deceased had no hope of recovery at the time the declara- tions were made, the fact that he afterwards lived for some time,^"' 118 Jones V. State, supra; Maine v. State, 9 Hun (N. Y.) 113. 117 1 Greenl. Ev. § 161; Jones v. State, 71 Ind. 66. But see Com. v. Haney, 127 Mass. 455. 118 Allison V. Com., 99 Pa. St 17; State v. Patterson, 45 Vt. 308. iii> State V. Patterson, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229; People T. Chase (Sup.) 29 N. Y. Supp. 376; Starkey v. People, 17 lU. 17. 12 Com. V. Carey, 12 Cush. (Mass.) 246, 249; State v. Dickinson, 41 Wis. 299. 121 Reg. v. Jenkins, L. R. 1 Crown Cas. 187. 122 Reg. V. Jenkins, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229; Com. v. Roberts, 108 Mass. 296; Com. v. Haney, 127 Mass. 455; Justice v. State, 99 Ala. 180, 13 South. 658; Meyers v. State (Tex. Cr. App.) 26 S. W. 196; People v. Gray, 61 Cal. 164; Jackson v. Com., 19 Grat. (Va.) 656; Brother- ton v. People, 75 N. Y. 159. 123 Com. V. Cooper, 5 Allen (Mass.) 495; Rex v. Mosley, 1 Moody, Crown Cas. 98; People v. Chase (Sup.) 29 N. Y. Supp. 376; Jones v. State, 71 Ind. 66; Boulden v. State (Ala.) 15 South. 341; State v. Wilson (Mo. Sup.) 26 S. W. 357; State v. Reed (Kan.) 37 Pac. 174. Ch. 14] ADMISSIONS AND DECLARATIONS BY DEFENDANT. 527 or that the doctor was not without hope,^^* or that the deceased before or after making the declaration expressed some hope/^" will not render them inadmissible. Such facts would, however, be taken into consideration by the court in determining whether the deceased was under a sense of impending death when he made the statement. It is generally only by considering all the circum- stances, including the prerious, contemporaneous, and subsequent declarations of the deceased, that the question can be determined.^ ^° ADMISSIONS AND DECLARATIONS BY DEFENDANT. 211. Declarations made by the defendant, or by a third person by his authority,'^ if relevant, are admissible against him, but they are not admissible in his favor. If the defendant has made statements not amounting to a con- fession, but constituting an admission of facts in issue or relevant to the issue, they are admissible against him.^^* Thus a letter written by a person under arrest, containing statements tending to show his guilt, is admissible. ^''^ But statements made by the defendant not tending to connect him with the crime charged, such as admissions that he committed other crimes, etc., are not com- petent."" Self-serving declarations by the defendant are not admissible in his favor.^^^ 12* Rex V. Mosley, supra. 125 state V. Reed (Kan.) 37 Pac. 174; Small v. Com., 91 Pa. St. 304; Swisher V. Com., 26 Grat. (Va.) 963. 128 State V. Cronin, 64 Conn. 293, 29 Atl. 536; People v. Simpson, 48 Mich. 474, 12 N. W. 662; McHargue v. Com. (Ky.) 23 S. W. 349. 12 7 See People v. Brady (Cal.) 36 Pac. 949; ante, p. 520. 128 Com. V. Sanborn, 116 Mass. 61; People v. Bosworti, 64 Hun, 72, 19 N. Y. Supp. 114; People v. Oassidy, 60 Hun, 579, 14 N. Y. Supp. 349; Id., 133 N. Y. 612, 30 N. E. 1003; State v. Behrman, 114 N. O. 797, 19 S. E. 220; Thompson v. State (Ala.) 14 South. 621. 129 People V. Cassidy, supra. 130 Youree v. Territory (Ariz.) 29 Pac. 894; Com. v. Campbell, 155 Mass. 537, 30 N. E. 72. 131 Baker v. State, 80 Wis. 416, 50 N. W. 518; Threadgill v. State, 32 Tex. Cr. R. 451, 24 S. W. 511; State v. Talbert (S. C.) 19 S. E. 852. 528 EVIDENCE. [Ch. 14 CONFESSIONS. SIS. A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime, and is admissible against him, if voluntary. 513. No confession is deemed voluntary -within this rule if it -was caused by any inducement, threat, or promise proceeding from a person in authority, and hav- ing reference to the charge against the accused, ■whether addressed to him directly or brought to his kno^wledge indirectly, and if such inducement, threat, or promise gave the accused reasonable grounds for supposing that by making a confession he -would gain some advantage or avoid some evil in reference to the proceedings against him. 514. A confession is not involuntary merely because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceeding, or by inducement held out by a person not in authority. If the defendant has confessed that he committed the crime charged under the circumstances stated above, his confession is competent evidence against him.^'^ To render a confession admissible it must have been voluntary. It is not voluntary if it was caused by any inducement, threat, or promise proceeding from any person in authority, and having ref- erence to the charge against the accused ; as where it is made to a policeman or jailer, or prosecuting attorney, after a promise by him to do what he can to lighten the punishment, or after a statement that it will be better to confess, or holding out any other inducement with reference to the particular charge, or on his threat- ening to make it harder on the accused.^'' Where a handbill was 182 See ConL v. Johnson, 162 Pa. St. 63, 29 Atl. 280; Walker v. State (Ind. Sup.) 36 N. E. 356. 138 Reg. v. Boswell, Car. & M. 584; Beckham v. State (Ala.) 14 South. 859; Ch. 14] CONFESSIONS. 529 issued by the secretary of state, promising a reward and pardon to any accomplice in a crime who would confess, and an accomplice, under the influence of a hope of pardon, made a confession, it was held that the confession could not be used against him.^'* It is immaterial whether the threat, inducement, or promise is addressed directly to the accused, or whether it is conveyed to him indirectly, as by some third person, or by intimation, or by manner. It is enough that it is conveyed in some way, and influences him in mak- ing the confession. The accused must have had reasonable grounds from such threat, inducement, or promise to suppose that by making the confession he would gain some advantage or avoid some evil in reference to the proceedings against him.^'" A confession is not involuntary merely because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty,^^' or by an inducement collateral to the proceeding,^^' or by inducements held out by some person not in authority.^^' The prosecutor, the prosecuting attorney, the magistrate or judge, the jailer, or other officer having the ac- cused in custody, are persons in authority within the rules above stated.^^* The mere fact that a confession was made to a person Com. V. Myers, 160 Mass. 530, 36 N. E. 481; Gallaglier v. State (Tex. Or. App.) 24 S. W. 288; Collins v. Com. (Ky.) 25 S. W. 743. The confession need not have been made immediately after the inducement, so long as it was made under the influence of it. State v. Drake, 113 N. C. 624, 18 S. E. 166. 18* Keg. v. Boswell, supra. 13 6 People V. Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706. 136 Rex V. Gilham, 1 Moody, Crown Cas. 186. 137 Rex V. Lloyd, 6 Oar. & P. 393; Cox v. People, 80 N. T. 501; State v. De Graff, 113 N. C. 688, 18 S. E. 507; State v. Tatro, 50 Vt. 483. Thus, where an officer promises to let the accused see his wife if he confesses, the con- fession is voluntary. Rex v. Lloyd, supra. 188 Smith v. Com., 10 Grat. (Va.) 734 (collecting authorities); Shifflet v. Com., 14 Grat. (Va.) 652; Reg. v. Moore, 2 Denison, Crown Cas. 522; U. S. V. Stone, 8 Fed. 232. That a master is not a person in authority over his servant, see Smith v. Com., supra; Reg. v. Moore, supra. But see, to the effect that it is sufficient to exclude a confession if the person stood in such a relation to the accused that his communications must influence the accused, Com. V. Tuckerman, 10 Gray (Mass.) 173. And see People v. Wolcott, 51 Mich. 612, 17 N. W. 78. 138 State V. Staley, 14 Minn. 105 (Gil. 75); Wolf v. Com., 30 Grat. (Va.) 833; CEIM.PROC. — 84 530 EVIDENCE. [Ch. 14 in authority, even when in custody, does not render it involuntary. There must have been some inducement, threat, or promise from him."" If a confession is extorted from the accused by such duress as he could not be expected to resist, as by the threatened or actual violence of a mob, it is not voluntary, and will be excluded.^*^ A confession is voluntary and admissible, notwithstanding threats, inducements, or promises by persons in authority, if it was not made until after the complete removal of the impression made thereby.^*^ Facts discovered in consequence of confessions improperly ob- tained, and so much of the confession as is corroborated by these facts, are admissible. Thus where a person accused of burglary made a confession to a policeman under circuamstances rendering it involuntary, part of it being that the accused had thrown a lantern into a pond, and the lantern was found, this part of the confession, and the fact that the lantern was found, were held ad- missible.^*' Whether the circumstances are such as to render a confession admissible is a question to be determined by the court before the •confession is allowed to go before the jury.^** There is a conflict of Beckham v. State (Ala.) 14 South. 859; Rector v. Com., 80 Ky. 468; People v. Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706. 140 Cos V. People, SO N. Y. 501; People v. Wentz, 37 N. Y. 303; Goodwin v. State (Ala.) 15 South. 571; Com. v. Sego, 125 Mass. 213; Com. v. Cuffee, 108 Mass. 285; Com. v. Johnson, 162 Pa. St. 63, 29 Atl. 280; WUlls v. State (Ga.) 19 S. E. 43; Cornwall v. State, 91 Ga. 277, 18 S. E. 154. 141 Jordau v. State, 32 Miss. 382; Young v. State, 68 Ala. 569; Miller v. People, 39 111. 4.j7. 142 Thompson v. Com., 20 Grat. (Va.) 724; Rex v. Clewes, 4 Car. & P. 221; Com. V. Howe, 132 Mass. 250; Reeves v. State (Tex. Cr. App.) 24 S. W. 518; People V. Mackinder (Sup.) 29 N. Y. Supp. 842; Ward v. People, 3 Hill (N., Y.) 395; Com. v. Myers, 160 Mass. 530, 36 N. E. 481. 143 Reg. V. Gould, 9 Car. & P. 36i. And see Davis v. State (Tex. Cr. App.) 23 S. W. 687; Rains v. State (Tex. Cr. A^p.) 20 S. W. 398. 144 Com. v. Culver, 12G Mass. 464; Goodwin v. State (Ala.) 15 South. 571; State V. Patterson, 73 Mo. 695. Whether the inquiry shall be conducted in the presence of the jury has been held to be a matter within the discretion of the court Lefevre v. State, 50 Ohio St 584, 35 N. E. 52. Ch. 14] CONFESSIONS. 531 authority on the question of the burden of proving the voluntary character of the confession.^ *^ Silence when Accused of Crime. As we have seen in another place, the silence of defendant when accused of a crime may be shown as an implied admission of guilt.^*° Confession Made under Promise of Secrecy or Fraudulently Obtained. If a confession is admissible under the rules heretofore stated, it does not become inadmissible merely because it was made under a promise of secrecy, or in consequence of a deception practiced upon the accused for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to confess, and that evidence of it might be given against him."^ Confessions Made upon Oath. Evidence amounting to a confession may be used as such against the person who made it, although it was given upon oath, and al- though the proceeding upon which it was given had reference to the same subject-matter as the proceeding in which it is to be proved, and although the witness might have refused to answer the questions put to him; ^** but if, after refusing to answer the i*B In some jurisdictions a coiifession is presumed to be involuntary, and the burden is on tlie state to show the contrary. Reg. v. Thompson, 5 Reports, 392; [1893] 2 Q. B. 12; Thompson v. Com., 20 Grat (Va.) 729; Young v. State, 68 Ala. 569; Nicholson v. State, 38 Md. 140. In other states It is pre- sumed to be voluntary, and the burden is on the defendant to show that it was involuntary. Com. v. Sego, 125 Mass. 213; Rufer v. State, 25 Ohio St 464. 14 6 Ante, p. 511. 147 Price V. State, 18 Ohio St 418; White v. State, 32 Tex. Cr. R. 625, 25 S. W. 784; State v. Staley, 14 Minn. 105 (Gil. 75); State v. Grear, 28 Minn. 426, 10 N. W. 472; Bskridge v. State, 25 Ala. 30; King v. State, 40 Ala. 314; Jefferds v. People, 5 Parker, Cr. R. (N. Y.) 522; People v. Wentz, 37 N. Y. 303. As to warning, see People v. Simpson, 48 Mich. 474, 12 N. W. 662; Com. v. CufEee, 108 Mass. 285. In some states caution is required by statute. Rix v. State (Tex. Cr. App.) 26 S. W. 505. 148 Reg. v. Scott, 1 Deaxs & B. Cir. Cas. 47; Reg. v. Robinson, L. R. 1 Cr. Cas. 80; Reg. v. Chidley, 8 Cox, Cr. Cas. 365; Com. v. King, 8 Gray 632 EVIDENCE. [Ch. 14 question, he was improperly compelled to answer it, his answer is not a voluntary confession.^** Against Whom Admissible. A confession is only admissible against the person who made it A confession by one defendant is not competent evidence against his codefendant.^°° But it may be admitted as against the defendant who made it, if the court on request instructs the jury that it is to be considered only as against him. In such cases separate trials should be had.^°^ Corroboration of Confessions. An extrajudicial confession, in order to warrant a conviction, must be corroborated by other evidence tending to prove the corpus delicti.^" EVIDENCE GIVEN IN FORMER PROCEEDING. 215. Evidence given in a former proceeding is admissi- ble for the purpose of proving the matter stated in a sub- sequent proceeding or in a later stage of the same pro- ceeding, under the following circumstances: (a) "When the -witness is dead. (b) When he is insane. (c) When he is so ill that he will probably never be able to travel. (Mass.) 501; Dickerson v. State, 48 Wis. 288, 4 N. W. 321; Teachout v. Peo- ple, 41 N. Y. 7; People v. Weiger, 100 Cal. 352, 34 Pae. 826; Smith v. Com. (Ky.) 26 S. W. 1100. Thus, answers given by a bankrupt on his examination may be used against him in a prosecution for ofEenses against the bankruptcy law. See cases first cited above. See, also, ante, p. 78. 1*9 Reg. V. Garbett, 1 Denison, Or. Cas. 23ij. 160 Com. V. Ingraham, 7 Gray (Mass.) 46; Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37; People v. Stevens, 47 Mich. 411, 11 N. W. 220; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Gore v. State, 58 Ala. 391; ante, p. 522, and cases there cited. 161 Ante, p. 431. 102 People v. Hennessey, 15 Wend. (N. Y.) 147; U. S. v. May field, 59 Fed. 118; Ryan v. State (Ala.) 14 South. 868; Collins v. Com. (Ky.) 26 S. W. 1; South V. People, 98 111. 261; People v. Lane, 49 Mich. 340, 13 N. W. 622; State v. Patterson, 73 Mo. 695. Ch. 14] EVIDENCE GIVEN IN FORMER PROCEEDING. 533 (d) When he is kept out of the way by the adverse party. (e) Provided the person against ■whom, the evidence is to be given had the right and the opportunity to cross-examine the "witness in the former pro- ceeding. (f) Provided the questions in issue w^ere substantially the same in the first as in the second proceeding. (g) Provided the same person is accused upon the same facts. Some courts, but not all, hold that the fact that a witness who testified in a former proceeding is out of the jurisdiction of the court or cannot be found does not render his testimony admissible in a subsequent proceeding.^ °^ But it is otherwise if he has since died, or become insane,^"* or if he is so ill that he cannot attend, and will probably not be able to attendj^^" or if he is kept away by the adverse party,^^' provided the other conditions mentioned above also exist. The person against whom the evidence is sought to be proved must have had the right and the opportunity to cross- examine the witness in the former proceeding.^°^ If he had the opportunity, the fact that he did not avail himself of it is imma- terial.^°* It is also necessary that in the second proceeding the same person shall be accused on the same facts.^^' 103 Brogy v. Com., 10 Grat. (Va.) 722; U. S. v. Angell, 11 Fed. 34; State v. Lee, 13 Mont. 248, 33 Pac. 690; People v. Newman, 5 Hill ^N. Y.) 295; People V. Gordon, 99 Cal. 227, 33 Pac. 901. But see People v. Davis (Gal.) 36 Pac. 96; Lowery v. State, 98 Ala. 45, 13 Soutli. 498; State v. Tyler (La.) 15 South. 624; Vaughan v. State, 58 Ark. 353, 24 S. W. 885. 104 Mayor of Doneaster v. Day, 3 Taunt. 262; Rex v. Inhabitants of Eris- well, 3 Term R. 720; Bass v. State (Ind. Sup.) 36 N. B. 124; Brown y. Com., 73 Pa. St. 321; Stewart v. State (Tex. Or. App.) 26 S. W. 203; State v. Able, 65 Mo. 357. IBB Rex V. Hogg, 6 Gar. & P. 176; Chase v. Springvale Mills Co., 75 Me. 156. 1B6 Reynolds v. U. S., 98 V. S. 145; Reg. v. Scaife, 17 Q. B. 238, 243; State V. Houser, 26 Mo. 431. But see Bergen v. People, 17 lU. 426. iBT Wright V. Tatham, 1 Adol. & E. 3. IBS Bradley v. Mirick, 91 N. Y. 293. 169 Reg. T. Beeston, Dears. Grown Gas. 405. 634 EVIDENCE. [Oh. 14 OPINION EVIDENCE. 216. The fact that a person is of opinion, that a fact in issue, or relevant to the issue, does or does not exist, is admissible only in exceptional cases. A witness will not generally be allowed to state tbat he thinks or is of opinion that such and such a fact is or is not true. He must testify to the fact, and not state his opinion.^"" Thus, on a prosecution for murder, a witness cannot be asked whether there was anything in the looks of things in the room where the body was found that would indicate that a scuffle had taken place there. He can only state how the room looked, and let the jury draw the inference.^ °^ On the question of insanity nonexpert witnesses are allowed in some, but not all, states, to give their opinion, provided they state the facts known to them upon which their opinion is founded.^'^ There are some cases in which a witness may state whether from his personal observation a certain fact or condition existed, though in a sense he may be stating his opinion that it existed. Thus it is competent for a witness to state from his own observation that a person was or was not drunk,^'' or looked cross, or was nervous, excited, sick, etc.;"* and a witness may give his. opinion, based on personal observation, as to the identity of a person.^"" So, on 160 state V. CoeUa, 8 Wash. 512, 36 Pac. 4Y4; Martin, v. State, 90 Ala. 602, 8 South. 858; Holmes v. State (Ala.) 14 South. 864; Jones v. State, 58 Ark. 390, 24 S. W. 1073; Territory v. McKem, 2 Idaho, 759, 26 Pac. 123; Brinkley v. State, 89 Ala. 34, 8 South. 34. 101 State V. Ooella, supra. 102 Cotrell V. Com. (Ky.) 17 S. W. 149; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Upstone v. People, 109 lU. 169; State v. Williamson, 106 Mo. 162, 17 S. W. 172; State v. Hay den, 51 Vt. 296; State v. Bryant, 93 Mo. 273, G S. W. 102; Hite v. Com. (Ky.) 20 S. W. 217; People v. Wreden, 59 Cal. 392. Contra, Com. V. Brayman, 130 Mass. 438; Holcomb v. Holcomb, 95 N. Y. 316; Boiling V. State, 54 Ark. 588, 16 S. W. 658. 163 People V. Eastwood, 14 N. Y. 562; Com. v. Dowdican, 114 Mass. 257. 164 Elliott V. A^an Buren, 33 Mich. 49; State v. Grafton (Iowa) 56 N. W. 257; Dimick v. Downs, 82 111. 570. 165 People V. Stanley (Mich.) 59 N. W. 498; People v. Young (Cal.) 36 Pac. Ch. 14] EXPERT TESTIMONY. 535 a prosecution for cursing in the hearing of females, a witness may state whether, from his own observation, the females were near enough to have heard it.^"" SAME— EXPERT TESTIMONY, 217. Where there is a question as to any point of sci- ence or art, the opinions upon that point of persons spe- cially skilled in any such matter may be given. The words "science or art" in the above rule include all subjects on which a course of special study or experience is necessary to the formation of an opinion.'*'^ Thus, on the question whether a per- son's death was caused by poison, the opinions of experts as to the symptoms produced by the poison by which the deceased is sup- posed to have died ore admissible.^ °^ And on the question whether the defendant at the time of doing the act charged was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was wrong, the opinions of experts on the question whether the symptoms exhibited by the defendant commonly show unsoundness of mind, and whether such unsound- ness of mind usually renders persons incapable of knowing the na- ture of their acts, or of knowing that what they do is wrong, are competent.^'" An expert may also testify as to whether certain blood stains have been caused by human blood or the blood of animals.^^" The opinions of experts as to a matter of common knowledge 770; State v. Dickson, 78 Mo. 438; Kent v. State (Ga.) 19 S. E. 885; Beavers V. State (Ala.) 15 South. 616. 166 McVay v. State (Ala.) 14 South. 862. 167 state V. Merriman, 34 S. C. 16, 12 S. E. 619; Johnson v. Castle, 63 Vt. 452, 21 Atl. 534; Coyle v. Com., 104 Pa. St. 117; State T. Ginger, 80 Iowa, 574, 46 N. W. 657. 16 8 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 100. And see Stephens v. People, 4 Parker, Cr. E. (N. Y.) 396; Zoldoske v. State, 82 Wis. 580, 52 N. W. 778. 169 R. V. Dove, Steph. Dig. Ev. (Chase's Ed.) 106; State v. Hayden, 51 Vt. 296; Real v. People, 42 N. Y. 270; Livingston v. Com., 14 Grat. (Va.) 592. 170 Greenfield v. People, 85 N. Y. 75. 536 EVIDENCE. [Ch. 14 are not admissible, for the jury are as well able to judge of such facts without the aid of their opinions.^^^ Before an alleged expert is allowed to give his opinion, the judge must be satisfied that his skill in the matter on which evidence of his opinion is offered is sufficient to entitle him to be considered as an expert.^'^' Hypothetical Questions. The fact that the expert witness does not personally know the facts of the case does not render his opinion inadmissible. In such a case the facts are stated hypothetically, and he is asked to state his opinion assuming those facts to be true.^'* Or if the witness has heard the testimony as to the facts in the case, and it is clear, and not difficult to remember, he may be asked to state his opinion upon what he has so heard.^'* Facts Bearing on Opinions of Experts. Facts not otherwise relevant are admissible if they support or are inconsistent with the opinions given by experts. Thus on the question in a homicide case whether the deceased was poisoned by a certain poison, the fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is admissible.^'" CHARACTER. S18. Evidence of the character of a perscn is admissib'e in the following cases: (a) The fact that the defendant has a good character may be shown; but the state cannot show that he has a bad character, unless his character is 171 Cook V. State, 24 N. J. Law, 843; Manke v. People, 17 Hun, 410; People V. Clark, 33 Mich. 112; Knoll v. State, 55 Wis. 249, 12 N. W. 369; Noonan V. State, 55 Wis. 258, 12 N. W. 879; People v. Royal, 53 Cal. 62; State v. Klinger, 46 Mo. 224. 172 Whart. Cr. Ev. § 406; Lynch v. Grayson (N. M.) 25 Pae. 992; People v. McQuaid, 85 Mich. 123, 48 N. W. 161. 173 Whart. Cr. Bv. § 418. 174 state v. Hayden, 51 Vt. 296. 17 6 R. V. Palmer, Steph. Dig. Ev. (Chase's Ed.) 107. Ch. 14] CHARACTER. 537 itself a fact in issue, or unless evidence has been given that he has a good character, in which case evidence that he has a bad character is ad- missible, (b) The character of the deceased as a violent and dan- gerous man may be sho^wn in prosecutions for homicide, on the question whether the defendant acted in self-defense. Character of Defendant. In a criminal case it is always permissible for titie defendant to sliow that he bears a good character, as tending to show that it was not probable that he would commit the crime charged; and the fact that the evidence of his guilt is direct, instead of circum- stantial, does not prevent the evidence of good character from be- ing considered.^'" If the character of the defendant is not in issue, as it would be on indictment for being a common barretor, a common drunkard, etc., and if the defendant does not introduce evidence of his good character, the state cannot show that he has a bad character, though the fact that he had a bad character might tend to show that he was lUtely to commit the crime charged.^'' Character of Third Persons. As a general rule, the character of third persons is inadmissi- ble.^''* There is an important exception to the rule, however, in prosecution for homicide, where the defendant claims that he acted in self-defense. In such a case, the defendant may show that the deceased was a violent and dangerous man, both for the purpose of showing a probability that the deceased, and not the defendant, commenced the difficulty, and, where his character was known to the defendant, for the purpose of showing that the defendant had reasonable cause to believe and did believe that his life was in danger.^" 176 stover V. People, 56 N. Y. 319; Remsen v. People, 43 N. Y. 6; People v. Mead, 50 Mich. 228, 15 N. W. 95; Hall v. State, 132 Ind. 317, 31 N. B. 536. 17T People V. White, 14 Wend. (N. Y.) 111. 17 8 state V. Staton, 114 N. C. 813, 19 S. E. 96; Omer v. Com. (Ky.) 25 S. W. 594; State v. Rose, 47 Minn. 47, 49 N. W. 404. i7 8Horbach v. State, 43 Tex. 242; Gamer v. State, 28 Fla. 113, 9 South. 538 EVIDENCE. [Ch. 14 Eow Proved. The term "character," as used in the rules above stated, means "reputation," as distinguished from "disposition." Evidence can^ be given only of general reputation, and not of particular acts by which reputation or disposition is shown.^*" EVIDENCE WEONGFULLT OBTAINED. 319. The fact that articles or admissions -srere -wrong- fully obtained from the defendant does not render them inadmissible in evidence. As we have already seen, confessions obtained from the defend- ant, if otherwise competent, are not rendered inadmissible because they were obtained from him by deception, or while he was drunk, or under a promise of secrecy.^*^ Nor are articles, if otherwise admissible in evidence, rendered inadmissible because they were wrongfully taken from him, as by an unlawful search or seizure.^ "'^ PEESUMPTION OP INNOCENCE— BUBDEN OP PROOF. 220. The defendant is presumed to be innocent, and the burden is on the state to prove his guUt beyond a reasonable doubt. 835; Cannon v. People, 141 111. 270, 30 N. E. 1027; Abbott v. People, 86 N. Y. 460; Davis v. People, 114 111. 86, 29 N. E. 192; State v. Kennade (Mo. Sup.> 26 S. W. 347; Alexander v. Com., 105 Pa. St. 1; State v. Nash, 45 La. Ann. 1137, 13 Soutb. 732, 734; State v. Rollins, 113 N. 0. 722, 18 S. E. 394; Trabune V. Com. (Ky.) 17 S. W. 186; Roberts v. State, 68 Ala. 156. ISO Com. V. O'Brien, 119 Mass. 342; Berneker v. State (Neb.) 59 N. W. 372; State V. Coley, 114 N. C. 879, 19 S. E. 705; Olive v. State (Neb.) 59 N. W. 917. The state on cross-examination may ask as to specific acts. Goodwin v. State (Ala.) 15 South. 571; Thompson v. State (Ala.) 11 South. 878. But the state cannot rebut evidence of good character by proving specific acts. Olive v. State, supra. 181 Ante, p. 529. 182 State V. Nordstrom, 7 Wash. 506, 35 Pac. 382; Com. v. Brelaford, 161- Mass. 61, 36 N. E. 677; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Id., 19 S. E. 691; State v. Flynn, 36 N. H. 64. Ch. 14] .PEESUMPTION OF INNOCENCE BURDEN OF PROOF. 539 821. If the state proves facts showing guilt, the bur- den is on the defendant to introduce some evidence of an aflarmative defense. When he has done this, by the bet- ter opinion, the burden is on the state to rebut this evidence beyond a reasonable doubt. 222. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person -who -wishes to give such evidence. In civil cases the plaintiff is only required to prove Ms case by a preponderance of the evidence, but in criminal cases the state must prove the defendant's guilt, and therefore every fact necessary ta make him guilty, beyond a reasonable doubt. Every man is pre- sumed to be innocent until the contrary is proved, and this pre- sumption can only be rebutted by proving guilt by evidence so strong as to remove from the mind of the jury every reasonable doubt.^*^ A reasonable doubt, vrithin the meaning of this rule, is not a mere imaginary, captious, or possible doubt, but a fair doubt, based on reason and common sense, and growing out of the testimony in the case. It is such a doubt as will leave one's mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction to a moral certainty of the defendant's guilt.^** 183 Carlton v. People (111. Sup.) 37 N. E. 244; Parker v. State (Ind. Sup.) 35 N. E. 1105; Vandeventer v. State, 38 Neb. 592, 57 N. W. 397; Rliea v. State (Ala.) 14 South. 853. 184 People V. Flnley, 38 Mich. 482; Garrett v. State, 97 Ala. 18, 14 South. 327; Culver v. State, 99 Ala. 193, 13 South. 527. It is not necessary that the evidence exclude every hypothesis other than that of guilt, but it is sufficient if the evidence shows guilt beyond a reasonable doubt,— not a speculative, im- aginary, or possible doubt. Garrett v. State, supra. A reasonable doubt has been defined as such a doubt as would make a man of ordinary prudence waver or hesitate in considering a matter of like importance to himself as the case on trial is to the defendant. State v. Roesener, 8 Wash. 42, 35 Pac. 357. It is proper for the court to refuse to charge that the degree of evidence required to convict a man must be such as to remove aU doubt from the mind of a reasonable man, since a reasonable man may have an unreasonable doubt. Padfield v. People, 146 111. 660, 35 N. E. 469. 540 EVIDENCE. [Ch. 14 Shift of Burden of Proof. The burden of proof in a criminal case, as in a civil case, may shift during the trial. The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side. As the proceeding goes on, the burden of proof may be shifted from that party upon whom it first rested by his proving facts which raise a presumption in his favor. Thus, on a prosecution of a married woman for receiving stolen goods, the burden of proof in the first instance is on the state. But where she is shown to have had possession of stolen goods soon after the theft, knowing them to have been stolen, the state has made out a case, and the burden of proof is shifted to her to show matter of defense. She meets the burden by showing that she stole them in the presence of her husband. The burden is then shifted back to the state to show that she was not coerced by him.^*° So, on a prosecution for bigamy, if the state proves that the defendant was already married when he married the second time, the burden of showing some defense is on the defendant. If the defendant shows that he was a minor at the time of the first marriage, the state has the burden of proving that he married with his parents' consent.^'* So, where the defendant sets up insanity as a defense, the burden is on him to introduce some evidence of insanity.^^^ Thus far the cases are virtually agreed, but when we go beyond this we meet with a conflict of opinion. It would seem clear that where the defendant has introduced some evidence of an affirm- ative defense, like insanity, the burden should be on the state to rebut that evidence beyond a reasonable doubt, and many of the 185 1 Russ. Crimes, 33; 2 Russ. Crimes, 337. Some courts hold that proof of the possession of goods soon after the theft raises the presumption of guilt, and shifts the burden of proof. Waters v. People, 104 111. 544. Contra, Stover V. People, 56 N. Y. 315; Ingalls v. State, 48 Wis. 647, 4 N. W. 785; Com. V. McGorty, 114 Mass. 299. So on indictment for homicide, where the defendant has made out a case of self-defense, the burden of proving that he was at fault In bringing on the difBculty is on the state. Holmes v. State (Ala.) 14 South. 864. 188 Rex V. Butler, Russ. & R. 61. 18T See the cases hereafter cited. Ch. 14] PRESUMPTION OF INNOCENCE BURDEN OP PROOF. 541 courts so hold.^^' But many of the courts hold that in such a case the burden is on the defendant to establish his insanity by a pre- ponderance of the evidence, and that it is not enough to raise a reasonable doubt as to his sanity.^*" This is riding roughshod over the rule that in a criminal case the defendant's guilt must be proved beyond a reasonable doubt, for a man who commits an act while insane does not commit a crime. He is not merely ex- cused from punishment. He is not guilty at all of any crime. Some courts have even gone so far as to hold that the defendant must establish his insanity beyond a reasonable doubt; that is to say, that if the jury have any reasonable doubt on the question, they must convict,^*" but this is probably not the law now in any of our states. There is a like conflict of opinion as regards the defense of alibi.