CORNELL LAW LIBRARY Qforn^U KauJ ^rljaol Slibratg Cornell University Library KF 9219.H68 The law of crimes and criminal procedure 3 1924 020 159 483 Cornell University Library The original of this book 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/cu31924020159483 THE LAW OF CRIMES And Criminal Procedure INCLUDING FORMS AND PRECEDENTS LEWIS HOCHHEIMER OF THE BALTIMORE BAR BALTIMOtlE HAROLD B. SCRIMGEK 1897 COPYRISHT, 189r, BY Harold B. Sckimgke. PREFACE. This work is designed to present in a compendious form the law of crimes and criminal procedure as established in the United States and administered in the state and national tribunals. It is intended to contain a complete statement ot the common law, including such statutory enlargements and modifications as are of general application. Mere commentary and discussion have been avoided, the aim being to give in terse paragraphs an explicit statement of the existing law. Verbiage and needless repetition have been carefully guarded against, and the author has been solicitous, that his work throughout should be characterized by thorough accuracy and clearness. Where there is a conflict of ruling and opinion, he has cited the opposing authorities, or referred to authorities giving the opposing views, but has never hesitated to state as law in positive terms what appeared to him to be the correct doctrine according to the weight of reason and authority. The utmost care was observed in the matter of the citation of authorities with a special view to avoiding, not only inaccurate and wrong references, but more particularly the great evil of the useless and embarrassing multiplication of citations. The work is divided into four parts. Part first ("law of crimes in general") presents the general doctrines of the sub- stantive criminal law and includes chapters on the subjects of "statutes and statutory construction" and "constitutional guar- anties and limitations." Part second relates to "criminal pro- cedure," state and Federal. A special effort has been made to present this subject thoroughly in all its divisions and details. This part contains the law relating to criminal jurisdiction, pleading and evidence and the numerous topics falling under the general head of "practice." It also contains forms adapted to the various stages of criminal proceedings. Part third con- tains the law relating %o "special proceedings and remedies," iv Preface including search warrants, surety of the peace, inquisition of homicide, foreign and interstate extradition, certiorari, habeas corpus, mandamus, prohibition and injunction. It also includes numerous forms. Part fourth presents the law relating to "specific offenses," arranged in alphabetic order. In each chap- ter there is stated the entire law relating to the particular offense, including procedure and (in nearly every instance) pre- cedents of indictments, as also citations of important Federal statutes. A chapter is devoted to the law in relation to "con- tempt." It includes forms applicable to proceedings by way of attachment. In an appendix ("the principal authorities") there is given, together with explanatory matter, a list of authors and works cited as direct authority on questions of criminal law. L. H. CONTENTS. PAET 1. LAW OF CRIMES IN GENERAL. CHAPTER I. Crimb And Its Divisions. SBCTION 1-10 II. III. I. Definition. 2. What Conduct Criminal. 3. Grades Of Crime. 4. Treason. 5. Felony. 6. Common- ]..aw Felonies. 7. Statutory Felonies. 8. Misde- meanor. 9. Relation Of Grades. 10. Infamous Crimes. Degbees In The Commission Of Cbime II. What Steps Criminal. Cbiminal Liability 12. General Rules. 13. Age. 14. Coyerture. 15. (Corporations. 16. Liability Under Penal Statutes. 17. Social Clubs. 18. Intent. 19. Motive. 20. In- sanity. 21. Drunkenness. 22. Necessity And Com- pulsion. 23. Ignorance Of Law. 24. Ignorance Of Fact. 25. Consent And Contribution. IV. Paeticipation In Cbime 36. Accomplices. 27. In Statutory Offenses. 28. In Felony. 29. In Treason. 30. In Misdemeanors. 31. Principal In First Degree. 32. Principal In Second Degree. 33. Community Of Purpose. 34. Accessory Before The Fact. 35. Offenses Not Ad- mitting Of. 36. Accessory After The Fact. 37. Relation Of Degrees Of Guilt. 38. Punishment Of Accessories. 39. Misprision. 40. Compounding. 41. Compounding Penalties. 42. Receiving. V. Statutes And Statutobt Constbuction. 11 12-25 26-43 43-53 43. Time Of Taking Effect. 44. General Rules Of Construction. 45. Particular Expressions. 46. Gen- eral And Specific Terms. 47. Effect Of Statutes Upon Procedure. 48. Change Of Punishment. 49. Mere Violation Of Statute Punishable. 50. Evasion Of Statutes. 51. Repeal. 53. Effect Of Repeal. 53. Revivor. VI. Constitutional Guabantibs And Limitations 54r-73 54. General Doctrines. 55. Application Of Constitu- tional Provisions. 56. Due Process Of Law. 57. Equal Rights. 58. Slavery And Involuntary Servi- tude. 59. Police Power. 60. Public Safety And Welfare. 61. Public Health. 62. Regulation Of Occupations. 63. Intoxicating Liquors. 64. Regu- lations As To Minors. 65. Licenses And Taxes. 66. Ex Post Facto Laws. 67. Bills Of Attainder. 68. Jury Trial. 69. Self-Crimination. 70. Confront- ing With Witnesses. 71. Jeopardy. 73. Cruel And Unusual Punishment. 73. Other Guaranties. vi Contents PART 11. CRIMINAL PROCEDURE. CHAPTER SKOIION VII. Criminal Jurisdiction 74-79 74. As To Person. 75. As To Place. 76. Jurisdiction Of State Courts. 77. Jurisdiction Of Federal Courts. 78. Removal To Federal Courts. 79. State Jurisdiction Under Federal Laws. VIII. Subordinate MAGisTRiTBS 80-81 80. Justices Of The Peace. 81. Coroners. IX. Ministerial Officers 83-85 83. General Authority. 83. Sheriff. 84. Constables. 85. Other Officers. X. Proceedings Against Offenders 86-87 86. Modes Of Prosecution'. 87. Time Of Prosecution. XI. Arrest 88-104 88. What Constitutes. 89. Arrest Upon Warrant. 90. Who May Issue. 91. Upon What Evidence. 93. To Whom Directed. 93. Requisites And Form. 94. Execution. 95. Arrest By Officers Without A Warrant. 96. Arrest By Private Persons Without A Warrant. 97. Hue And Cry. 98. Arrest In Certain Other Cases. 99. Irregularity And Illegal- ity. 100. Use Of Force. 101. Breaking Doors. 108. Escape And Recapture. 103. Disposal And Treatment Of Prisoner. 104. Money And Effects Found Upon Prisoner. XII. Examination 105-108 105. The Hearing. 106. Discharge Of Accused. 107. Commitment Or Bail. 108. Certifying Case To Court. XIII. Commitment 109-115 109. Modes Of. 110. Requisites. 111. Commitments Upon Statutes. 113. Place Of Detention. 113. Treatment Of Prisoners. 114. Defects and Irregu- larities. 115. Collateral Relief. XIV. Bail 116-135 116. Nature Of. 117. How Taken. 118. Transmit- ting To Court. 119. What Offenses Bailable. 130 Power Of Sureties. 181. Liability Of Sureties. 138. Forfeiting Bail. 133. Discharge Of Recogni- zance. 134. Re-arrest. 135. Recognizance Of Wit- nesses. XV. Proceedings In Court 136-135 136. How Begun. 137. Presentment. 138. Indictment 189. Information. 130. Process. 131. Grand Jury 133. Swearing And Charging. 133 Organization And Proceedings. 134. Prosecuting Attorney. 135 Special Prosecuting Attorneys. Contents vii CHAPTEU SECTION XVI. Indictment 136-168 136. Defined. 137. Form. 138. Return To Court. 139. Commencement. 140. Certainty. 141. Consti- tutional Requirement. 143. Indictments Upon Stat- utes. 143. Negativing Provisos And Exceptions. 144. Duplicity. 145. Disjunctive Allegations. 146. Repugnancy. 147. Names Of Persons. 148. Time And Place. 149. Time. 150. Place. 151. Written Instruments. 153. Spoken "Words. 153. Words In Foreign Language. 154. Real And Personal Prop- erty. 155. Money. 156. Ownership And Posses- sion. 157. Intent. 158. Knowledge. 159. Techni- cal Words. 160. Matter Of Aggravation. 161. Sur- plusage. 163. Joinder Of Counts. 163. Joinder Of Defendants. 164. Modes Of Charging Principal. 165. Mode Of Charging Accessories. 166. Conclu- sion. 167. Amendment. 168. Loss Or Destruction. XVII. Arraignment 169-174 169. Nature And Object. 170. Requisites. 171. Form. 173. Procedure. 173. Entering Plea. 174. Re- arraignment. XVIII. Pl,EADIKG 175-193 175. Modes Of Defense. 176. Order Of Defenses. 177. Motion To Quash. 178. Demurrer. 179. Plea To Jurisdiction. 180. Pleas In Abatement. 181. Pendency Of Several Charges. 183. Special Pleas In Bar. 183. Former Acquittal, Conviction, Jeop- ardy. 184. Pardon. 185. Not Guilty. 186. Matters Of Defense. 187. Plea Of Guilty. 188. Approve- ment. 189. Nolo Contendere. 190. Rules Of Plead- ing. 191. Amendments. 193. Bills Of Particulars. XIX. Matters Relating To Trial 193-211 193. Time Of Trial. 194. Right To Public Trial. 195. Presence Of Accused. 196. Custody And Treatment Of Accused. 197. Presence Of Judge. 198. Copy Of Indictment. 199. List Of Witnesses. 300. Copy Of Panel. 201. Process For Witnesses. 203. Counsel. 303. Severance. 304. Consolidation. 305. Inspection And Examination. 306. View. 207. Interpreter. 208. Insanity Of Accused. 209. Nolle Prosequi. 310. Stet. 311. Change Of Venue. XX. Petit Jury 212-388 213. Number Of Jurors. 313. Selecting Jurors. 314. Talesmen. 215. Challenge. 316. Time Of Chal- lenge. 317. Order And Mode Of Challenge. 218. Challenge To Array. 319. Peremptory Challenge To Polls. 330. Challenge To Polls For Cause. 331. Classification. 333. Challenge Propter Defectum. 333. Challenge Propter Delictum. 334. Challenge Propter Aflectum. 335. Grounds Of Challenge Propter Affectum. 336. Interest. 337. Kindred And Other Relations. 338. Prejudgment. 329. Pre- judice And Hostility. 330. Scruples. 331. Forma- tion Of Opinion. 332. Trial Of Challenges At Com- viii Contents CHAPTEK SECTION XX. Petit Jvry— Continued mon Law. 233. Modern Practice. 334. Method Of Proof. 335. "Striking" Jurors. 336. Swearing And Charging Jury. 337. Forms. 538. Conduct And Supervision. XXI. Tbial And Its Incidents 339-351 339. Trial By Court. 340. Order Of Trial. 341. Opening Statements. 343. Introduction Of Evi- dence. 343. Exclusion Of Witnesses. 344. Sum- ming Up Of Counsel. 345. Abuse Of Argument. 346. Charging And Instructing Jury. 347. Province Of Court And Jury. 348. Requirements As To In- structions. 349. Directing Verdict. 350. Docu- ments For Jury. 351. Discharge Of Jury. XXII. Evidence 353-899 353. Instruments And Means Of Proof. 353. Real Evidence. 354. Experiments. 355. Photographs And Representations. 356. Reasonable Doubt. 357. Burden Of Proof. 358. Presumption Of Inno- cence. 359. Circumstantial Evidence. 360. Allega- tions And Proof. 361. Matters Of Description. 363. Surplusage. 363. Substance Of Issue. 364. Proof Of Minor Offense. 265. Proof According To Legal Effect. 266. Negative Allegations. 367. Names Of Persons, 368. Time. 369, Place. 370. Written Instruments. 371. Spoken Words. 273. Words In Foreign Language. 378. Real And Per- sonal Property. 374. Ownership And Possession. 375. Number, Quantity And Value. 376. Intent. 377. Proof Of Insanity. 278. Alibi. 379. Best Evidence. 380. Writings And Records. 381. Confessions. 382. Rules As To Admission. 383. Admissions. 284. Statements Under Oath. 385. Declarations Of Third Persons. 386. Res Gestae. 387. Dying Decla- rations. 388. Relevancy. 389. Collateral Facts. 290. Character Of Accused. 291. Criminal Acts Other Than Charged. 292. Opinions And Conclu- sions. 293. Examination Of Experts. 294. Opinion As To Sanity. 395. Handwriting. 396. Scientific Books. 397. Proof Of Foreign Laws. 398. Evi- dence Given In Former Proceeding. 299. Evidence In Rebuttal. XXIII. Witnesses And Thbib Examination 300-825 300. Competency. 301. Disqualification From Inter- est. 803. Children As Witnesses. 303. Persons Of Unsound Mind. 304. Intoxicated Persons. 305. Persons Unable To Speak. 306. Religious Belief. 307. Infamy. 308. Grand Jurors. 309. Petit Jurors. 310. Judges. 311. Professional Communications. 313. Affairs Of State. 318. Communications Dur- ing Marriage. 314. Disclosure Of Officer's Infor- mant. 315. Number Of Witnesses. 316. Corrobo- ration Of Accomplices. 317. Swearing Witnesses. 318. Method Of Examination. 319. Cross-Exami- nation. 330. Re-Examihation. 331. Leading Quea- Contents ix CHAPTER SECTION XXIII. WiTNBSSBS And Theie Examination — Continued tions. 322. Impeaclilng Witness. 323. Sustaining Impeached Witness. 324. Hostile Witness. 325. Refreshing Memory. XXIV. Vekdict 326-334 326. General Requisites. 327. Rendition And Receiv- ing. 328. Polling Jury. 339. Sealed Verdict. 380. Special Verdict. 331. Partial Verdict. 332. Sev- eral Defendants. 333. Special Requisites. 334. Re- consideration And Amendment. XXV. Abrkst of Judgment 335-338 335. Grounds For. 336. Defective Indictment. 337. Procedure. 338. Effect Of Arresting Judgment. XXVI. New Tbial 339-340 339. General Doctrines. 840. Grounds For. XXVII. Judgment and Sentence 341-353 341. Acquittal And Discharge. 342. Conviction And Sentence. 343. Requisites Of Sentence. 344. Kinds Of Punishment. 345. Imprisonment. 346. Fine. 347. Mode Of Commitment. 348. Death Penalty. 849. Costs. 350. Restitution. 851. Pregnancy Of Female Convict. 362. Several Defendants. 853. Several Charges. XXVIII. Writ Op Ebroe And Appeal 354-364 354. Writ Of Error. 355. Procedure. 356. Petition And Order. 357. Writ And Return. 358. Assign- ment Of Errors. 859. Joinder In Error. 860. Ex- ceptions. 361. Form Of Bill Of Exceptions. 862. Errors Of Fact. 363. Modern Forms Of Appeal. 364. Judgment. XXIX. Paedon ■ 365-369 365. General Doctrines. 366. Nature And Extent Of Power. 367. Conditional Pardon. 368. Effect Of Pardon. 869. Form And Manner Of Pardon. PAET III. SrECIAL FROCEEDmGS AND EEMEDIES. XXX. Seaech Wabeants 870-375 370. Defined. 371. Requisites. 372. Form Of Com- plaint Or Information. 373. Form Of Warrant. 374. Execution Of Warrant. 375. Procedure. XXXI. Surety Of The Peace _ 376-390 376. Defined. 877. Power To Require. 378. Federal Statute. 879. Power To Require Ex OflBcio. 880. Grant Upon Application. 381. By And Against Whom Demandable. 882. For What Causes Grant- Contents CHAPTER SECTION XXXI. Surety Op The PmAOE— Continued able. 383. The Application. 384. Manner Of Grant. 385. Form Of Warrant. 386., Supersedeas. 387. Procedure. 388. Form Of Commitment. 389. Foreiture Of Recognizance. 390. Discharge Of Re- cognizance. XXXII. Inquisition Op Homicide 391-405 391. Who May Take. 393. In What Cases To Be Taken. 393. Where To Be Taken. 394. Duty And Liability Of Third Persons. 395. Powers Of Coro- ner. 396. Procedure. 397. Summoning Jury. 398. Precept To Summon Jury. 399. Viewing Body. 400. The Inquisition. 401. The Verdict. 402. Sub- sequent Proceedings. 403. Form Of Inquisition. 404. Other Forms Of Findings. 405. Forms Of Warrants And Commitments. XXXIIT. FoHBiGN Extradition 406-410 406. How Secured. 407. Undei- Treaties. 408. The Arrest. 409. Form Of Complaint. 410. Form Of Warrant. 411. The Hearing. 413. Commitment. 413. Form 'Of Certificate. 414. Form Of Commit- ment. 415. Extradition. 416. Expenses. XXXIV. Interstate Extradition 417-432 417. Constitutional Provision. 418. Statutory Pro- visions. 419. Provisions As To District Of Colum- bia. 420. Removal Of Offenders Against Federal Laws. 421. What Offenses Extraditable. 432. The Flight. 423. The Demand. 424. Form Of Demand. 425. The Indictment. 436. The Affidavit. 437. The Certificate. 428. The Warrant. 429. Form Of War- rant. 430. Duty And Powers Of Executive. 431. Review Upon Habeas Corpus. 483. Arrest And Trial. XXXV. Certiorari 433-440 433. Defined. 434. Jurisdiction. 435. Scope. 436. Diminution Of Record. 437. Procedure. 438. Form . Of Writ And Return. 489. Form Of Writ To Re- move Indictment. 440. Writ And Return In Case Of Diminution. XXXVI. Other Proceedings And Remedies 441_448 441. Habeas Corpus Ad Subjiciendum. 442. Federal Jurisdiction. 443. Form Of Writ. 444. Habeas Cor- pus To Remove Prisoner. 445. Habeas Corpus Ad Testificandum. 446. Mandamus. 447. Prohibition. 448. Injunction. PART IV. . SPECIFIC OFFENSES. XXXVII. Abduction 449-462 449. Defined. 450. What Acts Punishable. 451. In- nocent Acts. 452. Statutory Provisioni. 453. Ab- Contents XI CHAPTER SECTION XXXVII. Abduction — Continued duction Of Children, 454. The Taking. 455. The Possession. 456. The Custodian. 457. The Purpose. 458. Consent. 459. Ignorance And>Mistake. 460. Indictment. 461. Forms Of Indictments. 463. Evi- dence. XXXVIII. Abortion 463-470 463. At Common Law. 464. Under Statutes. 465. Giving Drugs. 466. Indictment. 467. Forms Of Indictments. 468. Evidence. 469. Testimony And Declarations Of Woman. 470. Expert Testimony. XXXIX. Adultbky And Fornication 471-479 471. Adultery. 472. Fornication. 478. What Acts Punishable. 474. Intercourse Accomplished By Force. 475. Effect Of Apparent Marriage. 476. In- dictment. 477. Forms Of Indictments. 478. Evi- dence. 479. Procedure. XL. Affray 480-487 480. Defined. 481. The Fighting. 483. The Place. 488. The Terror. 484. Relation To Assault. 485. Analogous Offenses. 486. Indictment. 487. Form Of Indictment. XLI. Arson : 488-497 488. Defined. 489. The Burning. 490. The House. 491. The Ownership. 493. Intent. 498. Attempt. 494. Analogous Statutory Offenses. 495. Indictment. 496. Forms Of Indictments. 497. Evidence. XLII. Assault And Battery 498-514 498. Nfituie And Relation Of Offenses. 499. Assault. 500. Battery. 501. The Force. 503. Analogous Offenses. 503. Intent. 504. Justification And Ex- cuse. 505. Consent. 506. Reasonable Necessity. 507. Defense Of Person. 508. Defense Of Property. 509. Chastisement. 510. Aggravated Assaults. 511. Federal Statutes. 513. Indictment. 513. Forms Of Indictments. 514. Evidence. XLIII. Attempt 515-518 515. What Acts Punishable. 516. Nature Of Offense. 517. Indictment. 518. Forms Of Indictments. XLIV. Barratry 519-531 519. The Offense. 530. The Procedure. 531. Form Of Indictment. XLV. Bastardy 533-534 523. Proceedings Generally. 533. Form Of Indictment. 534. Evidence. XLVI. Bawdy House 535-539 525. What Constitutes. 536. Liability To Punishment. 537. Indictment. 538. Forms Of Indictments. 539. Eyideuce. xii Contents CHAPTBK SECTION XL VII. Bigamy 530-537 530. What Constitutes. 531. How Regulated. 533. Effect ^Of Divorce. 533. Knowledge And Intent. 584. Accomplices. 535. Indictment. 536. Form Of Indictment. 537. Evidence. XL VIII. Blasphemy And Pbofanity 588-544 538. Nature Of Offenses. 539. Blasphemy. 540. Pro- fanity. 541. Analogous Offenses. 543. Indictment. 543. Forms Of Indictments. 544. Evidence. XLIX. Bribery ^ 545-546 545. The Offense. 546. Form Of Indictment. L. Burglary 547-557 547. Defined. 548. The Premises. 549. The Breaking. 550. The Entry. 551. The Time. 553. The Intent. 553. Participation. 554. Ownership. 555. Indict- ment. 556. Form Of Indictment. 557. Evidence. LI. Carrying Weapons 558-561 558. What Acts Punishable. 559. Construction Of Statutes. 560. Indictment. 561. Evidence. LII. Champerty And Maintenance 563 563. Nature Of Offenses. LIII. Cheats 563-567 568. Defined. 564. Cheats Directly Affecting Public. 565. Cheats Tending To Affect Public. 566. Indict- ment. 567. Form Of Indictment. LIV. Common Scold 568-570 568. The Offense. 569. Procedure. 570. Form Of In- dictment. LV. Conspiracy 571-580 571. Defined. 573. The Combination. 578. Number Of Persons. 574. The Purpose. 575. Labor Com- binations. 576. Merger. 577. Indictment. 578. Forms Of Indictments. 579. Evidence. 580. Mat- ters Of Procedure. LVI. Contempt 581-599 581. Power To Punish. 583. What Constitutes. 583. Contempts In Presence Of Court. 584. Disobedi- ence. 585. Contempts By Witnesses. 586. Con- tempts By Jurors. 587. Contempts By Officers. 588. Contempts By Attorneys. 589. Abuse Of Pro- cess. 590. Obstructions Of Justice. 591. Interfer- ence With Subject Of Litigation. 598. Publications. 593. Contempts By Corporations. 594. Procedure. 595. Discharge From Imj)risonment. 596. Form Of Attachment. 597. Order Of Commitment. 598. Commitment For "Continuing" Contempt. 599. In- dictable Contempts. Contents xiii CHAPTER SBCTION LVII. Counterfeiting 600-610 600. Defined. 601. At Common Law. 603. Under Federal Laws. 603. Under State Laws. 604. What Constitutes Counterfeiting. 605. Uttfering And Like Acts. 606. Possession Of Instruments. 607. Posses- sion Of Counterfeit. 608. Indictment. 609. Forms Of Indictments. 610. Evidence. LVIII. DisoRDBBLT House 611-618 611. The Offense. 613. Procedure. 613. Forms Of Indictments. LIX. Dueling 614-615 614. The Offense. 615. Forms Of Indictments. LX. Embezzlement 616-619 616. Nature Of Offense. 617. "What Constitutes. 618. Indictment. 619. Form Of Indictment. LXI. Embracery 620-621 620. The Offense. 631. Form Of Indictment LXII. Extortion 632-633 622. The Offense. 633. Form Of Indictment. LXIII. False Imprisonment 634^625 634. The Offense. 635. Form Of Indictment. LXIV. False Pretenses 636-638 636. Nature Of Offense. 637. The Pretense. 638. Pretenses Involving Opinion Or Promise. 639. Fal- sity Of Pretenses. 630. Operation Of Pretense. 631. Nature Of Device. 632. The Thing Obtained. 633. The Intent. 634. Participation. 635. Jurisdic- tion. 636. Indictment. 637. Form Of Indictment. 638. Evidence. LXV. Forcible Entry, Detainer, Trespass 639-645 639. General Doctrine. 640. Forcible Entry. 641. Forcible Detainer. 642. Statutory Provisions. 643. Other Criminal Trespasses. 644. Forcible Taking Of Chattel. 645. Forms Of Indictments. LXVI. Forgery 646-665 646. What Constitutes. 647. The Instrument. 648. Validity Of Instrument. 649. Besemblance To Gen- uine Instrument. 650. Uttering. 651. The Intent. 652. Statutory Provisions. 653. Indictment. 654. Forms Of Indictments. 655. Evidence. LXVn. Homicide 656-683 656. Defined. 657. The Being Killed. 658. The Means. 659. Combination Of Causes. 660. Causal Connec- tion. 661. Time Of Death. 662. Felonious Homi- cide. 663. Acts Designed To Take Life. 664. Acts Calculated To Cause Death. 665. Neglects And Xiv CONTHNTS CHAPTER SECTION LXVII. Homicide — Continued Omissions. 666. Justiflcation And Excuse. 667. Making Arrests. 668. Preventing Flight. 669. Pre- venting Escape. 670. Suppressing Disturbances. 671. Defense Of Person, 673. Defense Of Property. 673. Divisions Of Felonious Homicide. 674. Murder And Manslaughter. 675. Homicide In Heat Of Passion. 676. Divisions Of Murder. 677. Self- Murder. 678. Indictment. 679. Forms Of Indict- ments. 680. Short Statutory Forms. 681. Evidence. 682. Verdict. LXVIII. Incest 683-685 683. The Offense. 684. Procedure. 685. Forms Of Indictments. LXIX. Kidnapping 686-689 686. The Offense. 687. Federal Statutes. 688. Pro- cedure. 689. Form of Indictment. LXX. Lahcbny 690-717 690. Defined. 691. Divisions. 692. Subjects Of Offense. 693. Realty. 694. Written Instruments. 695. Animals. 696. Statutory Changes. 697. Ownership. 698. Taking And Removal. 699. Ele- ment Of "Trespass." 700. Possession Obtained By Fraud. 701. Fraudulent Conversion. 703. Things Delivered By Mistake. 703. Larceny By Custodian. 704. Larceny By Servant. 705. Larceny By Bailee. 706. Taking By Or From Owner's Husband Or Wife. 707. Treasure-Trove. 708. Things Found. 709. In- tent. 710. Claim Of Right. 711. Taking Several Articles. 713. Jurisdiction. 713. Indictment. 714. Form Of Indictment. 715. Descriptions Of Things Stolen. 716. Evidence. 717. Federal Statute. LXXL Libel 718-724 718. General Doctrines. 719. Kinds Of Libel. 730. Justification And Excuse. 731. Jurisdiction. 723. Indictment. 723. Forms Of Indictments. 724. Evi- dence. LXXII. Malfeasance And Misconduct In Opeice 735-737 735. General Doctrines. 726. What Conduct Punish- able. 737. Forms Of Indictments. LXXIII. Mayhem And Bodily Hurt 728-732 738. Mayhem. 739. Statutory Provisions. 730. Federal Statute. 731. Construction Of Statutes. 733. Indict- ment. LXXIV. Nuisance 733-746 783. General Doctrine?. 734. General Classification. 735. Nuisances Affecting Public Ways. 736. Offen- sive Trades And Manufactures. 737. Collecting Crowds. 738. Disturbances And Disorderly Con- duct. 739. Disturbing Meetings. 740. Eavesdrop- Contents XV OHAPTBK SECTION LXXIV. NtjisA-NCE — Continued ping. 741. Scandal And Indecency. 742. Nuisances To Healtli And Safety. 743. Indictment. 744. Con- tinuing Nuisances And Abatement. 745. Writ To Abate Nuisance. 746. Forms Of Indictments. JjXXV. Obstructing Justice And Govbrnment 747-751 747. What Conduct Punishable. 748. Obstructing Officers And Process. 749. Federal Statute. 750. Conspiracy To Obstruct .iustice. 751. Forms Of Indictments. LXXVI. Pesjukt 752-766 753 Defined. 753. Nature Of Offense. 754. The. Oath. 755. The Proceeding. 756. Materiality. 757. Opinion And Belief. 758. Falsity. 759. Intent. 760. False Swearing. 761. Subornation And Incit- ing. 763. Federal Statutes. 763. Indictment. 764. Forms Of Indictments. 765. Evidence. 766. Matters Of Procedure. LXXVII. Piracy 767-769 767. By Law Of Nations. 768. Federal Statutes. 769. Form Of Indictment. LXXVIII. Prison Breach, Rbsouk, Escape 770-775 770. Prison Breach. 771. Rescue. 772. Escape. 773. Procedure. 774. Federal Statutes. 775. Forms Of Indictments. LXXIX. Rape 776-786 776. Defined. 777. Criminal Liability. 778. Carnal J5:nowledge. 779. Force And Non-Consent. 780. Federal Statute. 781. Carnal Abuse Of Children. 782. Attempt. 783. Indictment. 784. Forms Of Indictments. 785. Evidence. 786. Verdict. LXXX. Receiving . 787-795 787. Nature Of Offense. 788. The Stealing. 789. The Receiving. 790. Guilty Knowledge. 791. In- tent. 792. Federal Statutes. 793. Indictment. 794. Form Of Indictment. 795. Evidence. LXXXI. Riot, Rout, Unlawful Assembly 796-800 796. Riot. 797. Rout. 798. Unlawful Assembly. 799. Procedure. 800. Forms Of Indictments. LXXXII. LXXXIII. LXXXIV. Robbery 801-807 801. Defined. 803. The Larceny. 808. From The Person. 804. The Force Or Violence. 805. In- dictment. 806. Form Of Indictment. 807. Ver- dict And Jeopardy. Sabbath-Bebakinq . 808. The Offense. 809. Forms Of Indictments. Sodomy 810 The OfEense. 808-809 810-811 811. Forms Of Indictments. xvi Contents OHAPTBK SBCTION LXXXV. Tkbason 813-820 813. Constitutional Provision. 813. Statutory Provi- sions. 814. Misprision Of Treason. 815. Rebel- lion And Insurrection. 816. Correspondence With Foreign Grovernment. 817. Conspiracy Against Government. 818. Recruiting Or Enlisting Against Government. 819. Meaning Of Terms. 830. Pro- cedure. PAGE Appendix : The Principal Authorities 503-504 Index 505-563 Table Of Cases 563-612 LAW OF Crimes And Criminal Procedure. PART I. LAW OF CRIMES IN GENERAL. CHAPTER I. OEIME AND ITS DIVISIONS. § 1. Definition. — A crime Ib a wrong', or breach of duty, which subjects the person guilty thereof to punishment at the suit of the public. The elements of moral turpitude and public injury do not enter into the mere definition of crime. "Whenever the pre- scribed remedy for a violation of law is a proceeding in which the state, or government, is the plaintiff and the object of the action the punishment of the defendant, the thing thus redressed is criminal. § 2. Wtoat Conduct Criminal. — The policy of the law is to treat as criminal conduct which affects injuriously the public police and economy, the general interests, peace and security of the community.' As a general rule, whatever mischievously affects the person^ or property' of another, or openly outrages 14 Bl. Comm. 5-7 ; 1 Russ. Cr., 9 ed., 79 ; Resp. v. Teischer, 1 Dall. 335 ; C. v. McHale, 97 Pa. St. 397, 410. ^Seepoit, ?503. *£!■ g-, malicious mischief. Loomis v. Edgerton, 19 Wend. 419. 2 Law Of Crimes In General ■decency/ or disturbs public order,^ or is injurious to public anorals,' or is a wilful breach of official duty,* is punishable «s a crime.* Apart from statutory enactments, there are no precise rules 'or formulas by which to determine, whether or not a particular wrong is a crime. The common law as to crimes, to a consider- able extent, deals in general doctrines and principles, to be applied by the courts as cases falling within them arise." § 3. Grades Of Crime Crimes, according to their degree of turpitude, beginning with the gravest form, are divided into treasons, felonies and misdemeanors. This division is very old and, in some respects, has lost its significance, but is still important in its bearing upon matters of procedure, such as arrest, arraignment and mode of trial where several are implicated, in various ways, in the same criminal transaction. § 4. Treason. — Treason was anciently divided into petit and high treason. ITo division was ever known in this country. Petit treason was, in strictness, a species of felony.'^ By the ancient common law, there were several forms of petit treason, which, by 25 Edw. 3, st. 5, ch. 2, were reduced to three — ^the killing, by a servant, of his master, by a wife, of her husband, by an ecclesiastic, of a prelate to whom he owed obedience.* These petit treasons were abolished by 9 Geo. 4, ch. 31, § 2 (continued by 24 & 25 Vict., ch. 100, § 8), providing, that every offense' whieh would formerly have amounted to petit treason should be deemed murder only. Treason against the United States consists only in levying war against them, or in adhering to their enemies, giving them 'Seepoat, S?734, 741. 'See^o«<, ?§734, 737-739. "See post, a 734, 741. 'See ;?os(J§ 725-737. •Walsh V. P., 65 111. 58. •Smith 0. S , 6 Gill (Md.), 426 ; C. v. Callaghan, 2 Va. Cas. 460 ; P. v. Fish, 4 Park. Or. K. 211. '4 Bl. Comm. 208 «Ib. Crime And Its Divisions 3 aid and comfort.^ In most of the states, the offense has been defined and restricted by legislation. § 5. Felony. — Felony, in its primary sense, signifies any oflfense for which, during the feudal institution, a convict for- feited his estate. The true criterion of felony, in its strict sense, is forfeiture, but the term has been so generally con- nected with the idea of capital punishment, that whenever a statute made any new offense felony, the law implied, that it should be punished with death.^ Felonies are generally defined by statute as offenses punishable in a penitentiary, or state prison ; but, in the absence of such provisions, the word felony is used to designate such serious offenses as were formerly pun- ishable with death or with forfeiture of estate.' §. 6 Coiiimon-L.a^v Felonies. — Felonies at common law are arson, burglary, larceny, murder and manslaughter, rape,* robbery, sodomy^ and mayhem.* The grade of the offenses of prison breach and rescue is felony or misdemeanor according to the grade of the offense for which the party was detained.'^ Piracy is regarded as felony,* though not strictly a common-law offense." Forgery, generally felony under statutes, is a misdemeanor at common law.^" § 7. Statutory Felonies. — Statutory felonies may be created by clear and express words, or by words of necessary implica- tion; but an offense can not be made felony by doubtful or ambiguous words.'^ If the punishment of death is provided 'See post, §812. H Bl. Comrn. 94-98; 1 Kuss. Cr., 9 ed., 77. 'Bannon «. U. S., 156 U. S. 464. n Russ, Cr., 9 ed., 903;Mears v. C, 3 Grant (Pa.), 385, 387. ^Davis V. S., 3 Harr. & Johns. (Md.) 154. 'C. V. Newell, 7 Mass. 245. Contra : C. ■». Lester, 3 Va. Cas. 198 ; Adams v. Barrett, 5 Ga. 404, 413-413. 'Post, ?? 770, 771. 84 Bl. Comm. 71 ; 1 Kent Comm. 183. n Russ. Cr., 9 ed., 143. >»2 lb. 708. "1 lb. 78; C. ». Macomber, 3 Mass. 354;^^C. v. Barlow, 4 lb. 39; S. v. Hill, 91 N. C. 561. 4 Law Op Crimes In General as an alternative, or discretionary, penalty, an oiFense is not thereby created felony.' § 8. Misdemeanor. — Misdemeanor denotes all erime less than felony, and embraces a large number of offenses, some of which are not designated by any particular name in law. In the old books, trespass (transgressio) is frequently used in the sense of misdemeanor.^ § 9. Relation Of Grades. — The same offense cannot be of several grades. * If at the trial, circumstances proven show a higher grade of the offense than that charged, there can be no conviction, and, if the grade of an offense be changed by statute (whether to a higher or lower one), there can be no subsequent prosecution of the act or omission for what it was before the statute.^ A misdemeanor which is part of a felony may be prosecuted as a misdemeanor, though the felony has been completed, if the felony is composed of a series of acts of which the misdemeanor forms part.* M g., an assault which forms part of the commis- sion of a rape may be prosecuted as assault.^ Part of the doctrine of this section is sometimes expressed by the statement, that, under various circumstances, there is a merger of the lower grade of offense in the higher. § 10. Infamous Crimes. — The term infamous crimes, at the common law, is now understood to denote such offenses as involve moral turpitude, or as render the offender unworthy of credit as a witness, including, in general, treason, felonies and such misdemeanors as involve an element of moral fraud or ■Gibson v. S., 54 Md. 447, 453. sg. V. Watts, 48 Ark. 58. This seems to have led to some confusion of statement in a few modern cases, in which bare trespass {injuria) upon land is spoken of as an indictable offense. Only forcible trespass upon land is punishable as a crime. Post §639. 'R. 1). Westbeer, 3 Str. 1133 ; R. i). Cross, 1 Ld. Raym. 711 ; R. v. Walford 5 Esp. 63. *Reg. ». Button, 3 Cox C. C. 329. 'C. V. Dean, 109 Mass. 349; S. v. Vadnais, 31 Minn. 383. Degrees In The Commission Of Crime 5 depravity.' In the Federal Constitution/ the term denotes crimes that render the offender liable to infamous punishment, imprisonment in a state prison, or penitentiary, being con- sidered such.' CHAPTER II. DEGREES IE" THE COMMISSIOl^ OE CRIME. § 11. 'What Steps Criminal. — Attempts^ to commit crimes, or to cause or procure the commission of crimes by others (incitement, solicitation), and agreements to commit crimes (conspiracy") are in themselves criminal and punishable as misdemeanors. '1 Greenl. Ev. §? 373-373; Exp. Wilson, 114 U. S. 417, 433; S. v. Bixler, 63 Md. 354. *Amenci. 5. 'In re Claasen, 140 U. S. 300, 304-305 (cases cited). *Post, U 515-518. >Post, §? 571-580. Law Of Crimes In General CHAPTER III. CRIMIffAL LIABILITY. § 12. General Rules. — There is no criminal liability for acts or omissions otherwise falling within the definition of crime, if they a^e unavoidable or unintentional. Acts and omissions of infants^ and married women^ are, under certain circumstances, presumed to be unavoidable or unintentional, and in the case of infants under the age of seven years there is no criminal capacity. Corporations^ are subject to a limited liability to punishment. An act which is not an offense at the time when it is committed cannot become such by any subsequent independent act of the party: the doctrine as to "trespass ab initio" has no place in criminal jurisprudence.* § 13. Aye. — A person under seven years of age is doli incapax and cannot be proceeded against in any form of criminal pros- ecution.^ A person between seven and fourteen years of age is presumed to be doli incapax.'' Proof to overcome this presump- tion must be strong and clear, beyond all doubt or contradiction.^ A male infant under fourteen years is deemed incapable of the commission of rape or attempt to rape.^ It has been held, that the guilt of offenses involving the power to employ an agent, to contract, or the like does not attach to 'Post, ? 13. 'P08t,iU- "Post, II 15-17. *U. S. 0. Fox, 95 U. S. 670 ; S. v. Moore, 12 N. H. 43; C. v. Tobin, 108 Mass. 436. »4 Bl. Comm. 23 ; R. v. King's Langley, 1 Str. 631 ; P. 8. Townsend, 3 Hill, 479. 'Allen V. U. 8., 150 U. S. 551 ; C. i>. Meade, 10 Allen, 398. '4 Bl. Comm. 24 ; S. ». Adams, 76 Misso. 355 ; Law ». C, 75 Va. 885, 890-891. «4 Bl. Comm. 31 ; 3 Greenl. Ev. I 315 ; Reg. «. Waite, 17 Cox C. C. 554. Some cases hold, that there is only a prima facie presumption. Gordon v. S., 93 Ga. 531. Criminal Liability 7 infants, though over fourteen years. Of this nature are offense* of non-feasance or omission, such as not repairing a highway or a bridge.' Statutes punishing the disposal of mortgaged goods by the mortgagor, in violation of the rights of the mortgagee, have been held not to apply to infants, their act of disposal amounting to a mere disaffirmance or avoidance of contract.^ Such cases are, however, to be distinguished from cases where an infant has entered into an agreement under which goods are delivered to him as bailee and he is prosecuted under a statute punishing the abuse of property specially vested in bailees.''' § 14. Coverture. — A feme covert is, as a general rule, liable to prosecution and punishment for crime in the ordinary mode.'' If a wife commits a crime with, or in the presence of, her husband, she is presumed to have acted under his coercion, and such coercion excuses her.^ The presumption is merely prima facic.^ It does not extend to treason or homicide.^ It is generally held to extend to robbery.* It does not extend to certain misdemeanors, not accurately defined, such as keeping a gaming, bawdy or other disorderly house, or violating license laws.^ The wife is in the "j)resence" of her husband, when he is near enough to influence and control her conduct.'" A wife cannot incur guilt in the following cases : As accessory after the fact to her husband's felony;" the guilt of treason, for a reception of her husband, if he has '4 Bl. Comm. 33; B. ». Sutton, 5 Nev. & M. 353. 'Jones ». S., 81 Tex. App. 353 ; S. ». Ho'ward, 88 N. C. 650. »Reg. ■». McDonald, 15 Cox C. C. 757. n Russ. Cr., 9 ed., 38. '4 Bl. Comm. 38 ; S. «. "Williams, 65 N. C. 398 ; S. v. Houston, 39 S. C. 108 ; C. V. Eagan, 103 Mass. 71. n Russ. Cr., 9 ed., 33-33; Nolan ». Traber, 49 Md. 460 ; C. v. Daley, 148 -Mass. 11 ; C. v. Moore, 163 lb. 441 ; Seller ». P., 77 N. Y. 411 ; Goldstein v. P., 83 lb. 331. ■"4 Bl. Comm. 39 ; Bibb v. S., 94 Ala. 31. 8Reg. D. Dykes, 15 Cox C. C. 771. =4 Bl. Comm. 39; R. v. Crofts, 7 Mod. 397; S. C, 3 Str. 1130; R. v. Williams, 10 Mod. 63; R. ». Dixon, lb. 335; C. ». Le-wis, 1 Mete. 151; C. ». Bentz, 11 Misso. 37. '"C. «. Flaherty, 140 Mass. 454 ; C. o. Daley, 148 lb. 11. "4 Bl. Comm. 39 ; Reg. ». Good, 1 C. & K. 185. 8 Law Of Crimes In General committed treason,^ nor, perhaps, of misprison of treason com- mitted by him;^ receiving stolen goods from her husband;^ larceny of her husband's goods,* nor, perhaps, any offense involving a violation of the husband's property rights ; offenses involving the power to appoint an agent or the like.° § 15. Corporations. — A corporation has no criminal capac- ity in the general sense of the term and is not punishable for treason, felony or offenses involving moral depravity." Corporations are liable for misdemeanors involving breaches of duty and wrongs on the part of their servants or agents arising out of matters connected with the conduct of the corpo- rate affairs.'' They have been held liable for selling liquor on Sunday;* keeping a disorderly house;' permitting gaming;'" publishing a libel." § 16. Liability Under Penal Statutes. — The term person in penal statutes ordinarily includes corporations." Corporations are not liable to penalties imposed by a statute for conduct involving the elements of malice, wilfulness or guilty knowledge.'^ They are not subject to qui tarn actions for penalties in cases where there could be no criminal prosecution for the same thing.'* '1 Hale, 47. 'lb. 48. «Reg. V. Wardroper, 13 Cox C. C. 397. *Post, ?706. n Hawk., ch, 64, ? 35 ; P. v. Townsend, 3 Hill, 479. "in re Sutton's Hospital, 10 Rep. 33. 'R. V. Mayor, Cro. Car. 353 ; Reg. ®. Birmingham, 9 C. & P. 469 ; Reg. v. Great North Rwy., 2 Cox C. 0. 70 ; S. v. Barksdale, 5 Humph. (Tenu.) 154; 8. «. Morris R. R , 23 IST. J. L. 360 ; Boston R. R. «. 8., 32 N. H. 315, 337 ; C. i). Central, 13 Cush. 342 ; C. b. Proprietors, 3 Gray, 339 ; P. ». Albany, 11 Wend. 539; S.». Portland, 74 Me. 368; Phila. R. R. a. 8., 30 Md. 157; Delaware®. 0., 60 Pa. St. 367. S8. ». B. O. R. R., 15 W. Ya. 362. '8. 11. Passaic Society, 54 N. J. L. 260. '"C. V. Pulaski Association, 93 Kent. 197. "S. V. Achison, 3 Lea (Tenn.), 729. ■''2 Inst. 733 ; U. 8. v. Amedy, 11 Wheat. 893; S. j). Easton Club, 73 Md 97. "Benson ». Monson, 9 Mete. 563; Cumberland v. Portland, 56 Me. 77. "Androscoggin v. Bethel, 64 Me. 441. Criminal Liability '9 § 17. Social Clubs. — Social clubs are liable to punishment for violations of license and revenue laws.^ One engaging in a sale or disposal of liquors, if the circum- stances are such that ordinarily the act would be punishable, is not exempt from punishment because acting as a member, officer or agent of a club, society, association, or body of persons, whether voluntary or incorporated.^ The mere handing over of liquors by the managers of a boim fide social club to the general body of members (no evasion of law being intended) is not a sale.^ § 18. Intent. — No one incurs criminal liability for acts or omissions ordinarily falling within the definition of crime, unless he — 1. Intended to commit the particular crime, or 2. Intentionally did an unlawful act* or omitted the perform- ance of a legal duty^ of which unlawful act or neglect the crime was the probable and natural consequence,* or 3. Voluntarily did or omitted a thing, if the act or omission was declared a crime by statute,' provided, that if the terms of the statute expressed or implied the existence of a particular intent or state of mind as an element of the crime, such intent or state of mind also existed.* [Illustrations: — A fires a shot at B, with intent to take his life, but the ball accidentally hits and kills C. A is guilty 'S V. Easton Club, 73 Md. 97; Kentucky Club «. Louisville, 93 Kent. 309; Nogales Clubs. 8., 69 Miss. 318; S. v. Essex Club, 53 N. J. L. 99. "U S. B. "Wittig, Fed. Cas. 16, 748; C. v. Jacobs, 153 Mass. 376 ; C. ». Ryan, lb. 388 ; C. «. Baker, lb. 337 ; P. ®. Andrews, 115 N. Y. 437; S. «. Mercer, 33 Iowa, 405 ; Ricketts ®. S., 79 111. 85 ; Marmont «. S., 48Ind. 31 ; C. i>. Tierney, 148 Pa. St. 553 ; S. «. Tindall, 40 Mo. App. 371 ; S. v. Horacek, 41 Kans. 87 ; P. v. Soule, 74 Mich 350 ; S. ». Keis, 108 N. C. 787 ; Martin ». S., 59 Ala. 34. ^Newell ». Hemingway, 16 Cox C. C. 604 . Piedmont Club ii. C, 87 Va. 540 ; Barden ». Montana Club, 10 Mont. 330 ; P. e. AdelpM Club, 149 N. Y. 5. ^Gore's Case, 9 Rep. -81 ; Reg. v. Bradshaw, 14 Cox C. C. 83 ; C. v. Mink, 133 Mass. 433; 8. ». Barr, 11 Wash. 481. sReg. ■». Chamberlain, 10 Cox C. C. 486 ; Reg. v. Nicholls, 13 lb. 75 ; Reg. v. Instan, 17 lb. 603 ; C. ». Coyle, 160 Pa. St. 36. 61 Bast P. C. 357. 'S. «. Kittelle, 110 N. C. 560 ; 8. v. Cornish, 66 N. H. 339. sChisholm v. Doulton, 16 Cox C. C. 675 ; Hewitt v. Neuberger, 141 N. Y. 539 ; C. B. Munson, 137 Mass. 459. 10 Law Of Crimes In General of the homicide of C in the same degree, as if the shot had killed B/ A negligently, without design to injure any one, fires a shot into a highway and accidentally kills B. A is guilty of homi- cide.^ B loses his life by means of an explosion of fire-damp in a coal mine, occasioned by want of proper ventilation, which A, in neglect of a duty devolving upon him as manager of the mine, omitted to provide. A is guilty of the homicide of B.^ A, in violation of a statute, drives a vehicle through a toll gate, without paying toll. B, the toll keeper, while attempting to stop the horse, is accidentally run over and killed. A is not guilty of the homicide of B.* Under a statute absolutely prohibiting the sale of liquor to minors, a dealer in liquor is liable for such a sale made by his agent without his knowledge and contrary to his instructions.^ Under a statute imposing a penalty upon venders of drugs who " permit " persons in their employ not duly qualified to dispense drugs, a vender is not liable for sales made by a person employed by him to clean up the store and the like and instructed not to sell drugs. ^] § 19. Motive. — Wrongful motive is not essential to crimi- nality. If one acts or omits to act under circumstances other- wise bringing his conduct within the definition of a crime, he is not excused or justified, because he was impelled by a good or innocent motive, e. g., a sense of right, a religious conviction of duty, a desire to benefit others.'' Such acts as the following, therefore, are punishable : Opening a grave and removing the body of a near relative, ill violation of law, through pious and religious motives ; * parad- 'C. 11. Breyessee, 160 Pa. St. 451. 'C. 9. Hawkins, 157 Mass. 551. =Reg. V. Haines, 2 C. & K. 368. ^Estell V. S., 51 N. J. L. 183. !>Carroll ». S., 63 Md. 551. "S. ». Robinson, 55 Minn. 169. 'U. S. ». Harmon, 45 Fed. R. 414. «Keg. «. Sharpe, 7 Cox C. C. 214. Criminal Liability 11 ing on a public street in violation of law as a part of religious worship ;' living in polygamy under a religious conviction as to its rightfulness f neglecting a legal duty to supply a dependent person with medical attendance, because of a notion, that it is irreligious to call in medical aid.^ § 20. Insanity. — Nothing is punishable as a crime that is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable* — 1. Of knowing the nature of the act, or 2. Of knowing, either that the act is illegal, or that it is morally wrong, m- 3. Of so controlling his conduct as to avoid the act, unless the absence of the power of control has been produced by his own default, in which event, however, he will still be excused to the extent to which his condition may negative the existence of a specific intent essential to the crime.^ Incapacity, within the descriptions above set forth, likewise excuses omissions otherwise punishable as crimes. § 21. Drunkenness. — Voluntary intoxication is no excuse for crime," but the fact of intoxication may be taken into con- sideration in determining the existence of a particular intent or state of mind material to the question of guilt.'' Thus, upon a charge of murder in the first degree, involving the element of a deliberate intent to take life, intoxication of the accused is relevant evidence as tending to negative deliberation;' but wanton killing without provocation can not, by reason of mere 'S. B. White, 64 N. H. 68 ; C. ». Plaisted, 148 Mass. 375 ; In re Frazee, 63 Mich. 396. 'Reynolds e. U. S., 98 U. S. 145. 'Reg. ■». WagstaflE, 10 Cox C. C. 530. •"Miller's Case, 3 Couper, 116; Davis n. IT. S., 160 U.S. 469,485; C. «. Rogers, 7 Mete. 500 ; Parsons ». S., 81 Ala. 577. 'Hopt ». P., 104 U. S. 631, 634. 'P. v. Rogers, 18 K. Y. 9. ■"Marshal's Case, 1 Lewin, 76 ; Pearson's Case, 3 lb. 144; K. v. Thomas, 7 C. & P. 817; Reg. ». Doody, 6 Cox C. C. 463; Reg. u. Doherty, 16 lb. 306; Plgman ». S., 14 Ohio, 555 ; S. v>. Bell, 39 Iowa, 316. «Hopt ». P., 104 U. 8. 631. 12 Law Of Crimes In General intoxication be excused, or reduced from murder to manslaugh- ter.' So upon a charge of larceny, intoxication is relevant to the question of intent in taking.^ Insanity produced by intoxication excuses in the same man- ner as that produced by any other cause.^ Involuntary intoxi- cation produced by the acts or contrivance of third persons puts the person afiected in the same situation as to criminal liability as ordinary insanity.* § 22. JVecessity And Compulsion Conduct resulting from absolute necessity or compulsion is not punishable.' \_Illustrations .- — It is a good defense to a charge of non-repair of a road, that the land over which it passes was washed away by the sea, so that, to restore the road, the accused must create part of the earth anew." It is a good defense to a charge of suffering a vehicle to stop in a highway beyond a prescribed limit of time, that the accused was delayed by the crowding of other vehicles which he could not control.''] If one through fear of death or bodily harm and while under actual force join with persons in rebellion, he will be excused.* The fear of hurt or loss of life does not justify the voluntary commission of crime. ^ A command by a parent, guardian, master, military superior, or person in authority does not excuse crime.'" 'Tucker ». U. S., 151 U. S. 164, 169-170. ■"Peat, ? 716. n Hale, 33; Reg. v. Davis, 14 Cox C. C. 563; U. S. v. Drew, Fed. Cas. 14, 993; Roberts v. P., 19 Mich. 401. n Hale, 33. ^The Generous, 2 Dods. 323,335; Baptistee. DeVolumbrun, 5Harr. & Johns. (Md.) 86. «Reg. «. Bamber, 5 Q. B. 379. 'C. ». Brooks, 99 Mass. 334. 84 Bl. Comm. 30; Fost. 216-317; R. v. Crutchley, 5 C. & P. 138; Resp. «. McCarty, 3 Dall. 86. "Reg. o. Tyler, 8 C. & P. 616 ; Reg. ». Dudley, 15 Cox C. C. 634 ; U. S. «. Holmes, Fed. Cas. 15,383; Arp. «. 8., 97 Ala. 5. 104 Bl. Comm. 28 ; Axtell's Case, J. Kel. 13 ; U. S. v. Jones, Fed. Cas. 15,494; U. 8. t). Carr, lb. 14,732 ; C. v. Hadley, 11 Mete. 66 ; P. ». Richmond, 29 Cal.' 41 4'. CiiiMiNAL Liability IE § 23. Ignorance Of Liavv. — ^Ignorance of law does not excuse or exempt from punishment/ K a certain intention or state of mind is essential to a partic- ular crime, ignorance of law may be relevant to the question of guilt, as tending to negative the existence of such intention or state of mind. [Illustrations : — Taking a chattel, in good faith, under a mis- taken claim , of right, can not be larceny.^ One who, in the bona fide assertion of a supposed right, illeg- ally enters upon another's land, forcibly destroys or demolishes public or private property, or the like, does not incur guilt under statutes requiring a wrongful motive, or a malicious or wilful intent or design as an element of crimes made punishable by them.^ An insolvent, having omitted a requisite item from a schedule of his distributable assets, under the bona fide belief, that it formed no part thereof, but was exempted by law from the claims of his creditors, was held not guilty of wilful false swear- ing in making affidavit to the correctness of the schedule.*] § 34. Ignorance Of Fact. — Ignorance or mistake in point of fact places one accused of crime in the same situation as to liability to punishment, as if the facts were in reality as they appeared to him,^ provided he is not — 1. Morally guilty,^ or 2. Guilty of neglect or omission of duty in not informing himself as to matter of which he (or one acting for him) could have had knowledge. [Illustrations: — A minor is not guilty of illegal voting, because not of the requisite age, if he voted under the honest belief, produced by information from parents, relatives or i4Bl.Comm. 27 ;1 Russ. Cr., 9 ed., 47; Barlow v. U. S., 7 Pet. 404, 411. Jellico Coal Co. o. C, 96 Kent, 373. «Posf, §710. 'Reg. V. Langford, Car. & M. 603 (a case which seems to take extreme ground) ; Reg. ■». Towse, 14 Cox C. C. 337 ; S. v. House, 71 N. C. 518. *U. S. V. Connor, Fed. Cas. 14,847. >4 Bl. Comm. 37; Reg. v. Walters, Car. & M. 164. 'Yeung's Case, 4 Rep. 40. 14 Law Op Crimes In Gbneral acquaintances, having knowledge of the time of his birth, that he had attained majority.^ It is no defense to a charge of having in one's possession adulterated tobacco^ or of selling beer,^ in violation of statutes, that the accused did not know what the article was. It is no defense to a charge of violating the chastity of a female,* of seducing' or abducting^ a minor, that the accused did not know, that the party was under the statutory age. It is no defense to a charge against the proprietor of a place in which minors are not allowed of permitting the pre- sence of a minor, that he was ignorant of such presence.'' If a clerk opens a saloon on Sunday,' or a servant permits gaming on his master's premises,' or persons in charge of a newspaper publish a libel" — the proprietor, master or principal in each case is liable, though the act was done without his knowledge. Upon a prosecution under a statute prohibiting the bringing into a town of a pauper having no settlement there, it is no defense, that the person importing the pauper believed such settlement to exist."] §25. Consent And Contribution. — If a person intention- ally engages in anything punishable as a crime, his liability to punishment is not avoided or affected by the neglect or miscon* duct of any other person.'^ It is no defense to a criminal charge, that an individual directly injured authorized, or contributed to, the infliction of the 'Gordon v. S., 52 Ala. 308. ^Reg. V. Woodrow, 15 M. & W. 404 Contra : Farrell v. S., 32 O. St. 456. 'S. V. Tomasi, 67 Vt. 312. 'Lawrence v. C, 30 Gratt. (Va.) 845; C. v. Murphy, 165 Mass. 66. 'S. «. Ruhl, 8 Iowa, 447. •Po«f, §459. 'C. V. Probasco, 62 Iowa, 400 (a billiard saloon). «P. e. Roby, 52 Mich. 577 (oases cited). 'Bond D. Evans, 16 Cox CO. 461 (cases cited). ">H. V. Mason, 26 Or. 273. "S. V. Cornish, 66 N. 11. 329. 'i'Reg. i>. Haines, 2 C. & K. 368 ; P. v. Murphy, 93 Mich. 41, 45. Criminal Liability 15 injury;' that a person alleged to have been cheated or defrauded was equally bent upon defrauding the accused, or equally cul- pable;^ that the injured person ratified or condoned the act of the accused f that satisfaction or restoration was made to an individual* or the public'^ in cases of stealing or misappropria- tion of money or goods; that the accused was entrapped into the commission of the crime." "While consent never excuses crime, yet, if the crime charged is of such a nature, that the fact, that the wrong was done against the consent of an individual enters into its definition, such consent is a defense f but mere submission or assent obtained through fraud is not consent.* 'Reg. ■». Longbottom, 3 Cox C. C. 439 ; Reg. «. Kew, 13 lb. 355 ; Reg. v. Coney, 15 lb. 46, 57 ; C. v. Collberg, 119 Mass. 350. «Reg. «. Hudson, 8 Cox C. C. 305 ; 0. v. Morrill, 8 Cush. 571 ; In re Cummins, 16 Color. 451. Contra: McCord v. P., 46 N. Y. 470. 3C. ». Slattery, ,147 Mass. 433; S. v. Frisch, 45 La. Ann. 1383. *Fleener v. 8., 58 Ark. 98. «Robson V. S., 83 Ga. 166, 170-171. «Rosen v. U. S., 161 U. S. 39 ; P. v. Hanselman, 76 Cal. 460 ; Alexander «. 8., 13 Tex. 540; S. ■». Covington, 3 Bailey (S. C), 569; S. ». Hayes, 105 Misso. 76. 'Reg. ®. Lawrence, 4 COx C. C. 438 ; Speiden v. S., 3 Tex. App. 157; Connor V. P., 18 Color. 373 ; P. «. McCord, 76 Mich. 200 ; Love o. P., 160 111. 501. 8R. «. Rosinsky, 1 Moody, 19 ; R. •». Nichol, R. &R. 130 ; Reg. «. Case, 4 Cox C. C. 330 ; Reg. ». Locke, 13 lb. 344 ; Reg. v. Woodiiurst, lb. 443 ; Reg. v. Clarence, 16 lb. 511 ; P. o. Gorden, 70 Cal. 467; Beyer v. P., 86 N. Y. 369. 16 Law Of Crimes In General CHAPTER IV. PAETICIPATION m CRIME. § 26. Accomplices. — All who wilfully or knowingly take part in a criminal transaction are comprehended under the general designation oft accomplice, or particeps criminis^ and incur the guilt of the particular crime and grade of crime per- petrated, the only distinction arising out of the particular modes of participation being (in cases of felony) as to the mode of procedure and measure of punishment. One who only apparently participates, e. g., to entrap or detect another, is not an accomplice.^ Mere presence at the commission of a crime does not involve guilt,^ but is a fact relevant in evidence to the question of guilt.^ Without concert of action or community of purpose, existing at the time of the. commission of an offense, no liability for the actions of others attaches to persons merely present.' § 27. In Statutory OflTenses. — Aiders and abettors are included in the punishment, although the terms of a statute are directed only against the actual perpetrator, unless, from the nature of the offense, such construction is forbidden. Thus, under a statute providing for the punishment of "any person who shall feloniously hreak\nto a store-house with intent to steal," aiders and abettors are liable.^ On the other hand aiders and abettors are not liable under statutes providing for the punish- ment of "a woman who conceals the birth of her child;'" or of 'Fost. 341 ; P. 11. Smith, 38 Huu, 620. 'Grimm v. U. S., 156 U. S. 604; Campbell e. C, 84 Pa. St. 187. »3 Hawk., ch. 29, ? 10 ; Hicks v. U. S., 150 U. S. 442. ^Brovpu V. Perkins, 1 Allen, 89, 98 ; P. ». Chapman, 62 Mich. 280. 'P. V. Elder, 100 Mich. 515 ; P. -o. Woody, 45 Cal. 289 ; Woolweaver v. S., 50 O. St. 277. «C. V. Carter, 94 Kent. 527 (overruling Stamper v. C, 7 Bush, 612). 'Reg. v. Wright, 9 C. & P. 754; Prey a. C, 83 Kent. 190. Participation In Crime 17 ''one who permits gaming in a plaoe ke^t by Mm ;"^ and the pur- chaser is not liable under a statute punishing the sale of liquor.^ If an offense is created by statute in terms importing a design to punish a wrong to an individual, the participation of the injured individual does not make him an accomplice. Such arc cases of females consenting to an abortion f girls under a speci- fied age to carnal knowledge;* offenses against women and children generally, within limitations not precisely defined."* One who -procures the commission of a statutory offense is liable to punishment, although not within the class of persons against whom the penalty is directed.^ § 28. In Felony. — In felony, there are four distinct methods of participation in the crime which make the participant a felon. He may be a principal of the first or of the second degree, an accessory before or an accessory after the fact. The crime of petty larceny is an exception, there being no accessories therein. All concerned in the actual commission of the crime or in its procurement are punishable as principals.^ § 29. In Treason. — In treason, all participants are princi- pals.* The bare concealment (misprision) of treason former!}^ ren- dered the offender liable as principal, but is now misdemeanor by 1 & 2 P. & M., ch. 10.' § 30. In Misdemeanors. — All who participate in, abet or procure the commission of a misdemeanor are principals.^" 'C. V. Dean, 1 Pick. 387. «C. 11. Willard, 22 Pick. 476 ; S. v. Rand, 51 N. H. 361 ; Wakeman ». Cham- bers, 69 Iowa, 169 ; S. ®. Collins, 53 Kans. 100 ; S. ». Baden, 37 Minn. 212. >Post, 1 464. «Eeg. e. Tyrell,-17 Cox C. C. 716. ^WMttaker v. C, 95 Kent. 632 (incest). «P. J). McKane, 143 N. Y. 455, 463-464. 'Ward V. P., 3 Hill, 395 ; S. C, 6 lb. 144 ; S. ». Gaston, 73 N. C. 93 ; S. e. Hen derson, 35 La. Ann. 45. n2 Eep. 81 ; 4 Bl. Comm. 35. 94 Bl. Comm. 120; Alexander Brit. St. 367. '«12 Eep. 81 ; 4 Bl. Comm. 36 ; St. Johnsbury v. Thompson, 59 Vt. 300, 312-313; S. V. Murdoch, 71 Me. 454; Topper «. S., 118 lud. 110; Wagner «. S., 43 Neb. 1. 2 18 Law Of Crimes In General If several act in concert, though sustaining separate parts and in different places, each is chargeable ■^^'ith the complete misdemeanor.' Whatever, within the definitions and meanings hereinafter given, makes one a principal or an accessory before the fact in felony makes him a principal in misdemeanor. [Illustrations: — One who encourages another to commit an assault is guilty of the assault.^ A counsels B to set fire to a store house. B attempts to set fire to it in A's absence. A is guilty as principal of this attempt.^ A, under the direction and in the presenee of B, delivers merchandise from a wagon into a warehouse, and in so doing drives upon a footway — a statutory misdemeanor. B incurs the guilt of this misdemeanor in like manner, as if he had driven upon the footway.*] One who, after the fact, renders assistance to the participants does not incur the guilt of the particular misdemeanor, but may, under various circumstances, be guilty of a distinct mis- demeanor.^ [Illustraiion: — A commits no offense, if he furnishes B, who has committed a misdemeanor, with the means of flight. He may become guilty of a distinct misdemeanor by various acts of interference with the lawful means of arresting and bringing B to trial.] § 31. Principal In First Decree. — ^Principal in the first degree is he who commits, or takes part in the aetual commis- sion of, the felony.^ He need not be present at the time of consummation. Thus, one who procures another's death by means prepared beforehand 'Reg. 0. Moland, 2 Moody, 276; Reg. v. Greenwood, 5 Cox C. C. .521 ; Reg. v. Thompson, 11 lb. 363 ; C. ■d. McAtee, 8 Dana (Ky.), 28 ; C. v. Barnett, 95 Kent. 302. «S. ®. Lymburn, 1 Brev. (S. C. ) 397. »Reg. V. Clayton, 1 C. & K. 138. "Roddy v. Finnegan, 43 Md. 490, 503-504. »3 Hawk., ch. 39, ? 4. •4B1. Comm. 34. Participation In Crime 19 (physical agencies), such as poison, pitfalls, letting out wild beasts, or by persuading him ignorantly to drink poison, is a principal in the first degree.^ One who perpetrates a felony by the employment of an inno- cent agent is a principal in the first degree.^ Such is the case of inciting a madman; procuring a child to steal or commit burglary;^ procuring another innocently to give poison to a third person.* If several perform parts of a felony in different places, each is a principal in the first degree.^ Thus, in forgery (when felony) the separate execution by several persons of different parts of the false instrument renders all principals.^ § 32. Principal In Second Decree. — "Whoever aids or abets the actual commission of a crime by any degree of assist- ance or encouragement, whether present at the place of perpetration or not, is a principal in the second degree.'^ Such is the case of one keeping watch or guard at such convenient distance as to afford aid or encouragement to the actual perpe- trator of a larceny or other felony,* or of one procuring and keeping away the owner of premises in order to facilitate a burglary.^ K a particular, or specific, intent is an element of the parti?hi- lar crime or degree of crime, there must be knowledge of and participation' in such intent, in order to render the £iider liable.*" [Illustration : — A aids B in an assault upon C, A's design being to aid in an ordinary battery, and the circumstances '4 Bl. Comm. 35 ; Vaux's Case, 4 Rep. 44. H Bl. Comm. 35 ; Reg. ■». Bannen, 1 C. & K. 395 ; S. C, 2 Moody, 309. 3Reg. V. Manley, 1 Uox C. C 104; S. v. Learnard, 41 Vt. 585. *Reg. V. Michael, 9 C. c& P. 356 ; S. C, 2 Moody, 130. 'Reg. V. Kelly, 3 Cox C. C. 171 ; Clay v. S., 40 Tex. 67. "1 Russ. Or., 9 ed., 60-61. '4 Bl. Comm. 34-35 ; R. ■». Potts, R. & R. 353 ; R. v. Owen, 1 Moody, 96 ; Reg. «. Vanderstein, 10 Cox C. C. 177 ; Reg. «. Jessop, 16 lb. 304 ; C. ii. Knapp, 9 Pick. 496. sC. ». Lucas, 2 Allen, 170; Tate v. S., 6 Blaokf. (Ind.) 110. 'Breese ». S., 13 O. St. 146. "Reg. 1). Cruse, 8 C. & P. 541 ; R. i). Southern, R. & R. 444; Wagner v. S., 43 Neb. 1. 20 Law Of Crimes In General indicating to him a mere scuffle between B and C. B, in pur- suance of a premeditated design to take C's'life, kills him in the scuffle. A is not guilty of the higher grade of homicide resulting from this premeditated design of which he was ignorant.^] If the aider or abettor is not near enough to the place of the commission of the felony to be of assistance in its actual perpetration, he is not a principal, but an accessory.^ § 33. Community Of Purpose. — If several act in the execution of a common criminal design, each is a principal in the second degree in respect of every criminal act done in the execution of such purpose, but is not liable for crimes of any of the others foreign to such purpose.' [Illustrations: — A and B practice with rifles in a public place. If a passer-by is killed by a shot from the rifle of A, the cir- cumstances amounting to culpable negligence, B as well as A is guilty of the homicide.* A and B are arrested while engaged in the commission of a crime for the execution of which they have combined. A resists and kills the offlcer. B is not guilty of the homicide.* Several set out on a poaching expedition and attack and beat the gamekeeper, leaving him senseless. One returns and robs him. The others are not guilty of the robbery." A and B by agreement assault C. C is killed by a chance blow from the fist of A. This is homicide in B. A suddenly seizes a weapon and kills C. Bis not guilty of the homicidcH § 34. Accessory Before The Fact. — An accessory before the fact is one who, being absent at the time of the commission, 'Savage ». S. 18 Flor. 909, 962-963; Brown v. S., 28 Ga. 199, 213-214. ^R. V. King, K. & R. 332 ; R. v. Kelly, lb. 421. ^Dufley's Case, 1 Lewin, 194; R. v. Murphy, 6 C. & P. 108 ; E. b. White, R. & R. 99 ; Reg. v. Swindall, 2 Cox C. C. 141 ; RulofE «. P., 45 N.'y. 213 ; S. v. Allen, 47 Conn. 121 ; Lamb d. P., 96 111. 73; Ferguson ». S., 32 Ga. 658 ;' P. v. Knapp, 26 Mich. 112; Mercersmith v. 8., 8 Tex. App. 211. «Reg. ». Salmon, 14 Cox C. C. 494. 'White e. P., 139 111. 143. «R. V. Hawkins, 3 C. & P. 392. 'Reg. 11. Caton, 12 Cox C. C. 624. Participation In Crime 21 procures, counsels, commands or abets another to commit a felony.^ [Illustrations : — A, a servant, lets B into his master's house, that he may rob it, and temporarily leaves the premises, in pur- suance of a previous arrangement. A is accessory before the fact to a robbery there committed by B during his absence.^ A and B were indicted for murder, the former as principal, the latter as accessory before the fact. It appeared, that the fatal hurt vs^as inflicted by A within a few feet from Avhere B was standing. B was held not liable as accessory.^] One who indirectly procures the commission of a felony through the intervention of a third person is an accessory before the fact, even though he does not designate or know the person procured.* Mere concealment, countetiance or approval of a contemplated felony does not make one accessory thereto.'' \_Illustratio7i : — A mere stakeholder in a prize-fight is not an accessory to the death of a contestant.*] If the crime perpetrated totally and substantially varies from the instigation, the instigator is not liable as accessory: he is liable, if it varies only as to circumstances of time, place or manner of execution.^ [^Illustrations : — A counsels B to steal C's watch. A is not accessory, if B steals C's horse. He is accessory, if B commits theft of C's watch by robbery. If B commits burglary to steal C's watch, A is accessory to the theft, but not to the breaking.* A counsels B to kill C by shooting him. B commits the homicide by stabbing. A is accessory.'] '4 Bl. Comm. 36-37. 2Reg. V. Tuckwell, Car. & M. 315. sReg. V. Brown, 14 Cox C. C. 144. n Russ. Or., 9 ed., 58. 5Ib. 57. 6Reg. V. Taylor, 13 Cox C. C. 68. n Russ Cr., 9 ed., 61 ; C. v. Glover, 111 Mass. 395, 403; Watts v. S., 5 W. Va. 533. «1 Hale, 616-617. 94 Bl. Comm. 37 ; Fost. 369-370. 22 Law Of Crimes In General If the perpretator goes beyond the terms of the solicitation, the instigator is accessory to any felony which is the natural or probable consequence of the instigation. [lUustrations : — If A procure B to beat C violently, and C dies; to rob C, and in the execution of the robbery C is killed; to set fire to C's house, and the flames take hold of D's house : in each event A is accessory.' A advises B to kill C, and B by mistake kills D. If A undertook to describe C to B, the intended victim being a stranger to B, A is probably accessory to the homicide of D.'^] If the instigator countermands the execution of the crime, and the other yet proceeds, the former is not liable, if the perpetrator had notice of the coantermand.* § 35. Oflfenses «fot Admitting- Of. — Those offenses which, in the construction of law, are sudden and unpremeditated do not ordinarily admit of accessories before the fact.* M g., killing by misadventure;' but in other cases of homicide amounting to mere manslaughter, there seems to be no reason, why there may not be accessories before the fact.* " § 36. Accessory After The Fact. — An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts or assists him.'' One who does^auy of these things through the intervention of a third person falls within this definition.' The elements of guilt are, that the felony should have been completed f that it should be hiown to (not merely suspected by) 14B1. Comm. 37; Fost. 370. n Russ. Cr., 9 ed , 62. "lb.; S. B. Allen, 47 Conn. 121, 139-140 , Pinkard ». S., 30 Ga. 757. •4 Bl. Comm. 36. n Hale, 616. •Reg. t). Gaylor, 7 Cox C. C. 353. '4 Bl. Comm. 37; 1 Russ. Cr., 9 ed., 64. sR. V. Jarvis, 2 Moody & R. 40 ; Reg v. Parr, lb. 346. «4B1. Comm. 38. Participation In Crime 23 the party ;' that he should receive or assist the prineipal in favor and aid of the felony.''' If a statute creating a felony names accessories before, with- out mentioning those after, the fact, it is said, that there can be no accessories after the fact thareunder.^ § 37. Relation Of Decrees Of Guilt The offenses of principal and accessory are distinct. There can be no convic- tion of one charge upon an allegation of the other, and an acquittal upon one charge is no bar to a trial upon the other." The distinction between principal of the first and of the second degree is merely technical and without practical effect.' By separate acts, one may become both principal and acces- sory to the same felony,* or accessory before and accessory after the fact,' and one may become accessory after the fact by aiding an accessory before the fact.