^'* 188 u. S. y. Faulkner, 35 Fed. 730; State v. ReideU (Del. O. & T.) 14 Atl. 550; Baccigalupo v. Com., 33 Grat. (Va.) 807; Langdon v. People, 133 111. 382, 24 N. E. 874; Grubb v. State, 117 Ind. 217, 20 N. E. 725; Plake v. State, 121 Ind. 433, 23 N. E. 273; Revolr v. State, 82 Wis. 295, 52 N. W. 84; Com. v. Gerade, 145 Pa. St. 289, 22 Atl. 464; King v. State, 91 Tenn. 617, 20 S. W. 169; Hodge v. State, 26 Fla. 11, 7 South. 593; Faulkner v. Territory (N. M.) 30 Pac. 905. In the absence of any evidence to raise a reasonable doubt, the prosecution is not obliged to prove sanity. Montag v. People, 141 111. 75, 30 N. E. 337; Armstrong v. State, 30 Fla. 170, 11 South. 618. 18 9 Com. V. Rogers, 7 Mete. (Mass.) 500; LoefCner v. State, 10 Ohio St. 598; Fisher v. People, 23 111. 283 (but see, contra, Langdon v. People, 133 111. 382, 24 N. E. 874); People v. McCann, 18 N. Y. 58; Walker v. People, 88 N. Y. 81; State V. Starling, 6 Jones (N. C.) 366; State v. Davis, 109 N. C. 780, 14 S. B. 55; State v. McCoy, 34 Mo. 531; State v. Schaefer (Mo. Sup.) 22 S. W. 447; State V. Trout, 74 Iowa, 545, 38 N. W. 405; People v. Garbutt, 17 Mich. 9; Leache v. State, 22 Tex. App. 279, 3 S. W. 539; Rather v. State, 25 Tex. App. 623, 9 S. W. 69; Parsons v. State, 81 Ala. 577, 2 South. 854; Gunter v. State, 83 Ala. 96, 3 South. 600; Maxwell v. State, 89 Ala. 150, 7 South. 824; People V. Bemmerly, 98 Oal. 299, 33 Pac. 263; People v. Bowden, 90 Cal. 195, 27 Pac. 204; Pogarty v. State, 80 Ga. 450, 5 S. E. 782; Ooates v. State, 50 Ark. 330, 7 S. W. 304; Boiling v. State, 54 Ark. 588, 16 S. W. 658; Moore v. Com. (Ky.) 18 S. W. 833; State v. Alexander, 30 S. C. 74, 8 S. E. 440; State v. Lewis, 20 Nev. 333, 22 Pac. 241; People v. Dillon, 8 Utah, 92, 30 Pac. 150. 180 Reg. V. Stokes, 3 Car. & K. 188; State v. Brinyea, 5 Ala. 244; State v. Huting, 21 Mo. 476; People v. Myers, 20 Cal. 518; State v. Spencer, 21 N. J. Law, 202. 191 See Com. v. Choate, 105 Mass. 451; Howard v. State, 50 Ind. 190; Walters V. State, 39 Ohio St. 215. 542 EVIDENCE. [Oh. 14 Fact to he Proved to Render Eoidmce Admissible. The burden of proring any fact necessary to be proved in order to enable a person to give evidence of any other fact is on the per- son who seeks to give such evidence. Where the state wishes to introduce a dying declaration, the burden is on it to show that it was made under such a sense of impending death as to render it competent; and, if the defendant seeks to introduce such evidence, the same burden is on him.^°^ 223. WITNESSES— THEIR COMPETENCY AND THE MODE OP EXAMINING THEM. Though there is very little difference between civil and criminal cases as regards the competency of witnesses, the mode of exam- ining them, etc., so that the matter might well be omitted, it cannot be out of place to state shortly the general rules.^°* Who May Testify. All persons are competent to testify in all cases except as fol- lows: A witness is incompetent if, in the opinion of the judge, he is prevented by extreme youth,^°* disease affecting the mind,^'" or any other cause of the same kind,^°* from recollecting the matter on which he is to testify, from understanding the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth.^°' A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible j but such writing must be 182 Ante, p. 525, and cases there cited. 193 The rules are taken almost verbatim from Stephen's Digest of Evidence. 101 See Com. v. Mulling, 2 Allen (Mass.) 295; Comer v. State (Tex. Cr. App.) 20 S. W. 547; McGuire v. People, 44 Mich. 286, 6 N. W. 669; State v. Michael, 37 W. Va. 565, 16 S. E. 803; State v. Doyle, 107 Mo. 36, 17 S. W. 751. 195 Walker v. State, 97 Ala. 85, 12 South. 83; Coleman v. Com., 25 Grat (Va.) 865; Worthington v. Mencer, 96 Ala, 310; 11 South. 72; Lopez v. State, SO Tex. App. 487, 17 S. W. 1058. 196 state V. Weldon, 39 S. C. 318, 17 S. E. 688. 197 The question is for the court, and generally its ruling will not be re- viewed. Com. V. MuUins, supra, and other cases above cited. €h. 14] WITNESSES COMPETENCY EXAMINATION. 543 written and such signs made in open court.^"' Evidence so given is deemed to be oral evidence. At common law an atheist cannot testify as a witness,^*® but in most states it is otherwise by statute.^"" At common law a person who has been convicted of an infamous «rime is not a competent witness; ^"^ but this rule also has been changed by statute in some jurisdictions."'"' In criminal cases the accused person and his or her wife or hus- band, and every person and the wife or husband of every person jointly indicted and tried with him, are incompetent to testify,""' except that in any criminal proceeding against a husband or wife for any bodily injury or violence inflicted upon his or her wife or husband, such wife or husband is competent and compellable to testify.""* In most states by statute the accused is now allowed to testify in his own behalf, but he cannot be compelled to testify. In some states the defendant is allowed to mate a statement to the jury not under oath. 198 state V. WeWon, 39 S. C. 318, 17 S. E. 688. ISO Butts V. Swartwood, 2 Cow. (N. Y.) 431; Omichund v. Barker, Willes, 549; People v. Matteson, 2 Cow. (N. Y.) 433, note. The test of competency is whether he believes in the existence of a God who will punish him if he swears falsely. Butts v. Swartwood, supra. 200 Hronek v. People, 134 111. 139, 24 N. E. 861. 201 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617; U. S. v. Hall, 53 Fed. 352; State V. Randolph, 24 Conn. 363. But not if convicted in another state. Lo- gan V. U. S., supra. Incompetency is removed by pardon. Logan v. U. S., supra; Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292; Martin v. State, 21 Tex. App. 1, 17 S. W. 430. 202 Williams v. Dickinson, 28 Fla. 90, 9 South. 847; People v. McGloin, 91 N. Y. 241; State v. Peterson, 35 S. C. 279, 14 S. E. 617. 203 Reg. V. Payne, L. R. 1 Crown Cas. 349; State v. XJlrich, 110 Mo. 350, 19 S. W. 656; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165; People v. West- brook, 94 Mich. 629, 54 N. W. 486; People v. Langtree, 64 Cal. 256. Other- wise where the defendants are tried separately. Adams v. State, 28 Fla. 511, 10 South. 106; People v. Bosworth, 64 Hun, 72, 19 N. Y. Supp. 114; Linsday V. People, 63 N. Y. 143. The rule does not apply to man and mistress. Sims V. State, 30 Tex. App. 605, 18 S. W. 410. 204 Reeve v. Wood, 5 Best & S. 364; Johnson v. State, 94 Ala. 53, 10 South. 427; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165; State v. Chambers, 87 Iowa, 1, 53 N. W. 1090; People v. Westbrook, 94 Mich. 629, 54 N. W. 486. 544 EVIDENCE. [Ch. 14 Privileged Commv/nications. No husband is compellable to disclose any communication made to him by his wife during the marriage, and no wife is compellable to disclose any communication made to her by her husband dur- ing the marriage.^"" It is doubtful whether a judge is compellable to testify as to anything which came to his knowledge in court, as such judge.^°* It seems that a barrister cannot be compelled to testify as to what he said in court in his character of a barrister.""' No one can be compelled to give evidence relating to any affairs of state, as to official communications between public oflBcers upon public affairs, except with the permission of the officer at the head of the department concerned,'"'* or to give evidence of what took place in either house of congress, or of a state legislature, without the leave of the house, though he may state that a particular person acted as speaker.""" In cases in which the government is immediately concerned no witness can be compelled to answer any question, the answer to which would tend- to discover the names of persons by or to whom information was given as to the commission of offenses. In ordi- nary criminal prosecutions it is for the judge to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administra- tion of justice."^" As we have seen in another place, neither a petit juror nor a grand juror can give evidence as to what passed between the jury- men in the discharge of their duties. Nor, as a rule, can a grand juror give evidence as to what any witness said when examined soo Campbell v. Chace, 12 R. I. 333; Com. v. Griffin, 110 Mass. 181; State v. Mathers, 64 Vt 101, 23 All. 590; State v. Ulrich, 110 Mo. 350, 19 S. W. 656. 20 6 Reg. V. Gazard, 8 Car. & P. 595. 207 Curry v. Walter, 1 Esp. -15(1. 208 Beatson v. Skene, 5 Hurl. & N. 838; Appeal of Hartranft, 85 Pa. St. 433; Totten V. U. S., 92 U. S. 105. 209 Chubb v. Salomons, 3 Car. & K. 77; Plunkett v. Cobbett, 5 Esp. 136. 210 Hardy's Case, 24 How. State Tr. 811; Reg. v. Richardson, 3 Fost. & F. 693; State v. Soper, 16 Me. 293; U. S. v. Moses, 4 Wash. C. C. 726, Fed. Cas., No. 15,825. Ch. 14] WITNESSES COMrETENCY EXAMINATION. 645 before the grand jury, though as to this there are some excep- tions.''" No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication, oral or documen- tary, made to him as such legal adviser, by or on behalf of his client, during, in the course, and for the purpose of his employ- ment, whether in reference to any matter as to which a dispute has arisen or otherwise, or to disclose any advice given by him to his client during, in the course, and for the purpose of such em- ployment.^^* This rule does not extend to (1) any such communi- cation as aforesaid made in furtherance of any criminal purpose; ^^' (2) any fact observed by any legal adviser, in the course of his em- ployment as such, showing that any crime or fraud has been com- mitted since the commencement of his employment, whether his attention was directed to such fact by or on behalf of his client or not; *^* (3) any fact with which such legal adviser became ac- quainted otherwise than in his character as such.^^" The expres- sion "legal adviser" includes barristers and solicitors, their clerks, and interpreters between them and their clients.^^' It does not include officers of a corporation through whom the corporation has elected to make statements. ''^^ The privilege is personal, and cannot be set up by the other party.^^* No one can be compelled to disclose to the court any communica- tion between himself and his legal adviser, which his legal adviser 211 Ante, pp. 121, 490. "2 State V. Dawson, 90 Mo. 149, 1 S. W. 827. 218 FoUett V. Jefferyes, 1 Sim. (N. S.) 17; Charlton v. Coombes, 32 L. J. Ch. 284; People v. Blakeley, 4 Parker, Or. R. (N. Y.) 176; Orman v. State, 22 Tex. App. 604, 3 S. W. 468; Id., 24 Tex. App. 495, 6 S. W. 544; Everett v. State, 30 Tex. App. 682, 18 S. W. 674. 214 Brown v. Foster, 1 Hurl. & N. 736; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416. 210 State v. Mewherter, 46 Iowa, 88; Com. v. Goddard, 14 Gray (Mass.) 402. 2i« Wilson V. Rastall, 4 Term R. 753; Taylor v. Foster, 2 Car. & P. 195; Foote V. Hayne, 1 Car. & P. 545. 217 Mayor v. Quirk, L. R. 5 C. P. 106. 218 Smith T. Wilson, 1 Tex. Civ. App. 115, 20 S. W. 1119. CRIM.PEOC. — 35 546 EVIDENCE. [Ch. 14 could not disclose witlioiit his permission, although it may have been made before any dispute arose as to the matter referred to."^* Medical men and (probably) clergymen may, at common law, be compelled to disclose communications made to them in professional confidence, but the rule has in some states been changed by stat- ■ute."" Witness not to be Compelled to Criminate Himself. Both under most of our constitutions, and at common law, it is the rule that no one is bound to answer any question if the an- swer thereto would, in the opinion of the judge, have a tendency to expose the witness (or the wife or husband of the witness) to any criminal charge, or to any penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for;^^^ but no one is excused from answering any question only because the answer may establish or tend to establish that he owes a debt, or is otherwise liable to any civil suit, either at the instance of the state or of any other person. ^''^ If a defendant offers himself as a witness, he cannot refuse to answer questions asked him on cross-examination.^^^ The witness may waive this privilege by answering questions without objection,^^* and, if he answers so as to disclose part of the transaction, he waives his right to re- fuse to answer further.^^" 219 MInet V. Morgan, L. li. 8 Ch. App. 361; Duttenhofer v. State, 34 Ohio St 91. 220 Duchess of Kingston's Case, 20 How. State Tr. 572; Gillooley v. State, 58 Ind. 182; People v. Gates, 13 Wend. (N. Y.) 311; Plerson v. People, 79 N. y. 424; Steagald v. State, 22 Tex. App. 4&4, 3 S. W. 771. 2 21 Black, Const. Law, 497, and cases there cited; Reg. v. Boyes, 1 Best & S. 330; Rex v. Inhabitants of Cliviger, 2 Term R. 263; Rex v. Inhabitants of Bothwick, 2 Barn. & Adol. 639; Com. v. Nichols, 114 Mass. 285; 2 Story, Const. § 1788; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct 524; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390; State v. Briggs, 9 R. I. 361. If, by statute, the testimony could not be used against him, or if he could not be prosecuted for the crime disclosed, the rule does not apply. See Kendrick v. Com., 78 Va. 490; People v. Kelly, 24 N. Y. 74. 222 steph. Dig. Ev. (Chase's Ed.) 209. 223 People V. Casey, 72 N. Y. 393; Com. v. Nichols, 114 Mass. 285. 22 4 Com. V. Shaw, 4 Cush. (Mass.) 594. No one but the witness can object. 22 5 Com. V. Pratt, 120 Mass. 462. But see Reg. v. Garbett, 1 Denison, Or. Cas. 236. Ch. 14] WITNESSES COMPETENCY EXAMINATION. 647 Corroboration, when Required. In most, but not all, states, when the only proof against a per- son charged with a criminal oifense is the evidence of an accom- plice, uncorroborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so."° In some states, by statute, in prosecutions for seduction, rape, and similar crimes, there can be no conviction on the uncorrob- orated testimony of the woman,^^' but the rule is otherwise at common law.^^' As we have already seen, there can be no conviction on an extra- judicial confession unless corroborated by other evidence of the corpus delicti.^^' Nwmber of Witnesses Necessary. In trials for treason no one can be convicted unless he pleads guilty, except upon the oath of two lawful witnesses to the same overt act.^"* If upon a trial for perjury the only evidence against the defendant is the oath of one witness contradicting the oath on which perjury is assigned, and if no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted.^*^ 228 Roguemore v. State, 28 Tex. App. 55, 11 S. W. 834; Com. v. Holmes, 127 Mass. 424; Fort v. State, 52 Ark. 180, 11 S. W. 959; Stape v. People, 85 N. Y. 390; Smith v. Com. (Ky.) 17 S. W. 182; Boyd v. State, 24 Tex. App. 570, 6 S. W. 853; Com. v. Hayes, 140 Mass. 366, 5 N. B. 264; People v. Ogle, 104 N. Y. 511, 11 N. E. 53. But see, contra, IngaUs v. State, 48 Wis. 647, 4 N. W. 785; State v. Harkins, 100 Mo. 666, 13 S. W. 830. The witness must be an accomplice to need corroboration. Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471; Com. v. Graves, 97 Mass. 114; Campbell v. Com., 84 Pa. St. 187. 227 People V. Kearney, 110 N. Y. 188, 17 N. B. 736; State v. McGlothlen, 56 Iowa, 544, 9 N. W. 893; Armstrong v. People, 70 N. Y. 38. 2 28 See State v. Nichols, 29 Minn. 357, 13 N. W. 153; State v. McGlothlen, supra. 229 Ante, p. 532. 230 Const. U. S. art. 3, § 3. 231 Steph. Dig. Ev. (Chase's Ed.) 213; Rex v. Mayhew, 6 Car. & P. 315; Com. V- Parker, 2 Cush. (Mass.) 219; U. S. v. Wood, 14 Pet. 440; State v. Hay ward, 1 Nott & McC. (S. C.) 547; State v. Heed, 57 Mo. 252; State v. Blize, 111 Mo. 464, 20 S. W. 210; People v. Hayes (Sup.) 24 N. Y. Supp. 194. 648 EVIDENCE. [Ch. 14 Excluding Witnesses from Court Room. While one witness is testifying the court may, in its discretion, exclude the other witnesses from the court room.^^^ It cannot exclude the defendant, however, nor can it exclude one defendant while his codefendant is testifying.^'' If a witness who has been excluded disobeys the court's order, he is guilty of contempt of court, and may be punished, but this does not render him incompetent, or prevent his being examined, if the party offering him as a witness was not privy to the con- tempts^* Failure to Call Witnesses. The failure of the state or of the defendant to call a witness, par- ticularly an eyewitness of the act charged, may, by the weight of authority, be taken into consideration by the jury,^^' but it does not raise any legal presumption of innocence or of guilf^* Compelling State to Call Witnesses. Where the prosecution fails to call all the eyewitnesses to the crime, the court may, in the exercise of its discretion, compel him to do so; and it should compel him to do so where the witnesses are few in number."'' Ordinarily, however, the court will not interfere.''^' Examination in Chief, Cross-Examination, and Re-examination. Witnesses examined in open court must be first examined in chief, then cross-examined, and then re-examined. Whenever any witness has been examined in chief, or has been 232 Zoldoske v. State, 82 Wis. 580, 52 N. W. 778; Vance v. State, 56 Ark. 402, 19 S. W. 1066; Dickson v. State, 39 Ohio St 73; Com. v. Follansbee, 155 Mass. 274, 29 N. B. 471. 233 Ante, p. 424. 23 4 Grant v. State, 89 Ga. 393, 15 S. E. 488; Dickson v. State, supra; Taylor V. State, 130 Ind. 66, 29 N. E. 415; Cook v. State, 30 Tex. App. 607, IS S. W. 412. 23 6 People V. Hovey, 92 N. Y. 554; Rice v. Com., 102 Pa. St. 408. 236 Bleecker v. Johnston, 69 N. Y. 309; Hill v. Com., 88 Va. 633, 14 S. E. 330. 237 People v. Kenyon, 93 Mich. 19, 52 N. W. 1033; Thompson v. State, 30 Tex. App. 325, 17 S. W. 448. 238 state V. Russell, 13 Mont. 164, 32 Pac. 854; Hill v. Com., 88 Va. 633, 14 S. E. 330; People v. Wright, 90 Mich. 362, 51 N. W. 517. Ch. 14] WITNESSES COMPETENCY EXAMINATION. 549 intentionally sworn, or has made a promise and declaration, as hereinbefore mentioned, for the purpose of giving evidence, the opposite party has a right to cross-examine him; but the opposite party is not entitled to cross-examine merely because a witness has been called to produce a document on a subpoena duces tecum, or in order to be identified. After the cross-examination is con- cluded, the party who called the witness has a right to re-examine him. The court may in all cases permit a witness to be recalled, either for further examination^ in chief or for further cross-examination; and if it does so the parties have the right of further cross-exam- ination and further re-examination, respectively.''^" It is held in England that if a witness dies, or becomes incapable of being further examined, at any stage of his examination, the evidence given before he became incapable is good; ^*" but in this country the rule seems to be otherwise, where there was no opportunity to cross-examine.^** If, in the course of a trial, a witness who was supposed to be competent appears to be incompetent, his evidence may be with- drawn from the jury, and the case may be left to their decision independently of it; ^*^ but if a witness is known to be incompe- tent when he is sworn, and no objection is made, the rule does not apply.^*^ To What Matters Cross-Examination and Re-examination must be Directed. The examination and cross-examination must relate to facts in issue or relevant thereto; and in most states the cross-examination must be confined to the facts to which the witness testified on his examination in chief.^** The re-examination must be directed to the explanation of mat- ters referred to in cross-examination; ^*^ and if new matter is, by 23 » Com. V. McGorty, 114 Mass. 299. 2 2 Ashm. 247; People v. Mercein, 3 Hill (N. Y.) 399. 42 See St 31 Car. II. 48 Ex parte Smith, 3 McLean, 121, Fed. Gas. No. 12,968; People v. Pelham, 14 Wend. (N. Y.) 48; Lumm y. State, 3 Ind. 293. 44 Seavey v. Seymour, 3 Cliff. 439, Fed. Cas. No. 12,596. 4B A return to a federal court must be verified. Rev. St. U. S. 1878, § 757. 46 Watson's Case, § Adol. & E. 731; In re Hakewill, 12 C. B. 223. And see Crowley v. Christensen, 137 U. S. 86, 11 Sup. Gt. 13. 41 il. S. V. Green, 3 Mason, 482, Fed. Cas. No. 15,256. 48 Neider v. Reuff, 29 W. Va. 751; Eden's Case, 2 Maule & S. 226. CKIM.PKOC. — 36 562 HABEAS CORPUS. [Ch. 15 shown why it is not, such as a denial of the detention.*' The return may be controverted by the relator if he deems tlie facts not truly returned.'"' The court may allow the return to be amended."^ After the return and the hearing of the evidence, if no cause for imprisonment of the relator appears, he will be dis- charged."^ Second Application — Appeal. A refusal to discharge under one writ does not prevent another application to a different court, unless there is a statute to that effect; and even then a second writ can be granted on new facts or evidence."' In the absence of such a statute, the decision on the first application would be given great weight, and, as a rule, wduld not be disturbed unless on new facts shown."* For the reason that a second application might be made, at com- mon law no appeal or writ of error was allowed from a decision on an application for a writ."" But now, by statute, such appeals are allowed in the federal courts and in many of the states. If a person once discharged on habeas corpus is rearrested, he should be again discharged on a new writ"' But he could be sub- sequently indicted for the offense, unless a plea of former jeopardy IS advisable. 48 Rex V. Bethuen, And. 281; Rex v. Wright, 2 Strange, 901. 00 In re Milburn, 59 Wis. 24, 17 N. W. 965; State v. Scott, 30 N. H. 274; In re Powers, 25 Vt. 261. Bi In re Hopson, 40 Barb. (N. Y.) 34; People v. Cavanagh, 2 Parker, Or. R. •650. 02 In re Doo Woon, 18 Fed. 898. 03 Ex parte Pattison, 56 Miss. 161; People v. Fancher, 1 Hun (N. T.) 27; Ex parte Robinson, 6 McLean, 360, Fed. Oas. No. 11,935. 0* Ex parte Lawrence, 5 Ben. (Pa.) 304; Ex parte Campbell, 20 Ala. 89. 65 Yates V. People, 6 Johns. (N. Y.) 337; Hammond v. People, 32 111. 446. 06 In re Da Costa, 1 Parker, Or. R. 129; Com. v. McBride, 2 Brewst (Pa.) 545. TABLE OF CASES CITED. [THE FIGURES REFER TO PAGES.] 'A Aaron v. State, 442. Aaronson v. State, 454. Abbott V. Booth, 31. V. People, 538. V. State, 395. Ableman v. Broth, 559. Abrigo V. State, 414. Adam v. State, 467. Adams v. People, 10, 510. V. State, 298, 408, 419, 421, 543. Ah Bau, Ex parte, 73. Ahitbol V. Beniditto, 341. Ah Lee, In re, 559. Ah Peen, Ex parte, 435. Aiken v. State, 281, 286. Ainsworth, Ex parte, 556. Alderman v. People, 161. Alexander v. Commonwealth, 282, 472, 538. Alford V. State, 29, 45, 388. Alkenbrack v. People, 182, 183, 329, 337. Allen V. Colby, 68. V. Commonwealth, 237, 425, v. Gray, 36. V. Martin, 53, 55. V. Staples, 67. V. State, 112, 436. V. Taylor, 146, 235. V. Wright, 45. Allgood V. State, 333. Allison, In re, 443. V. Commonwealth, 526. V. Rheam, 35, 36. Allyn V. State, 367. Alterberry v. State, 475. Amann v. People, 342. CKIM.PROC. Ambrose v. State, 395. American Fur Co. v. U. S., 521. Amos V. State, 522. Anderson, Ex parte, 73. V. State, 193, 199, 310, 311. Andrews v. Hmidred of Lewknor, 313. V. State, 242, 424, 425. Androscoggin v. Kichard, 70. Angel V. Commonwealth, 169. Anon., 77, 79, 97, 144, 175, 225, 234, 263, 281, 316, 426, 498. Anson v. People, 518. Anthony v. Commonwealth, 281. Antonez v. State, 84. Archer v. State, 10, 17. Archer's Case, 87. Armlsteadj v. Commonwealth, 444. Armstrong v. People, 289, 547. V. State, 465, 541. Arnold v. State, 436. 385, V. Steeves, 50, 57, 74. Arrington v. Commonwealth, 324. Ashley v. Peterson, 69. 218, Ashley's Case, 44. Ashton V. State, 404, 405. Atkins V. State, 447. 487. Attaway v. State, 414. Austin y. State, 549. Avery v. State, 499. Avirett T. State, 117. Ayers, In re, 558. Aylesbury's Case, 87. B Bacclgalupo v. Commonwealth, 541. Baccio V. People, 513. Baggett V. State, 221. Bailey v. Ragatz, 54. (563) 664 CASES CITED. [The figures refer to pages.] Bailey v. State, 291, 499. Bailey's Case, 388. Bain, Ex parte, 108, 315. Bainbridge v. State, 291. Baker v. People, 303, 308. V. State, 291, 318, 833, 378, 415, 421, 433, 445, 521, 522, 527. Baldwin v. Kansas, 455. V. People, 222, 336. V. State, 220, 445. Baldwin's Case, 118. Bales V. Commonwealth, 482. Ball V. Cobus, 262. V. Commonwealth, 498. V. State, 165, 365. V. tJ. S., 252, 494. Ballard v. State, 413, 416, 431. Barber v. State, 271, 272, 358. Barge v. Commonwealth, 378, 380, 405. Barker v. People, 497. Barkman v. State, 340. Barnard v. Bartlett, 53, 54. V. Commonwealth, 354. Barnard's Case, 507. Barnes v. Barber, 36. V. People, 342. V. State, 244, 247, 249, 280, 293, 348. Barney v. State, 119, 120. Barnwell v. State, 290. Baron v. People, 488. Baronnet, Ex parte, 86. Barrett v. Long, 519. V. State, 386, 482. Barron v. People, 117. Barronet, In re, 89, 557. Barronet's Case, 87. Baruch, In re, 60. Bass V. State, 533. Batchelder v. Currier, 6, 75. Bateman v. State, 367. Bates V. Commonwealth, 414. V. State, 268, 317. Baude's Case, 253. Baurose v. State, 488. Baw V. State, 416, 420. Baxter v. People, 446, 472, 482. Bayard, In re, 497. Baylis v. Lucas, 441. BeaU V. State, 11. Beam v. Link, 121. Bean v. Parker, 97. Bean v. State, 353, 355. Beasley v. People, 271, 272, 289. Beatson v. Skene, 544. Beauchamp v. State, 453. Beavers v. State, 417, 535. Beaverto v. State, 51. Beck V. State, 452. Becker v. Commonwealth, 280. V. State, 334. Beckham v. State, 528, 530. Beckwith v. People, 351. V. Philby, 41, 45. Bedell, Ex parte, 497. Bedford v. State, 523. Bedingfield's Case, 516. Beekman v. Traver, 28. Beers v. Beers, 435. Beggs V. State, 13. Belcher v. State, 522. Bell, Ex parte, 6, 79. V. Clapp, 53, 68. V. Commonwealth, 254, 365. V. People, 126. V. State, 272, 363, 386, 397, 447, 512, 558. Bellasis v. Hester, 493. Bellows V. Shannon, 50. Ben V. State, 282, 283. Bengough v. Rossiter, 85. Benjamin v. State, 73. Bennet v. Talbot, 276. V. Watson, 90. Bennett, Ex parte, 556. V. Commonwealth, 499. V. State, 380. Benningfield v. Commonwealth, 433. Benson v. Commonwealth, 294, 296. V. State, 202. Benton v. Commonwealth, 412. V. State, 425. Bergen v. People, 533. Berneker v. State, 538. Berrien v. State, 328. Berry v. State, 335, 347, 474, 475. Besinier v. People, 94. Bethuram v. Black, 556. Bigham v. State, 189, 215. Bill V. People, 468. Bingham v. Dickie, 342. Bird, Ex parte, 557. V. State, 112. Birney v. State, 193. CASES CITED. 565 [The figures refer to pages.] Biscoe V. State, 485. Bishop V. State, 416. Black, In re, 487. V. State, 197, 358. Blackman v. Commonwealth, 240, 241. V. State, 275, 412. Blackmore v. State, 111. Blaney v. State, 109, 482. Blatch V. Archer, 47. Blatcher v. Kemp, 33. Bledsoe v. Commonwealth, 485. Bleecker v. Johnston, 548. Blenklron v. State, 455. Bletch V. Johnson, 146, 235. Blodget V. State, 341. Bloomer v. State, 113, 394. Blount V. State, 486. Blumenberg v. State, 141, 317. Blyew V. Commonwealth, 388. Boardman v. Wood, 446. Board of County Com'rs v. Graham, 106. Boaz V. Tate, 57. Bob V. State, 512. Boggett V. Frier, 230. Boggs V. State, 298. Boland, Ex parte, 557. Boles V. State, 228, 472, 479. Boiling V. State, 352, 470, 524, 534, 541. Bond V. People, 486. Bonds V. State, 125. Bonnell v. State, 221. Bonner, In re, 6. V. State, 469. Bookhout V. State, 31. Boon V. State, 446. Boone v. People, 112, 113, 462, 463. Booth, In re, 29. Borst V. Beeeker, 442. Borum v. State, 351. Bostic V. State, 471. Bostick V. Rutherford, 79. Boulden v. State, 353, 526. Bowditch V. Balchin, 42. Bowen v. Shopcott, 378. V. State, 367, 490. Bowers v. People, 207. Bowler v. State, 197. Bowles V. State, 4S7. Bowlin V. Commonwealth, 414. Bowman v. Commonwealth, 420, 421. Boyce v. Whitaker, 349. Boyd V. State, 35, 50, 417, 547. V. U. S., 543, 546. Boyington v. State, 119. Boynton v. State, 81. V. Tidwell, 41. Bradford v. State, 442. Bradlaugh v. Reg., 141, 154, 156, 206- 208, 214, 320-322. Bradley v. Banks, 198. V. Mirlck, 533. y. State, 189. Bradshaw v. Commonwealth, 430. Brady v. Davis, 29. Brainard v. Stilphin, 146, 235. Bramlett v. State, 419. Branham v. Commonwealth, 92. Brassell v. State, 470. Brassfield v. State, 239. Bratton v. Seymour, 146, 235. Bravo v. State, 222. Brazell v. State, 462. Brazleton v. State, 29. Breese v. State, 280, 284, 352. Brennan v. People, 377, 392, 395, 400, 493. Brewer v. Commonwealth, 425. V. State, 13. Bridewell, Ex parte, 87. Bridge V. Ford, 92, 95. Bridge's Case, 254. Bright v. Patton, 42. Brinkley v. State, 534. Bristcoe, In re, 557. Brister v. State, 159, 469, 473, 484, 485. Bristow V. Wright, 183. Brock V. State, 133. V. Stimson, 37, 57. Broekway v. Crawford, 44, 45. Brogy V. Commonwealth, 533. Brooks V. Commonwealth, 44, 45, 48, 50, 54. V. People, 424. Broome v. Hurst, 97. Brosnahan, In re, 559. Brother v. Cannon, 35. Brotherton v. People, 526. Broughton v. Moore, 313. Browder v. State, 94. Brown, Ex parte, 65, 391, 557. In re, 558. V. Commonwealth, 109, 117, 170, 259, 299, 323, 442, 455, 457, 4U0, 495, 533. 566 OASES CITED. [The figures refer tc pages.] Brown v. Foster, 545. V. People, 452. V. State, 13, 116, 306, 353, 360, 418, 425, 437, 471, 479, 480, 486, 488, 512. V. U. S., 522, 532. Browne's Case, 309. Browning v. State, 416, 469, 470. Brown's Case, 64. Broyles v. State, 512. Brucker v. State, 475. Brushaber v. Stegemann, 55. Bryan v. Bates, 43. V. State, 473. Bryans v. State, 385, 386. Bryant, Ex parte, 557. V. State, 147. Buck V. State, 295. Buckland v. Commonwealth, 209, 210, 334. Buckler's Case, 254. Buckner v. State, 430. Buckrice v. People, 16. BueU, In re, 557, 559. BuUiner v. People, 429. Burdett v. Colman, 55. V. State, 388. Burgess v. Commonwealth, 124, 126. V. State, 499. Burk V. Commonwealth, 483, 485. Burke v. Bell, 57. V. People, 460. Burley v. Griffith, 28. Burnett, Ex parte, 557. V. State, 414. Bumey v. State, 425. Burns v. Commonwealth, 471. V. Erben, 42, 45. V. State, 21, 51, 444, 479. Burrell v. State, 447. Bm-r's Trial, 79. Burst V. State, 347. Burt V. State, 513. Burtles v. State, 468. Bushell's Case, 555. Butler V. Commonwealth, 73. V. Foster, 84. V. State, 462, 508. V. Turley, 45. V. Washburn, 57. Butman's Case, 318. Butolph V. Blust, 42, 57. Butts V. Swartwood, 543. Buzzard v. State, 310. Byers v. Commonwealth, 435u Byrd v. State, 367, 442. Byrne v. State, 117, 118. G Cabell V. Arnold, 34, 58. Cable V. Commonwealth, 522. Cahlll V. People, 40, 42, 55. Caldwell v. Commonwealth, 495, V. State, 252. Callan v. Wilson, 435. Cameron v. State, 359. Camp V. Moseley, 36. Campbell, Ex parte, 562. V. Chace, 544. V. Commonwealth, 547. V. People, 208, 388, 395, 505. V. Keg., 489. V. State, 12, 93, 392. Camron v. State, 408. Cancemi v. People, 437, 438, 446. Cannon, In re, 61, 66. V. People, 538. Cantwell v. People, 420, 421. Cargill V. Commonwealth, 458. Carle v. Delesdernier, 37. Carleton v. State, 289. Carlisle v. State, 15, 249, 347. Carlton v. Commonwealth, 296, 297. V. People, 539. Carnal v. People, 448, 453. Carnett v. State, 455. Carpenter v. People, 351. Carr v. State, 40, 44, 45, 6a Carroll v. State, 454. Carson v. State, 271, 272. Carter v. State, 230, 489. Carthaus v. State, 417. Cartwright v. State, 463, 464, 478, 48a V. Wright, 209. Cary v. State, 44. Cash V. State, 294. easily v. State, 301. Casper v. State, 432. Castillo V. State, 513. Castro V. Reg., 288, 293, 294, 296, 495. Cathcart v. Commonwealth, 141. Caudle v. Seymour, 23, 24, 29. CASES CITED. 