* § 88. Punislmaeiit Of Accessories. — Accessories may be charged separately or jointly with the principal,' but, at the strict common law, can be sentenced only after the principal has been sentenced.^" The trial of the principal should, in strictness, precede that of an accessory." The acquittal of the principal discharges the alleged accessory.'^ The accessory can not be convicted of a higher degree of the crime than the principal ; '^ but a principal in the second degree may be tried >4 Bl Comm. 37; Wren ». C, 36 Gratt. (Va.) 953. ^4B1. Comm. 38; 1 Russ. Cr., 9 ed., 65; Wren v. C, 35 Gratt. (Va.) 989 ; Loyd ». S., 43 Ga. 331. n Russ. Cr., 9 ed., 65-66. H Bl. Comm. 39-40 ; 1 East P. C. 351-353 ; R. «. Plant, 7 C. & P. 575 ; S. ». WyckofE, 31 N. J. L. 65 ; P. v. Katz, 33 How. Pr. 93 ; Walrath a. S., 8 Neb. 80 ; Hughes «. S., 13 Ala. 458 ; S. u.Buzell, 58 N. H. 357; S. C, 59 lb. 65. 'S. v. Fley, 3 Brev. (S. 0.) 338, 345 ; 8. ■». Payton, 90 Misso. 230. «3Hawk.,ch. 29, §1. 'R. V. Blacksdn, 8 0. & P. 43. n Russ. Cr., 9 ed., 64. n Hale, 633. '»3. ». Duncan, 6 Ired. (N. C.) L. 98 ; Simmons o. S., 4 Ga. 465. "4 Bl. Comm. 40 ; Phillips ». S., 16 Mass. 433 ; Stoops «. C, 7 S. & R. 491. i^Exp. Bowen, 35 Plor. 314, 319. i»4 Bl. Comm. 36. 24 Law Of Crimes In General before a principal in the first degree^ and may be convicted of a higher degree of the same crime.^ Upon the trial of an accessory, the record of conviction of the principal is prima facie evidence of the commission of the felony.^ One charged as accessory to several ma}' be convicted of being accessory to one only.* The penalty against accessories is the same, at common law, as that against the principal, but this rigor has been modified as to accessories after the fact.^ Specific penaltie;^ are pre- scribed in certain cases by Federal statutes.^ § 39. Mispri!«ioii. — Misprision of treason and of felony are misdemeanors. Misprision of treason is, when a person, knowing of treason, though no party or consenter to it, conceals or fails to reveal it in convenient time.' Misprision of felony is^the concealment of felony, or procuring such concealment, by one not a party or consenting to it.* Silently to observe the commission of a felony, especially where life is taken, without an effort to restrain or arrest the offender, is a misprision." It is said, that a mis- prision is included in every treason or felony, and that one guilty of treason or felony may be proceeded against for the misdemeanor only."* Misprision of treason" and of felony'^ are defined and punished under Federal statutes. The term misprision is also used in the older books as syn- onymous with misdemeanor, or high misdemeanor." 'Brown v. S. 28 Ga 199, 217. ^Goins ». S-, 46 O. St. 457, 462-463. n Chitty Cr. L. 273; C. ». Kuapp, 10 Pick. 477; Buck». C, 107 Pa. St. 4S(i ^Starin » P., 45 N. Y. 383. HBl. Comm. 39; Fost. 372. «U. S. Rev. Stats. J? 5538-5535. '4 Bl. Comm. 121 ; 1 East P. C. 139. H Bl. Comm. 131. n East P. C. 377. '»4 Bl. Comm. 119. "U. S. Rev. Stats. ?5833. "lb. i 5390. "4 Bl. Comm. 119. Participation In Crime 25 § 40. Compounding. — Every one, whether interested or not,' who takes, or agrees to take,^ a compensation or satis- faction for forbearing to prosecute or stifling a prosecution for crime is guilty of a misdemeanor, called compounding;'^ but merely to receive back one's goods is not an offense.'' An agreement to compound an offense of any grade is illegal.^ Sureties to a contract made in consideration of an agreement to compound have been held not liable." § 41. Compounding^ Penalties.' — ^By 18 Eliz., ch. ;i, it is a misdemeanor for one informing under a penal statute to com- pound without leave of the court.' Guilt attaches, whether a penalty had been incurred or not, and whether there was a proceeding for the penalty, or not.* § 42. Receiving. — A repeiver of stolen goods, at common law, was guilty of mere misprision or compounding.^ By 3 & 4 W. & M., ch. 9, § 4, tlie receiver was made acces- sory after the fact. Stat. 5 Anne, eh. -31, § 5, confirmed the former statute, and § 6, as also 1 Anne, St. 2, ch. 9, § 2, provided, that where the principal felon could not be taken, the receiver might be prosecuted separately for the misdemeanor." Receiving stolen goods, knowing them to be stolen, is now very generally made a substantive offense by statute.^' 'Reg. V. Burgess, 15 Cox C. C. 779. =Reg. ». Burgess, 15 Cox C. C. 779 ; S. v. Duhammel, 2 Harr. (Del.) 532. H Bl. Comm. 133; C. «.' Pease, 16 Mass. 91. n Hale, 619 ; Hall ». Hennesley, Cro. Eliz. 486. 'Cannon v. Rands, 11 Cox 0. C. 631 ; Partridge ». Hood, 120 Mass. 443. ^Buffalo Press Club v. Greene, 86 Hun, 120. Illegal agreement to compound and nugatory agreement not to prosecute distinguished. Bourke ». Mealy, 14 Cox C. C. 329. '4 Bl. Comm. 136; 1 Russ. Cr., 9 ed., 197; Alexander Brit. St. 406. nRuss.Cr., 9 ed., 198-199. H Bl. Comm. 38, 132. '»R. e. "Wilkes, 1 Leach, 103 ; S. C, 2 East P. C. 746 ; S. «. Hodges, 55 Md. 127. "Po8«, ?| 787-795. 26 Law Of Crimes In General CHAPTER V. STATUTES AND STATUTORY CONSTRUCTION. § 43. Time Of Taking Effect. — If no other time is fixed, a statute takes effect from the beginning of the day of its passage, i. e., of the last act (ordinarily the executive approval) necessary to complete the process of legislation.' K a bill becomes law through the mere non-action of the executive, its operation dates from the lapse of time prescribed for his action.^ The executive approval, if within the prescribed time, may be after the adjournment of the legislature.^ The enrolled act* and the executive record as to the time of approval' are conclusive. When substantial justice requires it, the actual hour and minute of the passage of a statute will be inquired into and effect given to it from the instant thus ascertained.^ Thus, an act approved by the President in the afternoon, increasing a tax on tobacco, was held not to apply to tobacco on which the tax under the previous law had beeia paid in the forenoon of the same day.^ K a statute is to take effect " from and after " the date of its passage, or any other certain date, time should be computed by excluding the date of passage, but including the last of any specified further number of days.* Bills passed by Congress become law upon being signed by the President in approval, or upon receiving a two thirds vote in each House after his veto. If any bill is not returned by the •1 Kent Comm. 454; Lapeyre v. V. S., 17 Wall. 191, 198 ; Parkinson v. S., 14 Md. 184, 300; Strauss v. Heiss, 48 lb. 392, 39G. -Tarltou «. Peggs, 18 Ind. 24. 'Seven Hickory v. Ellery, 103 U. S. 423; Lankford v. Somerset, 73 Md. 105. ^Field V. Clark, 143 U. S. 469 ; Lyons v. Woods, 153 lb. 649. ^Lankford ». Somerset, 73 Md. 105. 'Louisville v. Portsmouth, 104 U. 8. 469. 'Burgess i> Salmon, 97 U. S. 381. 'Bemis v. Leonard, 118 Mass. 502 ; Simmons v. Jacobs, 52 Me. 147. Cf. post 1 45. Statutes And Statutory Construction 27 President within ten days (Sundays excepted) after it has been presented to him, it becomes a law in like manner as if he had signed it, unless the adjournment of Congress prevents its return, in which case it does not become law.' § 44. General Rules Of Construction. — The ordinary rules of construotion apply in general to statutes relating to crime. Penal statutes must not be extended, by mere construction to cases not clearly embraced in their language.^ They must not be narrowed by construction, but full meaning should be given to their expressions and full elBEect to the obvious purpose of the legislature.* A literal construction that would inflict hardship and subject innocent persons to punishment must be avoided.* Statutes to prevent frauds upon revenue laws are construed liberally.' In determining the scope of statutory crimes, regard must be had to the general policy of the common law." Enactments will not be held void, except in cases of such plain inconsistency or repugnancy between the several parts and such inaccuracy of expression, that the legislative intent cannot be ascertained with reasonable certainty. If a penal statute prohibits a thing except upon a condition precedent impossible of performance, the eflfect is, not to invalidate the statute, but to render the prohibition absolute.^ § 45. Particular Expressions. — Words and phrases that . have acquired a technical or fixed legal meaning are interpreted* in the sense thus acquired,' unless it appears, from the context, 'Const. U. 8., art. 1, ? 7. ^U. 8. V. Wiltberger, 5 Wheat 76; U. 8. v. Reese, 931'. 8. 214 ; Todd ii. V. 8., 158 lb. 378, 383; Ballew v. U. 8., 160 lb. 187, 197; 8wearmgen v. U. 8., 163 lb. 446. 3U. S. V. Morris, 14 Pet. 464, 475; U. 8. v. Hartwell, 6 Wall, 385; U. S. v. Lacher, 134 U. 8. 634. «Holy Trinity Church v. U. S., 143 U. S. 457. »U. 8. V. 8tockwell, 133 U. 8. 1, 13. sLane v. Cotton, 13 Mod. 473 ; C. v. Drew, 9 Pick. 179, 185. '8. 11. Douglass, 5 8need (Tenn.), 608; 8. v. Barringer, 110 N. C. 535, 539. 'Maxwell Interpretation, 3 ed, 69-75; 8tephenson v. Higginson, 3 H. L. Gas. 683; U. 8. v. Smith, 5 Wheat. 153, 160; U. 8. ». Hartwell, 6 Wall. 385. 'Kieforth v. 8., 88 Wis. 183. 28 Law Of Crimes In General or otherwise, that a different meaning is more agreeable to the legislative intent/ Certain words denoting criminal intent have a technical meaning. " Malice " applies to a wrongful act done intention- ally without legal justification or excuse.^ " Wilfully " implies knowledge and evil purpose.^ AVhen dtstanre is referred to in statutes or other writings, the mode of measurement ordinarily is u straight line on a horizontal plane between the nearest points of two places or objects.'' If time is to be -computed from a particular day or event, as whan an act is to be performed within a specified period " from " or " after " a day named, the modern rule is, to exclude the day thus designated and include the last day of the specified period, uidess a different intention is manifested by the instrument or statute.^ Month means a calendar month, unless a dift'erent intention appears.^ A day, for most purposes is an indivisible unit; but a fraction of a day may be regarded, when substantial justice requires it.' § 46. General And Specific Terms. — General words which follow particular and specific words of the same natm-e ordinarily take their meaning from them and are presumed to be restricted to the same genus as those words, i. e., as compre- hending only things of the same kind as those designated by them.'"* This rule must be taken in connection with other rules of construction, so as to aid, not defeat, the legislative intent; It does not require the rejection of general terms, but forbids their 'S. fl. Popp, 45 Md. 432. ■■'Reg. V. Pembliton, 13 Cox C. C. 607, 611 ; C. v. Snelling, 15 Pick. 337; C. v. Goodwin, 122 Mass. 19, 35 : apotter v. V. S., loo U. S. 438. «Lake o. Butler, 5 E. & B. 92 ; Mouflet ». Cole, L. R. 8 Exch. 32. ^Sheetsffl Selden, 2 Wall. 177; Dutchei- «. "Wright, 94 U. S. 553 ; Bemis v. Leonard, 118 Mass. 502; Kendalls. Kiugsley, 120 lb. 94; Seward «. Hayden 150 lb. 158 ; Walsh v. Boyle, 30 Md. 263; Calvert e. Williams, 34 lb. 673. sSheets v. Selden, 2 Wall. 177. 'Louisville b. Portsmouth, 104 U. S 549. ^Maxwell Interpretation, 3 ed., 405-417. Statutes And Statutory Construction 29 application to cases evidently beyond the scope of the enact- ment, as indicated by the specific terms.' § 47. Effect Of Statutes Upon Procedure. — New reme- dies given by statute for common-law offenses are merely cum- ulative with the common-law remedies ; and if a statute creates a new offense and prescribes a specific remedy, the common-law method of prosecution is not excluded, unless, by the terms of the statute, the remedy therein prescribed is made exclusive, e. (j., where there is a particular prohibitory clause specifying only a particular remedy.^ [Illustration: — A turnpike company held liable to be proceeded against by indictment at common law for a nuisance in keeping its road out of repair, notwithstanding a statutory provision giving a special remedy and imposing a lighter penalty than that following conviction at common law.^] § 48. Change Of Punlstiinent. — -A statute imposing a penalty for an offense different from that formerly affixed by the common law or statute, whether milder or greater, operates as a repeal of the former punishment, so that only that penalty can be imposed which is prescribed by the later law.* There may be different modes of procedure for the same offense (kinds of punishment), but there can be only one penalty (degree of punishment). § 49. Ittere Violation Of Statute Punishable. — Mere disobedience of a statute is a misdemeanor at common law' in the following instances : iWright 0. Pearson, L. R. 4 Q. B. 582; Reiche ». Smythe, Fed. Cas. 11,666; S. V. "Williams, 2 Strobh. (8. 0.) 474; Woodworth «. S., 26 O. St. 196; Foster «. Blount, 18 Ala. 687. ^Reg. ■». Buchanan, 2 Cox C. C. 36 ; Ransdell e. Patterson, 1 App. D. C. 489; Phillips v. S., 19 Tex. 158 ; Wetmore ». Tracey, 14 Wend. 250 ; Renwick «. Morris, 3 Hill, 621 ; Washington Road ■b. S., 19 Md. 239, 287 ; C. ■». Goodall, 165 Mass. 588. sfiusquehannah ». P., 15 Wend. 267. ^Atty-Gen, ®. Lockwood, 9 M. & W. 378, 391 ; Norris ». Crocker, 13 How. 429 ; 8. ». Thompson, 2 Strobh. (S. C.) L. 12; S,.v. Smith, 44 Tex. 443; C. ». Kimball, 21 Pick. 373. 64 Bl. Comm. 122; U. 8. v. Coolidge, Fed. Cas. 14,857; Ransdell*. Patter- son, 2 App. D. C. 489; Gearhart v. Dixon, 1 Pa. St. 224, Keller ». 8., 11 Md. 525, 536 ; Colburn o. Swett, 1 Mete. 232. 30 Law Of Crimes In General 1. Doing a thing prohibited as a matter of public grievance to the liberty and security of the citizen/ or of public harm, or on grounds relating to the public police or economy. [Illustrations : — Unlawful imprisonment in violation of a con- stitutional prohibition.^ Distraining chattels in violation of a statutory exemption.' Practising a profession without the qualifications prescribed by a statute.* Giving more than one vote at a town-meeting.' Exercising a business without a requisite license.^] 2. Neglecting or refusing to do a thing commanded by statute as a matter of duty to the public or upon grounds connected with the public police or economy. [Illustrations : — Refusal of a constable to pursue felons, upon notice, as required by a statute.^ Refusal to give information to a public officer, upon demand made in accordance with a statute.* ■ Neglect of a company to keep a road in tepair, as required by the terms of its charter.'] 3. Acts or omissions tending to obstruct the execution or operation of statutes. [Illustrations : — ^Refusal to take an office, upon appointment in pursuance of a statute.'" Refusal by an overseer of poor to receive a pauper under an order of commitment made in virtue of a statute." '2 Inst. 163. nh. 55. 'R. V. Hummings, Comb. 374. Distinguish case of excessive distraint, which involves a mere abuse of power, illegality as to manner of execution, but no direct violation of statu- tory prohibition. R. ■». Legingham, 1 Mod. 71. »R. V. Jones, 2 Str. 1146 ; S. C, 7 Mod. 410. "R. ». Davis, Sayer, 163. Statutes And Statutory Construction 31 Disobedience to an order of the king in council, made in pursuance of a statute.^ Disobedience to an order of forest commissioners, passed in pursuance of a statutory power.^ Cutting down a pile that formed part of a horse-towing path erected by the corporation of the city of London on the soil of the river Thames under power of an act of Parliament.* Indictment held to lie at common law for "unlawfully, forcibly and contemptuously tearing down and refusing to replace" an advertisement of a sale of lands for taxes set up by the proper officials under a public law.*] Keeping a place where acts prohibited by statute are habitu- ally indulged or permitted is also a misdemeanor.' § 50. Evasion. — Statutes should be so construed as to suppress all evasion. Whatever may be the form or color of a transaction, if the thing accomplished is substantially and in eiFect the thing interdicted, the law is violated. The widest meaning is to be given to the words of a statute, when needful to effectuate the intention and prevent evasion.* ^Illustrations : — An old statute prohibiting the fastening in the river Thames of any nets, to stand "continually, day and night" was held to mean continually, so long as they may stand to take fish and the time of fishing endures, be it in the day or night, "for otherwise the law would be of no effect."^ A dealer licensed to sell only liquor to be drunk "off his premises" evades the law, if he provides a bench for his custom- ers close to his shop.* iR. ®. Harris, 7 T. R. 303. 2Reg. ®. Walker, 13 Cox C. C. 94. 'R. ». Smith, 3 Dougl. 441. (The indictment charged an intent to obstruct the walk.) Patten v. Rhymer, 3 El. & El. 1. ■^Corbett v. Haigh, L. R. .5 C. P. D. 50. »S. V. Best, 108 N. C. 747. ^C. V. Thayer, 8 Mete. oS.") ; Looney v. S., 43 Ark, 389; Archer v. S., 45 Md. 33 ; S. V. McMinn, 88 N. C. 608; Marcus v. S., 89 Ala. 23. sMiller v. U. S., 6 App. D. 0. 6 ; Swigart. o. P 154 111. 084. «Miller v. U. S., 6 App. D. C. 6. "U. S. J). Tynen, 11 Wall. 88, 93; S. ». Alexander, 14 Rich. (S. C.) 247 ; S. ». Yewell, (i3 Md. 120. 8Cliew HongB. U. S., 112 U. S. .536, 549-550; Sifred ®. C, 104 Pa. St. 179. Snowden v. S., 69 Md. 203, 208. Statutes And Statutory Construction 33 then only to the extent of the repugnancy.^ If, however, the statutes are not in express terms repugnant, yet, if the last act covers the whole subject of former provisions in such man- ner as to make it evident, that it was intended as a complete system of legislation on the subject, it will operate as a repeal of the prior statutes.^ If a statute again defines and provides for an ofiense created by a former statute and affixes a different punishment, the later act operates by way of substitution and repeal.^ A general act is not to be construed as a repeal of a previous particular act, tinless there is express reference to the previous act or a necessary inconsistency in letting the two stand together.^ In all cases of clear repugnancy the later act pre- vails.° A general state law and a municipal ordinance providing different punishments for the same offense may both be upheld, if there is no real repugnance between them.^ A mere incidental repealing clause is not operative, if the sub- stantive provision is voidJ § 52. Effect Of Repeal — When a statute is repealed, it has expended its force, and must be considered, except as to transactions past and closed, as if it had never existed. There can be no new prosecutions or actions for causes which accrued under it and nd further steps in pending cases.* If repeal takes place after conviction, judgment must be arrested;' if pending iHomer v. C, 106 Pa. St. 321 ; Mongaon ®. P., 55 N. Y. 613. ^U. S. ». Tynen, 11 Wall. 88, 93; Tracy ». Tuffley, 134 U. S. 306, 333; Turner «. S., 55 Md. 240, 360 ; Buchannon «. 8., 95 Kent. 334. sU. S. V. Claflin, 97 U. S. 546. *S. e. StoU, 17 Wall. 435. 6S. ■». Palkenham, 73 Md. 463. •Kausas City v. Hallett, 59 Mo. App. 160. 'S. V. Benzinger, 83 Md. 481. 8Reg. «. Denton, 18 Q. B. 761 ; Ins. Co. v. Ritchie, 5 Wall. 541 ; U. S. «. Tvnen, 11 lb. 88, 95 ; Railroad ». Grant, 98 U. 8. 398 ; Rood v. Chicago Rail- way, 43 Wis. 146. 'C. ■». Pattee, 13 Cush. 501 ; Whitehurst v. S., 43 Ind. 473. 3 34 Law Of Crimes In General an appeal, judgment must be reversed.^ It does not operate as a discliarge or release from execution of sentence.^ The general doctrine of this section does not apply to statutes which simultaneously repeal and re-enact.^ It is competent for the legislature to provide a saving clause as to pending prosecutions or past offenses.* § 53. Revivor. — The repeal of a repealing statute revives the pre-existing law, common as well as statutory.^ A statute thus revived has precisely that force and effect which it had at the moment when it expired,* but proceedings abated by virtue of a repeahng act are not necessarily revived.^ Under the Federal code, if an act is repealed that repealed a former act, such former act is not thereby revived, unless it is expressly so provided.* 'Keller v. &., 12 Md. 333. ^S. V. Adington, 3 Bailey (S. C), 516; Foster d. Medfield, 3 Mete. 1. ^Steamship Co. ». Joliffe, 3 Wall. 450; Appeal Tax Court ». Patterson, 50 Md. 354, 875 ; S. v. Gumber, 37 "Wis. 298 ; S. v. Wish, 15 Neb. 448. *C. V. Cheney, 108 Mass. 33. ^Maxwell Interpretation, 2 ed., 509 ; U. S. v. Philbrick, 130 U. S. 52; C. o. Churchill, 3 Mete. 118. "Aurora v. U. 8., 7 Cranch, 882; C. ». Mott, 31 Pick. 493. 'C. V. Leech, 24 Pa. St. 55. »U. S. ReT. Stats. ? 12. Constitutional Guaranties And Limitations 35 CHAPTER VI. CONSTITUTIONAL GUARANTIES AND LIMITATIONS. § 54. General Doctrines. — The Federal constitution is the supreme law of the land,^ and the constitutions of the sev- eral states, so far as they conform to the Federal constitution and relate to internal state government, are the supreme law within the respective states. • An act that contravenes the constitution is simply void, as inoperative, as though it had never been passed f but a legisla- tive enactment can not be held void merely because it is against justice and right. In order to impeach an act for unconstitu- tionality, it must be shown to violate some specific constitu- tional provision.' Every intendment should be made in support of a legislative enactment,* and statutes that are unconstitutional in part only will be upheld, so far as they are not in conflict with the consti- tution, provided the allowed and prohibited parts are separable.^ Constitutional guaranties and restrictions are not ordinarily to be. interpreted in a literal or strict technical sense, but in the light of the law as existing and understood by the framers at the time of their adoption.^ § 55. Application Of Constitutional Provisions. — The most important constitutional guaranties and limitations bearing upon the law of crimes and penal legislation are contained in substantially identical provisions in the Federal and all the state ^Const. U. S., art. 6, par. 2. s'Norton ». Shelby County, 118 U. S. 435, 443. sWhittington ». Polk, 1 Harr. & Johns. (Md.) 336, 246; P. v. West, 106 N. Y. 293; Hedderich «. S., 101 Ind. 564; P. •». Mahoney, 13 Mich. 481, 501. . Harnor, 149 N. Y. 195. 40 Law Of Ceimes In General order to justify legislative interference in such cases, it must appear, that the interests of the public generally require such interference, and that the means enacted are reasonably neces- sary for the accomplishment of the purpose ; but a police regu- lation can not be held invalid merely because it is unjust or unreasonable.' The power to regulate the internal police of the several states is vested excltisively in the legislatures thereof; but Cjongress may enact police regulations, not only in the exercise of juris- diction over the territories under its control, but also inciden- tally to other powers falling within the scope of Federal legis- lation.' Power may also be delegated by the legislatures to municipal corporations, to enact ordinances for the preservation of the peace, the suppression of nuisances and the like, within the corporate limits.^ The question, whether a particular ordinance falls within the scope of power so granted is a judicial one.* State laws in the nature of necessary police regulations which, bj' their necessary operation, affect, to some extent, or for a limited time, the conduct of commerce among the states, are ^No enactment can be declared invalid merely because it is unjust or un- reasonable. Ante, i 54. Police regulations are surely no exception to the rule. In probably every instance where a supposed police regulation was declared invalid because "unreasonable," it will be found, that it was an en- actment which, under the mere gum of police regulation and assertion of police power, violated some constitutional guaranty, generally that in i-elation to "due process of law." Yick Wo v. Hopkins, 118 U. S. 356; Lawton t. Steele, 153 lb. 133 ; In re Sing, 43 Fed. R. 359 ; In re Jacobs, 98 N. Y. 98 ; P. v. Gillson, 109 lb. 389 ; Toledo » Jacksonville, 67 111. 37 ; Long v. S., 74 Md .-)G."); S. s. Dering, 84 Wis. 585 ; Exp. Hodges, 87 Cal. 163. The power to declare invalid municipal ordinances, if unreasonable, rests upon special grounds, not applicable to stale or Federal statutes. Yick Wo V. Hopkins, 118 U. S. 356, 371 ; Mayor v. Radecke, 49 Md.. 317; Coal-Float d. Jeffersonville, 113 Ind. 15. '^Head-Money Cases, 113 U. S. 580; In re Rapier, 143 lb. 110; Fong Yue Tingi). U. S., 149 lb. 698. 'Shafer B. Mumma, 17 Md. 331 ; Commissioners v. Hovey, 74 lb. 303; C. d. ■ Bennett, 108 Mass. 27; Davis ». S., 2 Tex. App. 425. . Chandler, 31 Harr. (Del.) 553. i^Reynolds b. U. S., 98 IT. S. 145 ; Murphy v. Ramsey, 114 lb. 15 ; Davis v. Season, 133 lb. 333 ; Mormon Church v. U. S., 136 lb. 1. "Hennington v. Georgia, 163 U. S 399. 42 Law Of Crimes In General The police power further extends to the enactment of inspec- tion laws' and laws in relation to or regulating the preservation of game and fish/ charges and prices of common carriers and business concerns aftected with a public interest,' sales of goods/ hours of labor,' safety of employees,^ the protection of religious and public meetings and gatherings,^ educational insti- tutions,* mercantile and other business interests.^ Within limits not well defined, the police power extends to the enactment of restraints upon individuals from doing acts injurious apparently only to themselves." By way of preventive justice, the holding, using or mere possession of property that may be used in the commission of crime may be prohibited/' but an enactment punishing the mere association with reputed criminals for the purpose of aiding or abetting them in their unlawful acts was held invalid.'^ § 61. Public Healtli. — The police power extends to the enactment of all suitable regulations for the protection and preservation of the public health and the interdiction of every thing injurious thereto, and the legislature can not divest itself of this right by contract.'' ^Turner v. Maryland, 107 U. S. 38 ; Pittsburgh Coal Co. ». Louisiana, 156 lb. 590. ^Lawton v. Steele, 153 U. 8. 133 ; C. v. Gilbert, 160 Mass. 157 ; Bittenhaus ». Johnston, 92 Wis. 588. ^Budd !). New York, 143 U. 8. 517., *Mangan «. 8., 76 Ala. 60. 'Soon Hing v. Crowley, 113 U. 8. 703, 710; C. v. Hamilton, 130 Mass. 383. "0. ». Bonuell, 8 Phila. 539. 'Myers v. Baker, 130 111. 567. «S. V. Barringer, 110 N. C. 525. 'P. B. Cannon, 139 N. Y. 33 ; 8. v. Kingsley, 108 Misso. 135. I'Ah Lim v. Terr., 1 Wash. St. 156 (smoking opium). But see St. Joseph «. Harris, 59 Mo. App. 122, holding a general prohibition of drunkeness invalid as being "an invasion of the inalienable rights of the citizen." "S. ». Lewis, 134 Ind. 250. "St. Louis V. Roche, 128 Misso. 541. "Fertilizing Co. «. Hyde Park, 97 U. 8. 659 ; Butcher's Co. v. Crescent Co., Ill lb. 746. Constitutional Guaranties And Limitations 43 It extends to the enactment of quarantine regulations;' regu- lations as to the manufacture and sale of articles of food,^ including provisions tending to secure their wholesomeness and purity when supplied to the public ; ^ regulations as to the removal of dead animals;* of refuse and offal;' regulations as to the preservation of the purity of water supplies f as to the prohibition and suppression of anything in the nature of a nuisance or menace to health, to which end the use of private property may be restricted or interfered with;^ regulations of burials and burial places f regulations as to the removal, to hospitals or otherwise, of persons having contagious or infec- tious diseases f the exclusion, removal or destruction of diseased cattle ;'^'' the prohibition or restraint of traffic in poisonous or dangerous drugs." § 62. Regulation Of Occupations. — In the exercise of the police power, the state may restrain or altogether prohibit trades or occupations which are dangerous or injurious to the public, regulate or prohibit the employment of persons in occu- pations specially dangerous or hurtful to or improper for them, on account of age, sex or the like, and may prescribe the quali- fications for the exercise of professions and callings affecting the ^Minneapolis v. Milner, 57 Fed. R. 376 ; Train v. Boston, 144 Mass. 533'. ^Powell V. Pennsylvania, 127 U. S. 678 ; Walker -o. Pennsylvania, lb. 699 ; Plumley v. Massachusetts, 155 lb. 461 (oleomargarine cases). K). 41. Waite, 11 Allen, 264; 0. «. Carter, 132 Mass. 12; S. v. Campbell, 64 N. H. 403; S. ». Smyth, 14 R. I. 100; Johnson ». Simdnton, 43 Cal. 243 {" swiU- milk" ordinance); Stolz v. Thompson, 44 Minn. 271 (adulteration of baking powder) ; Deems v. Mayor, 80 Md. 164 (destruction of impure milk). ^National Fertilizer Co. v. Lambert, 48 Fed. R. 458. sRoehm v. Mayor, 61 Md. 259. °S. V. Walker, 44 N. J. L. 88. ''B. g., prohibiting the keeping of swine in a city. C. v. Patch, 97 Mass. 321. Or the cultivation of rice. Green ». Mayor, 6 Ga. 1. Requiring the sup- pression of welU on private premises S. v. Schlemmer, 43 La. Ann. 1166. sin re Wong Yung Quy, 3 Fed. Ri 264; Brick Church v. Mayor, 5 Cow. 538; Coates V. Mayor, lb. 585 ; Sohler v. Trinity Church, 109 M ass. 1 ; Woodlawn Cemetery ». Everett, 118 Mass. 354 ; Kincaid's App., 66 Pa. St. 411 ; Craig v. First Church, 88 lb. 42. 'Railroad Co. v. Husen, 95 U. S. 465, 471. "Missouri ». Finley, 38 Kans. 550; Newark v. Hunt, 50 N. J. L. 308. "J', g., opium. S. v. Ah Chew, 16 Nev. 50. 44 Law Op Crimes In General safety of the public, especially those requiring learning, skill or technical training, such as medicine and surgerj',' dentistry,^ pharmacy and vending drugs,^ plumbing,* locomotive engineer- ing.^ Legislation may apply to certain particular occupations or kinds of business, pro\'ided it affects equally all persons engaged therein.* § 63. Intoxicating Uquors. — Statutes regulating, restrain- ing or altogether prohibiting the traffic in, or manufacture of, intoxicating liquor fall within the police power of the states.'^ By the great preponderance of authority, " local-option " laws leaving it to counties or other districts of a state to determine by popular vote, whether or not liquor may be sold within their precincts, are upheld as not liable to the objection of amounting to a delegation of legislative power.^ Statutes have been upheld as valid police regulations which authorize municipal police authorities to require bar-rooms and drinking saloons to be temporarily closed, when, in their judg- ment, the public peace and tranquility should require it,^ and which authorize the management of an orphans' home to pro- hibit the manufacture of spirituous liquor within a reasonable distance from the institution.'" ■Dent «. West Virgiuia, 129 U. S. 114 ; Eastman v. 8., 109 Ind. 278 ; Williams «. P., 131 111. 84 ; C. B. PMppin, 70 Mich. 6; Hewitt o. Charrier, 16 Pick. 353; P. v. Hasbrouck, 11 Utah, 291. ^Wilkins v. S., 113 Ind. 514. ^S. V. Porcier, 65 N. H. 42; 8. ■». Heinemann, 80 Wis. 353. *P. ij. Warden, 144 N. Y. 529 ; Singer v. 8., 72 Md. 464. sSmith v. Alabama, 134 U. S. 465. ^Robertsons. P.,20 Color. 279. 'Mugler 11. Kansas, 123 U. 8. 623; Bowman ®. Chicago R. R., 135 lb. 465; Kidd B. Pearson, 128 lb. 1 ; Crowley n. Christensen, 137 lb. 86 ; Tragesser v. Gray, 73 Md. 35. 8Weil V. Calhoun, 35 Fed. R. 865; Fell b. S., 43 Md. 71 ; 8. ■». Pond, 93 Misso. 606; C. v. Bennett, 108 Mass. 37; Gordon «. 8. 46 O St. 607; Peek v. Bloomingdale, 82 Mich. 393; Savage «. C, 84 Va. 619; Gloversville ». Howard, 70 N. Y. 287; S. v. Common Pleas, 36 N. J. L. 73; Locke's App., 73 Pa. St. 491. '8. ■». Strauss, 49 Md. 388, 290-291. i»S. V- Barringer, 110 N. C. 525, 539. Constitutional Guaranties And Limitations 45 Municipal ordinances restricting or prohibiting the sale of intoxicating liquor within the municipal bounds have been upheld as valid police regulations.' § '64. Reg-ulatlons As To Minors. — The constitutionality of statutes as to the care and protection of minors has been universally upheld. Legislation which benefits the child can not be said to infringe upon the rights of parents or guardians. The law recognizes the citizenship of the child and its immedi- ate claim to the protection of the government, whose authority and guardianship are paramount to all private guardianship or authority.^ The only limitations upon the governmental power are those arising out of the constitutional guaranties and safe- guards enacted for the security and protection of all citizens. Thus, an infant can not, under the color of the exercise of the peculiar jurisdiction of the courts over infants, be deprived of property without due course of law,* nor subjected to imprison- ment or punishment for crime without the observance of the regular formalities of criminal procedure.* Statutes authorizing the commitment upon summary pro- ceedings of minors to reformatories and juvenile institutions for guardianship and care are valid, the object being, not punish- ment, but moral training.^ A statute authorizing the detention of minors in a reformatory (instead of an ordinary prison) for crime has been held constitutional." It falls within the exercise of the police power of the states to enact statutes prohibiting the sale of liquor to minors, with or IS. V. Clark, 28 N. H. 176 ; S. v. Freeman, 38 lb. 436. ^In re Moore, 11 Ir. 0. L. N. S. 1, 14; In re Connor, 16 lb. 113, 134; Mercein V. P., 35 Wend. 64, 103 ; Shine v. Brown, 30 Ga. 375. "Jenkins v. Whyte, 63 Md. 437, 433. *C. V. Horregan, 137 Mass. 450 ; S. «. Ray, 63 N. H. 406. 'Exp. Crouse, 4 Whart. 9 ; Roth ». House of Refuge, 31 Md. 339 ; In re Perrier, 103 111. 367; McLean i). Humphreys, 104 lb. 378; Jarrard v. S., 116 Ind. 98 ; Farnham v. Pierce, 141 Mass. 303 ; In re Donohue, 52 How. Pr. 351 ; S. C, 1 Abb. New Cas. 1 ; Milwaukee School v. Supervisors, 40 Wis. 338 ; Prescott V. S., 19 O. St. 184; House of Refuge v. Ryan, 37 lb. 197 ; Exp. Ah Peen, 51 Cal. 280 ; Exp. Liddell, 93 lb. 633 ; Reynolds o. Howe, 51 Conn. 473 ; Whalen v. Olmstead, 61 lb. 373. «P. V. Reformatory, 148 111. 413. 46 Law Of Crimes In General without the parental consent;' regulating the kinds of employ- ment^ and hours of labor^ of minors ; prohibiting their admis- sion to certain places, e. g., saloons.* § 65. ^licenses And Taxes. — The states may require licenses and impose taxes in the matter of traffic conducted within their territory,^ subject to the limitations, that no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for execu- ting its inspection laws, nor lay any duty on tonnage f that the state taxation may not interfere with interstate commerce f that no discrimination be made against citizens of other states.* Acts conceded to be regulations of interstate commerce, yet local in their character, may be sustained by reason of the absence of congressional legislation in relation thereto.' The mere taxation of property engaged in foreign or interstate com- merce is not forbidden." The negotiation of sales of goods which are in one state for the purpose of introducing them into another is interstate commerce." But when goods are sent from one state to another for sale, or in consequence of a sale, they become part of its general property and amenable to its laws, provided no discrimination be made against them as goods from another state and that they be not taxed by reason of being brought from another state, but taxed only in the usual way as other goods are ; and a license may be required of pedlars of goods brought from another state, provided no discrimination be made between residents or products of the taxing state and other states.'^ 'S. B. Clottu, 33 Ind. 409; S. v. Lawrence, 97 N. C. 492. 2P. V. Ewer, 141 N. Y. 139. ^0. ». Hamilton, 130 Mass. 383. "S. ®. Austin, 114 N. C. 855. 'S. ®. Applegarth, 81 Md. 393. 'Const. U. S., art. 1, § 10. 'lb., I 8. 8Ib., art. 4, § 3, sQulf Railway v. Hefley, 158 U. S. 98. "Erie R. R. v. Pennsylvania, 158 U. S. 481 ; S. ». Applegarth, 81 Md. 398. "Robins o. Shelby District, 130 U. S. 489, 497. i^Emmert v. Missouri, 156 U. S. 396. Constitutional Guaranties And Limitations 47 If the size of a package brought from another state is adapted for the retail trade, so that " breaking bulk " is not necessary to reduce the goods into the common mass and lit them for retail trade, the traffic therein is not interstate.' IntoodeatiJig liquors taken into any state or ;territory are sub- jected to the laws thereof enacted in the exertion of its police powers upon their arrival, not exempting original packages.^ Commerce carried on entirely within the limits of a state and not extending to or affecting other states is not affected by the Federal constitutional provision above cited.^ § 66. Ex Post Facto l.aws. — The Federal* and state' leg- islatures are prohibited from passing ex posi! /acto laws. An ex fost facto law is one which makes criminal or punishable an action not criminal or punishable at the time of commission — or aggravates or makes greater a crime than it was at the time of commission — or inflicts a greater punishment than that pro- vided at the time of commission — or so alters the rules of evidence, that less or different testimonj' is sufficient to convict than was required at the time of commission — or, in short, in relation to the offense or its consequences, alters the situation of the party to his disadvantage.^ A provision for solitary confinement of a prisoner under sen- tence of death and keeping secret from him the day of his execution is an imposition of punishment.'' >C. ■». Paul, 170 Pa. St. 284. ^Act of Aug. 8th, 1890, 1 Suppl. U. S. Rev. Stats. 779. 3Geer «. Connecticut, 161 U. S. 519. 'Const. U. S., art. 1; ? 9. 'lb., § 10. «Calder v. Bull, 3 Dall. 386, 390 ; Fletcher v. Peck, 6 Cranch, 87, 138; Cum- mings B. Missouri, 4 Wall. 377 (annexing condition to exercise of lawful calling) ; Pierce v. Carskadon, 16 lb. 234 (annexing condition to grant of rehearing of a cause) ; U. S. b. Fox, 95 U. S. 570; Burgess v. Salmon, 97 lb. 381 ; Kring u. Missouri, 107 lb. 231 ; Duncan v. U. S., 152 lb. 337, 383. Statute depriving accused of right of finding of a jury upon question of amount of punishment held ex post facto. Marion v. S., 16 Neb. 349. One convicted before the passage of an act changing the penalty to a lighter one may yet, after the enactment, be sentenced to the former penalty. Beard v. S., 74 Md. 180. 'Exp. Medley, 134 U. S. 160. 48 Law Of Crimes In General Statutes prescribing different modes of procedure and differ- ent tribunals, but leaving untouched all the substantial legal safeguards of the accused, are not within the constitutional prohibition.' A change of the place of trial is not included within the meaning of an ex post facto law.^ A statute which, by its terms, may be retrospective as well as prospective in its operation, may be held inoperative as to crimes committed before, and valid as to those committed after, its passage.^ § 67. Bills Of Attainder The Federal as well as state legislatures are prohibited from passing bills of attainder."* A bill of attainder is a legislative act which inflicts punish- ment without a judicial trial: if the punishment is less than death, the act is termed a bill of pains and penalties ; and, within the meaning of the constitution, bills of attainder include bills of pains and penalties.'' § 68. Jury Trial. — The regular common-law method of trial of issues of fact in criminal cases, except cases of summary proceeding," is by jury. The right to such trial is guaranteed by the FederaF and various state constitutions. It cannot be abridged by legislation.* It means, that the accused cannot be adjudged guilty in the first instance, without having been tried by a jury.s Jury trial means a trial, in all material and substantial aspects, as defined by the common law," i. e., by a body of twelve men, described as upright, well qualified and la^vful men, disinterested and impartial, not of kin nor personal dependents of either of the parties, having their home within the jurisdictional limits of 'Gibson ». Mississippi, 163 U. S. 565. ^Gut V. Minnesotsl, 9 Wall. 35; Cook v. U. S., 138 U. S. 157. 'Jaehne v. New York, 138 U. 8. 189. *Const. U S., art. 1, E 9, 10. 'Cummings v. Missouri, 4 Wall. 377, 333-335. ^Ante, § 56. 'Art. 3, ?3; Amend. 5,6. 8P. v. Baird, 11 Hun, 389 ; Work «. 8., 3 O. St. 396. "Callan ». Wilson, 137 U. 8. 540. "S. v. McClear, 11 Nev. 39; Work «. S., 3 O. St. 396. Constitutional Guaranties And Limitations 49 the court, drawn and selected by officers free from all bias in favor of or against either party, duly impaneled under the direc- tion of a competent court, sworn to render a true verdict according to the law and evidence given them, who, after hear- ing the parties and their evidence, receiving the instructions of the court relative to the law involved in the trial and delibera- ting, when necessary, apart from all extraneous influences, must return their verdict upon the issues submitted to them.^ Statutes authorizing the submission of a case to the determi- nation of the court are valid ;^ but, in the absence of statutory provisioai, the parties can not by consent confer upon the court power to determine the facts.^ § 69. Self-Crimination. — N'o person shall be compelled in any criminal case to be a witness against himself.* This provision, which is in affirmance of the common law, and is to be broadly and liberally construed, not only prohibits the use of inquisitorial proceedings, but forbids, that any j)erson under examination as a witness in any proceeding, should be compelled to give testimony tending to show the commission of a crime by him or to expose him to punishment in any form of proceeding upon a criminal charge.^ It has been held, not to prevent disclosure of criminal conduct, if a statute affords abso- lute immunity against future prosecution, or if the offense has been pardoned, or is barred by limitations.* The unlawful seizure of private books or papers to be used in evidence against the owner is a violation of the privilege,'' and courts will not grant the prosecution an order to inspect the defendant's books.^ In order to excuse a witness from answering, it must ordi- narily appear to the court, that there is reasonable ground to 'Opinion of Justices, 41 N. H. 550. ^Hallinger v. Davis, 146 U. S. 314; Belt v. U. S., 4 App. D. C. 35. 'S. V. Holt, 90 N. C. 749 ; Harris v. P., 128 HI. 585. ♦Const. U. S. Amend. 5. =Boyd V. U. S. lie U. S. 616; Counselman «. Hitchcock, 143 lb. 547; Lees«. U. S., 150 lb. 476 ; Exp. Gould, 99 Cal. 360 ; S. v. Young, 119 Misso. 495, 530-533. «Brown «. Walker, 161 U. S. 591. ■•Bojdv. U. S., 116 U. S. 616; S. a. Davis, 108 Misso. 666. sR. ». Cornelius, 3 Str. 1310. 50 Law Of Crimes In General appfeliend danger to him from his being compelled to answer ; but, if that fact be once made apparent, great latitude should be allowed to him in judging the effect for himself;^ and even though he has disclosed part of a criminal transaction, he may •decline to answer further.^ Compelling the accused, when on trial, to stand up, in order to be identified, has been held not to be in violation of the guaranty against self-crimination f but no person can be com- pelled to submit to a personal examination.* If the accused elects to become a witness on his own behalf, he may be cross-examined in the same manner as other wit- nesses,''* but he can not be made a witness against himself by carrying his cross-examination beyond the limits prescribed as to witnesses generally.^ § 70. Confronting "With 'Witnesses. — In all criminal prosecutions the defendant has the right to be confronted with the witnesses against him.'' This provision means, that living witnesses must be openly examined and cross-examined in the presence of the accused at the trial of the cause,' to the exclusion of evidence given in secret, or mere hearsay, or depositions under a commission to take testimony.' It does not exclude other evidence recognized and sanctioned by law as fit and appropriate means of establish- ing the truth of the charge, such as documentary evidence,'" 'Exp. Reynolds, 15 Cox C. C. 108; P. v. Forbes, 143 N. Y. 319 ; Chesapeake Club V. S., 63 Md. 446. ^Chesapeake Club v. S., 63 Md. 446, 457. Contra: Browu v. Walker, 161 U. S. 591, 597. sp. «. Gardner, 144 N. Y. 119. "Union Pacific ». Botsford, 141 U. S. 350. ^Brown ». Walker, 161 U. S. 591, 597-598. «P. ». McGungil, 41 Cal. 439. ••Const. U. S., Amend. 6. «S. V. Thomas, 64 N. C. 74. 'Johns ®. 8., 55 Md. 350, 360-361 ; 8. «. Thomas, 64 N. C. 74 ; Tucker ». P. 133 111. 583, 593 (depositions not allowed). '"Johns 1). S., 55 Md. 350, 360-361 ; Tucker v. P., 133 111. 583, 593-593; P. v. Jones, 34 Mich. 314, 335. Constitutional Guaranties And Limitations 51 dying declarations,^ statements of deceased witnesses formerly examined in the presence of the accused.^ If witnesses are kept away by the wrongful procurement of the accused and their evidence is supplied in any other lawful way, there is no violation of the guaranty.* § 71. Jeopardy. — No man can be twice put in jeopardy for the same offense.* A person is said to be in jeopardy, when he is placed on trial before a court of competent jurisdiction. Where there has been a final verdict of acquittal or conviction,' though not fol- lowed by judgment,* the party can not be retried, unless the trial was a nullity ; but it is immaterial, that the proceedings were defective (voidable).' It is generally held, that a writ of error or appeal will not lie after judgment for the defendant.* The accused is ordinarily said to be placed on trial when the jurors have been sworn in his case.^ A party is not said to have been in jeopardy, if the indictment or accusation is quashed, upon demurrer or otherwise ;^'' if there has been no valid and sufficient verdict;" if judgment is arrested, reversed or set aside at his instance, though it be for error in the verdict or sentence itself;'^ if the jury fail to agree, or judges, acting as triors of facts, are equally divided in opinion." iPosi, 2287. ^Mattox i>. U. S., 156 U. S. 237. Reynolds «. U. S., 98 U. S. 145, 158. 'Const. V. S., Amend. 5. 54 Bl. Comm. 335-336. «U. S. V. Ball, 163 U. S. 662. ■"lb. «U. 8. V. Sanges, 144 U. S. 310, 818 (cases cited). '^Post, ?§236, 240. "Posf,?§ 177, 178, 180. "Ford V. a., 13 Md. 514, 549. "In re Bonner, 151 U. 8. 242; U. S. v. Harmon, 68 Fed. R. 472. Contra as to error in sentence. McDonald v. S., 45 Md. 90, 98-99. "League v. S., 36 Md. 257. 52 Law Of Crimes In General A nolle -prosequi is not an acquittal.' A discharge by an exam- ining magistrate is not an acquittal :^ it is no bar to a subsequent hearing or an indictment.^ The rejection or ignoring of a bill of indictment by a grand jury is not an acquittal.* If there are several counts in an indictment, and the verdict is guilty as to some and silent as to others, it operates as an acquittal of the counts of which it takes no notice.' K a verdict of guilty amounts to an acquittal of certain counts or of certain degrees of guilt, and the accused obtains a new trial, he can not afterwards be convicted of the matter of which he has been thus acquitted.* Two charges are said to refer to the same offense, if they are based upon the same criminal act and can be established by the same evidence.'' The same act or series of acts may be an offense against and punishable by different governments, as the United States and a state,* or a state and a municipality.^ An acquittal or conviction does not render facts once given in evidence inadmissible upon another charge against the same defendant.'" ^Post, 2309. ^3 Hale, 346; Reg. ». Waters, 13 Cox C. C. 390. »C. V. Hamilton, 129 Mass. 479; Nicliolsoii v. S., 73 Ala. 176; Exp. Crawlin, 93 lb. 101 ; Marston «. Jenness, 11 N. H. 156 ; Davis «. S., 6 Blackf. (Ind.) 494 ; Gaflney ». Circuit Judge, 85 Mich. 138; S. v. Jones, 16 Kans. 6GH; McCann v. C, 14Gratt. CVa.) 570. *Pos<,?§ 128, 139. 'Dealey v. TJ. S., 152 U. S. 539; Stuart ». C, 28 Gratt. (Va.) 950. «S. ■». Martin, 30 Wis. 316; S. v. Hill, lb. 416; S. v. Belden, 33 lb. 120; S. e. Mailing, 11 Iowa, 339 ; S. v. Ross, 39 Minn. 32. Contra : S. v. Bradley, 67 Vt. 465. 'In re Nielsen, 131 U. S. 176; C^ «). Robinson, 136 Mass. 359 ; P. v. Stephens, 79 Cal. 428 ; Carson v. P., 4 Col. App. 436. Conviction of assault and battery held no bar to subsequent prosecution • for homicide. Hopkins v. U. S., 4 App. D. C. 430. 8Cross 0, North Carolina, 132 U. S. 131. 'Shafer v. Mumma, 17 Md. 331 ; Kemper v. C.,85 Kent. 319; Hawkins v. P., 106 111. 638 ; Preston v P., 45 Mich. 486 ; B. ». Lee, 39 Minn. 445 ; Hughes v. P.', 8 Color. 536. '«U. S. V. Randenbush, 8 Pet. 388 ; Bell v. S., 57 Md. 385. Constitutional Guaranties And Limitations 53 An acquittal or conviction procured through the fraud of the defendant is no bar to a subsequent prosecution.^ One is not said to be twice put in jeopardy, if, by reason of his having been before convicted of a particular offense, a severer punishment is imposed upon a subsequent conviction.^ § 72. Cruel And Unusual Punishment. < — Cruel and unusual punishments are prohibited by the FederaP and various state constitutions. The prohibition may be said to include all punishments involving torture and those degrading punishments vs^hich, in the particular locality, had become obsolete at the time of the adoption of the constitution containing the prohibition and punishments so disproportioned to the offense as to shock the sentiment of the community,* biit not punishments that are merely severe.'' It has been held to extend to excessive fine and imprisonment,' but not to the infliction of stripes.^ § 73. other Guaranties. — Other guaranties applicable to criminal prosecutions are contained in the Federal and various state constitutions. Principal among them are the requirement of a presentment or indictment in certain cases f the right to be informed of the " nature and cause" of the accusation;" the right to a copy of iC. V. Dascom, 111 Mass. 404 ; S. ». Swepson, 79 N. 0. 632 ; S. s). Little, 1 N. H. 357; McFarland «. S., 68 Wis. 400; S. a. Simpson, 38 Minn. 66; Halloran v. S., 80 Ind. 586 ; Warriner v. S., 3 Tex. App. 104 ; C. v. Johnson, 3 Va. Gas. 501 ; S. v. Colvin, 11 Humph. (Tenn.) 599; S. ». Brady, 1 Swan (Tenn.), 34; S. v. Cole, 48 Misso. 70. Held otherwise, if public prosecuting attorney a party to the fraud. Shide- ler«. S., 139 Ind. 533. =iMoore v. Missouri, 159 TJ. S. 673. ^Const. U. S., Amend. 8. *Wilkerson «. Utah, 99 U. S. 130; In re Kemmler, 136 lb. 436, 447; In re Bayard, 35 Hun, 546, 549. ^Mitchell V. S., 83 Md. 537. «S. V. Driver, 78 N. 0. 433. 'Foote V. 8., 59 Md. 364; Garcia «. Terr., 1 N. Mex. 415. ^Post, I 86. ^Posi, I 141. 54 Law Of Crimes In General the indictment' and list of witnesses f compulsory process for witnesses f presence of the accused at the trial (implied) ;* the right to a speedy and public trial f the right to be represented by counsel.^ ^Post, 1 198. ^Pm«, I 199. 'Po««, I 201. ''PosU I 195. *Po««, §§ 193-194. ^Po»t, I 303. Criminal Jurisdiction 55 PART II. CRIMINAL PROCEDURE. CHAPTER VII. CRIMINAL JURISDICTION. § 74. A.S To Person — The general rule is, that all persons within a country are subject to its criminal laws.^ Friendly foreign sovereigns and their attendants, their ambas- sadors and other diplomatic agents, all public ministers and the attendants, household and retinue of them are exempt from arrest, entry of their houses, or subjection to the processes of the laws of the country' visited.^ Troops and crews of foreign armies and navies entering the territory or ports of a. friendly power open to their reception fall within the same exemption.' Ships of war belonging to foreign nations are exempt from the local jurisdiction of countries whose ports they are permitted to enter.* Foreign merchant vessels and their crews are not thus exempt.^ § 75. As To Place. — Offenses against the laws of a govern- ment are punishable by it only when committed within its territory." '1 Hale, 59 ; P. v. McLeod, 1 Hill, 377, 406. n Kent. Comm. 88; U. S. Rev Stats. ?? 4063-4066; The Parlemeut Beige, 5 P. D. 197; Mighell ». Sultan, 1894, 1 Q. B. (C. A.) 149 ; Musurus Bey v. Gadban, 2 lb. 353; In re Baiz, 135 U. S. 403. 'Schr. Exchange v. McFaddon, 7 Cranch, 116. ■•The Constitution, 4 P. D. 39 ; The Parlement Beige, 5 lb. 197. 5TJ. S. V. Diekelman, 93 U. S. 520; In re Wildenhus, 120 lb. 1 ; U. S. m. Rodg- ers 150 lb. 349, 360; 0. v. Luckett, 14 Phila. 363. «S. V. Cutshall, 110 N. C. 538 ; S. «. Hall, 114 lb. 909. But it has been held, that a state legislature may provide for the punish- ment of an offender apprehended within its jurisdiction, if a criminal act committed by him elsewhere has resulted in injury to person or property within the particular state. S. v. Caldwell, 115 N. C. 794. 56 Criminal Procedure Between nations, territorial jurisdiction extends over the open sea adjacent to the coasts of a country to such distance as is necessary for its defense and security', the minimum being one marine league from the coast, measured from low-water mark.' Vessels of a nation on the high seas are a portion of its territory, and offenses committed on them are punishable by its government.^ Piracy and other offenses against the law of nations committed on the high seas are punishable by all nations.' As between the United States and the states, offenses com- mitted upon the high seas and upon navigable waters out of the jurisdiction of any particular state are punishable by the United States.* Offenses committed on navigable waters within state limits are punishable by the respective states.^ If a navi- gable river separates neighboring states, the middle of the navigable channel (Thalweg) forms the line of demarcation between the two jurisdictions." Offenses, at common law, are punishable in the particular county where committed/ The tribunals of a newly erected county have jurisdiction over offenses committed prior to its creation within its boundary lines.* Crimes against the United States committed within state territory must be prosecuted within the state and district of their commission." An offense is said to be committed in the place where it is effected, regardless of the actual presence of the perpetrator." ^1 Kent Comm. 30 ; Manchester ». Massachusetts, 139 TJ. S. 240. ^Wheaton Int. L., 8 ed., §106 ; Reg. v. Keyn, 13 Cox C. C.403; Reg. v. Carr, 15 lb. 129 ; U. S. ®. Rodgei-s, 150 U. S. 349. ^Wheaton Int. L., 8 ed., ? 107 ; U. S. v. Klintock, 5 Wheat. 144. *Const. U. S., art. 1, §8; lb., art. 3, § 3; U. S. v. Rodgers, 150 U. S. 349; St. Clair e. U. S., 154 lb. 134. sp. «. Welch, 141 N. Y. 366. «Iowa V. Illinois, 147 U. 8. 1. Cf. S. v. Metcalf, 65 Mo. App. 681. '4 Bl. Comm. 303. sp. V. Stokes, 103 Cal. 193. 'Const. U. S. art 3, ?3; lb., Amend. 6; Cook b. U. S., 138 U. S. 157, 181. '"In re Pallisser, 136 TJ. S. 357; U. S. v. King, 9 Mackey, 404; S. v. Morrow, 40 S. C. 331 ; S. ». Hudson, 13 Mont. 113 ; Duckett v. 8., 93 Ga. 415. Criminal Jurisdiction 57 Homicide is said to be committed in the place where the fatal blow is struck or injury inflicted.^ § 76. Jurisdiction Of State Courts. — The superior courts of general jurisdiction of the states exercise the common-law powers of the Court of King's Bench, except as modified by statutes.^ This Court had cognizance of all criminal causes. It kept all inferior jurisdictions within the bounds of their authority, and might either remove or prohibit their proceedings. When in session in any county, it superseded all inferior courts. It protected the liberty of the subject by speedy and summary interposition. Its judges were the supreme conservators of the peace throughout the kingdom,^ The Court, or any judge thereof in vacation, might bail for any crime.* § 77. Jurisdiction Of Federal Cpurts. — The jurisdiction of the Federal courts arises solely out of the constitution of the United States and the laws enacted in pursuance thereof.'^ It extends to all cases arising under the Federal constitution, statutes and treaties,* including cases affecting or arising out of the powers necessarily incident to the execution of the functions of the Federal government.'^ The judicial power of the Federal government embraces all cases of admiralty and maritime jurisdiction^' all cases relating to piracies and felonies committed on the high seas,' all cases arising in buildings and places under the exclusive jurisdiction •U. S. 1). Guiteau, 1 Mackey, 498 ; Stout ®. S., 76 Md. 317 ; Debney v. S., 45 Neb. 856. "Biscoe ». S., 69 Md. 294, 296. »3 Bl. Comm. 42; 4 lb. 265. *4 lb. 299. 5U. S. «. Worrall, 2 Dall. 384; U. S. a. Hudson, 7 Cranch, 32; U. S. v. Cool- idge, 1 Wheat. 415. fConst. U. S., art. 3,? 2. 'Exp. Neagle, 135 U. S. 1. sCoiist. U. S., art. 3, ?3; U. S. Rev. Stats. |5339. sConst. U. S., art. 1, § 8; St. Clair v. U. S., 154 U. S. 134. 58 Criminal Procedure of Congress' and cases arising in the seat of the government^ and the territories.^ Certain cases may be removed from state to Federal courts.^ By virtue of treaty provisions and statutes, citizens of the Ignited States may be tried by consular tribunals of the Uuited States for offenses committed in certain foreign countries.^ Original jurisdiction in criminal cases is ordinarily vested in the District and Circuit Courts, the former having cognizance of crimes not capital," the latter exclusive cognizance of capital crimes and concurrent jurisdiction with the District Courts in other criminal casesJ Review in criminal cases of the decisions of Circuit Courts may be had as follows : Appeals or writs of error lie directly to the Supreme Court of the United States in cases in which the jurisdiction of the court is in issue ; in cases of conviction of capital or otherwise infamous crimes ; in cases involving constitutional questions or the con- struction of treaties.' In other criminal cases, appeal or writ of error lies to the Circuit Courts of Appeals, whose decisions are final, except that they may be reviewed by the Supreme Court in cases in which certiorari lies, and that the Circuit Courts of Appeals may certify to it questions for its opinion.' The Supreme Court of the United States also has appellate jurisdiction in certain special cases where the judges of a Circuit iConst. U. S., art. 1, ?8. As to jurisdiction upon lands ceded to United States, see U . S. Rev. Stats. J. 'iSSl ; In re Kelly, 71 Fed. R. 545. ^Const. U. S., art. 1, §8. 'lb. art. 4, g 3. *Post, §78. 'In re Ross, 140 U. S. 453. «U. S. Rev. Stats. §563. 'lb. i t)39. Indictments and proceedings may be remitted for trial from Circuit to Dis- trict Courts and vice versa. U. S. Rev. Stats. §§1037-1038 Indictments for capital offenses presented to a District Court must be removed to the next session of the Circuit Court of the same district for trial. U. S. Rev. Stats. § 1039. ^36 Stat. L.,ch. 517, §5. 'lb. § 6. Criminal Jurisdiction 59 Court certify to it a division of opinion ;^ on writ of error to the highest court of a state, where a constitutional question or the construction of a treaty ie involved;^ in cases of habeas corpus.^ Special provisions obtain as to review of the judgments of territorial courts.* § 78. Removal To Federal Courts. — The following classes of criminal cases, commenced in the state courts, may, upon petition of the defendants, be removed for trial to the Circuit Courts of the United States : 1. Prosecutions against any person who is denied, or can not enforce, in the judicial tribunals of the state, or part of the state, where the prosecution is pending any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States,^ or — 2. Against any officer, civil or military, or other person, for any arrest, imprisonment, or other trespasses or wrongs, made or committed by virtue, or under color, of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act, on the ground, that it would be inconsis- tent with such law.* 3. Prosecutions against any officer appointed under, or acting by authority of, any revenue law of the United States, or any person acting under, or by authority of, any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title or authority claimed by any such officer or other person under any such law, or — ^But not in criminal cases. U. S. v. Hewecker, 164 U. S. 46. 'U. S. Rev. Stats. §? 709-710; Written «. Tomlinson, 160 V. S. 231 ; Kohl v. Lehlback, lb. 393. 'U. S. Rev. Stats. § § 763-764. ••Folsom ». U. S., 160 U. S. 121. ^U. 8. Rev. Stats, ? ? 641-646 ; 1 Suppl. U. S . Rev. Stats, chs. 137, 866 ; Murray Louisiana, 163 U. S. 101. 6U. S. Rev. Stats. ?641 ; Strauder ». West Virginia, 100 U. S, 303; Virginia V. Rives, lb. 313. 60 Criminal Proceddke 4. Against any person holding property or estate by title derived from any such officer, where the suit affects the validity of the revenue law, or — 5. Against any officer of the United States or other person, on account of any act done under the provisions of Rev. Stats., title XX\"I, "The Elective Franchise," or on account of any right, title or authority clainaed by such officer or other person under any of such provisions.^ § 79. State Jurisdiction Under Federal L. Leavitt, 52 N. H. 481; Hall «. Hall, 6 Gill & Johns. (Md.) 386, 409. n Russ. Cr., 9 ed., 839; West s. Cabell, 153 U. S. 78; Lewin ®. Uzuber, 65 Md. 451 ; C. V. Grotty, 10 Allen, 403 ; Buzell v. Emerton, 161 Mass. 176 ; Luck' «. Heisler, 87 "Wis. 644. 83 Hale, 105 ; Brady «. Davis, 9 Ga. 73. Aerbst 67 courts;^ by a coroner against one accused of homicide upon inquisition;^ by various tribunals and officers designated by statutes. § 91. Upon 'What Evidence. — In order to justify the issuing of a warrant of arrest, there must be probable cause of guilt. Upon application for a warrant, the magistrate should examine the party applying on oath as to the alleged crime and the causes of suspicion against the person accused, the magis- trate being the judge of those circumstances that should induce the granting of the writ.^ Under the terms of the Federal constitution, no warrant may issue but upon probable cause, supported by oath or affirmation, and particularly describing the person to be seized.* This pro- vision is not applicable to the states." For a crime committed in his presence, a magistrate may cctfnmit immediately without requiring a charge to be laid." § 92. To ■Whom Directed. — A warrant regularly should be directed to a public officer or officers, not to a private person, especially not to the party complaining ;'' yet process may be directed to a private person, who will then be entitled, but not compelled, to execute it* Warrants of justices of the peace should be directed to the constable, who is the proper officer to a justice of the peace and bound to execute his process.' At the strict common law, if a warrant is directed to all constables, no one can act under it out of his precinct; but if it is directed to a particular constable by '1 Hale, 578-579 ; 3 lb. 5-6; 4 Bl. Comm. 391 ; S. «. Glenn, 54 Md. 573, 597. n Bl. Comm. 348. '2 Hale, 110 ; 1 Chitty Cr. L. 33. ♦Const. U.S., Amend. 4. 'Smith ». Maryland, 18 How. 71, 76. «R. V. Wilkes, 3 Wils. 150, 158. 'This abuse was especially guarded against in the ancient oath of office of justices of the peace, who were sworn not to direct any warrant to the par- ties, but only to an officer or some indifferent person. Burn Just., Justice of the Peace, 3 ; 3 Ourw. Hawk., ch. 8, § 30. ^C. ». Keeper, 1 Ashm. (Pa.) 183; Kelly «. Parmalee, 15 Conn. 260,365; Meek v. Pierce, 19 Wis. 300. »2 Hawk., ch. 10, §35; Reg. v. Wyatt, 2 Ld. Raym. 1189; S. C, 1 Salk. 380. Cf. 1 Hale, .5'^!. 68 Criminal Procedure name he may execute it anywhere within the jurisdiction of the magistrate.' § 93. Requisites And Form. — The requisites of a war- rant of arrest are ,2 that it be signed by the magistrate issuing it ; that it set forth the time and place of making it, the charge, or offense, and be directed to the proper officer or officers (by name, or by official designation), requiring him or them to bring the accused, either^ generally before any magistrate of the county, or specially before the magistrate issuing it. The full name, or, if it be unknown, a statement of the fact and a description of the person to be apprehended, must be given.* A seal is usual, but not necessary.^ A warrant of arrest should be in form substantially as fol- lows: State of , County, to wit : To any Constable of said County : Whereas complaint has been made before me, the subscriber, one of the justices of the peace in and for said County, upon the information and oath of A. B., who charges, that C. D., on the day of , in the year 18—, in the said County, did assault and beat him, the said A. B., you are, therefore, commanded forthwith to apprehend the said C. D. and bring him before the subscriber, or some other justice of the peace of said County, to be dealt with according to law. Hereof fail not, and have you there this warrant. Given under my hand and seal, this day of , in the year 18 — ' [Seal.] § 94. Execution. — A warrant or other precept, except in the case of the sheriff, who acts by deputies, must be executed by the person named therein, or some one assisting him and in his presence, actual or constructive.* The officer should have the warrant in his possession at the time of arrest.' A known officer is not, in strictness, bound to exhibit his warrant when '1 Chitty Cr. L. 48 ; R. v. Chandler, 1 Ld. Raym. 545. ■'i Bl. Comm. 290-391. 'Foster's Case, 5 Rep. 59; C. v. Wilcox, 1 Cush. 503. 41 Russ. Cr., 9 ed., 839 ; West v. Cabell, 153 U. S. 78 ; C. v. Crotty, 10 Allen, 43 ; Harwood «. Siphers, 70 Me. 464. 'Starr v. V. S., 153 U. S. 614. n Chitty Cr. L. 48 ; 1 Russ. Cr., 9 ed., 825-836. 'Codd V. Cabe, 13 Cox C. C. 302; P. v. McLean, 68 Mich. 480; Webb e. S., 51 N. J. L. 189 ; Muscoe v. C, 96 Va. 443, 448. Arrest 69 he arrests, but should inform the party, that he arrests him by virtue of a warrant, designating the substance of the charge, and, after the party has submitted, should, if requested by him, exhibit the warrant.^ The arrest may be made at night as well as by day and at whatever hour the x)fficer deems expedient.^ It may be made on Sunday.^ A warrant of arrest continues in force until fully executed.* When it has been executed, the officer must make return thereof.' The return is " cepi" (i. e., cepi corpus,! have taken the body). After the return, there can ordinarily be no arrest without new process.* § 95. Arrest By Officers Wlttaout A ^»^arrant. — Officers may arrest without a warant — 1. Persons who commit an offense of any grade in their view,^ but not for past misdemeanors,' unless, perhaps, on "quick pursuit.'" The offense, according to some authorities, must be of such a nature as to amount to a breach of the peace. ^'' An offense is said to occur in the view of an officer, when any of his senses afford him knowledge, that it is being committed.'^ 2. "Mght-walkers, " ?. e., persons abroad at night for some wicked purpose,'^ upon reasonable suspicion of criminal designs.'* n Chitty Or. L. 50-51 ; Countess of Rutland's Case, 6 Rep. 73 ; Mackalley's Case, 9 lb. 65; S. v. Townsend, 5 Harr. (Del.) 187; S. «. Phinney, 42 Me. 384; Robinson v. S., 93 Ga. 77. ^Mackalley's Case, 9 Rep. 65; S. «. Smith, 1 N. H. 346; Wright v. Keith, 34 Me. 158, 163. 'Mackalley's Case, 9 Rep. 65; Blaney «. S., 74 Md. 153; Pearce v. Atwood, 13 Mass. 334; Keith e. Tuttle, 38 Me. 336. n Chitty Cr. L. 49-50 ; R. ii. Williams, 1 Moody, 387. "Tubbs ». Tukey, 3 Cush. 438. t «S. V. Queen, 66 N. C. 615. 'B. O. R. R. V. Cain, 81 Md. 87. sScott ». Eldridge, 154 Mass. 35 ; Muscoe v. C, 86 Va. 443. 9Reg. 1). Light, 7 Cox C. C. 889. '»4B1. Comm. 393; P. ■». Pratt, 33 Hun, 300; C. v. Wright, 158 Mass. 149; Quinn v. Heisel, 40 Mich. 576. "Dilger ». C, 88 Kent. 550; Ramsey ». 8., 93 Ga. 53, 63. "Dalt., ch. 65 ; Watson v. Carr, 1 Lewin, 6. i'4 Bl. Comm. 393; 1 Russ. Cr., 9 ed., 808; Miles v. Weston, 60 111. 361. 70 Criminal Procedure 3. Persons whom they reasonably suspect of felony, whether a felony has in fact been committed, or not.* 4. In cases of affrays, officers may not only arrest and carry the offender before a magistrate, but may, upon their own authority, imprison him, for a reasonable time, till the heat be over.^ 5. If one menace to kill, maim or beat another, and imme- diate complaint be made to an officer, he may arrest the offender and carry him before a magistrate, although he witnessed not the breach of the peace.^ Statutes authorizing officers to arrest without a warrant for misdemeanors not committed in their presence have, under various constitutional provisions, been held void.* § 96. Arrest Bj- Private Persons W^lthout A War- rant. — Private persons may arrest without a warrant — 1. Persons whom they reasonably suspect of felony that has been actually committed.' 2. Persons committing a felony or giving a dangerous wound in their presence.^ They may arrest and restrain the contestants in cases of affrays.'^ § 97. Hue And Cry. — Hue and cry is the ancient com- mon-law method of pursuing felons and persons having in- flicted a dangerous wound from which death was likely to ensue. When levied in the regular mode by the constable, persons 'Allen V. London Railway, 11 Cox C. C. 631 ; Rohan o. Savin, 5 Cush.. 281 ; S. V. McNinch, 90 N. C. 695 ; B. O. R. R. «. Cain, 81 Md. 87. H Bl. Comm. 145; 1 Russ. Cr., 9 ed., 410; S. «. Deacon, 8 S. & R. 47 ; B. O. R. R. V. Cain, 81 Md. 87. 33 Hale, 88 ; Anonymous, Poph. 13; S. v. Sims, 16 S. C. 486, 494. ■"In re Killam, 55 Kaiis. 700 (cases cited). , H Bl. Comm. 393 ; Ashley's Case, 13 Rep. 90 ; Allen v. London Railway, 11 Cox C. C. 621, 625; Broolis v. C, 61 Pa. St. 353. «4 Bl. Comm. 392-393 ; B. O. R. R. v. Cain, 81 Md. 87. '4 Bl. Comm. 145; 1 Russ. Cr., 9 ed., 409 ; Phillips v. Trull, 11 Johns. 486; B. O. R. R. V. Cain, 81 Md. 87. Any person may restrain one whom he sees on the point of committing treason, felony or any act that would manifestly endanger the life of another. 3 Hawk., ch. 12, § 19. Arrest 71 joining were under the same indemnity as if acting under a warrant of arrest.^ § 98. Arrests In Certain Other €ases. — Arrest may be made by any person, upon the verbal command of a justice of the peace, of one guilty of felony or breach of the peace in his presence;^ but ordinarily a magistrate has no authority to detain without a regular charge.^ It was anciently held, that in the case of notorious cheats going about the country with false dice, actually caught play- ing with them, and for "offenses in like manner scandalous and prejudicial to the public," the arrest of the offenders by any person may be justified.* A person's insanity justifies his arrest without process in a case of reasonable neeessity.^ It has been held in England (apparently upon common-law grounds), that an officer may clear a public house of persons unlawfully therein and creating a disturbance of the peace and arrest those resisting him.* § 99. Irregularity And IIleg:allty — The right to detain and proceed against an offender is not affected or impaired by irregularity or illegality in making the arrest. The wrong that may have been- done to an alleged offender by the use of illegal and wrongful means in effecting his arrest — e. g., by kidnapping^ — affords neither ground of relief from imprisonment nor defense at the trial. ^ 'Bac. Abr., Hue and Cry; 4 Bl. Comm. 293-294; 1 Cbitty Cr. L. 26-31 Kilty Bep. 214; Alexander Brit. St. 154-155. ■'4 Bl. Comm. 292; C. ». McGahey, 11 Gray, 194; Musooe ». C, 86 Va. 448. 'R. «. Birnie, 5 C. & P. 306 ; S. C, 1 Moody & R. 160. *3 Hawk., ch. 13, § 30; Holyday v. Oxenbridge, Cro. Car. 334. 'Keleber b. Putnam, 60 N. H. 30 ; Lett v. Sweet, 33 Mich. 308 ; Paetz ». Dain, 1 Wilson (Ind.), 189 ; Look «. Dean, 108 Mass. 116. «R. 8. Hems, 7 C. & P. 313. 'Mahon v. Justice, 137 U. S. 700; Baker ». S., 88 Wis. 140, 147. «Exp. Scott, 9 B. & 0. 446; Reg. ». Hughes, 14 Cox C, C. 284; Neff v. S., 57 Md. 385, 392 ; S. v. Ross, 31 Iowa, 467 ; P. v. Rowe, 4 Park. Cr. R. 353 ; P. ». Eberspacher, 79 N. Y. 410; S. v. Fitzgerald, 51 Minn. 534. 72 Criminal Procedure If one accused of crime is held under defective process,' or without any regular process/ he should not, if hrought up by habeas corpus, be discharged, but should be regularly committed for a hearing. § 100. Use Of Force. — In the event of resistance, the person having authority to arrest may repel force with force, and, if death ensue in the struggle, he will be justified, provided the force used be not excessive.^ If a felony is committed, or a dangerous wound given, and the offender flees, he may be killed, in order to prevent his escape, provided he can not otherwise be overtaken ; but, in the case of misdemeanors, the killing is not justified.* § 101. Breaking Doors. — Doors may be broken open, after previous notification of purpose, demand and refusal of admission^ — 1. By any one, for the purpose of arresting upon a warrant, or for felony, or the giving of a dangerous wound.^ 2. By any one, upon fresh pursuit of an offender who has escaped from his lawful custody.^ 3. By any one, for the purpose of preserving the peace and preventing the commission of a felony.* 5. By an officer, in order to prevent affrays and disorders ' A private person, in order to justify breaking open doors without a warrant, must ordinarily prove the actual guilt of 'R. V. Marks, 3 E. 157; R. «. Homer, Cald. 305; Parrish ». S., 14 Md. 338, 345. »Exp. Krans, 1 B. & 0. 358. «4B1. Comm. 180; 1 East P. C. 395-397; R. ». Compton, Y. B. 41 E. 3, 55; Reg. V. Murphy, 1 Crawf. & D. 30; Bowman ®. C, 96 Kent. 8. *1 East P. C. 398-306; Reg. v. Dodson, 4 Cox 0. C. 358; U. S. v. Clarke, 31 Fed. R. 710; Head v. Martin, 85 Kent. 480; S. v. Dierberger, 96 Misso.' 666 ; Thomas v. Kinkhead, 55 Ark. 503. Of. post, § 668. 'Fost. 330 ; Semayne's Case, 5 Rep. 91 ; Hall e. Hall, 6 Gill & Johns. (Md.) 386; 8. !). Mooring, 115 N. C. 709. 'Post. 330; Semayne's Case, 5 Rep. 91 ; C. v. Reynolds, 130 Mass. 190. 'Post. 330; Genner v. Sparks, 6 Mod. 173; S. C, 1 Salk. 79; Allen «. Mar- tin, 10 Wend. 300; C. ». McQahey, 11 Gray, 194; Cahill v. P., 106 111. 631. «Handcock v. Baker, 3 B. & P. 360; Colby ». Jackson, 13 N. H. 526, 530. 93 Hale, 94-95. Akrest 73 the person arrested, an officer, reasonable grounds of sus- picion.^ An officer may, without previous notification enter a public or private house, if open, for the purpose of suppressing an affray and arresting the offenders.^ § 102. Escape And Recapture. — A prisoner escaping from lawful arrest may be recaptured upon fresh pursuit, even though his escape has been negligent or voluntary,'^ and may be retained in custody, until sentence be jerved out, not counting the time of unlawful absence.* No new sentence or award of execution is necessary,^ except in capital cases, if the time for execution has passed.^ An order of remand is necessary only in cases of " constructive" escape, where a prisoner has been released on conditional pardon or other condition, and has violated its terms.^ An order of court may also be necessary, if the convict escapes before execu- tion begun.* Any one may, without process, recapture an escaped convicted felon.' § 103. Disposal And Treatment Of Prisoner. — After arrest, the prisoner should, without unreasonable or unneces- sary delay, be brought before a magistrate for examination.^" Under a warrant requiring the accused to be brought before the magistrate issuing it, he must be taken before such magis- trate ;" under a general warrant, requiring the prisoner to be '1 Chitty Or. L. 54. 'R. ». Smith, 6 0. & P. 136 ; C. v. Tobin, 108 Mass. 436. ^Leonard v. Rodda, 5 App. D. 0. 256; In re Lambreth, 55 Kans. 147. ^Leonard v. Rodda, 5 App. D. C. 256; Oleek «. S., 31 Gratt. (Va.)777; McCoy ®. S., 9 Houst. (Del.) 432; In re Edwards, 48 N. J. L. 555. 'C. V. Potter, 1 Park. Or. R. 47. «R. ». Rogers, 3 Burr. 1809 ; Bland «. S., 3 Ind. 608. ■"S. V. Barnes, 33 S. C. 14. Of. past, I 867. 8S. e. McClure, Phlll. (N. C.) 491. 98. «. Holmes, 48 N. H. 477, 479. ■n Chitty Or. L. 59; 1 Russ. Cr., 9 ed., 1044 ; S. v. Freeman, 86 N. C. 683; Twilley ». Perkins, 77 Md. 352. "Stetson «. Packer, 7 Cush. 563. 74 Criminal Procedure brought before any justice, the officer may elect to take him before any justice of the county.' A prisoner should be brought before a magistrate of the county in which he is arrested, even though the charge be of an offense committed in another county.^ The prisoner continues to be in the custody of the officer who arrested him, until discharged, bailed or committed.' The right to search, handcuff or place a prisoner merely accused of crime in a cell exists only in cases of reasonable necessity, not as a matter of course ;* yet, to a large extent, the officer making an arrest and conveying to prison must be the judge of the restraints to be used." § 104. Money And Effects Found Upon Prisoner. — Goods and effects, and particularly money, must not be taken away from a prisoner,^ unless forming part of the proof, or otherwise connected with the charge against him.' If money or any other thing is improperly taken from one under arrest by any official, the court having jurisdiction to try the offense charged may compel return.* In any event, the officer must, after the trial is over, return things taken from the accused,' and no portion of money taken from a prisoner can be appro- priated for costs or expenses.'" '1 Chitty Cr. L. 60. =Ib. 35. Of. Blake v. Burke, 43 Md. 45. '1 Chitty Cr. L. 60 ; C. ». Morihan, 4 Allen, 585. ^Leigh 0. Cole, 6 Cox C. C. 329. 'S. V. Stalcup, 3 Ired. (N. C.) L. 50 ; Firestone v. Rice, 71 Mich. 377. «Reg. ». Bass, 2 C. & K. 833 ; Reg. v. McKay, 3 Crawf . & D. 305 ; R. v. Jones, 6 C. & P. 343; R. v. O'Donnell, 7 lb. 138; R. «. Kinsey, lb. 447 ; Commercial Bank o. McLeod, 65 Iowa, 665. 'R. V. Burgiss, 7 C. & P. 448 ; Dillon v. O'Brien, 16 Cox C. C. 345 ; Spalding V. Preston, 31 Vt. 9. «Reg. V. Bass, 3 C. & K. 823 ; R. i>. Barnett, 3 C. & P. 600 ; R. v. Kinsey, 7 lb. 447; Exp. Craig, Fed. Cas. 3,331 ; Rickers v. Simcox, 1 Utah T. 33. 'Thatcher «. Weeks, 79 Me. 547. ">Reg. D. Bass, 3 C. & K. 833. Examination 75 CHAPTER XII. EXAMINATION. § 105. The Hearing. — When the prisoner is brought before the magistrate, it becomes the duty of the latter to conduet an examination and, after due investigation, to discharge, bail or commit him. The magistrate is allowed a reasonable time for his investigation, and may adjourn the hearing, from time to time, the accused being committed or bailed in the interim.^ The magistrate, at the strict common law, is bound to hear only witnesses for the prosecution ; but the more just course is to hear evidence on both sides." Private parties making the complaint or immediately injured (popularly called " prosecutors," or " prosecuting -witnesses ") have no power to dismiss or control the proceedings, but may be compelled to attend and testify like other witnesses. The state, or government, is the only " prosecutor," and its proper representative is the public prosecuting attorney. The prisoner may waive the preliminary examination and be at once committed or bailed. § 106. Dlscliarg-e Of Accused. — If it appears, that no crime was committed, or that the suspicion against the ac- cused was groundless, he should be discharged. Unless a ^rima facie case is made out against the accused by witnesses entitled to a reasonable degree of credit, the magistrate should let him go free. The discharge of the accused does not operate as an acquittal.* § 107. Commitment Or Bail. — If the magistrate is of the opinion, that there is probable ground to suppose the 11 Chitty Or. L. 73-74. ^-'Examination of Prisoner's Witnesses," 3 0. & K. 845 ; U. S. v. Wliite, Fed. Cas. 16,685. ^Ante, I 71. 76 Criminal Procedure accused guilty, he must commit or admit him to bail, if the offense charged is bailable and bail is tendered^ by the accused, and should require the witnesses for the prosecution to enter into recognizances. § 108. Certifying Case To Court. — Commitments for trial must be certified by the gaoler,^ and recognizances by the magistrate taking them,^ to the court having jurisdiction to try the offense charged. In this manner, the case of one held for crime is brought regularly to the notice of the proper court, to be entered upon its dockets or books, and referred, in due course, to the grand jury or the prosecuting attorney for further investigation and action. '2 Hale, 133; 3 Hawk., ch. 15, § 14. =3 H. 7, ch. 8 ; Alexander Brit. St. 358. n CMtty Gr. L. 104; 8 H. 7, ch. 3; Alexander Brit. St. 253. Commitment 77 CHAPTER XIII. COMMITMENT. § 109. Modes Of. — Courts commit by order, and not by writ or warrant under seal.' If the commitment is in open court to one of its officers, it may be verbal.^ If it is in execu- tion of sentence, there is neither warrant nor order, but the record itself, or memorial thereof, is sufficient authority to the prison keeper.^ Magistrates and individual judges* (acting as conservators of the peace) commit by written warrant {mittimus, committitur). § 110. Requisites. — The requisites of a commitment, whether for trial or in execution of sentence, are — 1. That it be^ in writing, signed by the officer issuing it, expressing his office or authority,* the time and place at which made, and be directed to the gaoler, or keeper of the prison. A seal is usual, but not necessary.' A statement of official character has been held unnecessary in warrants of commitment for trial.* 2. That it contain the name and surname of the party, or a brief description with the addition, that the name can not be ascertained.' 3. That it express the cause with " convenient certainty. " '" The certainty of an indictment is not required. It is not necessary to allege, that the party was charged on oath, or to '3 Hale, 132 ; P. v. Nevins, 1 Hill, 154, 166-168. 'Bac. Abr., Habeas Corpus, B, 9 ; Anonymous, Fortes. 340, 343 ; Exp. Wbite- church, 1 Atk. 55, 57. Of. 3 Hale 6. 'Howard v. U. S., 75 Fed. R. 986; S. v. Heathman, Wright (Ohio), 690. H Bl. Oomm. 391. n Ohitty Or. L. 110. 6R. 1). York, 5 Burr. 3684. 'Starr v. U. S., 153 U. S. 614. «R. e. Blderton, 6 Mod. 73, 75 ; R. v. Goodall, Sayer, 139. n Ohitty Or. L. 110^ "lb. 110, 113. 78 Criminal Procedure recite any part of the evidence, or the ground of committal.' The act, if felony, need not be averred to have been feloniously done.^ Merely formal allegations are dispensed with.^ In indictments, the act constituting the crime must be stated, the offense must be specialized; in preliminary proceedings, the crime must be designated.^ The commitment should have an apt conclusion, e. g., "to detain him, until he be delivered by lavr."° Commitment for trial may be in form as follows : State of , County, to wit : To the Warden of the Jail of said County : Receive into your custody A. B., committed for trial on the charge of («. g., the larceny of a silver watch, of the value of ten dollars, the property of C. D.), and him safely keep, until he shall be delivered by law. Witness the subscriber, a Justice of the Peace, in and for said County, this day of , in the year 18 — [Seal.] § 111. Commitments Upon Statutes. — The offense should be described with reasonable certainty, so as to make it appear definitely and unambiguously, from the allegations of the com- mitment itself, without resort to extrinsic proof or strained interpretation, that the party has been guilty of a violation of the statute.* A defective description is not aided by such general allega- tions as, that a thing was done unlawfully, or fraudulently, or in violation of a statute referred to.^ The description must bring the party, not only within the words, but within the purview, of the statute.* Substantially the same rules^ as to negativing provisos and exceptions prevail as in regard to indictments.'" ^Bac. Abr., Commitment, E ; R. ». Piatt, 1 Leach, 157, 170; C. ■». Murray, 2 Va. Cas. 504. 2R. i>. Judd, 3 T. R. 255 ; S. C, 1 Leach, 484. 8R. ». Chandler, 1 Ld. Raym. 581 ; R. ». Simpson, 10 Mod. 248. ■T. f). Polhamus, 8 N. T. App. Div. R. 133. n Chitty Or. L. 114. 6R. 1). Evered, Cald. 26 ; Exp. Hopkins, 17 Cox C. C. 444. 'R. «. Jukes, 8 T. R. 536; Fletcher v. Calthrop, 6 Q. B. 887, 889. «R. V. .Jarvis, 1 Burr, 148, 153. 'Post, i 143. "R. V. Sparling, IStr. 497 ;R.»..Tarvis,l Burr. 148; R.». Mallinson, 3 lb. 679. Commitment 79 The rule^ also applies, that the facts constituting the crimi- nality of conduct merely malum 'prohibitum must be averred-^ A commitment under a statute authorizing trial and sen- tence by justices of the peace may be worded as follows : State of , County, to wit ; To the Warden of the Jail of said County : Receive into your custody A. B., who was brought before me, the sub- scriber, a Justice of the Peace in and for the County aforesaid, charged on the oath of C. D. with the offense of having, on the day of , in the year I'S — , at the said County, («. g., committed an assault and battery upon the said C. D.), and was, on the day of , in the year 18 — , duly tried and convicted before me upon said charge and sentenced (e. g., to be imprisoned in said Jail for thirty days and to pay a fine of ten dollars and costs, amounting to two dollars), and him safely keep, until he shall be delivered by law. Given under my hand and seal, this day of , in the year 18 — [Seal.] § 112. Place Of Dentention. — In all cases not otherwise expressly provided for, imprisonment must be in the common gaol.^ Custody must not be shifted or changed by prison keepers.* § 113. Treatment Of Prisoners. — In the " dubious inter- val " between imprisonment and trial, a prisoner should be used with the utmost humanity, and not be loaded with needless fetters, nor subjected to other hardships than such as are abso- lutely requisite for the purpose of confinement only.° Gaolers and their officers are under the special protection of the law in the execution of their office, but their conduct is also jealously watched. If a prisoner under their care dies, they must notify the coroner, who must hold an inquisition ; and, if death resulted from duress of imprisonment, it is deemed wil- ful murder in the guilty agent.* § 114. Defects And Irregularities. — As to commitments for trial , the following rules prevail : 'Post, i 140. »R. V. Hill, 3 Ld. Raym. 1415; R. ■». Corden, 4 Burr. 3279. '5H. 4, ch. 10; Alexander Brit. St. 309 ; Sanchar's Case, 9 Rep. 117, 119 ; Scavage v. Tateham, Oro. Eliz. 839. *Bac. Abr., Commitment, C. °4 Bl. Comm. 399. ■"Fost. 331-333; 1 Russ. Cr., 9 ed., 749-750. 80 Criminal Procedure 1. They are not rendered void by mere irregularities,'- and the party is not entitled to be discharged upon habeas corpus.''' 2. If they are in due form, the courts may yet, upon habeas corpus, inquire into the facts, and if there be no probable cause of detention, release the party,* but not after indictment found.* As to commitments on final process, or in execution, the fol- lowing rules prevail : 1. They must be liberally construed in support of the exercise of jurisdiction.® 2. If no suflicient cause of detention appears upon their face, the party is entitled to his release, regardless of the question of guilt. 3. If in due form and by a tribunal or officer having jurisdic- tion in the premises, there can be no further inquiry or review collaterally, upon habeas corpus or otherwise.^ 4. Under the circumstances stated in the following section, relief will be afforded in a collateral proceeding from commits ment on final process. § 115. Collateral Relief. — ^Relief will be afforded upon habeas corpus from imprisonment under a commitment in due form upon final process, or in execution, in manner and under the circumstances following : If the statute upon which the conviction is based is unconsti- tutional';^ if the party is kept in prison beyond the time author- ized by law f if a cause has occurred since the imprisonment legally operating to terminate it f if sentence is to a prison not 11 Hale, 132. 2R. e. Marks, 3 E. 197; R. v. Horner, Cald. 305 ; Parrish v. S., 14 Md. 338, 245. 3R. V. Horner, Cald. 305 ; Exp. Jenkins, Fed. Cas. 7,259 (1st case) ; Exp. Maulsby, 13 Md. 635, 687 ; P. v. Tompkins, 1 Park. Or. R. 334. *P. 0. McLeod, 1 Hill, 378 ; S. C, 35 Wend. 483, 568 ; P. v. RulofE, 5 Park. Or. R. 77. Of. In re Hacker, 73 Fed. R. 464. 'S. V. Glenn, 54 Md. 573, 609. nin re Frederick, 149 U. S. 70; U. S. v. Pridgeon, 153 lb. 48; Johnson v. Sayre, 158 lb. 109 (court martial) ; S. v. Glenn, 54 Md. 573. 'Exp. Siebold, 100 U. S. 371, 377; In re Coy, 137 lb. 731, 738; S. v. Glenn, 54 Md. 572. 83 Inst. 63. Cf. Exp. Stewart, 98 Ala. 66. 'Greathouse's Case, Fed. Cas. 5,741; Exp. Maulsby, 13 Md. 635. Commitment 81 authorized by law;^ if the imprisonment is excessive;^ for want of jurisdiction in the tribunal which gave the judgment under which the party is imprisoned.' Want of jurisdiction may be made to appear from the face of the return ;* from the record of proceedings brought up by certiorari;^ from an agreed state- ment of facts ;" from the proceedings annexed to the petition for habeas corpus / by extrinsic proof. The following cases illustrate the application of the rule admitting extrinsic proof: Upon the return of an apparently valid commitment for con- tempt, it may be shown, that there were in fact no proceedings pending in which the commitment could originate;* the fraudulent and oppressive character of proceedings upon which a commitment for contempt was based was allowed to be shown and the party discharged f proof was allowed, that the committing magistrate was disqualified ;'" the presence of three judges being necessary and recited in the conviction, the party was allowed to prove, that in fact two only were present.^^ The question of the right to hold office can not ordinarily be raised on habeas corpus ; but it may be inquired, whether or not the person exercising the powers of a particular ofiice is an officer de facto }^ In the case of a commitment for contempt where a witness refuses to answer upon the ground of self-crimination, it has been held, that the entire testimony and facts may be reviewed upon habeas corpus.^'' iln re Bonner, 151 U. S. 343. ^The excess only is void. U. S. v. Pridgeon, 153 U. S. 148. 'Elliott '0. Piersol, 1 Pet. 338, 340 ; Windsor ®. McVeigh, 98 U. 8. 374, 383- 383 ;' Exp. O'Brien, 137 Misso. 477. ^Bushel's Case, Vaughn, 135; S. C, 6 How. St. Tr. 999. ^Exp. Lange, 18 Wall. 163. «Exp. McDonald, 45 Md. 98. 'Exp. Bain, 131 U. S. 1. 8?. V. Cassels, 5 Hill, 164; Clarke's Case, 13 Cush. 330; Exp. O'Brien, 137 Misso. 477. 'In re Davis, 88 Kans. 308. '"In re Golding, 57 N. H. 146 (the magistrate being an infant). "Divine's Case, 11 Abb. Pr. R. 90. ^■•'In re Boyle, 9 Wis. 364. "Exp. Irvine, 74 Fed. R. 954. 6 82 Criminal Procedure CHAPTER XIV. BAIL. I 116. Hfature Of. — Bail is the delivery, or bailment, of a person to his sureties, upon their giving, generally together with himself, sufficient security for his appearance to answer a criminal charge, he being supposed to continue in their friendly custody, instead of going to jail. The sureties can become bail only with the consent of the principal." § 117. How Taken Bail may be taken by a court or judicial officer having jurisdiction to hear and determine as to the offense charged, or to conduct the preliminary examina^ tion;^ by a court or judge upon habeas corpus,^ pending a hearing upon a habeas corpus* or upon certioran.^ The regular method of taking bail is by recognizance, cut tered into before the court or magistrate, conditioned that the accused shall appear at the place of trial to answer the charge against him." The accused should ordinarily (not necessarily^) join in the recognizance. In the case of infants, femes covert, or persons sick in jail, recognizance is taken from the surety alone.* The ordinary rule is, that bail may be given at any time before conviction.' Under special circumstances, courts have admitted to bail after conviction.'" ■P. V. Davidson, 67 How. Pr. 416. ^Bac. AlDr., Bail in Criminal Cases. «a Hale, 143 ; R. v. Shebbeare, 1 Burr. 460 ; Parish v. S., 14 Md. 338. ■•Bac. Abr., Habeas Corpus, B, 13; Exp. Bellman, 4 Cranch, 75, 123. n Tidd Pr. 407 ; K. v. Reader, 1 Str. 531. «1 Chitty Or. L. 103 ; Schultze ». S., 43 Md. 295. 'P. «. Dennis, 4 Mich. 609; Combs v. P., 39 111. 183. 81 Chitty Cr. L. 104; Schultze ». S., 43 Md. 295; C. c. Semmes, 1 Leigh (Va.), 667, 674. An infant is said to be bound, if he joins in the recognizance. S.v. Weather- wax, 12 Kans. 463; S. C, 17 lb. 427. H Bl. Comm. 298. "S. ». Satterwhite, 30 S. C. 536, 539 ; Davis ». S., 6 How. (Miss.) 399 ; Exp. Dyson, 25 Miss. 356; Corbett v. S., 34 Ga. 391 ; S. v. Levy, 24 Minn. 362, 368. Bail 83 If a person in prison in default of sureties is bailed, he is released by an order of court or a warrant of liberate^ (a simple order or direction of the magistrate to the jail keeper to dis- charge the party, " if detained for no other cause than that specified in his warrant of commitment"). The following formula is used in taking bail in court : You and each of you acknowledge yourselves to owe and stand Indebted to the State of in the sum of dollars for the appearance of A. B. at this Court, to answer the charges alleged against him and to attend Court, from day to day, until discharged therefrom. The following formula is used, if bail is taken by a commit- ting magistrate : You and each of you acknowledge yourselves to owe and stand indebted to the State of in the sum of dollars for the appearance of A. B. at the next term of the Court, to answer such things as shall be alleged against him and particularly the charge of (stating eha/rge) and not to depart the Court without leave [and in the meantime to keep the peace and be of good behavior.] ^ § 118. Transmitting To Court. — When bail has been taken by a magistrate or judge, or by one court for the party's appearance at another court, the recognizance is then certified to the court for whose action the party is held, to be filed among its proceedings as a part of its records. The following form may be used by a justice of the peace : State of , County, to wit : Be it remembe^'ed, that on the day of . in the year 18 — , be- fore the subscriber, a Justice of the Peace of said State, in and for the County aforesaid, personally appeared A. B., C. D. and E. F. and jointly and severally acknowledged themselves to owe and stand justly indebted to the State of in the sum of dollars, to be made and levied of their and each of their goods, chattels, lands and tenements, to and for the use of the said State, upon condition, that if the said A. B. shall appear at the next term of the ■ Court, to answer such things as shall be alleged against him and particularly the charge of assaulting and beating Gr. H., and not depart the Court without leave, and in the meantime keep the peace and be of good behavior, then this recognizance to be void. Taken and acknowledged before me the day and year aforesaid. [Seal.] '2 Hale, 126; 1 Chitty Cr. L. 102. ^The words in brackets are not essential, but it is well to insert them, especially in cases of violence to the person. 84 Criminal Procedure Bail taken before a court upon habeas corpus is certified in similar form by the clerk under seal of the court, to the par- ticular court having jurisdiction to try the charge. § 119. What Offenses Bailable. — The superior courts may admit to bail in all cases.' In capital cases, " if the proof is evident and the presumption^ of guilt great," bail should be denied by the courts.^ Justices of the peace cannot bail in capital cases.* They may bail in cases of killing by mere misadventure, or in clear self-defense.^ Under Federal Statutes bail in capital cases may be taken only by the Supreme or a Circuit Court, or a justice or judge thereof, or of a District Court.* § 120. Power Of Sureties. — The sureties are the keepers of the accused. They may, without process, at any time, within or without the territory of the state having jurisdiction over the offense, reseize and deliver him up.' They may dele- gate a third person to do this,* for which purpose, according to some cases, the authority must be in writing,' or may obtain the assistance of a sheriff, constable, or other peace officer,'" and may break open doors," no unnecessary violence being permissi- ble.'^ The principal is not liable to the surety for expenses arising from the latter's situation as bail.'* Upon the death of iln re Barronet, 1 E. & B. 1 ; S. ». McNab, 20 N. H. 160. ^/. e., probability. 'In re Barronet, 1 E. & B. 1. *2 Hale, 139. »1 Cbitty Cr. L. 95. "U. S. Rev. Stats. ? 1016. 'Taylor «. Taintor, 16 Wall. 366. sNicboUs 0. IngersoU, 7 Johns. 145; C. v. Brickett, 8 Pick. 138; Parker c. Bidwell, 3 Conn. 84; S. r>. Lingerfelt, 109 N. C. 775. Of. U. S. Rev. Stats. 1 1018. 'Dick V. Stoker, 1 Dev. (N. C.) L. 91 ; 8. ». Mahon, 3 Harr. (Del.) 568. i»Exp. La Ponta, 3 Rob. (La.) 495, 498. "Nicholls i>. IngersoU, 7 Johns. 145. i^Pease v. Burt, 3 Day (Conn.), 845 ; Read ». Case, 4 Conn. 166 ; S. o. Mahon 3 Harr. (Del.) 568. "U. S. v. Ryder, 110 U. S. 729. Bail 85 the surety, surrender may be made by his personal representor tive/ Upon surrender, the prisoner may find new sureties.^ If the sureties desire to arrest and deliver up the principal, it is usual and proper for them to obtain a " bail-piece," which is a writing in the nature of a certificate, or memorial, from the record in the case against the principal, that the persons therein named were accepted as his bail, thus importing, that they are his custodians, entitled to retake him, and virtually operating as a notice to any officer, that he may assist in arresting and delivering him up.' This certificate may be worded as follows : State of , County, to wit : I hereby certify, that at a session of the Court, holden in and for said County, on , the day of , in the year 18 — , a recogniz- ance of bail was taken [if the recognizance ■was before a magistrate and trans- mitted by Mm, sa/y: transmitted and filed], by which A. B. and C. D. became bail and pledge in the sum of- dollars for the appearance of E.F. before said Court, to answer the charge of (e. g., larceny) ; and I further certify, that said bail have not been discharged from said recognizance. Dated this day of , in the year 18 — [Seal of Court] Clerk. § 121. liiability Of iSuretles. — Sureties have a right to stand upon the very terms of their undertaking.* If the bail is unauthorized, illegally taken, or illegally altered,^ they are not bound. A recognizance taken by an unauthorized person,^ or not properly describing the court before, or time at which, the party is to appear,^ is void. Mere informalites or irregularities do not avoid a recogni- zance f and it is immaterial, that the indictment or accusation upon which a recognizance was taken was defective and charged no offense.^ iWheeler b. Wheeler, 7 Mass. 169. n Chitty Cr. L. 104. 33 Bl. Comm. 291 ; Nicholls ». Ingersoll, 7 Johns. 145, 154. ^Reese «. U. S., 9 Wall. 13. 'Kiser e. S., 13 Tex. App. 301 'Dickenson 0. S., 30 Neb. 73 ; Clink v. Russell, 58 Mich. 343. 'Coleman «. 8., 10 Md. 168 ; Pill ». S., 43 Neb. 33. sparrish v. S., 14 Md. 338 ; Schultze «. S., 43 lb. 395 ; Bulson ». P., 31 111. 409. 'Hardy B.U. S., 71 Fed. R. 158. 86 Criminal Procedure § 122. Forfeiting Ball. — Before forfeiture can be incurred, the principal must be called in court and make default.^ The formula is as follows : A. B., come into court, according to the tenor of your recognizance, or the same shall be forfeited. C. D., bring into court the body of A. B., according to the tenor of his recognizance, or the same shall be forfeited. The method of enforcing a forfeited recognizance is by scire facias, or by action of debt.^ The Federal courts may remit the penalty of a recognizance in whole or in part.' § 123. Discliarg^e Of Recog'nizance. — The terms of the recognizance are complied with and the sureties discharged by the appearance of the principal, when called for trial;* the quashing of the indictment;'^ the release, though erroneous, of the principal upon habeas corpus f the retaking of the principal by the proper officer ;'' his surrender to the proper officer f his imprisonment in the same' (not another^") state, or his imprison- ment under the Federal authority," or his imprisonment in another state, if surrendered by the authorities of the state to which bail was given ;'^ his arrest by order of the court having jurisdiction of the offisnse;" the taking of new bail.'* Enlistment of the principal in the army does not discharge the sureties." ^Dillingham «. U. S., Fed. Cas. 3,913 ; Schultze v. S., 43 Md. 295, 306 ; Mish- ler v.C.,62 Pa. St. 55. ^C. V. Green, 13 Mass. 1. "U. S. Rev. Stats, i 1020. ^3 Hawk., ch. 15, § 81; Raney v. S., 83 Kent. 534. ^S. V. Murphy, 10 Gill & Johns. (Md.) 365. •Smith V. S., 91 Kent. 588; Shields ». Smith, 78 lud. 425. 'Sternberg ®. S., 43 Ark 127. 'Harp 11. Osgood, 2 Hill, 216; Kellogg o. S., 43 Miss. 57. 'Buffington ®. Smith, 58 Ga. 341. "Taylor v. Taintor, 16 Wall. 366. "C. «. Overby, SO Kent. 308. "3. V. Allen, 2 Humph. (Tenn.) 258. 'sp. -0. McReynolds, 102 Cal. 308. '*S. 0. Becker, 80 Wis. 313. "3. B.Reaney, 13 Md 230, 236; Savoyard v. Conant, 11 Mass. 364; Harring- ton B. Dennie, 13 lb. 93. Bail 87 § 124. Re-Arrest. — If the recognizance has been forfeited by the escape of the principal, he may be re-arrested and brought to trial, payment of the recognizance not being a satisfaction of the offense.' Insufficiency of bail does not justify re-arrest at common-law.^ Sham, or fraudulent, bail is said to be a nullity' and the party may probably be re-arrested. It has been held, that if one accused of wounding is bailed, he may afterwards be re-arrested, if the wounded man's life is despaired of.* Under the Federal law', if a person admitted to bail is about to abscond, and his bail is insufficient, a judge or other magis- trate having authority to commit may require new security and, in default thereof, commit the party to prison.'* § 125. Recognizances Of "Vl^itnesses. — Witnesses for the prosecution may be required to-lind sureties for their appear- ance or, in default thereof, committed to jail, by justices of the peace, upon committing or holding to bail one accused of crime ;^ by the coroner, upon an inquisition found before him of homicide.'' The power of the courts to require witnesses to find sureties is doubtful.* Special provisions obtain as to recognizances of witnesses in Federal cases.' In making out recognizances and commitments of witnesses the following directions should be observed : 1. Follow general form of recognizance or commitment used in case of committing^" or bailing" accused. 3. In the recognizance say : "to give evidence, for and on behalf of said State, against A. B., charged with (stating offense)." 3. In the commitment say : "committed in default of sureties in the sum of dollars, to give evidence for the said State against A.. B., this day committed by me for the action of the Court for siiid County upon the charge of (stating offense)." 'Exp. Milburne, 9 Pet. 74; S. ■o. Lingerfelt, 109 N. C. 775, 779. "Ingram v. S., 37 Ala. 17. sWard ». Levi, 1 B. & C. 268; SutlifEe u. Eldred, 3 Bowl.P. C. 184. ^Anonymous, Y. B. 33 E. 1, 556 (Horw. ed ). 5U. S. Rev. Stats. ? 1019. n & 3 P. & M., ch. 13 ; 2 & 3 P. & M., ch. 10 ; Alexander Brit. St. 369, 374 ; Foat B. 8., 38 Tex. App. 537. n & 3 P. & M., ch. 13 ; Alexander Brit. St. 369. «Exp. Shaw, 61 Cal. 58; Bickley ». C, 3 J. J. Marsh. (Ky.) 578; S. v. Grace, 18 Minu. 398. »U. S. Rev. Stats. ?§ 879-881. ^"Ante, I 110. ".4?ife, ?H17, 118. 88 Criminal Procedure CHAPTER XV. PROCEEDINGS m COURT. § 126. How Begun. — An alleged offender may be brought to trial, in the ordinary course of criminal proceedings, upon presentment and indictment of a grand jury, or upon informa- tion filed by the prosecuting attorney. When the recognizance or commitment has been returned by the examining magistrate or gaoler, the next step, in the ordinary course of procedure, is to refer the case to the grand jury for its action, unless, accord- ing to the proper local procedure, the charge is the subject of an information. Prosecutions may be instituted, in the first instance, before the courts, without a preliminary hearing before a magistrate.' § 127. Presentment. — Presentment, in the enlarged sense of the term, includes every finding of a grand jury.^ In ordi- nary signification, it is an informal written presentation by the grand jury, upon which the prosecuting attorney afterwards frames a bill of indictment.' Presentments are in form as follows : State of , County, to wit : The Jurors of the State of , in and for the body of County, do on their oath present, that A. B., on the day of , in the year , at the County aforesaid, did assault and beat C. D. Foreman. § 128. Indictment. — In ordinary practice, the prosecuting attorney, upon the finding of a presentment, frames a " bill of indictment," which, if adopted by the grand jury, is endorsed " a true bill " and signed by the foreman, and then becomes an " indictment. " An indictment may be found without a >P. ». Westbrook, 13 Hun, 646; Prench».P.,3Park. Cr.R. 114; S. e.Bunger, 14 La. Ann. 461. ^2 Inst. 739. '4 Bi: Comm. 301. Proceei)[N(}s In Court 89 prior presentment, and a variance between the presentment and indictment is permissible.' Preliminary proceedings and process, such as the warrant or precept of arrest, the com- mitment, or recognizance, do not bear upon subsequent pro- ceedings in court.^ The indictment virtually supersedes the presentment.^ If the bill is rejected, the endorsement is " not a true bill, " or (preferably) " not found."*' A true bill may be returned as to one or more of several counts or of several defendants.^ The rejection, or ignoring, of a bill of indictment by a grand jury is no bar to a subsequent prosecution by indictment by the same or another grand jury,* or by information.'^ The following is a general form of indictment : State of , County, to wit : The Jurors of the State of , in and for the body of County, do on their oath present, that A. B., on the day of , in the year , at the County aforesaid, in and upon one C. D. did make an assault, and him, the said C. D., then and there did heat, bruise, wound and ill-treat, against the peace of the State. State's Attorney. § 129. Information. — An information differs from an in- dictment, in that it is presented, by way of suggestion and information upon the (official) oath of the prosecuting attor- ney.* It has the same requisites of precision and certainty' and is followed by the same proceedings" as an indictment. It is amendable as a matter of course" and, being amendable, a motion to quash will not be entertained, unless it appears, that iLaird v. S., 61 Md. 309. ■Mackalley's Case, 9 Rep. 64 ; S. «. Myers, 8 Wash. 177. su. S. V. Hill, Fed. Cas. 15,364; C. v. Christian, 7 Gratt. (Va.j 631, 635. ■14 Bl. Comm. 306. n Chitty Cr. L. 323. '4 Bl. Comm. 305 ; S. v. Harris, 91 N. C. 656. iPost, S139. H Bl. Comm. 309; C. v. Waterborough, 5 Mass. 259'; S. «. Dover, 9 N. H. 468 ; C. ■». Barrett, 9 Leigh (Va.), 665. n Chitty Cr. L. 864-865. "lb. 865-866. "lb. 868; S. V. Ware, -38 N. H. 314; S. v. Doe, 50 Iowa, 541 ; S. v. Murphy, 55 Vt. 547 ; Tatum b. S., 66 Ala. 465. 90 Criminal Procedure the court has no jurisdiction to try it.^ It has, however, heen held, that a new count for the offense already charged may not be added after limitations has run upon such offense.^ Infor- mation lies after the refusal of the grand jury to indict.^ The form is substantially as follows : State of , County, to wit : A. B., the State's attorney for said County, comes into court here, and for and on behalf of the said State, gives the court to understand and be in- formed, that (stating offense and concluding as in indictment). And the said A. B., State's attorney as aforesaid, further gives the court to understand and be informed, that {stating offense and conclusion, this being the wording of a subsequent count). [Whereupon the said A. B., State's attorney as aforesaid, on behalf of the said State, prays, that process may issue against the said A. B.] The information is signed by the prosecuting attorney and filed in the same manner as an indictment and sometimes con- tains a prayer for process (substantially as above given), which process is the same as upon indictments. § 130. Process. — After indictment or presentment found, the accused if not present in court, is brought in by process, or capias,* which needs only to recite the presentment or indict- ment, and the crime generally.^ Process against corporations is a summons." After presentment or indictment found, the accused may be obliged to find new bail.^ The form of a capias is as follows : State of , to wit : To the Sheriff of County : You are hereby commanded to apprehend and bring before the Court of County, A B., to answer a presentment [or, an indictment) for larceny. Witness (inserting proper teste). Issued the day of , in the year 18 — [Seal of Court.] Clerk. U Chitty Cr. L. 869. -S. i>. Rowley, 12 Conn. 101. 3S. V. Whipple, 57 Vt. 637. H Bl. Comm, 318-320. If the party is in custody, there is no need of process. S. ®. Keeua 64 Conn. 212, 214. 'Brady «. Davis, 9 Ga. 78. «Bostou R. R. V. S., 32 N. H. 215, 328-234; S. «. Western R. R., 89 N. C. 584. 'Smith J). Kitchens, 51 Ga. 158. Proceedings In Court 91 The process is tested in the name of the chief, or senior justice.' § 131. Grand Jury — The qualijfication, selection, organiza- tion and procedure of grand juries are generally regulated by statutes. At common law, the grand jury consists of not less than twelve nor more than twenty-three persons,^ of whom twelve,^ all being competent in law,* may find a bill. A ^rand jury is a component part of the court and is under its general supervision and control.^ The witnesses are summoned into" and sworn in courf and subject to its authority.* The court may recall the grand jury, after discharge, during the term for which summoned.^ Statutes as to the formation of the body must be substantially complied with.'" The proper mode of objecting to the personnel of the grand jury is by plea in abate- ment." § 132. Swearing And Cliar^ln^ — The grand jury, being assembled in the court-room at the beginning of the term and a foreman having been selected, they are sworn by the clerk in the following form : Oath of Foreman. — You, as foreman of the Grand Inquest of tlie State of -, for the body of County, shall diligently inquire and true pre- sentment make of all such matters and things as shall be given you in charge or shall otherwise come to your knowledge, touching this present service ; the counsel of the State of , your fellows' and your own, you shall well and truly keep secret ; you shall present no person through envy, hatred, malice or ill-will ; neither shall you leave any one unpresented through love fear, favor or affection, or for any hope or promise of reward : but you shall present all things truly as they come to your knowledge, according to the best of your understanding. So help you God. i3Bl..Comm. 383. H lb. 303; 3 Burr. 1088 ; Brucker i>. S., 16 Wis. 333 ; Pybos ». S., 3 Humph. (Tenn.) 49. »S. 11. Clough, 49 Me. 573. *U. S. 1). Hammond, Fed. Oas. 15,394 ; S. ». Clough, 49 Me. 573. 'S. 11. Cowan, 1 Head (Tenn.), 380; Byers v. S., 63 Md. 307. «S. ■». -Butler, 8 Yerg. (Tenn.) 83. 'Middlesex Spec. Comm., 6 C. & P. 90; S. v. Kilcrease, 6 8. C. 444. n Hawk., ch. 33, §4; U. S. «. Caton, Fed. Cas. 14,758; Exp. Maulsby, 13 Md. 635 ; Heard ». Pierce, 8 Cush. 338 ; P. v. Fancher, 3 Hun, 336. 'Reg. «. HoUoway, 9 C. & P. 43; S. v. Reid, 30 Iowa, 413. "S. ». Rockafeller, 6 N. J. L. 333 ; Avirett v. S., 76 Md. 511. "U. S. V. Gale, 109 U. S. 65. 92 Criminal Procedure Oath of other Jurors. — The same oath, your foreman hath taken, on his part, you and each of you, on your respective parts, shall well and truly observe and keep. So help you God. The oath is essential to the proper constitution of the grand jury.' It embodies the substance of their duties. After being sworn, they are instructed as to their duties by a charge from the presiding judge.^ § 133. Org-anization And Proceedings — The officers of the grand jury are a foreman, generally designated by the court, and a clerk, who must be one of their number.' An officer, usually a court bailiff or deputy sheriff, may be assigned to attend them. They inquire only for the body of the county for which sworn.* Their proceedings are ex farte" and secret," and they are bound and privileged not to disclose them,'^ but may, under exceptional circumstances, testify as to evidence given before them.' They may present offenders upon their own motion' (a doctrine restricted in some states'"), or upon the testimony of one of their number." They should present only upon substantial proof.'^ § 134. Prosecuting Attorney. — In the United States," the conduct of criminal prosecutions is within the exclusive prov- ince of certain public officers, elected or appointed as the attor- neys of the United States and of the various state governments, charged with the duty of representing only the public interests and responsible only to the public for the conduct of their office. iLyman v. P., 7Bradw. (111.) 345; Brown ». S.,10 Ark. 167. M HI. Comm. 303; 1 Chitty Or. L. 312. ^S. V. "Watson, 34 La. Ann. 669. *4 Bl. Comm. 303. 5Ib. ; 1 Chitty Cr. L. 317 ; Resp. ». Shaffer, 1 Ball. 236. «4 Bl. Comm. 126; 1 Chitty Cr. L. 317; Wilson ». S., 70 Miss. 595. lElbin «. Wilson, 33 Md. 135, 144. ^Post, I 308. 'Ward ®. S., 3 Misso. 120 ; Blaney ». S., 74 Md. 153 ;• S. ». Wilcox, 84 N. C. 847. i»C. ». Green, 126 Pa. St. 531 ; S. b. Lee, 87 Tenn. 114. "C. ». Hayden, 163 Mass. 453. 1^1 Chitty Cr. L. 318 ;_ Resp. i>. Shaffer, 1 Ball. 236. >'As to England, seei Stephen I-Iist. Cr. L. 495. Proceedings In Court 93 The duties of prosecuting attorneys are, in nearly all respects, regulated and prescribed by statutes. They should always be duly qualified practitioners of the law.^ At the head of the Federal " Department Of Justice, " there is an Attorney-General with an assistant, known as the Solicitor- General, and four^ Assistant Attorneys-General and various other ofiicers exercising their functions under his supervision and control.^ For the several Federal districts, prosecuting attorneys, known as District Attorneys of the United States are appointed.* The Attorney-General exercises general direction and superintendence over the attorneys and marshals of the United States.' § 135. Special Prosecuting; Attorneys. — The courts may, with the consent of the prosecuting attorney, if deemed for the public interest, associate other counsel with him, he remaining in control.* It is no ground of objection, that such counsel are compensated by private parties.^ Counsel employed and communicated with by the accused should not afterwards be permitted to prosecute.* The courts may appoint an attorney to prosecute during the time of temporary absence or disability of the proscuting attorney.' 'P. ■». Hallett, 1 Color. 352. 236Stat. L. 238. ^U. S. Rev. Stats. §§ 346-387. *Ib.?§ 767-775. 'lb. § 362. 60. «. Scott, 133 Mass. 321 ; Shelton o. S., 1 Stew. & P. (Ala.) 208; Edwards V. S., 47 Miss. 581 ; Meister ». P., 31 Mich. 99 ; Shular o. S., 105 Ind. 389 ; S. a. Skinner, 76 Iowa, 147; S. v. Taylor, 98 Misso. 240. ■"Robin*. S., 14 Neb. 540; Burkhard v. S., 18 Tex. App. 599; Keyes v. S., 133 Ind. 537. "Wilson «. S., 16 Ind, 393. 'White D. Polk County, 17 Iowa, 413; S. v. Johnson, 13 Tex. 331 ; S. v. Gon- zales, 26 lb. 197. 94 Criminal Procedure CHAPTER XVI. ESTDICTMENT. § 136. Defined An indictment is a written accusation of crime presented on oath by a grand jury. It may consist of one count or several counts; it maybe against one person or several persons. § 137. Form. — An indictment contains three parts: the commencement, the statement of the offense and the con- clusion. The whole indictment should be written, or printed, in the English language, upon paper or parchment, in words at length, not abbreviated or in figures, except in the case of documents set out in facsimile.^ The indictment is governed by the general rules of pleading.^ Various allegations formerly required, such as the condition or degree of the accused, have been dispensed with by modern statutes, and a number of expressions in ordinary use, bor- rowed from old precedents, may safely and properly be omitted.' ISTeither the signature of the foreman,* nor of the prosecuting officer,^ nor the endorsement, "a true bill"* is necessary. § 138. Return To Court. — When indictments have been found on the bills presented to the grand jury, they bring them publicly into court and hand them to the court clerk, who asks them, whether they agree, that the court shall amend matter of form, altering no matter of substance without their privity n Chitty Or. L. 176; 4 Geo. 3, ch. 26; 6 Geo. 3, ch. 14; Alexander Brit. St. 703, 718. But see Earl ii. S., 33 Tex. App. 570 (abbreviations), n Chitty Cr. L. 168. =Ib. 339-246. *S. B. Mertens, 14 Misso. 94. 5In re Lane, 135 U. S. 443, 449. 'Frisbie v. U. S., 157 U. S. 160. Indictment 95 and consent, to which it is necessary for them to signify their assent. Presentments are brought into court in the same manner. The papers, after examination by the jiidge, are then filed by the clerk and thus become a part of the records of the court.' The form of receiving presentments or indictments is as follows : The grand jurors having been severally called — Gleffk: Gentlemen, have you agreed upon any presentments or bills of indictment ? Present them to the Court. Are you content, the Court shall amend matters of form, altering no mat- ter of substance without your privity and consent, in those bills you have found? § 139. Commencement. — The commencement of an indict- ment is as follows : The Jurors^ of the State of {to wMeli may be added, in and for County) do on their oath' (or, oath and affirmation*) present. Every subsequent count must contain a like commencement, alleging a finding upon oath:' And the Jurors aforesaid, upon their oath aforesaid, do further present. Mere clerical and grammatical defects are immaterial.* That part of the record of a proceeding by indictment which precedes the commencement and recites the style of the court and the time and place of finding is called the captionJ § 140. certainty. — All the facts, and circumstances which constitute the oifense must be set forth with such certainty and precision as to inform the accused of the special character of the charge against him, enable the court to pronounce the proper judgment, and the accused to set up the judgment as a '1 Chitty Cr. L. 334-335; Byers «. S., 63 Md. 307. ^It is not necessary to say "grand jurors." U. S. v. "Williams, Fed. Cas. 16,707 ; C. V. Edwards, 4 Gray, 1 ; S. ». Pearce, 14 Plor. 153. 'Either ''oath" or "oaths" may be used. C. ». Sholes, 13 Allen, 554; S. v. Morris, 33 N. J. L. 537. *C. V. Fisher, 7 Gray, 493. n Chitty Cr. L. 349 ; S. ». McAllister, 36 Me. 374. «S. V. Brady, 14 Vt. 353. 'Arch., 19 ed., 39-40. 96 Criminal Procedure bar to a subsequent prosecution for the same offense.' If the description of an offense contains generic terms, the indict- ment must particularize the species.^ K the thing charged is unlawful or criminal only by reason of peculiar circumstances and relations, these must be set forth.' The charge must be laid positively, not by way of recital or inference;* but if a statement of one fact necessarily implies the existence of another, the latter need not be directly alleged.^ It is not necessary to state matters of evidence, such as in- struments or means made use of to accomplish an unlawful act,^ nor conclusions of law resulting from the facts stated,^ nor pre- sumptions of law, or matters of which judicial notice is taken,* nor to negative or anticipate matters of defense.' A general mode of allegation, without exact certainty, is sufficient as to facts peculiarly within the knowledge of the defendant,'" matters of inducement," or where great prolixity is thereb}' avoided'^ (provided, no essential element of the charge be omitted). It is sufficient to charge the party with being a common scold, barrator or night-walker,'' or with keeping a house of ill-fame, a disorderly or a common gambling house,'* and, in >1 Chitty Cr. L. 237-329 ; U. S. v. Cruikshank, 92 U. S. 542, 558. ^U. S. ■». Cruikshank, 92 U. S. 542, 558; C. v. Chase, 125 Mass. 262. »U. S. V. Cruikshank, 92 U. S. 543, 548; Batchelor v. U. S., 156 lb. 426; Ainsworth o. U. S., 1 App. D. C. 518, 533 ; S. v. Price, 31 Md. 448. *1 Chitty Cr. L. 231 ; S. v. Scribner, 2 Gill & Johns. (Md.) 346; C. v. New- buryport, 9 Pick. 143; C. v. Lannan, 1 Allen, 390; C. v. O'Donnell, lb. 593; S. 9). Perry, 2 Bailey (8. C), 17 ; S. v. Paul, 69 Me. 215. =3 Hawk., ch. 25, 2§ 60-61 ; R. v. Tilley, 3 Leach, 663. «U. S. u. Herbert, Fed. Cas. 15,354; TJ. S. v. Simmons, 96 U. S. 360, 364; Evans «. U. S. 153 lb. 584, 594-595 ; S. v. Dent, 3 Gill & Johns. (Md.) H; S. v. Falkenham, 73 Md. 463, 468 ; Cathcart ®. C, 37 Pa. St. 108, 114. n Chitty Cr. L. 231. »Ib ; Reg. V. Aspinall, 13 Cox C. C. 563. '1 Chitty Cr. L. 231a; C. v. Hersey, 3 Allen, 181 ; C. v. Hart, 11 Cush. 137. '"l Chitty Cr. L. 231 a; R. ». Dixon, 3 M. & 8. 11 ; 8. C, 4 Campb. 12. "Arch. 19 ed., 58; Reg. v. Bidwell, 3 Cox 0. C. 398; C. i>. Reynolds, 14 Gray, 90. '''Co. Litt. 303 b; U. 8. «. Gooding, 13 Wheat. 460, 475. "S. V. Russell, 14 R. I. 506 ; 8. ». Dowers, 45 N. H. 453. "3 Hawk., cb. 35, §57; 1 Chitty Cr. L. 330. Indictment 97 general, if the crime consists of a succession or continuation of acts, to charge merely the criminal practice or habit.' Offenses may be charged either according to outward form or legal operation.^ Matters unknown to the grand jury may be averred as '• to the jurors aforesaid unknown," if pertaining to mere incidental, identifying description, such as names of persons,' description of money* or other property,^ or manner of infliction of injury to the person;^ but the averment of matter vital to the substance of the charge cannot be thus avoided/ § 141. Constitutional Requirement. — Under provisions of the Federa? and various state constitutions, the accused has the right to be informed of the " nature and cause " of the accusation against him. These provisions mean, that the indictment must contain such a description of the offense as will enable the accused to make his defense and to plead the judgment in bar of any subsequent prosecution for the same crime.^ They are a limi- tation upon the power of the legislature to dispense with alle- gations necessary to describe the specific crime,*" as distinguished from merely formal averments." § 142. Indictments Upon Statutes. — The same general rules apply as in the case of indictments for common-law offenses.*^ '0. V. Pray, 13 Pick. 359. ^R. V. Healey, 1 Moody, 1 ; U. S. v. Keen, Fed. Cas. 15,510; C. ■». Bagley, 7 Pick. 279 ; C. V. Call, 31 lb. 515 ; P. «. Bliven, 113 N. Y. 79. 'Post, ? 147. 'Post, § 155. 'Pickett V. P., 8 Hun, 83. «S. ». Parker, 65 N. C. 453 ; S. v. Burke, 54 N. H. 92 ; Cox v. P., 80 N. Y. 500, 516. 'C. ®. Spilman, 124 Mass. 327; Wallace «. P., 27 111. 45. sConst. U. S., Amend. 6. 'U. S. V. Cruikshank, 92 U. S. 542; Rosen ». U. S. 160 lb. 29. "S. V. Learnard, 47 Me. 436; P. v. Olmstead, 30 Mich. 431; Murphy v. S., 24 Miss. 590; C. v. Harrington, 130 Mass. 35. "C. V. Freelope, 150 Mass. 66; Turpin v. B., 19 O. St. 540; Randall v. S., 133 Ind. 539; S. v. Schnelle, 24 W. Va. 767 (cases cited); Caldwell o. S., 38 Tex. App. 566, 581 ; Brown v. P., 39 Mich. 233. in Ohitty Cr. L. 375. 7 98 Criminal Procedure If the words of the statute are descriptive of the offense, the defendant must be brought within all the material words, leaving nothing to intendment.^ In the description of the offense, as a general rule, the words . U. S., 161 U. S. 446; Grain v. U. S., 163 lb. 635; G. «. Curtis, 9 Allen, 366; S. S.Woodward, 25 Vt. 616; S. v. Nolan, 15 R. I. 529; S. v. Murphy, 17 lb. 698; Byrne «. S., 12 Wis. 519; Davis v. S., 100 Ind. 154; Fahnestock e. S., 103 lb. 156 ; Boland v. P., 35 Hun, 433 ; Stearns v. S., 81 Md. 393 ; P. «. Leyshon, 108 Cal. 440; P. V. Thompson, 111 lb. 343; P. ». Gusti, 113 lb. 177. »R. ■». Jackson, 1 Leach, 367 ; C. ®. Symonds, 3 Mass. 163 ; P. ». Wright, 9 Wend. 193 ; Miller v. S., 5 How. (Miss.) 250. 'Post, i 555. Tost, 1 820. Tost, §577. 100 Criminal Procedure The same offense may be averred to have been committed by different means, provided the means charged do not render the pleading repugnant.' Several may be charged with a joint offense accomplished by the separate use *of different means.^ An injury to several persons inflicted by one act constitutes but one offense and may be charged in one count.* One count may charge the same offense as having been com- mitted with several intents.* A count is not rendered double by matter of aggravation,' or by a charge of an offense so inadequately alleged, that the averment may be rejected as surplusage.^ The defect of duplicity is ordinarily cured by the verdict, unless the offenses charged are distinct in kind and subject to different penalties.^ § 145. Dl^uncttve Allegations. — An averment in the disjunctive renders a count void for uncertainty,* unless it can be rejected as surplusage or immaterial to the charge,' or the alternative averments bear the same meaning and the word " or " or other disjunctive between them is used in the sense of " otherwise " or " to wit. "" '0. V. Brown, 14 Gray, 419, 430-431; S. v. O'Neil, 51 Kans. 651; S. v. Mat- thews, 43 Vt. 543. ^Sliaw 9. 8., 18 Ala. 547. m.v. Benfield, 3 Burr. 980, 984; Reg. ». Giddings, Car. & M. 634; S. «. Damon, 3 Tyler (Vt.)387; Eucker v. S., 7 Tex. App. 549 ; Kannon o. S., 10 Lea (Tenn.), 386 ; Oleson v. S., 20 Wis. 58 ; C. •!!. McLaughlin, 13 Gush. 615 ; C. ». O'Brien, 107 Mass. 208 ; Carson «. P., 4 Col. App. 463 ; S. v. Warren, 77 Md. 131. Contra : P. v. Alihez, 49 Cal. 452 ; S. v. Kash, 86 N. C. 650. *C. V. Igo, 158 Mass. 199; S. v. Pox, 80 Iowa, 312. »Reg. ». Clark, 6 Cox C. C. 210; McKinney v. S., 25 Wis. 378. «C. V. Simpson, 9 Mete. 138; S. -o. Henn, 39 Minn. 464; S. v. Haskell, 76 Me. 399 ; S. ■». Rollins, 55 N. H. 101 ; Henderson v. S., 2 Tex. App. 89 ; Jillard v. C, 36 Pa. St. 169 ; S. v. Smouse, 50 Iowa, 43. 'C. «. Holmes, 119 Mass. 195 ; S. v. Holmes, 28 Minn. 230 ; S. v. Miller, 34 Conn. 522, 530 ; S. v. Armstrong, 106 Misso. 395. n Chitty Cr.-L. 231 ; C. v. Grey, 3 Gray, 501 ; C. v. Perrigo, 3 Mete. (Ky.) 5 ; Hortonii. S., 60 Ala. 73; S. ».Naramore, 58N. H. 273; S. v. Drake, 30N. J.l'. 432, 437; Stearns «. S., 81 Md. 393. n Hale, 535 ; R. v. Wardle, R. & R. 9 ; S. v. Hester, 48 Ark. 40; Ballentine v. S., lb. 45 ; McGregor v. S., 16 Ind. 9 ; S. «. Corrigan, 24 Conn. 286. "C. V. Grey, 2 Gray, 501 ; S. «. Ellis, 4 Misso. 474 ; Ballentine v. S., 48 Ark. 45. Indictment 101 It has been held, that objection on this ground cannot prevail, if there is no such uncertainty as to embarrass the accused.^ § 146. Repugnancy. — Contradictory or repugnant expres- sions render a count void for uncertainty/ unless the expressions which tend to create the repugnancy or uncertainty can be rejected as immaterial or superfluous.^ An allegation which is sensible and consistent where it occurs and not repugnant to antecedent matter, cannot be rejected as surplusage, though inconsistent with a subsequent allegation.* § 147. Wames Of Persons. — The indictment should give the full name of the defendant, if known, and, if he has gone by and acknowledged more names than one, they may be added after an alius dictus.^ Ifames of third persons must be averred, whenever they serve to particularize the offense.* If names are unknown, this fact should be alleged and an appro- priate identifying description given .^ A corporation may be described, as a body corporate, by its appropriate corporate name.* A single vowel or consonant may constitute a baptis- mal name.' A party may properly be described by the name by which he is usually known or called." An illegitimate child ^S. V. Van Doran, 109 N. C. 684. ^2 Hawk., ch. 35, §? 63, 83 ; 0. v. Lawless, 101 Mass. 33; 8. v. Hand, 6 Ark. 165 ; 8. e. Pierson, 44 lb. 265 ; McGehee v. S., 36 Ala. 154 ; Jane «. 8., 3 Misso. 45 ; Roberts ». 8., 3 Tex. App. 4; 8. v. Jones, 8 N. J. L. 307. n Cbitty Or. L. 172-173; R. ». Morris, 1 Leach, 109; R. v. Gill, R. & R. 431 ; Reg. V. Huntley, 8 Cox 0. C. 360; 0. v. Pray, 13 Pick. 359 ; Taylor b. S., 100 Ala. 68 ; 8. v. Flint, 63 Misso. 393. *R. V. Stevens, 5 E. 244. »2 Hale, 175 ; Arch., 19 ed., 41 ; Kennedy b. P. , 39 N. Y. 345. Initials are no part of a naroe. Monroe Cattle Co. v. Becker, 147 U. 8. 47, 58. n Chitty Cr. L. 313-314; Arch., 19 ed.,142; Spielman v. S., 37 Md. 530, 524; 8. ». Cadle, 19 Ark. 613. Cf. P. v. Faust, 118 Cal. 173. n Chitty Cr. L. 212 ; Anonymous, R. & R. 489. 88. V. Waters, 1 Brev. (8. C.) 507; McOrary v. P., 45 N. Y. 153; Wallace v. P., 63 111. 451 ; P. V. Schwartz, 32 Cal. 160 ; White v. S., 24 Tex. App. 231. A slight inaccuracy in the name held immaterial. Rogers v, S., 90 Ga. 463. •Reg. ®. Dale, 5 Cox C. C. 171. "R. B. Norton, R. & R. 510 ; C. ®. Desmarteau, 1 Gray, 1, 17 ; S. ». Bundy, 64 Me. 507 ; Hix ». P., 157 111. 382. 102 Criminal Procedure may acquire a name by reputation.* A child not yet named is sufficiently described as " then lately born."^ The words "junior " and " senior " form no part of a name.^ Names need not be correctly spelled : it is sufficient, that the name alleged is idem sonans with the name as spelled.* § 148. Time And Place Time and place must be added to every material fact.' They 'need not be expressly repeated to every material averment, the words" then and there, "' or, if the meaning is thereby made sufficiently explicit, the conjunc- tion "and'"* being sufficient. Such words as "instantly," " immediately "■ and various indirect modes of expression in the form of participles have been held insufficient * If several times and places are mentioned, the use of the words " then and there " is insufficient, if it is uncertain to which of the prior allegations they refer;' but such a construction will, if reasonably possible, be adopted as to avoid ambiguity.'" If time and place have been named in one count, the allegation " day and year aforesaid " in a subsequent count is sufficient." § 149. Time The offense must be laid on a specific and certain day and year before indictment found,'^ within the period during which it may be prosecuted.*^ Time may be sup- plied by intendment," and a bad allegation thereof will, if "Reg. v. Evans, 8 C. & P. 765. ^Shannon v. P., 5 Mich. 71, 80. '3 Hawk., ch. 23, § 106 ; P. ». Bush, 7 Johns. 549 ; C. ■». Parmenter, 101 Mass. 311. *Faust ». U. S., 163 U. S. 452. n Chitty Or. L. 219 ; Reg. ». O'Connor, 5 Q. B. 16, 31. n Chitty Cr. L. 319-330; Palmer v. P., 138 111. 356. 'Cramlington's Case, Cro. Jac. 345; Stout v. C, 11 S. & R. 177; C. ». Bug- bee, 4 Gray, 306. 8R. ®. Francis, 2 Str. 1015 ; Reg. ». Brownlow, 11 Ad. & El. 119 ; Lester 9. S., 9 Misso. 666. 93 Hale, 180; S. v. Hayes, 34 Misso. 358; Connor 0. S., 39 Flor. 455. "Wright V. R., 1 Ad. & El. 434, 448. "Jones V. S., 68 Md. 613. 124 BI. Comm. 306 ; 1 Chitty Cr. L. 217 ; Jones v. S., 68 Md. 613 ; S. ®. Brown, 24 S. C. 334. >H Bl. Oomm. 806; Ball ». U. S., 140 U. S. 118, 133. "2 Hawk., ch. 25, § 78 ; C. v. Stone, 3 Gray, 453 ; C. ». Wood, 4 lb. 11 ; Brass- field u. 8., 55 Ark. 556. Indictment lOS possible, be rejected as surplusage.' If a particular time is essential to the description of a charge ( e. g., Sunday, election day), the indictment must, in addition to the day of the month and year, expressly allege such time f but, if the day of the month alleged happens not to correspond with such special time, the error is immaterial.' The hour need not be alleged;* but, if the precise time of day. is essential to the description of the charge, it must be averred.' Continuing otfenses" (but no others'') may be alleged as having been committed from one date to another, or, if consis- tent with the nature of the charge, they may be alleged as having been committed on a specified day.^ It is sufiicient, in alleging the year, to use the averment " in the year," without the words " of our Lord " or their equiva- lent.« "When a question of the sufficiency of the pleadings arises, the time alleged is taken as the true time." § 150. Place. — Place must be alleged to be within the jur- isdiction of the court," which is ordinarily the county,'^ but may be a lesser locality.'^ If a precise place is essential to the description of the charge, it must also be alleged." Place is sufficiently indicated in the body of a count by reference to an '3 Hawk., ch. 35, § 83 ; R. v. Gill, R. & R. 431 ; U. S. b. La Coste, Fed. Cas. 15,548; Wells «. C, 12 Gray, 336; S. t>. Woodman, 3 Hawks (N. C), 384; Cowley 0. P., 83 N. Y. 484. 2S. !). Dodge, 81 Me. 891; Shepler o. S., 114 Ind. 194. 5Roy ». S., 91 Ind. 417; S. «. Bryson, 90 N. 0. 747. n GMtty Or. L. 319. 'lb. ; Reg. ». Moylan, 3 Crawf. & D. 500. 8Wells ». C, 13 Gray, 336; S. v. Bosworth, 54 Conn. 1. 'C. B. Fuller, 163 Mass. 499. »Reg. V. Frith, 11 Cox C. C. 384 ; Reg. 'u. Hen wood, lb. 536 ; S ». Ah Sam, 14 Or. 847. "C. 1). Doran, 14 Gray, 87. >»U. S. V. Fox, Fed. Cas. 15,156. "3 Hawk., ch. 35, ?88; 4 Bl. Comm. 806; Ball v. U. S., 140 U. S. 118; St. Clair «. U. S., 154 lb. 184. '^S. V. Moore, 34 S. C. 650; S. ». Smith, 5 Harr. (Del.) 490. "McBride v. S., 10 Humph. (Tenn.) 615 ; P. i>. Wong Wang, 93 Cal. 377. "4 Bl. Comm. 306 ; S. s. Turnbull, 78 Me. 393. 104 Criminal Procedure allegation thereof in the margin of the indictment/ or in a preceding count.^ The name of the state, or commonwealth, need not be inserted.' § 151. IVrltteii Instruments. — "When written instruments form part of the gist of the offense charged, they must be set out verbatim, in words professing to give the tenor.* If part only of a writing constitutes the offense, the sense thereof not being altered by the remainder, such part alone may be set out.^ A memorandum or the like appended to a writing necessary to be set out may be omitted, if immaterial to its character.^ If a writing is so obscene, that it is improper to put it on record,^ or has been lost, destroyed, or the like,' a statement of such fact together with a description of the con- tents is sufficient. If a writing must be recited merely as a part of the description of an offense, it may be alleged accord- ing to its legal effect, substance or purport.' When an instrument is set out as having a certain purport, the meaning is, that upon the face of it its legal effect is that which it is said to purport to be.^" The words " according to the tenor following," " in the words and figures following " and the like import a correct recital, but not so as to exclude 12 Hale, 180 ; 1 Chitty Cr. L. 194; 0. v. Quin, 5 Gray, 478; S. ». S. A. L., 77 Wis. 467. »Noe V. P., 39 111. 96. »S. V. Lane, 4 Ired. (N. C.) L. 113, 121 ; S. v. Wentworth, 37 N. H. 196, 221 ; S. V. Jordan, 12 Tex. 205; S. ». Walter, 14 Kanp. 375. ^Reg. V. Bradlaugli, 14 Cox C. C. 68; C. v. Wright, 1 Gush. 46; C. v. Tar- box, lb. 66; Smith v. 8., 18 Tex. App. 399 ; S. ». Townsend, 86 N. C. 676. «R. •». Beare, 2 Salk, 417; C. ■». Harmon, 2 Gray, 289; Richardson v. S., 66 Md. 205, 211. 'Tabart v. Tipper, 1 Campb. 350 ; P. v. Franklin, 3 Johns. Cas. 299 ; Miller t). P., 52 N. Y. 304; S. «. Carr, 5 N. H. 367, 373; C. v. Bailey, 1 Mass. 62; Hess V. S., 5 Ohio, 5; Perkins p. C, 7 Gratt. (Va.) 651; Langdale ». P., 100 111. 263. 'Rosen ». U. S., 161 U. S. 29. sp. ». Kingsley, 2 Cow. 522 ; S. o. Davis, 69 N. C. 313 ; Munson ». S., 79 lud. 541; S. V. Callahan, 124 lb. 864. 'Reg. B. Coulson, 4 Cox C. C. 227; U. S. ». Keen, Fed. Cas. 15,510; Fre- leigh V. S., 8 Misso. 606, 613 ; P. o. Taylor, 3 Den. 99; S. v. Williams, 19 Ala. 15 ; S. V. Dunn, 199 N. C. 839 ; C. ». Brettun, 100 Mass. 206. '«S. v. Pullens, 81 Misso. 387, 392. Indictment 105 mere misspelling.' The words "in manner and form follow- ing," " to the effect following," " in substance as follows " and the like import, that the writing is in substance what it is alleged to be.^ § 152. Spoken 'Words. — If words are of the gist of an offense, they must be set forth with particularity.^ If they are not of the gist of the offense, the substance is sufficient.* § 153. Tfords In Foreign Language. — The setting out of words written or spoken in a foreign language is governed by the rules stated in sections 151-152. The tenor is set out by an exact averment of the original accompanied by an accurate translation,'' in form substantially as follows : Of the tenor following {inserting original), which, being translated Into the English language, is as follows {inserting translation). In cases where only the substance need be set out, the English alone is sufficient.