667 [The figures refer to pages.] Cawley v. State, 295. Central Railroad & Banking Co. of Georgia v. Roberts, 444. Chacun v. Territory, 354. Chaffin V. State, 517. Chambers v. People, 262. Chamlington's Case, 252. Champ V. State, 470. Champion, Ex parte, 557, 561. Chaney, Ex parte, 87. Chapman v. Commonwealth, 263. Charlton v. Coombes, 545. Chase v. Pish, 37. V. Springvale Mills Co., 533. Cheek v. Commonwealth, 486, 487. V. State, 340. Child, Ex parte, 560. Childs V. State, 499. Chiles V. Commonwealth, 312. Choen v. State, 146, 235. Cholmley's Case, 251. Christian v. Commonwealth, 198. Chubb V. Salomons, 544. Churchill v. Churchill, 36. Chute V. State, 457. City Council v. King, 146, 147, 234. V. Payne, 40. City of Bloomington v. Heiland, 427. City of Creston v. Nye, 412. City of Emporia v. Volmer, 421. City of Lowell v. Morse, 148. Claassen v. U. S., 299. Clair V. State, 111. Clark, In re, 64. V. Bragdon, 29. V. State, 238, 367, 392, 427. Clarke, Ex parte, 385, 556. V. Commonwealth, 351. V. State, 344, 385. Clark's Case, 234. Clay V. People, 207, 332. Clem V. State, 117, 400, 405, 446. Clements v. State, 51. demons v. State, 228. Olere v. Commonwealth, 300. Clore's Case, 447. Cluck V. State, 347. Clyncard's Case, 110, 114, 125. Clyne, In re, 133. Coal-Heavers' Case, 159, 302. Coates V. State, 541. Coats V. People, 290. Cobb V. Lewis, 146. V. Lucas, 235. Cobbett V. Hudson, 560. Cobia V. State, 891. Cochrane v. State, 419. Cockerell v. State, 415, 486. Codd V. Cabe, 34, 50. Cody V. Quinn, 35. CofiEee v. State, 188. Cohen v. People, 203. V. State, 12. Cohn, Ex parte, 558. Coker v. State, 478. Cole V. State, 425. Coleman v. Commonwealth, 424, 542. V. Hagerman, 446. V. People, 518. V. State, 492. V. Tennessee, 395. Cole's Case, 86. Collier v. State, 125. Collins V. Brackett, 102. V. Commonwealth, 529, 532. V. Goldsmith, 201. V. People, 199, 226, 338. V. State, 116, 317, 324, 443. Colt V. People, 509. Combs V. Commonwealth, 290. Comer v. State, 282, 542. Comfort V. Fulton, 26. Commercial Exch. Bank v. McLeod, 71. Commonwealth v. — , 258. V. Abbott, 503. V. Adams, 105, 199, 209, 241, 242, 244, 295, 305, 315, 329, 333. V. Addis, 451. V. Alderman, 389, 394. V. Andrews, 11, 282, 426. V. Anthes, 466. V. Arner, 399, 401, 402. V. Arnold, 392. V. Arrance, 231. V. Ashley, 269. V. Ashton, 168, 220. V. Atwood, 182. V. Austin, 448, 463. V. Ayer, 311. V. Bagley, 158. V. Bailey, 210, 333. V. Bakeman, 190, 191, 193. V. Baker, 181, 185, 329. 668 CA.SE8 CITED. [The figures refer to pages.] Commonwealth v. Barker, 252, 253. V. Barnard, 247. T. Barrett, 107, 265. V. Battis, 373. V. Beaman, 115, 224, 336. V. Bean, 265, 268, 320. V. Bennett, 181. V. Berger, 445. V. Bingham, 431. V. Blrdsall, 290. V. Blair, 509. V. Blake, 371, 372. V. Blanchette, 228. V. Blanding, 13, 15. V. Blood, 151. v. Bosworth, 389, 468. V. Bowden, 387. V. Boyer, 220. V. Boynton, 191, 193, 194. V. Bradford, 518, 519. V. Bradley, 13. V. Bradney, 363, 364. V. Brady, 507. V. Brailey, 512. V. Brayman, 534. V. Brelsford, 397, 538. V. Brettun, 220. V. Breyesse, 484. V. Brickett, 97. V. Briggs, 135, 345, 498, 560. V. Bronson, 97. V. Brooks, 270. V. Brown, 120, 179, 187, 199, 215, 216, 281, 284, 296, 302, 306, 340, 512, 521. V. Bryden, 181. V. Bubser, 397. V. Buecierl, 413, 415, 420. V. Bugbee, 252, 253. V. Burke, 258, 298, 350, 360. V. Burlington, 262. V. Burton, 118. V. Butler, 150, 172. . V. Butterick, 213, 220, 255. V. Buxton, 314. V. Buzzard, 141, 315. V. Buzzell, 448. V. Byrnes, 196, 274. V. Cahill, 220, 220. V. Cain, 393. V. Caldwell, 309, 312. y. Call, 174, 489, 493. Commonwealth v. Campbell, 218, 517, 527. V. Canada, 93. V. Carey, 42, 45, 298, 526. V. Carney, 309, 310. V. Carr, 378. V. Carter, 412. V. Castles, 212. V. Chandler, 554. V. Chapman, 155, 159, 198, 302, 364, 381. V. Chase, 161, 266, 297. V. Chathams, 488. V. Cheney, 41. V. Cherry, 150. V. Ohesley, 390, 405. V. Child, 152, 160, 320, 321. V. Choate, 518, 541. V. Christian, 106. V. Church, 363. V. Churchill, 377. r. Clair, 218, 335, 336, 390, 396, 398. V. Clancy, 213. V. Clapp, 149. V. Clark, 119, 149, 244, 266. V. Cleary, 420, 479. V. Clifford, 265, 269. V. Clue, 387. V. Coe, 208, 518. V. Cohen, 193. V. Coleman, 99, 424. V. Collins, 267, 320. V. Colton, 127, 257. V. Cook, 306, 386, 387. V. Cooley, 50, 311. V. Cooper, 358, 359, 526. V. Cosseboom, 471. V. Costello, 294, 426. V. Costley, 347, 514. V. Cousins, 11. V. Cox, 259. V. Coy, 328. V. Creadon, 360. V. Crossmire, 445. V. Crotty, 29, 30. V. Crump, 427. V. Ouffee, 530, 531. V. Culver, 530. V. Cummings, 247, 393. V. Cunningham, 388, 399. V. Curby, 560. V. Curran, 283. CASES CITED. 669 [The figures refer to pages.} Oommoawealtli v. Curtis, 283. V. Cutler, 397. T. Daggett, 94. V. Dalley, 438. V. Dana, 67, 70, 98. V. Daseom, 388, 394. V. Davidson, 419; V. Davis, 161, 162, 200, 344, 346, 430. V. Deacon, 40, 43-46, 57, 62. V. Dean, 152, 160, 190-193. V. Dedham, 148, 150, 156, 376. V. De Jardln, 327. V. Delamater, 421. T. Demuth, 148. V. Dennis, 311. V. Densmore, 514. V. Devine, 305. V. De Witt. 11. V. DlUane, 344. V. Dobbins, 288. V. Doherty, 156, 189. V. Donahue, 363, 493. V. Donovan, 343. T. Doran, 244. V. Dorus, 214, 483. V. Dowdican, 534. V. Dowdigan, 496. V. Downey, 94. V. Doyle, 242, 324. V. Drew, 377, 385. V. Drum, 360. V. Dudley, 154, 163. V. Dunham, 416. V. Dunleay, 212. Y. Durfee, 483. r. Eastman, 337, 364. V. Baton, 280, 282. V. Edwards, 127, 143. V. Eichelberger, 488. V. Elwell, 194, 802, 345. V. Emery, 92, 93, 95. V. Falvey, 338. . V. Farls, 314. V. Fells, 386. v. Ferrigan, 507, 508, 518. V. Field, 47, 50. V. Filburn, 20. V. Finn, 229. V. Fisher, 92, 124, 126, 127, 143, 144. V. Follansbee, 547, 54& Commonwealth v. Foster, 33. V. Fox, 560. v. Fraher, 395. V. Fredericks, 363, 376. V. Gable, 197, 299, 358. V. Gale, 147, 150, 376. V. Gallagher, 221, 222, 340. V. Gavin, 180, 217, 329, 337. V. Gay, 311. V. Gee, 119. V. Gerade, 541. V. Gibson, 198, 391, 482. V. Gill, 843. V. Gillespie, 16, 157, 158, 206, 207, 289, 332, 340, 342, 376, 431. V. Glover, 341. V. Goddard, 380, 388, 889, 405, 406, 545, V. Golding, 406. V. Goldstein, 231, 254, 255. V. Goodhue, 354. V. Goodwin, 509, 510. V. Gould, 234, 341, 385, 392. V. Graves, 547. V. Gray, 170, 553. V. Green, 65, 109, 112, 121, 122, 363, 373, 392, 394. V. Grey, 170, 171. V. Griffin, 238, 257, 258, 306, 544. V. Grimes, 219, 226, 338. V. Hackett, 516. V. Hagarman, 149. V. Hall, 62, 145, 146, 216, 234, 282. V. Hamilton, 231, 259, 385, 560. V. Hampton, 262. V. Haney, 526. V. Harley, 191, 330. V. Harmon, 209. V. Harney, 231. V. Harrington, 141, 204, 317, 318, 344. V. Harris, 7, 82, 83, 156, 268, 269, 283, 553. V. Harrison, 345, 393. V. Hart, 166, 167, 174, 181, 271, 272, 274-276, 386. V. Hartnett, 230. V. Hatton, 390, 391. V. Hawkins, 300, 364, 551. V. Hayden, 355. V. Hayes, 547. V. Haynes, 191, 314. 570 CASES CITED. [The figures refer to pages.] Commonwealth v. Heffron, 250, 348. V. Heist, 447. V. Hersey, 139, 156, 168, 186, 188. V. Herty, 400. V. Hill, 121, 122, 271, 340, 369, 446. V. Hills, 289, 296, 297. V. Hinds, 70, 212, 374, 493. V. Hines, 127. V. Hogan, 397. . v. HoUey, 317, 318. V. Holmes, 208, 281, 285, 286, 507, 508, 547. V. Hooper, 313. V. Hope, 182, 187, 280, 283, 351. V. Horton, 374, 435. V. Houghton, 206, 208. V. Hourigan, 470. V. Howe, 488, 530. V. Hoxey, 182, 276. V. Hoxie, 314. V. Hoye, 257. V. Hughes, 80. V. Humphries, 199. V. Hunt, 182, 342. V. Hutton, 238. V. Igo, 284. V. IngersoU, 374. V. Ingraham, 522. 532. 552. V. Inhabitants of North Brookfleld, 250, 348. T. Inhabitants of Sheffield, 238. V. Inhabitants of Springfield, 248, 249, 347. V. Intoxicating Liquors, 69, 70. V. Irwin, 53, 54. V. Jackson, 197, 388, 394, 518. V. Jacobs, 294. V. James, 124, 126, 218, 431. V. Jeffries, 181, 329, 503. V. Jenks, 431. V. Jennings, 271, 272, 275, 276, 341, 343. V. Johns, 329. T. Johnson, 5, 98, 510, 528, 530. V. Johnston, 65. V. Jones, 452. V. Kearns, 332, 334. T. Keefe, 106, 185, 244, 259. V. Keenan, 177. V. Keeper, 33, 88. V. Keeper of Prison, 557. T. Kellogg, 191, 330. Commonwealth v. Kelly, 172, 217, 344, V. Kennedy, 40, 314. V. Kenney, 512. V. Kimball, 158, 493. V. King, 531. V. Kirby, 36, 194, 195. V. Knapp, 112, 306, 415, 452, 455. V. Kneeland, 207. V. Knowlton, 5. V. Ladd, 221. v. LafCerty, 73, V. Lahy, 395. V. Lampton, 234. V. Lane, 324. V. Lang, 485. V. Lannan, 154, 163, 192, 369, 372. V. Lapham, 366. V. Lavery, 249, 338, 348. V. Lawler, 552. V. Lawless, 171, 213, 221. V. Lecky, 557. V. Lee, 84. V. Leekey, 558. V. Lesher, 447. V. Lewis, 150, 431. V. Litton, 364. V. Lockwood, 395, 407. V. Logan, 250, 348. V. Long, 376. V. Lottery Tickets, 26, 69, V. Loud, 389, 390. v. Loveridge, 92. V. Loweiy, 352, 489. V. Luscomb, 329, 335, 337. V. Lyons, 14. V. McBride, 562. V. McCarthy, 519. V. McCaul, 474, 478. V. MeChord, 293, 303, 305. V. McComb, 112. V. McCormick, 386. V. McDermott, 512. V. McDonald, 190. V. McGabey, 39, 44, 55. V. JiCGorty, 540, 549. V. McGovern, 159. V. McGuire, 158, 303. V. McKenna, 369. V. McKenney, 329. V. McKenny, 338. V. McLaughlin, 42, 281, 295, 296. V. Macloon, 10. CASES CITED. 671 [The figures refer to pages.] Commonwealth v. McLoon, 244. V. McMahon, 468. V. McManus, 466, 472. V. M'Pike, 360, 516. V. McShane, 404. V. Malier, 105, 230, 315. V. Maloney, 496. V. Manfredi, 478. V. Manley, 231. V. Manson, 802. V. Martin, 31, 168. V. Mason, 93, 551. V. Maxwell, 152, 157, 160, 161, 167, 225, 271, 275. V. Mead, 122. V. Merriam, 193. V. Merrill, 189, 405, 406. V. Mllby, 160, 266. V. Millard, 415. V. Miller, 242, 298, 304, 385, 388, 457. V. Moran, 31. V. Morgan, 330. V. Moriarty, 182. V. Morrill, 329, 334. V. Morse, 228, 231, 493. V. Mortimer, 390, 398. V. Moseley, 180. V. Moulton, 214. V. Mullen, 127, 472. V. MuUins, 542. V. Murphy, 200, 214, 301, 354, 356, 357. T. Murray, 31. V. Myers, 388, 529, 530. V. Newburyport Bridge, 154, 163. V. Newell, 358, 359. V. Nichols, 283, 546. V. Northampton, 311. V. O'Brien, 281, 521, 538. V. O'Connell, 7, 226, 337, 338. V. Odlin, 161. V. O'Donnell, 154, 163. V. Olds, 387. V. O'Neil, 405. V. Otis, 92. V. Packard, 297, 467. V. Park, 158. V. Parker, 10, 119, 314, 354, 547. v. Parmenter, 12, 146, 147, 235, 333, 511. V. Parr, 473. Commonwealth v. Perkins, 145, 146> 234, 235. V. Perrigo, 169, 170. V. Perris, 230. V. Peters, 388. V. Phillips, 25, 26, 68, 151, 152, 160, 163. V. Phillipsburg, 315, 316. V. Place, 369, 431. V. Poisson, 447, 477. V. Pope, 235, 242, 340. V. Porter, 462, 463, 466.- V. Powell, 285. V. Pratt, 546. V. Pray, 160-162, 171, 179, 181, 251,. 265, 430. V. Presby, 41. V. Price, 340. V. Purchase, 386, 387. V. Quin, 24, 142. V. Quirk, 369. V. Radford, 93. V. Band, 11. V. Randall, 182, 329. V. Ray, 99, 301, 334. V. Raymond, 194. V. Reily, 247. V. Reynolds, 53-55, 176, 182, 314. V. Richards, 220. V. Richardson, 327. V. Ricketson, 476. V. Ridgway, 561. V. Roach, 509. V. Roark, 32. V. Roberts, 84, 354, 520. V. Robinson, 431. V. Roby, 358, 359, 384, 386, 387,. 892, 396, 398^02, 406, 479, 481, 485. V. Rodes, 316. V. Rogers, 458, 541. V. Roland, 430. V. Rutherford, 88, 89. V. St Clair, 119. V. Sampson, 302. V. Sanborn, 527. V. Sanford, 393. V. Sawtelle, 208, 219, 222. V. Sayers, 110, 876, 377. V. Scannel, 197. V. Schmous, 485. V. Scott, 487, 515, 517, 521. 572 CASES CITED. [The figures refer to pages.] Commonwealth v. Searle, 210, 312, 334. V. Sego, 530, 531. V. Semmes, 87, 89. V. Shannihan, 271, 275. V. Sharpless, 207, 208. V. Shaw, 163, 218, 436, 546. V. Shea, 397. V. Shearman, 146, 232, 234, 340. V. Sheriff, 32, 133, 134. V. Sherman, 341. V. Sherry, 119. V. Sholes, 144, 197, 387. V. Slgo, 344. V. Simpson, 179, 284. V. Skelley, 216. V. Slacli, 190, 267. V. Slate, 302, 306, 307. V. Slattery, 483. V. Sliney, 512. V. Sloan, 302. V. Smith, 118, 119, 135, 226, 314, 391. V. Smyth, 114. V. Snelling, 177. V. Somerville, 390. V. Spilman, 212, 213. V. Springfield, 311. V. Squire, 197, 259, 332. V. Steimling, 393. V. Stevens, 210, 833. V. Stevenson, 366. V. Stockbridge, 312. V. Stone, 125, 127, 243, 343. V. Stout, 194, 266, 268. V. Stow, 206, 332. V. Strangford, 217. V. Strother, 120. V. Sullivan, 24, 83, 149, 291. V. Sweney, 206, 207, 210. v. Swinney, 221. V. Sylvester, 290. V. Symonds, 279, 285. V. Tarbox, 206-208, 210, 211. V. Taylor, 149, 210, 334, 556. V. Thompson, 196, 258, 259, 283. V. Thurlow, 271. V. Tobin, 37, 40, 50, 54, 57, 425, 482. V. Tolliver, 249, 347, 510. V. Tompson, 233, 340. V. Town of Northampton, 311. V. Tracy, 62, Commonwealth v. Trainor, 341. V. Trask, 86. V. Traverse, 345. V. Trefethen, 512. V. Trickey, 397. V. Trimmer, 231, 379. V. Tryon, 301. V. Tuck, 135, 136, 280, 281, 284, 285, 323, 352, 385. V. Tuckerman, 529. V. Turner, 262. V. Turnpike Co., 148. V. Tuttle, 275, 293. V. Twitchell, 196, 262, 263, 283. V. Van Tuyl, 11. V. Varney, 236. V. Wade, 339, 340, 390, 398, 406. V. Walker, 512. V. Wallace, 24, 393. V. Walters, 114, 262. V. Walton, 324. V. Ward, 29, 102, 209, 333. V. Washburn, 350. V. Weatherhead, 301. V. Webster, 168, 445, 447, 453, 508, 510. V. Weiderhold, 197. V. Wellington, ISO, 184, 250, 343, 348, 349. V. Wentz, 156. V. Whaley, 232. V. Wheeler, 135, 136. V. White, 491. V. Whitney, 154, 163. V. Wilcox, 31, 75. V. Williams, 118, 240, 281, 329, 337. V. Wilson, 210. V. Wood, 11, 110, 243, 328. V. Woods, 213, 333. V. Woodward, 120, 155. V. Worcester, 311. V. Wright, 42, 66, 139, 153, 206, 207, 210, 211. V. Wyatt, 497. V. Zappe, 470. Conkey v. People, 117, 118. Conner v. Commonwealth, 26, 29. V. State, 52. Connor v. State, 11, 246, 254. Conrad v. State, 469. Cook, In re, 65. V. Cox, 160, 210. CASES CITED. 673 [The flffures refer to pages.] Cook V. Nethercote, 43. V. State, 344, 427, 484, 536, 548. Cooke V. Maxwell, 123. Cooke's Case, 223. Cooper V. Adams, 32, 35. V. State, 92, 408, 499. Copperman v. People, 518. Corbett v. State, 470. Cornelius v. State, 478. Cornell v. State, 2:)0, 348. Cornwall v. State, 478, 479, 490, 530. Cornwell v. State, 125, 126, 143. Corryell, In re, 557. Cotrell V. Commonwealth, 534. Cotton V. State, 94, 472. Cottrell, Ex parte, 558. Coughlin V. People, 470. Coupey V. Henley, 42. Coupland, Ex parte, 554. Courtney v. State, 113. Covy V. State, 249, 303, 348. Coward v. Baddeley, 45. Cowell V. Patterson, 73, 80. Cowles V. Dunbar, 41. Oox, Ex parte, 495. V. Coleridge, 76. T. People, 168, 529, 530. V. State, 304, 470. Coy, Ex parte, 60. Coyle V. Commonwealth, 535, Coyles V. Hurtin, 43, 47, 48. Crabtree v. State, 477. Crain v. State, 311. « Craven's Case, 220. Crawlin, Ex parte, 385. Creek v. State, 113, 478. Oregier v. Bunton, 450. Orichton v. People, 252. Crim V. State, 494. Crockett v. State, 358. Cronin v. State, 339, 340. Croom V. State, 463. Cropper v. Commonwealth, 5. Crosby v. Leng, 398. V. People, 522. V. Wadsworth, 371. Crosby's Case, 87. Crosland v. Shaw, 40. Cross V. State, 189, 433. Crouther's Case, 192. Crow V. State, 11, 462. Crowe, In re, 334. Crowley v. Christensen, 561. Crowley's Case, 555. Croy V. State, 452. Crozier v. Cundey, 70. Oruikshank v. Comyns, 342. Crumbley v. State, 361. Cubreth, In re, 62. Cudd V. State, 345. Culver V. State, 539. Cummins v. People, 432. Cummis v. People, 510. Cundiff v. Commonwealth, 203. Cunningham v. State, 82, 93, 170, 190. Curnow, Ex parte, 353, ■357. Curran's Case, 431. Curry v. State, 486. V. Walter, 544. Curtis, Ex parte, 419. V. People, 144, 191, 196, 197, 299. Custis y. Commonwealth, 367. ' D Da Costa, In re, 562. Dailey v. State, 94, 436, 437, 467. Dakins, Ex parte, 556. Dale V. State, 133, 466. Daley, In re, 560. V. State, 470. Damewood v. State, 220. Damon's Case, 309, 310, Damron v. State, 165. Dana v. State, 210, 832. Daniels v. People, 94. V. State, 24, 470. Danovan v. Jones, 42, 43. Darling v. Hubbell, 93. Darrah v. Westerlage, 557. Darst v. People, 436. Daughtery v. State, 413. Davidson v. State, 252, 253, 447. Davis V. Capper, 74. V. Clements, 28, 101. V. Commonwealth, 524, 525. V. People, 263, 449, 479, 588. V. Russell, 41, 42, 44, 45. V. State, 169, 189, 198, 268, 276, 294, 296, 298, 314, 358, 368, 417, 432, 462, 471, 474, 475^ 478, 479, 482, 514, 523, 530. Davis' Case, 64, 65, 556. 574 CASES CITED. [The figures refer to pages.] Davy V. Baker, 169. Dawson v. State, 414, 462. Day V. Commonwealth, 376. V. Day, 102. V. People, 489. Dean v. State, 124, 126. Dearlng's Case, 197. De Bernie v. State, 329. De Haven v. State, 394. Dehm V. Hinman, 34, 37, 47, 51. Deitz V. State, 363. Dekentland v. Somers, 146, 235. De Lacy v. Antoine, 560. Denley v. State, 493. Dennard v. State, 95. Dennis v. State, 182, 348. Dereeourt v. Corbishley, 40, 46. Dickerson v. State, 532. Dickinson v. Bowes, 147. V. Kingsbury, 85. V. State, 95. Dickson v. State, 548. Dilger v. Commonwealth, 43, 52. Dill V. People, 332. V. State, 46. Dillingham v. State, 435, 436. V. U. S., 94, 99. DiltB V. Kinney, 146, 235. Dilworth v. Commonwealth, 452. Dimick v. Downs, 534. Dingley v. Moor, 313. Dingman v. State, 415. Dinkey v. Commonwealth, 351, 354, 400. Divine's Case, 557. Dixon V. State, 427. Dobson V. State, 413. Doebler v. Commonwealth, 437. Doering v. State, 40, 41. Dolan V. People, 377. Doll, In re, 556. Dollar V. State, 462, 463. Donahoe v. Shed, 30, 31, 37. Donald v. State, 376. Donnel v. U. S., 342. Donnelly v. State, 288, 341, 426, 525, 549. Donohue v. People, 510. Donohue's Case, 63. Dooley v. State, 477. Doo Woon, In re, 62, 63, 562. Dormer's Case, 313. Doss V. Commonwealth, 461, 465, 473. Dougan v. State, 419. Dougherty v. Commonwealth, 424, 425. Doughty V. State, 45. Douglass V. Barber, 40. V. State, 427. Dove V. State, 471. Dow V. State, 414, 477. Dowdale's Case, 489. Dowdy V. Commonwealth, 289, 295, 296, 442, 454. Dowling V. State, 450. Dowman's Case, 488. Downing v. State, 334. Dow's Case, 60. Doyle V. People, 431, 470. V. State, 110, 118, 119. Drennan v. People, 21, 42, 50. Drew's Case, 21. Droneberger v. State, 348. Drummond v. State, 317, 319. Drury v. State, 557. Dryman v. State, 469. Du Bois V. State, 208. Duchess of Kingston's Case, 546. Duckworth v. Johnston, 29. Duffles V. State, 75. Dufey V. People, 466. Dugan V. Commonwealth, 84. Dukes V. State, 366, 433. Duke's Qa.se, 427. Dula V. State, 10, 419. Dull V. Commonwealth, 220. Dumas v. State, 347. Duncan, In re, 559. V. Commonwealth, 399. V. People, 300. V. State, 235, 347, 473. Dunn V. State, 388, 424. Dunn's Case, 518. Duppa V. Mayo, 338. Durell V. Mosher, 444. Durham v. State, 351. Dutell V. State, 114. Duttenhofer v. State, 546. Dutton V. State, 377. Dwinnells v. Boynton, 69. Dyer v. State, 377. CASES CITED. 675 [The figures refer to pages.] E Eakln v. Burger, 323. Eanes v. State, 41, 42. Early v. Commonwealth, 280, 415. Earp V. Commonwealth, 414, 415. Eastman v. Commonwealth, 181. Eastwood V. People, 457. Eckhardt v. People, 264. Eden's Case, 561. Edgerton v. Commonwealth, 490. Edmondson v. Wallace, 446. Edmundson v. State, 146, 235. Edsall's Case, 334. Edwards v. Commonwealth, 239, 254. V. State. 197, 421. Edymoin, In re, 558. Elchorn v. Le Maitre, 378, 379. Eighmy v. People, 514. Eldridge v. Commonwealth, 487. V. State, 377. Ellenwood v. Commonwealth, 369. EUiott V. State, 303, 308. V. Van Buren, 534. Ellis, Ex parte, 556. V. State, 117, 484. Elmore v. State, 510. Emanuel v. State, 557. Emerick v. Harris, 435. Emery v. Chesley, 56. Emporia v. Volmer, 435. Engleman v. State, 244. English V. State, 110, 111, 123, 334. Enwright v. State, 145. Erskine v. Davis, 146, 235. Eskridge v. State, 531. Evans v. Foster, 85, 90. V. State, 147, 175. V. Territory, 355. Evarts v. State, 247. Everett v. State, 304, 545. Bvers, Ex parte, 88. V. State, 523. Ezeta, In re, 59. Fagan, In re, 555. Faire v. State, 423. Farley, Ex parte, 561. Farmer v. People, 194. Farr v. East, 257. Parrand, In re, 559. Farrell v. State, 280. Farris v. Commonwealth, 280. Farrow v. State, 342. Faulkner v. Territory, 417, 467, 541. Fergus v. State, 188. Ferguson v. Ferguson, 560. Ferrens, In re, 560. Ferris v. People, 385. Fetter, In re, 62, 65. Field, Ex parte, 555. V. Commonwealth, 499. Fight V. State, 426. Finch V. State, 157, 266, 425, 557. Pindlay v. Pruitt, 42, 45, 51. Finley v. State, 389. Finney v. State, 13, 202. Firestone v. Rice, 40, 42, 47, 51. First Nat Bank v. Post, 443. Fisher, Ex parte, 557. V. Commonwealth, 282. V. People, 466, 541. Fisk, Ex parte, 558. Fitton, In re, 66. Fitzgerald v. State, 473. Fitzpatrick's Case, 87. Flagg v. People, 529, 530. Flaherty v. Longley, 69. V. Thomas, 204. ■Fleming v. People, 275. V. State, 245, 457. Fletcher v. People, 301. V. State, 477. Flint V. Commonwealth, 458. Flora V. State, 228. Floyd V. State, 29, 471. Fogarty v. State, 541. Follett V. Jefferyes, 545. Foote V. Hayne, 545. V. State, 497. Forbes v. Commonwealth, 493. Ford V. State, 483. V. Tilly, 498. Forsythe v. U. S., 5. Fort V. State, 547. Fortenberry v. State, 175. Foster, Ex parte, 88. V. Commonwealth, 380. V. People, 511. V. State, 133, 134, 354, 425, 490. Foster's Case, 31, 75. 676 CASES CITED. [The figures refer to pages.] Fountain v. State, 469. Poust V. State, 388. Fouts V. State, 428, 429. Fowler v. State, 228, 303, 468. Fox V. Gaunt, 45. V. People, 510. Francisco v. State, 280. Franklin v. Commonwealth, 508. V. State, 399, 401, 402, 463, 465, 466. V. Talmadge, 146, 235. Frazier v. State, 347, 462, 517. Freegard v. Barnes, 37. Freel v. State, 486, 490. Freeman v. Arkell, 121. V. People, 444, 453-^55. Freleigh v. State, 208. French v. State, 424. Friar v. State, 475. Friedrich, In re, 559. Frisby V. State, 335. Frost V. Commonwealth, 435, V. Thomas, 50. Fuechra- v. State, 134. Fuliambe's Case, 260. Fulkner v. State, 406. Fuller Y. State, 312, 314. Fulmer's Case, 282. G Gady v. State, 165, 227. Gaffney v. Circuit Judge Missaukee Co., 385. Gahan v. People, 342. Galbreath v. State, 303, 308. Gallagher v. State, 181, 529. Galliard v. Laxton, 40. Galvin v. State, 40, 48. Ganaway v. State, 106, 430. Gannon, In re, 117. V. People, 392. Garcia v. State, 154, 420, 421. V. Territory, 497. Gardiner v. People, 385, 510. V. State, 473. Gardner v. People, 114, 116. V. State, 472. V. Turner, 441. Garman v. State, 424. Gamer v. State, 190, 455, 463, 537. Garrett v. State, 639. Garthwaite v. Tatum, 446. Garvey v. Commonwealth, 204. Gates V. People, 447. V. State, 193. Galtewood v. State, 193, 261. Gee Wo v. State, 271. Genner v. Sparks, 55, 56. Gentry v. State, 99. George v. Pilcher, 553. V. Radford, 56. Geraghty v. State, 235. Gerard v. People, 390. Gerrish v. State, 146. Gibbs V. State, 467. Gibson, Ex parte, 557. V. Commonwealth, 391, 392, V. State, 380, 415. Giftord V. People, 429. Giles V. State, 260. Gill V. Scrlvens, 275. V. State, 242. Gillespie v. State, 452. Gillooley v. State, 546. Gilyard v. State, 467. Gipson V. State, 486, 489, 490. Girous V. State, 343. Gise V. Commonwealth, 133. Gitchell V. People, 420. Gladden v. State, 441. Gleason v. McVickar, 174. Glenn, In re, 558. Glover v. State, 415. Goans, Ex parte, 88. Goddard v. State, 106. Godfreidson v. Peopie, 426. Goersen v. Commonwealth, 430. Gold V. Bissell, 29, 56. Golding V. State, 400. Goldman v. State, 469. Goldstein v. State, 221, 460. Gonzales v. State, 447. Goodrich v. Hooper, 177. Goodwin v. Dodge, 83. V. Governor, 94. V. State, 530, 538. Gordon's Case, 507. Gore V. State, 522, 532. Goshen & S. Turnpike Co. v. Sears^ 258. Gott V. Mit'-hell, 37. Gouglemao v. People, 198. CASES CITED. 677 [The figures refer to pages.] Governor r. Fay, 85, 92. V. Jackson, 84. Grace, Bx parte, 435. Grady v. State, 465, 494. Graeter v. State, 321. Graham v. Commonwealth, 133. V. State, 339, 340. Grainger v. Hill, 55, 56. Granice, Ex parte, 556. Grant v. State, 227, 548. Gray v. State, 99, 182. Gray's Case, 525. Greathouse's Case, 558. Green, In re, 482. T, Commonwealth, 199, 373, 417. V. State, 9, 10, 17, 110, 122, 189, 284, 289. Greenfield v. People, 535. Greenough, In re, 65. Greenwood v. State, 395, 404. Greeson v. State, 143, 144, 182. Gregg, In re, 560. V. State, 199. Gregory v. Commonwealth, 276, 314. V. State, 84, 85. Gresham v. Wallier, 341. Griffin v. Coleman, 42. V. State, 210, 284, 333, 358, 447. V. Wilcox, 555. Griffith, In re, 133, 134. V. State, 290. Grim v. Reimbold, 494. Grimm v. People, 427. Grimmett v. Askew, 5. V. State, 422. Grimwood v. Barrit, 174. Grisham v. State, 405. Griswold v. Sedgwick, 29, 30, 36. Gross V. State, 119. Grubb V. State, 541. Gruber v. State, 386. Grumon v. Raymond, 29, 36, 69. Guedel v. People, 390. Guenther t. Day, 70. V. People, 485-^90. Guess V. State, 378. Guest V. State, 485. Gunter v. State, 541. Gurley v. Gurley, 270. Gumey v. Tufts, 36. Gumsey v. Lovell, 29. Guynes v. State, 355. CKIM.PROC. — 37 H Hackett V. Commonwealth, 197. V. King, 507. Hackney v. Welch, 66. Hager v. Falk, 6. Hakewill, In re, 561. Haley v. State, 342, 353. Hall V. Commonwealth, 197, 416, 477, 498. V. Hawkins, 42. V. Patterson, 557. V. Roche, 50. V. State, 93, 94, 244, 341, 424, 426, 476, 482, 508, 522, 537. V. U. S., 462. Halsted v. Brice, 29. Ham V. State, 10, 63, 66. Hamblett v. State, 219, 227. Hamilton v. Commonwealth, 262, 424, 494. V. People, 74, 466, 522, 552. V. Reg., 190. T. State, 189, 360, 400. Hammel, In re, 558. V. State, 169. Hammett v. State, 487. Hammond v. Brewer, 251. V. People, 562. Hampton v. Brown, 94. V. State, 289. Handcock v. Baker, 45, 46, 54. Handly v. Commonwealth, 464. Hankins v. People, 405. Hanks v. State, 10. Hannum v. State, 487. HanofC v. State, 551. Hanrahan v. People, 247. Hanson, Ex parte, 559. Harbin v. State, 98. Hardin v. State, 119, 340, 37?. Harding v. People, 271. Hardison v. State, 498. Hardy v. Commonwealth, 360. V. State, 460, 482. Hardy's Case, 544. Hargrove v. State, 495, 514, 515, 517 Harlan v. State, 347. V. Territory, 66, 443. Harman v. Commonwealth, 198, 293, 294, 299. Harmon v. Commonwealth, 198, 295. 578 CASES CITED. [The figures rpfer to pages.} Harp V. Osgood, 97. Harp V. State, 407. Harrall v. State, 115. Harrington v. Dennie, 96. Harris v. City of Atlanta, 57. V. People, 329, 424, 425, 489. Hart, Ex parte, 63. V. Cleis, 275. V. Lindsey, 146, 235. Hartman v. Aveline, 64, 65. Hartranft, Appeal of, 544. Hart's Case, 200. Hartzell v. Commonwealth, 450. HaiTey v. Commonwealth, 486, 487. V. State, 413. Harvey's Case, 87. Haskins v. People, 222, 247, 249, 329, 337, 348. V. Young, 30, 32, 56. Easlip V. State, 276, 314. Hastings v. Levering, 174. Hatcher v. State, 472. Hathaway v. State, 116. Hatwood V. State, 240. Haught V. Commonwealth, 149. Hawkes v. Hawkey, 177. Hawkins v. Commonwealth, 53, 54. V. State, 431, 468. Oaworth v. State, 228. Hawthorn v. State, 221, 324. Hayes v. State, 367. Hayley v. Grant, 413. Haynes v. Commonwealth, 204, 513. Hayne's Case, 228. Hays V. Hamilton, 413. Head v. Martin, 52. Headley v. Shaw, 146, 235. Heath V. State, 281. Heckman v. Swartz, 29, 31. Hector V. State, 386. Heikes v. Commonwealth, 249, 348. Heine v. Commonwealth, 521. Heineman v. State, 279. Helm V. State, 448. Henderson v. Commonwealth, 414. V. State, 347. Hendrick v. Commonwealth, 395, 445, 453. Hendricks v. Commonwealth, 380. Hendryx v. State, 433. Hennessey v. State, 333. Hennessy v. State, 209. Henwood v. Commonwealth, 295. Herman v. People, 295, 351, 359, Hernandez v. State, 328. Herris, In re, 60. Herron v. State, 341, 493. Hess V. State, 197, 209, 301, 359. Hewitt V. State, 108, 141, 271. Hewitt's Case, 414. Heyden's Case, 200. Heydon's Case, 243, 254, 304. Heymann v. Reg., 320. Hibbs, Ex parte, 60. Hibler v. State, 557. Hickam v. People, 416. Hickman v. People, 420. Hicks v. State, 418. V. Territory, 10, 347. Higges V. Henwood, 155, 305. Higginbotham v. State, 414. Higgins V. Commonwealth, 421, V. People, 513. Hightv. U.S., 88. Hightower v. State, 155. Hilderbrand v. State, 294. Hill, Ex parte, 560. V. Commonwealth, 471, 548. T. People, 429, 436. V. State, 360, 371, 427. Hines v. State, 386, 389. Hinkle v. Commonwealth, 282, 283. Him V. State, 271. Hite V. Commonwealth, 425, 426, 534. V. State, 390, 406. Hittner v. State, 475. Ho Ah Kow V. Nunan, 559. Hobbs, Ex parte, 63. V. Branscomb, 41, 42. V. State, 220. Hoberg v. State, 475, 470, 479. Hodge V. State, 408, 505, 508, 541. Hoffman v. State, 386. Hogg V. Ward, 41. Hoggatt V. Bigley, 39. Hoghtaling v. Osborn, 482. Hogshead v. State, 443. Holcomb V. Cornish, 39. V. Holcomb, 534. Holden v. State, 465. Holder v. State, 458, 459, 517. Holford V. State, 233. Holley V. Mix, 41, 44, 45. HoUingsworth v. Duane, 442. CASES CITED. 579 [The figures refer to pages.] HoUoway v. Reg., 164. Holman, Ex parte, 560. V. Mayor, 558. Holmes, Ex parte, 59. Case, 309. T. Commonwealth, 427. V. Jennison, 59. V. State, 379, 534, 540. V. Walsh, 306. Holt V. Commonwealth, 415. Hood V. State, 416. Hooker v. Commonwealth, 426. V. State, 222, 336, 453. Hooper, In re, 63. V. State, 208, 396. Hoover v. State, 345. Hope V. Commonwealth, 226, 338. V. People, 113, 518. Hopkins, Ex parte, 104, 140, 154. V. Crowe, 42. Hopson, In re, 562. Hopt V. Utah, 424, 425. Horan v. State, 194. Horbach v. State, 506, 537. Horn' V. State, 354, 355, 421, 467, 470, 510, 517. Hombeck v. State, 513. Homsby v. State, 300, 325. Horsey v. State, 493. Horthbury v. Levingham, 313. Horton v. State, 170, 524. Hosklns T. State, 282, 330, 487. Houghton V. Bachman, 71. Housh V. People, 26. How V. Strode, 498. Howard v. Commonwealth, 420. V. State, 541. Howel V. Commonwealth, 262. Howell's Case, 198. Howie V. State, 95. Hoye V. Bush, 29. Hoyt V. People, 281. Hronek v. People, 468, 486, 543. Hubbard, Ex parte, 557. V. Mace, 55. V. State, 428. Hudson V. State, 110, 118, 299, 312, 453. Huff V. State, 392. Huffman v. Commonwealth, 269. Huffman's Case, 144. Huggins V. State, 193. Hughes V. State, 9, 486. Huldekoper v. Cotton, 121. Huish V. Sheldon, 498. Huling V. State, 119. Humbard v. State, 339, 340. Hume V. Ogle, 251, 380. Humes v. Taber, 37, 69. Hummel v. State, 220. Hunt V. Commonwealth, 414. V. State, 392, 466. Hunter v. Commonwealth, 294, 295, 359. V. State, 288, 289, 342, 477. Huntington v. Shultz, 56. Hurd V. Commonwealth, 414, 417. Hurley v. State, 142, 143. Hurt V. State, 895. Hurtado v. California, 108. Hussey v. Davis, 70. Hutchins r. State, 232. Hutchinson v. State, 242. Hutchison v. Birch, 55. V. Commonwealth, 473. Hyden v. State, 471. Ike V. State, 262. Imlay V. Rogers. 123. Ingalls V. State, 540, 547. Ingram v. State, 89, 380. Inwood V. State, 435. Irwin V. State, 93. Isaacs V. Wiley, 146, 235. Jackson, Ex parte, 556. V. Commonwealth, 5, 73, 75, 424, 425, 526. V. Pesked, 320. V. Prevost, 235. V. State, .52, 110, 175, 262, 341, 344, 386, 414, 420, 466, 470, 482, 498. Jackson's Case, 48, 65. Jacobs v. Commonwealth, 242, 253, 344, 424. V. State, 43. Jacquemine v. State, 84. 580 CASES CITED. [The figures refer to pagesj Jambor v. State, 385. James v. Commonwealth, 161. V. Rutlech, 177. T. State, 296, 298, 494. Jamison v. People, 415, 420, 510. Jane v. Commonwealth, 203. V. State, 197, 237, 251, 254. Jansen v. Ostrander, 174. Jefferds v. People, 531. JefEerson v. People, 272. V. State, 367, 460. Jeffries t. Commonwealth, 172, 243. Jenkins v. MitcheU, 455. V. State, 354. Jennings v. Commonwealth, 280, 299, 300. Jensen v. State, 272. Jerry y. State, 125, 144, 196. Jesse V. State, 443. Jewell V. Commonwealth, 426, 451. Jillard v. Commonwealth, 280. Jim V. State, 468. Johns V. State, 14. Johnson v. Castle, 535. V. Commonwealth, 415. V. Leigh, 54. V. Mayor, etc., of Americus, 57. V. People, 367. V. State, 29, 31, 116, 221, 296, 297, 305, 328, 392, 419, 443, ,447, 455, 468, 487, 499, 513, 515, 525, 543. V. U. S., 132. Johnston v. Riley, 29, 65. V. State, 508. Jones, Ex parte, 90. V. Commonwealth, 246, 299, 300, 387, 486, 487. V. Fletcher, 69. V. Kelly, 557. V. Leonard, 65. V. Macquillin, 146, 342. V. Reg., 156, 268. V. Robbins, 107, 108, 435. V. State, 147, 175, 189, 340, 341, 347, 353, 366, 447, 450, 467, 471. 472, 476, 479, 492, 511) 522, 525, 526, 534. V. Timberlake, 556. Jorasco v. State, 340. Jordan, In re, 561. V. Commonwealth, 515. Jordan v. State, 530. Jordt V. State, 223. Josslyn V. Commonwealth. 201. Joy y. State, 386, 392. Judah y. McNamee, 455. Jugiro, In re, 559. Jumpertz y. People, 474, 478. Justice y. Commonwealth, 405. y. State, 347, 365, 526. K Kaelin y. Commonwealth, 197. Kahn v. Reedy, 443. Kalloch V. Superior Court, 377. Kane y. People, 288, 289, 291, 293, 296, 299, 301, 313, 366. Kearney, Ex parte, 557. Keeeh v. State, 494. Keefer y. State, 289. Keehn y. Stein, 30. Keenan y. State, 44, 46, 478. Keene y. Meade, 146, 235. Keener v. State, 505. Keeton y. Commonwealth, 403-405. Keith y. Tuttle, 49. Keithler v. State, 433, 472. Keller y. State, 175. Kelley y. People, 512, 522. V. State, 147. Kellum V. State, 429, 486. Kelly, Ex parte, 558, 560. In re, 14, 102. V. State, 425, 460. y. Wright, 53. Kelsey y. Parmelee, 33. Kemmler, In re, 497. Kemp's Case, 555. Kendrick y. Commonwealth, 546. Kennedy y. Duncklee, 35, 36. y. People, 342, 354, 355. y. State, 44, 228. Kennegar v. State, 289. Kenriek y. U. S., 313. Kent y. State, 535. Kentucky y. Dennison, 64. Kenyon, Ex parte, 559. Kernan y. State, 50. Kerr y. Illinois, 60, 557. Keyes y. State, 433. Kilboum y. State, 276. CASES CITED. 