^ A proper name written in foreign characters idem sonans with the English language need not be treated as in a foreign language.^ § 154. Real And Personal Property. — Property which is the subject of an offense must be described with such reason- able and convenient certainty,^ having due reference to the nature of the case,^ as will identify the particular chatteP or 11 Chitty Or. L. 234; S. v. Brownlow, 7 Humph. (Tenn.) 63; Dana «. S., 3 0. St. 91 ; C. D. Desmarteau, 16 Gray, 1, 15 ; S. «. Jay, 84 N. J. L. 368 ; S. v Bonhey, 34 Me. 383; S. v. Witham, 47 lb. 165. n Chitty Cr. -L. 334; S. ». Coffey, 3 Murphy (N. C), 330. 'Arch., 19 ed., 61 ; Eeg «. Bradlaugh, 14 Cox C. C. 68 ; TJpdegraph v. C, 11 S. & R. 394, 410; 8. v. Barham, 79 N. C. 646. *A.rch., 19 ed., 61 ; C. ». Moulton, 108 Mass. 307. 'Zenobio ®. Axtell, 6 T. R. 163; R. v. Goldstein, R. & R. 473; S. v. Marlier, 46 Mo. App. 333, 336. «Reg. V. Thomas, 3 C. & K. 806. 'Duffin v. P., 107 111. 113, 119. «3 Hawk., ch. 35, § 74. 90. ». Sawtelle, 11 Cush. 143. "Reg. i>. Bonner, 7 Cox 0. C. 13 ; Dunbar «. U. S., 156 U. S. 185 ; 0. v. Strang- ford, 113 Mass. 389 ; S. v. Dowell, 3 Gill & Johns. (Md.) 310; S. b. Dawes, 75 Me. 51 ; Robinson «. S., 32 Gratt. (Va.) 866. 106 Criminal Procedure premises* and bring such chatteP or premises^ within the class in regard to which the offense can be committed. It is, in general, necessary to ascertain the quantity by an averment of magnitude, weight or number.* Chattels should be described specifically by the name usually appropriated to them or by which they are known,° not by the name and quantity of the material of which they are composed.^ If crude material has been manufactured so as to lose its identity, it should be described by the name of the article into which manufactured; but, if it is only partially manufactured, as where iron is shaped into rods and bars, not thereby having lost its identity or acquired a distinctive name in general accep- tation, it may be described by the name and quantity of the material;^ and if a manufactured article has been broken up or the like so as to lose its identity as such, the description must be by the name and quantity of the material.* Substances chemically mixed should be described by the name of the mixture.' In describing animals, if they are dead, the fact should be stated;" if living, they are described as animals of such or such a species, detail as to color, sex, variety etc. being unnecessary." If parts of animals are the subject of the charge, the description iC. 0. Hall, 15 Mass. 340; C. v. Brown, 15 Gray, 189. 23 East P. C. 607; McCarty v. S., 1 Wash. 377; Stollenwerk v. S., 55 Ala. 143. ^Kincaid ». C, 139 111. 313. *3 Hawk., ch. 35, §74; C. v. Maxwell, 3 Pick. 139. SR. 0. Nibbs,l Moody, 35 ; C. i>. James, 1 Pick. 375; C. v. Shaw, 145 Mass. 349. «C. V. Clair, 7 Allen, 525. 'Reg. V. Mansfield, Car. & M. 140 8R. ». Holloway, 1, C. & P. 138. 9Reg. ». Bond, 1 Den. C. C. 517, 531. i»C. V. Beaman, 8 Gray, 497. Held, that if it is immaterial to the chai-ge, whether an animal is alive or dead, a dead animal need not be described as such. R. v. Puckering, 1 Moody, 343. "S. V. Hoffman, 53 Kans. 700 ; Lavender ». S., 60 Ala. 60, "One beef " held sufficient. S. «. Baden, 43 La. Ann. 295. Indictment 107 may be in general terms without stating the name of the animal, as, e. g., " one ham.'" Chattels may generally be described by a generic name, even though the indictment is under a statute which has distinguished genus and species.^ If number is material and several articles are described, the number of each should be expressed.^ Value need only be alleged, if it is essential to the offense.* § 155. Money. — If money is the subject of an offense, it should be described according to its particular kind and denomi- nation.' Paper money should be described so as to identify the particular note, certificate or the like and to bring the offense, if created by statute, within the terms thereof.* In the descrip- tion of bank notes, the name of the bank need not be given.'^ If a particular description of money which is the subject of the charge is unknown, a general description together with an averment of such fact may be given.' In indictments for embezzlement by public officials or officers of corporations and in analogous cases, where the amount appropriated was received in various sums, it is sufficient to specify the sum in gross. *• A general description of coin or paper money has been held sufficient in indictments for larceny and kindred offenses.'" § 156. Ownership And Possession. — If ownership or possession enters into the description of an offense, the name 'Reg. V. Gallears, 3 Cox C. C. 572. But "one hundred pounds of meat" held bad for uncertainty. S. v. Morey, 2 Wis. 494. 2Reg. V. Spicer, 1 Den. C. C. 82; note, lb. 528. Contra: S. ». Plunket, 1 Stew. (Ala.) 11. 32 Hale, 183 ; R. v. Gilbert, 1 E. 583. <3 Hale, 183 ; S. v. Perley, 86 Me. 437. =Moore ». U S., 160 U. S. 268. ^Kearney «. S., 48 Md. 16, 23. 'Foster ». S., 71 Md. 553. 80. V. Sawtelle, 11 Gush. 143, 145 ; S. v. McAnulty, 36 Kans. 583, 536; P. v. Bogart, 36 Cal. 345 ; Haskins v. P., 16 N. Y. 344. 'Moore ». U. S., 160 U. S. 368. "See forms (with notes citing authorities), post, i 715. 108 Ckiminal Procedure of the person having possession or title must be averred, or, if it is unknown, that fact stated.^ Ownership, in various cases, is to be laid as follows : In the person having possession, provided the possession is accompanied with a beneficial interest,^ or is in thenature of a charge, such as that of bailee,^ as distinguished from mere cus- tody, such as that of a servant/ Property belonging to corpor- ations, in the corporate name;'' to voluntary associations^ and to partnerships,^ in the name of the individuals composing them. Property belonging to a feme covert, at the strict common law, in the husband;* under modern conditions as to property, in either.' Property in a coffin or goods found on a corpse, in the name of the person who supplied them, the personal rep- resentative of the decedent, or a person iinknown ;" property in goods of a decedent, in the name of the personal representa- tive." Property in goods let to a lodger, if taken by a third party, in the lodger ;'^ in goods seized in execution, in the original owner ;'^ goods supplied to children, in either child or parent;" goods stolen from one who has himself stolen," in either the true owner or the person who stole from him.'' Ownership of personal property is ordinarily designated by the phrase " of the goods and chattels of, " and may also be n Chitty Cr. L. 212-215; S. «. Blizzard, 70 Md. 385,390-391; Boles «. S., 58 Ark. 35. =1 Hale, 512; Fowler v. S., 100 Ala. 96. »Arch., 19 ed , 44; Reg. ». Webster, 9 Cox C. C. 13; S. v. Allen, 103 N. C. 433; S. «. McRae, 111 It). 665. *Arch., 19 ed., 44; S. v. Symonds, 1 N. H. 389 ; C. ®. Morse, 14 Mass. 217; Dillenback v. Jerome, 7 Cow. 294; Morton^u. P., 8 lb. 137. '1 Chitty Cr. L. 214. «Reg. ». Tankard, 17 Cox C. C. 719. 'McCowan «. S , 58 Ark. 17. 82 Russ. Cr., 9 ed., 287-388. 'Kennedy v. S., 31 Plor. 438, 434; Rollins ». S., 98 Ala. 79. "2 Russ. Cr., 9 ed., 398; S. e. Doepke, 68 Misso. 308, 211. "2 Russ. Cr., 9 ed., 298-299. i^^Arch., 19 ed., 45. I'Ib. "2 Russ. Cr., 9 ed., 294; Arch., 19 ed., 45; S. v. Koch, 4 Harr. (Del.) 570. "Arch., 19 ed., 45; "Ward o. P., 3 Hill, 395, 398; C. v. Finn, 108 Mass. 466. Indictment 109 designated by the phrase "belonging to, '" and the ownership of real property is sufficiently designated by the word " of."^ No great legal nicety is required in designating ownership ; but it must be stated directly, not inferentially : e. g., it is not a sufficient designation of ownership of a chattel to aver, that it was stolen " from " a certain person.^ An insufficient designa^ tion of ownership may, at times, be rejected as surplusage.* § 157. Intent. — Wrongful, evil or criminal intent, in the general sense of the term, is not an essential averment of a charge of crime.^ If a specific evil intent is an essential ingre- dient of the crime charged, it must be alleged.^ The allega- tion must be positive, not by way of argument or implication.'^ It may, in some cases, be made in the prefatory part of the indictment.* It must occur in every material part where it is necessary to the constitution of the offense.' § 158. Rnow^ledge. — Guilty knowledge is not an essential averment of a charge of crime generally.^" K a particular knowledge on the part of the defendant is an essential ingre- dient of the crime charged, it must be alleged.'^ "Knowingly," "well knowing," or the like is ordinarily a sufficient form of allegation.'^ The allegation must be positive and direct, and the words imputing knowledge must qualify that part of the charge which specifies the act or omission to which knowledge applies in the definition of the offense.'^ IS. ». Hamilton, 15 Gray, 80 ; 8. v. Fox, 80 Iowa, 310. ^C. V. Williams, 3 Cush. S83. 3S. V. Ellis, 119 Misso. 437. *Reg. «. Godfrey, 7 Cox C. C. 392 ("of the goods and chattels," when ap- plied to money). 'S. V. Kurds, 19 Neb. 316. sPettibone ti. U. S., 148 U. S. 197 ; P. v. Lohman, 3 Barb. 316 ; 0. v. Black, 19 Pick. 304. '0. V. Dean, 110 Mass. 64. 80. «. Haynes, 3 Gray, 73. 'C. V. Boynton, 13 Cush. 499. i»C. V. Elwell, 3 Mete. 190 ; C. ®. Raymond, 97 Mass. 567. "Pettibone v. U. S., 148 U. S. 197; Stein v. 8., 37 Ala. 133; S. «. Bloedow, 45 Wis. 379. 12R. e. Lawley, 3 Str. 904. i^U. S. v. Carll, 105 U. S. 611 ; C. v. Boynton, 13 Cush. 490; C. b. Dean, 110 Mass. 64; P. ii. Smith, 103 Oal. 563. 110 Criminal Procedure § 159. Technical l»^ords Certain particular words are appropriated to the description of particular offenses' and grades of offenses, and no synonymous or equivalent words will supply their place in an indictment.^ In indictments for felony, the word " feloniously " is necessary,' except in the case of offenses created by statute in such terms, that the intent designated by the word does not enter into the description of the offense.^ The word feloniously in indictments for misdemeanor may be rejected as surplusage.' The word " unlawfully " need not be used in indictments for misdemeanor, unless it is part of the necessary description of a statutory offense.^ Its use does not supply the absence of any material allegation.^ In indictments for treason, the acts must be laid to have been done by the accused " treasonably {or, traitorously) and against his alleg- iance."* § 160. Matter Of Aggravation. — If an increased or higher penalty is imposed for an offense by reason of a previous con- viction or other circumstance, the aggravating circumstance must be alleged in the indictment, in order to justify the impo- sition of such penalty.' An allegation of a previous conviction under such circum- stances does not amount to a'charge of crime.'" The. averment is sufficient, if the fact of former conviction is clearly alleged. 'Given under titles relating to those offenses. ^3 Hawk., ch. 25, ? 55 ; 4 Bl. Comm. 306-307. '3 Hawk., ch. 25, § 55; 4 Bl. Comm. 307; Reg. ». Gray, 9 Cox C. C. 417; Kaelin v. S., 84 Kent. 354 ; S. ». Rucker, 68 N. C. 211 ; Randall «. C, 24 Gratt. (Va.) 644. *Bannon ». U. S., 156 U. S. 454. Cf. R. e. Crighton, R. & R. 62. 'C. 11. Squire, 1 Mete. 358; S. ». Upchurch, 9 Ired. (N. C.) L. 454; S. v. Staten, 88 N. C. 654; 8. ». Wimberg, 3 McC. (S. C.) 190; Hess u. S., 5 Ohio, ■ 1, 13 ; Hackett ». C, 15 Pa. St. 95 ; Staeger v. C, 103 lb. 469 ; S. v. Sparks, 78 Ind. 166; S. «. Crumney, 17 Minn. 72. Contra: Black v. S., 2 Md. 376; S. v. Darrah, 1 Houst. (Del.) Cr. 112. 2 Hawk., ch. 25, ? 96; 1 Chitty Cr. L. 241 ; C. e. Twitchell, 4 Cush. 74; S «. Skolfield, 86 Me. 149; S. ®. Hodges, 55 Md. 137, 137. 'U. S. ». Driscoll, Fed. Cas. 14,994 ; C. v. Byrnes, 136 Mass. 348. 92 Hawk., ch. 25, ? 55 ; 4 Bl. Comm. 307. Cf. post, § 220. •Reg. V. Willis, 13 Cox C. C. 192; 0. ®. Harrington, 130 Mass. 35. '»S. V. Adams, 64 N. H. 440. Indictment 111 without setting forth the conviction itself.' The allegation may be in the prefatory part of the indictment.^ Several previous convictions may be alleged, as tending to show the offense charged to be a second offense.^ § 161. Surplusage. — Any immaterial statement that would render an indictment bad for uncertainty, duplicity, or the like, may be rejected as surplusage, provided that, after striking out such matter, the remainder constitutes a sufficient charge of crime ;'' but if an allegation of unnecessary matter is so worded as to show, that there is no foundation for the prosecution, it vitiates the indictment.'' An unnecessary and erroneous state- ment of a conclusion of law, e. g., as to the name or nature of the offense charged, may always be rejected as surplusage.^ In general, any averment that can be regarded as an inference from facts otherwise sufficient to support the indictment will be rejected as surplusage. Thus, if money otherwise properly described, is referred to as " goods and chattels,"'' or, in like manner, a private obligation "as money ,"^ the erroneous aver- ment is treated as surplusage. § 162. Joinder Of Counts. — Several counts may be joined in an indictment. The joinder of counts proceeds upon the theory, that the offenses charged are distinct f but the legitimate use of several counts is, generally speaking, restricted to charging the same offense in various forms, for the purpose of meeting different 'Cureton ». Reg., 8 Cox C. C. 481. 2Reg. ». Hilton, 8 Cox C. C. 87. »Reg. «. Clark, 6 Cox C. C. 210. ■•C. «. Pray, 13 Pick. 359; C. «. Penniman, 8 Mete. 519, 531: C. ■b. Randall, 4 Gray, 36 ; C. ». Keefe, 7 lb. 333 ; C. ». Jeffries, 7 Allen, 548, 571 ; P. ii. Leh- man, 3 Barb. 316, 230; Rawlings v. S., 2 Md. 201, 213; 8. v. Corrigan, 24 Conn. 386. "Com. Dig., Pleader, C, 29; R. ■». Murray, 5 C. & P. 135. 'Reg. v. Hodgkiss, 11 Cox C. C. 365; Reg. v. Macpherson, lb. 604; U. S. o. Elliott, Fed. Cas. 15,044; U. S. v. Lehman, 39 Fed. R. 768; 8. e. Davis, 41 Iowa;, 811. 'Eastman ». C, 4 Gray, 416. sReg. ®. Godfrey, 7 Cox C. C. 393. 'O'Connell o. Reg., 1 Cox C. C. 413, 498 ; U. 8. v. Pirates, 5 Wheat. 184, 301 ; Dealey ». U. 8.,' 153 U. S. 539. 112 Criminal Procedure phiases of the evidence' — at least, the offenses charged should be of the same general nature.^ "Within these limitations it is permissible to join in an indictment, not only various counts for misdemeanors, but to charge several felonies' and to join counts for felony and misdemeanor.* The courts will guard against injustice and abuse, and not permit such a joinder of counts as to embarrass the accused in his defense, it being discre- tionary vrith them to quash the indictment, permit a nolle prosequi as to a count or counts, or compel the prosecution to elect on which count or counts to proceed.'* Each count should be so worded as to form a perfect presentment of crime in itself;^ but one count may be supplemented by a reference to a preced- ing one, provided such reference is so full and distinct as in effect to incorporate the matter going before with that in the subsequent count.'^ §163. Joinder Of Defendants. — J£ several engage in a crime, they may, at the election of the government, be indicted separately or jointly.* If an offense is of such a character, that in the nature of things there can be no joint criminality, several persons can not be charged in the same count with its joint commission ; but it is no objection, that the joint commission of an offense 'P. V. Aikin, 66 Mich. 460, 470 ; P. v. Adler, 140 N. Y. 331. 'Johnson «. S., 39 Ala. 62; Wheeler v. S., 42 Md. 563, 566; Porath v. S., 90 Wis. 527 (incest and rape). 'Castro V. Reg., 6 App. Cas. 339; Pointer v. U. S., 151 U. S. 396; S. v. McNally, 53 Md. 559, 563. *Burk «. S., 3 Harr. & Johns. (Md.) 436; Hawker «. P., 75 K. Y. 487; C. v. McLaughlin, 13 Cush. 613; Harwood ®. C, 52 Pa. St. 424; Stevick «. C, 78 lb. 460 ; Hunter v. C, 79 lb. 503 ; S. v. Lincoln 49 N. H. 464; S. o. Stewart, 59 Vt. 273, 284; Herman v. P. 131 El. 594. "Castro V. Reg., 6 App. Cas. 339; Pointer v. U. S., 151 U. S. 396; Pierce e. U. S., 160 lb. 355; Bell v. S., 37 Md. 675. 'C. V. Sullivan, 6 Gray, 477; S. v. Longley, 10 Ind. 482; S. ». Wagner, 118 Misso. 626; Watson v. S., 134 111. 374. n Chitty Or. L. 350; Blitz v. U. S., 153 U. S. 308, 316; Crain v. U. S., 163 lb. 635, 633; C. b. Miller, 3 Pars. Sel. Cas. (Pa.) 480; P. ». Graves, 5 Park. Cr. R. 134; P. V. Danily, 53 Hun, 479 ; Jones v. S., 68 Md. 613, 616 ; S. ». Nel- son, 39 Me. 329, 336. 83 Hale, 173. Indictment 113 so charged is improbable.' Several can not be charged jointly with false swearing,^ uttering obscene words,^ drunkenness,^ or enlisting as soldiers in violation of neutrality laws;^ but several may be jointly charged with singing a libelous or obscene song,® and a count charging two with homicide by shooting with a gun " held in their hands " was held good/ If several be guilty of separate offenses of the same nature, they may be indicted jointly, in separate counts, or in the same count or counts, provided, that in the latter instance, it suffi- ciently appears, by the use of appropriate words,* or from the context,' that the commission of the alleged offenses was sepa- rate. The courts will quash such an indictment, if hardship or inconvenience is likely to result.'" An individual and a corporation may be jointly indicted." § 164. Modes Of Charging Principal. — The actual per- petrator of felony or misdemeanor is simply charged with the commission of the offense. Principal in the second degree in felony may, at the election of the prosecutor, be charged with the actual commission or as accessory at the fact.'^ In the latter case, the indictment, after stating the offense of the principal in the first degree, should aver, that he then and there feloniously was present, aiding and assisting the principal in the first degree the felony aforesaid to do and commit.'^ 12 Hawk., ch. 25, ? 89 ; St. Clair v. U. 8., 154 U. S. 134, 145; C. i). Sampson, 97 Mass. 467, 409 ; C. ». Miller, 3 Pars. Sel. Cas. (Pa.) 481. 2R. V. Phillips, 2 Str. 921. 'S. a. Roulstone, 3 Sneed (Tenn.), 107. *S. V. Beaton, 92 N. C. 788. 'U. S. «. Kazinski, Fed. Cas. 15,508. «R. 0. Benfield, 2 Burr. 980,985. 'Evans v. S., 58 Ark. 47. «3 Hale, 173 ; 2 Hawk., ch. 35, § 89. 'C. 11. McChord, 2 Dana (Ky.), 242. '»S. ». Nail, 19 Ark. 563. "S. ®. Atchison, 8 Lea (Tenn.), 729. "2 Hawk., ch. 33, i 76; Post. 351 ; 1 Chitty Cr. L. 360 ; Reg. v. Crisham, Oar. & M. 187; 0. «. Chapman, 11 Cush. 633. '^2 Chitty Cr. L. 4 ; R. t>. Nicholas, 7 C. & P. 538 ; Everett e. S., 33 Flor. 661 ; P. «. Callaghan, 4 Utah, 49, 62. 114 Criminal Procedure Aiders and abettors in misdemeanors may be charged, according to legal operation, as actual perpetrators of the oiFense or according to the special circumstances.^ § 165. Mode Of Cliarging Accessories. — An indictment against an accessory should, after stating the offense of the principal or principals, aver, in the case of an accessory before the fact, that he, before the said felony by the principal commit- ted, feloniously abetted, incited and procured him to do and commit it, and in the case of an accessory after the fact, that he did afterwards, at such a time and place, well knowing the said principal to have committed the said felony, feloniously comfort, receive, harbor and maintain him.^ One may be charged in separate counts of the same indict- ment with being accessory before and accessory after the fact.^ § 166. Conclusion. — Every indictment must conclude by alleging the crime to have been committed " against the peace " of the state or government prosecuting.* If, at the time of the commission of the offense, the territory was subject to the laws of another state, the conclusion must be against the peace of that state.^ Indictments upon statutes conclude, "against the form of the statute, (or statutes) in such case made and provided, and against the peace " etc.^ These precise technical words are not neces- sary : any form of expression which shows, that the offense is founded on a statute is sufficient.'' In strict theory, an indict- ment founded upon several statutes should conclude, " against the form of the statutes, " but the conclusion in the singular is generally sufficient,^ particularly in cases where the offense is iReg. V. Tracey, 6 Mod. 30, 33 ; C. o. Park, 1 Gray, 553. n Chitty Or. L, 373 ; 3 lb. 5 ; C. v. Adams, 137 Mass. 15 ; S. v. Atkinson, 40 S. C. 363. m. V- Blackson, 8 C. & P. 43. *R. B. Cook, R. & R. 176; Reg. v. Lane, 6 Mod. 138; Richardson v. 8., 66 Md. 305, 314. 'Damon's Case, 6 Me. 148. «R. B. Pearson, 1 Moody, 313; C. e. Springfield, 7 Mass. 9; S. «. Evans, 7 Gill & Johns. (Md.) 390. ■'U. S. v. Smith, Fed. Cas. 16,338. »S. V. Wilbor, 1 R. I. 199. Indictment 115 created by one statute, though the punishment or mode of pro- cedure is prescribed by another statute or statutes.^ If a statute changes the nature and degree of an offense exist- ing at common law, the conclusion should be, " against the form of the statute ; "^ if it only directs a different mode of punish- ment or procedure, " against the peace" merely.^ The words " against the form of the statute " may be rejected as surplusage, if the indictment remains good at common law.* A constitutional requirement as to the form of conclusion is mandatory;^ but a literal transcript of the formula is not neces- sary,^ and added words may be rejected as surplusage^ The requirement has been held not to extend to informations.* Each count must have the formal conclusion.' § 167. Amendmeiit. — As the indictment is the finding of a jury upon oath, it can not be amended by the court without the concurrence of the grand inquest by whom it was pre- sented.'" In cases in which a proceeding by indictment is required by a constitutional provision, an amendment in any matter of substance can not be authorized by statute." § 168. Lioss Or Destruction. — ^Papers or entries forming part of the record of a cause, if lost, destroyed or erroneously noted, may be supplied by copies or new or corrected entries by direction of the court.''' The place of an indictment upon which 'Butman's Case, 8 Me. 113 ; S. v. Berry, 9 IST. J. L. 374; S. a. Dayton, 33 lb. 49, 61. =^1 Chitty Or. L. 290. 'Williams ». Reg., 1 Cox C. C. 179; S. i>. Evans, 7 Gill & Johns. (Md.) 290; Fuller V. S., 1 Blackf. (Ind.j 63; Russell ». C, 7 8. & R. 489. *1 Chitty Cr. L. 289; Resp. «. Newell, 3 Yeates, 407, 414; C. «. Reynolds, 14 Gray, 87 ; J. e. Buckman, 8 IST. H. 203 ; S. «. White, 15 S. 0. 381, 889. «S. V. r ..i, 8 Tex. App. 354. «S. 1), liobinson, 27 S. C. 615; S. «. Allen, 8 W. Va. 680. ' ■■S. V. Reakey, 1 Mo. App. 3; 8. ». Waters, lb. 7; 8. k. Schloss, 93 Misso. 361. Contra: Hann v. 8., 13 Tex. App. 383. sNicoUs V. a., 35 Wis. 308. 'Williams v. 8., 47 Ark. 230; 8. v. Strickland, 19 8. C. 191. Contra: Steb- bins V. 8., 31 Tex. App. 394. i»Exp. Bain, 131 U. 8. 1 ; Byerss. 8., 63 Md. 307; S. v. McCarty, 17 R. 1. 370. "Startup i>. S., 39 N. J. L. 433, 433. "1 Chitty Cr. L. 731-722; P. «. Curtis, 113 Cal. 68. 116 Criminal Procedure the accused has been arraigned, or to which he has pleaded, may be thus supplied.' It has been held, that a lost indictment^ or information^ may be supplied by a copy at any stage of pro- ceedings. A party may be tried upon an indictment which is merely mutilated.'' 'S. V. Rivers, 58 Iowa, 103; Bradford v. S., 54 Ala. 230 ; Mount v. S., 14 Ohio, 295. Contra: Bradshaw v. S., 16 Gratt. (Va.) 507. =S. V. Gardner, 13 Tenn. 134; S. o. Simpson, 67 Misso. 647. ' 'Long V. P., 135 111. 435. *0. V. Roland, 97 Mass. 598. Arraignment 117 CHAPTER XVII. ARRAIGNMENT. § 169. Ufature And Object. — Upon indictments for treason and felony, not misdemeanor, the first proceeding, in regular course, after the accused comes into court, or is brought in by process, is his arraignment, or calling him to the bar of the court, to answer the matter charged upon him,^ the object being, to identify the prisoner, inform him of the charge and demand and receive his plea.^ § 170. Requisites. — Arraignment consists essentially of calling upon the prisoner by name, reading to him the indict- ment and demanding of him whether he is guilty or not guilty.* Holding up the hand is not essential;* and it has been held not necessary to ask the prisoner, how he will be tried,' or to read the indictment to him, if he has been furnished with a copy.^ § 171. Form. — The formula used at arraigning prisoners is as follows : Clerk. A. B , hold up your right hand. You stand indicted as follows .• {reading indictment) What say you — are you guilty of the matter whereof you stand indicted, or not guilty? If the prisoner says not guilty, the clerk usually asks — How will you he tried? [The common answer is either " hy the country " {or, "jury"), or "hy the court."] § 172. Procedure. — The prisoner should be brought to the bar without irons, or any manner of shackles or bonds, unless there be evident danger of an escape.^ 14 Bl. Comm. 333. ^Davise. S.,39 Md. 354, 384. 'C. V. Hardy, 3 Mass. 303, 306. ^Settled law since Stafford's Case, Raym. 407, 408. 'U. S. 0. Gibert, Fed. Oas. 15,304; S. v. Weber, 33 Misso. 331. «Goodin v. S., 16 O. St. 344; Minich v. P., 8 Color. 440. '4 Bl. Comm. 333. 118 Criminal Procedure If he is a foreigner/ or deaf and dumb,^ the proceedings should be interpreted to him. The interpreter may be sworn according to a formula substantially as follows : You shall well and truly interpret and make known to the prisoner at the bar the questions and demands of the court and such matters and things as the court shall require to be made known to him and also shall well and truly interpret to the court the answers of the said prisoner to said matters and things so required to be made known to him. So help you God. If it appears, that the prisoner is unable to understand the proceedings, the trial can not go on.' Joint defendants may be arraigned jointly or separately, but the plea is several.* § 173. Entering Plea. — The accused may voluntarily plead without arraignment,^ but a verdict without arraignment or plea is a nullity.^ The issue must be made up before the jury is sworn. ^ If it should be discovered, after the swearing of the jury, that arraignment and plea were omitted, the court should direct an arraignment,* and the jury may be re- sworn or a new jury sworn.' The record should affirmatively show, that the accused had been arraigned, or had pleaded.'" If the accused stands mute, or refuses to plead, the court should direct a plea of not guilty to be entered. In the Federal courts, this is expressly required by statute." If he pleads guilty, the court may at once proceed to sentence ; but, in all grave or doubtful cases, the proper course is, to direct the plea of not guilty to be entered instead.'^ In some states, the court must examine the prisoner before receiving a plea of guilty.'* 10. V. Hardy, 2 Mass. 303, 306. ^K. ». Jones, 1 Leach, 103 ; R. ». Pritchard, 7 C. & P. 303; C. v. Hill, 14 Mass. 207. 'Post, 1 208. *R. D. Tongue, 6 How. St. Tr. 335; S. ii. Smith, 3 Ired. (N. C.) L. 403. 'Ransom ». S., 49 Ark. 176. eCrain v. U. S., 162 U. S. 635. 'Dixon D. S., 13 Tex. App. 488; Tindall«. S., 71 Ala. 314. ^Weaver v. S., 83 Ind. 289. 'S. V. Weber, 22 Misso. 321. '"Grain v. U. S., 162 U. S. 625. "U. S. Rev. Stats. 1 1032. 1^4 Bl. Oomm. 329 ; C. ». Battis, 1 Mass. 95. "P. «. Lubin, 99 Mich. 89, n. Arraignment 119 No right of the accused is impaired by disregarding a plea of guilty.' § 174. Re-Arraignment. — Re-arraignment is necessary after plea withdrawn^ and after a material amendment in the charge.^ It is not necessary in the event of a new trial* or a change of venue. ^ Where there is a change of venue, arraign- ment may be either in the court where the indictment was found or where the trial is had.^ Unnecessary re-arraignment is not error.^ ^S. 0. Genz, 57 N. J. L. 459. ^S. V. Hunter, 43 La. Ann. 157. ^P. V. Moody, 69 Cal. 184; S. «. Barnes, 59 Misso. 154. ^Reynolds v. S., 34 Fler. 175; Byrd ». S., 1 How. (Miss.) 347 ; P. ■». McEl- vaine, 135 N. Y. 596, 604-605 ; S. o. Stewart, 36 S. C. 135, 138 ; S. ■». Simms, 71 Misso. 538; S. e. Johnson, 10 La. Ann. 456; Cogswell ®. 8., 49 Ga. 108. ''S. «. Price, 8 Gill (Md.), 395. 805 ; Davis v. S., 39 Md. 354, 384; Vance v. 0., 2 Va. Cas. 168 ; C. v. Pistorius, 13 Phila. 550. «S. ». Renfrow.lll Misso. 589. 'Shaw «. S., 33 Tex. App. 155, 169. 120 Criminal Procedure CHAPTER XVIII. PLEADING. § 175. Modes Of Defense. — When a defendant is put to answer an indictment, the modes of defense open to him are a motion to quash, demurrer, pleas. Pleas may be to the juris- diction, in abatement, in bar. Pleas in bar may be general or special. The accused is entitled to have his objection to a defective indictment sustained, if presented in the proper mode, and the error of overruling a proper objection is not cured, or obviated by an instruction.^ § 176. Order Of Defenses. — The order in which defenses should be made to an indictment is as follows : Motion to quash; plea to the jurisdiction; demurrer; plea in abatement ; special plea in bar ; general plea in bar {iion cuL, not guilty). § 177. Motion To Quasli. — An indictment may be quashed by the court, at the instance of either party, upon its own motion, or upon suggestion of an amicus curiae.'^ A court is never bound to quash an indictment. Hence, it is a general rule, that refusal to quash can not be assigned as error,^ but it has been held, that a judgment quashing an indictment may be reviewed.^ An indictment may be quashed at any stage of the proceedings,^ but the defendant's motion is ordinarily denied, unless interposed at an early stage of the case, before plea.' It may be quashed as to one or more of several counts,^ or one or IS. V. Smith, 119 Misso. 489. n Chitty Cr. L. 299 ; Reg. «. Norton, 8 C. & P. 196. 'U. S. V. Hamilton, 109 U. S. 63 ; P. e. Davis, 56 N. Y. 95, 100. *S. ®. Sloan, 67 N. C. 357; S. «. McNally, 55 Md. 559; S. ». Bradney, 126 Pa. St. 199. 'S. V. Williams, 5 Md. 82 ; Smith s. C, 45 lb. 49 ; S. ». Benthall, 83 N. C. 664. «Bichards ». C, 81 Va. 110. 'Jones c. S., 6 Humph. (Tenn.) 435. Pleading 121 more of several defendants.' After indictment quashed, a new one may be preferred,^ and refusal to quash does not preclude demurrer or motion in arrest.^ The usual ground for quashing is some defect apparent upon thp face of the record from which it clearly appears, that no valid judgment could be rendered in the event of conviction ; but it is also generally ruled, that if the indictment was improperly found, so that there is a want of jurisdiction in the court to proceed upon it, such defect may be taken advantage of on motion to quash and the ground established by affidavit or other extrinsic proof.* § 178. Demurrer. — Demurrer may be interposed for defects apparent upon the record. '"^ Defects or imperfections of form may be taken advantage of on general demurrer.^ Upon demurrer to the indictment, the court looks to the ■s\'hole record, to see whether it is warranted in giving judgment on it.'' A demurrer, at any stage, opens up for review all the pre- vious pleadings and " mounts up " to the first error,^ except when interposed to a plea in abatement.' The defendant may demur to one or more counts of an indictment, and is entitled to judgment upon each count demurred to;" but a demurrer to the whole indictment can not be sustained, if there is one good count." Judgment for the defendant upon demurrer is, that he be dismissed and discharged from the premises,'^ leaving him liable to be re-indicted.'^ If a demurrer to an indictment is overruled, the defendant should be permitted to plead over.'* IS. 1). Compton, 13 W. Ya. 852. n Chitty Cr. L. 304 ; S. v. Williams, 5 Md. 83. »Exp. Bushnell, 8 O. St. 599. *U. S. V. Kilpatrick, 16 Fed. R. 765 ; S. i). Horton, 63 N. C. 595 ; C. i). Brad- ney, 136 Pa. St. 199. H Bl. Comm. 334. «Lazier v. C, 10 Qratt. (Va.) 708. 'R. •». Fearnley, 1 T. R. 316, 330. «U. S. 0. Lawrence, Fed. Cas. 15,573; Spielman ®. S., 37 Md. 530, 534; C. v. Trimmer, 84 Pa. St. 65, 70. '8. V. Hamlin, 47 Conn. 9), 118. "A.vii-ett V. S., 76 Md. 511. "lb.; Gibson v. S., 79 Ga. 344. "Arch., 19 ed., 139. "Kearney v. S., 48 Md. 16, 37. "Reg. V. Duffy, 4 Cox 0. C. 34. 122 Criminal Procedure The Federal statutes expressly provide, that if demurrer to an indictment or information or any count thereof is over- ruled, judgment must be respondeat ouster.'- A defendant should, if he desires it, be permitted to withdraw his plea and demur.^ Demurrer is usually in writing, but may be ore temis^ and there should regularly be a joinder,* but the omission of the record to show this is not error.^ Demurrer and joinder in demurrer may be in form as follows :* The said A. B. says, that the said indictment and the matters therein con- tained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he is not hound to answer the same ; and this he is ready to verify. Wherefore he prays judgment. C. D., who prosecutes on behalf of the said State, says, that the said in- dictment and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law, and that the said A. B. is compelled to answer the same ; and this he is ready to verify. Wherefore he prays judgment. § 179. Plea To Jurisdiction. — Plea to the jurisdiction is proper, when the defendant denies the authority of the par- ticular tribunal to try him ;^ but an objection to the constitution of the tribunal can not be raised in this mode.* If the defend- ant claims, that he is not amenable to any jurisdiction at all,' or that the alleged offense was committed out of the juris- diction of the particular court,*" he should make the defense under the general issue plea of not guilty. The plea should not only object, that the court before which the proceedings are pending has no jurisdiction, but must show what court has lU. S. Rev. Stats. 1 1036. 2Reg. 9. Smith, 4 Cox C. 0. 42 ; Cochrane ». S., 6 Md. 400; S. ». Hale, 44 Iowa, 196. n Chitty Or. L. 440-441 ; Cheatham v. S., 59 Ala. 40. n Chitty Cr. L. 440-441. ^C. ». McCormack, 126 Mass. 258. 'These forms may be adapted to demurrers to pleas etc. and joinder therein by substituting "plea" etc. for "indictment." '1 Chitty Cr. L. 437-438. 8S. v. Conlan, 60 Conn. 483. 'R. «. Johnson, 6 E. 583 ; S. v. Mitchell, 83 N. C. 674. Cf. Rea v. Hayden, 3 Mass. 24. |»S. V. Mitchell, 83 N. C. 674. Pleading 123 authority/ It should he under affidavit.^ Recourse to this mode of pleading is rarely necessary or expedient.^ The issue should be tried by a jury.* If the plea is overruled, judgment is, that the defendant plead over.^ Plea to the jurisdiction may be in form substantially as follows : The said A. B. says, that the court here ought not to take cognizance of the offense in the foregoing indictment specified, because, protesting that he is not guilty of the same, nevertlieless he says, that {^speeifying grounds) ; and this he is ready to verify. Wherefore he prays judgment. Replication to such plea has the following commencement : C. D., who prosecutes on behalf of the said State, says, that notwithstand- ing anything by the said A. B. above in pleading alleged, the court here ought not to be precluded from taking cognizance of the indictment afore- said, because he says. The conclusion is either, "and this he prays may be inquired of by the country," or, if new affirmative matter is alleged, "and this he is ready to verify," followed, in either case, by the formula, "wherefore he prays judgment." § 180. Pleas In Abatement. — ^Pleas in abatement may be filed for misnomer of defendant,^ or by way of objection to the grand jury or its proceedings.^ They must be framed with precise certainty,* be under affidavit,' and are not amendable." Plea for misnomer must give the true name of the party in full, the averment whereof concludes him, and must expressly negative the fact, that he is known or called by the name alleged in the indictment." Pleas in abatement must be pleaded 11 Chitty Cr. L. 438. 24 Anne, ch. 16, §11 ; Alexander Brit. St. 661. sArch., 19 ed., 134. . Ward, 49 Conn. 439. »4 Bl. Comm. 338. *1 Chitty Cr. L. 435 ; Barge v. C, 3 Pa. 262; Foster v. C, 8 W. & S. (Pa.) 77. '1 Chitty Cr. L. 481-482; U. S. v. Gibert, Fed. Cas. 15,204; C. v. McKenna, 135 Mass. 397 ; C. v. McCormack, 126 lb. 258; Berrian e. S., 22 N. J. L. 9, 30; S. V. Swepson, 81 N. C. 571. «U. S. Rev. Stats. § 1033. n Chitty Cr. L. 436. «Ib. 436-437 ; Wickshire ». S.,19 Conn. 477,488; Cooper ti. S.,64Md. 40; Early «. C, 86 Va. 921, 924. As to withdrawal of plea of guilty, see ante, § 187. 'C. V. "Wood, 4 Gray, 11 ; P. v. McKinney, 10 Mich. 54, 93-93; 8. v. Hill, 13 R. 1. 314; 8.V. Nagle, 14 lb. 331, 333; 8. v. Bacon, 41 Vt. 536, 533; 8. ». Rowe, 43 lb. 265. i»R. V. Hodgson, 3 C. & P. 42'3 ; R. «. Bootyman, 5 lb. 300; Reg. v. Roycroft, 6 Cox C. C. 76; Reg. v. Stapylton, 8 lb. 69, 73; C. v. Snelling, 15 Pick. 33i;; C. V. Giles, 1 Gray, 466. "C. V. 8nelling, 15 Pick. 331. 9 130 Criminal Peoceduee that otherwise the opposite party may be deprived ~ of his rights, or that justice cannot be done ; and the proof will be •confined to the particulars specified.^ In a clear case, a bill of ■particulars must not be denied.^ Inability on the part of the prosecution to furnish a required Isill of particulars has been held equivalent to an admission 'of a lack of evidence, and the proceedings were accordingly dismissed.^ •C. V. Snelling, 15 Pick. 331, 331 ; C. v. Giles, 1 Gray, 486, 469; Williams v C, 91 Pa. St. 493, 503. ^P. V. Davis, 53 Mich. 569. 'U. S. V. Brooks, 44 Fed. Rep. 749. Matters Relating To Tbial 131 CHAPTER XIX. MATTERS RELATING TO TRIAL. § 193. Time Of Trial The common-law rules in regard to continuances do not apply in criminal eases. Eelonies were formerly tried immediately or soon after arraignment and mis- demeanors at the term following the finding of the indictment.* In modern American practice, the date of trial is usually fixed upon application of the prosecuting attorney, the granting of postponements resting largely in the discretion of the court. The accused is, however, entitled to a speedy trial, without unnecessary or vexatious delay.^ § 194. Ri^Iit To Public Trial. — All judicial proceedings should be public, and the general public have a right to attend, subject to reasonable limitations and regulations.^ The right to a pu'blic trial is guaranteed in criminal cases by the Federal* and various state constitutions. The courts may adopt reason- able regulations as to the admission of,° but may not exclude,^ the public. § 195. Presence Of Accused. — The accused is entitled to be present at every stage of the proceedings after indicia ment. In trials for felonies, he can not waive this right, and it must appear affirmatively from the record, that he was per- sonally present, whenever any step was taken by the court in his case.^ This requirement does not obtain as to matters H Bl. Comm. 351. «U. S. «. Fox, 3Mont. 513; Nixon ». S., 3 Sm.&M. (Miss.) 497 ; S.d. Thomp- son, 33 Minn. 144. 'Danbury «. Cooper, 10 B. & C. 337; S. v. Copp, 15 N. H. 313. *Aniend. 6. =Stone B. P., 3 111. 336, 837-338; Grimmett «. S., 33 Tex. App. 36; S. ». Brooks, 93 Misso. 543; P. e. Swafford, 65 Cal. 333; P. -u. Kerrigan, 73 lb. 333. «P. V. Murray, 89 Mich. 376; P. b. Hartman, 103 Cal. 343. 'U. 8. V. Lewis, 146 U. S. 870 ; Tiller v. S., 96 Ga. 430. 132 Criminal Pkocedure preliminary or subsequent to the trial, such as setting the case for trial, motions to quash, or for a new trial.^ It is not error to remove the accused from the court room, if he so misconducts himself as to render it impossible to try him with decency.^ The court may, in cases of misdemeanors that are or may be punishable by fine, permit the accused to appear and plead by attorney, and proceed with the trial in his absence, the attorney being present, provided, the court is satisfied, that in the event of conviction, a fine only will be Infiicted.^ A fine, but no imprisonment or other corporal punishment may be imposed in the defendant's absence.* If the defendant improperly absents himself, he should be brought in by process.^ It has been held, that if the defendant, being on bail and present at the commencement of the trial, afterwards voluntarily departs without leave, the verdict may be taken in his absence.* A defendant who has escaped or improperly absented himself can take no action.^ § 196. Custody And Treatment Of Accused. — When the trial has begun, the accused, even though he has given bail, is in the custody of the law,^ the sheriff being ordinarily the officer having charge of him.' He should be free from mana- cles or shackles, or similar restraint, unless there be danger of escape or of his doing harm.^" The usual place for the accused, 'Exp. "Waterman, 33 Fed. R. 39; Jewell v. C, 22 Pa. St. 94, 101 ; C. v. Cos- tello, 121 Mass. 371 ; P. o. Vail, 6 Abb. N. C. 206; S. C, 57 How. Pr. 81; S. v. Clark, 32 La. Ann. 558 ; S. v. Duncan, 7 Wash. 336; S. o. Atkinson, 40 S. C. 363; Miller v. S., 29 Neb. 437. ^Stephen Or. Proc, art. 302; U. S. ». Davis, Fed. Cas. 14,928. 3U. 8. V. Mayo, Fed. Cas. 15,754; U. S. v. Leckie, lb., 15,583; Exp. Tracy, 25 Vt. 93. »P. V. Harrington, 42 Cal. 165 ; S. v. Kring, 64 Misso. 591 ; S. v. Smith, 11 Or. 205 ; Upstone v. P., 109 111. 169, 179 ; Fair v. S., 58 Ala. 74; Lee v. S., 51 Miss. 566. Matters Relating To Trial 133 at least in capital cases, is in the dock, or prisoner's bar.^ The trial court has the right to keep him, at all times, within sight and to determine how and where he shall be placed.^ § 197. Presence Of Judge. — The judge assigned to the particular court should be visibly present at every stage of the trial.^ No portion of his functions can be delegated.^ But it has been held, that his temporary absence, if not prejudicial, is not necessarily ground for a new trial,' and that he may author- ize the cl^rk to discharge the jury, if an agreement is not reached by a certain time.^ § 198. Copy Of Indictment. — Under the old common law, the accused, in cases of treason and felony, was not entitled to a copy of the indictment or any of the proceedings against him.^ Under FederaF and various state statutes, the accused, in certain classes of cases, is entitled to have a copy of the indictment delivered to him in time to prepare for his defense. These statutes are mandatory, and, unless the right is waived by the accused, the trial can not proceed until the requirement has been complied with.^ A copy of the indicts ment does not include a copy of the endorsements." Pleading to the merits and going to trial is a waiver of the defects in the copy." § 199. Iiist Of TV^itnesses. — The accused is not entitled to a list of witnesses at the common law.^^ Under FederaP^ and various state statutes, the accused is entitled, in certain classes iReg. V. Zulueta, 1 Cox C. C. 20 ; U. S. v. Gibert, Fed. Cas. 15,304. '^P. «. Gardner, 144 N. Y. 119, 128. ^S. 0. Smith, 49 Conn. 376 ; O'Brien v. P., 17 Color. 561 ; Palin a. S.,38 Neb. 162 ; Pritchett v. S., 93 Ga. 65 ; Thompson ». P., 144 111. 378. *Cobb V. P., 84 111. 511. 'O'Shields «. 8., 81 Ga. 301. «C. V. Towsend, 5 Allen, 316. Contra: S. v. Jefferson, 66 N. C. 309. n East P. C. 113. SU. S. Rev. Stats. ? 1088. 'Logan «. U. S., 144 U. S. 363, 304. "Reg. «. Burke, 10 Cox C. C. 519. "C. V. Betton, 5 Cush. 427; S. v. Jackson, 13 La. Ann. 679, 681. "1 East P. C. 112. "U. S. Rev. Stats. ? 1083. 134 Criminal Procedure of cases, to a list of witnesses to be produced on the trial for proving the indictment in time to prepare for hie defense. These provisions are mandatory, and if not waived by the accused by not objecting at the proper time, preclude the calling of other witnesses for purposes named in the statutes,^ but not for other purposes, e. g., rebuttal.^ § 200. Copy Of Panel. — At common law, the accused is not entitled to a copy of the panel, or list of trial jurors.' Under Federal* and various state statutes, the accused, in cer- tain classes of cases, is entitled to a list of jurors in time to prepare for his defense. These statutes are mandatory,^ but the requirement may be waived by the accused.^ § 201. Process For f^'itnesses. — Under the old common law, the accused was not entitled to process for witnesses nor, in cases of felony, to examine witnesses in his behalf.' Under the Federal* and various state constitutions, the accused is entitled to compulsory process for witnesses in his favor.' The right thus secured is violated, if its exercise is encumbered or restricted by rules of court.'" § 202. Counsel. — Under the old common law, the accused was not entitled to counsel in cases of treason and felony, unless a point of law arose." The right of the accused to the assist- ance of counsel for his defense is now guaranteed by the Federal'^ and various state constitutions. If he is unable to employ counsel, the court may appoint or assign counsel to defend him, a subject generally covered by statutes. 'Logans. U. S., 144 U. S. 263, 304 ; Hickory v. U. S., 151 lb. 303, 307-808. ^S. ». Parrisb, 23 Iowa, 384; B. v. Ruthven, 58 lb. 121, 133. n East P. C. 112 ; U. S. D. Williams, Fed. Cas. 16,709. *U. S. Rev. Stats. J 1033. 'Bain b. S., 70 Ala. 4. «S. 0. Jackson, 13 La. Ann. 679 ; S. e. Waters, 1 Mo. App. 7. '4 Bl. Comm. 359-360; U. S. v. Reid, 13 How. 361, 364. sAmend. 6. Of. U. S. Rev. Stats. | 1084. 'Not necessarily implying payment of witness fees. S. «. Waters, 39 Me. 54. "Aikin v. P., 58 Ark. 544; S. v. Gideon, 119 Misso. 94. "4 Bl. Comm. 355. "Amend. 6. Of. U. S. Rev. Stats. ? 1034. Matters Relating To Trial 135 § 203. Severance. — If several persons are jointly indicted, the court may, as a matter of discretion, upon application of either the prosecution or a defendant, direct separate trials.* The application should ordinarily not be granted at the in- stance of a defendant, unless it appears, that the applicant is likely to be prejudiced by a joint trial, e. g., where one has confessed.^ The entire matter of directing either a joint or a separate trial is discretionary with the court.^ § 204. Consolidation. — It has been held, that several in- dictments against the same person for the same or similar offenses may, in the discretion of the court, be ordered to be tried together.* Cross-indictments for assault have been ordered to be tried together.^ "Where several cases against one party were tried together by consent, it was held necessary to swear the jury in each case.* § 205. Inspection And Examination. — Under the gen- eral power of controlling and directing the proceedings before them, trial courts may, in their discretion,'' in the interests of justice and a fair trial, pass orders of inspection and examina- tion, such as the following : Where murder by poison was charged, the examination and analysis by a chemist designated by defense of a stomach and its contents and an alleged poison in the possession of the police.* Where the sending of a threatening letter was charged, the examination of the letter.' m. S. V. Marchant, 13 Wheat. 480; U. S. -u. Gibert, Fed. Cas. 15,304; C. v, Robinson, 1 Gray, 555. ^C. V. James, 99 Mass. 438. 'Jackson v. S., 104 Ala. 1. *McElroy v. U. S. 164 U. S. 76; Withers v. 0., 5 S. & R. 59 ; S. v. Watts, 82 N. 0. 656; S. McNeil, 93 lb. 653. Contra: C. ». Bickum, 158 Mass. 386. 'Reg. V. Wauklyn, 8 C. & P. 290. «Kitter v. S., 35 III. 43. 'Eighmy v. P., 79 N. Y. 546. 'Reg. V. Spry, 3 Cox 0. 0. 331. 9R. V. Harrie, 6 C. & P. 105. 136 Criminal Procedure The examination of the minutes of proceedings of the grand jury.' § 206. view. — It was formerly held, that the courts may not, at common law, permit a view by the jury of the premises or place where a crime is alleged to have been committed, unless by consent of both sides.'' Some modern cases hold, that the matter is discretionary with the courts.^ The ground is generally covered by statutes. "When a view is granted, the jury must be placed in charge of the proper officer;* they must not be communicated with;° the place inspected should ordinarily appear to be in the same condition as at the time of the alleged crime f the accused is entitled (generally so held) to be present,' but may waive the right.' An unauthorized view, or visit by the jury to the scene of an alleged homicide, has been held ground for vacating the verdict.' The object of the view is, to assist the jurors in weighing and applying the evidence, the knowledge derived from the view itself not being a part of the evidence.^" Inspection, e. g., of a chattel alleged to have been stolen, may not be had by the jury, except in open court in due course of evidence." 'P. ». Naughton, 38 How. Pr. 130. 'R. D. Redman, 1 Keny. 384; Bostock u. S., 61 Ga. 635, 639. Cf. 1 Chitty Or. L. 483. meg. «. Whalley, 2 Cox C. C. 231 ; Reg. ». Martin, 12 lb. 204. *Reg. ^. Whalley, 2 Cox C. C. 231. 5Reg. v. Martin, 12 Cox C. C. 204; P. ». Green, 53 Cal. 60 ; S. v. Lopez, 15 Nev. 407; P. ». Gallic, 149 N. Y. 106. 6S. ®. Knapp, 45 N. H. 148. 'S. V. Bertin, 24 La. Ann. 46 ; Rutherford v. C, 78 Kent. 639 ; P. v. Palmer, 43 Hun, 397; P. o. Bush, 68 Cal. 623; Carroll v. S., 5 Neb. 31 ; Sasse c. S., 68 Wis. 530; Benton v. S., 30 Ark. 338 ; Foster d. S., 70 Miss. 755. Contra: Shular c. S., 105 Ind. 289. «S. V. Ah Lee, 8 Or. 314. 'Eastwood ». P., 3 Park. Cr. R. 25. '"Sasse ». S., 68 "Wis. 530. "Smith V. S., 43 Tex. 444. Matters Relating To Trial 137 § 207. Interpreter. — Whenever a writing, statement or declaration^ in a foreign language, or the testimony,^ in open court or otlierwise,^ of a witness who is a foreigner, deaf and dumb,* or otherwise unable to make himself understood or audible,^ becomes relevant or proper to be received in evidence, the court may designate or appoint any competent person, offi- cial or otherwise,^ duly sworn,^ to interpret the same. It is no objection, that the person selected is also a witness in the case.* The interpreter should give every statement made by the witness.' It has been held, that testimony in contradiction of the interpreter's translation is competent.'" The oath of the interpreter may be in the following form : You shall true interpretation make of the evidence, according to the best of your skill and understanding. So help you God. § 208. Insanity Of Accused. — If one charged with the commission of crime becomes insane, no further steps in the trial of the charge can be taken against him. He can not be tried or arraigned ; if he becomes insane after verdict, judgment can not be rendered against him ; if after judgment, execution is stayed." A person is deemed not sane, if, in consequence of any defect, whether mental or physical, he is unable to understand the nature and incidents of a trial, as, e. g., being born deaf and ^Starkey v. P., 17 111. 17, 23 (dying declaration). ^U. S. V. Gibert, Fed. Cas. 15,204. ^E. g., before grand jury. Norberg's Case, 4 Mass. 81. "Ruston's Case, 1 Leach, 408; Snyder v. Nations, 5 Blackf. (Jnd.) 295. »Conner v. S., 25 Ga. 512, 521. «Farrar v. Warfield, 8 Mart. (La.) N. S. 697. ^ Amory v. Fellows, 5 Mass. 219, 225 ; Vandervoort v. Smith, 2 Caines (N. Y.), 155, 164. Cf. C. «. Kepper, 114 Mass. 278. 8P. V. Ramirez, 56 Cal. 533 9?. V. "Wong Ah Bang, 65 Cal. 305. "Schmier »r P., 23 111. 17. "4 Bl. Oomm. 24-25, 295; S. v. Vann, 84 N. C. 722 ; P.«. Ah Ying,42 Cal. 18; S. 1). Reed, 41 La. Ann. 581 ; Green v. S., 88 Tenn. 634. 138 Criminal Procedure dumb and not having been trained;' being so drunk as to be unable to act advisedly.^ The ordinary method of ascertaining the mental ^tate of the party is by jury, sworn to try the question of sanity.^ The j urors' oath is in form as follows : You shall well aud truly inquire, whether A. B. is of sound mind and understanding and a true verdict give according to the evidence. So help you God. The verdict is taken in the following form : The jurors having been called over by name — Clerk. — Are you agreed of your verdict ? [We are.] Who shall say for you ? [The foreman.] What say you: is A. B. of sound mind and understanding, or otherwise? § 209. Hfolle Prosequi. — The government, or state, can not be non-suited, but the prosecuting attorney may enter a nolle prosequi (ulteriiis non vidt prosequi), which has the effect of a non-suit.* The entry of a nolk prosequi is a matter within the exclusive province and discretion of the prosecuting attorney, independ- ent of the control of the court or the consent of the defendant.* It may be made at any stage of the proceedings before final judgment.^ It may be made as to the whole indictment or information, as to one or more counts,^ as to part of a count,* or as to one or more of several defendants,' unless done in such manner as to work evident injustice." The effect of a nolle prosequi entered before trial begun is to discharge the party from the particular indictment, or part thereof, to which it has been entered, but not to acquit him 'Reg. V. Berry, 13 Cox C. C. 189 ; S. o. Harris, 8 Jones (N. C.) L. 136. ^Taffe V. S., 33 Ark. 34. H Hale, 85 ; R. ■». Frith, 23 How. St. Tr. 807, 311. *Co. Litt. 139 b; C. v. Casey, 13 Allen, 314, 318 ; S.b. Main, 31 Conn. 573,576. *Reg. i>. Allen, 9 (^x C. C. 139; Virginia ». Dulany, Fed. Cas. 16,959; U. 8. V. Schumann, lb. 16,335; C. ii. Tuck, 30 Pick. 356; S. ». Smith, 49N. H.155. «0. V. McClusky, 151 Mass. 488 ; S. v. Smith, 67 Me. 338. 'Dealy v. U. 8., 153 U. S. 539. 8Jennings v. C, 105 Mass. 586; C. «. Dean, 109 lb. 349 ; S. ■». Bean, 77 Me. 486; Baker v 8. 13 O. St. 314. Contra: P. ®. Porter, 4 Park. Or. R. 524. n Chitty Cr. L. 478 ; S. ». Woulfe, 58 Ind. 17. i»S. V Daubert, 43 Misso. 343. Matters Relating To Trial 139 of the charge.^ If entered without the consent of the defend- ant after trial begun, it operates as an acquittal.^ A nolle prosequi may be canceled, and the defendant, at least with the consent of the court, brought in upon a new capias and proceeded against under the same indictment.^ Either of the following forms may be used : 1. A. B., who prosecutes for the said State, gives the court here to under- stand and be informed, that he will no farther prosecute the said indictment. 2. I will no farther prosecute this indictment. (Mndorsed upon the indict- ment.) § 210. Stet. — Stet processus is an entry on the roll, in the nature of a judgment, of a direction, that all farther proceed- ings shall be stayed {i. e., that the process may stand), and it is one of the ways by which a suit may be put an end to by the act of the party, as distinguished from a termination of it by judgment, which is the act of the court.* In criminal cases, this entry may be made at the discretion of the prosecuting attorney. It is of a nature similar to nolle prosequi.^ The accused remains liable to be proceeded against under the same indictment.^ The form used is an order to the clerk, filed in the particular case, to " enter stet." § 211. Change Of Venue. — At common law, when a fair and impartial trial can not be obtained, a superior court of general jurisdiction has power to transmit the record to an adjoining county.^ The subject is generally regulated by statutes. An application for removal can not ordinarily be entertained after the trial has commenced, i. e., after all the jurors have been sworn,^ but a removal may be granted after a mistrial.^ A removal by one of several defendants operates as iDealy v. U. S., 152 U. S. 539 ; S. v. Morgan, 33 Md. 44 ; S. v. Main, 31 Conn. 572. ^U. 8. V. Shoemaker, Fed. Cas. 16,279; C. ■». Tuck, 20 Pick. 356. 'Hester v. C, 85 Pa. St. 139, 154; S. ■». Nutting, 39 Me. 359. *Brown Diet. n Tidd Pr. 682. 8S. «. Morgan, S3 Md. 44. '1 Chitty Cr. L. 201 ; Price v. S., 8 Gill (Md.), 295, 311 ; S. ®. Albee, 61 N. H. 423. «Hummel v. S., 86 Ind. 431. 'Deford v. S., 30 Md. 179, 196. 140 Criminal Procedure a severance.' Upon receipt of the transcript of the record, the court to which it is sent acquires jurisdiction of the cause and of the person of the accused ;^ the court from which the removal takes place is divested of jurisdiction.' iShulars. S., 105 In d. 389. ''Sliultze 0. S., 43 Md. 295 ; Mayor v. Commissioners, 61 lb. 336. 'Smith ». C. 95 Kent. 333. Petit Jury 141 CHAPTER XX. PETIT JURY. § 212. STumber Of Jurors. — In the absence of statutory provision authorizing a trial by a different number, a jury must consist of twelve, no more, no less. It is otherwise not a legal tribunal and its finding is a nullity, regardless of the agreement of the parties. Such a finding is not the verdict of a "jury" and the court is without power to render judgment upon it.' The question involved here is not one of waiver of rights, but of jurisdiction, a verdict by thirteen jurors being equally a nullity with a verdict by eleven jurors.^ The doctrine of this section rests upon the same principle that supports the proposi- tion,'' that in the absence of statutory provision the court can not by consent be substituted as a trior of the facts for the jury. § 213. Selecting Jurors. — It is the right of the parties, that the panel of the jurors should have been indifferently returned and that the particular jurors thus returned be omni exceptione majores, both as regards general qualification and competency in the particular cause.' The means of securing trial by competent jurors are the right of the challenge ; the right and duty of the court to set aside incompetent jurors upon its own motion;* setting aside the verdict in exceptional cases. lY. B. 41 E. 3, 31 ; Finch Disc. 400 ; Tr. per Pais, 9 ed., 93 ; 3 Hale, 296 ; Bac. Abr., Juries, A; Cancemi e. P., 18 N. Y. 138; Scott e. S., 70 Miss. 347; Harris ». P., 138 111. 585; Terr. v. Ah Wah, 4 Mont. 149; 8. ». Mansfield, 41 Misso. 470 ;. S. v. Stewart, 89 K. C. 563 ; S. «. Scruggs, 115 Vo. 805 ; Allen ». S., 54 Ind. 461. Gontra : U. S. v. Shaw, 58 Fed. R. ifO ; C. v. Dailey, 3 Cush. 80 ; S. ». Sackett, 39 Minn. 69. ^Bullard ». S., 38 Tex. 504. 'Ante, ? 68. H Bl. Comm. 353. 'JefEerson «. S., 53 Miss. 767; P. v. Barker, 60 Mich. 377; S. v. Ring, 29 Minn. 78, 81-83; Zimmerman v. S., 56 Md. 536, 539. 142 Criminal Peocbdukb Courts may, in their discretion, excuse a duly qualified per- son from being sworn as a juror,^ but may not discharge a competent juror, properly sworn, without the consent of the parties.^ The manner of selecting juries is generally regulated by statutes. Their provisions must be substantially complied with,^ but unimportant omissions or irregularities do not affect the proceedings.* § 214. Talesmen "When the cornplete number of jurors can not be obtained by the ordinary method, i. e., where the number of jurors is deficient, but not where there is a total default of jurors, the proper method is to summon talesmen, i. e., so many as shall make up the deficiency.-'' A juror who has been on the principal panel and challenged can not after- wards serve as a talesman.^ § 215. Challenge. — To challenge jurors is the means .to care for, or " forsee " that an indifferent trial be had, by except- ing to those returned as such.^ It is a right to reject, not to select, jurors; and if a challenge be improperly overruled or denied,* or improperly sustained,' yet if, in the end, impartial and competent jurors are obtained, to the exclusion of aU improper persons, the error is immaterial. Challenges may be, on either side, to the array (at once to all the jurors returned), or to the polls (separately to the individual jurors), the latter being either peremptory (without assigning cause), or for cause. 'U. S. V. Jones, 69 Fed. R. 973 ; Mills ». S., 76 Md. 374. Contra : Phillips s. S., 68 Ala. 469. ^Qreen «. Norvil, 3 Hill (S. C), 263. »Clare«. S., 30 Md., 163. *Munsliower v. S., 56 Md. 174. =1 Chitty Cr. L. 518 ; Clawson v. U. S., 114 U. S. 477, 487 ; Lovejoy v. U. S., 138 lb. 171 ; Burke v. B., 3 Harr. & Johns. (Md.) 436 ; Williams v. 8., 91 Pa. St. 493; Barnes v. S., 60 Miss. 355. n Chitty Cr. L. 520. 'Co.Litt. 155 b. «U. S. V. Marchant, 12 Wheat. 480 ; Spies v. Illinois, 123 U. S. 131 , 168 ; Pointer B. U. S., 151 lb. 396, 412; Biddle v. S., 67 Md. 304; C. v. Mosier, 135 Pa. St. 221, 325. 'S. V. Miller, 29 Kans. 43. Petit Jury 143 § 216. Time Of Challenge. — No challenge to the array or the polls can be made, until a full jury appears.' The general rule is, that challenges must be made before jurors have been sworn, unless by consent, or for cause arising after the adminis- tering of the oath f but the court may, upon suggestion of one of the parties, or upon its own motion, set aside an incompetent juror at anj' time before evidence given.' If the gross incompetence or unfitness of a juror is discovered during the progress of the evidence, the entire jury may be dis- charged.* § 217. Order And Mode Of Ctialleng-e. — Objections to individual jurors can be taken only by challenge to the polls.^ If challenge to the array be determined against the party, he may afterwards challenge to the polls ; but after challenge to the polls he can not challenge to the array,'' and neither party shall take a challenge to the polls which he might have had to the array.^ Challenge to the array must be in writing, stating grounds.* Challenge to the polls is taken orally (by saying, " I challenge him," or "challenged"). Challenges must be had in open court, the accused being present and the entire panel in his view.^ § 218. Challenge To Array. — Challenge to the array is grounded upon some partiality or default of the sheriff, coroner or other officer who made return of the body of jurors.'" Mere informalities or irregularities which do not tend to the prejudice of the accused afford no ground of challenge to the array," but 11 Chitty Cr. L. 544. »Ib. 'P. «. Damon, 13 Wend. 351; Jefferson «. S., 53 Miss. 767. *tJ. S. 1!. Morris, Fed. Cas. 15,815. "Bill V. S., 39 Ala. 34; Eberhart o. S., 47 Ga. 598; Mitchell v. S., 43 Tex. 513, 517. «Co. Litt. 158 a ; P. b. McKay, 18 Johns. 313. 'Bull N. P. 307 ; U. S. ». Loughery, Fed. Cas. 15,631. n Chitty Cr. L. 546; P. v. Doe, 1 Mich. 451. 'Lewis ». U. S., 146 U. S. 370. "C. V. Walsh, 124 Mass. 33. iiRoUand v. C, 83 Pa. St. 306. 144 Criminal Procedure for a material departure from prescribed regulations as to the selection of jurors such challenge lies.^ Challenge may be to the array of the principal panel, or of the talesmen, and may be tried upon an issue of fact (plea), or of law (demurrer).^ The old common-law rules as to challenges to the array have been generally superseded or modified by legislation. Forms ot challenge, plea and demurrer thereto are as follows : A. B. challenges the array of the panel of jurors, because, he says, that (stating grounds) ; and this he is ready to verify ; wherefore he prays judg ment, and that the array of the said panel may be quashed. C. D., who prosecutes on behalf of the said State says, that the said array ought not to be quashed, because, he says, that {tra/cersing in form analogout to that used in ordinary replication.) C. D., who prosecutes on behalf of the said State, says, that said challenge is not sufficient in law to quash the array of the panel aforesaid ; and this he is ready to verify ; wherefore he prays judgment, and that the array of the said panel may be affirmed. § 219. Peremptory Challenge To Polls — At common law, the accused was entitled, at least in cases of felony, to thirty-five peremptory challenges, the prosecution to an unlim- ited number.^ Defendants jointly indicted are each entitled to the full number of peremptory challenges,* but the prose- cution is entitled only as on the trial of one defendant.' The order, as between the accused and the prosecution, in which peremptory challenges shall be made is in the discretion of the court." The accused may hold his peremptory challenges in reserve, until the number twelve is full, up to the time of swearing the jury and after objections for cause are disposed of.^ On the trial of preliminary and collateral issues peremptory iMcCloskey ». P., 5 Park. Or. R. 308 ; P. ». Labadie, 66 Mich. 702 ; S. «. Jenkins, 33 Kans. 477. n Chitty Cr. L. 548; Carnal «. P., 1 Park Or. R. 373, 376. »1 Chitty Cr. L. 534-535. . Randall, 83 lb. 531. "P. ■». Reyes, 5 Cal. 347. "Co. Litt. 157 b. "U. S. ». Noelke, 1 Fed. R. 436, 434; U. S. e. Barger, 7 lb. 193 ; Davis v. Hunter, 7 Ala. 135 ; Higgins v. Minaghan, 78 Wis. 603 ; P. v. Reynolds, 16 Oal. 138, 131. 150 Criminal Procedure opinion as to a certain kind of defense,' is not ground ot challenge. § 230. Scruples. — A juror who has conscientious scruples on any subject of such a nature as to prevent him from standr ing indifferent 'between the prosecution and the accused and from trying the case according to the law and the evidence is not an impartial juror, and may be challenged for that cause.^ § 231. Formation Of Opinion. — If the juror has expressed his wishes as to the result of the trial,' or has suffered one of the parties to exhort him as to the nature of the verdict,* it is ground of principal challenge. The mere formation or expression of an opinion is not in itself ground of challenge. The opinion which should exclude a juror must be either as to the actual fact of guilt or innocence, or an otherwise fixed or deliberate opinion, partaking of the nature of a prejudgment,"' an opinion which requires evidence to remove it.^ § 232. Trial Of CIiallen§^es At Common L,aw- The common-law method of trying challenges is as follows : 1. Challenges to the array, upon issues of law, by the court; upon issues of fact, by two triors appointed at the discretion of the court.'' 2. Challenges to the polls to the favor, by triors, selected as follows :* If challenge is made before any jurors are sworn, two indiff- erent persons appointed by the court; if they try one man, and find him indifferent, and he is sworn, he and these two triors try the next; when two jurors have been SM'orn, they try the ip. B. Carpenter, 103 X. Y. 239 ; Butler v. S., 97 Ind. 378. ^Logan V. U. S., 144 U. S. 363, 298. =2 Gabbett Cr. L.391. *Co. Litt. 157 b. sReyuoIds a. U. S., 98 U. S. 145 ; Exp. Spies, 133 lb. 131 ; Garlitz «. S., 71 Md. 293. 'S. V. Wilcox, 11 Wash. 215. '1 Chitty Cr. L. .547-5-18; Carnal v. P., 1 Park Cr. R. 272. n Chitty Cr. L. 549 ; P. v. Dewick, 2 Park. Cr. R. 330. Petit Jury 151 rest; when challenge is first made after one juror has been sworn, two indifferent persons are added to him as triors. 3. Principal challenges to the polls, by the court.' Triors are sworn to try, whether the juror "stands indifferent between the parties."^ They determine, according to their "dis- cretion and conscience,"^ whether the evidence is sufficient to establish partiality, their decision being conclusive.'' If they entertain a reasonable doubt as to the impartiality of the juror, they should reject him.' If they disagree, there is a mistrial of the challenge.'' § 233. Modern Practice The practice of appointing triors has been abolished, or become obsolete, in nearly every state. It is not an essential part of "trial by jury " as defined by the common law.'' In the Federal* and nearly every state jurisdiction, all challenges are now decided by the court. As to causes of challenge formerly determined by triors, the " dis- cretion and conscience " of the court is substituted for that of the other tribunal, its decision being likewise conclusive. § 234. Method Of Proof. — The ordinary method of showing disqualification is, to examine the proposed juror himself on his voir dire.^ The scope of the examination is limited to pertinent and reasonable questions bearing on the ground of challenge.'" Questions tending to the infamy or disgrace of the party are excluded." Inquiry as to political affiliation has been held improper.'^ '1 Chitty Cr. L. 549. ^Ib. ; Freeman v. P., 4 Den. 9, 23-23. 3Co. Litt. 156 a. *Freeman ». P., 4 Den. 9, 33-34. 'Holt V. P., 13 Mich. 234, 237-238. «P. V. Dewick, 2 Park. Cr. R. 230. 'Weston D. P., 6 Hun, 140. 8U. S. Rev. Stats. ? 819. 'Zimmerman v. S., 56 Md. 536. '"Pennsylvania Co. ®. Rudel, 100 111. 603, 608 ; Stagner ». C, 9 Tex.App.440. "Co. Litt. 158 b; Reynolds v. U. S., 98 IT. S. 14.), 155 ; Burt ». Panjaud, 99 lb. 180. i^Connors v. U. S., 158 U. S. 408. 152 Criminal Procedure This method of examination does not preclude the introduc- tion of proof as to disqualification by other witnesses,' or by records.