681 [The figures refer to pages.] KlUlns V. State, 515. Kilrow V. Commonwealth, 141. Kimpton's Case, 64. Klncaid v. Howe, 146, 235. V. People, 215. Kindred v. Stitt, 44, 45. King, In re, 559. V. Fearnley, 192. V. Marsh, 110. V. State, 93, 95, 96, 107, 212, 284, 346, 416, 420, 445, 452, 476, 479, 480, 499, 531, 541. Kingsbury's Case, 64, 65. Kinney v. State, 145, 263. Kirby v. State, 444, 558. V. Territory, 513. Kirk T. Commonwealth, 490. Kirton v. Williams, 371. Kitchingman v. State, 296. Kitrol V. State, 119, 120. Klein v. People, 307. Klock V. People, 386, 412. Knoll V. State, 536. Knot V. Gay, 40. Knowles v. State, 314, 414. Knox T. State, 390. Kohlheimer v. State, 390, Kopke V. People, 271. Kowalsky, In re, 557. Kramer v. Commonwealth, 518, 519. Krans, Ex parte, 42. Kroer v. People, 293. Krug V. Ward, 33. Lacey v. State, 135. Lackey v. State, 130. Laclede Bank v. Keeler, 552. Lacy V. State, 118. Lagrone v. State, 266. Lamb v. State, 441. Lambert v. People, 154, 161, 324 Lambeth v. State, 472. Lamkin v. People, 240. Lancaster v. Lane, 39, 40. V. State, 455. Landa v. State, 13, 15. Lander v. People, 514. Lane y. People, 392. Lanergan v. People, 512. Lang T. State, 353. Langdale v. People, 174, 209, 333. Langdon v. People, 235, 541. Lange, Ex parte, 383, 389, 495, 558. Langford v. State, 518. Lanier v. State, 189. Larned v. Commonwealth, 162, 189, 219, 220, 226, 259, 338. Lascelles v. Georgia, 60, 66. V. State. 289. Launock v. Brown, 55. Lavarre v. State, 221. Lavelle v. State, 321. Lavender v. State, 222. Lavlna v. State, 62. Lawn V. People, 427. Lawrence, Ex parte, 562. V. Commonwealth, 455. T. Hedger, 41, 42. V. State, 343. Lawson v. Buzines, 33, 56. Layer's Case, 77. Lazier v. Commonwealth, 175, 244, 288, 296, 379. Leach v. People, 445. Leache v. State, 541. Leathers v. State, 110. Lebkovitz v. State, 284. Ledbetter v. State, 33. Ledgerwood v. State, 6, 391, 496. Ledwith v. Catchpole, 41. Lee V. Clarke, 262, 312. V. Gansel, 55. V. State, 98, 100, 120, 242, 386, 423, 426, 445. Lefevre v. State, 530. Lefler v. State, 175, 468. Leftwich v. Commonwealth, 165, 221, 225. Leigh V. Cole, 51. Lembro & Hamper's Case, 263. Lemons v. State, 310. Lenox v. Fuller, 552. Lester v. State, 87, 90, 254, 386. Leverette v. State, 335. Levison v. State, 135. Levy V. Edwards, 43. V. State, 395. Lewallen v. State, 486. Lewellen v. State, 305, 510. Lewis V. Board of Com'rs, 105, 109. V. State, 41, 50, 184, 221, 339, 340, 415, 445, 447, 454, 462. 582 CASES CITED. [The figures refer to pages.] Lewson v. Reddleston, 126. Lienburger v. State, 118. Lilly V. People, 499. Linbeck v. State, 425. Linda v. Hudson, 560. Lindsay v. Commonwealth, 136. Lindsey v. State, 303, 308. Linford v. Fitzroy, 84. Linsday v. People, 543. Lisle V. State, 452. Lister v. Mundell, 498. Lithgow V. Commonwealth, 446. Litman v. State, 334. LitteU V. State, 178, 179. Little V. Commonwealth, 514, 516. Livingston v. Commonwealth, 535. Lloyd, In re, 360. V. State, 24. Loakman v. State, 415. LoefCner v. State, 461, 541. Logan V. State, 117. V. U. S., 387, 428, 447, 521, 522, 543. Lohman v. People, 360, 551. Long V. People, 367, 414, 417, 430. V. State, 44, 46, 50, 228, 426, 443, 469, 472, 486. Long's Case, 197-199, 231. Lopez V. State, 542. Lopez & Battler's Case, 60. Lord T. State, 429, 482, 483. Lorton v. State, 282, 329, 337, Lott V. State, 358. Lougee v. State, IOC. Lough V. Millard, 28, 556. LouisviUe, N. O. & T. R. Co. v. Mask, 444. Lovett V. State, 392. Low T. People, 219, 227. Lowe V. State, 468. Lowery v. State, 533. Low's Case, 114, 123. Loyd V. State, 413. Lucas V. State, 357. Lumm V. State, 88-90, 561. Lusk V. State, 124. Luter V. State, 160. Lnittrell v. State, 332. Lutz V. Commonwealth, 492. Lynch v. Grayson, 536. V. People, 88, 90, 557. V. State, 462, 400. Lynes v. State, 342. Lynn, Ex parte, 556. Lyons v. People, 290. V. State, 99. M Mabry v. State, 443, 445. McAnally, Ex parte, 88. McAuly V. State, 221. McBean v. State, 491. McBride v. State, 247. McCabe, Ex parte, 59. McCall V. McDowell, 555. McCann v. Commonwealth, 385. V. State, 475. McCarty v. State, 95, 217, 221. McClain v. Commonwealth, 468. V. State, 388. McClellan, Ex parte, 560. McClinchy v. Barrows, 69. McClure v. State, 123, 452. McCole V. State, 85. McCombs V. State, 347. McConnell v. Kennedy, 33. McConologue's Case, 558, 560. McCorkle v. State, 482. McCowan v. State, 229. McCoy V. State, 73, 246, 467, 470, 471. McCreary v. Commonwealth, 474. McOuUough V. Commonwealth, 40, 109, 113, 116, 311. V. State, 290, 361. McCutcheon v. People, 264. McDade v. State, 344. McDaniels' Case, 264. McDermott t. State, 415. McDonald v. State, 220. V. Wilkie, 36. McDonnell v. State, 210. McDonough v. State, 94. McDuffie V. State, 444. McElroy v. State, 198. McElvalne v. Brush, 497. McEntee v. State, 486, 489. McFadden v. Commonwealth, 388, 452. McFarlan v. People, 5. McFarland v. State, 394, 406. McGear v. Woodi-uff, 435. McGee v. State, 335. CASES CITED. 583 fThe figures refer to pages.] McGehee v. State, 243. McGowan v. State, 446, 466. McGraw v. Commonwealth, 522. M'Gregg v. State, 291, 445, 484. McGregor v. State, 178. McGuffle V. State, 468, 488. McGuire v. People, 542. V. State, 312, 452. McHargue v. Commonwealth, 527. Mclntire v. Commonwealth, 115. Mclntyre v. People, 482. V. Raduns, 43. McJunklns v. State, 432. Mackalley's Case, 304, 328. McKane v. State, 222. McKay v. Speak, 146, 235. McKee v. State, 114. McKenzie v. State, 296. Mackin v. U. S., 107. McKinley v. State, 317. McKnlght, Ex parte, 66. McLaln v. State, 478. McLane v. State, 240. McLaughlin, Ex parte, 386, 387, V. Commonwealth, 175. V. State, 141, 317, 318, 341. McLean v. State, 461, 474, 478. McLennon v. Richardson, 54. McMahan v. Green, 47. V. State, 214. McMeen v. Commonwealth, 471. McMiUan v. State, 419. McNealy v. State, 415. McQuald V. People, 207.' McQuillen v. State, 117, 118. McRea v. Mayor, 395. McRobets, Ex parte, 560. Macrow v. Hull, 498. McVay v. State, 535. McWhirt v. Commonwealth, 358. McWllliams v. State, 477, 480. Madison v. Commonwealth, 93. Mahan v. State, 125. Mahajiey v. St. Louis & H. R. Co., 443. Maher v. State, 478. Mahon v. Justice, 60. Maile v. Commonwealth, 198. Main v. McCarty, 43, 49. Maine v. State, 526. Major's Case, 221. Malone v. State, 354. Maloney v. Traverse, 413. Manchester, In re, 64. Mangum v. State, 484. Manke v. People, 536. Manly v. State, 421. Mann v. Glover, 453. Mansfield v. State, 461. March v. Commonwealth, 82. Markley v. State, 242. Markwell v. Warren Co., 80. Marler v. Commonwealth, 290, 415. Marsh V. State, 454. Martin, In re, 558. V. Commonwealth, 377, 408, 508. V. People, 393. V. State, 132, 190, 292, 378, 417, 421, 447, 485, 534, 543. Marvin v. State, 329. Mask v. State, 307. Mason v. State, 12, 262, 341. Massey v. State, 425. Massle v. Commonwealth, 11. V. State, 21. Mastronada v. State, 373. Mato, Ex parte, 557. Maton V. People, 431. Matthews v. State, 271, 272. Mattox V. U. S., 491. MauU V. State, 354, 415. Maurer v. People, 425. Maxwell v. State, 541. May V. State, 413. Mayer v. People, 518. Mayo V. State, 289, 291. Mayor v. Quh-k, 545. Mayor of Doncaster v. Day, 533 Mead v. Haws, 29, 30. V. State, 166, 299, 471. Medlock v. State, 344. Mee V. State, 209, 333. Meece v. Commonwealth, 482. Meek v. Pierce, 33, 68, 69. Megowan v. Commonwealth, 239, 345k Melton V. State, 165. Melvin V. Fisher, 29. Mercer v. State, 484, 491. Merdeth v. People, 431. Merrick v. State, 288. Merryman, Ex parte, 555. Mershon v. State, 118, 119, 288, 29& Merwin v. People, 221, 226. Messner v. People, 494. Meyers v. State, 526. 684 CASES CITED. [The figures refer to pages.] Miazza v. State, 385. Milan v. State, 190. Milburn, In re, 562. Miles, In re, 60. V. State, 470. Miller v. Foley, 29. V. Grice, 36. T. People, 191, 209, 333, 367, 495, 530. V. State, 279, 289, 299, 315, 318, 416, 460. MlUigan, Bx parte, 555. V. State, 468. Mills V. Commonwealth, 6, 296, 484, 487. V. State, 408. Minet v. Morgan, 546. Minis y. U. S., 270. Minor v. State, 93. Mishler v. Commonwealth, 99. MltcheU, In re, 560. V. Lemon, 43. V. State, 47, 416, 431, 482, 485, 499. Mix V. Woodward, 177. Mixon V. State, 386. Mockabee v. Commonwealth, 20. Mohr, In re, 65. Monaiian v. State, 373. Money v. Leach, 29, 30. Montag V. People, 541. Montague v. Commonwealth, 453. Montee y. Commonwealth, 466. Montgomery y. State, 466, 525. Moody y. People, 417. Mooney, Ex parte, 558. Moore V. Commonwealth, 190, 455, 541. y. Illinois, 395. y. People, 347. y. State, 175, 340, 347, 349, 524. y. U. S., 508, 517. V. "Watts, 29, 36. Moran v. Commonwealth, 445. Morgan y. Commonwealth, 170. V. Edwards, 174. y. State, 328, 386, 441, 482. Morley V. Chase, 45. Morman v. State, 194. Morrell y. Quarles, 62. Morris y. State, 5, 353, 367, 392, 400, 453, 490. Morrow v. State, 84, 398. Morton y. People, 141. y. Skinner, 65. Mose y. State, 106, 115. Moses y. State, 444, 445. Mott's Case, 223. Mount y. State, 386, 395, 430. Mowbray y. Commonwealth, 300. Mowry y. Chase, 55, 56. Moyer y. Commonwealth, 178. Moyle's Case, 223. Muely y. State, 468. Mulcahy y. Reg., 126. Mullinix y. People, 293. Mull's Case, 415. Munford y. State, 390. Munly y. State, 453. Munshower y. State, 493. Munson y. State, 208, 358, 367, 486, Murdock y. Ripley, 51. Mure y. Kaye, 41. Murphy y. Commonwealth, 399, 402, 438. y. People, 435. V. State, 141, 329, 391, 436, 465, 512. Murray y. Fitzpatrick, 258, 349. y. State, 189, 289. Muscoe V. Commonwealth, 421, Musgraye y. State, 66. Musiek y. People, 119, 120. Myers y. Commonwealth, 319. N Nabors y. State, 486, 490. Neales y. State, 436. Nealy y. State, 498. Ned V. State, 444. Neely y. People, 445. Neider y. Reuff, 561. Neiderluck y. State, 342. Nelms y. State, 445. Nelson y. Commonwealth, 414. y. State, 442. y. U. S., 271. Nemo y. Commonwealth, 484, 487. Neubrandt y. State, 331. Newberry y. State, 414. Newcomb y. State, 141, 324, 468. Newman v. State, 288, 289. Newton, Ex parte, 560. CASES CITED. 685 [The figures refer to pages.] Newton v. Maxwell, 147. V. State, 468. Nicely, Appeal of, 484. Nichols V. IngersoU, 83, 97. v. State, 320, 322, 363. V. Thomas, 29, 35. Nicholson v. Hardwick, 41. V. State, 94, 531. Nixon V. State, 412, 414. Noble V. People, 444, 446. V. State, 170. Noblin V. State, 473. Nochols V. Cornelius, 561. Noe V. People, 247. Nolan T. State, 386, 392, 424. Noland v. State, 468. Noles V. State, 33, 36, 123, 141. Nomaque v. People, 114, 116, 427, 482, 485. Noonan v. State, 536. Norrls v. Newton, 559. V. State, 11. North T. People, 39, 412-414, 417. Norton v. People, 228. V. State, 482. Nowak V. Waller, 57, 74. Nugent V. State, 386. Nye, Ex parte, 557. O O'Brlan v. Commonwealth, 386, 389. V. State, 39. O'Brien v. Commonwealth, 467. V. People, 431. V. State, 349. O'Connell v. Reg., 300. O'Connor v. State, 42, 447. O'Hara v. People, 81, 130. Ohio & M. R. Co. V. Fitch, 560. Oily's Case, 125. Olds V. Commonwealth, 416. O'Leary v. Peoplp, 354, 355. Olive V. State, 538. Oliver, In re, 555. O'Malia v. Went worth, 556. O'Meara v. State, 385. Omer v. Commonwealth, 537. Omlchund v. Barker, 543. Orman v. State, 545. Ormsby v. People, 522. Orr V. State, 296. Osborn, Ex parte, 90. V. Commonwealth, 80. Osborne v. State, 339, 340. O'Shields v. State, 431. Osiander v. Commonwealth, 444. Owen V. State, 289. Owens V. State, 110, 339, 340. Pace V. Commonwealth, 416. Pack V. State, 94, 99. Packer, In re, 495. Padfleld v. CabeU, 28. V. People, 470, 539. Padgett V. Lawrence, 146, 235. Page V. Commonwealth, 486, 489, 490. T. State, 341, 443. Pain, Ex parte, 178. Paine v. Fox, 174. Painter v. People, 472, 508, 518, 519. Palfrey's Case, 309, 310. Palin V. State, 344, 431. Palmer v. People, 239, 253. V. State, 446. Palmore v. State, 440. Palmquist v. State, 424. Pancho v. State, 145. Papineau v. Bacon, 57, 73, 75. Parchman v. State, 342, 390, 398. Pardee v. Smith, 74. Park V. State, 99. Parker, In re, 560. V. Bidwell, 97. V. Commonwealth, 488. V. Elding, 375. V. State, 485, 539. V. Walrod, 35, 36. V. Webb, 313. Parkinson v. People, 367. Parris v. People, 107. Parrish v. State, 363, 466. Parrott's Case, 559. Parsons v. Lloyd, 35, 36. V. State, 541. Partain v. State, 486. Pate V. State, 508. Patrick v. People, 315. Pattee v. State, 324, 373. Patterson v. Commonwealth, 114. 58G CASES CITED. [The figures refer to pages.] Patterson v. People, 432. V. State, 94, 328, 385, 454, 465. Pattison, Ex parte, 87, 562. Payne v. People, 226. V. State, 445, 446. Peake v. OldMm, 177. Pearce v. Atwood, 28, 35, 36, 49. V. State, 64. V. Texas, 64. Pearvear v. Commonweaitn, 497. Pease v. Burt, 97. V. State, 460. Peebles v. State, 317. Peiffer v. Commonwealth, 475. Pell V. Prevost, 146. Pellum V. State, 469. Pendleton v. Commonwealth, 208. Pennsylvania v. Bell, 127, 314. V. Huston, 308. V. McKee, 242. People V. Abbott, 353, 360, 459. V. Ackerman, 469. V. Adams, 11, 14, 181, 241. V. Adler, 45, 290, 291. V. Ah Lee Doon, 414, 415. V. Ah Sing, 229. V. Aiken, 291, 292. T. Allen, 262. V. Anderson, 414, 466. V. Antonio, 488. V. Arnold, 522, 532. V. Austin, 291. V. Badgley, 208. V. Baker, 253. T. Ball, 221. r. Bannister, 487. V. Barrett, 346, 386, 390. V. Barric, 392. V. Barry, 467. V. Bartz, 40, 41. T. Baughman, 94. V. Bawden, 363. V. Beach, 549. V. Beatty, 119. V. Beauchamp, 423. T. Becktel, 24. V. Belcher, 29. V. Bemm'erly, 479, 541. V. Bentley, 355. V. Blakeley, 545. V. Blankman, 94. V. Bodine, 420, 455. People V. Bogart, 208, 229. V. Boggs, 486. V. Bonney, 484. V. Bosworth, 527, 543. V. Bowden, 541. V. Brady, 64, 527, 557. V. Breese, 248. V. Burgess, 240, 344. V. Burk, 263. V. Burt, 37, 41. V. Burtnett, 556. V. Bush, 164. V. Butler, 110. V. Cage, 386, 387. v. Campbell, 6, 104, 105, 108, 141, 315, 317, 318. V. Carolin, 447. V. Carpenter, 89, 95. V. Casborus, 390, 392, 395. V. Casey, 281, 455, 546. V. Cassells, 558. V. Cassidy, 527. V. Cavanagh, 558, 562. V. Chalmers, 354, 359. V. Chapman, 77. V. Chase, 526. V. Chin Mook Sow, 525. V. Chuey Ying Git, 221. V. Chung Lit, 442. V. Chun Heong, 498. V. Clark, 133, 390, 426, 443, 536. V. Clary, 97. y. Clement, 133. V. Cole, 52, 549. V. Collins, 146, 211, 235, 376, 413, 418, 521. V. Congleton, 188. V. Connor, 387-389. V. Cook, 467. V. Corbett, 427. V. Corning, 393. V. Costello, 289, 293. V. Court of Sessions, 496. V. Coyodo, 441. V. Craig, 246. V. Crapo, 551. V. Cross, 66. V. Crotty, 17. V. Crowley, 331. V. Cunningham, 89, 558. V. Curling, *300, 488. V. Curtis, 59, 79. CASES CITED. 687 [The figures refer to pages.] People V. Dailey, 518. V. Damon, 447, 452. T. Danlhy, 298. V. Davidson, 355. V. Davis, 16, 430, 443, 514, 516, 521, 525, 533. V. Dennis, 93, 94. V. Derringer, 470. V. Devine, 551. V. Dill, 393. V. Dillon, 541. V. Dimick, 222. V. Dixon, 86, 557. T. Douglass, 476, 478-480. V. Dowdigan, 80. V. Duford, 174. V. Dumar, 141, 160. V. Eastwood, 534. V. Bbner, 98, 427. V. Eckford, 364, 365. V. Ellsworth, 354^356. V. Enoch, 264, 276, 310, 312. T. Evans, 81. V. Fa hey, 6. V. Falrchild, 230. V. Fancher, 562. V. Fanshawe, 447. V. Fay, 334. V. Fice, 471. T. Finley, 539. V. Fisher, 385. V. Franklin, 209, 210, 333. V. Fuller, 75, 445. v. Furman, 419. V. Garbutt, 541. V. Gardner, 11, 387. y. Garnitt, 397. V. Gates, 230, 546. V. Gaul, 555. V. Getchell, 190. V. Gibbs, 517. T. Gill, 10. V. GIrardin, 208. V. Gleason, 78, 154. V. Goldenson, 112, 414. V. Goldstein, a96. V. Goodwin, 384, 387, 436, 437. V. Gordon, 392, 533. V. Gosch, 30. V. Grady, 76. V. Graham, 420. V. Granlce, 6. People V. Graves, 298. V. Gray, 526. V. Gregory, 240, 251. V. Green, 461. V. Greene, 387. V. Guernsey, 126. V. Hackey, 558. V. Hagan, 318. V. Haines, 113. V. Haley, 20, 43, 194. V. Hall, 331. V. Hamilton, 279. V. Handley, 396. V. Hanifan, 82. V. Hardisson, 392. V. Harper, 469. V. Harrington, 77. V. Harris, 420, 429, 472, 507, 508. V. Hart, 473. V. Hartman, 422. V. Hawes, 470. V. Hawkins, 303, 308. V. Hayes, 460, 547. V. Haynes, 329, 335. V. HefCron, 26, 157. V. Hennessey, 532. V. Henries, 451. V. Hidden, 117. V. Hlggins, 391. V. Hllderbrand, 31. V. Holbrook, 220. V. Holcomb, 28, 69. V. Honeyman, 249, 250, 347, 341 445. V. Hood, 169. V. Horton, 109, 118. V. Hovey, 548. V. Howell, 220, 302. V. Huggins, 95. V. Hughes, 475. V. Hulbut, 113, 121, 122. V. Hunter, 94, 99. V. Hyler, 114. V. Irving, 551. V. Jaekman, 211, 279. V. Jacks, 352. V. Jackson, 197, 351. 359, 413. V. Jacobs, 552. V. Jassino, 470. V. Jefferson, 271. V. Jewett, 117, 119, 120, 123. V. Johnson, 41. 102, 282. 588 CASES CITED. [The figures refer to pages.] People T. Jones, 73, 400, 424. V. Justices, 435. V. Kane, 92, 95. V. Kearney, 547. V. Keefer, 446, 447. V. KeUy, 318, 492, 496, 546. V. Kelm, 180. V. Kemmler, 497. V. Kennedy, 437. V. Kenyon, 548. V. Kern, 387, 396. V. Kerrigan, 422. V. Kibler, 194. V. Kindelberger, 460. V. King, 110, 113. V. Kingsley, 206, 208. V. Knapp, 400. V. Kuhn, 73. V. Lane, 463, 515, 517, 532. V. Lange, 449. V. Langtree, 543. V. Larubia, 454, 455. V. Lauder, 112, 118, 377. V. Lawrence, 178. V. Lee, 420. V. Lee Yune Chong, 484, V. Lemperle, 472. V. Leong Quong, 147. V. Lewis, 415, 515. V. Linzey, 476. V. Liscomb, 496. V. Littlefleld, 217, 487. V. Lockwood, 146, 235. V. Loftus, 513. V. Logan, 413. V. Loliman, 194. V. Luby, 372, 437. V. Lynch, 24. V. McCallam, 352, 465. V. McCann, 541. V. McCausey, 133. V. McGloin, 543. V. McGonegal, 413, 447, 496. V. McGowan, 351, 399, 400. V. McGuire, 462, 505, 509. V. McHale, 367. V. Machen, 429. V. Mclntyre, 432. V. Mack, 94, 499. V. McKay, 392, 451. V. McKenna, 324. V. Macklnder, 530. People V. McKinney, 292. V. McLean, 42, 48, 442. V. McLeod, 90, 136, 557. V. McNutt, 467. V. McQuaid, 586. V. Mahoney, 447. V. Marion, 332. V. Markham, 381. V. Marks, 471. V. Marquis, 484. V. Martin, 132. V. Mather, 242, 419, 411 116 , 45i, 550-552. V. Matteson, 543. V. Mead, 29, 515, 518, 537. V. Mercein, 560, 561. V. Miller, 240. V. Mitchell, 190, 193, 202, 480. V. Mondon, 118. V. Monroe Oyer and Terminer, 363. V. Moore, 47. V. Morehouse, 45. V. Mosher, 13. V. Moyer, 459. V. Mulkey, 331. V. MuUings, 458. T. Murphy, 11. V. Murray, 263, 422. T. Myers, 541. V. Nash, 50. V. Neumann, 469. V. Nevlns, 101. V. Newman, 533. V. Newton, 516, 523. V. Noelke, 551. V. Ny Sam Chung, 386. V. O'Brien, 462, 468. V. Ogle, 547. V. Olcott, 387. V. Olivera, 203. V. O'NeU, 437. V. Parker, 230, 279, 514. V. Pelham, 561. V. Perdue, 486. V. Perkins, 424. V. Perry, 87, 88, 90. V. Peterson, 419. V. Petit, 189. V. Phelps, 209. V. Phillips, 29, 333, 468, 529, 530. V. Pico, 223. V. Piper, 485. CASES CITED. 589 [The figures refer to pages.] People V. Pirfenbrlnk, 558. V. Pline, 387. V. Pool, 20, 50, 56. V. Porter, 135. V. Powell, 433. V. Prague, 354, 355. V. Price, 114. V. Purcell, 399, 401, 403. V. Pyckett, 459. V. Quanstrom, 543. V. Queen, 457. V. Raher, 471. T. Rathbun, 14, 15, 444, 446, 454, 468, 510. V. Rawn, 449. V. Recorder, 26. T. Reed, 259, 334, 335. V. Reggel, 122. V. Reilly, 496. V. Reynolds, 447. V. Richmond, 469. V. Robinson, 425. V. Roby, 194. V. Rogers, 202. T. Rohl, 467. T. Rohrer, 291, 293. V. Rose, 6. V. Ross, 386. V. Rowe, 60. V. Royal, 536. V. Rynders, 289-291, 295-297, 330. V. St. Clair, 175. V. Sansome, 480. V. Saunders, 399, 402. V. Schenck, 11, 62. V. Schmidt, 365, 381, 392. V. Schultz, 246, 324. V. Sennott, 66. V. Shaw, 525. V. Sherman, 79. V. Shirley, 89. V. Shufelt, 412. V. Shulman, 518. T. Simpson, 516, 527, 531. V. Slater, 250, 348. V. Smith, 76, 87, 98, 193, 299, 300, 324, 373. V. Soto, 223. V. Squires, 242. V. Stager, 97. V. Stanford, 218, 222. V. Stanley, 515, 522, 534 People V. Staples, 11. V. Stark, 141, 160. V. Stevens, 395, 522, 532. y. Stewart, 447, 513. T. Stokes, 25, 480. V. Symonds, 475, 478, 479. V. Tanner, 447. V. Taylor, 152, 160, 168, 208, 269, 380. V. Telford, 272. V. Tender, 557. V. Thurston, 110. V. Tinder, 88. V. Tomlinson, 169, 519. V. Tower, 325. V. Troy, 446. V. Urquidas, 499. V. Van Alstine, 191. V. Van Blarcum, 230. V. Van Home, 86. V. Van SantToord, 241, 344. V. Van Wyck, 426. V. Vermilyea, 89, 414, 416, 419. V. Villarino, 381. V. Vincent, 420. V. Walbridge, 258, 313, 350. V. Waller, 443. V. Walters, 363. V. Warner, 174, 175, 208, 334. V. Warren, 36, 37. V. Webb, 386, 419. V. Weeks, 412, 437. V. Weiger, 532. V. Weil, 455. V. Wells, 458, 489. V. Wentz, 530, 531. V. Wessel, 167. V. West, 262, 269, 486. T. Westbrook, 543. V. Wheeler, 447. V. White, 197, 351-353, 359, 537. V. Whitely, 486. V. Wiley, 16, 226, 329, 334, 337. V. Willett, 512. V. Williams, 225. V. Wilson, 40, 415. V. Winchell, 427. V. Wolcott, 529. V. Wong, 524. V. Wong Wang, 247. V. Wood, 518, 519. V. Wreden, 534. 590 CASES CITED, [The figures refer to pages.] People V. Wright, 62, 73, 81, 206, 279, . 285, 299, 320, 323, 548. v. Young, 534. V. Yut Ling, 457. Peoples, In re, 74. Peppin V. Solomons, 183. Perliins, Ex parte, 558. y. Commonwealth, 209, 333. V. State, 121, 122, 366. Perrin v. State, 420, 421, 508, 509. Perry, In re, 558. V. State, 494. Perteet v. People, 419. Petchet V. Woolston, 313. Peter v. State, 33. Peters v. State, 117, 425. V. U. S., 420. Peterson v. State, 302, 499. Petrie v. Woodworth, 147, 341. Pettit V. State, 414. Pfister V. State, 218. Pfitzer, Ex parte, 62. Phelan's Case, 560. Phelps V. People, 220, 262. Philips T. Commonwealth, 475. V. Smith, 126. Phillips V. Commonwealth,. 324, 414. V. Fadden, 57. V. Fielding, 298. V. People, 388, 395. V. State, 324, 328. V. Trull, 44-46. Pickens v. State, 479. Pickins v. State, 145. Pierce v. State, 447, 466. Pierson v. People, 508, 518, 546. V. State, 420, 454, 463, 466. Pike V. Hanson, 56. pncher V. State, 516. Pinkney v. Inhabitants of East Hun- dred, 313, 338. Pitcher v. People, 202. Pittman v. State, 354, 355. Plake V. State, 541. Piatt V. Hai-rison, 557. V. Hill, 258, 349. Plummer v. State, 471. Plunkett V. Cobbett, 544. Podfleld V. People, 487. PofC V. Commonwealth, 522. Pointer v. U. S., 289, 292, 470. Polite V. State, 352. Pollard V. Commonwealth, 445. V. State, 462. Poison V. State, 353, 360, 486, 513. Pond V. People, 52. Poole, In re, 560. V. Symonds, 228. Pope V. State, 477, 479." Porter v. State, 189, 328. Portwood V. State, 189, 199. Posteene v. Hanson, 85. Poteete v. State, 24. potter V. Casterline, 115. V. State, 333. Pow V. Beckner, 40. PoweU V. State, 93, 95. Power V. People, 421. Powers, In re, 562. V. State, 193, 194, 444, 482. Pratt V. State, 353. Presley v. State, 341. Preston v. People, 395. Preswood v. State, 455. Prewitt V. Lambert, 455. Price V. Graham, 29. v. People, 413, 417. V. Seeley, 45, 46. V. State, 146, 235, 386, 415, 531. Prindeville v. People, 359. Pritchett v. State, 390, 431. Prindle v. State, 202. Prine v. Commonwealth, 425. Proper v. State, 513. Pruitt V. State, 237, 455. Pugh V. State, 93. Purvis V. State, 373. Pybos V. State, 110. Pye's Case, 339. Q Quesenberry v. State, 445. Quinn v. Helsel, 40, 42, 43. V. State, 293, 421, 474, 475. R R. V. Cole, 517. V. Dove, 535. V. Fowkes, 516. V. Palmer, 509, 535, 536. OASES CITED. 591 [The figures refer to pages.] R. V. Patch, 510. Reg. V. Bowman, 388. Rafe V. State, 447. V. Boyes, 546. Raflferty, In re, 561. V. Brown, 380, 381. V. People, 21, 28, 36. V. Brownlow, 254. Rahm V. State, 545. V. Campbell, 340. Rains v. State, 530. V. Castro, 138. Raisler v. State, 178. V. Charlesworth, 316, 371 372. Ramsey v. State, 41, 51. V. Chidley, 531. Randolph v. Commonwealth, 157. V. Clark, 284. V. State, 347. V. Clarke, 189. Ransom v. State, 367. V. Cohen, 301. Rasmussen v. State, 318. V. Cooke, 220. Ratcllffe V. Burton, 55. V. Cooper, 161, 518. Rather v. State, 541. V. Coulson, 208. Ratlgan v. State, 470. V. Cox, 224. Rawlins v. Ellis, 49. V. Craddock, 172. Rawson v. Brown, 435. V. Cranage, 349. V. State, 244. V. Crespin, 182. Read v. Case, 97. V. Crisham, 159. Real V. People, 535. V. Dale, 146, 234. Rector t. Commonwealth, 530. V. Davis, 343. Redd V. State, 509. V. Deane, 387. Reddick v. State, 396. v. Devett, 303, 308. Redman v. State, 298, 431. V. Dixon, 154. Redmond v. State, 78, 82. V. Dovey, 302, 306. Reed, Ex parte, 558. V. Downey, 31. V. Commonwealth, 229. V. Drake, 210, 332-334. V. Rice, 47, 67, 69. V. Driiry, 392. V. State, 340. V. Foxby, 200. Reese v. U. S., 96. V. Francis, 518. Reeve v. Wood, 543. V. Frost, 429, 452. Reeves v. State, 123, 377, 530. V. Fussell, 335. Reggel, Ex parte, 64, 65. V. Gallears, 224. Reg. V. Ackroyd, 204. V. Garbett, 532, 546. V. Allday, 488. V. Gazard, 544. V. Aspinall, 154, 156, 169, 320. V. Geering, 520. V. Atkinson, 302, 303. V, Giddins, 281, 292. V. Austin, 133. V. Goddard, 163, 371, 377, 385, 406, V. Badger, 84. 407. V. Bedingfield, 516. V. Goldsmith, 320. V. Beeston, 533. V. Gorbutt, 358. V. Berry, 428. V. Gould, 400, 530. V. Bidwell, 176. V. Gray, 197, 486, 519. V. Bird, 328, 335, 383, 406. V. Hall, 106. V. Birmingham & G. Ry. Co. 148. V. Harman, 311. V. Blake, 521. V. Harper, 220. V. Boardman, 221. V. Harris, 156, 171. V. Bolam, 416. V. Hind, 525. V." Bond, 219. V. Hodgson, 191. V. Boswell, 528, 529, V. Holmes, 314, 553. V. Bowen, 280. V. Ingham, 130. V. Bowers, 283. V. Ingram, 300. 592 CASES CITED. [The figures refer to pages.] Reg, J. y. James, 192, 342, 363. Reg. y. Stephenson, 131. V. Jenkins, 526. y. Stokes, 172, 541. V. Jolnnson, 79. y. Stonnell, 204. V. Jones, 299. y. Stroud, 340. V. King, 168, 169. y. Swinnerton, 78. y. Lane, 310. y. Taylor, 187. y. Langhurst, 417. y. Templeman, 374. y. Langley, 309, 310. y. Thompson, 21, 531. V. Larkin, 193. y. Trueman, 288, 293. y. Light, 43. y. Tuchin, 323. V. Mabel, 40. y. Vaux, 390. y. McKay, 71. V. Vodden, 483, 484. V. McKenna, 184. y. Walker, 42, 43. V. McNamara, 457. V. Warman, 328. y. Mansfield, 218. y. Waters, 149, 299, 320. y. Marsden, 43. y. Wayerton, 299. y. Martin, 149, 457. y. Webster, 228. y. Mawgridge, 198. V. West, 221. y. Michael, 14. y. Westley, 258, 259, 350. y. Moore, 261, 529. V. Whalley, 457. y. Morris, 399, 402, 403. y. Whitehead, 229, 549. y. Murdock, 12. y. Wigg, 276, 314. V. Neale, 360. y. WUliams, 212, 301, 353, V. Newboult, 339. y. Willis, 204. y. Nott, 268. y. Wilson, 333, 340, 362. y. O'Brien, 288. y. Wyat, 309, 314. y. O'Connor, 246, 247. y. Wyatt, 176. y. Parker, 133. Reich y. State, 117, 120. y. Payne, 543. Reid y. Ham, 66. y. Pelham, 254. y. State, 441, 482. y. Pikesley, 78. Reifsnyder y. Lee, 71. y. Powner, 268. Relnhart y. People, 508. y. Price, 131. Reinltz, In re, 60. y. Pugh, 257. Reins y. People, 475, 479. V. Purchase, 381. Remsen y. People, 537. ' y. Eadley, 181. Reneau y. State, 52. V. Rhodes, 248, 329. Respublica v. Arnold, 178L V. Richardson, 520, 544. y. Cleaver, 365. y. Rider, 456. y. Honeyman, 198. V. Robins, 132. y. Mesca, 442. y. Robinson, 531, y. Newell, 314. y. Rogers, 12. y. Tryer, 262. V. Rowed, 152. Reuck y. McGregor, 44-46. y. Rowlands, 156. Revoir y. State, 541. V. St. George, 368. Rex y. , 147, 171, 234, 341. V. St. John, 250, 348. y. Adams, 228. y. Salvi, 396. y. Airey, 264. y. Scaife, 89, 533. y. Aiford, 327. V. Scott, 531. y. Atkinson, 213. y. Sell, 373. y. Bailey, 146, 236. y. Sheen, 372. y. Sainton, 365. V. Simpson, 423. y. Baldwin, 3C6. CASES CITED. 693 [The figures refer to pages.] Rex V. Ball, 499. Rex r. Clerk, 311. V. Baxter, 166, 167, 228, 271, 274. V. Clewes, 507, 508, 530. V. Beach, 174, 332. V. Collins, 313. V. Beaney, 222, 352. V. Combs, 362. V. Bear, 209, 210. . V. Coogan, 399, 406. V. Beech, 175. V. Cook, 201, 309-311. V. Bellamy, 327. V. Cooke, 377, 378. V. Belstead, 230. V. Cooper, 160, 161, 314. V. Benfield, 281, 282, 293, 294, 301- V. Oowle^ 418. 304. V. Cox, 313. V. Berriman, 233, 338 ,341 , V. Cramlington, 201. V. Berry, 312. V. Craven, 220. V. Bethuen, 562. V. Crighton, 197. V. Birch. 213. V. Crowhurst, 162. V. Birchenough, 398. V. Curvan, 42. V. Birkett, 220, 332. V. Darley, 125, 126. V. Blackson, 290. V. Davis, 263, 265. V. Boltz, 426. V. Dawson, 331, 400, 489. V. Bootle, 57. V. Deakin, 228, 340. V. Bourne, 495. V. Dean, 377, '378. V. Bowman, 406. V. De Berenger, 169. V. Boyall, 254. V. Deeley, 183, 232, 343. V. Bramley, 228. V. D'Eon, 413-415, 417. V. Brereton, 169. V. Dickenson, 312, 313. V. Bright, 42. V. Dixon, 241. V. Brisac, 13, 16. V. Donellan, 507. V. Brown, 365. V. Doolin, 549. V. Bryan, 271. V. Dowlln, 174. V. Bullock, 249, 250, 347 348. V. Duflin, 331. V. Bnrder, 881. V. Eden, 327. V. Burdett, 11, 13, 14 ,16, 218, 338. V. Edmonds, 445. V. Burglss, 71. V. Edmunds, 512. T. Burkett, 365. V. Edwards, 90, 218, 224, 336, 386 V. Burks, 200. V. Emden, 390, 396, 399, 405. V. Burnett, 196. V. Etherington, 353. V. Burrldge, 201, 246, 247, 306, 494. V. Evans, 125. V. Burroughs, 207. V. Everett, 158. V. Bush, 340. V. Eagg, 78. V. Butler, 540. V. Fauntleroy, 283. T. Butterworth, 307. V. Fea:rnley, 124, 375, 379, 381. T. Carlile, 423. V. Fell, 102. V. Carson, 338. V. Einnerty, 52. T. Cartwright, 251. V. Flint, 170. V. Cary, 304. V. Folkes, 292. V. Chalkley, 161, 217, 266. V. Ford, 20, 42. V. Chandler, 33. V. Forsgate, 390, 398. V. Chappie, 223. V. Forsyth. 217. 338. V. Chard, 164, 220. V. Foster, 225, 341, 516. V. Chatbum, 312. V. Francis, 254, 353, 489. V. Clark, 399. V. Freeman, 157. V. Clarke, 85, 553. V. Frith, 363. V. Clendon, 281. V. Fry, 221. CEIM.PKOC.— 38 594 CASES CITED. [The figures refer to pages.] Rex V. Fuller, 159, 226, 264, 294, 299. Rex ^ V. Furneaux, 335. V. V. Furnival, 187. V. V. Gakes, 201. V. V. Gascoine, 456. V. V. Geary, 494. V. V. Gibbs, 225. V. Gibson, 371, 378, 380, 406. V. V. Gilbert, 124, 225. V. T. Gilchrist, 160, 171, 206 210, 332. V. V. Gilham, 529. V. V. Gill, 179. V. Gillham, 174, 218, 329 338. V. Girdwood, 15. V. V. Goddard, 378. V. V. Goldstein, 207, 221. V. Goodall, 556. V. V. Gough, 294. V. V. Gray, 416. V. V. Great Canfield, 250, 348. V. V. Green, 78, 79, 300, V. V. Greepe, 177. V. Griffith, 198. V. V. Gutch, 158. V. V. Haddock, 381. V. V. Halloway, 224, 336. V. T. Hammersmith, 376. Y. V. Hardy, 521, 522. V. V. Hargrave, 10. V. V. Harris, 251, 276, 314, 316, 494. V. V. Hart, 174, 175, 333. V. V. Hayes, 126. V. •V. Haynes, 246, 252, 298. V. V. Heaps, 307. V. V. Hempstead, 806, 307. V. V. Hems, 43. V. V. Henry, 166. V. V. Hensey, 368. V. V. Higgins, 189, 332. V. V. Hill, 258. 329, 335. V. . V. Hogg, 533. V. V. Holland, 108, 316, 380 V. V. HoUingberry, 180. V. V. Hollond, 194, 238, 246, 252, 301. V. V. Holloway, 218. V. V. Hood, 29, 36. V. V. Home, 152, 157, 160, 164, 282. | V. V. How, 160. V. V. Howarth, 50, 50. V. V. Humphrey, 161. V. V. Hunt, 44, 46, 330. V. V. Hunter, 206, 212, 332. T. V. Inhabitants of Belton, 364. Inhabitants of Bothwick, 546. V. Inhabitants of Cliviger, 546. Inhabitants of Eriswell, 533. Inhabitants of Gamlingay, 251. V. Inhabitants of St. Weonard's, 250, 348. V. Jarvis, 271. . Jenks, 230. Jenour, 281. Johnson, 13, 16, 200, 218, 220, 262, 290, 294, 296, 364, 375, 378. , JolUfee, 416. Jones, 9, 71, 180, 185, 293, 296, 298, 334, 369, 415, 417. Judd, 102. Kendal, 102. Kendall, 33. Kettle, 219, 336. . Kingston, 192, 289, 293, 296, 305, 308, 309. Kinnear, 475. Kinnersley, 307, 333. Kinsey, 71. Knight, 163. Knollys, 378. Lad, 198. Landaff, 823. Lawley, 138, 195. Lease, 365. Leefe, 211. Levy, 293. Lewellin, 261. Light, 43. Lincoln, 328. Lloyd, 529. Lookup, 310. Lovell, 233, 234. Lyon, 210, 881. McKenzie, 493. Mallinson, 261. Marchioness Dowager, 250, 348. Mariot, 201. Marks, 102, 556. Marsack, 258, 349. Marshall, 162, 259. Martin, 212, 221, 553. Mason, 162, 266, 430. Mathews, 182, 251, 276, 314. Mawbey, 166, 498. May, 208. CASES CITED. 695 [The figures refer to pages.] Rex V. Mayhew, 547. Rex V. Hushworth, 190-193, 195. V. Mead, 560. V. Ryan, 263. ' V. Messiagham, 306. V. Sadi, 231. V. Michael, 165. V. Sawyer, 312. V. Middlehurst, 169, 330. V. Semple, 363. V. Monteth, 381, 358. V. Shakespeare, 145, 147, 342, 378. V. Morley, 140. V. Sheen, 406. V. Morphew, 415. V. Singer, 201. V. Morris, 179, 181, 182, 342, 455, V. Smith, 78, 102, 165, 166, 233. V. Mosley, 155, 525-527. V. Speke, 494. V. Munoz, 266. V. Sterling, 201. V. Napper, 250, 348. V. Sterne, 290, 353. V. Nichols, 307. V. Stevens, 153, 172, 180, 243. V. Nield, 206, 207. V. Stevenson, 386. V. Nixon, 316. V. Steventon, 262. V. North, 170. V. Stock, 230. V. Norton, 233, 340, 341. V. Stocker, 169. V. O'Donnell, 71. V. Stoughton, 169. V. Ogilvie, 236. V. Stratton, 362, 377, 385, 407. V. Palmer, 274, 275. V. Streek, 427. V. Pappineau, 314. V. Suddis, 153. V. Patience, 47. V. Sulls, 233, 234, 236, 341. V. Patrick, 148, 228. V. Sutton, 257, 442. V. Peace, 146, 236. V. Tannet, 342. V. Peas, 11. V. Taylor, 12, 274, 302, 304, 406. V. Pedley, 290. V. Testick, 212. V. Pemberton, 167, 271. V. Thomas, 260, 365. V. Perclval, 446. V. Thompson, 306. V. Perrott, 153-155, 160, 264, 266. V. Tilley, 164. V. Pewtress, 300, 366. V. Tomlinson, 155. V. Philipps, 186-188, 191, 200. V. Towle, 304. V. Philips, 303. V. Trafford, 303. V. Plant, 396, 398. V. Trelawney, 26L T. Piatt, 102. V. Trevilian, 365. V. Plestow, 328. V. Trueman, 292. V. Plummer, 489. v. Turner, 166, 263. V. Powell, 200, 210, 332. V. Tyers, 335. V. Powner, 190. V. Vandercomb, 352, 389, 396, 405, V. Pratten, 275. 406. V. Pritchard, 369, 428. V. Waddington, 494. V. -Quail, 307. V. Walker, 340. V. Reading, 171. V. Ward, 254. V. Remnant, 102, 228. V. Wardle, 178, 249, 347. V. Rickman, 230. V. Warre, 124. V. Ridley, 250, 348. V. Watson, 13. V. Rivers, 78. V. Webster, 398. V. Robinson, 107, 493. V. Weir, 33. V. Roche, 406. V. Welland, 261. V. Rogers, 230.. V. Westbeer, 358. V. Rosslter, 269. V. Weston, 308, 365. V. Royce, 124, 125, 489, V. Whcatly, 364, 366. V. Roysted, 124. V. White, 230, 250, 340, 348. 596 CASES CITED. [Tlie figures refer to pages.] Rex V. Whitehead, 162. V. Whitney, 223. V. Wicks, 220. V. Wilcox, 212. V. Wildey, 405, 406. V. Willies, 102, 211, 315, 316, 495. V. Wilkins, 228. V. Williams, 163, 234, 255, 330, 365, 495. v. Wilson, 200. V. Winter, 311. V. Withal, 280, 352. V. Woodfall, 186, 465. V. Woodward, 250, 348. V. Wooller, 484, 490, 491. V. Woolmer, 41, 50. V. Wright, 562. V. Wyndham, 87, 102. V. Wynn, 363, 364. V. York, 102. V. Young, 302. Reyes v. State, 322. Reynolds v. Orvis, 32, 33, 37» V. People, 398. V. State, 272, 446, 451. v. U. S., 533. Rhea v. State, 415, 539. Rhodes v. State, 443. Rice V. Commonwealth, 548. V. Rice, 534. V. State, 5, 446. Rich V. State, 193. Richards v. Commonwealth, 364, 442. V. Moore, 442. T. State, 130, 408, 424, 477, 480, 513. Richardson v. Fisher, 498. Richey v. Commonwealth, 346. Richie V. Commonwealth, 425. V. State, 553. Richmond, The, v. U. S., 60. Ricker, In re, 102. Rickles V. State, 405. Riddle V. State, 335. Riley v. State, 10. Ritchey v. State, 227. Rivers, Ex parte, 419. V. State, 261, 339. Rix V. State, 531. Robbins v. People, 395. Roberts v. Commonwealth, 418. V. Orchard, 42. Roberts v. People. 414. V. Reilly, 64, 65. V. State, 20, 42, 43, 50, 237, 252, 264, 425, 478, 487, 538. V. Trenayne, 263. Robertson v. State, 428. Robinson, Ex parte, 559, 562. In re, 61. V. Commonwealth, 214, 217. V. Harlan, 35. V. State, 133, 330, 331, 390, 392, 414, 467, 484. Roddy V. Finnegan, 43. Rodman v. Harcourt, 36. Rodriquez v. State, 509. Roe V. State, 111, 125. Rogers v. Commonwealth, 164, 190, 309, 310, 482. V. People, 351, 359. V. State, 211, 234, 235, 341. Roguemore v. State, 547. Rohan v. Sawin, 41, 42, 45. Rolland v. Commonwealth, 117. Rollins, Ex parte, 557. V. State, 229, 417. Rolls V. State, 400, 424, 425. Rooker v. State, 206. Roosevelt v. Gardinier, 146, 235. Roper V. Territory, 478. Rose V. State, 123, 300. Rosenberger v. Commonwealth, 115. Ross V. Irving, 434. V. State, 40, 42, 133. Roten V. State, 506. Rothbauer v. State, 483. Rough V. Commonwealth, 317, 318. Rough's Case, 224, 336. Rountree v. State, 199. Rouse V. State, 447. RouseU V. Commonwealth, 415. Roush V. State, 191, 332. Rowan v. State, 107, 108, 141. Rowand v. Commonwealth, 365. Rowe V. State, 479, 480. Rowland v. State, 377. Roy V. Inhabitants of Yarton, 125, 201. Royall, Ex parte, 558, 559. Rudder v. State, 387. Ruf er V. State, 531. Ruloff V. People, 44, 46, 457. Runnels v. State, 499. Russel V. Commonwealth, 312. CASES CITED. 597 [The flgures refer to pages.] Russell V. Hubbard, 37. V. State, 170. Russen v. Lucas, 56. Rust V. State, 397. Rutherford v. Commonwealth, 457. Ryalls V. Reg., 180. Ryan v. People, 510. V. State, 510, 532. Ryle's Case, 199. S Sacheyerell's Case, 206, 207, 214. Safford V. People, 494. Sale V. State, 24. Salisbury v. Commonwealth, 45. V. State, 220. Salm T. State, 420. Sam, Ex parte, 557. V. State, 446. Samuel v. Payne, 41. V. State, 404. Sanders v. State, 284, 315, 475, 523. Sanderson v. Commonwealth, 289. Sandford v. Nichols, 35, 37, 69. Sandilands, Ex parte, 560. Santo V. State, 67, 69. Sarah v. State, 197, 289, 291. Sargent v. State, 484. Sasse V. State, 457. Savacool v. Boughton, 35, 36. Savage v. State, 408. Savory v. Price, 342. Sayres v. Commonwealth, 508. Scavage v. Tateham, 74. Schaser v. State, 549. Schayer v. People, 330. Scheer v. Keown, 30. Schmidt, Ex parte, 121. Schneider v. Commonwealth, 85. Schnell v. State, 452, 453. Schnier v. People, 466. Schumaker v. State, 442. Schurman, In re, 103. Schwab V. Berggren, 426, 494. Scircle v. Neeves, 57. Scoggins v. State, 133. Scoggs v. State, 424. Scott, Ex parte, 60. v. Brest, 14. V. Commonwealth, 294, 329, 366. Scott v. Eldrldge, 42. V. Ely, 29. V. People, 190, 429, 468, 470, 525. V. Soans, 376. v. State, 414, 415. Scudder v. State, 197. Scurry v. Freeman, 14. Seal V. State, 442. Sealy v. State, 451. Seavey v. Seymour, 561. Secrest, In re, 73. Serpentine v. State, 238, 242. Severin v. People, 399, 402. Seville v. State, 521. Shadgett v. Slipson, 30. Shaffner v. Commonwealth, 517. Shanley v. Wells, 40, 42, 43, 53. Shannon v. Jones, 56. V. State, 212, 445. Sharp V. State, 262, 317, 328, 335, 460. Shattuck V. People, 95. Shaw T. State, 368. Shay V. People, 175. Shearman v. State, 482. Shefflett V. Commonwealth, 427. Sheldon, Ex parte, 63. Shelton v. Commonwealth, 116, 240, 424, 425. V. State, 237, 240, 486. Shepherd v. State, 109. Sheppard v. State, 338. Sherwood, Ex parte, 43, 44. Shideler v. State, 394. Shifflet V. Commonwealth, 529. Shifflett Y. Commonwealth, 318, 427, 494. Shirk's Case, 560. Shoecraft v. State, 516, 523. Shoemaker v. State, 442. Shoop V. People, 113. Shore v. State, 88, 98. Shouse V. Commonwealth, 307. Shovlin V. Commonwealth, 50. Shular v. State, 457. Shultz V. State, 472. Slebold, Ex parte, 558. Simmons v. Commonwealth, 11, 244. V. State, 198. V. U. S., 386, 468. V. "Vandyke, 57, 73. Simons v. People, 429, 525. Simpson v. Commonwealth, 94. :98 CASES CITED. [The figures refer to pages.] Simpson v. State, 11, 14, 44, 420, 499. Sims V. State, 11, 543. Sim's Case, 561. Skates v. State, 415. Slseen v. Monkeimer, 560. Skidmore v. State, 51. Slaten v. People, 93. Slattery v. People, 512. Slaughter v. Commonwealth, 189. V. State, 234, 341, 392, 400. Sledd V. Commonwealth, 483. Sloan V. People, 511. Slomer v. People, 21, 34, 37. Small V. Commonwealth, 527. Smith, Ex parte, 88, 556, 557, 561. V. Boucher, 26. V. Bouchier, 29. V. Clark, 34. V. Cleveland, 319. V. Coimmonwealth, 288, 404, 445, 475, 529, 532, 547. V. Cooker, 177. V. Donelly, 43, 44. V. State, 64, 99, 206, 209, 221, 333, 365, 397, 405, 413, 417, 426, 455, 490, 522. V. Wilson, 545. Smoke v. State, 230. Sneed v. State, 414. Snodgrass v. Commonwealth, 425. Snowden v. State, 557. Solomon v. People, 84, 93. Somervell v. Hunt, 28, 101. Somerville v. Richards, 41. Sontag, Ex parte, 121. South V. People, 532. Sou'thworth v. State, 276, 314. Spangler, In re, 5G0. V. Commonwealth. 220. Sparenherger v. State, 112. Sparf V. U. S., 465-467. Sparks v. Commonwealth, 114. V. State, 471. Spaulding v. Preston, 43. Spears, Ex parte, 64. Speart's Case, 1G9. Speers v. Commonwealth, 280, 290, 294. Spencer v. Commonwealth, 12. Sperry v. Commonwealth, 424. Spieres v. Parker, 275. Spies v. People, 465, 466, 470. Spradling v. State, 5. Sprague v. Birchard, 36. Spratt V. State, 114. Sprouce v. Commonwealth, 444. Spurlock V. Commonwealth, 506. Staff, In re, 435, 436. Stalls V. State, 447. Stanley, Ex parte, 63, 412. V. State, 11, 119. Stanton v. State, 472, 491. Stape V. People, 547. Staples V. State, 40, 42. Starkey v. People, 526. Starr v. Commonwealth, 99. Startup V. State, 317. State V. Abbey, 272, 273, 275. V. Abbott, 87. V. Able, 533. V. Abresch, 380. V. Absence, 268. V. Ackles, 190, 356. V. Adam, 113. V. Adams, 95, 110, 191, 204, 271. V. Addy, 496. V. Albee, 418, 419. V. Albin, 362, 365. V. Alexander, 541. V. Alford, 503, 505, 550. T. Allen, 63, 94, 226, 228, 310, 354, 386, 465, 479. V. Allison, 302, 308. V. Almy, 437. T. Aired, 417. V. Ames, 247. V. Amidon, 324. V. Ammons, 157. V. Anderson, 281, 448, 471, 498. V. Angel, 147. V. Anthony, 143, 237. V. Antonio, 442. V. Archer, 360. V. Armstrong, 286. V. Arnold, 246, 365. V. Arthur, 85, 451. V. Asbury, 133. V. Atkins, 177. V. Atkinson, 215, 305, 538. V. Austin, 483, 485. V. Bacon, 194, 252, 253. V. Baden, 222. V. Bagan, 353. V. Bagwell, 260. CASES CITED. 599 [The figures refer to pages.] ite V. Bailey, 12, 180, 253, 289, 414, State T. Blaisdell, 242. 417. V. Blakeney, 239, 1,'52, 253. V. Baker, 122, 237. V. Blan, 302. V. Baldwin, 280. T. Bland, 52. V. Baldy, 476, 479. V. Blankenship, 341. V. Ball, 379. V. Bleekley, 117. V. BaUard, 163. V. Blize, 547. V. Bancroft, 240, 344. V. Bloedow, 194. V. Bandy, 102. V. Bloodworth, 272. V. Banks, 198, 415, 416. v. Bloom, 5, 556. V. Barber, 289, 448, 454. V. Bone, 451. V. Barker, 110, 111, 447. V. Bonney, 210. V. Barnes, 364, 405. V. Borroum, 117, 118. V. Barrett, 320. V. Boswell, 108. V. Barrontine, 451. V. Bougher, 262. V. Bartlett, 11, 433. V. Boughner, 281, 429, 463. V. Barton, 478. v. Bowen, 40. V. Bates, 517. V. Bowers, 223, 227. V. Battle, 394. V. Bowman, 265. V. Beadon, 188. V. Boyd, 113. V. Bean, 333, 341. V. Bradley, 214, 306, 418, 431, 510, V. Beasley, 462. 512. V. Beaton, 237, 241. T. Brady, 145, 175, 189, 280, 351. V. Beatty, 426. V. Brainerd, 120. V. Beauclelgh, 246. V. Brandenburg, 464. V. Beckwith, 237, 240, 25a V. Branham, 344. V. Bedard, 513. V. Brannon, 351, 400. V. Bedell, 215. V. Bray, 196. V. Beebe, 97. V. Brecht, 25. V. Beeder, 429. V. Brennan, 124. V. Behlmer, 392. V. Brennan's Liquors, 49. V. Behm, 238. V. Brent, 354. V. Behrman, 527. V. Brewington, 214. V. Belden, 392, 400. V. Brewster, 60, 511, 557. V. Belk, 56. V. Brickell, 123, 127. V. Belknap, 478, 512. V. Briggs, 546. V. Bell, 147, 247, 289, 295, 340, 344. V. Brilly, 262. V. Belvel, 111, 420. V. Brinyea, 541. V. Benham, 13G, 385, 395, 407. V. Brisbane, 461. V. Benjamin, 265, 266, 392, 485. V. Brooks, 139, 140, 377, 412, 422, V. Bennett, 265, 491. 443, 471. y. Benzion, 85. V. Brougbton, 122, 178. V. Bergman, 75. V. Brown, 11, 40, 42, 115, 154, 163, V. Beming, 486. 173, 193, 194, 208, 225, 237, V. Berry, 93, 313. 262, 263, 285, 302, 389, 390, V. Best, 490. 394, 399. V. Beswick, 141. V. Brownlow, 207, 210. V. Bibb, 3^. V. Bruce, 135, 479. V. Bielby, 281. V. Brumley, 471. V. Bierce, 266. V. Brunker, 345. V. Bisbop, 149, 150, 363. V. Bmnson, 157. V. Black, 146, 364. V. Bryan, 197, 493. 600 CASES CITED. [The figures refer to pages.] ite V. Bryant, 28, 50, 94, 99, 261, State V. Chamberlain, 317, 319. 340, 377, 534. V. Chambers, 543. V. Bryson, 345. V. Champeau, 385, 387. V. Buchanan, 393. V. Chandler. 262. V. Buchman, 314. V. Chapin, 14. V. Buckman, 276. V. Charlton, 169. V. Bugbee, 488. V. Cherry, 253. V. Buhs, 426. V. Child, 133. V. Bullard, 476, 479. V. Chisnell, 284, 285. V. :6undy, 341. V. Ohitty, 162, 430. V. Burgdoerfer, 393. V. Christian, 318. V. Burge, 482. V. Christmas, 284. V. Burgess, 347. V. City of Bangor, 492. V. Burk, 351, 352. V. Clair, 469. V. Burke, 135. V. Clarissa, 117, 118. V. Burket, 385. V. Clark, 84, 441. V. Burlingham, 363. V. Clayton, UO. V. Burpee, 465, 466. V. Clements, 460. V. Burrell, 26. V. Click, 269. V. Burt, 225, 312, 314. V. Clifford, 395. v. Bush, 202. V. Cobb, 73, 258. V. Bushey, 163, 251. V. Cocker, 352. V. Buster, 262. V. Oockfleld, 335, 336. V. Butcher, 157. V. Coella, 444, 457, 534. V. Butler, 275, 464. T. Coffey, 214. V. Buzme, 62, 556. V. Cohn, 508. 509. V. Buzzell, 457. V. Colbert, 364. V. Byrne, 513. V. Cole, 120, 362, 394 V. Cadle, 310, 314. V. Coleman, 115, 299. V. Cady, 262, 469. V. Coley, 426, 538. V. Cain, 364. V. Collins, 106, 161, 333, 470. V. Caldwell, 50, 197. V. Collis, 115. V. Calfer, 130. V. Collyer, 355, 364. V. Callahan, 208. V. Colter, 352. V. Cameron, 281, 329, 837. T. Colvin, 394. V. Cannon, 95. V. Comings, 284. V. Cantlin, 470, 499. V. Oomstock, 141. V. Canty, 482. V. Conable, 420. V. Carlos, 499. V. Conlan, 375. V. Carpenter, 194. V. Conley, 123, 124, 247, 432. V. Carr, 210. V. Conlin, 435. V. Carroll, 331. V. Conner, 282. V. Carter, 10, 69, 175, 318, 458. V. Connor, 355. V. Carver, 117, 118, 493. V. Conrad, 364. V. Casados, 262. V. Conway, 493. V. Casavant, 318. V. Cooler, 446. V. Casey, 493. V. Coon, 485. V. Cassel, 220, 269, 3ia T. Cooper, 5, 286. V. Castor, 227. V. Copeland, 371, 393. V. Caswell," 28, 101. V. Copp, 207. V. Catlin, 472. V. Corbett, 177. V. Chairs, 120. V. Corrigan, 180. CASES CITED. 601 [The figures refer to pages.] State T. Corson, 141. State V. Devlin, 432. T. Cotton, 247, 253, 348. V. De Wolf, 369. V. Couneham, 98. V. Dibble, 377. V. Cowan, 114, 199. V. Dickinson, 525, 526. V. Cowell, 354. V. Dickson, 508, 535. V. Cox, 105, 106, 114-lie . V. Dieberger, 51, 52, V. Coy, 351, 354. V. Dimmitt, 499. V. Coyle, 28. V. Dineen, 331. V. Crab, 521. V. Divine, 489. V. Grafton, 421, 433, 475, 534. V. Dixon, 385. V. Crane, 175, 479. V. Doax, 93. V. Crank, 155, 233, 300. V. Dodge, 237, 238, V. Craton, 451. V. Doe, 144. V. Crawford, 242, 281. V. Dominique, 426. V. Crimmins, 284, 346. V. Donelon, 514, 522. V. Crippen, 92, 93. V. Dooley, 33. V. Crocket, 424. V. Dorr, 314. V. Crofton, 420. V. Douglas, 11. V. Crogan, 348, 349. V. Douglass, 486, V. Cronin, 525, 527. V. Dove, 445. V. Cross, 424, 427. V. Dover, 129. T. Croteau, 465, 466. v. Dowell, 217, 218. V. Crow, 36, 222, 223. V. Dowers, 161. V. Crummey, 360. V. Doyle, 120, 492, 542. V. Curran, 342. V. Drake, 28, 170, 239, 345, 529. V. Curtis, 28, 50, 206. V. DriscoU, 452. V. Damery, 549. V. DufCy, 415, 445, 468, 521. V. Damon, 403, 405. V. Dugan, 478, 480. V. Dandy, 242. V. Duggan, 377. V. Daubert, 289, 295. V. Dukes, 523. T. Daugherty, 141, 347, 524. V. Duncan, 117-120, 413, 423, 424, V. Davidson, 114. 488, 510, 515, 524. V. Davis, 5, 110, 120, 175 181, 188, V. Dunn, 207, 321. 190, 208, 228, 234, 240, 261, V. Durham Fertilizer Co., 120. 263, 341, 344, 436, 443, 485, V. Durr, 472. 541. V. Dusenberry, 417, 479, 490. V. Dawes, 217. V. Eames, 264. V. Dawkins, 468. V. Ban, 178, 344, 459. V. Dawson, 545. V. Early, 288. V. Day, 201, 449. V. Eason, 364. V. Dayton, 112, 113, 144, 313, 362, V. Easter, 117-120. 364. V. Eaton, 365, 377. V. Dearborn, 400. V. Eberline, 553. T. Deaton, 303. V. Ebert, 107. V. Decker, 275. V. Eddon, 525. V. De Graff, 445, 499, 529. V. Edlavitch, 365. V. Delaney, 355. V. Edson, 217. V. De Lay, 264. V. Edwards, 175, 197. V. Dent, 157, 443. V. Egglesht, 282. V. Denton, 419. v. Elden, 392, 395. V. Desctiamps, 412. V. Elder, 390. V. Devine, 73, 75. V. Eldred, 14. 602 CASES CITED, [The figures refer to pages.] State V. Elkins, 114, 426. State V. Ellington, 44b. V. V. Ellis, 170, 178, 228. V. V. Ellison, 340. V. V. EUvin, 413. V. V. Elrod, 58. V. V. Emery, 372, 377. V. V. Engeman, 126, 472. V. V. England, 143. V. V. Engle, 475. V. V. English, 339. V. T. Eno, 351, 488. V. V. Epps, 388, 394, 425, 427. T. Estlinbaum, 285. V. V. Evans, 309, 311, 312, 354, 355, V. 472. V. V. Everett, 29. V. V. Ewing, 489. V. V. Fairlamb, 442, 462, 479. V. V. Fancher, 154. V. V. Farley, 347. V. V. Farmer, 293. V. V. Farr, 408. V. V. Faxrand, 334. V. V. Farrell, 344. V. V. Farrington, 415. V. V. Fasset, 112, 113, 121, 122. V. V. Fee, 190. V. V. Peeny, 146. V. V. Fellows, 364. V. V. Fenlason, 483. V. Fenn, 226, 337. V. V. Ferry, 253. V. V. Fesperman, 6. V. V. Field, 445. V. V. Files, 415. V. V. Finlayson, 489. V. V. Fitts, 157. V. V. Fitzgerald, 6. V. V. Fitzpatrick, 70. V. V. Fitzsimmen, 513. V. V. Fitzsimmons, 518. V. V. Fitzsimon, 291, 295. V. V. Flanders, 284, 522. V. V. Fleming, 135, 141, 215, 352. V. V. Flemming, 117. V. V. Fletcher, 524. V. T. Flint, 170, 358. V. V. Flowers, 364. V. V. Flye, 289, 291. V. V. Flynn, 71, 538. V. V. Fontenette, 367. V. Foot, 93. Ford, 427, 443. Forshner, 110, 449. Foster, 420, 445, 478. Fowler, 113, 291. Fox, 126, 231, 284, 417. Foy, 225. France, 234, 341. Frank, 360. Franzreb, 289. Frazier, 296. Freeman, 74, 114, 175, 194, 317, 318, 320, 322. Friend, 218, 222. Frier, 445, 447, 475. Frisby, 335. Froiseth, 113. Fuller, 51, 428 Gainor, 515. Gardiner, 430. Gardner, 193. Garrett, 50, 52. Garvey, 188. Gary, 123. Gates, 201. Gay, 301. Geiger, 147. Gessert, 10. Gibbs, 121. Gilbert, 85, 123, 126, 127, 170, 178, 183, 197, 244, Gile, 445, 469. Gill, 390. Gilmore, 175. Ginger, 535. Glasgow, 125. Glave, 367. Gleason, 129. Glenn, 435, 558. Glover, 66. Glynn, 551. Godfrey, 247, 474, Goode, 249. Goodenow, 194. Goodman, 210. Goodrich, 226. (Joulding, 265. Gove, 194, 263, 314, 320, 493. Goyette, 28. Graham, 147, 425, 457. Grant, 5, 41, 42, 146, 209, 235, 281, 333, 521, 522, 551, 552. CASES CITED. 603 [The figures refer to pages.] State V. Grate, 426. State V. Gray, 168. V. V. Grear, 531. V. V. Great Works Milling, etc.. Co., V. 148. V. V. Green, 155, 170, 388, 394, 522. V. V. Greenman, 117. V. V. Griffin, 267. V. V. Grigsby, 99. V. V. Grisham, 160, 233, 352 V. V. G. S., 237, 240, 244, 344. V. V. Guest, 149. V. V. Guild, 495. V. V. Guinness, 427. V. V. Gummer, 293. V. V. Gustin, 206. V. V. Gut, 419. V. V. Hack, 464, 524. V. V. Hacliett, 397. V. V. Hadcocli, 229. V. V. Haddock, 127, 244. V. V. Hailey, 134. V. V. Haider, 174. V. V. Hale, 427. V. V. Halford, 331. V. T- Hall, 65, 66, 154, 365, 386, 469. V. V. Hambleton, 223. V. T. Hamer, 94. V. V. Hamlin, 118, 119, 121, 122. V. V. Hand, 145. V. V. Haney, 174, 282, 288, 344. V. V. Hang Tong, 197. V. V. Hanks, 318. V. V. Hanson, 237. V. V. Harden, 483, 485. V. V. Hardwick, 171. V. V. Hare, 841. V. V. Harkins, 547. T. V. Harlow, 478. V. V. Harmon, 358, 486. V. V. Harper, 92. V. V. Harris, 52, 115, 126, 144, 289, V. 335, 338, 385, 484. V. V. Harrison, 190, 417, 430 478, 479. V. V. Hart, 191. V. T. Hartfiel, 194. V. V. Hartnett, 347. V. V. Hartwell, 79. V. V. Harvell, 133. V. V. Hascall, 329. V. V. Haskell, 12. V. V. Haskett, 136. V. V. Hastings, 385. Hattaborougli, 399, 401, 402. Havely, 343. Haven, 163, 171, 279. Hawks, 113. Hawley, 459, 460, 469. Haycroft, 368. Hayden, 121, 212, 534-536. Hayes, 254. Hayward, 130, 208, 547. Hazard, 289. Heathman, 101. Heck. 174, 194. Hedge, 175. Heed, 547. Heller, 133. Helvin, 80. Henderson, 118, 524. Hendrix, 499. Henn, 284, 286. Hennessey, 281, 282, 337. Henning, 419, 421. Henry, 291. Hertzog, 298. Hester, 170, 478. Hickman, 264, 365, 416. Higgins, 266, 268. Hilderbrand, 522. Hill, 84, 87-89, 227, 464, 477. HiUstock, 414. Hobbs, 26, 29, 240, 246, 347. Hobgood, 510. Hodge, 511. Hodgeden, 244. Hodges, 280, 296, 297. Hodgkins, 388. Hodgson, 141, 492. Hoffman, 223. Hogan, 288. Hollingsworth, 116. Holly, 312. Holmes, 46, 80, 217. Homan, 303. Honeycutt, 386. Hood, 295. Hooker, 162. Hopgood, 454. Hopson, 89. Horan, 334. Horton, 363. HQUse, 194. Hciuser, 341, 469, 533. 604 CASES CITED. [The figures refer to pages.] State V. Hover, 262. State V. Kansas City, S. & M. Ry. Co., V. Howard, 419, 429, 459, 463. 260. V. Howell, 415, 479, 499, 510. T. Kattlemann, 392, 490. V. Hoyt, 485, 509. V. Keach, 161. V. Hudson, 15, 17. V. Kealy, 66. V. Huffman, 393. V. Kean, 146, 201, 234, 309-311. V. Hufford, 63. V. Keeland, 353, 360. V. Hughes, 146, 149, 285, 316, 365, V. Keen, 264, 354, 356. 367, 391, 424. V. Keena, 115, 129, 230. V. Hull, 20. V. Kelley, 517. V. Humphreys, 221, 311. V. Kelly, 425, 426. V. Hunter, 11, 123, 367. V. Kelm, 129. V. Hurds, 187. V. Kemp, 393. V. Hurlbut, 425. V. KendaU, 178. V. Hurley, 364. V. Keneston, 262. V. Hutchinson, 486, 487. V. Kenna, 215. V. Huting, 541. V. Kennade, 473, 538. V. Hutson, 341. V. Kennedy, 315, 359. V. Ice, 455. V. Kern, 178. V. Igo, 478. ^ V. Kerr, 144. V. Ingalls, 240. V. Kesslering, 269. V. Ingles, 403. V. Keyes, 107. T. Ingram, 508. V. Kibby, 293, 296. T. Inness, 404. V. Kilcrease, 112. V. Inskeep, 280. V. Killet, 24, 25, 556. v.- I. S. S., 136. V. Kinder, 78. V. Ivey, 115. V. King, 355, 469. V. Ivins, 513. V. Kinney, 513. V. Izard, 489. V. Kirby, 35, 50, 58. V. Jackson, 190, 209, 222, 254, 260, V. Klinger, 415, 536. 269, 271, 289, 333, 449, 471, V. Knapp, 419, 513. 479. V. Knight, 472, 552. V. Jacobs, 120, 250, 348. V. Knouse, 392. V. James, 26, 37, 47, 446. V. Koontz, 413. V. Jenkins, 318. V. Kring, 77, 423. V. Jennings, 189, 355, 488, 494 , V. Kruise, 74, 92. V. Jesse, 197. V. Kye, 327. V. Jewell, 447. V. Kyne, 353. V. Jim, 198, 221, 311. V. La Bore, 232. V. John, 164, 485. V. Lacey, 360. V. Johnson, 10, 13, 14, 145, 146, V. Lakey, 254. 171, 237, 247, 253, 280, 311, V. Lamon, 249, 847. 312, 318, 341, 355, 359, 365, V. Land, 239. 433, 526. V. Landry, 251. V. Johnston, 134. V. Lane, 123, 143, 244. V. Jones, 9, 29, 31, 35, 80, 84, 85, V. Lang, 305. 123, 127, 169, 243, 364, 367, V. Langford, 479, 513. 424, 426, 469, 486. V. Lapage, 519. V. Jordan, 355, 467. V. Larger, 487, V. J. P., 365. V. Larkin, 398. V. Kane, 259. V. Lawlor, 552. CASES CITED. 605 [The figures refer to pages.] State T. Leabe, 447. State V. M'Cory, 435. V. Leaci, 20, 29. V. McCoy, 310, 371, 415, 541. V. Leak, 333. V. McCracken, 248, 254. V. Learned, 141, 317. V. McCue, 490. V. Le Blanch, 11. V. McDaniel, 245. V. Le Cerf, 97. V. McDonald, 36, 199, 281. T. Ledford, 108, 435. V. McDonnell, 465^67, 469. V. LedufC, 445, 455. V. McDowell, 238. V. Lee, 392, 393, 395, 431, 432, 486, V. Mace, 141, 157, 160. 488, 533. V. McGaflin, 264. V. Lee Doon, 425. V. McGinniss, 347. V. Leasing, 400. V. McGlothlen, 547. V. Leunig, 475. V. McGregor, 150. V. Levy, 374. V. McGrew, 431. V. Lewis, 40, 43, 77, 109, 402, 413, V. Mclntire, 340. 461, 541. V. Mcintosh, 447. V. Lincoln, 290, 295, 341. V. Mack, 483, 462, 463. V. Lindsey, 353. V. M'Kee, 385-387. V. Lltch, 242, 243. V. McKiernan, 202, 300. V. Little, 264, 388, 394. V. McKinney, 467. V. Littlefield, 399, 402. V. M'Lain, 222, 318, 336, 46& V. Lockbaum, 269. V. McLennen, 355. Y. Lockhart, 100, 189. V. McNab, 86. V. Locklin, 406. V. McNally, 28. V. Lockwood, 171, 436. V. McNaught, 490. v. Loeb, 94, 100. V. McNeill, J36. V. Loehr, 429. V. McNinch, 51. V. Logan, 112, 113. V. MacEae, 228. V. Long, 488. V. Maddox, 120, 271, 414. V. Longbottoms, 221, 338. V. Madigan, 479, 517. V. Longley, 298. V. Magrath, 344. T. Langton, 82. V. Mahon, 51, 56, 97. V. Lonsdale, 546. V. Main, 385. V. Lopez, 310. V. Maine, 436. V. Lord, 14. V. Mainor, 302. V. Louver, 24. V. Malia, 376, 377. V. Love, 109. V. Mallon, 510. V. Lowder, 31. V. Malloy, 215. V. Lowry, 394, 489. V. Maloney, 194, 446. V. Lucker, 427. V. Manley, 102, 162. V. Luke, 239. V. Mann, 23, 37. V. Lund, 285, 346. V. Manning, 146, 235, 817, 318. V. Lyon, 252, 299. V. Mansfield, 436. V. McAfee, 41, 441. V. Marcks, 280, 357. V. McAllister, 144, 298, 299. V. Marion, 283. V. McAvoy, 354, 356. V. Marlier, 207. V. McBride, 485. V. Marqueze, 471. V. McCarter, 187. V. Marshall, 94, 454. V. McCarthy, 237, 315, 317, 318. V. Martin, 117, 118, 146, 235, 337, V. McClung, 199, 352, 380, 488. 392, 421, 493. V. McCord, 392. V. Martinez, 89. V. McCormick, 493. V. Massey, 263. 606 CASES CITED. [The figures refer to pages.] ite V. Mathers, 544. State V. Matthews, 117, 282. V. V. Maurignos, 558. V. V. May, 241, 353. V. V. Mays, 73. V. V. Mead, 389. V. V. Meadows, 202. V. V. Meakins, 390. V. V. Meek, 272. V. V. Blelrose, 522. V. V. Melton, 100, 356- 358. V. Mercer, 447. V. V. Merriman, 443, 535. V. T. Merrill, 282, 285. V. y. Metsch, 328. V. V. Mewherter, 545. V. V. Meyer, 465. V. V. Meyers, 100, 141, 250, 348, 493. V. V. Michael, 542. V. V. Middleton, 119. V. v. Miller, 68, 73, 110, 133 , 215, 286, V. 352, 425, 470, 478. V. V. Millican, 461. V. V. Mills, 84, 482. V. V. Minski, 421. V. V. Minton, 522. V. V. Mitchell, 360, 365, V. T. Mix, 475. V. V. Moberly, 498. V. V. Molier, 175, 332, 334. V. Montague, 294, 296, 298. V. V. Montgomery, 367 ,488. V. V. Moody, 136, 436, 454. V. V. Moor, 386, 387. V. V. Sloore, 52, 129, 284, 329, 331, V. 337, 434, 515. V. V. Moran, 424. V. V. Morea, 445, 452. V. V. Morey, 224. V. V. Morgan, 141, 263 V. V. Morphin, 282. V. V. Morris, 105, 106, 133, 352. V. V. Morse, 201. V. V. Morton, 283. V. T. Moses, 155. V. V. Mott, 177. V. V. Mowry, 50. V. V. Mueller, 353. V. V. Mulkern, 513. V. V. Munch, 244. V. V. Munger, 201, 241 272, 344. V. T. Murdock, 197. V. Murdy, 414, 417. Murphy, 99, 203, 221,- 282, 283. Murray, 20. Myers, 115, 175. Myrick, 425. Nail, 305. . Naramore, 170. , Narrows Island Club, 272. Nash, 404, 415, 452, 488, 538. . Nelson, 92, 279, 282, 283, 285, 288, 291, 296, 299. , Nerbovig, 74. . New, 11. Newton, 282. , Nichols, 290, 345, 547. Nickleson, 263, 425. Niers, 167. Niles, 513. Nixon, 142, 216, 250, 348. Noble, 182, 183. Noland, 242. Nordstrom, 538. Norton, 125, 429. Norvell, 391, 392, 395. Nowell, 301. Nulty, 317. Oakley, 221. O'Bannon, 169, 260. O'Brien, 271, 272, 301, 306, 432, 478. O'Connor, 64. Odell, 388. O'Donald, 308. O'Donnell, 237, 242, 273. Offutt, 237. O'Grady, 470. Olds, 420. Oleson, 395. Oliver, 55. O'Neal, 471. O'Neil, 281, 493. Orrell, 252. Orrick, 433. Ostrander, 119. Owen, 155, 332. Owens, 340. Oxendine, 431. Palmer, 13, 280, 284, 477. Pankey, 418, 482. Parish, 353, 395, 404. Parker, 21, 161, 238, 263, 280, 388. CASES CITED. 607 [The figures refer to pages.] State V. Parmelee, 360. State V. Parrisb, 392, 395. V. V. Passaic Agr. Soc, 380. V. V. Paterno, 385. V. V. Patrick, 189, 224. V. V. Patterson, 66, 93, 95, 161, 245, V. 526, 530, 532. V. V. Paul, 163. V. V. Pauley, 10. y. V. Payne, 388. V. V. Peacock, 425, 428. V. Perkins, 262. V. V. Peri-y, 82, 154, 163, 476. V. V. Peters, 201, 324, 327. V. V. Peterson, 341, 342, 543. V. V. Pettit, 469. V. V. Peyton, 5. V. V. Phelps, 276, 310, 314, 517. V. Phillips, 388, 393, 521. V. V. Phinney, 50, 174. V. V. Pierre, 147. V. V. Pike, 149. V. V. Pile, 302. V. V. Pitts, 115. V. V. Place, 478 V. V. Plunket, 223, 261. T. V. PoUet, 429. T. V. Populus, 475. V. V. Porter, 290. V. V. Potter, 445, 499, 556 V. V. Potts, 208, 443. V. V. Powell, 393. V. V. Pratt, 242. V. V. Prescott, 478. V. V. Presley, 468. V. V. Price, 125, 253, 355. V. V. Primeaux, 418. V. V. Pritchett, 428. V. V. Proctor, 364. V. V. Pugh, 20, 51. V. V. Pullens, 210, 341. V. V. Purdie, 360. V. V. Push, 443. V. V. Quarrel, 442. V. T. Quimby, 110, 119, 449. V. V. Quinn, 430. V. V. Raiford, 261. V. V. Railway Co., 154. V. V. Raines, 262. V. V. Rainsberger, 413. V. V. Randolph, 93, 543, 552. V. V. Rankin, 395. V. V. Ratts, 312. Raven, 524. Ray, 390. Raymond, 175. Reckards, 427. Record, 157. Recorder, 74. Rector, 175, 198, 364. Redman, 385, 386, 391, 392. Reed, 115, 244, 400, 425, 443, 470, 479, 526, 527, 553. Reeves, 363, 371. Reid, 247, 459. Reidell, 541. Renfrow, 368. Reonnals, 11. Reynolds, 141, 324, 330, 339, 340, 393. Rheams, 466. Rhodes, 392. Richards, 473. Richter, 65. Ricketts, 482. Rickey, 120, 363, 305. Ridley, 5. Riebe, 206. Rifee, 363. Riggs, 519. Ripley, 311. Ritty, 80. Rivers, 430. Roach, 237, 240, 365. Roane, 44, 52. Roberts, 5, 42, 161, 162, 207. Robinson, 127, 240, 354, 386, 470. Rockafellow, 87, 119, 120. Roe, 135. Roesener, 539. Rohfrischt, 487. Rollins, 100, 53a Roper, 197. Rose, 537. Ross, 60, 470, 522. Roth, 25. Roulstone, 304. Rout, 220. Rowe, 29, 98. Rowlen, 190. Rowley, 316. Rucker, 197. Rush, 221, 273, 491, 552. Rushing, 340. 608 CASES CITED. [The figures refer to pages.] te V. Russell, 161, 162, 420, 430, State V. Soper, 431, 544. 459, 548. V. Sorenson, 75. V. Bust, 262. V. Sortor, 463. V. Ryan, 228. V. Soule, 309, 311, 312. V. S. A. L., 247. V. Sparks, 197. V. Salts, 24T. V. Sparrow, 480. V. Sanders, 155, 347, 424, 457. V. Spear, 177. V. Sauvinet, 558. T. Spencer, 69, 202, 445, 541. V. Schaefer, 541. V. Spidle, 498. V. Scheie, 355. V. SpiUman, 414. T. Schieler, 80. V. Spray, 489. V. Schoenwald, 466. V. Spurgln, 391. V. Schricker, 317, 318. V. Squire, 115, 315, 323. V. Schumm, 363. V. Stalcup, 51. V. Scott, 96, 296, 353, 359 ,443 562. V. Staley, 529, 531. Y. Scribner, 157, 269. V. Stalmaker, 451. V. Scurry, 340, 341. V. Stanton, 202. T. Seamons, 244. V. Staples, 69. V. Security Bank, 365, 377. V. Starling, 541. V. Sexton, 242, 315, 323, 365. V. Startup, 141, 31T. V. ShaefCer, 11. V. Staton, 537. V. Shanley, 373. V. Stedman, 268, 359. V. Sharp, 119, 120. V. Stegner, 413. T. Shaw, 39, 47, 53, 76, 181, 261, V. Steifel, 353. 264, 444. V. Stein, 202. T. Shear, 356. V. Stephen, 190, 212. V. Sheeley, 446. V. Stephens, 100. V. Shelton, 28, 36. V. Stephenson, 169. V. Shepard, 359, 400. V. Stevens, 220, 240, 281. V. Sherburne, 182. V. Stewart, 10, 16, 64, 66, 207, 288, V. SherriU, 339. 295, 296, 367, 368, 447. V. Shores, 116. V. Stickney, 410. V. Shuler, 262. V. Stimson, 220, 221, 227. V. Sides, 324. V. Stout, 280. V. Sigman, 51. V. Street, 157. V. Simien, 417. V. Stucky, 232. V. Simmons, 61, 302, 393 V. Stunkle, 110. V. Simpson, 268, 394, 430 • V. Sullivan, 414, 420. V. Sims, 43, 467. V. Sullivant, 95. V. Slocum, 247. V. Summons, 86-88. V. Small, 12. V. Sutton, 124, 295, 391. V. Smalley, 290, 294-297. V. Swaim, 344. V. Smith, 49, 53, 54, 60, 123, 165, V. Swope, 63. 194, 202, 242, 249, 279, 280, V. Symonds, 110, 118. 282, 291, 306, 324, 348, 370, V. Talbert, 525, 527. 390, 399, 401, 402, 424, 460, V. Talmage, 353. 468, 492, 511, 549. V. Tatro, 529. V. Sneed, 250, 348. V. Taunt, 208, 226, 338. V. Snell, 332. V. Taylor, 93, 351, 363, 367, 431. V. Snow, 465. 510. V. Solomons, 393. V. Temple, 241. T. Sommers, 271. V. Tennison, 79. CASES CITED. [The figures refer to pages.] State V. Terrebonne, 315, 316. State V. Thomas, 19T, 226. V V. Thomason, 220. V V. Thompson, 28, 69, 237, 290, 343, V 479. V. Thome, 264. V V. Thornton, 355, 395. V 7. Thurston, 282. V. V. Tllghman, 478-480. V V. Tillery, 226. V V. Timmens, 342. V V. Tingler, 191. V. T. Toland, 449. V V. Tolleston Olub, 6. V V. Toltever, 247. V V. Tomlinson, 106, 133. V. V. Town, 447. V. V. Town of Newfane, 118. V V. Townsend, 50, 206, 207, 321, 332, V. 429. V. T. Trapp, 340. V. T. Trefethen, 275. T. V. Triplett, 354, 361. V. V. Trout, 541. V. V. Tucker, 113. V. V. Tuller, 244, 294. V. T. Turlington, 52, 414, 420. V. V. Tumage, 312. V. V. Turnbull, 250, 267, 349. V. V. Turner. 468. V. V. Twitty, 207, 210. V T. Tyler, 533. V. V. Tyrell, 189. V. v. Tyrrell, 231. V. V. ririch, 543, 544. V. Underwood, 11, 41, 416, 417. V. v. Upton, 147, 479. V. V. Valentine, 358, 391. V. V. Van Cleve, 317, 3ia V. V. Vanderpool, 60. V. V. Van Doran, 169. V. V. Vaughan, 427. V. V. Vaughn, 101. V. Vermont C. R. Co., 148. V. Vincent, 116, 142, 365. V. Vittum, 146, 235. V. V. Wadsworth, 301. V. V. Wagner, 144, 282, 298, 299. V. V. Wakefield, 394. V.' Walcott, 112. V. V. Walker, 106, 367, 386. V. V. Wall, 182, 363. V. . CRIM.PKOC— 39 V. Walsh, 273. . Walters, 468. . Walton, 519. . Ward, 117, 212, 282, 363, 377, 393, 447, 551. . Ware, 318. . Warner, 397, 513. . Warren, 282. . Wasden, 123. . Washington, 309. . Waters, 354. . Watson, 81, 264, . Watts, 359. . Way, 479. . Weare, 316. . Weatherspoon, 388. Weaver, 332, 333, . Webb, 385. . Weber, 488. Webster, 146, 272, 445. . Weed, 28, 35, 37, . Weeks, 484, 486. . Welch, 264. . Weldon, 542, 543. . Welker, 252. . Wellman, 95. , Wensel, 60. . Wenzel, 31, 93. West, 426, 489, 524. . Wheeler, 206, 209, 333. . Whipple, 385. . Whiskey, 70. . Whitaker, 29, 31. . White, 314, 316, 353, 355, 860, 427. . Whitney, 174, 175. . Whitson, 387, 510, 511. . Whitt, 197. . Whitton, 117, 417. . Wilcox, 109. . Wilkins, 511, 512. Williams, 94, 124, 126, 132, 146, 168, 193, 220, 253, 260, 281, 290, 337, 358, 367, 373, 390, 398, 443^45, 495, 510. Williamson, 534. , Willis, 252. . Wilson, 190, 340, 367, 470^72, 480, 482, 486, 526. , Wimberly, 174, 198, 334, 359. , Wimbush, 23, 24, 29. , Winchester, 469. 