^ The oath to the proposed juror or other witness is as follows : You shall true answer make to such questions as the court shall demand of you. So help you God. § 235. " Striking " Jurors. — The privilege of striking jurors from a list prepared, under the direction of the court, from the general panel is a different thing from the common- law right of challenge to the array or to the polls. Under a statutory provision directing, that in civil causes and upon minor criminal charges each party shall strike a certain number of jurors from such list and the remaining jurors he sworn, all defendants are held to constitute but one party, entitled to strike only the number named jointly. The list, before it is stricken from, must present the full number of names, each beyond the reach of challenge for cause, either principal or to the favor.^ § 236. S-wearing And Charging Jury. — When twelve unexceptionable jurors have been obtained, they are called over and sworn by the clerk. In capital and other grave cases of felony, they are (at least, were formerly) commanded to " look on the prisoner."* In strict theory, the oath is administered to the jurors separately f but it seems sufficient to pronounce the formula once, using the phrase " You and each of you " at the beginning. The regular forms should be followed, especially when prescribed by statute,^ but immaterial variations do not constitute error.^ A mistake in swearing a juror actually sum- moned by a wrong name is immaterial after verdict.* After the accused has pleaded not guilty generally to an indictnient having several counts, the jury may be sworn and charged upon 'Bac. Abr., Juries, F, 12. ^Tr. per Pais, 9 ed., 193. 'Lee®. Peter, 6 Gill & Johns. (Md.) 447 ; Hamlin v. S., 67 Md. 337. n Ghitty Cr. L. 554. «Ib. 551. «S. o. Rollins, 32 N. H. 538 ; S. v. Davis, 53 Vt. 376. '1 Chitty Or. L. 552. «Ib. Petit Jury 153 part of the counts only.' After the jurors had been sworn and set apart, they were formerly counted and " proclamation " was made by the crier for persons to appear and give evidence.^ When the jury are assembled in the box and sworn, the trial commences f but, in cases of felony, the prisoner is called to the bar, the indictment read, and the jury " charged " bj' the clerk.* § 237. Forms. — The jurors' oath in cases of felony is as follows : [Look upon the prisoner.] You [and each of you] shall well and truly try and a true deliverance make between the State of and the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence. So help you God. The jurors' oath in cases of misdemeanor is as follows : You [and each of you] shall well and truly try the issue of this traverse between the State of and A. B., and a true verdict give, according to the evidence. So help you God. The felony charge is as follows : Gentlemen of the jury, A. B. stands indicted as follows : {Indictment read). Upon this indictment he hath been arraigned; upon his arraignment he hath pleaded not guilty ; and for his trial he hath put himself upon God and the country, which country you are : so that your charge is, to inquire, whether he be guilty of the matter whereof he stands indicted, or not guilty. § 238. Conduct And Supervision. — After the jurors have been sworn, they are under the special control of the court, and may not depart, or separate, or hold communication with outsiders, without its leave." They should, from the beginning, be placed in charge of ai^ officer of the court, and, when they retire to deliberate, should be attended by a bailiff, sworn for that purpose,^ and be kept apart, without communication with others.' IS. «. Bell, 27Md. 675, 677. H Chitty Cr. L. 553. 'lb. qb. 554-555. 'lb. 634; P. ®. Hawley, 111 Cal. 78. n Chitty Or. L. 633; Gibbons v. P., 33 111. 518; Roberts v. S., 73 Ga. 673 J Bennett v. C, 8 Leigh (Va.), 745 ; Brucker o. S., 16 Wis. 333. •■Hare ®. S., 4 How. (Miss.) 187; McCann ». S., 9 Sm. & M. (Miss.) 465 ; C. V. Shields. 3 Bush (Ky.), 81. 154 Criminal Procedure A mere temporary separation, for sufficient cause, may be permitted by the court, in any case, at any time, provided, it is attended with such precautions and safeguards as will secure entire freedom from approach or external influence.' Further directions, information or communications to a jury that has retired can strictly only be given in open court, in the presence of parties and their counsel.^ Communications prejudicial to the accused vitiate the verdict.^ The oath to the bailiff' upon the retiring of the jury should be in the following form : You swear, you will keep every person sworn of this jury together, in some private and convenient place, and not suffer any person to speak to them, or any of them, nor speak to them yourself, unless it be, to ask them, whether they are agreed upon their verdict. So help you God. If the officer in charge of the jury is a sworn officer, this oath is probably not necessary.* iStout V. S., 76 Md. 317, 339-330 ; C. i>. Gage, 147 Mass. 576 ; C. v. Manfredi, 163 Pa. St. 144. ^1 Chitty Or. L. 633 ; S. «. Patterson, 45 Vt. 308 ; Hoberg ». S., 3 Minn. 362, 269-370 ; Fisher ». P., 23 111. 383, 295 ; S. v. Frisby, 19 La. Ann. 143. Contra : Wheeler v. S., 42 Md. 563. ^Matlox 0. U. S., 146 U. 8. 140. *U. S. V. Ball, 163 U. S. 663 ; Davis v. S., 15 Ohio, 72. Trial And Its Incidents 155 CHAPTER XXI. TRIAL AND ITS mCIDENTS. § 239. Trial By Court. — In the absence of express legisla- tion, the determination of the case can not be submitted to the court; but statutes generally authorize such submission by consent, sometimes at the election of the accused, and they have been held not to conflict with constitutional provisions as to trial by jury.^ The court, in such cases, is substituted for the jury and has the same duties and functions.^ § 240. Order Of Trial. — The actual trial of a cause is said to commence, when the panel of twelve jurors has been com- pleted by being duly sworn.^ The usual order of proceedings, from the time when the jury have been sworn and (in cases of felony) charged to the time of their retiring to deliberate, consists of the opening statements of the prosecution and the defense, the introduction of evidence, the addresses, or summing up, of counsel to the jury, the charge, instructions, or summing up, of the judge to the jury. Regularly, the trial should go straight through, not inter- spersed or interrupted by other proceedings;* but the court may, in its discretion, adjourn the proceedings, when occasion requires.'' § 241. Opening Statements. — Opening statements should consist of a presentation of the facts intended to be given in evidence by the respective parties, to the exclusion of argument and irrelevant and prejudicial matters." ^Ante, ? 68. 'League v. S., 36 Md. 357, 265. Cf. Davidson v. S., 77 lb. 388. 'McFadden e. C, 33 Pa. St. 13. *S. V. Devlin, 35 Misso. 174. n CMtty Cr. L. 638; P. v. Sullivan, 115 N. Y. 185 ; Allen v. S., 74 Ga. 769. Cf. post, 2 342. «P./o. Hettick, 1 Wheeler Cr. Cas. 399 ; Soripps v. Reilly, 35 Mich. 371. 156 Criminal Procedure The opening statement for the defense may be made immedi- ately after that for the prosecution, or be reserved until the close of the evidence for the prosecution. 242. Introduction Of Evidence. — The order, time and manner of introducing evidence are, to a great extent, in the discretion of the trial court, whose action will not ordinarily be reviewed, unless there appears to have been abuse of discre- tion and resulting injury.^ It lies within the discretion of the court to permit the intro- duction of evidence at any stage of the trial before verdict;^ to adjourn the proceedings, in order that additional evidence may be procured f to elicit relevant facts by its own suggestions or examination of witnesses ;* to limit the number of witnesses as to any particular fact within reasonable bounds f to require, or, by its own examination, secure or elicit, the testimony of all the witnesses to the res gestae, or entire transaction of the alleged crime.* § 243. Exclusion Of 'Witnesses. — The court may, upon its own motion, or the application of either party, require wi1> nesses to be examined apart.^ It may order any or all witnesses, except parties,^ or their attorneys,' to withdraw from the court room, or place them in charge of an officer, provided, counsel are not excluded from conference with their witnesses.'" A violation of the rule of exclusion does not disqualify a 'Wills V. Eussell, 100 U. S. 626; Ridgely u. S., 75 Md. 510, 515-516. ^C. ». Ricketson, 5 Mete. 412, 429; S. v. Rose, 33 La. Ann. 933; S. v. Cly- burn, 16 S. C. 375, 378. aU. S. 11. Noelke, 1 Fed. R. 426, 437 ; Taylor v. C, 77 Va. 693. *Varnedoe ®. S., 75 Ga. 181, 186; S. ». Nickens, 133 Misso. 607, 611; S. v. Lee, 80 N. C. 483 ; Hill v. C, 88 Va. 633, 639. 'Butler i>. S., 97 Ind. 378, 386; Union R. R. v. Moore, 80 lb. 458, 465-466; Mergenthelm v. S., 107 lb. 567, 572-573. 'Hill ». C, 88 Va. 633; S. v. McGahey, 3 N. Dak. 393. '1 Greenl. Bv. ? 433. sGarman v. 8., 66 Misso. 196; Ryan v. Couch, 66 Ala. 344. 'Everett v. Lowdham, 5 C. & P. 91. 'OAllen V. S., 61 Miss. 637; S. v. McGraw, 35 S. C. 388, "According to the weight of reason and authority. Holder v. U. S., 150 U. S. 91 ; Parker v. S., 67 Md. 339 ; Hey v. C, 33 Gratt. (Va.) 946. Trial And Its Incidents 1;)7 § 244. Suinmln^ Up Of Counsel. — The accused is entitled to have his case argued before the jury upon the facts under any aspect of the proof.^ The prosecution has the right, at common law, to open and close, although the defense offers no evidence.^ The court may limit the time to be occupied in argument, provided the restriction be reasonable and fair.^ § 245. Abuse Of Argument. — Addresses to the jury must be confined within legitimate bounds of reasoning and comment upon matters actually in evidence and proper for the considera- tion of the jury. Comments upon the failure of the accused to testify, when statutes provide against inferences from such failure,^ prejudicial and unwarranted statements and arguments,^ such as statements of or comments upon facts not in evidence or excluded by the court,^ exaggerated, inflammatory or abusive statements, remarks or appeals,'' averments of the belief of the prosecuting attorney in the defendant's guilt* — are forbidden. They violate the right of the accused to a fair trial, and ordinarily avoid a verdict of guilty. It is not sufficient, that the jury, after having been permitted to listen, are instructed or warned to disregard the improper statements. It is ground for setting aside a ver- dict, that th'e utterance complained of may have prejudiced.' 'Word ». C, 3 Leigh (Va.), 743; Dille «. S., 34 O. St. 617, 630. n CMtty Or. L. 628; Doss ». C, 1 G-ratt. (Va.) 5&7; S. ■». Millican, 15 La. Ann. 557; S. B.Schnelle, 34 Va. 767, 779. sp. ». Kelly, 94 N. Y. 536; S. v. Hoyt, 47 Conn. 518, 535-537; Kizers. S., 12 Lea (Tenn.), 564; Dille ». S., 84 O. St. 617; P. v. Labadie, 66 Mich. 702; Hart «. S. 14 Neb. 573; Ye.ldell s. S., 100 Ala. 36. *Wilson B. U. B., 149 U. S. 61. sHall ®. U. S., 150 U. S. 76 ; P. «. Cahoon, 88 Mich. 456. "Graves v. U. S., 150 U. S. 118. 'Graves «. U. S., 150 U. S. 118 ; Bessette ®. S., 101 Ind. 85 ; Laubach ». S., 13 Tex. App. 583 ; Crowo. S., 33 lb. 264; Thompson v. S., lb. 473. sp. ». Quick, 58 Mich. 321. 'Tucker v. Henniker, 41 N . H. 317 ; B. O. R. R. «. Boyd, 67 Md. 31 ; Mitchum B. S., 11 Ga. 615 ; P. «. Dane, 59 Mich. 550; P. e. Evans, 72 lb. 367; P. ». Treat, 77 lb. 348; Basse «. B., 68 Wis. 530; Laubach v. S., 12 Tex. App. 583; Bessette «. S., 101 Ind. 85; S. v. Balch, 31 Kans. 465. 158 Criminal Procedure § 246. Charging And Instructing Jury. — After the close of the evidence and addresses of counsel, it becomes the duty of the judge to charge the jury, summing up the evidence and instructing them as to its legal effect and bearing upon the issues.^ The charge, or instructions, may be oral or in writing.^ § 247. Province Of Court And Jury. — It is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it, as given by the court, subject to the condition, that by a general verdict a jury of necessity determines both law and fact as compounded in the issue submitted to it in the particular case.^ Questions of fact* and of the credibility of evidence' are exclusively for the determination of the jury. The court may express its opinion upon the facts, provided, no rule of law is incorrectly stated and all matters of fact are ultimately submitted to the determination of the jury.' The judge must take care to separate the law from the facts and leave the latter in unequivocal terms to the judgment of the jury as their true and peculiar province.' § 248. Requirements As To Instructions. — The defendant is entitled, even in states where the jury are considered judges of the law,^ to have the jury fully instructed on all legal matters necessary to enable them to reach a true finding' — on general matters as well as specific matters.^" n Chitty Or. L. 631-633. sSmith V. Crichton, 33 Md. 108, 108. sSparf s. U. S., 156 U. S. 51. *White ». S., 13 Tex. 133. »S. V. Smallwood, 75 N. 0. 104. "Simmons v. U. S., 142 U. S. 148. 'Starr v. V. S., 153 U. S. 614, 624-628 ; Stevenson e. U. S., 163 lb. 813. sparker ii. S., 186 Ind. 186. Contra, holding that court, in its discretion, may give advisory instructions, but these, if wrong and prejudicial, constitute error. Beard v. S., 71 Md. 375 ; Ridgely v. S., 75 lb. 510. sCoffin ». TJ. S., 156 U. S. 433. "Calton i>. Utah, 130 U. S. 83 ; Poster o. P., 50 N. Y. 598, 601 ; Fleming v. S., 136 Ind. 149; Terry v. 8., 17 Ga. 204. Trial And Its Incidents 159 There' are two methods of imparting the instruction, which may he used in combination : the judge's charge and specific instructions, either in the language of the court, or in the language of requests to charge (prayers), granted (sometimes with proper modifications) at the instance of the parties. Any proper prayer, or request for instruction, must be granted, if presented in due time, provided the law thereof is not embodied in some other instruction, or in the charge.' Instructions must be clear and precise, free from anything that may mislead or confuse the jury.^ The charge must be temperate and impartial, free from expressions calculated to prejudice or inflame the minds of the jurors against the accused.-' Eequests for instructions should be presented in due time, certainly before addresses to the jury have begun, and regularly, at the close of the evidence.* § 249. Directing^ Verdict. — If there is a defect of proof as to any matter essential to the charge, the court must direct an acquittal.* The case against the accused should not be left to the jury upon a scintilla of evidence,' or where a conviction would not be warranted.' The court has no power, under any circumstances, to direct a conviction.* § 250. Documents For Jury. — Jurors may take with them only such documents, exhibits, writings or the like as the court directs.' They should have the indictment and, in the 'Coffin V. U. 8., 156 U. S. 433. Under special circumstances, a failure to charge or instruct, not resulting in prejudice to the accused, may be held not error. P. b. Gray, 5 Wend. 389. ^AUen B. U. S., 150 U. S. 551; Coffin o. U. S., 156 lb. 433, 463; Allison » U.S., 160 lb. 308. 'Hickory «. U. S., 160 U. S. 408, 424-435. *Manhatten Ins. Co. ». Francisco, 17 Wall. 673; PrindeviIle«.P., 43 111. 317. =Howell B. P., 5 Hun, 630, 631 ; S. o. Bryson, 83 N. C. 576. Cf.. Smith ». U. S., 151 U. 8. 150. «Reg. B. Smith, L. & C. 607, 630. 'U. S. V. Pullerton, Fed. Cas. 15,176. 8U. 8. 1). Taylor, 11 Fed. R. 470; 8. v. Riley, 113 N. C. 648. 'McCoy !). S., 78 Ga. 490. 160 Criminal Procedure discretion of the court, any documents, writings or exhibits that have been admitted in evidence,' but not notes or reports of the evidence, or writings or exhibits not in evidence.^ The intro- duction into the jury-room of documents, writings or exhibits not admitted in evidence and directed to go to the jury avoids the verdict, if such introduction apparently tends to the preju- dice of the accused.^ § 251. Discharge Of Jury. — Courts may discharge a jury, whenever there is a manifest necessity or the ends of justice would otherwise be defeated, and order a new trial before another jury.* 'C. V. Wingate, 6 Gray, 485. ^P. 0. Dowdigan, 67 Mich. 92. 'C. «. Edgerly, 10 Allen, 184; O. «. Nash, 135 Mass. 541 ; Yates v. P., 38 111. 537 (pistol). n"hompson v. U. S., 155 U. S. 271. Evidence 161 CHAPTER XXII. EVIDEl^CE. § 252. Instruments And means Of Proof. — Substan- tially the same rules as to instruments and means of proof obtain in criminal cases as in other common-law proceedings, the most important exceptions being as to the admissibility of "dying declarations"^ and the exclusion of certain kinds of evidence under the constitutional provision as to "confronting with witnesses."^ Documentary evidence' is allowed, and the introduction of "real evidence"* and resort to "experiments"' are permissible. Depositions on behalf of the prosecution are not allowed;" but depositions on behalf of the accused are allowed under special circumstances.' § 253. Real Evidence. — Any articles used* in connection with the commission of a crime or a previous attempt and all materials which are in any way part of the res gestae^ are admis- sible in evidence. Children may be produced, when the deter- mination of their age, color or paternity is material." § 254. Experiments. — Experiments, in illustration of other- wise relevant evidence, may be made in the presence of the 'Post, 1 387. ■'Ante, § 70. 3It). ^Po8t, 1 353. ^Post, § 354. ^Ante, § 70. 'Mostyn v. Fabrigas, Cowp. 161, 174; U. S. ». Wilder, 14 Fed. R. 393; U. S. v. Cameron, 15 lb. 794. 'S. v. Ward, 61 Vt. 153 ; Foster v. P., 63 N. Y. 619. 'Levy V. 8., 38 Tex. App. 303; Jackson «. S., lb. 370; Williams «. S., 85 Va. 607 ; P. v. MuUer, 33 Hun, 309 ; P. ®. Gonzales, 35 N. T. 49 ; P. v. Budden- sieck, 103 lb. 487, 498; Drake ». S., 75 Ga. 413; Turner v. 8., 89 Tenn. 547, 564-565. '"Gaunt !). 8., 50 N. J. L. 491 ; Hermann ». 8., 73 Wis. 348 ; 8. «. Horton, 100 N. C. 443 ; C. ». Emmons, 98 Mass. 6. Contra as to paternity : Clark v. Bradstreet, 80 Me. 454. 11 162 Criminal Procedure jurj', and the results of experiments may be given by witnesses (generally, if not necessarily, experts), in illustration of other- -wise relevant testimony, provided, they are based, as nearly as ipossible, upon the same conditions and circumstances existing :in the case on trial. ^ Jurors are not permitted to make experi- jnents.^ ■ § 255. Pliotog^raphs And Representations. — If the exis- tence, identity or appearance of a person, place or thing ig a fact in issue or relevant to a fact in issue, a photograph, plan, picture, model, sketch, map, diagram or other like representa- tion of the same, if shown to be a true representation, is admissible in evidence.^ The representation must be of the identical object in question,^ and is not admissible, unless practically instructive,^ nor if better evidence is available.^ Photographic copies of documents may be used as secondary evidence under the same conditions as other copies.^ § 256. Reasonable Doubt. — The guilt of the accused must be proved beyond a reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction, to a moral certainty, of the truth of the charge. Unless the jurors are thus convinced by the evidence of the guilt of the accused, they must acquit. § 257. Burden Of Proof. — Whenever the plea of not guilty is interposed, the burden of proving every fact material to the guilt of the defendant rests upon the government.^ This bur- den never shifts, but rests upon the government throughout, 'S. v. Justus, 11 Or. 178 (cases cited) ; S. ». Fletcher, 24 lb. 295 ; Boyd v. S., 14 Lea (Tenn.), 161 ; S. v. Levire, 85 Cal. 39. 2Jim V. 8., 4 Humph. (Tenn.) 389; Forehand ». S., 51 Ark. 553; S. t>. San- ders, 68 Misso. 303; P. s. Conkling, lU Cal. 616, 637-628. ^Wilson B. U. S., 163 U. S. 618 ; Cowley ®. P., 83 N. Y. 464 ; Archer v. Kail- road, 106 lb. 589, 608 ; P. «. Johnson, 140 lb. 350 ; Blair ». Pelham, 118 Mass. 420 ; C. ». Morgan, 159 lb. 375 ; Kansas E. E. o. Smith, 90 Ala. 25 ; Franklin s. 8., 69 6a. 36 ; Rowell v. Fuller, 59 Yt. 688, 695. ^People's R. R. v. Green, 56 Md. 84. 'Verrau ». Baird, 156 Mass. 141. 'County Commr's d. Wise, 71 Md. 43, 54. 'Elborn «. Zimpelman, 47 Tex. 503. «U. S. B. Reder, 69 Fed. R. 965. Evidence 163 even though a distinct substantive defense is interposed by the accused by way of justification or excuse of the matter charged.^ § 258. Presumption Of Innocence. — The law presumes every man innocent of crime. This presumption is evidence in favor of the accused ; it is to be considered as a part of the proof in each case, one of the elements from which the legal conclusion of the defendant's guilt or innocence is to be drawn. The accused is entitled to have a .knowledge of this presump- tion communicated to the jury in an instruction or charge of the court: a charge of the law of reasonable doubt does not embody this presumption.^ The presumption starts with the accusation and continues until the taking of the verdict.^ On the other hand, conclusive presumptions and estoppels have no place in criminal law in establishing guilt." § 259. Circumstantial Evidence. — Any material fact, including the corpus delicti and the identity of the accused, may be proved by circumstantial evidence f but, in order to justify the inference of guilt from such evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.* If there is a reasonable doubt as to any one circumstance forming part of a combination, or chain, of circumstances upon which guilt is dependent, the accused must be acquitted.'' In partic- ular, circumstantial evidence to establish the corpus delicti must be of the most cogent and convincing character.^ § 260. Allegations And Proof. — When the general issue is pleaded, every essential allegation of the indictment must be iPotter 1). U. 8., 155 U. S. 438, 448 ; Coffiu v. U. S., 156 lb. 433, 401 ; Davis v. U. S. 160 lb. 469, 487; P. v. Cassata, 6 N. Y. App. Div. 386. ^Coffin 1). IT. S., 156 U. S. 483. ^U. S. ». Reder, 69 Fed. R. 965, 969 ; P. v. NoNamara, 94 Cal. 509, 514. *DaYis ». U. S., 160 U. S. 469; S. v. Hutchinson, 60 Iowa, 478. 53 Greenl. Ev. § 30; St. Clair ». U. S., 154 U. S. 134. 'V. S. V. Reder, 69 Fed. R. 965, 970. 'Dossett V. U. S., 3 Okla. 591 ; Porterfield v. C, 91 Va. 801. 8Campbell«. P., 159 111. 9. 164 Criminal Procedure covered by the proof. Unnecessary allegations, whether material to the charge as framed or not, need not be proved, provided they may be rejected as surplusage,' or as not being of the substance of the issue.^ Under certain circumstances, if the evidence is insufficient to sustain the charge laid, there may yet be a conviction of a minor offense included within the offense charged and covered by the proof.' Allegations of matters essential to the jurisdiction of the court to try the offense* and of certain matters of description^ must be proved as laid. Matters charged according to legal effect may be proved according to outward form.* Within the limitations stated, a failure to establish any essential allegation, or a variance between the averments and the proof, entitles the accused to an acquittal. § 261. Matters Of Description. — Matters descriptive of that which is legally essential to the identity of the charge must be proved as laid. The crime must be shown to have been com- mitted in the mode alleged. If instruments or means used are alleged, a substantial correspondence between the allegations and the proof is sufficient. \_IlliistratioriS : — An averment, that A lent money to B " for three months " at a usurious rate of interest is not supported by proof, that the loan was for " three months and one month additional, if B desired."'^ An averment, that A falsely represented, that his property was " not encumbered by any lien " is not supported by proof, that he stated, he "did not owe a dollar " to any man.* An averment, that A published pictures of "naked girls " is not supported by proof, that he published pictures of girls " naked above the waist.'" ^Post, i 363. ■'Post, § 263. ^Poat, I 364. *'Post, i 269. ^Post, I 261. '■Post, I 265. 'Merriman v. S., 6 Blackf. (Ind.) 149. 8Sharp v. S., 53 K. J. L. 511. 'C. V. Dejardin, 136 Mass. 46. Evidence 165 A charge of "shooting " with a " pistol " would not be sup- ported by evidence of " cutting " with a "knife,"' but woulcL be supported by evidence of shooting with a " gun."^ A charge of administering poison by means of a particular vegetable "filled and saturated" with a certain drug is supported by proof, that the particular drug named, " contained " in the particular vegetable nanied, was administered.^] In general, it is sufficient, if the manner of injury caused agrees in substance (as to genus of term used) with that averred (a variance as to species being immaterial).'' § 262. Surplusage. — Unnecessary averments need not be proven, if they embody a suhstanike statement of matter imma- terial to the charge f but if matter descriptive of that which is legally essential to the identity of the charge is set forth with unnecessary particularity, all the circumstances of the descrip- tion must be proven as laid.* If the designation of a person, place or thing is essential to the description of the offense charged, every averment, though unnecessarily made, descriptive of such person, place or thing becomes material to the charge and must be proven. Such are the cases. of the following unnecessary descriptive designations: A woman described as a " widow ;"^ a person described as (a resident) " of " a certain place f the termini of a route or highway unnecessarily averred;^ land unnecessarily described by metes and bounds;'" a house unnecessarily alleged to be "near the residence of" a certain person;" the quality, material or marks of goods and chattels unnecessarily alleged ;'^ money iPhillips V. S., 68 Ala. 469, 475. ^Turner o. S., 97 Ala. 57. 'C. ». McLaughlin, 105 Mass. 460. n Greenl. Ev. ? 65 ; C. v. Coy, 157 Mass. 200. 'Reg. 0. Turweston, 4 Cox C. C. 349; Reg. -d. Jennings, 7 lb. 397 ; S. a. Bailey, 31 N. H. 531 ; Hull ». S., 130 Ind. 153. «3 Russ. Cr., 9 ed., 307 ; C. v. Luscomb, 130 Mass. 43. 'R. ». Deeley, R. & R. 303. 8C. e. Stone, 153 Mass. 498. 'U. S, «. Foye, Fed. Cas. 15,157; S. v. Northumberland, 46 K. H. 156. "0. V. Wellington, 7 Allen, 399. "Dennis o. S., 91 Ind. 391. i^Alkenbrack «. P., 1 Den. 80; S. ». Noble, 15 Me. 476. 166 Criminal Procedure described as consisting of notes and coin of a certain denomina- tion and value, when (under a statute) an allegation of merely a certain amount of dollars and cents, current money, would have been sufficient;' a note unnecessarily alleged to be " signed by " a certain person.^ It has also been held, that if an indictment for obstructing an officer unnecessarily alleges, that he was " legally appointed " the proof must show, that he was an officer de jure.^ On the other hand, if a chattel necessarily named or described is averred to be the property of A, and the proof shows it to be the property of B, the variance is immaterial, if the entire alle- gation of ownership is surplusage;* an allegation in an indictment for abortion, that the victim died in consequence thereof need not be proven f and in an indictment for con- spiracy to charge one with cringe for purposes of extortion, the allegation " falsely," qualifying " to charge," may be rejected as surplusage.* § 263. Substance Of Issue. — It is sufficient to prove only so much of the indictment or accusation as constitutes the offense charged, or, as it is otherwise expressed, the substance of the issue only need be proved.' The application of this doctrine is to be found in cases where the indictment sets forth an aggregate number, or states a particular elenient of the crime in the conjunctive. It is sufficient to prove any component part of the allegation, provided the proof completely brings the party within the definition of the crime charged in respect of the ingredient thereof involved in the allegation.' It is sufficient to prove any one of several distinct assign- ments of perjury' or false pretenses,"' or any one of several 'Lewis V. S , 113 Ind. 59. 2R. «. Craven, R. & R 14. '8. V. Copp, 15 N. H. 312; S. v. Sherburne, 59 lb. 99. *U. S. V. Howard, Fed. Gas. 15,403; Stevens » C, 4 Leigh (Va.), 683. 'C. ». Adams, 127 Mass. 15. 'R. V. Hollingsberry, 4 B. & 0. 389. '3 Russ. Cr., 9 ed., 308-809. «1 Greenl. Ev. ? 65 ; P. v. Haynes, 14 Wend. 54(;, 556-557. ^Post, ? 765. '"Pout, I 638. Evidence 167 overt acts of treason alleged.' An indictment for having forged and caused to be forged is sustained by proof of either allegation.^ An indictment charging the composing, printing and publishing of a libel is sustained by proof of printing and publishing.' If an act is charged to have been committed with several intents, it is sufficient to prove any one of them which would bring the party within the delinition of the crime charged :* a charge of assault with intent to rob of several arti- cles specified is supported by proof of an intent to rol) of any one.^ Indictments for larceny and the like are sustained by proof of taking any part of the goods or money averred, pro- vided the punishment is the same, whether more or less is taken.* § 264. Proof Of JMinor Offense It is sufficient to prove so much of the charge as constitutes an offense punishable by law and within the jurisdiction of the court.'^ The defendant may be acquitted of the full offense charged and convicted of a minor offense, provided all the elements of the minor offense are included in that charged* and sufficiently averred,^ even though the evidence shows, that be has been guilty of the greater crime,'" provided further, that the court is not without jurisdiction over the lesser offense ;" and it has been held, that there may be a conviction of a misdemeanor which is part of a felony charged.'^ ^Post, 1 830. 'R. V. Middlehurst, 1 Burr. 399. 3R. ». Hunt, 2 Campb. 584; R. ». Williams, lb. 646. *3 Russ. Cr., 9 ed., 310. 'Phillips ». S., 36 Ark. 383. «R. V. Gillham, 6 T. R. 365 ; R. v. Carson, R. & R. 303. '3 Russ. Cr., 9 ed., 808-810 ; 1 Chitty Cr. L. 350. ^Crockett ». P., 80 Ga. 104 ; Moore v. S., 59 Miss. 25 ; S. v. McEvoy, 73 Iowa, 557; S. V. Yanta, 71 Wis. 669. »R. V. Withal, 1 Leach, 88 ; Warner a. S., 54 Ark. 660. i»C. -c. Creadon, 163 Mass. 466. "Nelson «. S., 10 Humph. (Tenn.) 518. I'S. V. Kennedy, 7 Blackf. (Ind.) 223; Hunter i>. C, 79 Pa. St. 503; PriniJe- ville V. P., 42 111. 317 ; P. v. Jackson, 3 Hill, 93. 168 Criminal Procedure [^Illustrations : — Upon an indictment for burglary, charging breaking and entry with intent to steal and actual stealing/ or an indictment for robbery or other aggravated or compound larceny, there may be a conviction of simple larceny ; upon an indictment for murder, a conviction of manslaughter ; upon an indictment charging a battery, wounding, assault with intent to commit a felony, or other aggravated assault or offense includ- ing assault, a conviction of simple assault.^ Upon an indictment for rape, there may be a conviction of assault,^ but not of fornication with a woman not described as single.* Upon an indictment for (mere) assault with intent to kill, there can be no conviction of an offense involving a battery.^] § 265. Proof According To l.egal Effect. — Averments may be proved according to their legal effect. [Illustrations : — An averment of a sale by A is supported by proof, that the sale was made by B, his clerk, servant or agent.^ An averment of a sale to A is supported by proof of the sale to B, his agent.^ An averment of forgery of a writing is supported by proof of forgery of a material part thereof.* An averment, that A " caused " animals " to eat " poison is supported by proof, that he placed it where they were expected to and did find and eat it.' An averment that A, B and C " held a pistol, and with the pistol so held killed D " wa& held supported by proof, that A alone held the pistol and fired the fatal shot, B and C being present, aiding and abetting.^"] '.Jennings ®. C, 105 Mass. 586. 2Reg. ». Taylor, 11 Cox C. C. 201; C. «. Fischblatt, 4 Mete. 264; P. ». McDon- ald, 9 Mieh. 150; Clark b. S., 12 Ga. 350; Glvens b. S , 6 Tex. 344; McBrlde ■€. S., 7 Ark. 374. 'C. ». Dean, 109 Mass. 349. *S. V. Shear, 51 "Wis. 460. 'Turner v. Circuit Judge, 88 Mich. 359 ; S. v. Melton, 106 Misso. 683. 'C. 0. Park, 1 Gray, 553. 'C. B. Jeffries, 7 Allen, 548. 8C. «. Butterick, 100 Mass. 13. 'C. ®. Palvey, 108 Mass. 304. "P. V. Callaghan, 4 Utah, 49, 62. Evidence 169 § 266. IVe^atlve Averments. — A negative averment which is part of the description of an offense must be proved by the government.^ In exceptional cases, involving the commission of acts unlawful, unless the defendant possesses a special quali- fication or authority, where the proof lies peculiarly within the knowledge of, and is easily producible by, the defendant, it has been held, that the defendant must prove himself within the exception.^ Thus, upon a charge of practising a business or calling (e. g., keeping a ferry,' practising medicine^), or selling goods or liquor,'' without a license, it is very generally held,, that the defendant must prove his license. § 267. Hfames Of Persons. — Misnomer of the defendant is immaterial, unless pleaded in abatement.^ JTames of third persons, individual or corporate, must be proved substantially as alleged.' A mere variation in spelling is immaterial, if the names are either idem sonans^ or the same in sense and general acceptation, as where the original deriva- tion is the same and one is an abbreviation, variation or cor- ruption of the other." If two names, spelt differently, necessarily sound alike, the court may, as matter of law, declare tlieni to be idem s'onmis ; but if they do not necessarily sound alike, the question of Idem smians is one of fact for the jury.'" iColorado Coal Co. v. U. S., 123 U. S. 307; S. ». Hirsch, 45 Misso. t39; C.v. Samuel, 3 Pick. 103. ''S. V. Morrison, 3 Dev. (N. C.) L. 299 ; S. ». Crowell, 25 Me. 171. ' A^heat «. S., 6 Misso. 455. ••P. V. Nyce, 34 Hun, 398. 'The almost utiversal doctrine. There are, however, well-reasoned decis- ions to the contrary. S. ». Kuhuke, 36 Kans. 405 ; S. «. "Nfye, 32 lb. 201 ; Mehan v. S., 7 Wis. 670; C. v. Thurlow, 34 Pick. 374, 380-881. Later Massa- chusetts cases, sometimes cited in support of the majority doctrine, are pro- fessedly founded upon a statute. C. v. Kelly, 10 Cush. 69. n Chitty Cr. L. 203. ■■lb. 316; Eeg. v. James, 3 Cox C. C. 337; Putnam v. U. S., 163 U. S. 687; Little V. P., 157 111. 153. n Chitty Cr. L. 303 ; S. v. Collins, 115 N. C. 761. Cf. ante, §147. n Chitty Cr. L. 303; Williams e. U. S., 3 App. D. C. 335; Patterson v. P., 12 Hun, 137; Wilkerson «. S., 18 Misso. 91; Walter v. S., 105 Ind. 589. "C. v. Warren, 143 Mass. 568 ; S. v. Thompson, 10 Mont. 549 ; P. «. Pick, 89 Cal. 144, 149 (Chinese names). 170 Criminal Procedure If several names are averred connected by aliases, proof of any one is sufficient' If a name is alleged as unknown to the grand jury, and nothing appears to the contrary, the truth of the averment is presumed;^ but, if it appears, that the name was in fact known to them, there is a variance.^ § 268. Time It must be proven, that the alleged offense was committed prior to the finding of the indictment* and within the period of time (if such is prescribed) limited for the prosecution^ and, in special instances (e. time, it becomes material to prove, that the break- ing was at night, but the alleged hour of the night, like the particular date in other respects, is immaterial.*] § 269. Place. — Allegations of place are material only so far as they relate to the local jurisdiction of the court or are matters of description of particular ofiEenses,^ or where they are unnecessarily introduced in a form descriptive of the offense charged.^ The fact, that the alleged offense was committed within the jurisdiction of the court may be established by circumstantial evidence.' § 270. ■Written Instruments. — Instruments set out accor- ding to the tenor must be proved strictly as alleged,* but mere variance in spelling is immaterial.^ Instruments set out accor- ding to the purport or substance must be proved substantially (in substance and legal effect) as alleged." If a memorandum iC. V. Varney, 10 Cush. 403. 23 Russ. Cr., 9 ed., 41 ; Dill ». P., 19 Color. 469. 'C. V. Monahan, 9 Gray, 119 ; Roberts v. P., 99 111. 275. *Post, ? 557. *4 Bl. Comm. 306 ; 1 Chitty Cr. L. 300 ; C. v. Tolliver, 8 Gray, 386. ^Ante, 1 363. '3 Greenl. Ev. ?113 ; C. ». Costley, 118 Mass. 1, 36. n Chitty Cr. L. 233-334 ; S. v. Townsend, 86 N. C. 676 ; Baker v. S., 14 Tex. App. 333. n Chitty Cr. L. 234; R. i>. Hart, Cowp. 339 ; Reg. ». Wilson, 3 Cox C. C. 436 ; Allgood v. S., 87 Ga. 668 ; P. v. Phillips, 70 Cal. 661. "C. '0. Parmenter, 5 Pick. 379; C. v. Ray, 3 Gray, 441 ; Downing ». S., 4 Misso. 572 ; Mee «. S., 23 Tex. App. 566. 172 Ceiminal Procedure or the like, appended to a writing, but immaterial to its charac- ter, is unnecessarily set forth, it need not be proved/ § 271. Spoken fVords. — Language, the utterance of which constitutes an alleged offense, must be proved substantially as laid;^ but it is sufficient to prove so much of the language averred as constitutes the offense charged.^ § 272. fTords In Foreign Lianguage. — If language al- leged to have been used is set forth in words purporting to give the tenor, the publication, utterance or the like must be proved in the language alleged ;* if alleged according to pur- port or substance, the substance and effect averred in English is established by proof of a publication, utterance or the like in a foreign language.' § 273. Real And Personal Property. — The quality and description of property which is the subject of an alleged- offense, or otherwise material to the charge, must be proved as laid.* This rule applies to money and choses in action.' If such property — real,* personal,' money,'" chose in action"^is described with unnecessary particularity, the description must be proved as laid. § 274. Ownership And Possession. — Ownership and pos- session, whenever material to the crime charged, must be proved as laid.'^ An unnecessary allegation of ownership or possession iC. V. Stevens, 1 Mass. 203; C. ■». Ward, 2 lb. 397; Langdale o. P. 100 111. 363 ; Trask ». P., l.'jl lb. 523 ; Miller v. P., 52 N. Y. 304; Perkins «. C, 7 Gratt. (Va.) 651 ; Smith ». S., 29 Flor. 408. 'C. ». Moulton, 108 Mass. 307; P. d. Warner, 5 Wend. 371 ; Frisby v. S., 36 Tex. App. 180; Berry v. S., 27 lb. 488; Riddle a. S , 30 lb. 425. 'Reg. V. Fussell, 3 Cox C. C. 391; Frisby v. S., 26 Tex. App. 180. *Strichtd v. S., 35 Tex. App. 430. =Reg. V. Thomas, 3 C. & K. 806. n Ohitty Cr. L. 947; C. v. Clair, 7 Allen, 535, 527; S. f>. Harris, 3 Harr. (Del.) 559; S. v. Cockfield, 15 Rich. (S. C.) 316; P. v. Reed, 70 Cal. 529. 'Statum V. S., 9 Tex. App. 373; Williams v. P., 101 111. 382. 8C. «. Wellington, 7 Allen, 399. 'Alkenbrack v. P., 1 Den. 80; C. ». Luscomb, 130 Mass. 42; McGee «. S., 4 Tex. App. 625; B. v. Noble, 15 Me. 476. i»Childers v. S., 16 Tex. App. 524. "R. V. Craven, R. & R. 14. "McGary v. P., 45 N. Y. 153 ; Bailey v. S., 20 Tex. App. 68 ; P. v. Frank, 1 Id. N. S. 200. Evidence 173 may be rejected as surplusage,' unless made in a form descrip- tive of the identity of some averment material to the charge.^ § 275. Wumber, Quantity And Value. — An averment of number, quantity or value is supported by proof of any different number, quantity or value, less or greater, sufficient to bring the party within the definition of the offense charged;^ but number averred in a form descriptive of matter material to the charge must be proved as laid.'' Upon an indictment charging a collective value of several articles, where value is material, there can be no judgment, if the conviction is of less than all the articles averred.^ § 276. Intent. — An allegation of intent material to the crime charged must be proved as laid,* though averred with unnecessary particularity ;'' but a wholly unnecessary allegation of intent may be rejected as surplusage.* If several intents are charged, or the averment of intent relates to several matters specified, it is sufficient to prove any part of the allegation that will bring the party within the definition of the crime charged.^ If the averment of intent relates to one matter, proof of an intent relating to several matters is merely redundant; e. ^., an allegation of an intent to defraud A is supported by proof of intent to defraud A and B.i" 'Reg. ■». Newboult, 13 Cox C. C. 148 ; U. S. v. Howard, Fed. Gas. 15,403 ; Stevens v. C, 4 Leigh (Va.), 683. 20. ». Wade, 17 Pick. 395. '1 Chitty Or. L. 336-337; 0. v. McKenny, 9 Gray, 114; S. ». Harris, 64 N. O. 137 ; S. V. Martin, 83 lb. 673 ; P. «. Wiley, 8 Hill, 194, 313. "S. D. Handy, 30 Me. 81 ; P. v. Coon. 45 Cal. 673. 'Hope 9. C, 9 Mete. 174; 0. e. Lavery, 101 Mass. 307 ; Meyer v. 8., 4 Tex. App. 131. «Robinson v. S., 58 Md. 151 ; P. v. Mulkey, 65 Cal. 501 ; S. v. Crowley, 100 lb. 478; S. ». Halford, 104 N. C. S74. '0. ». Harley, 7 Mete. 506; C. ■». Kellogg, 7 Gush. 473; 8. ». Carroll, 13 Mont. 346. «1 Chitty Or. L. 338. '3 Russ. Or., 9 ed., 310; Phillips ». 8., 36 Ark. 383. "Veazie's Case, 7 Me. 131. 174 Criminal Procedure Specific proof of intent is not necessary ; it may be estab- lished by evidence of attending facts and circumstances.^ The accused may testify as to his own motives or intentions, when- ever they are material.^ § 277. Proof Of Insanity. — If, upon the whole evidence, a reasonable doubt as to the sanity of the accused exists, he is entitled to an acquittal.^ § 278. Alibi. — By an alibi is meant the defense (under the plea of not guilty), that at the time of the commission of the alleged offense the accused was in another place. It is governed by precisely the same rules as all other afiirmative defenses. If the evidence touching it, even though it does not cover the whole time during which the defendant, in order to have com- mitted the crime, must have been present,* raises a reasonable doubt of guilt, he must be acquitted.^ The evidence must be left to the jury entirely uninfluenced by instructions calculated to throw discredit upon the defense,' and no legal significance attaches to a failure in its proof.^ § 279. Best Evidence. — The best evidence, according to the nature of the case, is required — primary, to the exclusion of derivative and inferior kind of proof, necessarily importing the existence of better evidence withheld ; but the mere substitu- tion and selection of weaker for stronger proof is not prohibited.^ 'Weaver v. P., 133 111. 536. 'Fenwick ■o. S., 63 Md. 339; Greer v. S., 53 Ind. 430; White v. 8., lb. 595; KerraiDS «. P., 60 N. Y. 331, 338; Berry ». S., 30 Tex. App. 433; Wohlford s. S., 148 111. 396. ■sDavis V. U. S. 160 U. S. 469. ^Kaufman ». S., 49 Ind. 348; Walters v. S., 39 O. St. 315 ; Adams v. S., 38 Flor. 511, 542. "Sater ». S., 56 Ind. 378; Chappel v. S., 7 Coldw. (Tenn.) 93 ; S. e. Josey, 64 N. 0. 56; Blankenship v. S., 55 Ark. 344; Pollard v. S., 37 Miss. 410; Rudy v. C, 138 Pa. St. 500; Walters v. S., 39 O. St. 315 ; S. v. Harvey, 131 Misso. 339. ^Simmons «. S., 61 Miss. 343, 358-359 ; Williams «. S., 47 Ala. 659, 664 ; Spen- cer V. a., 50 lb. 134 ; Albin ». S. 63 Ind. 598 ; P. v. Kelly, 35 Hun, 395. 'C. V. Choate, 105 Mass. 451 ; White «. S. 31 Ind. 363 ; S. ®. Collins, 30 Iowa, 85 ; Toler «. S., 16 O. St. 588 ; Turner «. C, 86 Pa. St. 54, 74 ; Adams v. S., 38 Flor. 511, 543. 83 Russ. Cr., 9 ed., 333 ; 1 Chitty Or. L. 566. Evidence 175 Thus, the payment of money may be proved by oral testimony, although there is a receipt in existence ; and the fact, that a witness gave certain testimony may be proved as \ye[\ by calling one who heard him as by the introduction of an official steno- graphic report of the testimony.' Within the limitations and exceptions hereinafter stated, hearsay^ and oral or secondary evidence of the contents of writings are inadmissible. In secondary evidence, there are no degrees, but the proof must be legitimate. Thus, a witness who has read a destroyed or lost document may testify as to the contents, though there is a copy in existence ; but a copy of a copy, or a copy without proof of accuracy, is inadmissible. § 280. 'Writing-s And Records. — The ordinary rule applies in criminal cases,^ that if a writing is in issue, no derivative evidence is allowed, unless the original is lost, destroyed, in the possession of the adverse party, who refuses to produce after due notice,* or of a third party who can not be compelled to produce.'' The mere existence of a writing does not exclude oral evi- dence,^ and the rule rejecting secondary evidence is subject to the following exceptions : 1. Public records may be proved by duly certified copies.'' In general all official registers kept by public officers in which they are required, by express law, or by the nature of their office, to record matters occurring in the course of their public duties and under their personal observation are admissible in proof of the facts thus recorded.^ 2. Appointments of public officers may be proved by parol.' 'S. V. McDonald, 65 Me. 466. n Greenl. Ev. ? 99 ; Hopt v. Utah, 110 U. S. 574, 581. '3 Russ. Cr., 9 ed., 323. *Reg. ®. Elworthy, 10 Cox C. C. 579; Dunbar e. U. S., 156 U. S. 185, 196. 'Best Ev. 2 483. «3 Russ. Cr., 9 ed., 334; 1 Greenl. Ev. ? 90; C. o. Walker, 168 Mass. 336. '1 Greenl. Ev. § 91. n^3. §§ 483-484; WMte v. U. S., 164 U. S. 100 (prison register). n Greenl. Ev. ? 93 ; Ingraham v. U. S., 155 U. S. 438. 176 Criminal Procedure 3. Secondary evidence may be given, if it is the result of voluminous facts or of the inspection of many books and papers which cannot conveniently be examined in court.^ Analogous is the doctrine, that a witness may state the result of inquiries as to the residence or existence of a person.^ 4. Inscriptions on walls and other places and on objects of such weight, proportions or the like as to render production in court impossible or highly inconvenient may be proved by secondary evidence.' 5. If the existence of a writing is material, or its contents are relevant, an admission thereof, verbal or otherwise, by a party to the suit is ordinarily competent against him/ It has been held allowable to introduce such proof as oral testimony as to the nationality of a ship^ and to prove cor- porate existence by reputation." If the fact of a former trial becomes material, as in the case of a plea involving former jeopardy,^ or of an averment of a prior conviction, where repetition of an offense subjects to severer punishment,* the former acquittal or conviction must be proved by the record and the identity of the offenses shown by parol. It has been held, that identity is presumable from similarity of names' and that it may be established by showing, that the prisoner is the person who underwent the sentence mentioned in the record." § 281. Confessions — A confession is a statement or admis- sion of facts amounting to an acknowledgment of guilt. '1 Greenl. Ev. 2 93; Burtom). Driggs, 20 Wall. 125; S. v. Mndlay, 101 Misso. 217. ^3 Greenl. Ev. ? 109; P. ». Sharp, 58 Mich. 623; P. o. Epplngton, 105 Cal 36, 41 ; C. ■». Wentworth, 87 N. H. 196, 217. n Greenl. Ev. § 94. »Reg. V. Crofts, 9 C. & P. 219. Evidence 177 A confession is admissible against the person who made it (not against another, though an accomplice^), as a fact relevant to the question of guilt, provided it was freely and voluntarily made,^ and provided further, that the fact that it was so made has first been ascertained and determined by the court on due preliminary inquiry, the burden of proof of such fact being on the government.^ Voluntarily implies, that the confession must have been con-, sciouely made. "Words spoken in sleep are not admissible.* Mere intoxication, not amounting to delirium tremens, does not, exclude,^ unless the accused was made drunk.^ The inquiry and determination by the court are a condition precedent to admitting the confession;^ but it has been held, that if a conflict arises as to whether the confession was volun- tary or not, the matter may be left to the jury with instruction to reject, if, upon the whole evidence, they find, that the state- ment was not voluntary.* Further inquiry or ruling is not precluded by the determination of the court; and if it appears, at any stage of the proceedings, that the statement was involun- tary or is otherwise inadmissible, it must be ruled out." The preliminary inquiry may be in the presence of the jury.^" The defendant has the right to cross-examine, introduce evidence, and otherwise participate." The effect, weight and credibility to be attached to the evidence are exclusively within the province of the jury. They 13 Russ. Ci-., 9 ed., 421. ■'Post, i 383. ^The almost universal modern doctrine. Reg. v. Thompson, 17 Cox C. C 641; Nicliolson v: S., 38 Md. 140; Beckham ii. S., 100 Ala. 15, 18. «P. !). Robinson, 19 Cal. 40. =R. V. Spilsbury, 7 0. & P. 187; C. «. Hare, 9 Gray, 110 ; Jefferds v. P., 5 Park Cr. R. 518, 547; Lester s. S., 33 Ark. 727; S. ». Peltes, 51 Iowa, 495; White V. S., 33 Tex. App. 635 ; S. u. Greer, 28 Minn. 436. «8 Russ. Cr., 9 ed., 878. '1 Greenl. Ev. ? 319. sWilson V. U. S., 163 U. S. 613, 634. 'Smith V. S., 68 Ga. 637. "Lefevre v. S., 50 O. St. 584, 589. Contra: Hall v. S., 65 Ga. 36, 39. "Lefevre v. S., 50 O. St. 584; Jackson v. 8., 83 Ala. 76; S. v. Miller, 43 La. Ann. 1186; P. v. Fox, 131 N. Y. 449. 13 178 Criminal Procedure should consider it with the caution,' proportioned to the ■ ■circumstances of each particular case, arising out of the consid- erations of the danger of mistake or misapprehension of witnesses, the situation of the accused, especially if a prisoner, the doubt as to his meaning and his ability to express it, the influence of motives of hope or fear in prompting an untrue confession and the further consideration,^ that this evidence is not, in the ordinary course of things, to be disproved by the sort of negative evidence by which the proof of plain facts may be, and often is, confronted. A confession involving matter of law as well as of fact is to be received with more than usual caution.' The entire statement made by the accused must be given in evidence, such credit to be given to the whole or any part as the jury believe it entitled to.' A confession alone is not sufficient proof of the corpus delicti.^ § 282. Rules As To Admission. — A confession extorted through any sort of duress or violence is inadmissible.* A con- fession procured in consequence of inducements held out to the accused calculated to excite his temporal hopes is inadmissible f but an inducement of hope of collateral benefit not relating to the charge against the accused is held not to render a confes- sion inadmissible.* An inducement to confess held out by, or proceeding from, a person in authority renders a confession following inadmissible,' unless it is affirmatively shown, that '1 Greenl. Bv. ? 214. "Fost. 343. '3Russ. Cr., 9 ed., 433. *1 Greenl. Ev. ? 218 ; Frank o. S., 27 Ala. 37. n Greenl. Ev. ? 217; U. S. ■». Mayfield, 59 Fed. R. 118; P. o. RulofE, 3 Park. Cr. R. 401 ; P. V. Hennessey, 15 Wend. 147 ; Campbell v. P., 159 111. 9. «3Russ. Cr., 9 ed., 368; Jordan o. S., 32 Miss. 882; Flagg v. P., 40 Mich. 706; Irwin ®. S., 54 Ga. 39; Self v. 8., 6 Baxt. (Tenn.) 244; Youngs. S., 68 Ala. 569; Simon 0. S., 5Flor. 285. '3 Russ. Cr., 9 ed., 368 ; 1 Greenl. Ev. ? 239 ; R. «. Gibney, Jebb, 15. H Greenl. Ev. ? 239 ; S. v. "Wentworth, 87 N. H. 196, 218 ; S. v. Cruse, 74 N. C. 491. •1 Greenl. Ev. § 222 ; Reg. v. Thompson, 17 Cox C. C. 641 ; Reg. v. Male, lb. 089 ; P. V. Phillips, 42 N. Y. 200 ; Biscoe v. S., 67 Md. 6 ; Earp o. S., 56 Qa. 136 ; Robinson v. P., 159 111. 440. Evidence 179 the inducement did not take effect, or had entirely ceased to operate." A person "in authority" is one engaged in or about the prosecution of the person charged, or having any concern or interest apparently giving him the authority to interfere with the matter.^ An inducement "proceeds" from one in authority, if it is used in his presence with his sanction, express or implied, and whether the inducement is brought to the knowledge of the accused directly or indirectly.^ Inducements held out by persons not in authority render a confession inadmissible, if it appeass in fact, that they took effecf The mere fact, that a person was under arrest, or in the presence of the officer who apprehended him, does not render his confession inadmissible.* The fact, that a confession was made under a promise of secresy, or was fraudulently obtained, does not render it inad- missible.^ Facts discovered in -consequence of a confession in itself inadmissible are competent in evidence,' but acts of the accused following upon and connected with a confession unduly pro- cured are inadmissible.* § 283. Admissions. — The declarations, acts and conduct of the accused in the form or nature of admissions of fact relevant to the question of guilt may be given in evidence against him. An admission as to a writing operates as an admission of any other fact.' The whole statement made at one time must be given in evidence, subject to such credibility as the jury may attach to IS. v. Drake, US N. C. 634; C. ». Myers, 160 Mass. 530. ^3 Russ. Cr., 9 ed., 885; 1 Greenl. Ev. §§323-323. 5Reg. ». Boswell, Car. & M. 584; Reg. ». J.augher, 2 Cox C. C. 185; Moore- head V. S., 9 Humph. (Tenn.) 635. *1 Greenl. Ev. §233; Spears v. S., 3 O. St. 588. 'Pierce v. U. S., 160 U. S. 355 ; Wilson v. U. S., 162 lb. 613. «1 Greenl. Ev. § 229 ; S. ®. Mitchell, Phill. (N. C.) L. 447, Price ». S., 18 O. St. 418; Gates e. P., 14 111. 443. '3 Russ. Cr., 9 ed., 419; Jane ®. C, 3 Mete. (Ky.) 30; S. «. Winston, 116 N. C. 990. 'R.B. Jenkins, R. & R. 498. Cf. S. v. Winston, 116 N- C. 990. 'Dunbar ®. U. S., 156 U. S. 185, 196. 180 Criminal Proceduee it or any portion thereof;' but evidence of statements on the same subject made on separate occasions is admissible for the purpose of contradicting or explaining the alleged admission.^ " Admissions by conduct " include any acts or conduct of the accused indicative of a guilty mind f the silence of the accused, when statements are made in his presence under circumstances warranting the inference, that he naturally would have contradicted them, if he did not assent to their truth ;* flight, concealment or any attempt to avoid or escape from arrest ;° false and contradictory statements of the accused f actual or attempted destruction or fabrication of evidenced Evidence of conduct of one under accusation should always be received with caution.* § 284. Statements Under Oath. — Statements in the nature of admissions or confessions made by the accused on oath, in the form of an affidavit, deposition or oral testimony, in any kind of proceeding, may be given in evidence against him, provided such statements were not made under compulsion or order of court,' or while he was under examination as to his own guilt, or under impressions of fear.'" iBaildon ». Walton. 1 Exch. 617; S. v. Bullard, 16 N. H. 139; S. v. Browu, 21 Kans. 38, 53. ^Beauchamp v. Tunnell, 1 Bibb (Ky.), 441 ; P. o. Green, 1 Park Cr. R. 11, 18-19; P. «. Beach, 87 N. Y. 508. 'Cordova ii. S., 6 Tex. App. 307; Handline v. S., lb. 347; Noftsinger v. S., 7 lb. 301 ; Miller v. S., 18 lb. 233 ; Basliam ii. 0., 87 Kent. 440; C. v. McHugh, 147 Mass. 401 ; Huggins v. S., 41 Ala. 393 ; Adams v. S., .52 lb. 379 ; S. v. Brab- ham, 108 N. C. 793 ; P. ». O'Neill, 113 N. Y. 355. "Sparf V. U. S., 156 U. S. 51. Cf. Reg. v. Mitchell, 17 Cox C. C. 503; Ware V. S., 96 Ga. 349. 'Hickory «. U. S., 160 U. S. 408. "C. V. Grose, 99 Mass. 423; Cornelison v. C, 84 Kent. 583 ; S. ii. Bishop, 98 N. C. 773; Tompkins ». S., 17 Ga. 356; S. v. Benner, 64 Me. 367, 389. n Greenl. Ev. ?37; S. o. Rohfrischt, 12 La. Ann. 382; Collins ».C.,12Bush (Ky.), 371. 'Hickory v. U. S., 160 U. S. 408; Smith «. S., 9 Ala. 990, 995 ; Campbell v. S., 55 lb. 80. »Reg. V. Garbett, 3 Co.x. C. C. 448; U. S. «. Prescott, Fed. Cas. 16,085. i»S. V. Broughton, 7 Ired. (N. C.) L. 96 ; P. «. McMahou, 15 N. Y. 384 ; S. v. Garvey, 35 La. Ann. 191 ; Hays v. S., 40 Md. 633, 651 ; S. ». Young, 119 Misso. 495. Evidence 181 § 285. Declarations Of TMrd Persons. — The declara- tions, i. e., assertions by words, acts or conduct, of third persons are inadmissible for or against the accused' except in the following cases : 1. Where they are imputable to him as his admissions. Such are declarations of third persons in the presence of the accused, under circumstances heretofore stated,^ and declarations of the actual agent of the accused.' If several conspire or combine to commit an offense, the declarations of each conspirator or participant made pending and in furtherance o/the conspiracy or common object are admissible against the others,* whether conspiracy is charged or not.° 2. "Where they form part of the res gestae.^ 3. In the case of dying declarations.'' Declarations of the " prosecutor " or injured person,^ of the husband or wife of the accused^ and contents of unanswered letters found in his possession" are excluded as declarations of third persons. An official report of a public officer containing statements implicating the accused falls within the rule of exclusion." The admissions of one defendant do not affect another.'^ § 286. Res Gestae. — Acts, appearances and declarations so immediately and unconsciously connected with and illustra- tive of any matter in issue or relevant to the issue as to form a 'Britton s. S., 4 Coldw. (Tenn.) 173 ; Peck ». S., 86 Tenn. 359; Munshower «. S., 55 Md. 11 ; S. v. White, 68 N. C. 158; S. ». Beaudet, 53 Conn. 536. ^Ante, I 383. 'U. S. ®. Gooding, 13 Wheat. 460, 468-469. *3 Greenl. Ev. § 94 ; Logan ». U. S., 144 U. S. 363; Brown v. U. S., 150 lb. 93; Sparf ». U. S., 156 lb. 51 ; Wiborg n. U. 3., 163 lb. 633. sp. «. McKane, 143 N. Y. 455, 470. ^Post, \ 386. ■Po%t, I 387. sp. «. McLaughlin, 44 Cal. 435; S. ». Maitremme, 14 La. Ann. 830; Williams v. S., 53 Ala. 413. '8. ■B.Jaeger, 66 Misso. 173; Klingen v. 8., 50 Ind. 557; P. ». Thorns, 3 Park Or. R. 356. i»C. «. Edgerly, 10 Allen, 184, 187. "Cook «. U. S., 138 U. 8. 157, 184-185. "P. ». Mannaussau, 60 Mich, 15. 182 Criminal Procedure necessary incident thereof, constituting a part of the same transaction, are admissible for or against the accused.' Under this head are included explanations of possession.^ Declarations or statements made after the time of an occurrence,' or during its progress, but unconnected therewith,* are inadmissible; but declarations almost immediately following acts have been held admissible.' Declarations of bodily and mental feeling, or complaints, when the existence of the state indicated by them is material to the charge, are admissible, the evidence being restricted to exclamations and expressions, as distinguished from narrative.* Such is the case of a complaint of being hungry, made by a deceased child, which was admitted upon a charge against the parent of homicide by withholding necessary food.^ § 287. Dying Declarations. — In cases of homicide (ex- clusively*), any declaration, verbal, written,^ or by signs"" (if unequivocal"), by the person whose death is the subject of the charge, touching the circumstances of the death, is admissible for'^ or against the accused, if made under a sense of impend- ing death, or "impression of almost immediate dissolution."" Declarations of third persons are inadmissible;" otherwise, as to declarations of a particeps criminis in an act that resulted in his own death ;'^ and where the death of several results from 'Ins. Co. B. Mosely, 8 Wall. 397 ; Norwich Transportation Co. ». Flint, 13 lb. 3; Clair ®. U. S., 154 U. S. 134; Robinson v. 8., 57 Md. 15, 22 ; S. ®. Dellwood, 33 La. Ann. 1229 ; Hamilton v. S., 36 led. 280; P. ». O'Neill, 112 N. Y. 355. 2Reg. ». Abraham, 3 Cox C. C. 430; Bennett v. P., 96 111. 602; Allen v. S., 73 Ala. 23. 3Reg. V. Bedingfield, 14 Cox. C. C. 341. *C. V. Roberts, 108 Mass. 296. »S. V. Martin, 124 Misso. 514 ; Smith v. Dawley, 92 Iowa, 313. «1 Greenl. Ev. § 102 ; Hayes o. S., 40 Md. 683; C. ®. Leach, 156 Mass. 99. 'Reg. V. Conde, 10 Cox C. 0. 547! ".Johnson v. S., 50 Ala. 456 ; Railing v. C, 110 Pa. St. 100 (cases cited). n Qreeul. Ev. i 161 ; C. o. Haney, 127 Mass. 455. i»C. v. Casey, 11 Cush. 417; Jones v. S., 71 Ind. 66. "McHugh V. S., 31 Ala. 317, 322. '^Mattox V. U. S., 146 U. S. 140, 151. "1 Greenl. Ev. § 158. "lb. ?157; Brown v. C, 73 Pa. St. 321. 151 Greenl. Ev. ? 157. Evidence 183 one act, the dying declarations of one have been held admis- sible on a charge of the homicide of another.^ The evidence is confined strictly to the act of killing and the circumstances immediately attending it and forming part of the res gestae,^ and parts of a dying statement not thus admis- sible must be excluded.' As a condition precedent to admissibility, it must be deter- mined by the court, upon the affirmative showing of the party offering the evidence, that the declaration was made under the sense of impending death.^ This may be made to appear from what the declarant himself stated ag to his apprehension or consciousness of his condition, or from his condition, conduct or other surrounding circumstances.* The declarant must be shown to have been conscious of his condition." The slightest hope of recovery renders the declaration inadmissible.' The declarant's own belief and consciousness at the time of making the declaration is the criterion (in the respects here considered) of admissibility: it is immaterial, that he lived for some time afterwards,' that he expressed some hope before or afterwards,' that his physician had hope.'" IS. V. Wilson, 33 La. Ann. 558. Contra : S. i>. Bohan, 15 Kans. 407. ^S. «. Wood, 53 Vt. 560; P. v. Fong Ah Sing, 64 Oal. 353; Exp. Barber, 16 Tex. App. 369 ; S. v. Eddon, 8 Wash. 293, 399 ; S. v. Evans, 124 Misso. 397. 'Kirhy v. S., 89 Ala. 63, 70 ; P. «. Fong Ah Sing, 64 Cal. 353 ; P. v. Sweeney, 41 Hun, 383. *1 Greenl. Ev. ? 160; Mattox v. U. S., 146 U. S. 140, 151 ; S. v. Johnson, 118 Misso. 491 ; Justice v. S., 99 Ala. 180. '1 Greenl. Bv. ? 158 ; Mattox ». U. S., 146 V. S. 140, 151 ; Starkey v. P., 17 111. 17 ; S. V. Evans, 124 Misso. 397. The fact of his having received extreme unction is relevant. Carver «. V. S., 164 U. S. 694. «Reg. «. Mooney, 5 Cox C. C. 318; Reg. ®. Bedingfield, 14 lb. 341. 'Reg. ». Gloster, 16 Cox C. C. 471 ; C. «. Roberts, 108 Mass. 396; C. v. Bishop, 165 lb. 148 ; S v. Johnson, 118 Misso. 491 ; P. v. Hodgdon, 55 Cal. 73 ; P. V. Gray, 61 lb. 164. n Greenl. Ev. ? 158; R. o. Mosley, 1 Moody, 98; Reg. v. Bernadotti, 11 Cox C. C. 316; C. ». Cooper, 5 Allen, 495; Jones ». S., 71 Ind. 66; Svrisher v. C, 26 Gratt. (Va.) 963; Hall «. C.,89 Va. 171, 177. 'S. V. Reed, 53 Kans. 757; Swisher v. C, 36 Gratt. (Va.) 963; Small v. C, 91 Pa. St. 804; S. V. Evans, 134 Misso. 397. i»R. V. Mosley, 1 Moody, 98. 184 Criminal Procedure The declaration is admissible only subject to the same rules as to competency and credibility that obtain as to witnesses generally. The competency of the declarant to have been sworn as a witness furnishes the criterion as to his competency to make a dying declaration/ and the declarant may be im- peached, discredited or corroborated^ in like manner as if he had been sworn as a witness.* The evidence must be legitimate. Statements of the de- ceased in the nature of hearsay or opinion are inadmissible;* but the declarant's assertion, that the accused had shot him without cause," or that the hurt was accidental," has been held admissible. The substance of the declaration may be given in evidence' (if necessary, through an interpreter*), but the statement must be complete in itself : an interrupted or unfinished statement is inadmissible.' The declarations may be in response to leading questions, or to urgent solicitation.'" They may be under oath." Declarations, written and verbal, made at different times, are admissible.'^ Repetitions are admissible, if made when there is no hope of recovery, but not, if made when hope has been regained." A declaration made when there is hope of recovery may become admissible by being confirmed when there is none.''' Dying U Greenl. Ev. ? 159 ; Donnelly v. S., 26 N. J. L. 463, 506. =S. ®. Blackburn, 80 N. C. 474, 478. '3 Russ. Cr., 9 ed., 270; Carver «. U. S., 164 V. S. 694. ♦1 Oreeiil. Ev. ? 159; Jones v. S., 52 Ark. 345; P. •». Wasson, 65 Cal. 538. •Payne v. 8., 61 Miss. 161 ; Darby v. S., 79 Ga. 63; Boyle v. B., 97 Ind. 322 ; Roberts v. S., 5 Tex. App. 141, 150. •C. c. Matthews, 89 Kent. 287, 293. '1 Greenl. Ev. § 161 a. «Starkey v. P., IT 111. 17. n Greenl. Ev. ?§ 159, 161 a; S. v. Johnson, 118 Misso. 491, 504; Jackson v. C, 19 Gratt. (Va.) 656, 668. i"l Greenl. Ev. § 159; Vass v. C, 3 Leigh (Va.), 786, 799-800. "Turner v. S.. 89 Teun. 547, 559-560; S. v. Talbert, 41 S. C. 526; S. v. Arnold, 13 Ired. (N. 0.) L. 184; P. v. Knapp, Edm. Sel. Gas. 177. "S. «. Walton, 92 Iowa, 455, 459. "Carver v. U. S., 160 U. S. 553. "S. V. Evans, 124 Misso. 397. Evidence 185 declarations are admissible, notwithstanding the fact, that there are living witnesses (whether produced or not) to the same matters.^ Dying declarations are anomalous evidence,^ to he admitted with scrupulous care,-^ viewed by the jury with great caution* and not entitled to the same weight as ordinary evidence.'^ § 288. Relevancy. — The ordinary rules as to relevancy apply, vdth a tendency to strict enforcement of the require- ment as to the exclusion of irrelevant matter.^ Evidence is admissible, though not bearing directly upon the issue, if it tends to prove the issue, or is a link in the chain of proof,' the limit of the doctrine being, that it must not be too remote to be material under all the circumstances of the case.* Matters relevant in evidence are the time, place and circum- stances under which a crime is committed f the existence or non-existence of motive or opportunity for its commission ;" expressed feelings and purposes indicative of a state of mind that would prompt its commission;" facts showing preparation or previous attempts ;^^ in general, any prior or subsequent acts, declarations or surroundings of the accused tending to connect 'P. ». Knickerbocker, 1 Park. Cr. R. 302, 307. 'S. ». Bohan, 15 Kans. 407, 417-420; Walker v. S., 37 Tex. 366, 386. 3Reg. V. Jenkins, 11 Cox C. 0.250; Mattox v. U. S., 146 U. S. 140, 1.53; S. v. Jackson, 118 Misso. 491. n Greenl. Ev. ? 162 ; S. v. Eddon, 8 Wash. 292. sp. V. Kraft, 91 Hun, 474. «3 Russ. Cr., 9 ed., 279 ; P. v. Corey, 148 N. Y. 476. '1 Greenl. Ev. g 51 a; C. v. Abbott, 130 Mass, 472. sBest Ev. i 264; U. S. v. Ross, 92 U. S. 381, 384. "Hays «. S , 40 Md. 633, 650. '"Best Ev. ?543; Moore e. U. S., 150 V. S. 570; Thiede «. Utah, 159 lb. 510, 517-518; P, «. Wood, 3 Park, Cr. R. 681; P, v. Harris, 136 N. Y. 433, 450; 0, B. Hudson, 97 Mass, 565 ; C, ». Holmes, 157 lb, 333 ; S, ii. Green, 93 N. C, 779 ; C. «. Perrigan, 44 Pa, St. 386; Sayres ». C,,88Ib,291; Perrinc, S.,88 Wis. 135; S. ». Dearborn, 59 N, H. 348 (cases cited). "Reg. «, Hagan, 12 Cox C, C, 357; S. «. Hoyt, 46 Conn. 330 (threat uttered thirteen years before alleged offense); Dillin ii. P., 8 Mich. 357 ; C, », Madan, 102 Mass, 1 ; S. v. Fenlason, 78 Me, 495, "Best Ev. ?H54-457; P, v. McGuire, 135 N, Y, 639, 643; 0. t). Blair, 136 Mass. 40, 186 Criminal Procedure him with the alleged offense^ (e. g., possession of the fruits of crime^). § 289. Collateral Facts. — Evidence of collateral facts, i. e., of similar but unconnected transactions, from which the guilt or innocence of the accused might be inferred, by reason of general resemblance to matters involved in the issue, is ordinarily excluded.' Proof, that the accused did not violate the law alleged to have been violated on other occasions than that charged is inadmissible ;* and proof, that the accused committed the same crime as that charged, or a similar crime, on other occasions than that charged, is incompetent to estab- lish guilt.° A wide range of proof is allowed where knowledge or intent is material.* Thus, where A was charged with aiding and assisting B in kidnapping C, evidence of the general reputa- tion of B as a kidnapper was held admissible to show the intent with which A aided and assisted B.'^ Similar occurrences, together constituting one transaction, are admissible as parts of the res gestae,^ and acts of the accused forming part of a series of occurrences similar to that involved in the offense charged are relevant to the question of intent or design.' § 290. Character Of Accused. — The fact of the good character of the accused prior to the alleged offense is admissible 'Best Ev. ?t 458-466; U. S. v. Taranto, 74 Fed. R. 219; Lamb o. S., 66 Md. 285 ; Garlitz «. S., 71 lb. 293, 302 ; P. i>. O'Neill, 112 N. Y. 355 ; Painter ». P., 147 111. 444. ^Wilson V. U. S., 162 U. S. 613. n Greenl. Ev. ?52. ^Archer v. 8., 45 Md. 33; (J. v. Barlow, 97 Mass. 597. 'Boyd V. V. S., 142 U. S. 150 ; Hall ». U. S., 150 lb. 76 ; Shaffner v. C, 72 Pa. St. 60; S. ». Tabor, 95 Misso. 585 ; Cheney «. S., 7 Ohio, 222. «1 Greenl. Ev. § 53. Cf . post, ? 291 . '.S. V. Harten, 4 Harr. (Del.) 582. "Phillips ». S., 57 Barb. 353, 364; P. v. Wright, 80 Mich. 70, 82 ; Prior v. S., 70 Ala. 56; Lamb v. S., 66 Md. 285. 'N. Y. Life Ins. Co. v. Armstrong, 117 U. 8. 591; Bottomley v. U. 8., Fed. Cas. 1,688; Tarbox v. S., 38 O. St. 581 ; Frazier v. S.,135Ind. 38; Archer v.S., 45 Md. 33. Evidence 187 in evidence as relevant to the question of guilt,' the weight and effect of the evidence being matters for the determination of the jury in connection with all the other facts and circum- stances of the case.^ It may of itself create a doubt where otherwise none would exist.' The evidence is restricted to the trait in issue from the nature and character of the charge.* Evidence of the bad character of the accused is irrelevant/ except in rebuttal of evidence of good character." The regular method of proving character is by inquiring of the witness, whether he is acquainted with the general char- acter (or, reputation') of the acciised for honesty, morality, humanity, or whatever the trait indicated by the nature of the charge may be, in the community iti' which he lived, and if so, what that character is. Rebutting testimony is restricted to like mode of inquiry;* but a witness for the defense may be cross-examined as to his sources of information, particular facts may be called to his attention, and he may be asked, whether he had heard of them.' It has been held, that evidence of bad reputation acquired subsequently to the commission of the offense charged is competent in rebuttal, but to be received with great caution."* > Negative evidence, that the witness had never heard any- thing against the character of the accused, is competent." It has also been held, that the disposition of the accused may be iSGreenl.Ev. §25. ^C.i). Leonard, 140 Mass. 478; C. i>. Wilson, 153 lb. 13. 'Edgington ». U. S., 164 U. S. 361; Remsen ». P., 43 N. Y. 6; P. «. Fried- land, 3 N. Y. App. Div. R. 333 ; P. v. Jassino, 100 Mich. 536; P. «. Laird, 103 lb. 135. *3 Greenl. Bv. § 35. =P. v. White, 14 Wend. Ill ; Felsenthal ». S., 30 Tex. App. 675 ; S. v. Lapage, 57 N. H. 345. sReg. V. Rowton, 10 Cox C. C. 25. 'Reputation and character, in this connection, are regarded as synony- mous. Stephen Ev., ed. 1893, 179 ; World v. S., 50 Md. 49. 56. 80. 11. O'Brien, 119 Mass. 343 ; S. ». Lapage, 57 N. H. 345. »C. •». O'Brien, 119 Mass. 343 ; Thompson v, S., 100 Ala. 70 ; Goodwin v. S., 103 lb. 87, 98. "C. 0. Sacket, 23 Pick. 394. "Reg. V. Rowton, 10 Cox C. C. 25, 34; S. t>. Lee, 22 Minn. 407. 188 Criminal Procedure proved by a witness acquainted with it from his own observa- tion' (probably the best kind of proof as to character), and that the witness may be asked, whether he considers the accused a person hkely to commit the offense charged.^ § 291. Criminal Acts Other Than Charged. — Evidence of other crimes than that charged is deemed not relevant to the issue,'^ but is admissible, like evidence of any other facts,* whenever relevant to any fact in issue,^ or necessary to intro- duce or explain relevant matter, and particularly as bearing upon questions and matters relating to preparation, design or plan,* scienter and guilty knowledge,^ intent and motive.* § 292. Opinions And Conclusions. — Evidence in the nature of one's opinion or inference as to the existence or non- existence of a particular fact is ordinarily inadmissible ; but witnesses may state the result of ordinary personal observation as to appearances symptomatic of facts which, from their nature, cannot otherwise adequately be stated : an inference may be stated, if it involves facts that cannot be expressed in the concrete.' Thus, a witness may not state, that the appearance of a room was "such as to indicate," that^a struggle took place therein;'" but he may state, from personal observation', that a person was drunk, excited, etc. ; that an act was done in anger, IS. V. Lee, 33 Minn. 407; S. v. Sterrett, 68 Iowa, 76; Gandolpho v. S., 11 0. St. 114. 2R. «. Davison, 31 How. St. Tr. 99, 187; B. ■». Hemp, 5 C. & P. 468. "Ante, 1 389. ■'Moore o. U. S., 150 U. 8. 57. Cf. Janzen ». P., 159 111. 440. ^Ante, II 288-389 ; Makin v. Atty.-Geu., 17 Cox C. C. 704 ; Painter v. P., 147 111. 444; C. ■». Clioate, 105 Mass. 451 ; C. «. Jackson, 133 lb. 16; C®. Robinson, 146 lb. 571 ; C. v. Johnson, 150 lb. 54. "Makin v. Atty.-6en., 17 Cox C. C. 704 ; C. ii. Robinson, 146 Mass. 571 ; P. v. Shea, 147 N. Y. 78, 98-101. '1 Greenl. Ev. ?53; Bishop v. S., 55 Md. 188; S. v. Walton, 114 N. C. 783; Copperman v. P., 56 N. Y. 391. Cf. P. ». McClure, 88 Hun, 505. sBell v. S., 57 Md. 108; C. ». McCarthy, 119 Mass. 354: C. «. Bradford, 126 lb. 43; C. e. Jackson, 132 lb. 16; S. v. Myers, 82 Misso. 558. n Greenl. Ev. H40 a; Hopt d. Utah, 130 U. S, 430, 437; C. ■». Sturtivant, 117 Mass. 132. "S. «. Coella, 8 Wash. 51. Evidence 189 and not in jest;' that an act bore a certain character, purpose or intent.^ Upon questions involving points of science or art, or sub- jects on which a course of special study or experience is necessary for the formation of an opinion, the opinion of experts or persons of skill, experience or peculiar knowledge in relation thereto are admissible f but as to matters of common knowledge or observation, upon which the ordinary mind is capable of forming a judgment, such evidence is not admissible.^ A physician may state his opinion as to the causes of disease or death, or the consequences of wounds, but he cannot be permit- ted to state his opinion as to whether a rape can be committed in a certain manner.' Any one may testify, as a matter of fact, that a stain or spot observed by him was blood, or a substance hair, but only an expert may give his opinion as to whether or not the blood* or hair^ was that of a human being. Any one may testify as to symptoms or appearances of health, disease or physical injury, but only a medical expert may state his opinion as to the medical character of a disease or injury. Generally speaking, wherever peculiar skill and judgment applied to a particular subject are requisite to explain results or trace them to their cause, expert testimony is admissible.^ § 293. Examination Of Experts. — It is, in general, suffi- cient in order to entitle one to be considered as an expert, that he has been educated in the particular art or science, trained or actively engaged in the • particular business or occupation, ig. V. Edwards, 113 N. C. 901. ^Nat'l Bank v. Kennedy, 17 Wall. 19, 36. '1 Greenl. Ev. ? 440; Carter v. Boehm, 1 Smith L. C. 550; Spring Co. v. Edgar, 99 U. S. 645, 657 ; Davis ». S., 38 Md. 15 ; Williams v. S., 64 lb. 384. ^Milwaukee R. R. «. Kellogg, 94 U. S. 469; Manke v. P., 17 Hun, 410; Mann ». S., 33 Plor. 610 ; Cooper v. S., 33 Tex. 331. ^Cook v. S., 34 N. J. L. 843. «P. «. Deacons, 109 N. Y. 374, 383. ^KnoU 11. S., 35 Wis. 349. 8McPadden ». Murdock, Ir. R. 1 C. L. 311,318. 190 Criminal Procedure or is otherwise specially versed in the particular matter in question.' The competency of the witness in this respect is a prelimi- nary question for the determination of the court.^ The testimony of experts is restricted to expressions of their opinion as to matter of skill or science within their special acquirements which is in controversy, to the exclusion of state- ments involving their opinion as to the effect of the evidence : the opinion must not cover the point to be determined by the jury.^ Thus, a medical expert may give his opinion as to the nature and effect of an injury and the manner or means of its infliction,"* but he may not make such a statement as, upon a prosecution for rape, that an inflammation observed by him "was produced by violent connection."* If the facts are not within his personal knowledge or undis- puted, the proper mode of examination is, to require the witness to express his opinion upon a case hypothetically stated, i. e., in answer to a hypothetical question, or one framed on a hypothesis of the truth of icertain facts heard by or summed up to him and assumed, for the purposes of the inquiry, to be proven.^ The length of such question is in the discretion of the trial court.'' Facts serving to illustrate' the testimony of experts and the grounds on which the opinions of experts are based' are relevant. § 294. Opinion As To Sanity.— r-Competent physicians and persons learned or skilled in the science of mental disease^" may '1 Greenl. Ev. §440 a; Ardesco Oil Co. v. Gilson, 63 Pa. St. 146; Heacock ®. S., 13 Tex. App. 97, 131; S. ■». O'Connell, 82 Me. 30; S. v. Baldwin, 36 Kans. 1, 12. 'Chateaugay v. Blake, 144 U. S. 476, 484 ; Perkins v. Stickney, 132 Mass. 217. »S. 0. Bowman, 78 N. C. 509, 511. ^Williams v. S., 64 Md. 384. •Noonan v. S., 55 Wis. 258. 'Dexter «. Hall, 15 "Wall. 9, 26; Dickenson «. Fitchburg, 13 Gray, 546, 556 ; "Williams a. 8., 64 Md. 384. 'Forsyth v. Doolittle, 120 U. S. 73. n Taylor Ev. ? 387 ; Folkes v. Chadd, 8 Dougl. 157. 'Dickenson «. Fitchburg, 13 Gray, 546, 557. '"Kst. of Toomes, 54 Cal. 509 (Catholic priest held to be an expert). Evidence 191 state their opinion as to the mental condition of a person whose sanity is in question. Subscribing witnesses to a will may state their opinion as to the sanity of the testator at the time of its execution.' Physicians who have visited and examined a person whose sanity is in question'' and non-professional persons acquainted with the party^ may state their opinion as to his mental condi- tion, based upon personal observation ; after first stating the facts on which the opinion is based. An expert, as well as any other person, testifying from facts within his personal knowledge, must state the facts on which his opinion is based.* The following is an approved form of hypothetical question to an expert witness in a case where the defense of insanity is set up :' " If the symptoms and indications testified to by the other witnesses are proved, and if the jury are satisfied of the truth of them, whether, in his opinion, the party was insane — and what was the nature and character of the insanity — and what state of mind did they indicate — and what would he expect to be the conduct of such person in any supposed circumstances?" An expert who has examined the accused with a view to forming an opinion as to his sanity may detail the statements made by the accused during interviews with him.* § 295. Handfvrltln^ K there is a question as to the person by whom a document was written or signed, any one, believing that he can identify the handwriting of the supposed writer, may state his opinion, that it was or was not written or signed by that person, if he has ever seen the party write,'' or if '1 Greenl. Ev. §440. ^Hastings ». Eider, 99 Mass. 623 ; S. ». Felter, 35 Iowa, 67, 75. 'Connecticut Ins. Co. v. Lathrop, 111 U. S. 613; Foster v. Dickerson, 64 Vt. 333. This rule qualified. P. . MafEet, 5 S. & R. 533, 531. Consuls arel notjentrusted with the power of authenticating foreign laws. Church V. Hubbart, 3 Cranch, 187, 337. 'Barrows v. Downs, 9 R. I. 446. 13 194 Criminal Procedure if otherwise relevant, is admissible/ if the witness is dead, or insane,^ or kept away by the adverse party ,^ or sick and unable to come to court,* (or, according to some cases, beyond the jurisdiction of the court') provided, such testimony has been given in a prior proceeding between the same parties, involving the same issue,^ and the party against whom evidence thereof is to be produced had the right and opportunity of cross- examination in the prior proceeding/ It is sufficient to prove the substance of such testimony.* The proof may be by a witness who heard the testimony of the former witness, or by the production of a copy of the reporter's stenographic notes (proven aliunde to be correct'). The determination as to the existence of the facts necessary to render proof the admissible is for the court.^" § 299. Evidence In Rebuttal The object and sphere of rebutting testimony is, to explain, repel, counteract or disprove matter given in evidence by the adverse party.^' The order of proof being in the discretion of the court,'^ evidence otherwise relevant may be admitted after the close of the party's case in '1 Greenl. Ev. ?? 163-168 ; Mattox ®. U. S., 156 U. S. 237. 'Marler ®. S., 67 Ala. 55. 'Reynolds v. TJ. S., 98 U. S. 145, 158. ^R. V. Hogg, 6 C. & P. 176. 'Vaughan c. S., 58 Ark. 353 ; Loweiy ». S., 98 Ala. 45. The great weight of authority is against the admission. Reg. v. Scaife, 5 Cox C. C. 248; U. S. V. Angell, 11 Fed. R. 84; 8. v. Lee, 13 Mont. 348; P. v. Gordon, 99 Gal. 237. «Reg. ». Beeston, 6 Cox C. C. 425 ; Davis ». S., 17 Ala. 354. 'Bradley v. Mirick, 91 N. Y. 393. «1 Greenl. Ev. ? 165 ; S. ii. Fitzgerald, 63 Iowa, 368 ; Marler v. S., 67 Ala. 55, 66. A somewhat stricter rule laid down. Black ». Woodson, 39 Md. 194, 200- 332. 'Mattox ». U. S., 156 U. S. 237, 240 ; Jackson v. S., 81 Wis. 137 ; Bass v. S., 186 Ind. 165. Otherwise when testimony was through an interpreter. P. ». Ah Yute, 56 Cal. 119. Notes of counsel held admissible. P. v. Murphy, 45 Cal. 137. '"Reynolds v. U. S., 98 U. S. 145, 159. "P. 0. Page, 1 Idaho, 189, 194. "Ante, ? 243. Evidence 195 chief, though not falling within the designation of rebuttal.^ Irrelevant and damaging testimony in rebuttal must not be permitted to be introduced under color of meeting the defen- dant's proof.^ 'S. «. Magoon, 50 Vt. 333. ^Coleman ». P., 55 N. T. 81. 196 Criminal Procedure CHAPTER XXIII. WITNESSES AKD THEIE EXAMINATION. § 300. Competency. — The question of the competency of a witness is a preliminary one for the exclusive determina- tion of the court.^ Objection for incompetency must be made, when the witness is offered, or as soon thereafter as the ground of objection becomes known. ^ The modes of ascertaining, whether or not a proposed witness is competent are : examination on his voir dire ; proof aliunde ; view of the judge (where the ground of incompetency is apparent to the senses).^ Oath to a witness, to his own competency (on the voir dire), or that of another proposed witness is as follows : You shall true answer make to such questions as the court shall demand of you. So help you God. All persons are deemed competent, unless falling within specific exceptions ; and the question of competency has refer- ence to the time of being offered.^ The competency of witnesses in criminal trials in courts of the United States, except so far as Congress has made specific provision on the subject, is governed by the common law.' § 301 Disqualiflcatfon From Interest. — The defendant or defendants and the husband or wife of any of them are, at the common law, incompetent to testify.^ The incompetency of one of several parties^ charged with the same offense and of the husband or wife^of one to testify iBest Ev. ? 133; 1 Greenl. Ev. ? 425 ; Jenkins ». Davis, 10 Q. B. 314, 323; Wheeler b. U. S., 159 U. S. 523; S. v. Bryson, 79 N. C. 648. n Greenl. Ev. U 421-423; Benson ». U. S., 146 U. S. 325, 332-383. sBest Ev. § 133 ; 1 Greenl. Ev. ?? 333-324. ^Kelly II. S., 75 Ala. 31; Holcomb v. Holcomb, 28 Conn. 177; Gebhardt v. Shindle, 15 S. & R 385. 'Logan ». U. S., 144 U. S. 363, 298-303. "Reg. V. Payne, 12 Cox C. C. 118; Reg. v. Thompson, lb. 202. n Greenl. Ev. § 368. sp. V. Langtree, 64 Cal. 356. Witnesses And Their Examination 197 for the other is hmited to cases where they are indicted or charged jointly; such incompetency is removed, if there is an acquittal or nolle prosequi as to one,' and an accomplice is said to be a competent witness for the prosecution, if the trials only are separate.^ The wife is a competent witness against her husband, if he is charged with an offense of violence upon her person,^ and is compellable to testify.'' Under Federal' and various state statutes, the person accused is now, at his own request, but not otherwise, a competent witness; but his failure to testify creates no presumption against him. If the accused elects to become a witness, he is legally in the attitude of any other witness.^ His interest may be taken into consideration in weighing his testimony ;'^ but no comment may be made upon his failure to testify.* His testi- mony must be left to the jury like that of any other witness, without comment from the court tending to discount it by reason of his situation.' § 302. Cbildren As fVltnesses. — A child, without regard to any precise age," is competent to testify, if, at the time of being offered as a witness,'^ of sufficient intelligence to recollect and narrate what he has observed and to understand the obli- gation of an oath, the weight of testimony being for the jury." '1 Qreenl. Ev. ?§ 363, 379. ^Benson v. U. S., 146 U. S. 335. The wife of an accomplice held a competent witness against one indicted jointly with him. Adams ». S., 28 Flor. 511. sBeeve v. Wood, 10 Cox C. C. 58; Bassett v. U. S., 137 U. _S. 496; P. ti. Quanstrom, 93 Mich. 354 ; P. ®. Westbrook, 94 lb. 629. *Johnson ». S. , 94 Ala. 53. «30 Stat. L. 30; 1 Suppl. U. S. Rev. Stats. 155. «U. S. V. Brown, 40 Fed. R. 457; Brashears v. S., 58 Md. 563. 'Reagan e. U. S., 157 U. S. 301. 8Wilson«. U. S., 149 U.S. 60. 'Allison V. ¥. S., 160 U. S. 203; Hickory b. U. S., lb. 408. "1 Greenl. Ev. ? 367; Wheeler©. U.S., 159 U. S. 533; C. «. Hutchinson, 10 Mass. 335. "Kelly®. S., 75 Ala. 31. 1^1 Greenl. Ev. ?867; Wheeler i>. U. S., 159 U. S. 533; Williams i). U. S., 3 App. D. C. 335; S. «. Juneau, 88 Wis. 180. 198 Criminal Procedure At fourteen years, capacity is presumed,^ and below that age, inquiry is made by the court, at its discretion, in order to ascertain and determine competency.^ The questions upon this inquiry should be put in a simple fashion adapted to the capacity of a child.^ The child may be instructed in the nature of an oath, and the trial postponed to that end.* § 303. Persons Of Unsound Mind. — A person affected with mental unsoundness is admissible as a witness^ if it appears to the court, that he has, at the time of being called,' sufficient understanding to apprehend the obligation of an oath and to be capable of giving a correct account of the matters that he has seen or heard in reference to the question at issue.^ The court should permit the party objecting to the proposed witness to introduce testimony to prove insanity.'^ § 304. Intoxicated Persons. — A witness who, at the time of being offered,* is under the influence of strong drink, may, at the discretion of the court, be allowed to testify, if, in its opinion, capable of understanding, the obligation of an oath and of remembering and stating the facts in regard to which he may be examined, or the trial may be postponed, in order to enable the witness to recover from his condition.' § 305. Persons Unable To Speak. — A witness who is a deaf mute or otherwise unable to speak may give his testimony through an interpreter'" or in any other manner in which he can make it intelligible, as by writing or signs, the same to be made in open court." 11 Greenl. Ev. § 367. nh.; S. v. Juneau, 88 Wis. 180; C. v. Mullins, 2 Allen, 295; Freeny «. Freeny, 80 Md. 406 ; S. v. Doyle, 107 Misso. 36. 'Reg. V. Holmes, 2 F. & F. 788. n Greenl. Ev. ? 867; C. v. Lynes, 142 Mass. 577. =^Holcomb V. Holcomb, 38 Conn. 177. 'District of Columbia v. Armes, 107 U. S. 519. ■"Livingston v. Kiersted, 10 Johns. 862. sQebhart v. Shindle, 15 S. & R. 335. 'Gould 0. Crawford, 2 Pa. St. 89. ^"Ante, § 207. 'IS. 41. DeWolf, 8 Couu. 93 ; S. v. Weldon, 89 S. C. 318. Witnesses And Their Examination 199 § 306. Religious Belief. — A person is competent as a witness, in respect of religious belief, if he has a religious sense of accountability to a Supreme Being, so as to make him speak under a sense of anticipated punishment for perjury at the hands of that Power whose attestation to the truth of his testimony he invokes, it being immaterial, whether the witness believes, that the punishment will be inflicted in this world or the next.^ § 307. Infamy. — At the strict common law, a person con- victed of an infamous crime^ is incompetent as a witness in a suit to which he is not a party.^ Pardon restores competency.* The disqualification does not attach or operate without the territorial limits of the state in which conviction took place.' § 308. Grand Jurors. — The general rule is, that the pro- ceedings of grand jurors may not be divulged; but, when public justice or the rights of parties require it, the testimony before the grand jury may be shown.* A voluntary confession or admission made before a grand jury by one examined as to the guilt of another may be shown upon the trial of such witness,^ and perjury before that body may be shown by the testimony of its members.^ § 309. Petit Jurors. — A juror may be a witness in the cause which he is trying. He may not communicate his knowledge privately to his fellow-jurors, but should be sworn and examined as other witnesses.' 'Best. Ev. § 161 ; 1 Greenl. Ev. §369 ; Keg. ». Pah-Mah-Gay, 20 U. 0. Q. B. 195; Hunscom v. Hunscom, 15 Mass. 184; P. ii. Matteson, 2 Cow. 433; Blair ®. Seaver, 26 Pa. St. 274. Mmie, § 10. n Greenl. Ev. §? 372-376. *Boyd». U. S., 142 U. S. 450; Logan v. U. S., 1441b. 263,803; Diehl ». Rogers, 169 Pa. St. 316. sLogan ». U. S., 1 14 U. S., 263, 303. n Greenl. Ev. J 253; 0. ». Hill, 11 Gush. 137; S. ®. Coffee, 56 Conn. 399; Little V. C, 25 Gratt. (Va.) 921 ; Owens «. Owens, 81 Md. 519. •U. S. V. Cliarles, Fed. Cas. 14,786, ; S. v. Broughton, 7 Ired. (N. C.) L. 96 ; P.«. Reggel, 8 Utah, 21. 'Izer ». S. 77 Md. 110. 9Best Ev. § 187. 200 Criminal Procedure The testimony of jurors is ordinarily excluded, when offered to prove misbehavior of the jury in regard to their verdict;^ but a juror may testify as to any facts bearing upon the existence of extraneous influence, though not as to how that influence operated on his own mind.^ § 310. Judges. — A judge can not be a witness in the cause which is on trial before him , nor can he be called (at least, com- pelled) to testifj' as to what took place before him ; but he may properly testify as to foreign and collateral matters, or things that happened in his presence, during or after trial.^ Rulings are diverse on this subject. It has been held, that a judge is competent, though not compellable to testify ;* on the trial of an issue, whether a jury were discharged because they could not agree, the presiding judge and jurors were held com- petent.° A justice of the peace was held competent to testify as to admissions before him.* § 311. Professional Communications. — A legal adviser is not permitted, unless with his client's express consent, to disclose any confidential or private communication made to him in the course and for the purpose of his employment as such by or on behalf of his client, or to state the contents or condition of any document with which he has become ac- quainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of his employment.' This does not apply to — 11 Greenl. Ev. §353 a; S. ». Dusenberry, 113 Misso. 377, 395; 8. ». Best, 111 N. C. 638. ■•'Mattox » U. S., 146 U. S. 140; S. v. Bennett, 40 S. C. 808; McBean v. 8., 83 Wis. 306 ; Mercer ». 8., 17 Ga. 146, 175 ; Owens v. Owens, 81 Md. 519. n Greenl. Ev. ?364; P. i). Dohring, 59 N. Y. 374; Rogers v. S., 60 Ark. 76; Dabney «. Mitchell, 66 Ala. 495. ^Welcome «. Batchelder, 33 Me. 85. 'Hehn ii. S., 67 Miss. 563, 571. 68. V. Duffy, 57 Conn. 335. 'BestEv. §581; 1 Greenl. Ev. §§337-346; Conn. Ins. Co. «. Schaefer, 94 U. S.457; Alexander ti. U.S., 138 U.S. 353; P. «. Hess,8N. Y. App. Div. R. 143. It is immaterial, that the communication took place in the preseflce and hearing of a third person. Blount ». Kimpton, 155 Mass. 378. Communication to one acting as attorney before magistrates, though not a regular practitioner ("member of the bar"), held confidential. Benedict ». S., 44 O. St. 679 Witnesses And Their Examination 201 1. Any communication made in furtherance of any fraudu- lent or criminal design/ 2. Any fact observed by the legal adviser in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment as such, whether his attention was or was not directed to such fact by or on behalf of his client.^ The obligation and requirement as to secresy is perpetual, unless and until removed by the client.^ If a party to a suit gives evidence therein, at his own instance or otherwise, he does not consent to such disclosure; and, if he calls the attorney as a witness, he is deemed to have con- sented to the disclosure, only if he questions such attorney as to matters which, but for such questioning, he would not be at liberty to disclose.* The refusal to waive his privilege raises no presumption against the party.° The requirement of secresy extends to all agents and media of communication between adviser and client.^ 'So one is compelled to disclose any confidential communi- cation which has taken place between himself and his legal adviser/ According to the strict letter of the common law, only con- fidential professional communications made to legal advisers are protected from disclosure; but, in the case, at least, of clergymen, the courts are warranted in not compell- ing a disclosure of confessions or private communications received by them in their professional character/ If " con- fession" is an essential part of the doctrine and practice of a particular church, it would be a practical denial of the " free iBest Ev. §581 ; Reg. ». Cox, 15 Cox C. C. 611. n Greenl. Ev. §244. 8Ib. § 343. *Diattenhofer ». S., 34 O. St. 91 ; S. v. White, 19 Kans. 465. ^Best Ev. §581. n Greenl. Ev. § 339. 'Minet «. Morgan, L. R. 8 Ch. App. 361 ; Mayor ». Cox, L. R. 36 Ch. D. 678. sBroad v. Pitt, 3 C. & P. 518 ; Reg. v. Griffin, 6 Cox C. C. 319. 202 Ckiminal Procedure exercise of religion," guaranteed by probably all state consti- tutions, to compel disclosure : to declare, that disclosure may be compelled, being equivalent to declaring, that there shall be no confession.^ § 312. AflTairs Of State. — ISTo one is permitted to give evidence derived from unpublished official records relating to affairs of state, except v^ith the permission of the officer at the head of the department concerned; and no public officer is compelled to disclose communications made to him in official confidence.^ § 313. €oniinuiiications During^ Marriag'e. — ^A person who is or has been married to another is not permitted to dis- close in evidence what was confided or communicated to him or her by the other, whether verbally or in writing, positively or by way of mere silence, during and in confidence of the mar- riage relation.^ A third person who overhears such a communication may testify as to the same.* § 314. Disclosure Of Officer's Informant. — An officer who has made an arrest, or who is otherwise connected with the prosecution of a criminal charge, should not be compelled, if he testifies as a witness upon the trial of the criminal charge or subsequent civil proceedings arising out of it, to give the name of any person who gave information, or the nature of the information, leading to the arrest or prosecution of the party charged; but, upon the trial of the accused, the judge may, in his discretion, allow such information to be required, if it appears to him to be necessary or right to do so, in order to show the party's innocence.^ 'C. D. Cronin, 1 Quarterly Law J. (Va.) 138. ^BestEv. ?578; 1 Greenl. Ev. §251; Totten b. U. S., 93 U. S. 105; Hart- ranft's App., 85 Pa. St. 433 ; Washington v. Scribner, 109 Mass. 487. n Greenl. Ev. §354; S. ». Ulrich, 110 Misso. 350; Goodrum v. S., 60 Ga.' 509. *S. V. Gray, 55 Kans. 185. "Marks v. Beyfus, 17 Cox 0. C. 196; Vogel v. Gruaz, 110 U. S. 811 ; Worth- ington «. Scribner, 109 Mass. 487 (cases cited) ; P. v. Laird, 103 Micii. 185. Witnesses And Their Examination 203 § 315. JVumber Of 'Witnesses. — IS'o particular number of witnesses is required in any case or for the proof of any particu- lar fact, except as hereinafter stated in regard to the offenses of perjury^ and treason.^ § 316. Corrolioratioii Of Accomplices. — There should be no conviction on the uncorroborated testimony of an accomplice. If an accomplice is admitted to testify, it is the duty of the court, at least to caution, if not peremptorily instruct, the jury, not to convict the accused, unless the testimony of such accom- plice be confirmed, not only as to the circumstances of the crime which he confesses to have committed, but also as to such circumstances as he testifies to as identifying the accused therewith : in other words, the corroborative proof must come from other sources, or third parties, of acts done by the accused connecting him with the accomplice and identifying him with the crime of the accomplice.^ Even if it may be said, as a matter of strict technical law, that there can be a conviction on the testimony of an accomplice, such testimony should be acted on with the utmost caution.* § 817. Swearing 'Witnesses. — No one can be examined as a witness except upon oath.^ Witnesses are sworn accord- ing to the ceremonies of their religion, or in that form which they consider most binding on their consciences.^ The usual form of oath administered to a witness is as follows : The evidence you shall give to the court and jury in the matter now de- pending before them shall be the truth, the whole truth and nothing but the truth. So help you God. § 818. Metliod Of Examination. — Witnesses are. first examined in chief by the party calling them, then, if the adverse party desires, cross-examined, then, if the party call- ing them desires, re-examined. The general regulations as to ^ Post, i^65. ''Post, i 820. n areenl. Ev. ?380; Reagan v. U. S., 157 U. S. 301, 310; C. v. Holmes, 137 Mass. 434; Roberts v. P., 11 Color. 313; Hoyt ». P., 140 111. 588. ^Campbell e. P., 159 111. 9. n Chitty Cr. L. 615 ; 1 Greenl. Ev. ^ 338. «1 Chitty Cr. L. 616-617; Best Ev. §? 163-164; 1 Greenl. Ev. ?371. 204 Criminal Procedure the course and method of examination are subject to the dis- cretionary power of the court.' § 319. Cross-Examination The right to cross-examine exists, when a witness has been examined by the opposing party — not, if he has merely been sworn,^ or has produced a docu- ment.^ Testimony introduced in chief by one party should not be permitted to stand, if, without the default and for reasons beyond the control of the opposite party, he cannot afterwards cross-examine the witness who gave it.* Cross-examination is ordinarily confined to matters brought out in chief.' It is admissible, on cross-examination, to ask a witness questions tending — 1. To test his veracity, accuracy or credibility (e. g., tending to show interest or bias).* 2. To discredit him by eliciting matters injurious to his character, provided they are of such a nature as, in the opinion of the court, fairly tend to characterize the credibility of the witness, the extent to which such questions may be put and to which, if allowed, answers compelled, being largely discretion- ary with the trial court, whose duty it is, to disallow all questions apparently intended merely to disgrace, or to insult or annoy the witness,^ the absolute limitation of the inquiry being marked by the guaranty against self-crimination.^ § 320. Re-Exanilnation. — Re-examination should, in strict- ness, be confined to matters brought out in cross-examination ; but it is entirely discretionary with the court to allow any new 'Ante, ? 243. ^Austin V. S., 14 Ark. 555, 563. '1 Greenl. Ev. § 445. *Klssam v. Forrest, 25 Wend. 651 ; P. ». Cole, 43 N. Y. 508. n Greenl. Ev. § 445. «Ib. ? 450 ; C. ». Sacket, 23 Pick. 394. '1 Greenl. Ev. M 454-459; P. ®. Irving, 95 N. Y. 541 ; In re Lewis, 39 How. Pr. 155, 159 ; McLaughlin ». Mencke, 80 Md. 83 ; Wroe ». S., 30 O. St. 460, 471. 'Ante, § 69. AViTNBssEs And Their Examination 205 matter to be inquired into which was omitted in the examina- tion in chief. The ordinary scope of re-examination is to draw forth explanations of the sense and meaning of expressions used by the witness on cross-examination, if they are in them- selves doubtful, or the motive by which the witness was induced to use those expressions.' § 321. JLeadin^ Questions. — A leading question is one that suggests to a witness the answer it is expected or desired he should make, and leads him to make such answer. Leading questions are ordinarily inadmissible in direct or re- examination, except as to matters merely introductory to that which is material, or by way of necessary assistance to a witness in whose testimony there is an omission evidently caused by lapse of memory, or where, from the nature of the particular subject of inquiry, the attention of the witness cannot be directed to it without a certain degree of suggestion or specifi- cation ; and the matter of allowing leading questions is almost entirely within the discretion of the trial court.^ Leading questions may be put on cross-examination^ and to hostile witnesses.* § 322. Impeaching- ffitness. — An adverse witness may be impeached — 1. By contradictory proof.* 2. By showing by another witness or witnesses, who should be from the neighborhood of the witness to be impeached, the general bad character {i. e., reputation) of such impeached wit- ness in the neighborhood in which he lives for truth and verac- ity," to which may be added the statement of the impeaching '1 Greenl. Ev. R 467-8. ^Ib. ?? 434-5 ; P. D. Mather, 4 Wend. 339, 347 ; Stoner v. Devilbiss, 70 Md. 144, 160. ^Moody V. Eowell, 17 Pick. 490, 498. Contra, as to new matter. P. ■». Oyer and Terminer, 83 N. Y. 436, 459. »Pos«, §334. 'S. V. Intoxicating Liquors, 85 Me. 304. ^1 Greenl. Ev. § 461 ; Tees ». Huntingdon, 33 How. 3 ; Knode v. William- son, 17 Wall. 586; Brown v. U. S., 154 U. S. 331 ; S. v. Turner, 36 S. C. 534; Wetherbee v. Norris, 103 Mass. 565 ; St. Louis v. Roche, 138 Misso.,541. 206 Criminal Procedure witness, that from his knowledge of such reputation, he would not believe the other on oath.' Proof of reputation must not be too remote.^ According to some cases, the evidence may be as to the general moral character of the witness to be impeached.^ 3. By proof of former statements of the witness inconsistent with relevant evidence he has given,^ if such alleged statements have first been placed before him' with sufficient clearness to identify the occasion referred to and he does not admit having made such statements (it being sufficient, if the witness merely says, he does not remember.') 4. By direct proof tending to show bias or interest on the part of the witness — partiality towards one, or hostility towards, or prejudice against the other party ; misconduct in connection with the trial — it being generally held, that the witness must first have been questioned as to, and have denied, the matters constituting the alleged bias or interest.' § 223. Sustaining Impeached Witness. — If a witness has been impeached* by the adverse party, he may be sustained by the party calling him — 'Reg. ». Brown, 10 Cox C. C. 453 ; U. S. v. Vansickle, Fed. Cas. 16,609 ; Knight V. House, 39 Md. 194; Hamilton v. P., 39 Micli. 173; Keator v. P., 33 lb. 484; Nelson v. S., 33 Flor. 244; Hudspeth v. S., 50 Ark. 534. 2S. V. Parker, 96 Misso. SSS, 390. 'Gilliam v. S., 1 Head(Tenn.), 38; S. s. Boswell, 3 Dev. (N. C.) L. 300, 210; Hollingswortli i>. S., 53 Ark. 387, 394 ; Mitchell v. S., 94 Ala. 68. *1 Greenl. Ev. ? 463 ; Oil Co. v. Van Etten, 107 U. S. 325 ; Ayers ». Watson, 132 lb. 894; Toplitz v. Hedden, 146 lb. 253; Brown v. S., 72 Md. 468; Peter- son V. S., 83 Tb. 19; C. s. Jones, 155 Mass. 170; S. a. Kingsbury, 58 Me. 338; Schell V. Plumb, 55 N. Y. 592. 'This requirement relaxed. Walden v. Pinch, 70 Pa. St. 460. «Gregg 11. Jamison, 55 Pa. St. 468; Nute «. Nute, 41 N. H. 60; Ray v. Bell, 24 111. 444; 0. ». Bean, 111 Mass. 438; Levy v. S., 28 Tex. App. 303; Fuller ■V. S., 30 lb. 559 ; S. ■». Sullivan, 48 S. C. 205, 211. 'Best Ev. ? 644; 1 Greenl. Ev. § 450; Reg. v. Shaw, 16 Cox C. C. 503; Starr «. Cragin, 24 Hun, 177; Hollingsworth v. S., 58 Ark. 887; Wyeth ». Walzl, 43 Md. 426, 432; Wise ®. Ackerman, 76 lb. 375, 392-394; Day ii. Stickney, 14 Allen, 255 ; Geary v. P., 23 Mich. 330. *r. «., his credibility attacked, though unsuccessfully. C. e. Ingraham, 7 Gray, 46. Witnesses And Their Examination 207 1. By direct proof in rebuttal ot proof tending to show interest or bias/ or inaccuracy.^ 2. By proof of good character (i. e., reputation) for truth and veracity (on the same lines as in relation to bad character^), if his credibility has been impeached, or by impeachment of the impeaching witnesses.* 3. By proof of prior consistent statements, i. e., that the impeached witness on former occasions made statements sim- ilar to and consistent with his statements when examined, if his testimony has been impeached to an extent affecting his credibility (i. e., otherwise than by mere contradictory proof ).^ The impeached witness himself is competent to prove such prior statements.* § 324. Hostile TVltness. — If a witness appears nanwilling to testify fully for the party calling him, the court should per- mit his examination to assume the form of a cross-examination.' A party may show, that the testimony of a witness called by him has taken him by surprise, and that it is contrary to the examination of him preparatory to the trial, or to what the party had reason to believe the witness would testify, or that the witness had recently been brought under the influence of the other party, and had deceived the party calling him.^ § 325. Refresbing- Memory A witness may, while under examination, refresh or aid his memory by the use of any writing, made by himself or another contemporaneously, or nearly so, with the transaction in question, if, after examining it, he is able to testify from his present recollection as to the statements therein contained, the same being by his reference 'Brownson b. Leach, 74 Mich. 713. 'S. V. Morton, 107 N. C. 890 ; Hewitt v. Coiy, 105 Mass, 445. ^Ante, i 323. *1 Greenl. Ev. U 461, 469; Davis ». S., 38 Md. 15, 50. "1 Greenl. Ev. H61 ; U. S. ». Neverson, 1 Mackey (D. C), 153, 170-171; March ii. Harrell, 1 Jones (N. C.) L. 339; Bloomer o. S., 48 Md. 531, 537; City Passenger Ewy. ®. Knee, 83 lb. 77; S. ii. Flint, 60 Vt. 304. «S. V. Rowe, 98 N. C. 639 ; Hobbs v. S., 133 Ind. 404, 408. '1 Greenl. Ev. ? 435 ; Moody «. Rowell, 17 Pick. 490, 498. n Greenl. Ev. ? 444; St. Glair v. U. S., 154 U. S. 134, 150; Smith v. Briscoe, 65 Md. 561, 568-570. 208 Criminal Proceddre to the -writing renewed and revived, or if he is able to testify from a present recollection, that the memoranda were accurate when made ; and the writing itself may be admitted in evidence, if the witness, inspecting it, is able to testify from extrinsic facts, that the writing is a correct minute of the transaction to which it relates.^ A writing not contemporaneous M'ith the transaction, or nearly so, can not be thus used.^ '1 Greeul. Ev. ?H36-439; Ruch v. Rock Island, 97 U. S. 693, 695; Maxwell V. Wilkinson, 113 lb. 656; National Bk. ». Madden, 114 N. Y. 280; Owens v. S., 67 Md. 307; Morris v. Columbian Iron Works, 76 lb. 354; C. v. Ford, 130 Mass. 64; Curtis v. Bradley, 65 Conn. 99. 'Putnam v. V. S., 162 U.S. 687. Verdict 209 CHAPTER XXIV. VERDICT. § 326. General Requisites. — A verdict may be general, to the whole charge; partial, as to part of it; special, when the facts alone are found and the legal inference is referred to the court.' Every verdict must be responsive to the charge and suffi- ciently clear in meaning to enable the court, by a fair and reasonable construction of its entire language, to conclude therefrom a finding of the issue or such part thereof as will authorize judgment.^ The language need not be formal or precise, but every intendment is made in support of the finding, which must not be avoided, except from necessity;* and any unnecessary language will, if possible, be rejected, in order to sustain an otherwise ill verdict.* 327. Rendition And Receiving. — The verdict must be given and received, in the presence of the accused,^ in open court,* all the jurors being present.' A verdict may be rendered and the jury discharged* on a Sunday' or other dies non}" n Ohitty Cr. L. 636. 2Reg. V. Gray, 17 Cox C. C. 399 ; Dyer v. C, 33 Pick. 403 ; Long v. S., 34 Tex. 566; Westbrook ii. S., 53 Miss. 577. 'C. V. Stebbins, 8 Gray, 493, 496; Rose v. S., 83 Ind. 344; Poison v. S., 137 lb. 519 ; S. 0. Bowen, 16 Kans. 475 ; S. v. "Wilson, 40 La. Ann. 751. *3 Hawk., ch. 47, ? 10 ; C. ». Fischblatt, 4 Mete. 354 ; Guenther ». P., 34 N. Y. 100 ; Cheek e. S., 87 Kent. 43. ^Ante, 1 195. «Nomaque ». P., Breese (111.), 109; Longfellow u. S., 10 Neb. 105; C. v. Tobin, 135 Mass. 303; S. ». Mills, 19 Ark. 476; Waller ». S., 40 Ala. 335; Jackson ». 8., 103 lb. 76; Harding v. P., 10 Color. 387; McClerkin «. S., 30 Flor. 879 ; S. «. Austin, 108 N. C. 780. 'R. V. Wooler, 3 Stark. Ill; C. ». Gibson, 3 Va. Cas. 70; S. v. Myers, 68 Misso. 366. sp. v. Lightner, 49 Cal. 336. 9U. 8. V. Ball, 163 U. 8. 663 (cases cited); McCorkle v. 8., 14 Ind. 39; S. v. Ricketts, 74 N. C. 187; Blaney v. S., 74 Md. 153, 157; 8. e. Wilson, 131 Misso. 434; Bowers v. 8., 33 Tex. App. 43. i»Dunlap «. 8., 9 Tex. App. 179. 14 ^10 Criminal Peocbdure The formal mode of taking the verdict is as follows in cases of treason and felony : The jurors having been called over by name — Clerk. Are you agreed of your verdict? [''We are."] Who shall say for you? ["The foreman."] A. B., hold up your hand. Look upon the prisoner, you that are sworn. Hovr say you — is he guilty of the felony (or, treason) whereof he stands indicted, or not guilty ? [Foreman answers.] Having received and noted the foreman's reply — Hearken to your verdict as the court hath recorded it. You say, that A. B. is guilty (pr, not guilty) of the felony {or, treason) whereof he stands indicted : so you say all. In cases of misdemeanor, the formula is as follows : The jurors having been called over by name — Clerk. Are you agreed of your verdict. ["We are."] Who shall say for you? ["The foreman."] How say you — is A. B. guilty of the matter whereof he stands indicted, or not guilty ? [Foreman answers.] Having received and noted the foreman's reply — Hearken to your verdict as the court hath recorded it. You say, that A. B. is guilty (or, not guilty) of the matter whereof he stands indicted : so you say all. These forms must be substantially followed.^ § 328. Polling Jury. — After the verdict has been announ- ced and before it has been recorded or the jury dispersed, the court may, upon its own motion, and must, if required by either party, cause the jury to be polled, each juror being required to declare his verdict, the question being usually put, "is this your verdict," and, unless and until each juror has assented, the verdict can not be recorded.^ The assent of each juror must be free and unqualified.' 'Givens o. S., 76 Md. 485 (omission of part beginning "hearken unto your verdict" held to avoid the proceedings). ^2 Hale, 299; Williams v. S., 60 Md. 402; Biscoe v. S., 68 lb. 294; C. e. Schmous, 162 Pa. St. 326 ; S. ». Harden, 1 Bailey (S. C), 3 ; S. «. Young, 77 N. C. 498 ; Harris ®. S., 31 Ark. 196 ; Williams ». S., 63 Ga. 306. ^C. ». Austin, 6 Wis. 205 ; Rothbauer «. S., 22 lb. 468. Held, that this relates to time of being polled, and that the mere fact, that the juror states, that he had assented to the verdict reluctantly (no doubt being expressed as to his present state of mind) is immaterial. Parker v. S., 81 Ga. 332. Verdict 211 Some cases hold the matter of polling to be within the dis- cretion of the trial court.* § 329. Sealed Verdict. — Except in capital cases and cases in which the sentence may be imprisonment for life,^ it has been held to lie within the discretion of the trial court, to authorize the jury to separate, after agreeing upon, signing and sealing up a paper in the form of a verdict, and afterwards to return a verdict in open court in accordance with the result so stated and sealed up.^ The verdict is given and received in the usual form, subject to the polling of the jury.^ § 330. Special Terdict. — The jury may in any case find a special verdict.^ It may be a mere finding of facts, leaving the judgment to the court, or a finding for the plaintiff (government) generally, subject to the opinion of the court on a case stated by consent.^ IsTo special form of words or technical accuracy is requisite ; but the finding must be of the facts themselves posi- tively, including every element of the offense.'^ § 331. Partial Verdict. — The jury may render a verdict, acquitting the accused of the full offense charged and convict- ing him of a minor offense included therein,* or finding him guilty as to one or more of several counts, in which latter case the verdict operates as an acquittal as to counts in regard to which it is silent.' The Federal statutes expressly provide, that the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense so charged, if the attempt, under the Federal law, is a separate offense.*" ig. B. Wyse, 32 8. C. 45 ; 8. ». Hoyt, 47 Conn. 518, 533-534 (cases cited). ^8. V. McCormick, 84 Me. 566. 'U. S. V. Bennett, Fed. Cas. 14,571; C. v. Slattery, 147 Mass. 423; Anony- mous, 68 Me. 590. ^Stewart v. P., 23 Mich. 63, 76-79. n Chitty Cr. L. 462. «8tatlerB. U. S.,157U. S. 277. n Cliitty Or. L. 644; U. 8. v. Buzzo, 18 Wall. 125; C. ». Call, 1 Pick. 509. ^Ante, 1 264. ■'Ante, ^11. i»U. S. Rev. Stats. ?1035. 212 Criminal Procedure A partial verdict is sufficient if, in plain, unequivocal terms, there is a finding of the lesser offense included in a particular count, though the full offense charged is not expressly nega- tived, or if there is a finding as to one or more counts, designated either by their number or by the names of the offenses charged in them.' § 332. Several Defendants. — A verdict may be one of guilty as to one or more defendants jointly tried and not guilty as to one or more others ; and there may, in like man- ner, be an agreement as to some and the case left open as to others.^ The Federal statutes in express terms provide, that the jury, if unable to agree upon a verdict as to all defendants, may render a verdict as to those in regard to whom they do agree, on which judgment shall be entered accordingly, and the cause as to the others may be tried by another jury.* There may also be findings of guilt in different degrees as to several defendants.* A conviction, in order to be valid as to any one defendant, must, in terms or by necessary intendment, be a separate find- ing as to him.^ Thus, a verdict, upon an indictment against A and B, finding "the defendant" guilty is void.* § 333. Special Requisites. — If a statute expressly requires the verdict upon a charge involving different degrees of the same offense (subject to different punishments) to ascertain the degree, a verdict of guilty generally, or in general terms (not ascertaining the degree) is a nullity.' But if the indictment specifically charges all the elements of the highest degree, a verdict of guilty as charged is merely erroneous.' If a statute expressly requires the verdict, if the accused is found guilty, to ascertain the penalty, a verdict silent as to the 'S. V. West, 39 Minn. 331. ■•"C. V. Wood, 13 Mass. 813. 8U. S. Rev. Stats. § 1036; Buckliu ®. U. S. (No. 2), 159 U. S. 683. "Shouse*. C.,5 Pa. St. 83. =Pife V. C, 29 Pa. St. 429. «S. D. Weeks, 33 Or. 3. 'Williams «. S., 60 Md. 403 ; Johnson «. S., 30 Tex. App. 419. 8In re Black, 53 Kans. 64. Verdict 213 penalty,^ or assessing an unauthorized penalty,^ or assessing a penalty, but not expressly finding the party guilty,^ is void. § 334. Reconsideration And Amendment. — Until the verdict announced has been recorded, it may be altered or withdrawn by the jurors, or the cfessent or non-concurrence of any one of them ;* and the court may, at any time before the verdict has been recorded and the jury dispersed, permit them to reconsider, or correct it^, provided nothing be done amount- ing to a coercion or tending to influence a conviction. Other- wise than stated, a verdict can not be altered or amended by the court or jury;° but the court may amend the record of the verdict, and may put the verdict in "proper form on record,' and, to that end, reject immaterial or unnecessary parts of the finding.^ iC. p. Scott, 5 Gratt. (Va.) 697. ^Allen ®. C, 2 LeigH (Va.), 737. 'Wynn «. S., 1 Blackf. (Ind.) 28. «S. «. Austin, 6 Wis. 205; Rothbauer ». S., 23 lb. 448; Sledd ». C, 19 Gratt. (Va.) 813, 833. «3 Hale, 299; Grant ». S., 33 Flor. 391 ; C. v. Deleban, 148 Mass. 254. 62 Hale, 300 ; Gaitber o. Wilmer, 71 Md. 361 ; P. «. Lee Tune Chong, 94 Cal. 879 ; S. v. Dawkins, 32 S. C. 17, 26. '3 East P. C. 518. se. v. Lang, 10 Gray, 11. 214 Criminal Procedure CHAPTER XXV. ARREST OF JTTDGMEN'T. § 335. Qrounds For. — The grounds for arrest of judg- ment are strictly confined to matter apparent upon the face of the record/ but not to the indictment : ground of arrest may be found in any part of the record which imports, that the proceedings are inconsistent or repugnant, and would render a sentence irregular.^ If the statute under which a proceed- ing was had is repealed before sentence, judgment must be arrested.' Mere irregularities in the proceedings, no matter how grave, which do not affect the jurisdiction of the court to impose sentence, such as matters relating to the composition of the grand jury that returned the indictment, form no ground of arrest of judgment.* § 336. Defective Indictment. — ^If the indictment be defective,' otherwise than in mere matter of form,° judgment will be arrested. Essential defects are not aided by verdict;^ but if an averment necessary for the support of the indictment is imperfectly stated, and it appears, after verdict, that the ver- dict could not have been arrived at without proof of such averment, the defective averment, which might have rendered the indictment bad on demurrer, is "cured by verdict."* The Federal law expressly provides, that judgment shall not be >1 Chitty Cr. L. 661 ; S. b. Carver, 49 Me. 588 ; Byers ». S., 63 Md. 207. n Chitty Cr. L. 663 ; 8. v. Fort, 1 N. C. L. Repos. 510 ; S. v. Lohman, 3 Hill (8. C), 67; Hall v. C, 80 Va. 555, 562. »Ante, ?53. *U. S. s. Gale, 109 U. 8. 65. n Chitty Cr. L. 661 ; 8. «. Barrett, 42 N. H. 466. "Lavelle v. 8., 136 Ind. 233. n Chitty -Cr. L. 661-662; U. S. «. Carll, 105 U. S. 611 ; 8. v. Keena, 63 Conn. 329. sHeymann «. Reg., 12 Cox C. C. 388 ; Reg. v. Goldsmith, lb. 479 ; 8. ». Free- man, 63 Vt. 496. Arrest Of Judgment 215 affected by reason of any defect or imperfection of form only which does not tend to the prejudice of the accused.^ Judgment will not be arrested or set aside after a general verdict of guilty, if the indictment contains one good count.^ § 337. Procedure. — Judgment may be arrested upon application (motion) of the defendant, or by the court upon its own motion.* The defendant may move in arrest of judgment at any time before sentence* — after a motion for a new triaP — but not after judgment on demurrer.* It has been held, how- ever, that the court, if it finds that it has wrongfully overruled a demurrer to the indictment, may entertain a motion in arrest of judgment for the same alleged cause of defect.^ § 338. Effect Of Arresting Judg-ment. — If judgment is arrested for insufficiency of the indictment, the proceedings are set aside, but the party may be re-indicted;^ if it is arrested, because the verdict is M'rong, the verdict is set aside and a new trial ordered on the indictment.' lU. S. Rev. Stats. ? 1035 ; Dunbar v. U. S., 156 U. S. 185 ; Rosen v. U. S., 161 lis. 39. ^Claasen v. U. S., 143 U. S. 140; Avirett v. S., 76 Md. 511. '1 Chitty Or. L. 663; C. ■». Hearsey, 1 Mass. 138; Younger ®. S.,37 Ark. 116. n CMtly Or. L. 663. 'Turbervil v. Stamp, 3 Salk. 647; Philpot ■». Page, 6 D. & R. 381. 'IChitty Cr. L. 663. 'Stewart v. Railroad, 108 Ind. 44. H Bl. Comra. 375; P. ». Gasborus, 13 Johns. 351 ; S. v. Sutton, 4 Gill (Md. ), 494. 'S. V. Koerner, 51 Misso. 174. 216 Criminal Procedure CHAPTER XXVI. NEW TRIAL. § 339. General Doctrines. — Upon conviction, a new trial may be ordered by the court, upon its own motion or at the instance of the accused, or any one of several persons accused, at any time before judgment, for any matter extrinsic to the record whereby it appears, that there was a defect of substantial justice at the former trial.' No new trial can be ordered after acquittal.^ The matter of granting a new trial is entirely discretionary with the trial court ;^ but the accused is entitled to have the application therefor passed upon* and material evidence pre- sented by him received." Every defendant concerned must be present (within the power of the court) when the application is heard. ^ A new trial may take place at the same term of court as the former trial.' § 340. Grounds For. — In criminal, especially capital cases, the ordinary strictness as to disturbing verdicts is relaxed.^ The principal grounds for granting a new trial are, that the verdict was contrary to the evidence; newly discovered evi- dence; accident and surprise; misconduct of jurors or the officer having them in charge;" bias and disqualification of jurors, disqualification not entitling to a new trial, however, if '1 Chitty Or. L. 658. •'U. S. V. Sauges, 144 U. S. 310. ^Holder v. U. S., 150 U. S. 91 ; Clune v. U. 8., 159 lb. 590. *01ms V. S., 49 Wis. 415. 'Mattox «. U. S., 146 U. S. 140. «R. V. Teal, 11 E. 307 ; S. ». Rippon, 2 Bay (S. C), 99. Of. ante, ? 195. 'Craft s. C, 24 Gratt. (Va.) 603. '17. S. «. Briggs, 8 Mackey (D. C), 585 ; Cooper v. S., 19 Tex. 449; Anderson V. S.. 43 Conn. 614; S. v. Tomlinson, 11 Iowa, 401; Falk v. P., 42 111. 381. •Mattox v. U. 8., 146 U. S. 140. New Trial 217 there was an opportunity to challenge;' misconduct or error of judge ; fraud or misconduct of prosecution, e. g., abuse of argument.^ >KoU «. LeMback, 160 U. S. 393^ Mni«, §195. 218 Criminal Procedure CHAPTER XXVII. JUDGMENT AND SENTENCE. § 341. Acquittal And Dlscbarge. — If there is an acquittal upon the merits or upon a plea of pardon, judgment is rendered " that the defendant of the premises specified in the indictment be discharged and go thereof without day " {quod eat sine die), whereupon he is set at liberty, unless there be some other cause of detention against him.^ If the indictment is merely quashed or the proceedings are abated for some informality or irregularity, the accused is not entitled to go free, but will be held for trial.^ § 342. Conviction And Sentence. — ^Upon conviction, if no motion in arrest of judgment or for a new trial is pending, sentence may be pronounced.' Sentence may be given on a day* or term^ subsequent to the date of conviction, but the entire sentence must be pronounced at one time.' It may be pronounced by the judge of the court in which the record is at the time, and he need not have pre- sided at the trial.^ It must be pronounced in open court,* in the presence of the accused,^ and, in capital cases, inquiry must first be made of the defendant, whether he has anything to say. 11 Chitty Cr. L. 718-719. ^U. S. 0. Dustin, Fed. Oas. 15,011; Crumpton v. S., 43 Ala. 31; Exp. Graves, 61 lb. 381; Tare Smith, 4 Color. 533; S. ». Holley, 1 Brev. (S. C.) 35, 42 ; Rowland v. S., 136 Ind. 517. SQ. ■». Lockwood, 109 Mass. 333. n CMtty Or. L. 699. '•P. V. Felix, 45 Cal. 163. «C. ■B.Foster, 132 Mass. 317; P. ». Felker, 61 Mich. 110; S. v. Crook, 115 N. C. 760, 764. 'U. S. V. Gordon, Fed. Cas. 15,331 ; Pegalow e. S., 30 Wis. 61. 'Anonymous, Raym. 68. ^Ante, §195; Ball ». U. S., 140 U. S. 118; French ». 8., 85 Wis. 400. Judgment And Sentence 219 why sentence of death should not be pronounced upon him ;^ but the accuaed need not be present in the appellate court.^ The courts may suspend or reprieve sentence at their discre. tion.' During the term at which rendered, judgment is under the control of, and subject to modification by, the court.* § 343. Requisites Of Sentence. — Judgment imposing sentence must be certain' and in strict conformity to the law® as it stands at the time of rendition.'^ The imposition of a lighter punishment than that prescribed is not ground for reversal or discharge.' If a greater punish- ment than that prescribed is imposed, only the excess is void.' § 344. Kinds Of Punisliment. — The common-law pun- ishment for treason and felony is death; for misdemeanors, fine and imprisonment, or either, at the discretion of the court."* In certain cases, the courts may also require surety of the peace and for good behavior." Under the Federal law, the punishments of whipping and standing in the pillory are expressly prohibited. ^^ The limitation of the legislative power as to prescribing kinds and degree of punishment is to be found in the con- stitutional prohibitions of cruel and unusual (including excess- ive) punishment.'^ ipielden ». Illinois, 143 U. S. 453. '^Schwab V. Berggren, 143 U. S. 443. 'P. V. Court of Sessions, 144 N. Y. 288 ; S. ■«. Crook, 115 N. C. 760. Of. post, iSiS. *C. ■!>. Weymouth, 3 Allen, 144; S. v. Butler, 73 Md. 98. 'Groenvelt's Case, 1 Ld. Raym. 313 ; Reg. v. Woodside, 7 Cox C. C. 338 ; Morris v. S., 1 Blackf. (Ind.) 37. ^McDonald ». S., 45 Md. 90. ■>Ante,i52. ^According to the weight of authority. Isaac v. S., 33 Md. 410; P. v. Bauer, 37 Hun, 407; McQuoid v. S., 8 111. 76. 9In re Bonner, 151 U. S. 343; U. S. ». Pridgeon, 153 lb. 48, 63; U. S. «. Har- mon, 68 Fed. R. 473 '»3 Gabbett Cr. L. 556-557; U. S. v. Coolidge, Fed. Cas. 14,857; S. v. Falken- ham, 73 Md. 463, 466 ; Beard «. S., 74 lb. 180, 133. '^Posi, i 377. "U. S. Rev. Stats. | 5337. ^^Ante, § 73. 220 Criminal Procedure If one has been guilty of an offense on a former occasion, the second or subsequent commission of the offense is some- times made subject to a heavier punishment, and such legisla- tion has been held constitutional.' A party is said to have been guilty of the former offense, in this connection, if he has been convicted thereof.^ § 345. Imprisonment. — Impris&nment must be in the place of detention prescribed by law,' in the absence of express statutory provision, the common gaol.* The sentence need not spesify the prison, if only one place is prescribed.'' The time at which execution of sentence is to begin or end need not be specified." Federal convicts may be sentenced to state prisons.^ §346. Fine. — In the absence of statutory provision, the amount of fine to be imposed in any case is in the discretion of the court.' If the accused is absent' when fine is imposed, he is brought in by capias pro fine}" This process is worded like an ordinary capias^^ except that for "to answer" etc. there is substituted "to satisfy a certain fine imposed upon him by the judgment of the court." The methods of execution, or enforcing payment, are impris- onment, until the fine is paid ;'^ by writ of levari facias, command- ing the sheriff to "cause to be levied" of the goods and lands of the party the fine imposed ;'' if the prosecution is by penal iMoore ». Missouri, 159 U. S. 673. 22 Inst. 468 ; 1 Hawk., ch. 49, ? 3. 3P. ». Cavanaugh, 1 Park Cr. R. 588. *S. ®. McNeill, 75 N. C. 15. 'Weed«. P., 31 N. Y. 465. «ClifEord v. S., 30 Md. 575; S. •». Smith, 10 Nev. 106, 125. 'U. S. Rev. Stats. §? 5536-5550. n Chitty Cr. L. 809. ^Ante, §195. '»C. V. Webster, 8 Gratt. (Va.) 702 ; Pifer v. C, 14 lb. 710. "^mi«, §130. "In re Jackson, 96 U. S. 727. 13R. V. Woolf, 1 Chitty, 401, 428-443 (containing form); S. C, lb. 583; Kane «. P., 8 Wend. 203, 215; Gill «. S., 39 W. Va. 479; Beasley b. S., 2 Yerg. (Tenn.)481. Judgment And Sentence 221 action/ by writ of Jim facias.^ Under the Federal law, judg- ment for fine may be enforced by execution against the prop- erty of the defendant in like manner as judgments, in civil cases ; but the execution does not discharge from imprisonment, until judgment is satisfied.' It has been held, that at common law, process of imprisonment and seizure of property may not issue simultaneously,* but this may be doubted. A fine is not a debt in the ordinary acceptation of the term,^ and the accused can not be relieved from imprisonment on the ground of insolvency; but under FederaP and various state statutes, "poor convicts" imprisoned for non-payment of fines, may, after certain periods of confinement, be released. § 347. Mode Of Commitment. — No formal precept, writ or order is necessary to authorize the imprisonment and deten- tion of the party in execution of the judgment of a court of record of general jurisdiction.'' According to the strict common law, the sheriff", who has custody of all persons accused,* executes sentence by delivering the convict to the keeper of the proper prison, who then becomes responsible for the deten- tion of the party, for which the record of the court, or memorial thereof, is his authority.' There is generally also delivered to the prison-keeper a certified short copy of the proceedings and judgment, or a writing in the form of a warrant of commits ment, by the sheriff.'" Although commitment be merely to the "custody of the sheriff"," without specifying the mode or place of imprisonment, he must yet keep the convict in the mode and place provided ^Ante, 1 86. ^Gill «. S., 39 W. Va. 749. 'U. S, Rev. Stats. 1 1041. ^O'Conner ». S., 40 Tex. 37. n Chitty Cr. L. 811 ; In re Sanborn, 53 Fed. R. 583; S. v. Glenn, 54 Md. 573, 604. «U. 8. Rev. Stats. ?§ 1043, 5396. 'Howard ». U. S., 75 Fed. R. 986. ^Ante, § 83 ; R. ®. Bethel, 5 Mod. 19. ^Ante, ?109. "Matters of local practice. 222 Criminal Procedure by law in the particular case. "Custody," in this connection, means "salva et arcta custodia.'"- § 348. Death Penalty. — The common-law method of inflicting death as a penalty for crime is by hanging by the neck till dead. In some instances, " electrocution," or killing by the application of a current of electricity, has been substitu- ted by statute, and such legislation has been held constitutional.^ The sentence, at common law, does not fix the time or place for execution.''* The time, method and place of conducting " executions " are generally regulated by statutes. If the time fixed by law has passed, a new time must be assigned.* Every court that has power to impose the penalty of death has also power to award a reprieve, and judges continue to have this power after their commission is determined.^ If a case in which judgment of death was pronounced is carried to the Supreme Court of the United States, the court having rendered sentence must, by its order, postpone execution from term to term, until the mandate of the Supreme Court in the case has been received and entered of record.* § 349. Costs. — Costs in criminal proceedings are the crea- ture of statutes, and courts have no power to award them unless some statute has conferred it.' The matter is regulated throughout the United States by statutes. Statutes authorizing imprisonment of convicts for non-pay- ment of costs have been upheld as not in violation of constitu- tional prohibitions of imprisonment for debt.* Statutes imposing costs, in the event of acquittal, upon a private "prosecutor" and authorizing imprisonment for iSmith «. C, 59 Pa. St. 330. ^In re Kemmler, 136 U. S. 436. 'Cathcart ®. C, 37 Pa. St. 108, 115; Aarou o. S., 40 Ala. 307, 309. "In re Cross, 146 U. 8.271. '2 Hawk., ch. 51, § 8 ; 1 Chitty Cr. L. 758. Cf . ante, § 342. «U. S. Rey. Stats. § 1040. ■■U. S. V. Gaines, 131 TJ. S., App. clxix. »Caldwell v. S., 55 Ala 133 ; Dixon v. S., 3 Tex. 481 ; McCool v. S., 33 Ind. 137; Exp. Bergman, 18 Nev. 331, 343; Boyer o. Kinnick, 90 Iowa, 74. Judgment And Sentence 223 non-payment are not in violation of the guaranty ae to " due process of law.'" § 350. Restitution. — At common law, there was no resti- tution of goods upon a criminal charge ; but by stat. 21 H. 8, ch. 11, on a conviction of felony in a proceeding by appeal, the prosecutor shall have restitution of his goods.^ The prac- tice of the courts under this and similar statutes is, upon con- viction, to order, without any writ, immediate restitution of such goods as are brought into court, to be made to the several owners.^ The order is limited to property identified at the trial as the subject of the charge,'' in cases of conviction.' It forms no part of the sentence proper.' § 351. Pregnancy Of Female Convict. — If a woman, upon conviction of a capital offense, claims to be quick with child, execution should be respited till she be delivered. The common-law method of procedure is to direct a jury of twelve matrons, or "discreet women," to inquire into the fact, and if they bring in their verdict of "quick with child," she is respited till a reasonable time after her delivery, or till it becomes apparent, that she has not been with child.'' If she has been delivered and becomes pregnant again, there should be a further reprieve.' In modern practice, in the absence of statutory provision, it would probably be deemed suflicient to determine the question of pregnancy by the opinion of medical experts and grant a reprieve upon their reporting her pregnant, but whether a reprieve can be refused without a formal verdict may be regarded as doubtful at least. 'Lowe V. Kansas, 163 U. 8. 81. H Bl. Coram. 363; Walker v. London, 11 Cox C. C. 280. HBl. Comm. 362; Reg. v. Macklin, 5 Cox C. C. 216; Reg. v. Pierce, 8 lb.. 844. *B.eg. v. Goldsmith, 13 Cox C. C. 594; Reg. v. Smith, lb. 597; C. «. Boudrie, 4 Gray, 418. »8. «. "Williams, 61 Iowa, 517 ; Sullivan v. Robinson, 39 Ala. 613. 'Isaacs V. S., 33 Md. 410. '4 Bl. Comm. 395 ; 1 Chitty Cr. L. 759-701 ; Reg. v. Wycherly, 8 C. & P. 363 (containing forms). n Chitty Cr. L. 761 ; 3 Gabbett Cr. L. 582. 224 Criminal Proceddee § 352. Several Defendants. — Upon the joint conviction of several defendants, the sentence for the penalty or penalties imposed should be separate.^ Though the offense be joint and but one fixed penalty provided therefor, each convict is separ- ately liable for the whole punishment.^ In penal actions, if the wrong complained of is joint, the offenders must be sued jointly and the judgment must be joint; and the plaintiff can have but one satisfaction.^ § 353. Several Charges. — If there has been a conviction of several offenses, whether upon different indictments, or upon several counts of the same indictment, cumulative punishments may be imposed, one to take effect after the other.* If there are several charges in different counts for the same transaction, but one punishment should be imposed. If the transactions are different, separate punishments,^ or one punishment for the cumulative penalty,^ ™ay be imposed. ijones V. C, 1 Call (Va.), 555 ; C. v. Ray, 1 Va. Cas. 263 (husband and wife); Flynn ». S., 8 Tex. App. 398. ^Caldwell ». C. 7 Dana (Ky.), 329. 'Warren v. Doolittle, 5 Cow. 678; IngersollB. Skinner, 1 Den. 540; Tracy j). Perry, 5 N. H. 504. *1 Chitty Or. L. 718; Castro v. Reg., 14 Cox C. C. 546; Blitz v. U. S., 153 U. S. 308; Howard v. IT. S., 75 Fed. R. 986 ; Henderson v. James, 53 O. St. 342. '^U. S. V. Groesbeck, 4 Utah, 487. «Eldredge u. 8., 37 O. St. 191. Writ Of Error And Appeal 225 CHAPTER XXVIII. WRIT OF ERROR AND APPEAL. § 354. Writ Of Error — A writ of error lies whenever, by reason of any material error or mistake in a judgment rendered in a court of record, the judgment is illegal and ought not to stand.* In criminal cases, the defendant,^ but not the state, or government,-^ is entitled to the writ. It lies only from a final judgment or disposition of a case and for errors apparent upon the face of the record.^ It brings up for review the pleadings, the process, the verdict and judg- ment and such matters as by some statutory or recognized method have been made part of the judgment,** e. g., a finding of facts which is made part of the judgment." § 355. Procedure. — The party suing out the writ is called the plaintiff" in error and the opposite party the defendant in error and the proceeding is in the nature of a suit between them in which the correctness or incorrectness in point of law of the judgment of the lower court is the issue. At the strict common law, all the defendants in the lower court should be joined as plaintiffs in error, and it is competent for one to join the others without their consent. The steps in the proceeding at common law are the application, writ, return, assignment of errors, pleas in error, issue, judgment. The application is by petition to the court of chancery for the writ. 