610 CASES GITED [The figures refer to pages.] State V. Wininger, 84, 85. V. Wise, 80, 418, 485. V. Wishon, 366. V. Witham, 210. V. Witt, 341. V. Wofford, 421. V. Wood, 282, 525. V. Woodard, 296, 297, 301. V. Woodley, 94. V. Woodruff, 387. V. Woods, 73, 82. V. Woolard,'462. V. Worden, 435. V. Workman, 470. V. Worley, 28. V. Wright, 110, 206, 311. V. Wyatt, 181, 261. V. Yancey, 125. T. Yanta, 355, 35G. V. Yarbrough, 394. T. Yates, 373. T. Yocum, 513. V. Young, 447, 517. V. Zule, 125. ■Stazey v. State, 347. Steagald v. State, 546. Stedman's Case, 157. Steel V. Smith, 271, 275. Steele v. People, 414. Steerman v. State, 10. Stegars v. State, 97. Stein V. State, 193. Steiner's Case, 395. Stennel v. Hogg, 319. Stephens v. Commonwealth, 414. V. People, 427, 475, 535. V. State, 207, 303, 308, 446, 455, 486, 487, 489. V. Wllkins, 36. Stephen's Case, 247. Stemack v. Brooks, 43. Stetson V. Packer, 31. Stevens v. Commonwealth, 283, 329. 339. V. Dimond, 311. V. Fassett, 389. V. State, 295, 351, 353. Stevick V. Commonwealth, 295. Stewart v. Commonwealth, 225. V. .Tessup, 11. V. People, 483. V. State, 113, 220, 288, 354, 359, 367, 386, 387, 412, 447, 533. Stichtd V. State, 335. Stiener v. State, 4C7. Stiff, Ex parte, 87. Stocken v. Carter, 42. Stockholm v. State, 414. Stocks V. State, 386. Stoddard v. Tarbell, 35. Stokes V. People, 446, 505, 551. V. State, 189. StoUenwerk v. State, 222. Stoltz V. People, 490. Stone V. Dana, 69, 70. V. People, 155, 386. V. State, 125, 479. Stoneham v. Commonwealth, 367. Stoner v. State, 557. Storrs V. State, 294. Stoughton V. State, 10, 190. Stout V. Commonwealth, 197, 253. V. State, 10, 364, 478. Stover V. People, 511, 537, 540. Strang v. State, 15. Strange v. State, 114. Stratton v. Commonwealth, 161. Strawhern v. State, 364. Street v. State, 557. Streshley v. Fisher, 101. Strickland v. State, 247. Stroder v. State, 175. Stuart V. Commonwealth, 385, 484. V. People, 73, 81. Stubbs V. State, 424, 425, 427. Stukeley v. Butler, 173. Stultz V. State, 415. Sugg V. Pool, 42. Sullivan v. Commonwealth, 353. V. People, 347. V. State, 202, 490, 525. Sultan, In re, 64, 65. Sutcliffe V. State, 392. Sutton V. People, 414, 417, 474, 496. Swaim v. Stafford, 42. Swallow V. State, 472. Swann v. State, 465. Swart V. Kimball, 26, 434, 442. Swartzbaugh v. People, 271. Swearingen, Ex parte, 64. Sweat V. State, 12. Sweet V. Sherman, 553. Swiney v. State, 362. Swisher v. Commonwealth, 527. Sylvester v. State, 496. CASES CITED. 611 [The figures refer to pages.] T Tabart v. Tipper, 209, 211. Tabler v. State, 427. Tackett v. State, 28. Taintor v. Taylor, 63. Tarble, In re, 560. Tarble's Case, 559, 560. Tarlton v. Fisher, 37. Tayloe, Ex parte, 86. Tayloe's Case, 88. Taylor v. Commonwealth, 117, 124, 126, 190, 247, 340, 341, 472, 490, 510. V. Foster, 545. T. State, 115, 179, 223, 375, 548. V. Strong, 40, 43. V. Taintor, 63, 65, 96. Teachout y. People, 532. Teagarden v. Graham, 45. Teas V. State, 115. Teat V. State, 386. TefCt V. Ashbaugh, 36. V. Commonwealth, 123, 142. Templeton v. People, 80. Terrill, In re, 5. . Territory v. Brash, 367. V. Cutinola, 128, 129. V. Day, 425. V. Doe, 248. V. Dooley, 361. V. Galliff, 355. V. Godfrey, 513. V. Harding, 115. V. Hart, 110, 123. V. McFarlane, 201. V. McKem, 534. V. O'Donnell, 165. V. O'Hare, 468. V. Pendry, 227. V. Pratt, 246. Terry, Ex parte, 435. Testick's Case, 221. Thayer v. People, Hi Thomas v. Commonwealth, 170, 328. V. Croswell, 177. V. Klnkead, 52. V. Russell, 42. V. State, 87, 208, 215, 230, 281,443, 449. T. Village of Ashland, 43. Thompson, In re, 560. Thompson v. Commonwealth, 310, 390, 470, 479, 499, 530, 531. V. Fellows, 28, 101. V. Lee, 146, 235. V. Oglesby, 556. V. People, 431. V. Eichardson, 328. V. State, 246, 289, 462, 473, 513, 527, 538, 548. Thornell v. People, 115. Threadgill v. State, 527. Thurmond v. State, 235. Tidwell V. State, 347. Tilley v. Commonwealth, 377. Tilton V. State, 485. Timmerman v. Territory, 239. Timms v. State, 340. Timothy v. Simpson, 46. Tindle v. Nichols, 121, 122. Tippins V. State, 10, 11. Tipton V. State, 126, 143, 201, 463. Tobart v. Tipper, 333. Tomby v. State, 212. Tomlin v. Fisher, 558. Tomlinson v. Territory, 286. Tompkins v. State, 290. Tooel V. Commonwealth, 452. Tooke V. State, 426. Toole V. State, 246. Totten V. U. S., 544. Tousey v. State, 94. Tower v. Commonwealth, 247. Townley v. State, 313. Town of Van Buren v. Wells, 395. Townsend v. People, 299. Trabune v. Commonwealth, 538. Tracy, Ex parte, 427. V. Commonwealth, 281. V. WiUiams, 29, 36, 39, 75. Trask v. People, 209, 333. Treasurer of Middletown v. Ames, 444. Trimble v. State, 446. Trogdon v. State, 472. Troia, In re, 557. Trout T. State, 179. Troutman, In re, 63. True V. Plumley, 482. Tubbs V. Tukey, 32, 37, 57, 74. Tucker's Case, 118, 120. Tuell V. Wrink, 69. Tullis V. Fleming, 62. 612 OASES CITED. [The figures refer to pages.] TuUy V. Commonwealth, 134, 202, 268. V. People, 264. Turk V. State, 300. Turner v. Conkey, 421. V. Muskegon Circuit Judge, 178, 356, 357. V. Pearte, 498. V. People, 107, 145, 150, 344. V. State, 194, 280, 828. Tumerls Case, 155. Turns v. Commonwealth, 125, 150, 247, 255, 376. Turpin v. State, 302, 308. Tuttle V. Commonwealth, 204 Tweedy v. Jarvis, 146, 234. Twohig, Ex parte, 557. Twombley v. Humphrey, IL Tyler v. People, 10. Tyra v. Commonwealth, 438. U UUery v. Commonwealth, 88. Union, The, 77. U. S. V. Aaron Burr, 119. V. Amy, 394. V. AngeU, 533. V. Bachelder, 262-264. V. Ballard, 132-134. V. Barnhart, 394, 395. V. Battiste, 466. V. Benner, 56. V. Bennett, 220. V. Benson, 121. V. Bishop, 97. V. Blodgett, 118. V. Bornemann, 123, 127. V. Boyd, 44. V. Britton, 12, 206, 262, 265. V. Brooks, 430. V. Brown, 113, 409. V. Burns, 247. V. Buzzo, 194. V. Carll, 193. V. Clark, 193, 194. V. Conrad, 237. V. Cook, 241, 260, 270, 273. V. Coolidge, 364. V. Oruikshank, 152, 154, 156, 160i 161, 223, 266. T. Davis, 426. U..S. V. De Walt, 107. V. Douglass, 451. V. Ducournau, 498. V. Eagan, 117. V. Edwards, 201, 202. V. Elliot, 261. V. Elliott, 180, 181. V. Ewan, 121. V. Faulkner, 541. V. Feeley, 98. V. Fox, 161, 411, 412. V. Furlong, 813. V. Gale, 492. V. Gibert, 313, 369, 387. V. Goggin, 266. V. Gooding, 159, 265, 269. V. Green, 560, 561. V. Hall, 543. V. Hamilton, 87, 557. V. Hanway, 446. V. Harding, 307. V. Haskell, 476. y. Hess, 266. V. Hill, 109. T. Howard, 182, 184, 185, 329, 339, 340, 342. V. Howell, 213. V. Insurgents, 125. V. Irvine, 133. V. Jailer, 558. V. Jones, 87, 120, 390. V. Keller, 466. V. Kelly, 431. V. LaCoste, 181, 241. V. Lancaster, 262. V. Lawrence, 561. V. Lehman, 181, 261. V. Leonard, 353. V. McNeal, 346. V. Malloy, 367. V. Mayfield, 532. V. Mills, 269. V. Moller, 405. V. More, 393. V. Moses, 544. V. Nathan, 193. V. Nelson, 272. V. Nickerson, 257. V. Olsen, 395. V. Patterson, 101. V. Perez, 387. V. PU-ates, 298-300, 394. CASES CITED. 613 [The figures refer to pages.] U. S. V. Plumer, 300. V. Plummer, 494. V. Rauscher, 60, 557. V. Reed, 109. V. Reese, 152, 160. T. Reichert, 173. V. Sanges, 393. V. Santos, 427. V. Scott, 294. V. Shoemaker, 136. V. Simmons, 113, 115. V. Slacum, 133. V. Smith, 238, 312. V. Staats, 202, 203, 262. V. Stone, 529. V. Swan, 478. v.. Taylor, 465, 466. V. Thompkins, 109. V. Tureaud, 129. V. Tuska, 121. V. Watkinds, 193. V. Watson, 135. V. West, 296. V. White, 77, 99, 119, 120, 133, 431. V. Williams, 118-120. V. Wilson, 407, 523. V. Wong Dep Ken, 107. V. Wood, 547. Unsel V. Commonwealth, 415. Updegraff v. Commonwealth, 260, 262. Updegraph v. Commonwealth, 214. Upshur V. State, 288. Upstone V. People, 534. V Vaden v. State, 289. Valentine v. State, 487. Valesco v. State, 222, 336. Vanauken v. Beemer, 441. Van Blaricum v. People, 452. Vance v. Commonwealth, 413. V. State, 342, 548. Vander v. Griffith, 257. ■ Vanderkarr v. State, 106, 115, 419. Vandermark v. People, 146. Vander Plunken v. Griffith, 349. Vandeveer v. Mattocks, 40. Vandeventer y. State, 539. Vane's Case, 344. Vanhook v'. State, 118. Van Meter v. People, 416. Van Sceiver, In re, 64. Vanvickle v. State, 144. Vaughan v. Commonwealth, 280, 404. V. State, 461, 462, 464, 472, 478, 533. Vaughn v. Commonwealth, 416. V. State, 377. Vaux V. Brook, 199. Vaux's Case, 154, 163, 405. Vavasour v. Ormrod, 275. Veatch v. State, 392, 487. Vermilyea, Ex parte, 440, 445. Village of Chorley, Case of, 33. Villareal v. Mellish, 560. Vincent v. People, 96. Virginia, Ex parte, 558. Voorhees, In re, 64, 65. Vowells V. Commonwealth, 242. W Waddell v. State, 293. Wade V. Chaffee, 41, 42. V. State, 425, 476. Wadgymar v. State, 130. Wakely y. Hart, 39, 4-1, 45. Wales V. Whitney, 554. WalfCorth v. State, 498. Walker v. Kearney, 25. V. People, 541. V. State, 227, 280, 327, 414, 418, 528, 542. Walker's Case, 455. Wall V. State, 295. Wallace v. People, 208. V. State, 117, 344. Wallenweber v. Commonwealth, 84, 85. Waller v. Commonwealth, 134. V. State, 482. Walls V. State, 13. Wall's Case, 558. Walpole, Ex parte, 560. Walsh, Ex parte, 80. In re, 495, 496. V. State, 207, 210. Walston V. Commonwealth, 450. Walter v. People, 450. Walters v. State, 541. Walton V. State, 214, 552. 614 CASES CITED. [The figures refer to pages.] Walton's Case, 414. Wandell v. State, 270. Ward V. Bird, 275. V. People, 229, 436, 530. V. State, 109, 112, 175, 839, 341, 452. Warmer v. State, 389, 394. Warner ,v. Lockerby, 552. V. Shed, 35. V. State, 356, 358, 417, 494. Warren t. Commonwealth, 451. V. Paul, 555. V. State, 427. Washburn v. People, 73. Washington v. State, 113. Waterman y. State, 66, 116. Waters v. People, 540. Watkins, Ex parte, 554, 558, 561, Watson, In re, 557. V. State, 47. V. Watson, 37. Watson's Case, 555, 561. Watts V. Commonwealth, 49. Way, In re, 26, 42. Weatherford v. Commonwealth, 301. V. State, 487. Weathers v. State, 209. Weaver v. People, 496. V. State, 388. Webb V. State, 24, 34, 43, 454, 553. Webber v. Gay, 37. Webster v. Commonwealth, 288. V. People, 329. Webster's Case, 114. Weimer v. Bunbury, 44. Weinzorpflin v. State, 490. Welch V. Gleason, 71. V. Scott, 26, 28, 37. V. State, 94. Wells V. Commonwealth, 165, 166, 181, 241, 242, 244. V. Iggulden, 311. V. Jackson, 23, 28, 29, 31. V. State, 100, 341. Welsh V. State, 467, 524. Wemyss v. Hopkins, 388. Wertz V. State, 348. Wesley v. State, 475. West V. Cabell, 29. T.' Commonwealth, 496. V. State, 155. Westbrook t. State, 486. Weston V. State, 390. Whalen v. Commonwealth, 221. Wheeler v. Nesbitt, 74. V. State, 419. V. Whiting, 46. Wheeless v. State, 459, 463, 473. Whitaker, Ex parte, 557. Whitcher v. State, 358. White, Ex parte, 63, 557. In re, 64, 65, 495, 556. V. Commonwealth, 198, 312, 415. V. Edmunds, 43. V. Kent, 43. V. People, 302, 307, 340. V. Polk Co., 433. V. Reg., 152, 160. V. State, 99, 377, 417, 499, 531. V. Territory, 209, 333, 353, 468. Whitesides v. People, 244. Whithead v. Keyes, 56. Whiting V. Putnam, 557. V. State, 262, 266. Whitworth v. Clifton, 37. Widner v. State, 218. Wiggins V. Norton, 57, 74, 75. Wilburn v. State, 118. Wilcox V. Nolze, 65. V. Smith, 36. Wile V. State, 197. Wiley V. State, 474, 475. Wilkerson v. State, 508, 515, V. Utah, 497. Wilks V. Lorck, 30. Williams v. City Council of Augusta, 435. V. Commonwealth, 242, 329, 387, 430. V. Dickinson, 543. T. Jones, 56. V. Ogle, 341. V. Reg., 312. V. Shelby, 93, 95. V. Spencer, 55. V. State, 141, 197, 221, 264, 344, 347, S65, 366, 436, 447, 468, 477, 480, 498, .521. V. Weber, 66. Williamson v. Allison, 183, V. State, 347. Williamson's Case, 554, Willis V. People, 233. V. State, 444, 530. CASES CITED. 615 [The figures refer to pages.] WUmarth v. Burt, 35, 37. "Wilson, Ex parte, 107. In re, 101. V. Laws, 380. T. People, 209, 333. V. Rastall, 545. V. State, 44, 113, 219, 226, 391, 397, 425, 472. Winburn v. State, 6. Winebiddle v. Porterfield, 42. Winfleld v. State, 244. Wingard v. State, 249, 348. Wingfield's Case, 251, 252. Winn V. State, 396, 471. Wlnslow V. State, 187, 189, 230. Winsor v. Reg., 387. Wise V. State, 416. Witliers v. Commonwealth, 432. V. Harris, 210. V. State, 349. Withipole's Case, 377, 385, 40T. Witt T. State, 198, 425. Wofeord T. State, 221. Wohlf ord V. State, 463. Wohlgemuth v. U. S., 335. Wolf V. Commonwealth, 529. V. State, 40, 50, 106, 141. Womaek v. State, 289, 290, 404. Wong V. City of Astoria, 435. Wong Yimg Quy, In re, 559. Wood, In re, 559. T. Brown, 206, 207, 210. V. Commonwealth, 358. V. Fletcher, 146, 235. V. Ross, 32, 33, 37. V. State, 465, 473, 47T. Woodburne's Case, 330. Woodford v. Ashley, 328. V. People, 230. Woodin V. People, 468. Wooding V. Oxley, 45. Woodruff V. U. S., 495. Woods V. People, 553. V. State, 264. Woodsides v. State, 126, 142, 143. Woolfolk V. State, 415, 416. Woolnoth V. Meadows, 177. Work V. Ccarington, 63, 64. Work V. State, 434, 437, 438. Wormeley v. Commonwealth, 415, 420. Wortham v. Commonwealth, 135, 136, 388. Worthington v. Mencer, 542. Wragg V. Penn, 395. Wray, Ex parte, 88. V. People, 414. Wrexford v. Smith, 44. Wright V. Clements, 210. V. Commonwealth, 189. V. Court, 51, 57, 74. V. Keith, 49, 51. V. People, 489. V. Rex, 172. V. State, 135, 386, 391. V. Tatham, 533. Wrote V. Wigges, 400, 401, Wyatt V. Aland, 180. V. State, 351, 478. Wynn v. State, 487. Yaner v. People, 79. Yarber v. State, 488. Yarbrough, Ex parte, 558. V. Commonwealth, 96. Yates V. People, 21, 50, 56, 562. V. State, 421. Yeldell v. State, 461, 499. Young V. People, 94. V. Rex, 289, 296, 298, 302, 303, 305, 308. V. State, 125, 144, 473, 530, 531. Youree v. Territory, 527. Yudkin v. Gates, 561. Zachary v. State, 405. Zarresseller v. People, 310. Zeigler v. Commonwealth, 121. Zellers v. State, 340, 342. Zembrod v. State, 88. Zoldoske v. State, 535, 54a INDEX. [the figures refer to pages.] ABATEMENT, see "Plea In Abatement" ABBREVIATIONS, use of, in indictment, 173, 244. ABSENCE, of the accused, during preliminary examination, 76. during the trial, 423. of judge during trial, 430. of defendant as ground for continuance, 413. of defendant's counsel as ground for continuance, 413. of witnesses as ground for continuance, 414. ACCESSARIES, jurisdiction of offense, 15. indictment against, 305, 306. ACCUSATION, mode of accusation, 104. necessity for formal accusation, 104. necessity to use form prescribed by statute, 104. see, also, "Complaint"; "Indictment"; "Information"; "Pleading." ADDITION, of defendant, pleading, 148. of third persons, 235. see, also, "Names." ADJOURNMENT, of preliminary examination, 74. see, also, "Continuance." AFFIDAVITS, on application for continuance, 416. on application for change of venue, 420. of jurors, to impeach verdict, 490. CRIM.PKOC. (617) 618 INDEX. [The flgures refer to pages.] AGGRAVATING CIRCUMSTANCES, allegation of, 203. AIDER BY VERDICT, In general, 319. ALTERNATIVE ALLEGATIONS, in general, 169. rejection of matter as surplusage, 178. AMBIGUITY, In indictment, 172. AMENDMENT, of indictments, 315. of caption of indictment, 123, 126, 316. of information, 316. efeect of modern statutes, 316, 317. of plea in abatement, 378. of verdict, 483, 485. see, also, "Aider by Verdict"; "Formal Defects." ANIMALS, description of, 222. dead animals, 224, ANTICIPATING DEFENSES, not necessary in pleading, 168. APPEAL, in general, 500. by state, 393, 500. ARGUMENT, of counsel, 460. ARRAIGNMENT, in general, 366. necessity for, 366. on new trial, 367. on appeal from justice's court, 367. on change of venue, 368. manner of, 368. standing mute, 369. deafness and dumbness, 369. insanity, 369. joint defendants, 369. ARREST, in general, 19. INDEX. 619 [The figures refer to pages.] ARREST— Continued. rights and liabilities of parties, lawful arrest, 20. unlawful arrest, 21. by warrant, 21. issuance of warrant, 22. bench warrant, 22. necessity for complaint, 23. sufficiency of complaint, 23. competency of complainant, 25. evidence to authorize issuance of warrant, 26. sufficiency of warrant, 26. form, 26, 28. jurisdiction, 26. time of issuance, 27. contents, 28. before whom warrant returnable, 31, life of wan'ant, 31. alteration, 3ll execution of the warrant, 32. the warrant as a protection to the officer, 34. arrest without a warrant, 39. by officer, 39. by private person, 44. assisting officer, posse comitatus, 47. hue and cry, 48. time of arrest, 49. notice of purpose and authority, 49. use of force in effecting arrest, 51. breaking doors, windows, etc., 53. what constitutes an arrest, 55. duty after arrest, 56. authorized arrest in unauthorized manner, 58. taking property from person arrested, 71. see, also, "Bail"; "Fugitives from Justice"; "Habeas Corpus"; "Pre- liminary Examination"; "Searches and Seizures." ARREST OF JUDGMENT, In general, 492. motion in arrest after pleading guilty, 374. effect, former jeopardy, 391. ATTORNEYS, for the state, who may act, 432. for defendant, appointment, 432. 620 INDEX, [The figures refer to pages.] ATTORNEYS— Con tinued. on preliminary examination, 76. opening of case, 456. arguments of, 460. misconduct of, 458, 462. AUTREFOIS ACQUIT AND CONVICT, PLEAS OF, in general, 382, 405. necessity for plea, 405. character and sufficiency of plea, 405. pleading over in plea, 405. reply and issue on plea, 406. demurrer to plea, 406. when bad for duplicity, 406. right to plead oyer after plea Is overruled, 406. time of pleading, 406. degree of certainty required, 407. ■what constitutes former jeopardy, 384. jurisdiction of former court, 387. character of court, 388, 395. courts-martial and state courts, 395. errors and irregularities on former trial, 388. Insufficiency of former indictment, 389. variance between former indictment and proof, 389. former judgment executed, 390. mistrial through defendant's fault or by consent, 391. verdict set aside, judgment arrested or reversed, new trial, 391. writ of error or appeal by state, 393. new trial after acquittal, 393. effect of fraud on former prosecution, 393. several sovereignties, 394. violation of statute and of municipal ordinance, 395. necessity for former judgment, 395. identity of offenses, 396. B BAIL, in general, 83. jurisdiction to admit to ball, 84. liability of magistrate for refusing or delaying to admit to bail, 85. right to release on bail, 85. sufficiency of baU, 88. sufficiency of sureties, justification, 89. who may become bail, 90. INDEX. 621 [The figures refer to pages.] BAIL — Continued. remedy of the accused on. denial of bail, 90, 554. the bail bond or recognizance, 91. release of sureties, 96. arrest and surrender of the accilsed, 97. breach of bond or recognizance, or forfeiture of bail, 98. BENCH WARRANT, for arrest, 22. BILL OP PARTICULARS, in general, 429. BINDING OVER, see "Bail"; "Recognizance." BOND, to keep the peace, or for good behavior, 2, see "Ball." BREACH OF PEACE, surety to keep the peace, 2. BURDEN OP PROOP, see "Evidence." CAPTION, of indictment, 123. what it should show, 123. showing as to court, 123. as to place of holding court, 124. as to time of presenting indictment, 124. name of judge or judges, 125. that finding is upon oath or affirmation, 125. names of grand jurors, 125. number of grand jurors, 125. qualifications of grand jurors, 125. reasons for affirming Instead of swearing jurors, 125. place from which jurors were summoned, 126. defects, how objected to, 126. amendment, 126. reference to other parts of record, 126. CERTAINTY, see "Pleading." CHALLENGE, of jurors, see "Grand Jury"; "Petit Jury." 622 INDEX. [The figures refer to pages.] CHANGE OF VENUB, in general, 418. on application of state, 419. on application of defendant, 419. grounds, 419. affidavits, 420. discretion of court, 420. number of applications, 421. joint defendants, 421. erroneous denial of motion, effect on jurisdiction, 421. CHARGE OF COURT, to grand jury. 111. to petit jury, see "Instructions." CLERICAL ERRORS, in tile indictment, 145, 175. in statement of time, 244. in verdict, 486. COERCION, of jury, 477. COLLATERAL ATTACK, on judgment, 4. COMMENCEMENT, of indictment, 141. see, also, "Pleading." of separate counts, 298. COMMITMENT, by magistrate, 100. sufficiency, 101. effect of errors and irregularities, 102. COMPLAINT, for issuance of vyarrant of arrest, 23. for Issuance of search warrant, 68. on preliminary examination, 75. In prosecutions in inferior courts, 131. form and sufficiency, see "Pleading." CONCLUSION OF INDICTMENT, in general, 309. against the peace, etc., 309. of vchat government, 310. against the form of the statute (contra formam statutl), 310. INDEX. 623 [The figures refer to pages.] CONCLUSION OF INDICTMENT— Continued. when necessary, 311. statufii or statutorum, 313. rejection as surplusage, 276, 314. several counts, 298, 312. constitutional and statutory provisions, 314. "to the great damage of," etc., 314. "to the evil example of all others," 314. "to the great displeasure of Almighty God," 314. "to the common nuisance," etc., 314. CONCLUSIONS OF LAW,, see "Pleading." CONDUCT, of judge, 459. of the jury, 474. of attorneys, see "Attorneys."' of trial, see "Trial." CONDUCT OP TRIAL, Bee "Trial." CONFESSION, or plea of guilty, 372. after plea of not guilty, 371, 373. after demurrer, 371. after plea to the jurisdiction, in abatement, or specially In bar, 371. withdrawal of, to plead not guilty, 371, 373. effect as a waiver of errors and defects In pleading, 374. implied confession, or plea of nolo contendere, 374. extrajudicial confessions as evidence, see "Evidence." CONSENT, cannot confer jurisdiction, 5, 104. cannot cure fatal defect in indictment, 104. of defendant, to discharge of jury, 387. waiver of right to be present during trial, see "Presence of Defendant" waiver of jury trial, see "Petit Jury." CONSOLIDATION, of indictments, 432. CONSTITUTIONAL LAW, see specific titles. CONTINUANCE, right to speedy trial, 411. 624 INDEX. [The figures refer to pages.] CONTINUANCE-Continued. on application of state, 411, on application of defendant, 412. want of preparation, 412. absence or sickness of defendant, 413. absence or sickness of defendant's counsel, 413. absence of witnesses, 414. local prejudice or excitement, 416, practice, affidavits, 416. joint defendants, 417. discretion of court, 418. of preliminary examination, 74. CONTINUANDO, see "Time and Place." CORONER'S INQUISITION, in general, 130. as dispensing with necessity for preliminary ezaminattoa, 73^ COUNSEL, for the state, who may act, 432. for the defendant, appointment, 432. at preliminary examination, 76. argument of, 460. misconduct, 458, 462. sickness or absence of, as ground for continuance, 411, 413. COUNTS, see "Joinder of Counts and Election." COUNTY, see "Place of Trial"; "Pleading"; "Venue." COUNTY ATTORNEY, see "Attorneys." COURTS, of criminal jurisdiction, 4. efCect of illegality In creation or constitution of, 4. place of sitting, 4. time of sitting, 4. number of judges, 4. de facto court or judge, 5. collateral attack on judgment, 6. jurisdiction by consent, 5. the various state courts, 6. the federal courts, 7. see "Jurisdiction." INDEX. 626 [The figures refer to pagea.J CRUEL PUNIS-HMBNT, In general, 496. CUSTODY, of the jury, 474. of defendant during trial, 422. D DARREIN CONTINUANCE, plea puis darrein continuance, 372. DB FACTO, judge or court, 5. DEFENSES, matters of defense need not be anticipated In pleading, 166. DELAY, In granting preliminary examination, 74. see "Continuance"; "Time of Prosecution"; "Time of TrlaL" DELIBERATIONS, of the jury, 474. DEMURRER, to indictment, 379. necessity for, 381. general or special, 379. time of demurring, 372, 381. Indictment good in part, 380. withdrawal of, to plead guilty, 37L effect of sustaining, 381. defects cured by amendment, 380. see, also, "Amendment." to plea in abatement, 377. to plea of autrefois acquit or convict, 406. pleading over, after demurrer to indictment, 371, 380. after demurrer to plea in abatement, 378. after demurrer to replication to plea in abatement, 378. to evidence, 473. DEMURRER TO EVIDENCE, in general, 473. DISCHARGE OF JURY, effect, 385. ' CRIM.PROC. — iO 626 INDEX. [The figures refer to pages.] DISJUNCTIVE ALLEGATIONS, in general, 169. rejection as surplusage, 178. DI SQU ALIFIOATION, of jurors, see "Grand Jury"; "Petit Jury." of judge as ground for change of Tenue, 419. DISTRICT ATTORNEY, see "Attorneys." DUPLICITY, in general, 278. suiplusage, 284. effect, 278, 285. rejection of matter as surplusage, 178. In special plea In bar, 372. in plea of autrefois acquit or convict, 406. E ELECTION, between counts, see "Joinder of Counts and Election." between several offenses shown by the evidence, 284, 346. ERROR, WRIT OF, In general, 500. by state, 393. EXAMINATION, of witnesses, see "Evidence." see "Preliminary Examination." EXCEPTIONS AND PROVISOS, in statute, negativing in indictment, 270. EXCESSIVE BAIL, see "Bail." EXCESSIVE PUNISHMENT, In general, 496. EXTRADITION, see "Fugitives from Justice." EXCLUSION, of persons from court room, 421. EVIDENCE, facts In issue, 501. facts relevant to facts in issue, 502. INDEX. 627 [The figures refer to pages.] EVIDENCE— Continued. facts necessary to explain or introduce relevant facts, 506. motive, 507. preparation, 509. subsequent conduct or condition of defendant, 510. statements accompanying acts, 511. statements in presence of defendant, 511. conduct and complaint by person injured, 512. res gestae, 513. other crimes, 516. acts and declarations of conspirators, 520. hearsay, 523. declarations of persons other than defendant, 523. dying declarations, 525. admissions and declarations by defendant, 527. confessions, 528. evidence given in former proceeding, 532. opinion evidence, 534. experts, 535. character, 536. evidence wrongfully obtained, 538. presumption of innocence, burden of proof, 538. witnesses, their competency, and mode of examination, 542. who may testify, 542. privileged communications, 544. defendant not to be compelled to criminate himself, 546. of jurors to impeach verdict, 490. secrecy as to proceedings by grand jury, 121. corroboration, when required, 547. number of witnesses necessary, 547. excluding witnesses from court room, 548. failure to call witnesses, 548. compelling state to call witnesses, 548. examination of witnesses, 548. examination In chief, cross-examination, and re-examlnatlon, 548. to what matters cross-examination and re-examination must be directed, 549. leading questions, 550. questions proper on cross-examination, 550. exclusion of evidence to contradict answers to questions testing veracity, 551. statements inconsistent with present testimony may be proved, 551. 628 INDEX. [The figures refer to pages.] EVIDENCE— Continued. Impeaching credit of witness, 552. offenses against women, examination of prosecutrix, 553. demurrer to, 473. at preliminary examination, 77-79. before grand Jury, 112. compelling the accused to testify before grand jury, 113. see "Pleading and Proof— Variance." F FEDERAL COURTS, see "Courts"; "Habeas Corpus." FORCE, use of force in restraining the accused, 77. restraint of defendant during trial, 422. in making arrest, see "Arrest" FORFEITURE, of bail, 98. FORM, of indictment, etc., see "Pleading." FORMAL DEFECTS, . in general, 140, 152, 316, 317, 319, 322. cure by amendment, 316. aider by verdict, 319. cure by statute, 140, 322. waiver of, by pleading guilty, 374. see "Clerical Errors." FORMER JEOPARDY, see "Autrefois Acquit and Convict, Pleas oV FRAUD, effect on plea of former jeopardy, 393. FUGITIVES FROM JUSTICE, in general, 59. international extradition, 59. Interstate rendition, 61. trial on a different charge, 60, 65. fugitives fraudulently or forcibly apprehended, rights, 60, 66. • see "Arrest." INDEX. 629 [The figures refer to pages.] G GENERAL ISSUE, see "Plea of Not Guilty." GENERAL VERDICT, see "Verdict." GOOD BEHAVIOR, requiring surety for, 2. GRAMMATICAL ERRORS, in the indictment, 145, 175. In statement of time, 244. in verdict, 486. GRAND JURY, jurisdiction and powers, 108. selecting and summoning, 109, 117. qualifications of jurors, 109, 117. exemption from jury duty, 110. constitution of, 110. impaneling and swearing, 110. number of jurors, 110. charge of the court, 111. finding indictments, 112. witnesses and evidence, 112. rights of persons against whom charge Is pending, 112, 117. effect of hearing illegal evidence, 112. effect of compelling the accused to testify, 113. presence of persons in jury room, 113. the finding of the jury, 114. indorsement of finding on bill, 114. sufficiency of evidence to authorize finding, 114. number of Indictments, 115. resubmitting case, 115. effect of ignoring bUl, 115. countersigning by prosecuting officer, 115. presentation and filing of indictment, 115. Indorsing names of witnesses and of prosecutor, 116. minutes of testimony before grand jury, 116. dissolution of jury, 117. objections to organization, constitution, and qualifications of jury or ju- rors, 117. secrecy as to proceedings, 121. 630 iNDiac. [The figures refer to pages.] GRAND JURY— Continued. record of indictment and finding thereof, 123. caption of indictment, see "Caption." GUILTY, see "Plea of Guilty." H HABEAS CORPUS, in general, 554. nature and history of the writ, 554 jurisdiction, by whom issued, 556. questions reviewable, when discharge granted, 556. jurisdiction as between state and federal courts, 558. application for writ, by whom, 560. form of application, 560. form of writ, to whom directed, service, 561, return, 561. second application, appeal, 562. HABITUAL CRIMINALS, Indictment for second or third offense, 203. HEARING, see "Preliminary Examination." HUE AND CRY, see "Arrest." I IMPEACHMENT, of verdict by jurors, 490. IMPLIED CONFESSION, or plea of nolo contendere, 374. IMPRISONMENT, see "Arrest"; "Bail"; "Commitment"; "Habeas Corpus"; "Judgment and Sentence"; "Preliminary Examination." INCONSISTENCY, in indictment, 171. INDICTMENT, necessity for formal accusation, 104. fatal defects not curable by consent, 104. presentment and indictment distinguished, 105, 116. when lies, 106. when necessary, 107. the grand jury, jurisdiction and powers, 108. INDEX. 631 * [The figures refer to pages.] INDICTMENT— Continued. selecting and summoning, 109, 117. qualifications of jurors, 109, 117. exemption from jury duty, 110. constitution of jury, 110. Impaneling and swearing, 110. number of jurors, 110. charge of the coui-t. 111. finding Indictments, 112. witnesses and evidence, 112. rights of persons against whom charge Is pending, 112, 117. effect of hearing illegal evidence, 112. effect of compelling the accused to testify, 113. presence of persons in jury room, 118. the finding of the jury, 114. indorsement of finding on bill, 114. sufficiency of evidence to authorize finding, 114. number of indictments, 115. resubmitting cases, 115. effect of ignoring bill, 115. countersigning of indictment by prosecuting officer, 115. "^ presentation and filing of indictment, 115. Indorsing names of witnesses and prosecutor, 116. minutes of testimony before grand jury, 116. dissolution of grand jury, 117. objections to organization, constitution, and qualifications of Jury or ju- rors, 117. secrecy as to proceedings of grand jury, 121. record of Indictment and finding thereof, 123. caption of indictment, see "Caption." furnishing copy to defendant, 428. loss of, supplying copy, 430. consolidation of indictments, 432. form of indictment, see "Pleading." sufficiency, see "Pleading." effect of want of preliminary examination or irregularities therein, 80. as dispensing with necessity for preliminary examination, 73. INDUCEMENT, In general, 162, 176, 211. INFERENCE, cannot aid indictment, 162. 