'Cohens e. Virginia, 6 Wheat. 364, 409; Thayer v. C, 13 Mete. 9; Fitz- gerald V. C, 5 Allen, 509. ^Mitchell V. S., 3 Misso. 283. 'U. S. i>. Sanges, 144 U. S. 310 (cases cited). *Claasen «. U. S., 143 U. S. 140. Held to lie from order as to removal of cause (change of venue). McMil- lan ». S., 68 Md. 307. 'Clune V. U. S., 159 U. S. 590. •Clare v. 8., 30 Md. 163. 15 •226 Criminal Procedure The writ issues in the name of the state, or government, to ^he justices of the court whose judgment is in question, com- manding them to transmit the record of their judgment and proceedings to the appellate court for review. Return is made by certifying and transmitting a transcript of the record together with the writ. If the record appears to be incomplete, the party suing out the writ may suggest diminution of the record and cause it to be certified by means of the writ of certiorari} The assignment of errors is a specification of errors in the nature of a declaration. The usual plea is in nullo est erratum, or that there is no error in the record or proceedings, and concludes with a joinder in error (issue),^ upon the entry of which follow the application for a concilium (rule argument),^ hearing and judgment. The entire proceeding has been much simplified by modern statutes. Formal pleas and joinder of issue are dispensed with. The essential steps in modern procedure are the application, allowance of writ (allocatus), writ, return, assignment of errors, hearing, judgment. § 356. Petition And Order. — The suit is docketed in the chancery court in the name of the convicted defendant against the state, or commonwealth, by petition as follows : To the Honorable , Judge of the Court : The petition of A. B. respectfully represents : That on the day of , 18 — , the Court, at the term thereof for said year, did give and render a certain judgment against him, in a certain indictment against him for {naming offense), whereof he was con- victed, as by a duly certified copy of the docket entries of the proceedings in said court herewith filed more fully appears. That in the record of said proceedings and in the giving of said judgment manifest error has intervened, to the prejudice and wrong of your petitioner. Wherefore he prays this Honorable Court to grant him the writ of error directed to said Court, commanding the record and proceedings afore- said with all things concerning the same to be sent to the (naming appellate court) at the next ensuing term thereof, that the same may be inspected and reviewed and the errors therein corrected. And as in duty bound, etc. C. D., Attorney for Petitioner. 'Post, i 436. ^Arch., 19 ed., 311. 'lb. 313. Writ Of Error And Appeal 227 The order consists of the following endorsement upon the petition, with date and signature of judge of chancery court : Let writ of error issue as prayed. In modern practice, application for the writ of error is made by petition to the appellate court or to the court which gave judgment, alleging error in the judgment and proceedings and praying, that a transcript of the record and proceedings be transmitted to the appellate court for review. The order con- sists of a simple allowance (allocatur) of the writ, or direction that it be issued, worded substantially like the order given above. Under some statutes formal writs of error are dispensed with; and the record is transmitted to the appellate court upon a petition assigning errors. § 367. ll^rlt And Return The State of , to the Honorable, the Judges of the Court, Greeting.: Whereas in the record and proceedings and also in the rendition of judg- ment on a certain indictment which is in the said court before you against A. B. for the crime of («. g., murder), manifest error has intervened, to the injury of the said A. B., as by him is alleged, and as it is right, that the error, if any there be, should be duly corrected, and full and speedy justice done in the premises, you are therefore commanded, if judgment be there- upon given, that you send the record and proceedings aforesaid, with all things concerning the same, distinctly and openly under your seal, together with this writ, to the Court, to be held at , on the day of next, that, the said record and proceedings being inspected, the said court may cause to be further done thereupon, for correcting said error, what of right and according to law ought to be done. Witness (insert proper teste^). The judges of the court below return the writ of error with the record in the case, properly certified under their seal, to the appellate court and endorse upon the writ a statement, that they have done so, which is called the return. This return may be in form as follows : A transcript of the record within named, with all things concerning the same, is herewith transmitted under our hands and seals. iThe teste is the day of suing out. 3 Tidd Pr. 1143. 228 Criminal Procedure In modern practice, the clerk makes return to the writ of error by transmitting a true copy of the record and proceedings under his hand and the seal of the court. § 358. Assignment Of Errors. — A. B., Plaintiff in Error 1 In the vs. [• Supreme Court of- The State of , Defendant in Error ) Term, 18— And the said A. B. says, that in record and proceedings aforesaid and also in the giving of judgment aforesaid against him, the said A. B., there is man- ifest error, in this, to wit, that the indictment aforesaid and the matter therein contained are not sufficient in law to warrant the judgment against him now given, or to convict him of the felony and murder (or, e. g., trespasses and forgery) aforesaid; also in this, that by the said record it appears, judgment upon the indictment aforesaid was given against him, the said A. B., in form aforesaid, whereas judgment by the law of the State of ought to have been given for him, the said A. B., that he be thereof acquitted and go there- upon without day. And the said A. B. prays, that the judgment aforesaid, for the errors being in the record and process aforesaid, may be reversed and annulled. C. D., Attorney for Plaintiff in Error.' § 359. Joinder In Error. — ^Formal joinder in error is probably abolished or obsolete throughout the United States. The full form (body) of this pleading, technically called the plea in nullo est erratum, is as follows : And the said B. ¥., who prosecutes for the said State, comes and says, that neither in the record and proceedings aforesaid, nor in the giving of judg- ment aforesaid, is there any error, and he prays, that the Court may proceed to examine as well the record and proceedings aforesaid, as also the several causes aforesaid assigned for error, and that the judgment aforesaid may in all things be affirmed. § 360. Exceptions. — ^Bills of exceptions, unknown to the common law, were first provided for by 13 E. 1, st. 1., ch. 31,^ which was held to apply only to civil cases. Under modern statutes, the same general provisions and rules as to bills of exceptions obtain and apply in civil and criminal cases. Ex- ceptions are reduced to writing, signed and sealed by the judge and incorporated in the record, and the appellate court is thus put in possession of facts of which it could not otherwise 'In England, the plaintiff in error declares in proper person, but under the (probably universal) American practice all appellate proceedings may be con- ducted by counsel. ^3 Bl. Comm. 373 ; Alexander Brit. St. 126. Writ Of Error And Appeal 229 take notice. Exceptions can be taken to the court's action or want of action upon any proceedings during the progress of the trial, from its commencement to its conclusion ;' but they must rest upon matters not otherwise apparent upon the record.^ Bills of exceptions should be so framed as distinctly to pre- sent the rulings of the trial court. They should contain the rulings of the court upon matters of law and so much of the evidence as may be necessary to explain their bearing upon the issues involved.* If objection is made to the charge, the specific portion thereof claimed to be erroneous must be desig- nated.* If a series of prayers, or requests to charge, is refused, there must be specific exception as to each : general exception ■ to the refusal of the series will not avail, if one of the proposi- tions is unsound.^ All the alleged errors may be incorporated into one bill of exceptions.* Separate bills of exceptions, it has been held, are to be treated as distinct and independent, each requiring the signature and seal of the judge, unless they establish a con- nection, by referring one to the other.'' In the Federal courts, bills of exceptions need not be sealed.^ Exceptions should be noted before the rendition of the ver- dict, but may be reduced to form and attested during the term.' If attested after the trial, they are signed nunc pro tunc, so as to purport to be actually in form and signed during the trial." iWilson ■D. U. S., 149 U. S. 61. ^Moline Plow Co. v. Webb, 141 U. S. 616. 'Lees «. U. S., 150 U. S. 476. ^Holder ». U. S., 150 U. S. 91. 'Rogk s. Gassert, 149 U. S. 17, 36. «Lees v. U. S., 150 U. 8. 476. 'Cooper V. Holmes, 71 Md. 30. sstanton «. Embry, 93 U. S. 548, 555. 'Hunnicutt ■b. Peyton, 102 U. S. 333. '"Wright ». Sharpe, 11 Mod. 175. 230 Criminal Pkoceduke § 361. Form Of Bill Of Exceptions State of 1 In the vs. ;- A. B. J Term, 18— At the trial of this cause, the State introduced evidence tending to prove The State also offered evidence tending to prove , to the reception of which evidence the defendant objected, but the court overruled the objection and allowed the evidence to be given, to which action and ruling of the court the defendant excepted. The defendant then introduced evidence tending to prove The defendant also offered evidence tending to prove , but the court excluded said evidence, to which action and ruling of the court the defend- ant excepted. The foregoing was substantially the entire testimony. The defendant then prayed the court to instruct the jury The caurt rejected the defendant's prayer and charged the jury ■ The defendant excepted to the refusal of his prayer and to so much of said charge as states that And the defendant then and there prayed the court to sign and seal this his bill of exceptions, which is accordingly done this day of , 18— [Seal.] § 362. Errors Of Fact. — For error in fact in the judgment of a court of record, it may, at the common law be revoked, in the same court in which the judgment was given, by means of the writ of error coram nobis} The proceedings, at the strict common law, are in the natare of a suit to revoke and annul the judgment in the former suit, conducted in analogous form to proceedings upon ordinary writs of error.^ This remedy is applicable in criminal cases, when gross injustice has been done the accused, and by reason of lapse of time the discretionary power of the court to vacate the proceedings can not be invoked. The necessity and propriety of the remedy find their strongest modern illustration in cases where innocent persons had pleaded guilty under duress, through fear of mob violence.^ It is appli- cable in other cases."* The forhi of remedy is obsolete, but the 13 Tidd Pr. 1136-1137, 1178. 'Crawford «. Williams, 1 Swan (Tenn.), 341. ^Sanders ». S., 85 Ind. 318; S. C, 4 Grim. L. Mag. 359 (fully annotated) ; S. «. Calhoun, 50 Kans. 533. *Exp. Gray, 77 Misso. 160. Writ Of Error And Appeal 231 remedy still exists. In modern practice, the end sought by this writ is attained by motion or petition supported by affidavits.' § 363. Modern Forms Of Appeal. — The procedure relating to review of judgments and proceedings of trial courts has been greatly simplified by modern statutes. Where the writ of error is still in use, it is obtained upon a simple direction of counsel, or proBcipe, to the clerk of the court which rendered judgment, to let the writ issue and transmit the transcript of the record to the appellate court. The record is attested by the clerk, who affixes his signature and the seal of the court. Formal writs of error, including pleadings in error, are to a great extent super- seded by proceedings in the nature of writs of error, consisting essentially of a statement, or assignment of errors, with a petition to the court, or direction to the clerk, for the trans- mission of the record as upon writ of error. In some jurisdic- tions, a proceeding by appeal, or transmission of the record upon entry of a prayer of appeal is substituted. Under various circumstances and conditions, an appellate proceeding is made to operate as a stay of execution of sentence, an affidavit being* sometimes required, that the appeal is not taken for delay. Provision is made in some states for a review of findings of fact, the proceeding by appeal or on error being analogous to a motion for a new trial. § 364. Judgment. — If a writ of error has issued improp- erly, it is "quashed." An appeal is "dismissed." If the pro- ceedings in the appellate court are not prosecuted in due form, they are "dismissed." Judgment for the defendant in error or on appeal (appellee) is "affirmed;" for the plaintiff' in error or on appeal (appellant), "reversed." If reversal is for matter of defect in the proceedings which goes to the right of the state or government to try the party, there is no procedendo, or remitting of the record to the lower court; otherwise, the pro- ceedings are sent back with a direction for a new trial or other correction. The decided tendency of modern legislation as well as adjudi- cation is in the direction of remanding a case for proper iBronson v. Schulten, 104 U. S. 410, 416-417. 232 Criminal Proceddke sentence, where reversal is for error in the sentence, the anteced- ent proceedings having been regular.' In England, it is provided by 11 & 12 Vict., ch. 78, § 5, that it is competent for a court of error reversing judgment in a criminal case to pronounce the proper judgment, or to remit the record to the court below for such judgment. No reversal is granted for merely erroneous rulings not preju- dicial to the accused.^ Upon the death of the accused, appeal or writ of error abates.' iln re Bonner, 151 U. S. 342; Ballew v. U. S., 160 lb. 187, 197; S. v. Har- mon, 68 Fed. R. 473; Beale «. C, 25 Pa. St. 11, 22. '•'Swann v. 8., 64 Md. 638; McQuold «. P., 8 111. 76, 80-81. 'O'SuUivan v. P., 144 111. 604. Pardon 233 CHAPTER XXIX. PARDON. § 365. General Doctrines. — A pardon is a declaration by a sovereign relieving a particular person or persons from the consequences of a particular crime or crimes. The law of pardons as to their nature and operation is derived from, and governed by the principles of, the common law of England.^ In England, the power of pardon vests in the crown,^ and in the United States it is generally expressly confided in the executive. The President has power to grant reprieves and pardons for offenses against the United States 'except in cases of impeach- ment.^ When a person has been sentenced to both pecuniary fine and corporal punishment, the President may pardon or remit either, in whole or in part.* Grovernors of territories may grant pardons and reprieves and remit fines and forfeitures for offenses against the laws of the territories and also respites for offenses against the laws of the United States till the deci- sion of the President can be made known to them.° It is said, that a pardon obtained through fraud is void.^ § 366. IVature And Extent Of Poiver. — The power extends to every offense known to the law,'' including contempts punishable by summary process.* 'Exp. Wells, 18 How. 307. H Bl. Oomm. 398. sConst. U. S., art. 3, ?2, cl. 1. «U. S. Rev. Stats. §5830. 'lb. ? 1841. «4 Bl. Comm. 400 ; C. v. Halloway, 44 Pa. St. 310. Go7itra : Knapp «. Thomas, 39 0. St. 337. '4 Bl. Oomm. 398 ; Exp. Garland, 4 Wall. 333, 380. 83 Hawk., ch. 37, ?26; In re Moseley, L. R. 1893, A. C. 138; In re Mullee, Fed. Gas. 9,911 ; Exp. Hickey, 4 Sm. & M. (Miss.) 751 ; S. v. Sauvinet, 24 La. Ann. 119. 234 Criminal Procedure It may be exercised at any time after the commission of an oiFense, either before legal proceedings are taken, or during their pendency, or after conviction and judgment,* even after sentence executed.^ Pardon may be general, special or particular, absolute or conditional.^ The power to reprieve, or suspend execution of sentence in capital cases, may be exercised by the executive as an incident of the power to pardon, with which it is co-extensive.* The limitations of the pardoning power are,' that the execu- tive cannot make an offense dispunishable by previous pardon, nor release a recognizance to keep the peace,* nor discharge the informer's part in a qui tarn action after suit, nor discharge a penalty where the right of action is given to the party aggrieved, nor pardon a common nuisance, while it remains unredressed, so as to prevent an abatement of it.'^ § 367. Conditional Pardon. — Pardon may be conditional, e. g., that sentence of death is commuted to imprisonment for life,* that the party leave the country or state. The executive may annex to the pardon any condition, precedent or subse- quent, provided it be not illegal, immoral or impossible to be performed.^ The condition must be accepted, in order to render pardon operative.'" Breach of condition avoids the pardon, and the party may be remanded to prison upon a judicial ascertainment of the breach." The constitutional guaranty of "due course of law" requires a regular proceeding and hearing in such case.'^ •Exp. Garland, 4 Wall. 333, 380. ^U. S. «. Jones, Fed, Cas. 15,493 ; P. v. Bowen, 43 Cal. 439, 443. 'Exp. Wells, 18 Ho-w. 307. 'Sterling v. Drake, 39 O. St. 457. 'Exp. Wells, 18 How. 307. ''Post ?390. M Bl. Comm. 398. «Exp. Wells, 18 How. 307. 'Arthur ®. Craig, 48 Iowa, 364. i»U. S. i>. Wilson, 7 Pet. 150. iMra«e, ? 102 ; Exp. Wells, 18 How. 307. "P. v. Moore, 63 Mich. 497. Pardon 235 § 368. Effect Of Pardon. — Pardon reaches both the pun- ishment prescribed for the offense and the guilt of the offender ; when it is full, it releases the punishment and, in legal contem- plation, obliterates guilt : it removes all penalties and disabilities and restores all civil rights ; it places the party, with the exceptions hereinafter named, in the same situation as if the crime had not been committed.^ It restores competency as a witness,^ relieves from the statu- tory liability to additional punishment for a subsequent offense,^ operates to defeat the justification of truth in regard to state- ments or declarations imputing to the party the commission of the crime,'' but does not restore ofiiees forfeited or property vested in others.-"^ K property condemned or its proceeds have not become thus vested, but remain under the control of the executive or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored, or its proceeds delivered, upon full pardon ; otherwise, if the proceeds have been paid over to another, or covered into the public treasury.* § 369. Form And Manner Of Pardon. — Pardon must be by instrument of writing under the great seal of the state or government.'' ~So particular form of words is required,^ and the instrument receives a reasonable interpretation accord- ing to its fair intent. 'Exp. Garland, 4 Wall. 383, 380-381 ; Carlisle v. U. S., 16 lb. 147. «,47i«6, §307. ^Edwards a. C, 78 Va. 39. *Leyman v. Latimer, 13 Cox 0. C. 632; S. C, 14 lb. 51. =Bxp. Garland, 4 "Wall. 333, 380-381 ; Semmes «. U. S., 91 U. S. 31. sOsborn «. U. S., 91 U. S. 474; Knote a. U. S., 95 lb. 149. '4 Bl. Comm. 400. 8Jones 11. Harris, 1 Strobh. (8. C.) L. 160. For a form, see U. S. «. Wilson, 7 Pet. 150, 153. 236 Special Proceedings And Remedies PART III. SPECIAL PROCEEDINGS AND REMEDIES. CHAPTER XXX. SEAECH WARRANTS. § 370. Defined. — A search warrant is a warrant issued by a justice of the peace authorizing search to be made for goods suspected to have been stolen in places mentioned in the war- rant, the attachment of the goods, if found, and the arrest of the person in whose custody they are found.^ § 371. Requisites. — Warrant may not issue except upon probable cause supported by oath or affirmation to the effect, that the affiant has reason to believe his goods to have been stolen and that they are concealed in certain described premises.^ The warrant must with reasonable certainty^ describe the par- ticular place to be searched and things to be taken, and should be directed to a con'stable or other proper officer and command, that the goods together with the person in whose custody they are found be brought before some justice.* § 372. Form Of Complaint Or Information. — State of , County, to wit : Be it remembered, that on this day of , 18 — , before me, the subscriber, one of the justices of the peace in and for said County, personally appeared A. B. and made complaint and oath, that the following goods and chattels of him, the said A. B., namely (e. g., one coat, eto., as in indictment), were on the day of {or, within daysj last past, feloniously '3 Hale, 113. =Ib. 150; 1 Chitty Cr. L. 65 ; Boyd v. U. S., 116 U. S. 616, 638. >0. ». Dana, 2 Mete. 339 ; Dwinnels v. Boynton, 8 Allen, 310. n Chitty Cr. L. 65; Boyd v. U. S., 116 U. S. 616, 638; Johnson B.Comstock, 14 Hun, 388 ; Gray V- Davis, 37 Conn. 447. Search Warrants 237 stolen, taken and carried away, at the County aforesaid, and that he has just and reasonable cause to suspect and believe and does suspect and believe, that the said goods and chattels, or part thereof, are concealed in («. g., the dwelling-house of C. D., situate at ) in said County; and thereupon said A. B. prayed, that I issue my warrant to search for the said goods in the premises aforesaid. [Seal] § 373. Form Of ^Tarrant State of , County, to wit : To any Constable of said County : Whereas complaint has been made before me, the subscriber, one of the justices of the peace in and for said County, upon the information and oath of A. B., that the following goods and chattels of him, the said A. B., namely [as in preceding form) were on (as in preceding form) and that he, the said A. B., has just and reasonable cause {as in preceding form) you are therefore com- manded, forthwith to make diligent search in the said described place for the said goods, and if the same or any part thereof be found, to secure the same and bring the person or persons in whose custody they may be found before the subscriber, or some other justice of the peace of said County, to be dealt with according to law. Hereof fail not, and have you there this writ. Given under my hand and seal, this day of , in the year 18 — [Seal] § 374. Execution Of ■Warrant. — The same general rules apply as in the case of other warrants.' A warrant regular upon its face protects the officer, though improperly issued.^ A warrant void upon its face confers no authority.^ The owner should be present, in order to give the officer information of his goods.* Only the place described in the warrant may be entered or searched.^ The goods taken must fairly answer the description in the warrant.^ The search should regularly (not necessarily) be made in day-time.^ Doors may be broken open by the officer, upon demand and refusal of admission.' '1 Chitty Cr. L. 66. ^Dwinnels v. Boynton, 3 Allen, 310. »Sanf ord v. Nichols, 13 Mass. 384 ; Johnson ». Comstock, 14 Hun, 388. *3 Hale, 113 ; Boyd o. U. S., 116 U. S. 616, 638. ^Humes v. Taber, 1 R. I. 464. 'Crozier v. Cundy, 9 D. & R. 334 ; Boyd e. TJ. S., 116 U. S. 616, 638 ; Stone ®. Dana, 5 Mete. 98. '3 Hale, 150; 1 Chitty Cr. L. 65. 83 Hale, 151 ; 1 Chitty Cr. L. 66 ; Bell -o. Clapp, 10 Johns. 363. 238 Special Proceedings And Remedies § 375. Procedure. — ^If, upon the return of the writ, the goods appear not to have been stolen, they should be restored ; otherwise, they remain in the officer's hands to await the action of the proper court.^ The person arrested, according to circum- stances, may be discharged, bound over as a witness, or com- mitted (as principal, accessory, or receiver).^ ■3 Hale, 113, 151. ''lb. 151-153. Surety Of The Peace 239 CHAPTER XXXI. SURETY OF THE PEACE. § 376. Defliied. — Surety of the peace is a species of pre- ventive justice and consists in obliging those persons whom there is probable ground to suspect of future misbehavior to stipulate with, and give full assurances to, the public, that such offense as is apprehended shall not happen, by finding pledges or securities for keeping the peace.^ The power to compel persons to find sureties for their good behavior,^ which seems founded, in a great measure, upon 3.4 E. 3, ch. 1, is probably not entitled to be recognized to its full extent in the United States.'' § 377. Po-wer To Require. — The power to require surety of the peaQe is vested in superior courts of general jurisdiction,* the judges of such courts'^ and justices of the peace." They may require such surety either ex officio, or upon application. Courts may require persons tried before them for certain misde- meanors, not accurately specified, to find sureties of the peace or for good behavior,^ even though acquitted.* • § 378. Federal Statute. — The judges of the Supreme Court and of the circuit and district courts, the commissioners of the circuit courts and the judges and other magistrates of the several states who are or may be authorized by law to make arrests for offenses against the United States shall have the like ■4 Bl. Comm. 250. ''Bac. Abr., Surety of the Good Behavior; 4 Bl. Comm. 356-357; Reg. a. Rogers, 7 Mod. 28. ^Estes V. S., 3 Humph. (Tenn.) 496. *Reg. ®. Mallinson, 16 Q. B. 367. n Bl. Comm. 350 ; Resp. ■o. Cobbett, 3 Yeates, 93. «4B1. Comm. 253. 'Dunn 0. Reg., 3 Cox C. C. 305, 314 ; Terr. ». Nugent, 1 Mart. (La ) 103 ; Estes «. S., 3 Humph. (Tenn.) 496. 83 Hale, 394 ~; Bamber ». C, 10 Ta. St. 339. 240 Special Proceedings And Remedies authority to hold to security of the peace and for good behavior in cases arising under the Constitution and laws of the United States as may be lawfully exercised by any judge or justice of the peace of the respective states in cases cognizable before them.' § 379. Po-w^er To Require Ex Officio. — Tribunals or officers having jurisdiction to require surety of the peace may require it upon their own motion in all cases in which they would have power to grant it upon application f in cases of affray, breach of the peace or threat of violence, made in their presence, or where persons are brought before them charged with these acts f in the case of persons tried before the courts for certain misdemeanors;* generally, whenever there is just cause of suspicion, that a crime will be committed.'^ It is the duty of the proper officer or tribunal to provide surety of the peace for the safety of all persons, even though insane or other- wise incapable of applying for it.^ § 380. Grant Upon Application. — The mode of pro- cedure upon application for surety of the peace is, in the main, well defined and should be strictly observed, especially when the application is made to a justice of the peace.^ If the application appears to be groundless, or merely vexations or malicious, it should be denied f and if, after grant, it appears, that the proceedings were instituted unjustly, they should be stayed.' Parties may be required to make application in the neighborhood where the defendant resides." Surety should be craved soon after the alleged occasion of fear: suffering much lU. S. Rev. Stats. ?737; U. S. ». Greiner, Fed. Cas. 15,362. 24 Bl. Comm. 353. 'lb. 354. Mrafe, § 377. 'IT. S. «. Quitman, Fed. Cas. 16,111. «Dalt., ch. 117, ? 5. n Fitz. N. B., 9 ed., 79 H ; Hyde «. Greuch, 63 Md. 577. *Bum Just., Surety of the Peace, 1. =R. B. Parnell, 3 Burr. 806. "R. 0. Waite, 3 Burr. 780; S. C, 3 Ld. Keny. 511. Surety Of The Peace 241 time to pass ordinarily indicates, that the party was not under fear.' § 381. By And Agrainst ff^taom Demandable. — All per- sons of sane understanding, whether sui juris or not, though they be aliens or incapable of suing, may claim surety of the peace,^ and it is in like manner grantable against any private or official person.' It may be demanded by a wife against her husband,* or a husband against the wife.° It is grantable against one incapable of inflicting harm in person, to prevent him from procuring others to inflict it.' Insane persons may, during lucid intervals, demand or be bound to the peace.'' It is said, that the surety is grantable upon the joint prayer of several and against several, though the parties should be bound separately.' § 382. For "Wliat Causes Grantable. — Surety of the peace should be granted upon application, if it appears, to the satis- faction of the officer or tribunal applied to, that the applicant has just cause to fear, that the person against whom surety is prayed will burn his house, or do him, his wife, or child some corporal hurt, either in person or through the procurement of another,' but not for fear of hurt to the servant, cattle or goods of the applicant,'" nor for any conduct that is past, if there is no apprehension of present or future danger," nor because the parties are at variance or in suit with each other.'^ Just cause to fear personal violence is said to exist, when threats of such violence are shown, or conduct tantamount to ■Bac. Abr., Surety of the Peace, D ; Dennis v. Lane, 6 Mod. 131, 132. ^Bac. Abr., Surety of the Peace, B, ; C. v. Oldham, 1 Dana(Ky.), 466. 'Bac. Abr., Surety of the Peace, C. H Bl. Comm. 354 ; McCurley e. Stockbridge, 63 Md. 433, 434. '4 Bl. Comm. 354; Sims' Case, 3 Str. 1307. «Dalt., ch. 117, §5. 'lb. «R. V. Parnell, 3 Burr. 806. 'Bac. Abr., Surety of the Peace, D ; R. v. Mendez, 1 Str. 473. "Bac. Abr., Surety of the Peace, D. "lb. i^Dalt., ch. 116, ? 5. 16 242 Special J'roceedings And Remedies such threats.' It is sufficient, if a threat be conditional, e. g., to assault the applicant, if he should do a certain thing,^ or go to a certain place.' False imprisonment is said to be corporal Jhurt." § 383. The Application. — Application to a court should be by petition, or motion in writing, setting forth the facts and circumstances upon which it is based.^ Application to a magis- trate may be verbal. In all cases, there must be an oath by the applicant, that he is actually under the fear of the hurt alleged, and that he does not require the surety out of malice or from vexation." The oath may be as follows : You swear, that you are under actual fear, that A. B. will(6. ^., do you some corporal hurt), and that you do not require surety of the peace against him out of malice or from vexation. So help you God. § 384. Manner Of Grant. — The manner of granting the application is, by verbally commanding the arrest of the per- son complained against and requiring him to find sureties (if he be present) ;' by process of attachment, capias, or similar precept, commanding the sheriff to bring the party before the court to answer the complaint;^ by warrant of the magistrate.' § 385. Form Of ^Varrant.— State of , County, to wit : Whereas complaint has been made before me, the subscriber, one of the justices of the peace in and for said County, upon the information and oath of A. B., that the said A. B. is afraid, that C. D., of said County, will («. g., do him bodily hurt), and he hath, therefore, prayed surety of the peace against him, the said C. D., you are, therefore commanded, forthwith to apprehend the said CD., and bring him before me, the subscriber, or some other justice of the peace of said County, to find surety, as well for his per- sonal appearance at the next term of the Court for said County, as also for his keeping the peace in the meantime towards the citizens of this iReg. V. Dunn, 13 Ad. & El. 599. ''Reg. V. Tollemache, 3 Lowndes, Maxw. & P. 401 ; Bsp. Hulse, 31 L. J., M. C, 31 ; Ritchey «. Davis, 11 Iowa, 124. 'Reg. B. Mallinson, 16 Q. B. 367. *Bac. Abr., Surety of the Peace, D; Burn Just., Surety of the Peace, 1. *Bac. Abr., Surety of the Peace, E. «4 Bl. Comm. 355 ; Hyde ». Greuch, 63 Md. 577, 583. ■■Bac. Abr., Surety of the Peace, G. lb., P. »Ib., G ; Hyde v. Greuch, 62 Md. 577, 588. Surety Of The Peace 243 State and more especially towards the said A. B. Hereof fail not, and have you there this writ. Given under my hand and seal, this day of , in the year 18 — [Seal.] § 386. Supersedeas. — According to the old common law, a person may voluntarily appear before an officer or tribunal having authority to grant surety of the peace and give such surety, either before or after a vparrant has been issued against him, and obtain a supersedeas, which is, in effect, a discharge, or exemption, from arrest or further proceeding against him at the instance of the person for whose security he has been bound ; and if such surety is given before a superior court, he may obtain a writ of supersedeas restraining inferior magistrates from requiring surety from him, a violation of the precept being a contempt.^ The form of a writ of supersedeas issuing out of a superior court is substantially as follows : State of , County, to wit : To all justices of the peace and officers of said County and others con- cerned : Whereas C. D. has this day come before the Court for said County and found sufficient surety for his personal appearance at the next term of said Court, then and there to do and receive what shall be enjoined him by the said Court, and in the meantime to keep the peace towards the citizens of this State, and more especially towards A. B., you and each of you are therefore commanded, not to arrest, imprison, detain or molest the said C. D., by any means, for said cause, and if you have, for the said occasion and none other, taken or imprisoned the said CD., that then him you deliver or cause to be delivered and set at liberty without further delay. Dated this day of , in the year 18 — Witness {inserting proper teste). In modern practice, an order of supersedeas would probably be used, and a certified copy of the order substituted for the formal writ. § 387. Procedure. — The proper mode of taking surety before a magistrate is, to require the person charged to enter into a recognizance to appear at the next session of the court having criminal jurisdiction, and in the meantime to keep the peace towards all citizens, and especially towards the complain- ant.^ If the accused fails to give the requisite security, he is ilChitty Cr. L. 36 ; S. v. Berry, 8 Me. 179. ='Bac. Abr., Surety of the Peace, G; Hyde v. Greuch, 63 Md. 577, 583; C. v. Ward, 4 Mass. 497; C. v. Morey, 8 lb. 78. 244 Special Peoceedings And Eemedies committed to jail, until he finds such security, or is discharged by due course of law/ Recognizances for keeping the peace taken by justices of the peace must be returned to the next term of the court having criminal jurisdiction.^ Commitments in default of security must, in like manner, be certified by the jailer.^ The court then examines the evidence, and discharges the recognizance or commitment, or continues the proceeding/ Upon original application, the court may at once investigate the charge and require security for any definite time, generally one year/ The court should hear both sides and satisfy itself as to the justice of the application. If there is a commitment in default of sureties, the accused should ordinarily be dis- charged at the end of one year, if no new circumstances have appeared to indicate danger from his release.^ Infants and femes covert are bound by sureties only.^ The recognizance is worded like an ordinary recognizance, with this exception : where it is taken in court, instead of " for the appearance " etc.^ say, " to keep the peace towards all citizens of this State, and more especially towards A. B., for (e. g., the period of one year)." In Federal proceedings, the wording is, " to keep the peace and be of good behavior in all cases arising under the Constitution and laws of the United States.'" § 388. Form Of Comiultment. — State of , County, to wit : To the Warden of the Jail of said County : Beoeive into your custody C- D., committed for failing to give security required of him, to appear at the next term of the Court for , and in the meantime to keep the peace towards all citizens of this State, and more especially towards A. B., and him safely keep, until he shall he delivered by law. iHyde «. Greuch, 62 Md. 577, 583. 24 Bl. Comm. 353; 8 H. 7, ch. 1 ; Alexander Brit. St. 353; Hyde «. Greuch, 63 Md. 577, 584. '3 H. 7, ch, 3; Alexander Brit. St. 357. *Bac. Abr., Surety of the Peace, I; Hyde ». Greuch, 63 Md. 577, 584. 'B. ». Bowes, 1 T. B. 696. 'Baynum v. Baynum, Ambler, 63 ; Exp. King, lb. 883. ■14 Bl. Comm. 354. iAnte, 1 117. 'U. S. ". Greiner, Fed Gas. 15,363. Surety Op The Peace 245 Witness the subscriber, a Justice of tbe Peace in and for said County, this day of , in the year 18 — [Seal] § 389. Forfeiture Of Recognizance.— Recognizance to keep the peace is forfeited, if the person bound makes default of appearance and the default is recorded ;^ by violence, assault or menace to the person of him who obtained it, if it be special, or, if it be general, by any unlawful action amounting to, a breach of the peace,^ but not if committed in another territory.' The method of enforcing a forfeited recognizance is by scire facias,* or action of debt.' A breach of the peace may be prosecuted both as a crime and a forfeiture of recognizance.* Upon forfeiture, new sureties may be compelled.'' § 390. Discliarge Of Recognizance. — Recognizance to keep the peace may be discharged by supersedeas^ by the action of the court to which it is returned ;' by the death of the principal before forfeiture;'" by the death of the person secured, if it is special.^' Death of sureties does not discharge, their personal representatives remaining bound. '^ The person secured can not release the recognizance, but the court may regard his request to discharge it." A recognizance can not be discharged by pardon, but the forfeiture may be thus remitted.^* 'Bac. Abr., Surety of the Peace, H ; 3 H. 7, ch. 1 ; Alexander Brit. St. 353. H Bl. Comm. 255 ; Rankin v. C, 9 Bush (Ky.), 553. sKey V. C, 8 Bibb (Ky.), 495. *3 Tidd Pr. 1093 ; Resp. «. Cobbett, 3 Yeates, 93. °C. 1!. Green, 13 Mass. 1. «C. V. Braynard, 6 Pick. 113. '1 Hawk., ch. 60, ? 1. »Anie, § 386. 'Ante, i 387. '•Bac. Abr., Surety of the Peace, I. "lb. in Hawk., ch. 60, § 17. "Reg. V. Howard, 11 Mod. 109. "Bac. Abr., Surety of the Peace, I ; Exp. Wells, 18 How. 307. 246 Special Proceedings And Remedies CHAPTER XXXII. INQUISITION OF HOMICIDE. § 391. friio May Take. — Inquisitions of homicide may be taken by the coroner, who is ordinarily the proper officer and who alone can take an inquest on view of the body ;^ by justices of the peace, or other justices authorized to inquire of felonies, in cases where the body cannot be found, or has lain so long, that a view could be of no assistance, or if there be danger of infection from digging up.^ § 392. In "What Cases To Be Taken. — Coroner's in- quest, at common law, can be held only in cases of deaths.* Inquiry should be made, when any person is slain, drowned, or dies suddenly or in prison, concerning the manner of his death.* Though the death of several persons resulted from the same cause, separate inquests must be held.' The coroner may not hold an inquest as of course, but only in cases of notice or reasonable suspicion of violent or unnatural death, or the death of a prisoner in gaol.^ § 393. TTkere To Be Taken At the strict common law, the inquisition must be held in the county where the person died,'' or, if an injury was inflicted in one county and death resulted in another, in the former.* By 2 & 3 E. 6, ch. 24, the justices or coroner of the county where the person died were directed to take the inquisition. 13 Hawk., ch. 9, ? 33 ; Exp. Schultz, 6 Whart. (Pa.) 269. n East. P. C. 379. 'Reg. i. Herford, 3 El. & El. 115. *1 Bl. Oomm. 348. 'Fayette ». Batton, 108 Pa. St. 591. »R. V. Justices, 11 E. 339 ; Reg. v. Price, 15 Cox 0. C. 389, 393 ; J^ancaster o. Mishler, 100 Pa. St. 624. '4 Bl. Comm. 348. ^ 8Reg. «. Great Western, 3 Q. B. 333 ; Stout e. S., 76 Md. 317, 325. Inquisition Op Homicide 247 § 394. Duty And L.iabllity Of Third Persons. — llfotice should be given to the coroner, if a person has come to a vio- lent death, or if a prisoner dies in gaol.' Acts tending to obstruct or prevent a proper inquest are misdemeanors.^ § 395. Powers Of Coroner. — The coroner was formerly a judge of an inferior court of record having cognizance of pleas of the crown.' The power of holding pleas of the crown was taken away by Magna Charta, ch. IT,* and while the functions of the coroner in taking an inquisition are designated as judic- ial,^ the inquisition can not, in a strict sense, be considered a judicial proceeding.^ The coroner's authority is a limited one, but he is vested with power to preserve order and decorum in the proceedings before him f to summon witnesses f to commit witnesses failing to attend;' to procure a post mortem examination and other necessary services.'" §396. Procedure. — The procedure is largely governed by the statute De Officio Coronatoris, 4 E. 1, st. 2," which, however, is regarded as directory and in affirmance of the common law.'^ The proceedings are in the nature of a preliminary investiga- tion." They may be held on Sunday." It has been held, that the public are not entitled to be present.'^ The investigation '1 East P. C. 378. ■'B.. V. Proby, 1 Keny. 350 ; R. ■». Solgard, 3 Str. 1097 ; Anonymous, 7 Mod. 10; Reg. V. Stephenson, 15 Cox C. C. 679. 33 Inst. 31-33 ; 4 lb. 371-373. *3 Inst. 30. =1 BL Comm. 348; Garnett v. Ferrand, 6 B, & C. 611, 635. «Je-wison ». Dyson, 9 M. & W. 540, 546 ; S. v. Cecil, 54 Md. 436, 438 ; Blaney V. a., 74 lb. 153, 157. 'Jewison v. Dyson, 9 M. & W. 540, 580. sjervis, 5 ed., 39. 'lb. 87. '"Allegheny v. Watts, 3 Pa. St. 463 ; C. e. Herman, 4 lb. 369 ; Gaston ». Com- missioners, 3 Ind. 497. Cf. R. v. Quinch, 4 C. &. P. 571. "Alexander Brit. St. 66. '■^Bac. Abr., Coroners, C. "Jervis, 5 ed., 31 ; S. v. Cecil, 54 Md. 436, 438. "Blaney ». S , 74 Md. 153, 157. i^Garnett v. Ferrand, 6 B. & C. 611. 248 Special Proceedings And Remedies need not be in the presence of the person accused of the homi- cide.' The proceedings consist essentially of the summoni'ng of a jury, view of the body^ and inquisition. § 397. Summoning Jury. — Upon determining, that an inquisition is proper-, the coroner issues his precept to the constable to return a competent number of jurors from the county.^ The jury must consist of not less than twelve persons,* and the same qualifications are required as in the case of other jurors.' If the death occurred in prison, it is said, that the jury should consist of six of the prisoners and six others.^ It seems, that the coroner can not, at common law, punish the officer for not serving his precept, or jurors for non- appear- ance or the like, but must present the matter to the court of criminal jurisdiction, which is empowered to impose a fine.^ § 398. Precept To Summon Jury. — State of , County to wit : To tlie constable of in said County : You are commanded immediately to summon ' good and lawful men of said County, to be and appear before me, the subscriber, one of the coroners of said County, at , in the said County, on the day of , 18 — , at — o'clock , then and there to inquire of, do and execute all such things as, on behalf of the said State, shall be lawfully given them in charge touching the death of A. B; (or, a person whose name is unknown and whose body was found dead at ) ; and be you then there, to certify what you shall have done in the premises and further to do and execute what, in behalf of the said State, shall be then and there enjoined you. Given under my hand and seal, this day of , 18 — • [Seal] § 399. Viewing Body. — The coroner can hold an inqui- sition only super visum corporis, upon view of the body liy the ip. ». Collins, 20 How. Pr. Ill, 114. n East P. C. 379; Jervis, 5 ed., 26-28. 32 Hale, 59. 'Vo. 'lb. 60. «2Hawk., ch. 9, ?21,n. '1 East P. C. 583. Contra : Exp. McAnulty, T. U. P. Charlt. (Ga.) 310. 'The proper number to be mentioned in the precept, at the common law, is twenty-four. Inquisition Of Homicide 249 jurors,^ and may, within a reasonable time, have the body dis- interred for that purpose.^ After the view, the jury need not continue in the presence of the body, but the inquisition may be taken in some other convenient place.' § 400. Inquisition. — When sufficient jurors have been obtained, they must be sworn. They may be sworn before or at the time of the view of the body.* The scope of the inquiry is as to the circumstances of the death' and the persons, if any, who were culpable, including accessories before, but not after, the fact.' The coroner should receive all the evidence relating to the manner of death, whether the same goes to prove or disprove the commission of a felony.^ He may sum up the evidence and instruct the jury as to their duties, but is bound to accept their- verdict.* He may detain the jury for a reason- able time, adjourn the sitting from time to time, and discharge the jury, if they cannot agree.^ After an inquisition has once regularly been taken, there can be no other.'" The jurors' oath may be as follows : You shall diligently inquire and true presentment make, how and in what manner A. B. {or, a person unknown), here lying dead, came to his death and of such other matters relating to the same as shall be lawfully required of you. So help you God. The oath of a witiiess may be as follows : The evidence you shall give to this inquest shall he the truth, the whole truth and nothing but the truth. So help you God. § 401. The Terdict The verdict should be returned in the form of a certificate, signed (and generally sealed) by the coroner and all the jurors, finding when, where and how the H Bl. Comm. 348 ; R. v. Ferrand, 3 B. & Aid. 360; Exp. Schultz, G Whart. (Pa.) 369. ^Bac. Abr., Coroners, C ; Allegheny v. Watts, 3 Pa. St. 462, 465. 'Bac. Abr., Coroners, G. *Jervis, 5 ed., 17; Reg. v. Ingham, 9 Cox C. C. 508, 513. '3 Hawk., eh. 9, ? 38; S. i>. Cecil, 54 Md 436, 438. 'Bac. Abr., Coroners, C. '3 Hale, 60-62. ^Smith's Case, Comb. 386. 'Jervis, 5 ed., 44. '"Reg. V. White, 3 El. & El. 137 ; P. v. Budge, 4 Park Or. R. 519. 250 Special Proceedings And Remedies deceased came to his death and who (if any one) was culpable and to what extent. It should appear, at what place and by what jurors the inquisition was taken and that the jurors were sworn. § 402. Subsequent Proceedings. — If one is accused of murder or manslaughter, or as accessory thereto, by the ver- dict, it is the duty of the coroner^ to put in writing the effect of the evidence ; to bind the witnesses for the prosecution^ to appear at the next term of the court having jurisdiction of the offense charged; to certify such evidence and recognizances together with the inquisition found to the court; to commit the accused for trial.^ The inquisition, when returned and filed, becomes a matter of public record, prima facie evidence of the facts found.* At the strict common law, it had the effect of an indictment upon which the accused might be arraigned and tried.* § 403. Form Of Inquisition County, to wit : An inquisition taken at , in said County, on the day of , in the year 18 — , before , one of the coroners for said County, upon view of the body of A. B., then and there lying dead, upon the oath of {naming jurors), good and lawful men of the County aforesaid, who, being duly sworn to inquire on the part of the State of , as to the circumstances of the death of the said A. B , do say upon their oath : That on the day of , in the year 18 — , at , in the said County, one C. D. did feloniously [and of malice aforethought] kill [and murder] the said A. B., by stabbing him in the left breast with a knife, thereby inflicting a mortal wound, of which the said A. B. then and there instantly died. And the said jurors do further say upon their oath, that E. P. was then and there feloniously present, then and there feloniously aiding and abetting the saidC. D. the murder [manslaughter] aforesaid to do and commit. And the said jurors do further say upon their oath, that G. H., before the said murder was committed, to wit, on the day of , in the year 18—, at aforesaid, in the County aforesaid, did feloniously incite and procure the said C. D. the murder aforesaid to do and commit. '1 & 3 P. & M., ch. 13, ? 5; Alexander Brit. St. 870. 2Reg. V. Taylor, 9 C. & P. 673. n Bl. Comm. 348. *U. S. Life Ins. Co. «. Vocke, 139 111. 557. '1 Chitty Cr. L. 158, 163; Reg. v. Ingham, 9 Cox C. C. 508. Inquisition Of Homicide 251 In witness whereof the said coroner and the jurors aforesaid have to this inquisition put their seals, on the day and year and at the place first above mentioned. (Here follow the signatures and seals of the coroner and all the jurors.) § 404. other Forms Of Findings. — That on etc., at etc., one C. D., by misfortune and against his will [or by accident and without fault on his, the said C. D.'s part, or in proper and necessary self-defense), did kill the said A. B. That on etc., at etc., the said A. B. [not being of sound mind] did kill him- self by drowning {or hanging, or ^hooting) himself. That on etc., at etc., the said A. B., accidently, casually and by misfortune fell into the River, there situate, and was drowned. That on etc., at etc., the said A. B. was found dead, and that he had no marks of violence appearing upon his body, and died by the visitation of God, in a natural way, and not otherwise. That the said A. B., on the day of the taking of this inquisition, being a prisoner in the jail at , then and there died by the visitation of God, and then and there in manner aforesaid came to his death, and not otherwise. That on etc., at etc., the said A. B. came to his death by (stating circumstances succinctly), and they further say, that the death of the said A. B. in manner aforesaid was occasioned by the culpable negligence of C. D. in {stating facts) , and that, therefore, the said 0. D. did feloniously kill the said A. B. § 405. Forms Of M^arrants And Commitments. — If a person found culpable by the verdict of the jury has not been apprehended, the coroner may make out his warrant in the following form : State of , County, to wit : To any Constable of said County : Whereas, by an inquisition taken before me, the subscriber, one of the coroners for said County, at , on view of the body of A. B., then and there being dead, one C. D. stands charged with the wilful murder of the said A. B., you are, therefore, commanded, forthwith to apprehend the said C. D. and bring him before the subscriber, or one of the justices of the peace of said County, to be dealt with according to law. Hereof fail not, and have you there this warrant. Given under my hand and seal, this day of , in the year 18 — [Seal] The commitment may be in the following form : State of , County, to wit : To the Warden of the Jail of said County : Whereas, by an inquisition taken before me, the subscriber, one of the coroners for said County, at , on view of the body of A. B., then and there lying dead, one C. D. [whom you have in your custody] stands charged with the wilful murder of the said A. B., you are, therefore commanded to receive into your custody the said C. D. and him safely keep [to detain and keep in your custody the said C. D.], until he shall be delivered by law. 252 Special Proceedings And Remedies Given under my hand and seal, this day of , in the year, 18 — [Seal] The words in brackets are used where the party is already in jail, the warrant, in such case, being technically styled a "war- rant of detention." Foreign Extradition 253 CHAPTER XXXIII. FOREIGN EXTRADITION. § 406. Hoiv Secured. — The obligation as between inde- pendent governments to deliver up fugitives from justice rests solely upon treaties/ but a government may, of its own accord, or as a matter of comity, deliver up a fugitive to a foreign power, in the absence or independently of treaties.^ The Federal government alone is authorized to deliver up alleged fugitives to foreign nations.* § 407. Under Treaties. — The right of a government to demand from another government the surrender of a fugitive from justice is defined by the terms of existing treaty, and if surrender has been made, the demanding government in its conduct towards the surrendered person, is bound by the stip- ulations thereof. He cannot ordinarily be tried for any offense other than that for which he was extradited — at least, until he has had an opportunity to return to the country from which he was taken.* The manner in which surrender shall be made to foreign governments and the matter of transportation and safe-keeping of persons surrendered by foreign governments are regulated* by statute,^ as also the arrest and return of deserting seamen, not citizens of the United States, to foreign vessels, in cases of existing treaty stipulating for the return.' A number of offenses (at least, of the same kind) may be made the basis of one proceeding.'' Offenses of a political character are ordinarily excepted from the provisions of extradition treaties.^ lU. S. Eauscher, 119 U. 8. 407. i-Ker V. Illinois, 119 U. S. 346; Exp. Foss, 103 Cal. 347. 3U. S. «. Rauscher, 119 U. S. 407. *lb. ; P. V. Stout, 31 Hun, 336. 'U. S. ReT. Stats. ? § 5370-5377 ; 1 Suppl. U. S. Rev. Stats. 371-373. 6U. S. Rev. Stats. § 5380. ■"Exp. Henrich, 10 Cox 0. C. 636; In re Henrich, Fed. Cas. 6,369. 'In re Ezeta, 63 Fed. R. 973. 254 Special Proceedings And Remedies § 408. The Arrest Whenever there is a treaty or conven- tion for extradition between the government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any state may, upon complaint made under oath, charging any person found within the limits of any state, district or territory with having com- mitted, within the jurisdiction of any such foreign government, any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge or commis- sioner, to the end, that the evidence of criminality may be heard and considered.^ In the absence of such a requirement in the treaty, a prelimi- nary mandate from the executive department is not necessary, in order to justify proceedings before a judge or commissioner.^ § 409. Form Of Complaint United States of America, District of , to wit : To tlie {stating name and office of justice, judge or commissioner): The complaint of respectfully represents : 1. That heretofore, to wit, on the day of , in the year 18 — , at -, within the jurisdiction of the government of , one A. B. did commit a crime provided for by treaty between the government of the United States and said government of , to wit, the crime of , in that he, the said A. B. did, on the day and year and at the place first above mentioned, {stating circumstances of offense). 2. That the said A. B. is a fugitive from justice of said government of , and is now found within the limits of this judicial district. This complainant, therefore, prays : That a warrant issue for the apprehension of the said A. B., that the evi- dence in the premises may be heard and considered. Subscribed and sworn to before me, a {stating office), this day of - in the year 18 — . 'U. S. Rev. Stats. ? 5270. A judge of a "circuit court of appeals" is a "circuit judge." 26 Stat. L., ch.517, H- ^Benson i>. McMahon, 127 U. S. 457 ; In re Herres, 33 Fed. R. 165. Foreign Extkadition 255 § 410. Form Of Warrant United States of America, District of , to wit : To the Marshal of said District : Whereas complaint under oath has been made by , before me, the subscriber, («. g., a commissioner of the Circuit Court of the United States for said District, autliorized by said Court to issue warrants for the extradi- tion of fugitives from justice of foreign countries), that {following language of eomvlaint). You are, therefore, commanded, forthwith to apprehend the said A. B. and bring him before the subscriber, to be dealt with according to law. Hereof fail not, and have you there this warrant. Given under my hand and seal, this day of ,in the year 18 — (Seal.) § 411. The Hearing. — The hearing must be held on land, publicly, in a room or office easily accessible to the public.^ Documentary evidence may be adduced in support of the charge of criminality, so as to admit any depositions, warrants or other papers, or copies of the same, if so authenticated as to be received by the tribunals of the country where the offense was committed for the same purpose; and whether they are so authenticated or not is proven by the certificate of the principal diplomatic or consular officer of the United States resident in such country.^ Witnesses may be summoned on behalf of the accused at the expense of the United States.^ The proceedings may, in a reasonable manner, be adjourned, from time to time.'' § 412. Commitment. — If the judge or commissioner deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he must certify the same together with a copy of all the testimony taken before him to the Secretary of State, that a warrant may issue, upon the requisition of the proper authorities of the foreign govern- ment for the surrender of the party, and issue a warrant for his commitment to the proper jail, there to remain, until such surrender shall be made.' n Suppl. U. S. Rev. Stats. 371. ^U. S^. Rev. Stats. ? 5271 ; In re Henrich, Fed. Cas. 6,369 ; In re Wedge, 16 Fed. R. 333 ; In re Behrendt, 33 lb. 699 ; In re Ezeta, 63 lb. 972. n Suppl. U. S. Rev. Stats. 373. *In re Ludwig, 33 Fe«l. R. 774. 5U. S. Rev. Stats. §5370; In re Ezeta, 63 Fed. R. 973. 256 Special Proceedings And Remedies The decision cannot be reviewed on habeas corpus, except upon jurisdictional grounds/ or upon the ground, that there was no legal evidence amounting to proof of probable cause of guilt. ^ § 413. Form Of Certificate United States of America, District of , to wit : I, , (e. g., a Commissioner etc., as in preceding form), do certify, that upon complaint made under oath by , charging that (following language of complaint), I issued my warrant for the apprehension of the said A. B., by virtue whereof he was brought before me, and the evidence of his crimi- nality was by me duly heard and considered, and said evidence was by me deemed sufficient to sustain said charge under the provisions of the treaty between the United States and , of {stating date of treaty). I have accordingly issued my warrant for his commitment to the jail of County, in said District and herewith transmit a true copy of all the testi- mony taken before me touching said charge. Witness my hand and seal, this day of , in the year 18 — [Seal.] § 414. Form Of Commitment. — United States of America, District of , to wit : To the "Warden of the Jail of County : Whereas A. B. was duly arrested and brought before me, the subscriber, a (e. g., Commissioner of the Circuit Court of the United States for said District, authorized by said Court to issue warrants for the extradition of fugitives from justice of foreign countries), upon complaint under oath, charging the said A. B., he being a person found within the limits of said District, with having committed within the jurisdiction of a foreign government, to wit, the government of , a crime provided for by treaty for extradition between said government and the government of the United States, to wit, the crime of ; and whereas, after having duly heard and considered the evidence of criminality, I have deemed the same sufficient to sustain the said charge under the provisions of the treaty between the United States and of {stating date of treaty), and have adjudged, that said A. B. be committed to said jail, to await a requisition and warrant for his surrender to said government of : You' are, therefore, commanded to receive into your custody the said A. B. and him safely keep, to abide the order for his surrender, or until he shall be delivered by law. Given under my hand and seal, this • day of , in the year 18 — [Seal.] iln re Cortez, 136 U. S. 330. ^Ornelas v. Ruiz, 161 U. S. 503. Foreign Extradition 257 § 415. Extradition. — The Secretary of State may, under his hand and seal of office, order the person committed to be delivered to the authorized agent of the demanding govern- ment, to be tried for the crime of which accused, and it is lawful for such agent to hold the party in custody and take him to the territory of the foreign government pursuant to the treaty; and a person in custody under extradition proceedings may be retaken, upon escape, in the same manner as a person accused of any crime against the laws in force in any part of the IJnited States.^ The President may, at any stage of the procedure, refuse or prohibit the surrender.^ If a person committed to be delivered up in pursuance of a requisition is not so delivered up and conveyed out of the United States within two calendar months after such commit- ment over and above the time required to convey the prisoner from jail, by the readiest way, out of the United States, any judge of the United States or of any state, upon application by or on his behalf and upon proof of reasonable notice to the Secretary of State of the intention to make such application, may order him to be discharged out of custody, unless sufficient cause be shown, why the discharge should not be ordered.' § 416. Expenses. — The fees are regulated by statute. All fees and costs must be certified by the judge or commissioner before whom the hearing takes place to the Secretary of State, who is authorized to allow payment out of the judiciary appro- priation, and shall cause them to be reimbursed by the demanding government.* 'U. S. Rev. Stats. § 5372. na re Stupp, Fed. Gas. 13,563. 'U. 8. Rev. Stats. §5373. *1 Suppl. U. S. Rev. Stats. 371-373. 17 558 Special Proceedings And Remedies CHAPTER XXXIV. INTERSTATE EXTRADITION. § 417. Constitutional Provision. — A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime. ^ § 418. Statutory Provisions. — Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled and produces a copy of an indictment found or an affidavit made before a magis- trate of any state or territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of such state or territory to which such person has fled, to cause him to be arrested and secured and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive such fugitive, and to cause the fugitive to be delivered to such agent, when he shall appear.^ If no such agent appears within six months from the time of the arrest, the prisoner may be discharged.^ All costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the state or territory making such demand shall be paid by such state or territory.'' 'Const. U. S., art. 4, ?2, cl. 3. ^U. S. Rev. Stats. ? 5378. 'lb. ^Ib. Interstate Extkadition 259 An agent so appointed who receives the fugitive into his custody shall be empowered to transport him to the state or territory from which he has fled/ Every person who by force sets at liberty or rescues the fugitive from such agent, while so transporting him, shall be fined, not more than five hundred dollars, or imprisoned, not more than one year.* § 419. Provisions As To District Of Columbia. — In cases where the laws of the United States provide, that fugitives from justice shall be delivered up, the Chief Justice of the Supreme Court of the District of Columbia shall cause fugitives found within the District to be apprehended and delivered up in the same manner as required of the executive authority of the states by the provisions of sections 5278 and 5279 of the Revised Statutes of the United States, and all executive and judicial ofiicers are obliged to obey the lawful precepts or other process issued for that purpose and to aid and assist in such delivery.^ In the event of the absence or disability of the Chief Justice, his powers and duties under the foregoing provision devolve upon and shall be discharged by the senior Associate Justice of said Court who may be present in the District and able to act.'' § 420. Removal Of Offenders Against Federal L.a'ivs. — For any crime or ofi'ense against the United States, the offender may, by any justice or judge of the United States, or by any com- missioner of a Circuit Court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state, where he may be found, and agreeably to the usual mode of process against offenders in such state and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies lib. § 5379. »Ib. 'Rev. Stats. D. C. § 843. *1 Suppl. U. S. Rev. Stats. 409. 260 Special Proceedings And Ebmedibs of the process shall be returned as speedily as may be into the clerk's office of such court together with the recognizances of the witnesses for their appearance to testify in the case. And, where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.i § 421. IVliat Offenses Extraditable The words "treason, felony or other crime" include everything that is the subject of a criminal charge under the laws of the demanding state.^ § 422. The Flight. — ^In order to justify extradition, it must appear, that the person demanded is in fact a fugitive from jus- tice of the demanding state, i. e., that he was actually present in the demanding state at the time of the commission of the alleged offense^ and that, after the commission, he left the demanding state.* § 423. The Demand. — A demand in strict conformity with the statutory requirements is the essential foundation of the extradition proceedings.^ In order to justify the executive of a state in causing the arrest of one demanded by another state, it is necessary, that there be a charge of the commission of crime by the person demanded against the laws of the demanding state ;^ that such charge be either by indictment or affidavit in due form^ (not by information^) ; that a copy of the indictment or affidavit accompany the demand f that there be 'U. S. Rev. Stats. § 1014. "Kentucky v. Dennlson, 34 How. 66, 99 ; Exp. Reggel, 114 U. S. 642, 650. »Exp. Reggel, 114 U. S. 643, 651-653 ; 8. ■». Jackson, 36 Fed. R. 358 ; Exp. Smith, Fed Cas. 13,968. ^Streep v. U. S., 160 U. S. 138 ; P. «. Pinkerton, 17 Hun, 199 ; S. C, 77 N. Y. 345. 5Exp. Morgan, 30 Fed. R. 398 ; P. v. Donohue, 84 N. Y. 438. ^Roberts v. Reilly, 116 U. S. 80, 95. 'lb. »Exp. Hart, 63 Fed. R. 249. 98. V. Richardson, 34 Minn. 115; Exp. Pfitzer, 38 Ind. 450; Exp. Thornton, 9 Tex. 635, 646. Interstate Extkadition 261 a certificate of the authenticity of the indictment or affidavit sufficient in form ;^ that it be shown, that the person demanded is a fugitive from justice of the demanding state.^ § 424. Form Of Demand State of : To his Excellency, the Governor of I, the undersigned, Governor of , do hereby inform your Excellency, that A. B. is a fugitive from justice of the said State of and is now supposed to be vrithin the said State of ; and I herewith present a copy of an indictment found (or, affidavit made before a magistrate of said State), charging the said A.. B. with a crime under the laws of said State of , to wit, the crime of , which indictment (or, affidavit) I certify to be authentic ; and I do hereby request, that the said A. B. be delivered to C. D., who is appointed agent to receive said A. B., that he may be brought into the said State of , and dealt with according to law. In witness whereof, I have hereunto set my hand and caused the great seal of the State of to be affixed, this day of , in the year 18 — By the Governor : — Secretary of State. , § 425. The Indictment. — The indictment must substan- tially charge the commission of crime by the person demanded against the laws of the demanding state.^ Its sufficiency must be judged by the laws of the demanding state.* Mere questions of its form and sufficiency are matters for the determination of the tribunals of the demanding state alone ;^ so also, the question of the constitutionality of a statute under which it is framed.^ § 426. The Affidavit The affidavit should set forth the facts and circumstances relied on to prove the crime, under the oath or affirmation of one familiar with them, whose knowl- edge justifies his positive testimony (not mere allegation of belief) as to their truthfulness.