632 INDEX. [The figures refer to pages.] INFORMATION, In general, 127. distinguished from indictment, 128. when lies, 127. different kinds, 128. effect of want of preliminary examination or irregularities therein, 80. loss of, supplying copy, 430. form and sufficiency, see "Pleading." INNUENDO, in general, 176, 211. INSANITY, of defendant, effect, 369, 427. INSTRUCTIONS, in general, 464. province of court and jury, 465. jurors as judges of the law, 465. jurors as judges of the facts, 468. direction of verdict by court, 469. character of, whether erroneous, 469. on what points necessary, 471. necessity for request to charge, 471. granting and refusing requests, 471. objections and exceptions, 473. INTENT, allegation of, 186. rejection as surplusage, 192. variance between indictment and proof, 330. INTERNATIONAL EXTRADITION, see "Fugitives from Justice." INTERSTATE RENDITION, see "Fugitives from Justice." JEOFAILS, STATUTES OF, In general, 323. JOINDER OF COUNTS AND ELECTION, in general, 286. same offense charged in different ways, 287. charging same transaction as constituting different offenses, 289. joining statutory and common law offenses, 290. INDEX. 633 [The figures refer to pages.] JOINDER OF COUNTS AND ELECTION— Continued, separate and distinct ofEenses, 291. exceptional doctrine in Massacliusetts and otlier states, 293. joining felony and misdemeanor, 294. efCect of misjoinder, 296. construction and form of separate counts, 298. commencement, 142, 298. conclusion, 298. showing as to oath of grand jury, 144. repeating name and description of defendant, 149. reference in one count to matter contained In another, 142, note 10, 144, 149, 298. some counts bad, effect, 298, 488. JOINDER OF OFFENSES, In a single count, see "Duplicity." in separate counts, see "Joinder of Counts and Election." JOINDER OP PARTIES, in general, 300. principals in first and second degree, 301, 304. principal and accessory, 305. conviction of one and acquittal of the other, 306. effect of misjoinder, 308. several counts, 308. arraignment and pleas, 369. continuance as to some defendants only, 417. separate trial of joint defendants, 431. change of venue as to some defendants only, 421. JUDGE, number of judges, 4. de facto judge, 5. objection to, by plea to the jurisdiction, 375. misconduct and improper remarks by, 459. absence from court room during trial, 430. prejudice or disqualification as ground for change of venue, 419. see "Courts." JUDGMENT AND SENTENCE, in general, 494. excessive punishment, 496. cruel and unusual punishment, 496. collateral attack on judgment, 4. on confession, plea of guilty, 372. 634 INDEX. [The figures refer to pages.] JUDGMENT AND SENTENCE— Continued. on plea of nolo contendere, 374. " evidence in mitigation of sentence, 374. on overruling demurrer or plea, 371, 380, 406. after plea in abatement is overruled, 378. after overruling of demurrer to plea in abatement, 378. after overruling of demurrer to replication to plea, 378, see "Jurisdiction." JUDICIAL NOTICE, facts judicially noticed, pleading, 165. JURISDICTION, In general, 4. courts illegally created or constituted, 4. place of holding court, 4. time of holding court, 4. number of judges, 4. de facto court or judge, 5. collateral attack on judgment, 5. the various state courts, 6. the federal courts, 7. as determined by locality of crime, 9. See "Venue." to issue warrant of arrest, 26. to admit to ball, 84. to conduct preliminary examination, 75. of magistrate, 82. see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina- tion." of grand jury, 108. • effect of erroneous denial of motloa for change of venue, 421, by consent, 5, 104. plea to the jurisdiction, 375. as bearing on question of former jeopardy, 387, JURY, see "(irand Jury"; "Petit Jury," JURY TRIAL, see "Petit Jury." JUSTICES OF THE PEACE, jurisdiction to punish, 82. see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina- tion." INDEX. 636 [The filrures refer to pages.] KNOWLEDGE, allegation of, 192. rejection as surplusage, 195. variance between allegation, and proof, 332. LANGUAGE, of indictment, 172. see, also, "Pleading." LIMITATIONS, , see "Time of Prosecution." LOCALITY OF CRIME, see "Venue." LOCAL PREJUDICE, as ground for continuance, 416. as ground for change of venue, 419. LOSS, of indictment or information, supplying copy, 430. M MAGISTRATES, jurisdiction to punish, 82. see, also, "Arrest"; "Bail"; "Commitment"; "Preliminary Examina- tion." MAINPRISE, explained, 83. MINERALS, description of, 224. MISCONDUCT, of judge, 459. see, also, "Judge." of the jury, 474. see, also, "Petit Jury." of attorneys, see "Attorneys." MISJOINDER, of offenses, see "Duplicity"; "Joinder of Counts and Election." of parties, see "Joinder of Parties." 636 INDEX. [The figures refer to pages.] MISNOMER, see "Names"; "Pleading." MONEY, description of, 221. MOTION IN ARREST, see "Arrest of Judgment" MOTION TO QUASH, in general, 362. grounds, 362, 364. time of motion, 363. objections to grand jury, see "Grand Jury." MITTIMUS, see "Commitment." N NAMES, of defendant in the indictment, 145. of third persons in the indictment, 231, 339. using initials, 146, 234. middle name or initial, 146, 234, 342. junior, senior, etc., 146, 235. idem sonans, 147, 341, 343. names of same derivation differing In sound, 147. person known by more than one name, 147, 233, 341, name held out by defendant, 147. giving second name after alius dictus, 147, 342. name of defendant unlmown, 147. name of third person unlinown, 233, 340. of corporation, 147, 235, 342. variance between indictment and proof, 330, 339. NEW TRIAL, in general, 497. on motion of state, 393. plea of former jeopardy, 391, NOLLE PROSEQUI, In general, 135. effect, 385. NOLO CONTENDERE, plea of, 374. NOT GUILTY, see "Plea of Not Guilty." INDEX. 637 [The figures refer to pageal NOTICE, allegation of, 192. NUMBER, statement of, in describing property, 225. O OATH, to grand jury, see "Grand Jury." to petit jury, see "Petit Jury." to officer in charge of jury, see "Petit Jury." OFFICERS, see "Arrest"; "Fugitives from Justice"; "Searches and Seizures." OPENING, of case by counsel, 456. OWNERSHIP, allegation of, 227. variance between indictment and proof, 338. PARDON, plea of pardon, 407. time of pleading, 407. PARTIAL VERDICT, in general, 489. PARTICULARS, BILL OF, in general, 429. PEACE, surety to keep the peace, 2. PEREMPTORY CHALLENGE, see "Petit Jury." PERSONAL PROPERTY, description of, in the indictment, 214 written instruments, 219. money, 221. animals, 222. dead animals, 224. minerals, 224. trees, crops, etc., 224. number and quantity, 225. 638 INDEX. [The figures refer to pages.] PERSONAL PROPERTY— Continued, value, 225. ownership, 227. name of owner, see "Names." variance between indictment and proof, 335. PETIT JURY, right to trial by jury, 434. waiver of right, 435. fumishing defendant a list of Jurors, 428. number of jurors, 437. selecting and summoning, 438. qualification of jurors, 438. challenges, 438. to the array, 441. to the polls, 441. principal challenges, 441. propter defectum, 442. propter affectam, 443. propter delictum, 448. for favor, 448. peremptory challenges, 449. passing jurors at request of state, 450. time and mode of challenge, practice, 451. examination on voir dire, 453. appointment of triers, 453. effect of error in overruling challenge, 454 exemption from jury duty, 449. discharging and excusing jurors, 454. swearing the jiuy, 455. impeachment of verdict by jurors, 490. discharge of, effect, 385. custody, conduct, and deliberations of jury, 474. coercion of jurors, 477. manner of arriving at verdict, 477. province of, see "Instructions." view of locus in quo, 457. see "Verdict." PLACE, see "Time and Place"; "Venue." PLACE OF TRIAL, in general, 9, 418. see, also, "Venue." INDEX. 639 [The figures refer to pages.] PLACE OF TRIAL— Continued, change of venue. 418. on application of state, 419. on application of defendant, 419. grounds, 419. afadavits, 420. discretion of court, 420. number of applications, 421. Joint defendants, 421. erroneous denial of motion, effect on jurisdiction, 421. PLEADING, the accusation, 137-323. form of indictment, in general, 137. statutory forms, 139, 140. following precedents, 139. power of the legislature to prescribe or dispense with forms, 140. commencement of indictment, 141. commencement of subsequent counts, 141. statement of venue, 142. showing as to presentment, etc., 143. showing prosecution by authority of state, 144. showing as to oath or afllrmation, 144. clerical and grammatical errors, 145. the statement, 145. name and description of defendant, 145, see, also, "Names." addition of defendant, 148. repeating name and description, 149. effect of misnomer, 149. statement of offense, 150. in general of certainty^ 150. reasons for requiring certainty, 150. degrees of certainty, 151. strictness in applying rules, 152. stating Ingredients of ofCense, 153. facts to be stated, and not conclusions of law, 156. descending to particulars to Identify offense, 159. mode of averment, argument, and inference, 162. unnecessary matter not to be stated, 163. facts necessarily implied from facts stated, 164. facts judicially noticed, 165. conclusions of law from facts stated, 165. 640 INDEX. [The figures refer to pages.] PLEADIN a— Continued. matters of evidence, 166. matters of defense, 166. facts particularly within the defendant's knowledge, 168. factB not known, 168. disjunctive or alternative allegations, 169. repugnancy, 171, 242, 251. English language, 172. abbreviations, 173, 244. use of videlicet or scilicet, 174. clerical or grammatical errors, 175, 244. inducement, 176. Innuendo, 176. surplusage, 178. allegation of intent, 187. allegation of notice and request, 192. allegation of knowledge, 192. technical terms and phrases, 195. "unlawfully," 196. In indictments for treason, 196. "feloniously" in indictments for felony, 196, 202. Indictments for mnrder, 197, 198, 200, 202. for rape, 198. for burglary, 199, 201, 202. for larceny, 199. for robbery, 199. for piracy, 200. common barretors, common scolds, etc., 200. In indictments for riot, 200. for maintenance, 200. for forcible entry, 200. "not having the fear of God before his eyes," etc., 200i, "being moved and seduced by the devil," 200. "with force and arms," or "vi et armis," 200. "larceny," 201. In indictments for perjury, 201. for forgery or counterfeiting, 202. statutory offenses, 202, 262. aggravating circumstances, 203. second or third offense, 203. setting forth written instruments, 205. describing written instruments, 205, 219. setting forth spoken words, 213. INDEX. 641 [The figures rpfer to pages.] PLEADING— Continued. description of real property, 214. description of personal property, 216. written instruments, 219. money, 221. animals, 222. dead animals, 224. minerals, 224. trees, crops, etc., 224. number and quantity, 225. value, 225. ownership of property, 227. description of third persons, 231. see, also, "Names." addition of third person, 235. statement of time, 237. time of day, 239. contiuuando, 241. statement showing prosecution barred, 240. stating impossible or future day, 242. clerical and grammatical errors, 244. Biatement of place, 245. transitory ofCenses, 248. local ofeenses, 249. local description, 250. repugnancy, 251. "from" and "into," 251. repeating time and place, 251. use of words "then and there," 251. use of word "and," 252. the word "immediately." 254. "instantly," 254. "being," 254. Indictments on statutes, 256. reciting or referring to statute, 257. recital of statute as surplusage, 258. designation of offense as surplusage, 181, 261. description of offense, 259. necessity to follow language of statute, 262. when sufficient to follow language of statute, 265. negativing exceptions and provisos, 270. when indictment professedly on statute is good at common law, 276. « CEIM.PEOC— 41 642 INDEX. [The figures refer to pages.] PLEADING— Continued. conclusion, contra formam statuti as surplusage, 276. against principals In the first and second degrees, 304. against principal and accessory, 305. against accessory, 306. duplicity, 278. surplusage, 284. effect, 285. Joinder of counts, and election, 286. same offense charged in different ways, 287. same transaction as constituting different offenses, 289. statutory and common-law offenses, 290. distinct offenses, 291. exceptional doctrine in Massachusetts and other states, 283. Joinder of felony and misdemeanor, 294. effect of misjoinder, 296. construction and form of separate counts, 298. commencement, 298. conclusion, 298. reference in one count to matter in another, 298. some counts bad, effect, 299. Joinder of parties in different counts, 308. Joinder of parties, 300. see, also, "Joinder of Parties." principal in first and second degrees, 301, 304. principal and accessory, 305. effect of misjoinder, 308. several counts, 308. conclusion of indictment or information, 309. against the peace, etc., 309. of what government, 310. against the form of the statute, 310. when necessary, 311. statuti or statutorum, 313. rejection as surplusage, 276, 314. several counts, 298, 312. constitutional and statutory provisions, 314. "to the great damage of," etc., 314. "to the evil example of all others," 314. "to the great displeasure of Almighty God," 314. "to the common nuisance," etc., 314. amendment, in general, 315. of indictment, 315. INDEX. 643 [The figures refer to pages.] PLEADING— Continued. of caption, 123, 316. of information, 316. effect of modern statutes of amendment, 316. aider by verdict, 319. formal defects cured by statute, 322. waiver of objections, 319, 322. see "Pleading and Proof— Variance." motion to quash, 362. grounds, 362, 364. time of motion, 363. demurrer, to indictment, 379. necessity for, 381. general or special, 379. time of demurring, 372, 381. indictment good in part, 380. withdrawal of, to plead guilty, 371. effect of sustaining, 381. defects cured by amendment, 380. see, also, "Amendment." to plea, in abatement, 377. to plea of autrefois acquit or convict, 406. pleading over after demurrer to indictment, 371, 380. after demurrer to plea in abatement, 378. after demurrer to replication to plea in abatement, 378, pleas of the defendant. In general, 366. the various pleas, 370. number of pleas, successive pleas, 371. time of pleading, 372, 377, 406. duplicity, 372, 406. confession or plea of guilty, 372. after plea of not guilty, 371, 373. after demurrer, 371. after plea to the jurisdiction. In abatement, or specially In bar, 371, withdrawal of, to plead not guilty, 371, 373. effect as waiver of errors and defects in pleading, 374. Implied confession, or plea of nolo contendere, 374. plea to the jurisdiction, 375. degree of certainty required, 375. plea in abatement, 375. pendency of another indictment, 377. misnomer of defendant, 149, 375. degree of certainty required, 377. 644 INDEX. [The figures refer tc pages.] PLEADING— Continued, duplicity, 372. time of filing, 377. after plea of not guilty, 372. demurrer to plea, 377. issue on plea, 376-378. right to plead over after plea is overruled, 378. quashing plea, 377. amendment of plea, 378. pleas in bar, 382. special pleas in bar, 382. after plea of not guilty, 372. plea puis darrein continuance, 372. duplicity, 372. autrefois acquit and convict, or former jeopardy, 382, 405. necessity for plea, 405. character and sufficiency of plea, 405. pleading over in plea, 405. reply and issue on plea, 406. demurrer to plea, 406. when bad for duplicity, 406. right to plead over after plea is overruled, 406. time of pleading, 406. degree of certainty required, 407. ■what constitutes jeopardy, 384. jurisdiction of former court, 387. character of court, 388, 395. courts-martial and state courts, 395. errors and irregularities on former trial, 388. insufficiency of former indictment, 389. variance between former indictment and proof, 389. former judgment executed, 390. mistrial through defendant's fault or by consent, 391. verdict set aside, judgment arrested or reversed, new trial, 391. writ of error or appeal by state, 393. new trial after acquittal, 393. effect of fraud in former prosecution, 393. several sovereignties, 394. violations of statute and of mimicipal ordinance, 395, necessity for former judgment, 395. identity of offenses, 396. plea of pardon, 407. INDEX. G4-3 [The figures refer to pages.] PLEADING— Continued. time of pleading, 407. agreement to turn state's evidence, 408. plea of not guilty, general issue, 368, 408. necessity for, 366, 867. what it puts in issue, 408. joint defendants, 369. after plea in abatement or specially in bar, 371, 406. after pleading guilty, 871. withdrawal of, to plead guilty, 371. replication, to plea in abatement, 376-378. to special plea In bar, 406. rejoinder, 378. PLEADING AND PROOF— VARIANCE, In general, 326. mode or manner of committing offense, 327. surplusage, 329. proof of part of charge, 329. name and addition of defendant, 330. Intent, 330. knowledge, 332. written instruments and spoken words, 332. description and proof of real property, 835, 348. description and proof of personal property, 335. ownership of property, 338. name and description of third persons, 339. see, also, "Names." as to time, 344. • as to place, 846. indictments on statutes, 349. effect of modem statutes, 350. conviction of minor offense, 351. illustrations of the rule, 852. minor offense must be charged, 356. felony and misdemeanor, 358. on proof of higher offense, 860. conviction of higher offense, 361. as bearing on question of former jeopardy, 389. PLEADING OVER, see "Pleading." PLEA IN ABATEMENT, in general, 375. 646 INDEX. [Tlie figures refer to pages.] PLEA IN ABATEMENT— Continued, pendency of another indictment, 377. objections to grand jury, see "Grand Jury." misnomer or misdescription of defendant, 149, 375. degree of certainty required, 377. duplicity, 372. time of filing, 377. after plea of not guilty, 372. demurrer to plea, 377. replication and issue on plea, 37&-378. right to plead over after plea is overruled, 378. quashing plea, 377- amendlng plea, 378. PLEA OF AUTREFOIS ACQUIT OR CONVICT, see "Autrefois Acquit and Convict, Pleas of." PLEA OF GUILTY, in general, 372. after plea of not guilty, 371, 373. after demurrer, 371. after plea to the jurisdiction in abatement, or specially In bar, 371. withdrawal of, to plead not guilty, 371, 373. effect as a waiver of errors and defects in pleading, 374. implied confession, or plea of nolo contendere, 374. PLEA OF NOT GUILTY, in general, 368, 408. necessity for, 366, 367. what it puts in issue, 408. joint defendants, 369. after pleading in abatement or specially In bar, 371, 406. after pleading guilty, 371. withdrawal of, to plead guilty, 371. PLEA OF NOLO CONTENDERE, in general, 374. PLEA OF PARDON, In general, 407. time of pleading, 407. PLEA PUIS DARREIN CONTINUANCE, In general, 372. PLEAS, see "Pleading." INDEX. 647 [The figures refer to pages.] PLEAS IN BAE, see "Agreement to Turn State's Evidence"; "Autrefois Acquit and Con- vict, Plea of"; "Not Guilty, Plea of"; "Pardon, Plea of"; "Pleading." PLEA TO THE JURISDICTION, in general, 375. degree of certainty required, 375. POLLING THE JURY, in general, 484. POSSE COMITATUS, see "Arrest." PRACTICE, see specific titles. PREJUDICE, of community as ground for continuance, 418. as ground for change of venue, 419. of Judge as ground for change of venue, 419. PRELIMINARY EXAMINATION, In general, 72. when necessary, 72. ■waiver, 73. time of granting, effect of delay, 74. jurisdiction, 75. change of venue, 75. mode of conducting examination, 75. complaint, 75. attorneys, 76. • presence of the accused, 76. Intimidation and restraint of the accused, 77. examination of witnesses, 77. examination of the accused, 78. statement of the accused, 78. sufficiency of the evidence, 79. binding over the witnesses, 79. decision of magistrate and return, 80. effect of want of examination or irregularities therein, 80. presumption of regularity of proceedings, 81. waiver of objections, 82. power of magistrate to convict and punish, 82. PRESENCE, of judge during trial, 430. of defendant, during trial, 423. at preliminary examination, 76. 648 INDEX, [The figures refer to pages.] PRESENTMENT, distinguished from indictment, 105, IIS. PRESUMPTION OF INNOCENCE, see "Evidence." PREVENTION OP OFFENSES, in general, 2. PRINCIPAL AND ACCESSORY, jurisdiction of oSense, 15. see "Pleading." PROOF, see "Evidence"; "Pleading and Proof— Variance." PROPERTT, see "Personal Property"; "Real Property." PROSECUTING ATTORNEY, see "Attorneys." PROVINCE OP COURT AND JURY, see "Instructions." PROVISOS AND EXCEPTIONS, in statute, negativing in indictment, 270. PUBLIC TRIAL, right to, 421. PUIS DARREIN CONTINUANCE, the plea, 372. PUNISHMENT, see "Judgment and Sentence"; "Verdict." Q QUALIFICATION, of jurors, see "Grand Jury"; "Petit Jury." QUANTITY, statement of in describing property, 225. QUASHING INDICTMENT, in general, 362. see, also, "Pleading." grounds, 362, 364. time of motion, 363, INDEX. 649 [The figures refer to pages.] B REAL PROPERTY, description of, in the Indictment, 214, allegation of ownership, 227. name of owner, see "Names." variance between indictment and proof, 335, 346, REASONABLE DOUBT, Bee "Evidence." REOOGNIZANOB, to keep the peace, or for good behavior, 2. binding over witnesses on preliminary examination, 79. see "Bail," RECORD, of indictment and finding thereof, 123. caption of indictment, what must appear, 123, showing as to court, 123. as to place of holding court, 124. as to time of presenting indictment, 124. name of judge or judges, 125. that finding is upon oath or affirmation, 125. names of grand jurors, 125. number of grand jurors, 125. qualifications of grand jurors, 125. reasons for aflirming instead of swearing jurors, 125. place from which jurors were summoned, 126. defects In caption, how objection taken, 126. amendment of caption, 126. reference to other parts of record, 126. REDUNDANCY, see "Surplusage." REJOINDER, in general, 378. RENDITION OF FUGITIVES, see "Fugitives from Justice." REPUGNANCY, In general, 145, note, 171. rejection of matter as surplusage, 179. in statement of time, 242. in statement of place, 251. 650 INDEX. [The figures refer to pages.] REPLICATION, to plea in abatement, 376-378. to special plea In bar, 406. REQUEST, allegation of, 192, REQUESTS, see "Instructions." RESTRAINT, of defendant during trial, 422. of the accused, at preliminary examination, 7T. S SCILICET, use of, in indictment, 174. SEALED VERDICT, in general, 483. SEARCHES AND SEIZURES, in general, 66. complaint, 68. warrant, 69. execution of warrant, 70. the warrant as a protection to the officer, 71. taking property from person arrested, 71. see "Arrest." SECOND OR THIRD OFFENSE, indictment, 203. SECRECY, as to proceedings before grand Jury, 121. SEIZURES, see "Arrest"; "Searches and Seizures." SENTENCE, see "Judgment and Sentence." SEPARATE COUNTS, see "Joinder of Counts and Election." SEPARATION, of the jury, 474. SEVERAL COUNTS, see "Joinder of Counts and Election." INDEX. 651 [The figures refer to pages.] SEVERANCE, of joint defendants, 431. SICKNESS, of defendant as ground for continuance, 413. of defendant's counsel, 413. of prosecuting attorney, 411. of witnesses, 414. SPECIAL PLEAS IN BAR, see "Agreement to Turn State's Evidence"; "Autrefois Acquit and Con- vict, Plea of"; "Pardon, Plea of"; "Pleading." SPECIAL VERDICT, in general, 48S. SPEEDY TRIAL, right to, 410. SPOKEN WORDS, setting forth in indictment, 213. variance between indictment and proof, 332. STATE COURTS, see "Courts"; "Habeas Corpus." STATE'S ATTORNEY, see "Attorneys." STATUTES OF JEOFAILS, in general, 323. STATUTES OF LIMITATION, see "Time of Prosecution." STATUTORY OFFENSES, Indictments on statutes, 256. reciting or referring to the statute, 257. recital of statute as surplusage, 258. designation of offense as surplusage, 181, 261. description of ofCense, 259. necessity to follow language of statute, 262. use of technical terms, 202, 262. when sufficient to follow language of statute, 265. negativing exceptions and provisos, 270. when indictment professedly on statute good at common law, 276. conclusion contra formam statutl as surplusage, 270. SUMMING UP, of counsel, 460. 662 INDEX. [The figures refer to pages.] SURETIES, to keep the peace, or for good behavior, 2. see "Bail." SURPLUSAGE, in general, 178. disjunctive allegations, 178. duplicity, 178, 284. repugnancy, 179. erroneous designation of offense, 181, 261. erroneous recital of statute, 258. erroneous conclusion contra formam statuti, 276. failure to prove, not a variance, 329. allegation of intent, 192, 331. allegation of knowledge, 195, 332. unnecessary use of the term "feloniously," 197. allegations as to property, 182, 336. unnecessary matter of description not surplusage, 182. allegation as to ownership of property, 339. name and description of third persons, 342, 343. allegations as to time, 344, 345. allegations as to place, 347, 348. place stated as matter of local description, 249, 250, use of videlicet or scilicet, 173. In verdict, 486, 487, 490. T TECHNICAL TERMS AND PHRASES, in general, 195. "unlawfully," 196. in Indictments for treason, 196. "feloniously" in all indictments for felony, 196, 202. In Indictments for murder, 197, 198, 200, 202. for rape, 198. for burglary, 199, 201, 202. for larceny, 199. for robbery, 199. for piracy, 200. common barretors, common scolds, etc., 200. In Indictments for riot, 200. for maintenance, 200. for forcible entry, 200. "not having the fear of God before his eyes," etc., 200. INDEX. 653 [The figures refer to pages.] TECHNICAL TERMS AND PHRASES— Continued, "being moved and seduced by the devil," 200. "with force and arms," or "vi et armis," 200. "larceny," 201. in indictments for perjury, 201. for forgery or counterfeiting, 202. statutory ofCenses, 202, 262. TIME AND PLACE, statement of time in the indictment, 237. time of day, 239. contlnuando, 241. statement shovFing prosecution barred, 240. stating Impossible or future day, 242. clerical and grammatical errors, 244. variance, 344. statement of place In the indictment, 245. transitory ofCpnses, 248. local offenses, 249. local description, 250. surplusage, 183. repugnancy, 251. "from" and "Into," 251. variance, 346. repeating time and place, 25L "then and there," 251. "and," 252. "Immediately," 254. "Instantly," 254. "being," 254. see, also, "Venue." TIME OF PROSECUTION, in general, 132. efEect of delay at common law, 132. statutes of limitation, 132. running of statute, 133. exceptions, 133. interruption of statute, 134. indictment showing prosecution barred, 240, TIME OF TRIAL, in general, 410. right to speedy trial, 411. continuance on application of state, 411. 654 INDEX. [The figures refer to pages.] TIME OP TRIAL-Continued. continuance on application of defendant, 412. want of preparation, 412. absence or sickness of defendant, 413. absence or sickness of defendant's counsel, 413. absence of witnesses, 414. local prejudice or excitement, 416. practice, affidavits, 416. joint defendants, 417. discretion of court, 418. see, also, "Time of Prosecution." TRESPASS, see "Arrest"; "Searches and Seizures." TRIAL, time of trial, 410. right to speedy trial, 411. continuance on application of state, 411. continuance on application of defendant, 412. want of preparation, 412. absence or sickness of defendant, 413. absence or sickness of defendant's counsel, 413. absence of witnesses, 414. local prejudice or excitement, 416. practice, affidavits, 416. joint defendants, 417. discretion of court, 418. place of trial, 9, 418. see, also, "Venue." change of venue, 418. on application of the state, 419. on application of defendant, 419. grounds, 419. affidavits, 420. discretion of court, 420. number of applications, 421. joint defendants, 421. erroneous denial of motion, effect on jurisdiction, 42L right to public trial, 421. excluding persons from court room, 421. custody of defendant, 422. restraint of defendant, violence and intimidation, 422. presence of the defendant during trial, 423. INDEX. 665 [The figures refer to pages.] TRIAL— Continued. insanity of defendant, 427. copy of Indictment, 428. furnishing defendant list of witnesses, 428. furnishing list of jurors, 428. bill of particulars, 429. supplying lost indictment or information, 430. presence of judge, 430. separate trial of joint defendants, 431. consolidation of indictments, 432. counsel for the prosecution and the defense, 432. opening of case by counsel, 456. view by jury, 457. misconduct of prosecuting attorney, 458, 462. misconduct of judge, 459. summing up and argument of counsel. 460. instructions or charge of court to the jury, 464. province of court and jury, 465. jurors as judges of the law, 465. jurors as judges of the facts, 468. direction of verdict by the court, 469. character of the charge, whether erroneous, 469. on what points necessary, 471. necessity for request to charge, 471. granting and refusing requests, 471. objections and exceptions, 473. demurrer to the evidence, 473. custody, conduct, and deliberations of the jury, 474. coercion of jurors, 477. manner of arriving at verdict, 477. for questions relating to the jury, see "Petit Jury." see "Verdict." TRIAL BY JURY, see "Petit Jury." V VALUE, allegation of, 225. VARIANCE, see "Pleading and Proof— Variance." VENUE, in general, 9. constitutionality of statutes, 10. 656 iNHEac. [The figures refer to pages.] VENUE-Continued. homicide, 9, 14, 17, assault, 14. larceny, 10. false pretenses, 11, 14. embezzlement, 11. robbery, 12. forgery, 12. uttering forged instrument, 15, 17. threatening letters, 13, 15. libel, 13, 14. bigamy, 13. nuisance, 14. abduction, inveigling, etc., 14. seduction, 16. crimes committed while personally absent, innocent agent, 14, 17. accessaries in another county, 15. offenses committed near county boundaries, 16. offenses partly In one county and partly in another, 16. locality of crime against the United States, 18. statement of in charging offense, 245. see "Time and Place." statement of in commencement of indictment, 142. change of venue, see "Place of Trial." on preliminary examination, 75. VERDICT, In general, 480. direction of, by the court, 469. custody, conduct, and deliberations of jury, 474. coercion of jurors, 477. manner of arriving at verdict, 477. gambling verdict, 477. inability to agree, 483. rendition and reception by court, 481. sealed verdict, 483. correction or retraction by jury, 483. polling the jury, 484. amendment by court, 485. sufficiency, In general, 485. informalities, 48G. surplusage, 486, 487, 490. finding degree of crime, 487. THDEX. 657 [The figures refer to pages.] VERDICT-Continued, finding as to punishment, 487. general verdict, 298, 482, 488. special verdict, 488. partial verdict, 489. impeachment of verdict by jurors, 490. conviction of minor offense, 351. conviction of higher offense, 361. joint defendants, conviction of part, 306. aider by verdict, 319. VIDELICET, use of, in indictment, 174. VIEW BY JURY, in general, 457. VIOLENCE, in restraining the accused, 77. in making arrest, see "Arrest." w WAIVER, of objection to grand jury, 117. of preliminary examination, 73. of objections to want of preliminary examination, or Irregularities therein, 82. of jury trial, see "Petit Jury." see "Consent." WANT OF PREPARATION, as ground for continuance, 411, 412. WARRANT, see "Arrest"; "Fugitives from Justice"; "Searches and Seizures." WITNESSES, before grand jury, 112. at preliminary examination, 77. absence of, as ground for continuance, 414. compelling accused to testify, before grand jury, 113. furnishing the defendant a list of, 428. Indorsing names on indictment, 116. secrecy as to proceedings before grand jury, 121. requiring witnesses to enter into a recognizance to appear, 79, see "Evidence." CHIM.PEOC— 42 658 INDEX. [The figures refer to pages.] WORDS, setting forth written words in the indictment, 205. setting forth spoken words, 213. technical terms and phrases, 195. see "Technical Terms and Phrases." WRIT OF ERROR, see "Error, Writ of." WRITTEN INSTRUMENTS, setting forth or describing In Indictment, 205. variance between indictment and proof, 332. VEST PUBIiIBHINa CO., PBINTEBS AND BTEBEOTYPEB8, BT. PAUL, UlNH. €pe gornfiooft ^eriee* C649b This series is to comprise elementary treatises on all the principal subjects of the law. The books are made on the same general plan, in which certain special and original features are made prominent. I These are: 1. A brief analytical presentation of ttie principles and rules of the subject. This part is distinguished typographically by being printed in large black type, and these black-letter paragraphs, running through the book, constitute a complete, though concise, synopsis of the law of the subject. Like the syllabus of a case, this affords a bird's-eye view of the whole and its parts, and will be found useful by the lawyer who wishes to refresh his memory of the outlines of this branch of the law. 2. A Commentary, being a more extended presentation of the top- ics in the leading analysis, distinguished by being set in different type. The typographical separation of these two parts enables the examiner to obtain, in the first place, a general, comprehensive grasp of the sub- ject as a whole, and of the relation of one part to another, and, by re- reading in connection with the more extended commentary, to fix the details clearly in mind. 3. Notes, in still different type, containing a copious citation of I authorities, including the leading and most important cases. These are so distinguished as to still further illustrate the principles. PRICE, $3.75 PER VOLUME, INCLUDING DELIVERY. WEST PUBLISHING C0.,5t. Paul, Minn. a) it9^ $9m6oofi ^eriee.) (^ §ftn^6eoft of (S^g Qpwf. €^(itfe0 (p. (Jtorton. SECOND EDITION. TABLE OF CONTENTS. Chapter I. OP NEGOTIABILITY BO FAR AS IT RE- LATES TO BILLS AND NOTES: Covering the origin, purpose and indicia of negotiabil- ity, distinction between negotiability and as- signability, and payment by negotiable instru- ment. Chapter II. OP NEGOTIABLE BILLS AND NOTES, AND THEIR PORMAL AND ESSENTIAL REQ- UISITES : Covering definition, form, and es- sentials, the order, the promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter III. ACCEPTANCE OP BILLS OP EXCHANGE: Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT: Defining and explaining the various kinds of indorsements, and showing their requisites and effect Chapter V. OP THE NATURE OP THE LIABILITIES OP THE PARTIES: Covering liability of mak- er, acceptor, drawer, indorser, rights and lia- bilities of accommodation and accommodated parties,. estoppel and warranties, and damages for breach. Chapter VI. TRANSFER: Covering definition, validity, and various methods of transfer, and status of overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE "WITHOUT NOTICE: Covering the subject generally and fully. Chapter VIII. THE PURCHASER FOR VALUE WITHOUT NOTICE; Explaining who are, and discuss- ing consideration, good faith, notice, overdue paper, presumption, and burden of proof, etc. Chapter IX. OF PRESENTMENT AND NOTICE OP DIS- HONOR: Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc. Chapter X. CHECKS: Covering generally the law relating to checks. 1 VOL 468 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (3) (t^Somfiooft^eriee.) ♦ ♦oCV ♦ ♦ ^Att^Booft of Cviminai Baw^ (gs 6ooft of €U ^citt) of €ottfr (gS T»m. 6. Cfati 3t., Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering its defi- nition, nature, and requisitps, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER n. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER III. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and their characteristics. CHAPTER IV. REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by executor, promise to iinswer for another, agreements in consideration of marriage and in relation to land, and agreements not to be performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION: Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, etc. CHAPTER VI. CAPACITY OF PARTIES: Covering political and professional status, infants, insane and drunken persons, married women, and corpo- rations. CHAPTER Vn. REALITY OF CONSENT: Covering mistiike. misrepresentation, fraud, duress, and undue influence. CHAPTER VIII. LEGALITY OF OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc. CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, etc. CHAPTER X. INTERPRETATION OP CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc. CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract. CHAPTER XII. AGENCY: Covering the creation of the relation, its effect and determination, tbe capacity, rights, and liabilities of the parties, etc. CHAPTER Xm. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu . will lie without proof of contract in faotj in- cluding judgment), obligations Imposed by statute, acts of parties, etc. 1 VOL., 932 PAGES. $3.75 DELrVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (t^ SomfiooS ^eme.) (^ §anb6ooft of Common ^Bciw (pfeabin^* QBg QSenjamin %. g^iipmc^n. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OF ACTION: Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, etc. Chapter III. THE PARTIES TO ACTION S : Covering actions in form ex contractu and ex delicto, and the consequences' of misjoinder or nonjoinder of parties plaintifC or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action in general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE PRODUCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VU. MATERIALITY IN PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNITY IN PLEADING: Cov- ering the rules in general, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc. Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, etc. Chapter XII. MISCELLANEOUS RULES: Covering con- formance to process, alleging damages and production of suit, order of pleading, defense, plea in abatement, dilatory pleas, etc. APPENDIX: Forms. This book embodies such of the rules and principles of Common-Law Pleading as are stiy recognized and applied in this country. A knowledge of the common-law system is of advantage, if indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (5) (g f anbBoQg of CoMfitutiond Jldtt) B TABLE OF CONTENTS. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the meaning of "CoDstltutional" and "Unconstitutional;" written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc. Chapter III. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tion and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS; Considering the ofdce and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OF GOVERN- MENT : Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of ofSce, veto power, pardoning and military power, and treaty-making poiver ; vacancy in officei the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VII. FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VIII. THE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution: Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, eto. Chapter X. REPUBLICAN GOVEHNMENT GUARANTIED. Chapter XI. EXECUTIVE POWER IN THE STATES. Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc. Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc. Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc. Chapter XVH. MUNICIPAL CORPORATIONS; The nature, control, powers, ofUcers and by-laws of mu- nicipal corporations, eto. Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BT THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc. Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider, ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, eto. Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto laws, habeas corpus, etc. Chapter XXI. LAWS IMPAIRING THE OBLIGATION OP CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature to contract, remedies on contracts, etc. Chapter XXII. RETROACTIVE LAWS: Consideringthevalidity of retroactive statutes, curative statutes, etc. 1 VOL.. 646 PAGES, $3.75, DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. (6) f$5e gomfiooft ^enee.) (^ ^atibfiooft of QBg (Jtorman :Setter. TABLE OF CONTENTS. Chapter I. NATURE AND DEFINITION OP EQUITY. Chapter II. PRINCIPLES DEFINING AND LIMITING JU- RISDICTION: Cod siderinfe jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter III. THE MAXIMS OF EQUITY: Definition and classification of maxims ; the enabling and re- strictive maxims. Chapter IV. THE DOCTRINES OP EQUITY; Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OP EQUITY (Continotd) : Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc Chapter VI. THE DOCTRINES OF EQUITY (Continued): Considering penalties and forfeitures, liqui- dated damages. Chapter VII. GROUNDS FOR EQUITABLE RELIEF: Con- sidering accident, mistake, fraud, etc. Chapter VIII. PROPERTY IN EQUITY— TRUSTS: Covering definition, history, and classification of trusts, charitable trusts, duties and liabilities of trus- tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (Continued); Cov- ering injunctions, and considering their juris- dictional pi-inciples, classes of cases where remedy may be used, etc. Chapter XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interpleader, receivers, etc. I VOL., 474 PAGES, $3-75. DELIVERED. WEST PUBLISHING CO., St. Paul. Minn. (7) (t^ gomfiooft ^eriee.) (^ ^anbfiooft of Criminaf (procedure* @uf^ of ft "©ftn^fiooft of Cnminftf fefttw," unb a "gan^fiooS of Cjnfifftcf0." TABLE OF CONTENTS. Chapter I. JURISDICTION : Covering courts of criminal ju- risdlctioa and venue. Chapter II. APPREHENSION OF PERSONS AND PROP- ERTY ; Covering arrest in general, warrants, extradition, searches and seizures of property, and taking property from prisoner. Chapter m. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT : Covering right to release on bail, habaas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OF ACCUSATION : Covering the indict- ment and presentment, information, coroner's inquisition, time of prosecution, and nolle prosequi, etc. Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of offense and descrip- tion of defendant. Chapter VI. PLEADING— THE ACCUSATION (Continued) : Covering allegation of intent, knowledge, etc. ; technical terms ; second or third offense; set- ting forth writings; description of property and persons; ownership. Chapter VTI. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIII. PLEADING— THE ACCUSATION (Continued); Covering indictments on statutes. Chapter IX. PLEADING— THE ACCUSATION (Continued): Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc. Chapter X. PLEADING AND PROOF: Covering variance and conviction of minor and higher offense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Coveringtimeandplace of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIII. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts in issue, motive, res gestae, other crimes, declarations, confes- sions, character, burden of proof, witnesses, etc. Chapter XV. HABEAS CORPUS. f VOL. 658 PACES. $3.75, DELIVERED, WEST PUBLISHING CO., 5t. Paul, Minn. (°\ €fe_gotn6ooft Series. 5in 5* (Bfenn, unSlSsr.^ TABLE OF CONTENTS. INTRODUCTION. Covering the definition, source, and nature of In- ternational Law. Chapter I. PERSONS IN INTERNATIONAL LAW: Cov- ering states, their loss of identity, various unions of states, de facto states, belligerency and recog- nition thereof, and equality of states. Chapter II. THE COMMENCEMENT OF STATES— FUNDA- MENTAL RIGHTS AND DUTIES; Covering the commencement and recognition of new states, effect of change of sovereignty, the fun- damental rights and duties of states, etc. Chapter III. TERRITORIAL PROPERTY OF' A STATE: Covering modes of acquiring property, boun- daries, territorial waters, etc. Chapter IV. TERRITORIAL JURISDICTION: Covering ex- territoriality, sovereigns and diplomatic agents and their immunities, vessels, right of asylum, alienage, responsibility for mob violence, extra- dition, jurisdiction beyond state limits, etc. Chapter V. JURISDICTION ON THE HIGH SEAS AND UNOCCUPIED PLACES: Covering nature of jurisdiction, jurisdiction over merchant ships, piracy, privateers, letters of marque, slave trade, etc. Chapter VI. THE AGENTS OF A STATE IN INTERNA- TIONAL RELATIONS: Covering public diplo- matic agents and consuls, and matters relating to them. Chapter VII. INTERVENTION: Covering the subject gener- ally. Chapter VIII. NATIONALITY: Covering citizenship, allegi- ance, expatriation, naturalization, etc. Chapter IX. TREATIES ; Covering the subject generally. Chapter X. AMICABLE SETTLEMENT OF DISPUTES: Covering mediation, arbitration, retorsion, re- prisals, embargo, pacific blockade, etc. Chapter XI. INTERNATIONAL RELATIONS IN "WAR: Covering the subject of war generally, includ- ing the kinds, causes, and objects of war. Chapter XII. EFFECTS OF WAR— AS TO PERSONS: Cov- ering the relations of enemies, nonoombatants, privateers, prisoners of war, and the subjects of ransom, parole, etc Chapter XIII. EFFECTS OF WAR — AS TO PROPERTY: Covering contributions, requisitions, foraging, booty, ransom, and other questions in regard to property. Chapter XIV. POSTLIMINIUM: The right and its limitations defined and explained. Chapter XV. MILITARY OCCUPATION: Covering the defi- nition, extent, and effect of occupation, and the duties of an occupant. Chapter XVI. MEANS OF CARRYING ON HOSTILITIES: Covering the instruments ani means of war, spies, etc. Chapter XVII. ENEMY CHARACTER: Covering eijemies gen- erally, domicile, houses of trade, property and transfer thereof, etc. Chapter XVIII. NON-HOSTILE RELATIONS: Covering oom- mercia belli, flags of truce, passports, safe-con- ducts, truces or armistices, cartels, etc. Chapter XIX. TERMINATION OF WAR: Covering the meth- ods of termiuation, uti possidetis, treaties of peace, conquest, etc. Chapter XX. OF NEUTRALITY IN GENERAL: Neutrality defined and explained. Chapter XXI. THE LAW OF NEUTRALITY BETWEEN BEL- LIGERENT AND NEUTRAL STATES: Cov- ering the rights, duties, and liabilities of neutral states. Chapter XXII. CONTRABAND : Covering the subject generally. Chapter XXIII. ;i BLOCKADE : Covering the subject generally. Chapter XXIV. VISIT AND SEARCH, AND RIGHT OF AN- GARY: Covering those subjects generally. APPENDIX. Giving in full, as in no other single work, the In- structions for the Government of Armies of the United States In the Field (Lieber) ; Papers Car- ried, or that Ought to be Carried, by Vessels In Evidence of their Nationality ; The Declaration of Paris; The Declaration of St. Petersburg^ The Geneva Convention for the Amelioration o^ the Condition of the Sick and Wounded of Ar- mies in the Field ; The Laws of War on Land, (Recommended for Adoption by the Institute of J International Law at Oxford, Sept. 9, 1880) ; and] The Brussels Conference. I 1 VOLUME. 500 PAGES. S3. 75. DELIVERED. WEST PUBLISHING CO., St. Pai llNN. 'e gotnBooft ^eriee.) (^ ^ftnbfiooft of €^c Baw of €or^0» (Ebwin ®. 3(i3j<»rt, ^. ^., ££. (g., Professor of the Law of Torts in the Minnesota University Law School. TABLE OF CONTENTS. FART I.— IN GENEBAI.. Chapter I. GENERAL NATURE OF TORTS : Covering the law adjective and law substantive, distinctions between torts and crimes, common-law obliga- tions and remedies, how and why liability at- taches for torts, the mental element, connec- tion as cause, damnum and injuria, common- law, contract and statutory duties, etc. Chapter II. VARIATIONS IN THE NORMAL RIGHT TO TO SUE; Covering exemptions based on privilege of actor, as public acts of states, of judicial and executive officers, etc., and private acts authorized by statute or common law, variations based on status or conduct of plain- tiff, etc. Chapter III. LIABILITT FOR TORTS COMMITTED BY OR WITH OTHERS; Covering liability by con- cert in action or joint torts, and liability by relationship, as husband and wife, landlord and tenant, master and servant, partners, etc. Chapter IV. IISCHARGE AND LIMITATION OF LIABILI- 5, ITY FOR TORTS: Covering discharge or limitation by voluntary act of party and by operation of law. Chapter V. REMEDIES: Covering statutory and common- law remedies, judicial and extrajudicial reme- dies, damages, etc. PART II.— SPECIFIC WRONGS. Chapter VI. WRONGS AFFECTING SAFETY AND FREE- DOM OF PERSONS: Covering false impris- onment, assault and battery, and the defenses, as justification and mitigation. Chapter VII. INJURIES IN FAMILY RELATIONS: Cover- ing the lamily at common law, master and servant, parent and child, husband and wife. Chapter VIII. WRONGS AFFECTING REPUTATION: Cover- ing libel, slander, and slander of title, together with the defenses. Chapter IX. MALICIOUS WRONGS: Covering deceit, mali- cious prosecution, abuse of process, interfer- ence with contract, conspiracy, etc.. Chapter X, WRONGS TO POSSESSION AND PROPERTY: Covering the nature of possession and its ob- jects, trespass, waste, conversion, etc. Chapter XI. NUISANCE: Covering kinds of nuisance, as pub- lic, private, and mixed, continuing and legal- ized, parties to proceedings against, remedies, etc. Chapter XII. NEGLIGENCE : Covering the duty to exercise care, what is commensurate care, common-law, contract and statutory duties, damages, con- tributory negligence, etc. Chapter XIII. MASTER AND SERVANT: Covering master's liability to servant for negligence, master's duty to servant, assumption of risk by serv- ant, various kinds of risks, fellow servants, vice principals, etc. Chapter XIV. COMMON CARRIERS: Covering the subject generally. 2 VOLS. 1,328 PAGES. $7.50, DELIVEJRED. WEST PUBLISHING CO., St. Paul, Minn. (11) $^e ©omfiooft ^ericfi. @ jgan^Boo^ of ^pe Comttuction an^ ^ixkv)i>vttation of Eati?0tl By H. rvAIVilDDEI I I Dl A/^U- AUTHOR OF BLACK'S LAW DICTIONARY, AND TREA-' V^AIVlr^DCl_l_l_ DL.MOl\t TISES ON CONSTITUTIONAL LAW, JUDGMENTS, ETC. TABLE OF CONTENTS. Chapter I. NATURE AND OFFICE OF INTERPRE- TATION: Covering definition of terms, ob- ject of interpretation, rules of construction, and office of judiciary. Chapter II. ■CONSTRTJCTTION OF CONSTITUTIONS: Covering method and niles of construction, construction as a whole, common law and pre- vious legislation, retrospective operation, man- datory and directory provisions, preamble and titles, extraneous aids, schedule, stare decisis, etc. Chapter III. ■GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION: Covering literal and eq- uitable construction, scope and purpose of the act, casus omissus, implications in statutes, meaningless statutes, errors, misprints, sur- plusage, interpolation of words, etc. Chapter IV. STATUTORY CONSTRUCTION; PRE- SUMPTIONS: Covering presumptions against exceeding limitations of legislative power, un- constitutionality, injustice, irrepealable laws, implied repeal of laws, etc., presumptions as to public policy, as to jurisdiction of courts, etc. Chapter V. STATUTORY CONSTRUCTION; WORDS AND PHRASES. Covering technical and popular meaning of words, commercial and trade, general and special, relative and qual- ifying, and permissive and mandatory terms; conjunctive and disjunctive particles, adopted and re-enacted statutes, computation of time, etc. Chapter VI. INTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering construction as a whole, context, title, preamble, interpretation clause, etc. Chapter VII. EXTRINSIC AIDS IN STATUTORY CON- STRUCTION: Covering admissibility of ex- trinsic aids, statutes in pari materia, eon- temporary history, construction and usage, journals of legislature, opinions of legislators, etc. Chapter VIII. INTERPRETATION WITH REFERENCE TO COMMON LAW: Ctovering statutes af- firming, supplementing, superseding or in derogation of, common law. Chapter IX. RETROSPECTIVE INTERPRETATION: Covering definition, constitutional considera- tions, vested rights, remedial statutes, and statutes regulating procedure. Chapter X. CONSTRUCTION OF PROVISOS, EXCEP- TIONS, AND SAVING- CLAUSES: Cov- ering the subject generally. Chapter XI. STRICT AND LIBERAL CONSTRUCTION: Covering penal and remedial statutes, stat- utes against common right, against frauds, and of limitation, legislative grants, revenue and tax laws, etc. Chapter XII. MANDATORY AND DIRECTORY PROVI- SIONS: Definitions and rules covering the subject generally. Chapter XIII. AMENDATORY AND AMENDED ACTS: Covering construction of amendments and of statute as amended, identification of act to be amended, amendment by way of revision, etc. Chapter XIV. CONSTRUCTION OF CODES AND RE- VISED STATUTES: Covering construction as a whole, reference to original statutes, change of language, previous judicial construc- tion, etc. Chapter XV. DECLARATORY STATUTES: Covering defi- nition and construction in general. Chapter XVI. THE RULE OF STARE DECISIS AS AP- PLIED TO STATUTORY CONSTRUC- TION: Covering the general principle, re- versal of construction, federal courts follow- ing state decisions, construction of statutes of other states, etc. Chapter XVII. INTERPRETATION OF JUDICIAL 'DECI- SIONS AND THE DOCTRINE OP PREC- EDENTS: Co+ering the nature of prece- dents; dicta; stare decisis; the force of prece- dents as between different courts; the law of the case, etc. 1 VOLUME. WEST PUBLISHING CO., ■ 0775 (12) 509 PAGES. $3.75. DELIVERED. St. Paul, Minn. iZ^t Somfiooft §tvite.) (^ f ftttbBooft of TABLE OF CONTENTS. Chapter I. IN GENERAI/: Covering definition and gen- eral principles common to all bailments; classification of bailments. Chapter II. BAILMENTS FOR SOLE BENEFIT OF BAILOR: Covering depositum and man- datum, creation, rights and liabilities of parties, termination, etc. Chapter III. -BAILMENTS FOR BAILEE'S SOLE BEN- EFIT: Commodatum, creation, rights and liabilities of parties, termination, etc. Chapter IV. BAILMENTS FOR MUTUAL BENEFIT- PLEDGES: Covering definition of pledge, creation, title of pledgor, rights and liabil- ities of parties before and after default, ter- mination, etc. ! Chapter V. BAILMENTS FOR MUTUAL BENEFIT- HIRING: Locatio or hiring defined; estab- lishment of relation; rights and liabilities i'. of parties; hiring of things for use; hire of I labor and services; warehousemen; wharf- ingers; safe-deposit companies; factors, etc.; termination of relation, etc. Chapter VI. INNKEEPERS: Innkeeper defined; who are guests; commencement of relation; duty to receive guest; liability for guests' goods; lien; termination of relation; liability as ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lieu; liability as insurers and as ordinary bailees; carriers of live stock; carriers of baggage;, contracts and notices limiting liability; ter- mination of liability: connecting carriers,, etc.; post-office department; private car- I'iers. Chapter VIII. CARRIERS OF PASSENGERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations; ticket as evidence of pns- senger's rights; right to make regulations; injuries to passengers; contracts limiting liability; termination of liability; ejection from vehicle: connectine- carriers, and cov- ering the subject generally. Chapter IX. ACTIONS AGAINST CARRIERS: Actions- against carriers of goods and carriers of passengers: parties: form of action; plead- ing; evidence; damages. 1 VOLUME. 675 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C995 (13) ^^e gomfiooS ^eries.) ♦ ♦yv^»* (f g n3?After ©entott ^mit^, Instructor in the Law Department of the University ol Michigan. TABLE OF CONTENTS. Pari I-ELEMENTARY JURISPRUDENCE. CHAPTER I. NATURE OF LAW AND THE VARIOUS SYSTEMS: Moral, divine, municipal, international, mari- time and martial law. CHAPTER II. GOVERNMENT AND ITS FUNCTIONS: Covering sovereignty, the state, the constitution, and the forms and functions of government generally. CHAPTER III. GOVERNMENT IN THE UNITED STATES: Its general character, sovereignty, distribution of powers, citizenship, etc. CHAPTER IV. THE UNWRITTEN LAW: The Roman, the Canon and the Common law. CHAPTER V. Nature and jurisdiction of equity; max- EQUITT: ims. CHAPTER VI. THE WRITTEN LAW: Relation to unwritten law; statutory law in general. CHAPTER VII. THE AUTHORITIES AND THEIR INTERPRETA- TION: The rank of authorities, rules of inter- pretation, statutory construction, etc. CHAPTER VIII. PERSONS AND PERSONAL RIGHTS: Legal rights, wrongs and remedies, rights in rem and in personam, status, personal security, liberty, property, constitutional guaranties, etc. CHAPTER IX. PROPERTY: Covering, ownershio and possession; the Feudal system; corporeal and incorporeal, real and personal, property; llxtures, etc. CHAPTER X. CLASSIFICATION OF THE LAW: Substantive and adjective, public and private law, etc. Pari II— THE SUBSTANTIVE LAW. CHAPTER XI. CONSTITUTIONAL AND ADMINISTRATIVE LAW; Written and unwritten constitutions, ■ essentials and construction of constitutions; administra- tive law, etc. CHAPTER XII. CRIMINAL LAW; Covering its general nature, criminal capacity, classification of crimes, pun- ishment, etc. CHAPTER XIII. THE LAW OF DOMESTIC RELATIONS: Cover-' Ing marriage and its incidents, parent and child, guardian and ward, master and servant, etc. CHAPTER XIV. CORPOREAL AND INCORPOREAL HEREDITA- MENTS: Covering the subject generally. CHAPTER XV. ESTATES IN REAL PROPERTY: Classification, estates in possession and in expectancy; free- holds and estates less than freehold; estates in severalty, in joint tenancy and in common; ab- solute and conditional, legal and equitable es- tates; etc. CHAPTER Xv:i. TITLES TO REAL PROPERTY: Covering title by descent and by purchase, classification and forms of deeds, etc. CHAPTER XVII. PERSONAL PROPERTY: Real and personal chat- tels, ownership of personal property, acquisition of title, etc. CHAPTER XVni. . SUCCESSION AFTER DEATH: Testate and Intes- tate succession, escheat, executors and adminis- trators, etc. CHAPTER XIX. CONTRACTS: Definition, validity and classification of contracts, quasi contracts, etc CHAPTER XX. SPECIAL CONTRACTS: Covering contracts of sale, bailments, negotiable contracts, suretyship, insurance, etc. CHAPTER XXI. AGENCY: Covering the subject generally. CHAPTER XXII. COMMERCIAL ASSOCIATIONS: Covering part- nerships, joint stock companies, voluntary asso- ciations, corporations, etc. CHAPTER XXni. TORTS : Covering the nature and elements of torts, proximate and remote cause and specific torts. Pari III— THE ADJECTIVE LAW. CHAPTER XXIV. REMEDIES: Extralegal and legal, penal and civil, common law and equitable, ordinary and extraor- dinary remedies, CHAPTER XXV. COURTS AND THEIR JURISDICTION: Covering the subject generally. CHAPTER XXVI. PROCEDURE: In general; outlines of common law, equity, code, and criminal procedure. CHAPTER XXVII. TRIALS: Early forms, trial procedure, evidence. 1 VOL. 367 PAGES. S3. 75. DELIVERED. WEST PUBLISHING CO., St. PAUL, Minn. C1112 (14) Je J5^tn6ooft Series.) (^ §ftnl)6ooft of €^c Ban? of ^ama^e^j Author of "Bailments and Carriers." TABLE OF CONTENTSo CHAPTER I. 'l^FINITIONS AND GENERAL PRINCIPLES: Deflnition, nature and theory of damages; wrong and damage; analysis of legal wrongs; olaasi&cation of damages. CHAPTER II. NOMINAL DAMAGES: Deflnition and general na- ture. CHAPTER in. COMPENSATORY DAMAGES: Deflnition; proxi- mate and remote consequences; direct and con- sequential losses; aYoidable consequences; cer- tainty of damages: profits; entirety of demand; past and futurtO losses; elements of compensa- tion; aggravation and mitigation of damages-; reduction of loss; injuries to limited interests, etc. CHAPTER IV. BONDS, LIQUIDATED DAMAGES AND ALTERNA- TIVE CONTRACTS: Covering the subject gen- ■erally. CHAPTER V. INTEREST: Definition; as a debt and as damages; interest on liquidated and unliquidated de- mands; on overdue paper, — contract and stat- ute rate; compound interest; etc. CHAPTER VI. VALUE: Deflnition; how estimated; market value; pretium affectionis; value peculiar to owner; time and place of assessment; highest Interme- diate value; etc. CHAPTER VII. EXEMPLARY DAMAGES: In general; when re- coverable; liability of principal for act of agent; etc. CHAPTER Vm. PLEADING AND PRACTICE: Allegation of dam- age, the ad damnum, form of statement, prov- ince of court and jury, etc. CHAPTER IX. BREACH OP CONTRACTS FOR SALE OF GOODS: Damages in action by seller for non-acceptance and non-payment; damages in action by buyer for non-delivery, breach of warranty, and as for conversion. CHAPTER X. DAMAGES IN ACTIONS AGAINST CARRIER: Carriers of goods, — refusal to transport, non- deliver,y, injury in transit, delay, consequential damages; carriers of passengers, — injuries to passenger exemplary damages, mental suffering, delay, wrongful ejection, etc. CHAPTER XI. , DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES: Actions by sender and by receiv- er; proximate and certain, remote and specula- tive daanages; notice of purpose and importance of message; cipher messages; avoidable conse- quences; exemplary damages; etc. CHAPTER XII. DAMAGES FOR DEATH BY WRONGFUL ACT: Pecuniary losses; mental suffering'; exemplary damages; Injury to deceased; medical and fu- neral expenses; meaning of pecuniary, — care and support, prospective gitts and inheritances; in- terest as damages; discretion of jury; nominal damages, etc. CHAPTER XIII. WRONGS AFFECTING REAL PROPERTY: Dam- ages for detention of real property; trespass; nuisance; waste; contract to sell real property, —breach by vendor or vendee; breach of cove- nants, etc. CHAPTER XIV. BREACH OF MARRIAGE PROMISE: In general, compensatory damages, exemplary damages, etc. 1 VOL 476 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. €1111 (15)^ ((5^ ^^oi^nfiooS ^eriee.) (^ ganbfiooft of Cpe Baw of (|teaf (pvo^nt^. Q5g €ctrf (p. §oi>fttn6, ^. Q5., fefe. (SX. TABLE OF CONTENTS. Chapter I. WHAT IS REAL PROPERTY: Real and .-personal property, fixtures, equitable conver- "^sion, personal interests in land. Chapter II. TENURE AND SEISIN. ^,, Chapter III. ELATES AS TO QUANTITY— FEE SIM- jPLE: Classifioatlon of estates, freehold, iee-simple, creation, right of user and aliena- tion. Chapter IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAIL: Classes, origin, crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entail. Chapter V. ESTATES AS TO QUANTITY (Contmned^— CONVENTIONAL LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter VI. ESTATES AS TO QUANTITY (Continuedj— LEGAL LIFE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- eral homestead act. Chapter VII. ESTATES AS TO QUANTITY (Continued)— LESS THAN FREEHOLD: Estates for years, letting land on shares, tenancies at will, tenancies from year to year, letting of lodgings, tenancies at sufferance, licenses. Chapter VIII. ESTATES AS TO QUALITY ON CONDI- •TION— ON LIMITATION: Estate.s on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO QUALITY (Continued)— MORTGAGES: Parties, nature, form, rights and liabilities of mortgagor and mort- gagee, assignment of the equity of redemp- tion, assignment of the mortgage, priority of mortgages and other conveyances, regis- tration, discharge of a mortgage. Chapter X. EQUITABLE ESTATES: Statute of uses, classification of trusts, — express, implied, resulting, constructive, — incidents of equita- ble estates, charitable trusts. Chapter XI. ESTATES AS TO TIME OF ENJOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Case, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XII. ESTATES AS TO NUMBER OF OWNERS —JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary,' estates in entirety, estates in partnership, incideuts of joint estates, partition. Chapter Xllf. INCORPOREAL HEREDITAMENTS: Easements, creation, classification, inci- dents, destruction, rights of way, highways,, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HOLD AND CON- VEY REALTY: Infants, persons of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS ON ALIENATION: Re- straints imposed by law, restraints in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE : Acquisition of title by state and pri- vate persons, grant from state, couveyan-, ces, common-law convpjances, conveyances: under statute of uses, modern statutory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial process; conveyances under licenses, under duress; tax titles, em- inent domain. 1 VOL. ABOUT 600 PAGES. $3.73, DELIVERED. WEST PUBLISHING CO., 5t. Paul. Minn. C1191 (16)