^ The offense must be clearly 'Roberts «. Reilly, 116 U. S. 80, 95 ; Exp. Morgan, 30 Fed. R. 298, 307 ; Exp. Hart, 63 lb. 349, 360. 'Roberts ». Reilly, 116 U. S. 80, 95. 'Roberts «. Reilly, 116 U. S. 80, 96. *Exp. Reggel, 114 U. S. 643, 651. 'P. i>. Byrnes, 33 Hun, 98; Davis' Case, 133 Mass. 334; S. v. O'Connor, 38 Minn. 343; Exp. Sheldon, 34 O. St. 319. •Pearce«. Texas, 155 U. S. 311. 'Exp. Hart, 63 Fed. R. 349, 359-360; Exp. Spears, 88 Cal. 640. 262 Special Proceedings And Remedies charged with all the particularity requisite in an indictment.* It must be alleged to have been committed within the demanding state.^ The affidavit must be made before (in the presence of) a magistrate, i. e., a judicial officer.* § 427. Tlie Certjftcate. — The certificate must be signed by the Governor, or chief magistrate, of the demanding state.^ It need only aver, that the papers are authentic, not that they are genuine.^ Any form of words importing the genuineness of the indictment or affidavit is sufficient.'^ § 428. The 'Warrant. — The warrant should show, upon its face, that the essential prerequisites to its issue have been complied with.® It should state the conclusion of, not repre- sentation to, the executive of the extraditing state, that the person demanded is a fugitive.^ But it has been said, that the statement in the warrant, that the executive issuing it is " satis- fied, that the demand is conformable to law and ought to be complied with " is sufficient." A new warrant may be issued, if a former one has not been efficient." § 429. Form Of Warrant State of To the Sheriffs, Constables and Peace Officers of the several counties of said State : Whereas it has been represented and satifactorily shown to me by his Excellency, the Governor of the State of , that A. B. is a fugitive from justice of said State and has fled to the State of ; and whereas the ip. V. Brady, 56 N. Y. 183, 190-191. ^Exp. Smith, Fed. Gas. 12,968 ; P. ». Brady, 56 N. Y. 182, 188 ; In re Fetter, 23 N. J. L. 311. ^In re Keller, 36 Fed. R. 681. *Exp. Powell, 20 Flor. 806; Kurtz v. S., 22 lb. 36. iiSoloman's Case, 1 Abb. Pr. 347. «Hackney ». Welsh, 107 Ind. 253. 'In re Manchester, 5 Cal. 237; Kingsbury's Case, 106 Mass. 223 ; Exp. Shel- don, 34 O. St. 319. «In re Der Woon, 18 Fed. R. 898; S. ». Richardson, 34 Minn. 115; Exp. Stanley, 35 Tex. App. 872. "In re Jackson, Fed. Cas. 7,135. I'lvingsbury's Case, 106 Mass. 223; Brown's Case, 113 lb. 409. "In re Hughes, Phill. (N. C.) L. 57, 66-67 ; Kurtz v. S., 32 Flor. 36. Intekstate Extradition 263 said Governor of • has demanded said A. B. of me as a fugitive from justice of said State of , and has produced to me a copy of an indict- ment found [or, an affidavit made before a magistrate of said State of ), charging the said A. B. with a crime under the laws of said State of and certified as authentic by said Governor of ; and whereas 0. D. has been duly appointed agent to receive said A. B. and transport him to said State of You and each of you are, therefore, commanded, immediately to apprehend the said A. B. and deliver him into the custody of the said C. B. Given under my hand and the great seal of the State of , this day of , in the year 18 — By the Governor : Secretary of State. § 430. Duty And Powers Of Executive, — While the surrender of a fugitive from justice as between the states is a matter of obligation/ yet the executive applied to can not be compelled to make surrender, and he must judge the propriety of the extradition.^ He may properly require satis- factory proof of flight.^ A requisition should not be issued or complied with, if it appears, that the real object of the criminal prosecution is to enforce the payment of a claim for money : there should be no delivery up for mere debt.^ § 431. Revievr Upon Habeas Corpus. — The Federal and state courts have concurrent jurisdiction to inquire and determine upon habeas corpus as to the legality of detention or imprisonment under extradition proceedings; but applica- tion should ordinarily, in the first instance, be made to the state courts.^ The preliminary papers upon which the warrant is based as well as the warrant itself may be looked into, and if it appears, that any of the essential prerequisites to the extradition have not been complied with, the prisoner must be discharged.^ If iLascelles «. Georgia, 148 U. S. 537, 545-546. '^Kentucky v. Dennison, 34 How. 66, 107-110; In re Manchester, 5 Cal. 237. »Exp. Reggel, 114 U. S. 642, 652. *Exp. Slauson, 73 Fed. R.666; Work«. Corrington, 34 O.St. 64, 74-75; In re Juhn, 2 Moore Bxtrad. §§ 585, 615. 'Whitten v. Tomlinson, 160 U. S. 231. 'Roberts v. Reilly, 116 U. 8. 80, 95 ; Exp. Hart, 63 Fed. R. 249, 258-359 ; P. ». Brady, 56 N. Y. 182 ; P. ». Donohue, 84 lb. 488. 264 Special Proceedings And Remedies the papers upon which the warrant is founded are not pro- duced, the court can look only to the warrant itself for the evidence, that the essential conditions of its issue have been fulfilled.! The question of flight, involving the fact of the actual pres- ence of the accused within the demanding state at the time of commission of the alleged offense,^ and the question of the identity of the prisoner with the person demanded may be examined.^ The mere question of guilt or innocence can not be examined,* at least, after indictment found. ^ Where it appeared, that the seizure and removal of the prisoner were procured by fraud, he was held entitled to be released on habeas corpus in the demanding state.^ It has also been held generally, that the facts may be fully inquired into on habeas corpus, in order to prevent abuse of the proceeding.'^ A refusal to discharge the prisoner is no bar to other appli- cations by him,^ but his discharge precludes any further con- finement under the same process.' § 432. Arrest And Trial. — An offender may be arrested and held to await a requisition." There is no exemption from trial and punishment because the party was brought from another state by means of unlawful violence or abuse of legal process,'' and trial may be had for a different offense from that for which the person was extradited.'^ 'In re Leary, Fed. Cas. 8,162 ; In re ScrafEord, 59 Hun, 330. =In re Cook, 49 Fed. R. 833 (cases cited). nn re Leary, Fed. Cas. 8,163. ^Roberts ». Reilly, 116 U. S. 8J, 96; P. v. Brady, 56 N. Y. 183, 187; S. e. Schlemm, 4 Harr. (Del.) 577, 579-580; In re Mohr, 73 Ala. 503, 511; Kurtz v. S., 32 Flor. 36, 45. »In re Roberts, 34 Fed. R. 133, 184. «In re Jackson, 36 Fed. R. 359. 'Exp. Slauson, 73 Fed. R. 666. sp. B. Brady, 56 N. Y. 183 (cases cited). "In re White, 45 Fed R. 337. "In re Fetter, 23 N. .1. L. 311. "Lascelles v. Georgia, 148 U. S. 537. i^b. Certiorari 265 CHAPTER XXXV.- CERTIORARI. § 433. Defined. — Certiorari is a writ issuing from a superior court to an inferior court, tribunal or officer, commanding the latter to certify up the record of a case or proceeding for review. § 434. Jurisdiction.— All superior courts of general juris- diction have the inherent power, by means of this writ, to restrain and confine the inferior tribunals and officers within the limits of their special powers.^ The jurisdiction can only be taken away by express enactment;^ and a statute taking away the remedy does not deprive the aggrieved party of the writ, where the proceedings were without jurisdiction.^ § 435. Scope. — Certiorari lies to review the proceedings and determinations of inferior courts and tribunals whose procedure is not according to the course of the common law.* It lies before or after judgment, even though the judgment be void upon its face*; also where there is a remedy by appeal, if the proceedings of the inferior court were without jurisdiction.^ Proceedings without jurisdiction may be quashed on certiorari even after judgment executed.'^ If the right of appeal has been lost without default of the party aggrieved, he is entitled to have the proceedings brought up and reviewed on certiorari.'^ 'Williamson v. Carnan, 1 Gill & Johns. (Md.) 184, 196. n Chitty Cr. L. 376; Lawton e. Commissioners, 3 Caines (N. Y.), 178, 183. 'Jackson i>. P., 9 Mich. Ill, 118-119. *Ewing V. St. Louis, 5 Wall. 413 ; Harris v. Barber, 139 U. S. 366; William- son D. Carnan, 1 Gill & Johns. (Md.) 184, 196-197; S. v. Bill, 18 Ired. (N. C.) L. 373; Jackson «. P., 9 Mich. Ill; C. v. Smith, 11 Mass. 456,465; Stones. Mayor, 25 Wend. 151, 167; Wheeler Co. v. McCarty, 53 N. J. L. 836. 'Coombs !). Dunlap, 19 Wis. 591. ^Harris «. Barber, 139 U S. 866; Weed v. Lewis, 80 Md. 136. 'Williamson s. Carnan, 1 Gill & Johns. (Md.) 184. sCollins V. Nail, 3 Dev. (N. C.) L. 334; Whittington ». Southworth, 36 Mich. 381 ; Chappell v. Jones, 8 Humph. (Tenn.) 107; Cook «. Hoyt, 13 111. 144. 266 Special Proceedings And Remedies The courts will inquire upon this writ, not only into the jur- isdiction of the inferior tribunals, but into the legality of their proceedings,' but. will not review the proceedings for mere irreg- ularity,^ nor inquire into mere disputed questions of fact/ Certiorari also lies, at common law, to remove indictments from an inferior to a superior jurisdiction,'' and the writ is also used as ancillary to habeas corpus? § 436. Diminution Of Record. — If the transcript of the record of a trial court transmitted to an appellate court on writ of error or appeal is incomplete, a writ of certiorari will, on motion, petition or suggestion, issue out of the appellate court, directed to the trial court, requiring it to supply the omission and return a full and correct transcript.* A mere clerical omission in the return of the record (e. ^., omission of proper certificate) should be corrected by with- drawing the record and having the necessary matter appended.^ § 437. Procedure. — The writ should be directed to the proper judge, officer or other person having custody of the record, who must make return thereto under seal.' Its allow- ance makes all subsequent proceedings of the inferior officer or tribunal void,' and, if the inferior tribunal proceeds thereafter, such action is a contempt.'" The removal of a recognizance, however, does not supersede its obligation.'' 'Jackson ». P., 9 Micli. Ill; Milwaukee ». Schubel, 39 Wis. 444; S. «. Common Council, 53 Minn. 238. ^Kane ». 8., 70 Md. 546. 'Williamson ». Carnan, 1 Gill & Johns. (Md.) 184, 196 ; S. ». Bill, 13 Ired (N. C.) L. 873; S. ». Hudson, 82 N. J. L. 365; Parmington ». Commissioners, 112 Mass. 206. *Bac. Abr., Certiorari, A; 1 Chitty Cr. L. 371 ; Exp. Hiltz, 111 U. S. 776; P. V. Ruloff, 3 Park Cr. R. 401, 408. 'Bac. Abr., Habeas Corpus, B, 3; Exp. Lange, 18 Wall. 163 ; S. ». Glenn, 54 Md. 57§, 610. «2 Tidd Pr.'ll09; Morgan v. Curtenius, 18 Hojv. 8; U. S. v. Gomez, 1 Wall. 690; Missouri v. Dinsmore, 108 U. S. 80; Pelletreau «. Jackson, 7 Wend. 478. 'U. S. 11. Gomez, 1 Wall. 690. n Chitty Cr. L. 389. 'lb. 390 ; Patchin s. Mayor, 13 Wend. 664 ; Ewing ®. Thompson, 43 Pa. St. 372. '"Bac. Abr., Certiorari, K. "1 Chitty Cr. L. 391. Certiorari 267 The proceedings upon the return of the writ are largely matters of local practice and regulation. If there was no proper ground for the issue of the writ, it should be quashed and the cause remanded. If the lower tribunal be found to have acted without warrant or authority, its proceedings should be quashed. If the proceedings were merely erroneous, they may be remanded with proper directions. If the case is one in which the superior court has jurisdiction, concurrently with the inferior tribunal or otherwise, to hear and determine, the pro- ceedings are the same in the superior court upon removal as if originating therein. ISTo costs are allowed to the parties at common law, but each party pays his own costs without means to recover from his adversary.^ § 438. Form Of ^Trlt And Return The State of to ■ Esq., one of the Justices of the Peace for County: The Court being willing, that the record and proceedings in a cer- tain case of {naming offense), charged against A. B., determined by (or, depending before) and remaining with you, be certified by you unto it, you are, therefore, commanded, that the record and proceedings aforesaid, with all things touching the same, as fully and perfectly as they remain before you, by whatsoever name the said A. B. is called in the same, you send to this Court, together with this writ, immediately after the receipt of the same, so that the Court may further cause to be done therein what of right and according to law it shall see fit to be done. Witness (insert proper teste). The magistrate returns the writ with the proceedings and papers in the case, properly certified under his seal, and endorses upon the writ a statement substantially as follows : In obedience to the within writ, I certify the record and proceedings in the within writ mentioned, together with all things touching the same, the same consisting of several schedules hereto annexed, marked A, B, etc. Witness my hand and seal, this day of , in the year 18 — [Seal.] § 439. Form Of ^IVrit To Remove Indictment The State of to the Honorable, the Judges of the Court, Greeting : We, being willing, for certain reasons, that all and singular the indict- ments, records and proceedings whereof A B. stands indicted before you be IS. V. Leavitt, 3 N. H. 44; Wheeler v. Roberts, 7 Cow. 536. 268 Special Proceedings And Remedies determined before our (e. g., Supreme) Court and not elsewhere, do command, that you, or one of you, do send under your seals, or the seal of one of you, before our said Supreme Court at , immediately after the receipt of this, our writ, all and singular the said indictments, records and proceedings, with all things touching the same, by whatsoever name the said A. B. is called in the same, together with this writ, that we may further cause to be done therein what of right and according to law we shall see fit to be done. Witness {insert proper teste). § 440. TV'rit And Return In Case Of Diminution.' — The People of the State of New York to our Court of Sessions of the County of Saratoga, Greeting : We, being willing, for certain causes, to be certified as to the exact words and form of the verdict rendered against Daniel O'Leary in your said court, upon an indictment against him, which said indictment and the judgment thereon have been certified to our Supreme Court in answer to the writ of error issued in behalf of said defendant, do command you, that, having searched the record? of said Court of Sessions, the exact words and form of the verdict rendered against said Daniel, and whether that is the only verdict rendered against him in said court you certify to our justices of our Supreme Court of Judicature, without delay, at the Capitol, in the City of Albany, fully and entirely as the same remains on record in your said court, and this writ. Witness (here follows teste). The answer of the Court of Sessions of the County of Saratoga te the within writ of certiorari: Searching the records of said court, we find, under date of June 14th, 1858, the following verdict rendered against the said Daniel O'Leary, viz : "The jury find the prisoner guilty of the crime of assault and battery with intent to kill." That the above are the exact words and form of said verdict and the only verdict rendered against him in our said court. And this we do certify to the justices of the Supreme Court, as we are within commanded. Given under the seal of our said court, etc. 'O'Leary ». P., 4 Park. Cr. R. 187. Other Proceedings And Remedies 269 CHAPTER XXXVI. OTHER PROCEEDINGS AKD REMEDIES. § 441. Habeas Corpus Ad Subjiciendum. — The writ of habeas corpus ad subjiciendum is the universal remedy in all cases of illegal restraint or imprisonment of the person.^ All superior courts of record and the several judges thereof have power to issue this writ to any place within the territory of their respective governments.^ The writ lies in criminal cases for the purpose of admitting to baiP and for the purpose of setting free one detained under a void commitment, or otherwise illegally detained in prison, although the original commitment may have been lawful.* It does not lie to review a judgment which is merely voidable or erroneous,^ nor ordinarily pending a hearing before a magis- trate.* The effect of a discharge, under modern statutes, is to relieve the party from liability to further imprisonment for the same cause.^ A final judgment remanding the party is not a bar to a subsequent application or applications.^ A habeas corpus proceeding is a proceeding " in the nature of an action " within the meaning of statutes as to costs.' The mode of procedure under this writ is almost universally regulated by statutes ; but the authority to issue the writ is an inherent power of the courts, derived from the common law, ^Bac. Abr., Habeas Corpus, A. ^Ib. 'Ante, § 117. *Ante, 1 115. ^Ante, 1 114 ; In re Chapman, 4 Kans. App. 49. 'Robertson v. S., 36 Tex. 346; Exp. McCorkle, 39 Tex. App. 310. 'Exp. Jilz, 64 Misso. 305. "Bradley o. Beetle, 153 Mass. 154 ; Bell v. S., 4 Gill (Md.), 301. »S. V. Newell, 13 Mont. 303. 270 Special Proceedings And Remedies which statutes are held not to diminish,' and which, in some instances, is held to be beyond legislative repeal.^ § 442. Federal Jurisdiction. — The Supreme Court, the Circuit and District Courts, and the several justices and judges of said courts within their respective jurisdictions, have power to issue writs of habeas corpus.^ The writ extends to prisoners in jail, if in custody under or by color of the authority of the United States, or committed for trial before some court thereof; or in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or in custody in violation of the Constitution, or of a law or treaty of the United States; or, being a subject or citizen of a foreign state and domiciled therein, in custody for an act done or omitted under any alleged right, title, authority, privilege, pro- tection or exemption, claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depends upon the law of nations ; or if it is necessary to bring the prisoner into court to testify.* Application must be in writing, stating the facts concerning the detention, signed and sworn to by the person detained.^ The writ issues immediately, directed to the person in whose custody the party is detained,^ and he must make return and produce the body within a period of from three to twenty days, according to circumstances of distance to be traveled.'^ The hearing takes place not exceeding five days after the return, unless the petitioner requests longer time.' The petitioner may traverse the return, or allege material matter, the pleadings ip. 11. Liscomb, 60 N. Y. 559 ; Kirby v. S., 62 Ala. 51 ; Deckard v. S., 38 Md. 186, 203, 205. »P. 1). Mercein, 8 Paige, 47, 55 ; In re Booth, 3 Wis. 1, 52 ; Exp. O'Neill, 8 Md. 327; 8. «. Glenn, 54 lb. 572, 595 ; Cannon ». Stuart, 3 Houst. (Del.) 223. ^U. S. Rev. Stats. ?? 751-752. *Ib. 2753. 'lb. J 754. «Ib. i 755. 'lb. ?? 756-758. sjb. §759. Other Proceedings And Remedies 271 being under oath.' The hearing and determination are sum- mary.^ In cases of imprisonment under state authority involv- ing the law of nations, notice of the proceeding is to be served on the attorney-general or other officer prosecuting the pleas of the state concerned.^ Appeals lie to the Circuit Courts of Appeals or the Supreme Court, according to the nature of the question involved.* In cases of restraints under state authority, Federal courts will not ordinarily exercise jurisdiction in the first instance.^ Jurisdiction is also vested in territorial courts and judges." § 443. Form Of >Vrit. — The State of to the Warden of the County Jail, Greeting : You are hereby commanded to have the body of A. B., detained under your custody, as it is said, together with the day and cause of his taking and detaining, by whatsoever name he be called in the same, before {inserting style of court, or, name and title of judge) immediately after the receipt of this writ, to undergo and receive all and singular such things as the court shall then and there consider of him in that behalf, and have you then there this writ. Witness {inserting proper teste). § 444. Habeas Corpus To Remove Prisoner. — At com- mon law, the writ of habeas corpus ad deliberandum et recipie^iduvi lies to remove a prisoner to the proper jurisdiction for trial.^ Under modern statutes, the removal is accomplished without resort to this writ.^ Removal from one Federal district to another is under a judge's warrant.^ When certain causes'" are removed from state to Federal courts, it is provided," that the defendant may be brought by the marshal upon a writ of habeas corpus cum causd^^ before a Federal court or (in vacation) ^Ib. § 760. ^Ib. ?761. 'lb. ? 763. *Ante, ? 77. 'Whitten «. Tomlinson, 160 D. S. 331. «U. S. Kev. Stats. § 1913. 'IChittyCr.L. 133. «Blake v. Burke, 43 Md. 45. 'U. S. Rev. Stats. § 1014. ^"Ante, 1 78. "U. S. Rev. Stats. §'§ 643-643. "Bac. Abr., Habeas Corpus, A. 272 Special Proceedings And Remedies judge, to be dealt with according to the direction of such court or judge. § 445. Habeas Corpus Ad Testiftcandum. — If a person whose testimony in a cause is desired is in prison, a writ of habeas corpus ad testificandum may be obtained to procure his attendance. Tliis writ may be issued by any court of record of general jurisdiction to procure the attendance of an impris- oned person before the court or an incidental tribunal, such as a grand jury, or before a commissioner of the court. In order to obtain the writ, there should be a petition, supported by affidavit stating, that the party is confined and that he is a material witness.' The form of the writ is as follows : The State of to the Warden of County Jail, Greeting : You are hereby commanded, that you have the body of A. B., detained under your custody, as it is said, by whatsoever name he may be called in the same, before the Court {or, the Grand Inquest of the State of ), at {stating time), to testify in a certain case of against , then and there to be tried {or, in the matter of a certain investigation), and, immedi- ately after the said A. B. shall have given his testimony before the said court {or, grand inquest), to return him to said prison, and have you then there this writ. Witness {inserting proper teste). § 446. Mandamus The writ of mandamus is applicable to criminal as well as civil proceedings. Its use has been very much extended in modern times, and it may now be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are, in duty and by virtue of their office, bound to do. It does not lie to control judicial discretion, except when that discretion has been abused; but it is a remedy, when the case is oiitside of the exercise of this discre- tion, or outside of the jurisdiction of the court or officer to which or to whom the writ is addressed. One of its peculiar and more common uses is, to restrain inferior courts and keep them within their lawful bounds.^ § 447. Prohibition. — The writ of prohibition issues from superior courts to arrest the proceedings of inferior courts, 11 Chitty Cr. L. 610; Arch., 19 ed., 330-321. ^Exp. Bradley, 7 Wall. 864; Virginia ®. Rives, 100 U. S. 313; Exp. Burtis, 103 lb. 388 ; P. ». Swift, 59 Mich. 539 ; Exp. Malone, 30 Ala. 49. Other Proceedings And Remedies 273 tribunals and officers, when such proceedings are without or in excess of their jurisdiction.' It is applicable to criminal as well as to civil proceedings,^ e. g., to restrain an improper coro- ner's inquest,' to restrain an inferior court (without power to do so) from granting a new trial.* It will not operate as to matters that are past." § 448. Injunction. — An injunction will not ordinarily lie to restrain criminal proceedings,^ or to prevent the commission of crime ; but the mere fact, that an act is criminal does not divest the jurisdiction of equity to prevent it by injunction.^ Injunction lies, at the suit of the public or private parties affec- ted, to restrain the commission of a nuisance,^ such as the keeping of a bawdy or disorderly house,^ an indecent exhibi- tion,'" the obstruction of a navigable stream" or a public highway;'^ to restrain the unlawful use of private premises for the purpose of conducting an unlawful performance, such as a prize-fight ;'' to restrain the carrying out of a conspiracy to destroy or injure property or a business." A stockholder or member of a corporation is entitled to have enjoined the carry- ing out of a declared purpose to commit an act which, by reason of its criminality, would operate as a forfeiture of the charter. '° 13 Bl. Comm. 112 ; Smith ». Whitney, 116 U. S. 167 ; Exp. Ray, 45 Ala. 15 (procedure). "S. V. Nathan, 4 Rich. (S. C.) L. 513; S. v. Simons, 3 Speers (S. 0.), 761. sReg. v. Herford, 3 El. & El. 115. *P. ®. Sessions, 2 Caines Gas. 819. »U. S. V. HofEman, 4 Wall. 161. «In re Sawyer, 124 U. S. 200. 'In re Debs, 158 U. S. 564, 593; Carleton v. Rugg, 148 Mass. 550. 82 Story Eq. Jur. §§ 921-924. 'Cranford ». Tyrrell, 128 N. Y. 341 ; Hamilton ». Whitridge, 11 Md. 128. "Hayden «. Tucker, 37 Misso. 314. "Walker ». Shepardson, 2 Wis. 384; Chapman ii. Rochester, 110 N. Y. 373. i=Reiner's App., 100 Pa. St. 182. "Columbian Athletic Club ». 8., 143 Ind. 98. "Davis B. Zimmerman, 91 Hun, 489. "Klein o. Livingston Club, 177 Pa. St. 224. 18 274 Specific Offenses PART IV. SPECIFIC OFFENSKS. CHAPTER XXXVII. ABDUCTION. § 449. Defined. — Abduction means, the taking and carry- ing away of a child, a ward, a wife, etc., by fraud, persuasion or open violence.' § 450. fV hat Acts Punisbable. — Mere seduction, or abduc- tion without the use of force, is not punishable at common law,^ but conspiracy to sediice for immoral or improper purposes is punishable.^ Forcible abduction is not a distinct common- law offense, but is indictable as assault, false imprisonment, kidnapping, etc., according to circumstances. An indictment has been maintained for attempt at forcible abduction.* Federal statutes punish the seduction of female passengers on American vessels.^ § 451. Innocent Acts. — An innocent procuring of a child to leave its home,* or a harboring or sheltering of a wronged or ill-treated wife,^ is not illegal. Even where statutes, in unqual- ified terms, prohibit the " taking away," or the " harboring," 13 Bl. Comm. 139. 2R. •». Marriott, 4 Mod. 144 ; S. v. Sullivan, 85 N. C. 506. 33 Russ. Or., 9 ed., 130-131 ; S. v. Buchanan, 5 Harr. & Johns. (Md.) 317, 350, 351 ; Resp. v. Hevice, 2 Yeates, 114; Mifflin ». C, 5 W. & S. 461 ; Smith v. P., 35 111. 17. -•R. s. rigot, 13 Mod. 516. «U. S. Rev. Stats. ?? 5349-5351. 'Nash V. Douglass, 12 Abb. Pr. R. N. S. 187. 'Winsmore v. Greenbank, Willes, 577,581; Philp v. Squire, Peake Add. Cas. 83; Hutcheson r>. Peck, 5 Johns. 196; Bennet v. Smith, 31 Barb. 439; Olass V. Bennet, 87 Tenn. 478, 493. Abduction 275 of children, it is necessary, in order to constitute guilt there- under, that an act fall within their true meaning and design, apart from their general terms. ^ § 452. statutory Provisions. — The subject of abduction and forcible marriage of women is covered in England by several statutes.^ The seduction of females and the abduction of children from their homes or guardians are the subjects of considerable and diversified legislation in the United States and England. The subject of abduction is considered in the following sections. § 453. Abduction Of Children. — Statutes on this subject generally relate to the unlawful taking of children under a specified age out of the possession and against the will of their parents or other lawful custodians. The tendency of the courts is decidedly in the direction of interpretation giving full scope and effect to the beneficial design of such legislation, according its protection to all who can fairly be brought within the meaning of the language used and inclining strongly against the admission of exceptions sought to be engrafted upon the statutes in favor of offenders falling within the object of their enactment. The somewhat strict rule by which offenders have, at all times, been held accountable in this class of cases is justified by the consideration, that the acts sought to be punished by this species of legislation are ynala in se. § 454. Tlie Taking The "taking," in the absence of express legislative requirement, need not be by force, actual or constructive.' A person at whose instance a child has left its home is deemed to have taken it away ;* but if a girl is merely seduced, or wrongfully used, by one who had no agency in her leaving her home, he cannot be said to have abducted her.^ iReg. V. Tinkler, 1 P. &. F. 513. n Russ. Or., 9 ed., 940-966; Stephen Dig., art. 361. 'Reg. i>. Manktelow, 6 Cox C. C. 143; P. v. Marshall, 59 Cal. 586; P. ». Seeley, 87 Hun, 190 ; S. v. Jamison, 38 Minn. 31. *Reg. V. Olifler, 10 Cox C. C. 403; P. ®. Carrier, 46 Mich. 443, 448. sp. V. Plath, 100 N. Y. 590 ; P. ». Parshall, 6 Park. Cr. R. 139. 276 Specific Offenses The taking need not be to a place distant from the child's home, nor for a considerable length of time.' § 465. The Possession. — A child is considered to be in the "possession" of its parent or guardian, even when absent from home ;^ and when the custody and care are temporarily delegated to a third person, e. g., for the purpose of education, the governance of the child, in other respects, still remains in the parent.^ Presumptively every child is in the legal charge of some one.* § 456. The Custodian. — The word "father" has been held to include the putative father of an illegitimate child.^ The mother, notwithstanding a subsequent marriage, retains the guardianship of her child by a former husband,^ and a child taken out of her possession may be said to be abducted, not- withstanding the assent of her second husband.^ § 457. The Purpose. — The phrase "purposes of prostitu- tion" has been held to mean common, indiscriminate intercourse with men.^ "Concubinage" may be constituted by one illicit act.' § 458. Consent. — Under statutes as ordinarily worded, the consent of the child is immaterial.'" The assent of the custo- dian obtained by fraud is no defense." The request and assent of the mother constitute a defense to a charge of taking the iSlocum «. P., 90 111. 274. n East P. C. 457-468; S. ». Gordon, 46 N. J. L. 432, 436. n Bast P. 0. 457. 4P. V. Carrier, 42 Mich. 442, 446 ; S. ». Buhl, 8 Iowa, 447. 5R. v. Cornforth, 3 Str. 1162. sRatclifEe's Case, 3 Rep. 37. '1 East P. C. 457-458. 'Osborn v. S., 53 Ind. 526; Slocum v. P., 90 111. 274; P. ». Cook, 12 Mete. 93 ; Carpenter v. P., 8 Barb. 603; S. «. Ruhl, 8 Iowa, 447; S. a. Stoyell, 54 Me. 24; S. V. Brow, 66 N. H. 577 ; Haygood o. S., 98 Ala. 61. Contra : P. v. Cummons, 56 Mich. 544. 'S. V. Overstreet, 48 Kans. 399. Oontra : 8. v. Wilson, 131 Misso. 485. '"Reg. V. Biswell, 2 Cox C. C. 279; Reg. e. Kipps, 4 lb. 167; P. «. Seeley, 37 Hun, 190; Tucker ». S., 8 Lea (Tenn.), 633 ; P. o. Cook, 61 Cal. 478. I'R. 0. Hopkins, Car. & M. 354; Reg. o. Bellis, 17 Cox C.C. 660; Beyer «. P. 86;]Sr. Y. 369 ; Lawyer v. Fritcher, 54 Hun, 586. Abduction 277 child from the custody of its father.^ The question of abduc- tion is one of unwarranted interference with the proper care and shelter, not the mere guardianship, of the child. § 459. Igaorance And Mistake. — Ignorance or misappre- hension as to a particular circumstance which constitutes an element of the crime of abduction will not excuse one morally- guilty.^ Upon a charge of abducting a child from the custody of its father, it is immaterial, that the accused did not know that the child had a father living f and a mistake as to the age of the child constitutes no defense.* § 460. Indictment. — The indictment should follow the words of the statute under which framed, giving the name and age of the child, the name and relationship^ of the person, or designation of the place, whence or from whom taken, the statu- tory description of the child* and the manner of, or intent or motive in, taking.' The defendant must be brought within all the material words of the statute. M g., it must be expressly stated, that the child abducted (such being the statutory lan- guage) was a maid or woman child.^ Different acts falling within the statute cannot be charged disjunctively.^ If several intents or purposes in taking are specified in the statute in the disjunctive, the indictment may allege them conjunctively, and is supported by proof of any one.^" § 461. Forms Of Indictments. — 1. Abduction Of Female Child. The Jurors etc. present, that A. B., on etc., at etc., unlawfully did entice and take away one C. D., who was then and there a female under the age of years, from and out of the possession and control and against the will of her father, E. D., for purposes of prostitution, against the form etc. iRobinson v. S., 57 Md. 14; 8. ». Angel, 43 Kans. 316 'Ante, § 24. sp. V . Cook, 61 Gal. 478. *Reg. ». Prince, 13 Cox C. C. 138; S. v. Ruhl, 8 Iowa, 447; P. v. Fowler, 88 Cal. 136. «S. V. Jones, 16 Kans. 608. *P. ». Roderigas, 49 Cal. 9. 'Osborn v. S., 53 Ind. 536. 88. ». O'Bannon, 1 Bailey (S. C), 144. 'lb. >»P. «!. Parshall, 6 Park. Cr. R. 139. 278 Specific Offenses 2. Conspiracy To Seduce. The Jurors etc. present, that A. B. and C. D., on etc., at etc., unlawfully, corruptly and maliciously did conspire, combine, confederate and agree together to persuade, entice and remove one E. F., a female infant under the age of eighteen years, from the care, protection and custody of her father, Gr. P., for the purpose of causing and procuring her, the said E. F., to commit fornication and lead an immoral life, against the peace etc. § 462. Evidence. — Upon an indictment for seducing and debauching, evidence of the appearance and conduct of the parties on the day following the alleged offense is relevant to the question of the use of seducive means.^ The conduct and declarations of the person alleged to have been forcibly abducted are admissible to negative the idea of coercion or distress.^ Upon the charge of enticing a female for prostitution, her declaration, that she went with the accused voluntarily, or the like, is admissible to impeach her testimony tending to prove seduction.^ The previous relations of the parties may be shown, by way of defense to such a charge, as bearing upon the question of intent* — also, to the same purpose, the character and habits of the female.^ iLewisf. P., 37Mich. 518. ^Robinson o. S., 57 Md. 14. ^Phillips B. S., 60 Md. XIV ("Unreported" Cases). *P. «. Carrier, 42 Mich. 73. sBrown v. S., 73 Md. 468; S. C, lb. 477. Abortion 279 CHAPTER XXXVIII. ABORTION. § 463. At Commoii Lia^v. — An abortion that results in the death of the woman/ or of the child, after it has passed from her alive,^ is felonious homicide. Causing the death of an unborn child in the mother's womb has been held to be a com- mon law misdemeanor.^ Some cases hold, that the mere procuring of an abortion is not punishable at common law, but that the woman must be quick with child.* § 464. Under Statutes. — The entire ground is very gener- ally covered by statutes, punishing not only the actual procuring of an abortion, but also the selling or furnishing of drugs or appliances for such purpose. It was formerly held, that in order to constitute the offense of abortion, as defined in the older statutes, the woman should be with child,' or "quick" with child, i. e., that she had felt the child alive and quick within her.^ Modern statutes do not generally require this.^ The woman is not legally in the situation of an accomplice.* Her consent is immaterial to the question of the guilt of the perpetrator.^ The requisite intent, is, in general, sufiiciently n Euss. Or., 9 ed., 740 ; Smith ®. S., 33 Me. 48 ; S. v. Moore, 35 Iowa, 138 ; S. V. Dickinson, 41 Wis. 399; Peoples «. C, 87 Kent. 487; P. v. Sessions, 58 Mich. 594. ■'Post, ? 657. ^Mills V. C, 13 Pa. St. 631 ; S. v. Slagle, 83 N. 0. 653 ; Evans i>. P., 49 N. Y. 86. *S. ®. Cooper, 33 N. J. L. 53; Mitchell ». S., 78 Kent. 304; Abrahams ». Foshee, 3 Iowa, 374 ; Smith e. S., 33 Me. 48. 'R. 1). Scudder, 3 C. & P. 605 ; Evans v. P., 49 N. Y. 86. «R. ■». Phillips, 3 Campb. 73. 'Reg. 0. Goodhall, 3 Cox C. C. 41 ; C. v. Taylor, 133 Mass. 361 ; Smith v. S., 33 Me. 48. 8C. ■». Follansbee, 155 Mass. 374; S. ii. Hyer, 39 N. J. L. 598; P. v. Vedder, 98 N. Y. 630 ; Peoples v. C, 87 Kent. 487. 'Reg. ». Wilson, 7 Cox C. C. 190 ; 0. v. Snow, 116 Mass. 47, 54. 280 Specific Offenses established by showing, that the accused voluntarily did the thin^ prohibited by statute.^ If several act in concert, perform- ing different parts of an abortion, they are jointly liable as principals.^ If the offense is made felony, the usual rules as to accessories apply.^ § 465. Olving Drugs. — The offense of giving a drug for the purpose of procuring an abortion has been held to exist, although it should appear, that the thing given was, in fact, harmless.* Some statutes punish the administration of a " noxious " or " poisonous " thing. In such cases, the proof rests upon the intention with which the substance is administered and the effect produced, there being no legal criterion as to what sub- stances fall within these descriptions.' Giving a drug to a woman who takes it is " administering " it to her.^ Eurnishing a drug with directions to take is " causing it to be used."' There need not be a delivery by hand.* If abortion is caused by drugs sent from one state to another, the offense is said to be committed where the drugs take effect.^ § 466. Indictment, — Indictments for abortion are almost invariably drawn upon statutes. It is generally sufficient to follow substantially the words of the statute.^" Exceptions constituting a part of the description of the offense must be negatived," but not necessarilj'- in the precise words of the iR. V. Coe, 6 C. & P. 403 ; Reg s. Hillman, 9 Cox C. C. 386 ; TJ. S. ■». Bott, Fed. Cas. 14,626; Dougherty v. P., 1 Color. 514. 2Reg. V. Hollis, 12 Cox C. C. 463. 3C. ». Adams, 127 Mass. 15. *R. V. Phillips, 3 Camph. 73; R. o. Coe, 6 C. it P. 408; C. v. Morrison, 16 Gray, 224; 8. v. Fitzgerald, 49 Iowa, 360. sReg. V. Cramp, 14 Cox C. C. 401 ; Dougherty v. P., 1 Color. 514. «Reg. V. Wilson, 7 Cox C. C. 190; Reg. v. Farrow, Dears. & B. 164. 'Jones V. S., 70 Md. 336. 8R. «. Harley, 7 C. & P. 369. «8. V. Morrow, 40 S. C. 231. loEcfchard v. P., 83 N. Y. 463 ; C. v. Thompson, 108 Mass. 461. "8. ». Meek, 70 Misso. 355 ; Bassett ». 8., 41 Ind. 308 ; 8. v. Mclntyre, 19 Minn. 98. Abortion 281 statute.* It is not necessary to name the kind of drug or medicine,^ or kind of instrument,^ used to produce the abortion. § 467. Forms Of Indictments. — 1. Administering Drug. Tie Jurors, etc., present, that A. B., on etc., at etc., unlawfully did adminis- ter to one C. D., who was then and there pregnant with ehild, a certain drug, with intent thereby to procure the miscarriage of her, the said C. D., of the child whereof she was so pregnant, in consequence whereof the life of the said child was then and there destroyed, and it was prematurely born, against the form etc. 2. Using Instrument. The Jurors etc., present, that A. B., on etc., at etc., unlawfully did use a certain instrument, to wit, {naming it), in and upon the body of one C. D., who was then and there pregnant with child, with intent to cause the mis- carriage of the said C. D., against the form etc. 3. Using Means Unknown. The Jurors etc., present, that A. B., on etc., at etc., unlawfully did use upon one 0. D., who was then and there a woman pregnant with child, a certain means, to the Jurors aforesaid unknown, for the purpose of causing a miscarriage and abortion of her, the said C. D., against the form etc. § 468. Evidence. — The fact of abortion may be proved by circumstantial evidence. Among the facts admissible are the appearance, condition and surroundings of the woman previous to her death ;^ the dis- covery of a fcetus secreted about the building where the abortion is said to have taken place f the finding in the defendant's possession of instruments adapted to produce abor- tion -.^ the fact, that the defendant had advertised, that he could be consulted as to procuring abortions;'^ the character and surroundings of the place where the abortion is said to have iBeasley v. P., 89 111. 571, 577; Willey v. 8., 53 Ind. 346. "Dougherty v. P., 1 Color. 514; Watson «. S., 9 Tex. App. 337; C. ». Adams, 137 Mass. 15. ^Baker v. P., 105 111. 453. *0. V. Wood, 11 Gray, 85 ; P. e. Olmstead; 30 Mich. 431. 'S. V. Howard, 33 Vt. 380, 394, 405. «P. V. VeAder, 34 Hun, 380 ; C. o. Blair, 136 Mass. 40 ; P. ■». Sessions, 58 Mich. 594. ■"Weed V. P., 56 ISf. Y. 638 ; P. ®. Sessions, 58 Mich. 594. 282 Specific Offenses been committed;^ the fact, that the drug or thing used is popularly believed to be adapted to producing abortion f prior' or subsequent* attempts of the accused to produce the abortion, but not other independent acts of abortion or attempted abor- tion.° Admissible against the accused are also his declarations f the declarations of an accomplice or co-conspirator ;^ the fact, that he had made false or contradictory statements in regard to the circumstances of the alleged crime.' Upon a charge of abortion resulting in death, the procure- ment of the miscarriage constitutes the corpus delicti.'^ § 469. Testimony And Declarations Of 1¥oman. — While the woman upon whora an abortion was committed is not legally in the position of an accomplice,^" yet her moral implication is a proper consideration in weighing her testi- mony." She is a competent witness against her husband and his accomplices upon a charge of procuring an abortion against her consent.'^ Her declarations, when connected with the main fact of the charge, are admissible as part of the res gestae -^^ also, her statements, in the nature of expressions of bodily and mental feelings, made to her attending physician.,^* Her dying declarations are admissible upon the charge of 'Hays B. S., 40 Md. 633. 'Carter ®. S., 2 Ind. 617. 'C. ». Corkin, 136 Mass. 429. «Lamb «. S., 66 Md. 285. 'Baker ®. P., 105 111. 453. «Lamb «. S., 66 Md. 285, 288. ■Hays 41. S., 40 Md. 633 ; C. v. Brown, 14 Gray, 419, 432. 8Hays ®. S., 40 Md. 633, 651. 'Traylor s. S., 101 Ind. 65. 'Mmie, ? 464. "Watson V. S., 9 Tex. App. 237; C. «. Wood, 11 Gray, 85; P. «. Vedder, 84 Hun, 280. i^S. ®. Dyer, 59 Me. 303 ; S. «. Briggs, 9 R. I. 361 ; C. «. Reid, 8 Phila. 385. "S. «. Dickinson, 41 Wis. 297. "Hays B. 8., 40 Md. 633 ; G. «. Leach, 155 Mass. 99. Abortion 283 homicide resulting from abortion/ but not upon the charge of abortion resulting in death.^ § 470. Expert Testimony. — Expert testimony should be confined to scientific questions.^ Physicians who have held a -post mortem examination may state their opinion, that death probably resulted from an abortion.* The parts of the body of the alleged victim may be exhibited in connection vsdth expert testimony.^ IS. B. Dickinson, 41 Wis. ^99; Montgomery e. S., 80 Ind. 338; Peoples v. C, 87 Kent. 487. ''Railing «. C, 110 Pa. St. 100 (cases cited). »P. V. Sessions, 58 Mich. 594. Of. C. v. Leach, 156 Mass. 99. *P. e. Sessions, 58 Mich. 594. '0. ». Brown, 14 Gray, 415, 431. 284 Specific Offenses CHAPTER XXXIX. ADULTERY AWD FORNICATION. § 471. Adultery. — Adultery is illicit sexual intercourse by a married person with one not the husband or wife.^ Some cases hold, that adultery can be committed only with a married woman,^ and some, that if one of the parties is a married woman, the other, though a single man, is also guilty of adultery.^ § 472. Fornication. — Fornication is illicit sexual inter- course with one not the husband or wife, and, in its general sense, is included in adultery.* An unmarried person having illicit sexual intercourse, whether the other party is married or not, is guilty of fornication.' § 473. 'Wliat Acts Punishable. — Fornication^ and adul- tery^ are not common-law oiFenses, but are generally made punishable, by statute. There is a conflict of ruling as to whether solicitation to commit the (statutory) offense of adul- tery is punishable,' and conspiracy to commit adultery has been held not to be punishable.' 'C. V. Call, 31 Pick. 509 ; Hunter o. U. S., 1 Pinney (Wis.), 91 ; S. o. Fellows, 50 Wis. 65 ; S. ». Hinton, 6 Ala. 864 ; S. v. Hutchinson, 36 Me. 361 ; Miner v. P., 58 111. 59 ; Helfrich o. C, 35 Pa. St. 68. ^8. V. Weatherby, 43 Me. 358 ; Hood ». S., 56 Ind. 363 (cases cited). ^S. V. Wallace, 9 N. H. 515 ; B. ®. Pearce, 3 Blackf. (Ind.) 318. *Dinkey v. C. 17 Pa. St. 136; S. v. Hinton, 6 Ala. 864. «Resp. «. Roberts, 3 Dall. 134; S. 0., 1 Yeates, 6. ePollard v. Lyon, 91 U. S. 335 ; Stanfield ». Boyer, 6 Harr. & Jolins. (Md.) 348. '4 Bl. Comm. 65; S. v. Branson, 3 Bailey (S. C.),.149; Anderson v. C, 5 Band. (Va.) 637; Shafer v. Ahalt, 48 Md. 171; Carotti o. S., 43 Miss. 384, 346. 8Reg. V. Pierson, 1 Salk. 383 ; S. «. Butler, 8 Wash. 194 (cases cited) ; S. o. Avery, 7 Conn. 367. 'Shannon o. C, 14 Pa. St. 336 ; Miles a. S., 58 Ala. 390. Adultery And Fornication 285 § 474. Intercourse Accomplished By Force. — The offenses of adultery and fornication may exist, even though the illicit intercourse is accomplished by force.^ The act may be adultery or fornication in the man without reference to the guilt of the woman, and not less so, because it is also rape.^ § 475. Effect Of Apparent Marriage. — The fact, that the parties between whom the illicit intercourse takes place have been married constitutes no defense, if there is such an imper- fection in the marriage as to render it void,^ but the innocent party to such marriage can not be held liable.* The fact of marriage constitutes a good defense under circumstances where it would be such to the charge of bigamy.' Cohabitation under an honest but mistaken belief of lawful marriage does not fall under the designation of " lewd and lascivious."^ § 476. Indictment. — An indictment for adultery must aver, that the parties were not husband and wife.^ There must be a distinct allegation, that one of the parties is married, and that to some other person than the particeps criminis,^ but the name of such third person need not be alleged.' "Did commit adultery" is a sufficient description of the criminal act.'" In indictments for fornication it is, in general, sufficient to charge the offense in the same manner as upon indictments for adultery, using the word fornication in the place of adultery and omitting the allegation as to marriage of one of the parties. 'S. ■». Sanders, 30 Iowa, 582 ; S. v. Donovan, 61 lb. 278. ^C. V. Bakemau, 131 Mass. 577; S. v. Sumner, 98 N. C. 702. 3S. V. Fore, 1 Ired. (N. C.) L. 378; S. «. Kennedy, 76 N. C. 251; Terr. «. Corbett, 3 Mont. 500; Hoover v. S., 59 Ala. 57; S. o. Whitcomb, 52 Iowa, 85. ^Vaughn v. S., 83 Ala. 55 ; Banks v. 8., 96 lb. 78. «0. V. Thompson, 6 Allen, 591 ; S. C, 11 lb. 23. 60. V. Munson, 137 Mass. 459 ; Schoudel v. 8., 57 N. J. L. 209. 'Moore v. C, 6 Mete. 343; C. f. Reardon, 6 Gush. 78; Tucker o. 8., 35 Tex. 113. "Clay V. S., 3 Tex. App. 499 (cases cited). »C. V. Tompson, 2 Gush. 551. "Helfrich «. 0., 33 Pa. St. 68. 286 Specific Offenses § 477. Forms Of Indictments. — 1. The Jurors etc. present, that A. B., on etc., at etc., being then and there a married man, did commit adultery, by then and there having carnal knowl- edge of a woman who was not his wife, to wit, one C. D., against the form etc. 2. The Jurors etc. present, that A. B., on etc., at etc., did commit adultery with one C. D., who was then and there the lawful wife of one E. D., against the form etc. 3. The Jurors etc. present, that A. B. and C. D., being then and there single and unmarried persons, on etc., at etc., did commit fornication together, against the form etc. § 478. Evidence. — Upon prosecutions for adultery, the allegation of marriage must be established by strict proof of an actual marriage.^ A party's admission of marriage may be given in evidence against him,^ but not the declaration of a particeps criminis.^ The fact of illicit intercourse may be, and generally is, proven by circumstantial evidence.* Evidence of other acts of illicit intercourse between the parties, either prior or sub- sequent to the time of the alleged ojffense, is admissible.' § 479. Procedure. — The parties may be indicted sepa- rately or jointly,^ and upon a joint indictment one alone may be convicted.' Upon an indictment for any offense below felony which includes illicit connection (adultery, bastardy, seduction), there may be a conviction of simple fornication.^ 13 Greenl. Ev. § 49 ; Miner v. P., 58 111. 59 ; Buchanan 0. S., 55 Ala. 154. 23 Greenl. Ev. ?49; Cameron 0. S., 14 Ala. 546; S. 0. Medbury, 8 R. 1.543. 33 Greenl. Ev. ? 46 ; Lawson v. S., 20 Ala. 65 ; C. i>. Thompson, 99 Mass. 444. *2 Greenl. Ev. ? ? 40-41 ; Lawson v. S., 30 Ala. 65 ; C. e. Hussey, 157 Mass. 415. «S. V. Kemp, 87 N. C. 538 ; S. v. Pippin, 88 lb. 646 ; S. v. Potter, 53 Vt. 83 ; Stewart v. S., 64 Miss. 626 ; C. ®. Nichols, 114 Mass. 385 ; S. «. "Witham, 72 Me. 531. «C. ■». Elwell, 3 Mete. 190. '0. V. Bakeman, 131 Mass. 577. »Dinkey s. C, 17 Pa. St. 126; C. ■». Parker, 146 lb. 348. Affray 287 CHAPTER XL. AFFRAY. § 480. Defined An affray is the fighting of two or more persons, in some public place, to the terror of the people.' § 481. The Fighting- The fighting must be by resort to actual blows.^ It is not necessary, that it should be by consent,' or that both parties should be at fault : one alone may be con- victed.* It has been held, that if one person, by such abusive language towards another as is calculated and designed to bring on a fight, induces the other to strike him, he is guilty of affray, though he may be unable to return the blow.* The mere abetting or assisting in an affray makes one guilty as principal.* § 482. The Place The fighting must be in some public place,^ i. e., a place where the public may go at will, without invitation.* A legal highway, if sufficiently excluded, is not necessarily a public place.' An enclosed lot, so near the street as to make the fighting visible from it, was held to be a public place.'" § 483. The Terror The terror need not actually exist among the people, but is assumed from the fighting." § 484. Relation To Assault. — An affray necessarily involves an assault and battery, the publicity attached to the fighting H Bl. Comm. 145. ^Simpson v. S., 5 Yerg. (Tenn.) 356; O'Neil v. S., 16 Ala. 85. sQash V. S., 3 Overton (Tenn.), 198 ; Pollock «. S., 33 Tex. App. 39. *McClellan «. S., 53 Ala. 640. Contra : Hawkins v. S., 13 Ga. 333. 'S. V. Fanning, 94 N. C. 940. ^Hawkins v. S., 13 Ga. 333. H Bl. Comm. 145 ; Reg. v. Hunt, 8 Cox C. C. 177. 'Taylor i). S., 33 Ala. 15. 'S. ». Weekley, 29 Ind. 806. "Carwile v. S., 85 Ala. 393. I'S. V. Sumner, 5 Strobli. (S. 0.) 53. 288 Specific Offenses being the criterion by which the offenses are distinguished.' There may be a conviction of assault upon an indictment for afiray, provided the assault is alleged with sufficient certainty.^ § 485. Analogous Oflfenses. — The following acts have been held to be misdemeanors at common law : To go about armed with dangerous and unusual weapons, so as to cause terror to the people f to send provoking challenges, or disperse provoking letters, tending to bring on a challenge.^ § 486. Indictment. — The indictment must allege, that two or more persons named, in a public place,' which need not be otherwise described than in these words,^ did make an affray by fighting,'' to the terror of the people. § 487. Form Of Indictment. — The Jurors etc. present, that A. B. and C. D., on etc., at etc., in a certain public place, there situate, did make an affray, by then and there fighting together, to the terror of the people there being, against the peace etc. 'Thompson v. S., 70 Ala. 26. "&. ffl. Stanley, 4 Jones, (N. C.) L. 290 ; 8. ■». Brewer, 33 Ark. 176. 34 Bl. Comm. 149; 1 Russ. Cr., 9 ed., 407 ; Knight's Case, 3 Mod. 117; S. s. Huntley, 3 Ired. (N. C.) L. 418; S. ». Lanier, 71 N. C. 288. *1 Hawk., ch. 63, §3; Barrow o. Lewellin, Hob. 62 ; Darcy v. Markham, lb. 120; Hicks' Case, lb. 215; R. «. Phillips, 6 E. 464; R. v. Williams, 2 Campb. 506; U. S. B. Ravara, 2 Dall. 272; Smith v. S.,6 Gill (Md.), 425. «S. V. Hefflin, 8 Humph. (Tenn.) 84; S. ». Woody, 2 Jones (N. C.) L.335. "Wilson «. 8., 3 Heisk. (Tenn.) 278. 'S. •». Priddy, 4 Humph. (Tenn.) 439. Arson 289 CHAPTER XLI. ARSOK § 488. Deftiied. — Arson is the wilful and malicious burn- ing of the house of another.' § 489. The Burning. — There must be^ an actual burning of the house or some part of it, though it is not necessary, that any part be wholly consumed, or that the fire have any contin- uance.' It is a sufficient burning, if the substance and fibre of the wood be destroyed to the smallest extent,"* but not, if it be only scorched.' There need not be a visible flame." If the fire go out of itself, or be extinguished, the offense is still complete. '^ § 490. Tlie House. — The term house, in the foregoing definition, includes not only dwelling-house, but also all out- houses that are parcel thereof, though not adjoining thereto nor under tjie same roof.* If an outhouse be within the same curtilage, or cluster of buildings, as the mansion-house, it is to be taken as part thereof;' otherwise, if it is wholly uncon- nected with the dwelling.'" Burning a barn, though not within the curtilage of a dwell- ing, is said to be arson, if there be any corn or hay in it." '4 Bl. Comin. 219. ^2 Russ. Or., 9 ed., 1024. ^P. V. Butler, 16 Johns. 203; 0. v. Van Schaack, 16 Mass. 105; C. v. Tucker, 110 lb. 403. «P. ». Simpson, 50 Cal. 304. ^Woolsey v. S., 30 Tex. App. 346. «P. V. Cotteral, 18 Johns. 115. ■"P. V. Haggerty, 46 Cal. 354. 83 Russ. Cr., 9 ed., 1038; Gibson i). S., 54 Md. 447. 'C. V. Barney, 10 Cush. 480; Pond v. S., 8 Mich. 150, 181 ; S. v. Shaw, 31 Me. 523 ; Washington v. S., 83 Ala. 31. "R. V. Haughton, 5 C. & P. 555 ; P. ». Stewart, 6 Conn. 47 ; Curkendall v. P., 36 Mich. 309. "4 Bl. Comm. 331 ; Sampson v. C, 5 W. & S. 385 ; S. ®. Porter, 90 N. 0. 719. •290 Specific Offenses Bnrniug of the following structures has been held not to be arson: a stack of hay or the frame of a house;' a building not finished for use, nor occupied as a dwelling-house;^ the remains of a house, uninhabited and untenantable f a shed or cabin for workmen to take their meals and dry their clothes in ;* a jail.'' § 491. The Ownership The burning must be of the house of another :" but setting fire to one's own house, in a town, or so near to others as to create danger to them is a mis- demeanor.' Any rightful possession is sufficient to show the necessary ownership of another.^ A wife does not incur the guilt of arson, if she sets fire to her husband's house,' nor a husband, if he sets fire to his wife's house which they both occupy,'" nor a servant or agent, if he sets fire to the house by the procurement of the owner." § 492. Intent The act must be done wilfully and malici- ously; but actual malice or intent to burn the particular house is not necessary. It is sufficient, that the party designed to do an unlawful act of which the burning was the probable and natural consequence; but guilt does not attach, if the burning is the result of mere negligence or mischance.'^ If one intend to burn the house of A only and, in burning the house of A, the house of B also is burned ; or, the house of A escapes, and the house of B is burned : in either ease, the party is guilty of '1 Hawk., ch. 39, § 3 ; Creed v. P., 81 111. 565, 571. '■'Keg. V. Edgell, 11 Cox C. C. 133; S. v. McGowan, 3 Conn. 345. -■'Reg. ». Labadie, 33 U. C. Q. B. 439. *3 Russ. Cr., 9 ed., 1036. 'Reg. V. Conner, 3 Cox C. C. 65. «3 Russ. Cr., 9 ed., 1037 ; S. ». Hannett, 54 Vt 83 ; S. ». Keena, 63 Couu. 339. '3 East. P. C. 1037-1031 ; 3 Greenl. Ev. ? 53. «3East P. C. 1033-1037; 3 Greenl. Ev. ,§54; S. ». Keena, 63 Conn. 339; P. ■V. Van Blarcum, 3 .Johns. 105; Adams v. S., 63 Ala. 177; S. v. Taylor, 45 Me. 333. «3 Russ. Cr.,9ed., 1037. '"Snyder v. P., 36 Mich. 106. "S. ». Haynes, 66 Me. 307; C. v. Makely, 131 Mass. 431 ; Heard v. S., 81 Ala. 55. "4 Bl. Comm. 335 ; Reg, v. Faulkner, 13 Cox C. C. 500. Arson 291 burning the house of B.' So, if one intentionally sets fire to a building or a hay-stack, and an adjoining house is burned, he is guilty of burning the house.^ But, if a prisoner burns a small hole through the door of a jail, merely for the purpose of effecting his escape, the intent to burn the building can not be imputed to him.' § 493. Attempt. — An attempt to commit arson is a misde- meanor. One who procures another to commit such attempt is liable as principal.* A series of acts may be treated as one attempt.'* Mere preparation or planning does not constitute this offense.^ § 494. Analogous Statutory OtTenses. — Statutes obtain in England and throughout the United States, greatly enlarging the common law, making it punishable to burn or set fire to any class of buildings or edifices, whether belonging to another person or to the accused — also to straw, hay, grain, tobacco, provisions and the like. Federal statutes punish arson and burning of buildings'" and other property^ under the jurisdiction of the United States and the setting fire to, burning or destruction of vessels of war.^ In the construction of such statutes, the analogies of the common law are followed, the same technical meaning being ordinarily attached to their words as in the law of arson. ^" § 495. Indictment. — The act must be charged to have been done wilfully and maliciously as well as feloniously." The '3 Russ. Cr., 9 ed., 1035. •■'lb. 1036; Hennessey ». P., 31 How. Pr. 339. 'Jenkins a. S., 53 Ga. 33 (cases cited). Contra: Smith v. P., 33 Tex. App. 357 (cases cited). *Ante, § 30 ; S. v. Hayes, 78 Misso. 307. 'S. V. Hayes, 78 Misso. 307. «Reg. ». Taylor, 1 F. & P. 511. 'U. S. Rev. Stats. ? 5385. 'lb. § 5386. »Ib. ? 5387. "An illustration of liberal interpretation is afforded by Reg. v. Pardoe, 17 Cox C. C. 715 : setting fire to a building, "a person being therein" — held, that "a person therein" may be the accused. "Kellenbeck v. S., 10 Md. 431. 292 Spkcific Offenses structure may be described simply as a "house."' The house must be averred to be that of a person (named) other than the accused.^ The words "there situate," in addition to the ordi- nary allegation of place, are unnecessary.' The burning is sufficiently described by the words "did set fire to and burn,"* but not by the words "did set fire to."^ § 496. Forms Of Indictments. — 1. Arson. The Jurors etc. present, that A. B., on etc., at etc., feloniously, wilfully and maliciously did set fire to and burn a certain house of one 0. D , against the peace etc. . 2. Burning Own House To Bum Neighbor's. The Jurors etc. present, that A. B., on etc., at etc., unlawfully did set fire to and burn a certain house of him, the said A. B., contiguous and near to the house of one C. D., there situate, with the intent, then and there feloniously, wilfully and maliciously to set fire to and burn the said house of the said C. D., against the peace etc. 3. Solicitation. The .Jurors etc. present, that A. B., on etc., at etc., unlawfully did incite and solicit one C. D. feloniously, wilfully and maliciously to set fire to and burn the house of one E. F., there situate, against the peace etc. § 497. Evidence — The corpus delicti consists in the burn- ing of the house, and, if that is established, the agency and intent of the accused may be proven by admissions,'' or by circumstantial evidence,' e. 5^. , previous^ or subsequent' attempts of the accused to set fire to the same building, the existence of a combination or conspiracy, participated in by the accused, to rob and burn houses;'" the commission of other crimes by the accused, so connected with the alleged arson as to render IS 0. Sutcliffe, 4 Strobh. (S. 0.) L, 372, 376; C. v. Posey, 4 Call (Va.), 109. ^S. v. Keena, 63 Conn. 339; P. i>. De Winton, 113 Cal. 403. 3C. e. Lamb, 1 Gray, 493. *3 Greenl. Ev. ?51. =S. V. Hall, 98 N. C. 571. «Sam V. S., 33 Miss. 347. 'Carlton b. P., 150 111. 181 (footprints near burnt place). 8C. V. Bradford, 136 Mass. 43. 'Kramer «. P., 87 Pa. St. 399. '"Hall V. S., 3 Lea (Tenn.), 553. Arson 293 it probable, that the perpetrator of them perpetrated the arson/ The evidence of ownership^ and ae to the premises burnt' must correspond with the averments thereof. 'Jones V. S., 63 Ga. 395 ; S. ». Miller, 47 Wis. 530. 23 Greenl. Ev. ? 57; P. v. Slater, 5 Hill, 401 ; C. v. Wade, 17 Pick. 395 ; S. «. Lyon, 13 Conn. 487 ; Avant ». 8., 71 Miss. 78. ^0. V. Hayden, 150 Mass. 333 ; Carlton v. P., 150 111. 181. 294 Specific Offenses CHAPTER XLII. ASSAULT AND BATTERY. § 498. IVature And Relation Of Offenses. — An assault is an attempt, by force, to injure the person of another, and a battery is committed, whenever the menaced violence of assault is done, in the least degree, to the person. An assault is included in every battery; hence, the two terms are usually combined in the term assault and battery. § 499. Assault. — Any attempt unlawfully to apply the least actual force to the person of another constitutes an assault. The attempt is made, whenever there is any action or conduct tending to create the apprehension in another, that the person engaged therein is about to apply such force to him. It is. sufficient, that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.' Merely rude, angry or insolent words or actions do not constitute an assault,'' but words may give to actions such a meaning as to make them amount to assault. The force is manifested, if by the display thereof one is coerced into acting or omitting to act in accordance with his own desire or inclination.' [Illustrations : — A rushes, or aims a blow, at B in such manner and proximity as to cause B to apprehend a hurt, if he does not get out of A's way. A is guilty of assaulting B, although he may in fact not be near enough to B to reach him.* A presents a pistol at B, within apparent shooting range, and threatens to shoot B, if the latter does not leave a place where he rightfully is. A has assaulted B.'] ^O.v. White, 110 Mass. 407. n Russ. Cr., 9 ed., 1019 ; U. S. v. Hand, Fed. Cas. 15,397 ; C. e. Eyre, 1 S. & R. 347; S. II. Mooney, Phill. (N. C.) L. 434; S. ». Crow, 1 Ired. (N. C.) L. 375. 3S. o. Home, 92 N. C. 805 ; S. v. Triplett, 52 Kans. 678 ; Balkum v. S., 40 Ala. 671. ■•S. V. Davis, 1 Ired. (N. C.) L. 125 ; S. v. Rawles, 65 N. C. 384. 'S. e. Church, 68 N. C. 15. Assault And Battery 295 § 500. Battery. — The least actual force unlawfully applied to the person of another constitutes a battery. The force is "appliedj" when there is any touching of the person, either liy the aggressor, or by any person or thing set in motion by him.' Any touching of the person in an angry, revengeful, rude or insolent manner is "unlawful."^ Taking indecent liberties with an ignorant child,'' or with a Avoman under a fraudulent pretext,* is assault and battury. § 501. The Force. — In order to constitute an assault or battery, there must be a menace or an actual exertion of physi- cal force; but the kind or degree of such force is immaterial, and it may be applied directly or indirectly. The oiFense may be committed by any such acts as the following : Striking a horse upon which a person is riding, so as to make it run away; or encouraging a dog to bite another jiei-son ; or driving against a carriage, so as to injure one seated in it;'^ inflicting injury on the clothes on one's back;^ causing one, without his knowledge, to swallow a drug by which he is injured f exposing a young child or other helpless or dependent person to the physical elements (at least, if injury results).* § 502. Analogous Offenses. — Certain acts of wilful injury to the person, not amounting to assault, are yet punishable as misdemeanors. Such are the following : Unnecessarily discharging a firearm near a person who is seriously affected (thrown into convulsions) by such discharge, the person doing the act having knowledge, or good reason to believe, that such consequence would result;^ putting a noxious n Russ. Ci-., 9 ed., 1031. ^Bac. Abr., Assault and Battery, B ; 3 Bl. Comm. 120; U. S. ®. Ortega, Fed. Cas. 15,971 ; S. ». Baker, 65 N. C. 333 ; Richmond v. Fisk, 160 Mass. 34. H Russ. Cr., 9 ed., 1022-1033; Reg. v. Locke, 13 Cox C. C. 244; Clive v. S., 54 N. J. L. 46. 'i. Russ. Cr., 9 ed., 1033; Reg. v. Case, 4 Cox C. C. 330. Cf. P. r Bransby, 32 N. Y. 525. n Russ. Or., 9 ed., 1031 ; P. ». Moore, 50 Hun, 356. n Russ. Cr., 9 ed., 1031. 'C. V. Stratton, 114 Mass. 303. 81 Russ. Cr., 9ed., 1033. 'C. ». Wing, 9 Pick. 1. 296 Specific Offenses substance (cow-itch) upon a toilet article (towel) used by another person.' § 503. Intent. — It is not necessary, that there should be a specific purpose to injure a particular person or to do a particu- lar injury. G-eneral malevolence or recklessness is sufficient; but mere negligence does not suflice to constitute the guilty intent. [Illustrations. — A fires a pistol in the direction of B, in order to frighten him. A is guilty of assault.^ A recklessly fires a pistol at B, not knowing, whether it is loaded or not, and B is thus shot. A is guilty of assault and battery.' A wantonly fires a pistol in a crowded place and unintention- ally shoots B. A is guilty of assault and battery.^ A shoots, intending to hit B, and hits C. A is guilty of assault and battery upon C.^ A, while going at a rate of speed prohibited by law, drives a carriage over B. A is not, merely because he was acting unlaw- fully, guilty of assault and battery.^'] § 504. Justification And Excuse. — Under various circum- stances, the matters hereinafter considered, under the titles consent, reasonable necessity, defense of person or property and chastisement may be set up as defenses to charges of assault or battery. In such cases, an assault or battery is not said to be justified or excused, but, by reason of exceptional circumstances of justification or excuse, a particular act of assailing or beat- ing is not assault or battery.' § 505. Consent. — No one can authorize the infliction of an injury to his person :' a license to beat is void.' The onl\- caf^os >P. V. Blake, 1 Wheeler Cr. Cas. 490. 'S. ®. Ti-iplett, 52 Kans. 678. 3C. V. McLaugblin, 5 Allen, 507. 'Smiths. C, 100 Pa. St. 324; S. v. Myers, 19 Iowa, 517; S. v. Sloauaker, 1 Houst. (Del.) Or. 62. 'Cowley 0. S.,10 Lea. (Tenn.), 383. «C. V. Adams, 114 Mass. 333. 'P. ■». Lynch, 101 Cal. 339. 8Co. Litt. 137 a; Reg. ». Bradshaw, 14 Cox C. C. 83. 9Reg. «. Coney, 15 Cox C. C. 46, 57; C. v. Collberg, 119 Mass. 350. Assault And Battery 297 in which consent operates as a defense is, where the fact, that an act is done against the will or wish of a person affected is an element of the crime ;^ but in such cases, in order to render the defense available, there must be capacity to consent, and such consent is to be distinguished from mere submission or assent.^ Thus, it is a good defense to a charge of rape, or assault by having sexual commerce, that the woman consented to the commerce ; but if a woman who has thus consented is treated in a rude and brutal manner, the party is guilty of assault.^ So one who communicates a foul disease to a woman who submits to him in ignorance of its existence in him is guilty of assault, if he was aware of his condition.^ § 506. Reasonable Bfecessity. — One person may lawfully hold another, in order to restrain him from doing mischief. '' A disturber of a funeral ceremony,^ or one behaving irreverently in a place of public worship,^ may be removed by any one present. If one intend doing a right act, such as to assist or restrain a drunken man, and hurt ensue, he will not be answer- able.* It is lawful to confine or restrain insane persons, when there is danger of their doing harm.^ § 507. Defense Of Person, — It is justifiable to beat, strike or wound another in defense and safeguard of one's own person from killing, wounding or beating ; but no greater violence may be used than is necessary to protect and defend one's self.'" If danger of personal violence be imminent, a person may protect himself by striking the first blow and 'Ante, i 35. nh. 'Richie v. S., 58 Ind. 355. *Reg. V. Sinclair, 13 Cox C. C. 28. . Contra: Reg. ■». Clarence, 16 lb. 511. 'Bac. Abr.. Assault and Battery, C. «Glever ®. Hynde, 1 Mod. 168. 'Hall V. Planner, 1 Lev. 196. sBuU N. P. 16. 'Colby V. Jackson, 13 N. H. 536 ; Keleher ii. Putnam, 60 lb. 30 ; Lott v. Sweet, 33 Mich. 308 ; Paetz v. Dain, 1 Wilson (Ind.), 148. "1 Russ. Cr., 9 ed., 1037; Beard v. U. S., 157 U. S. 675; S. «. Gibson, 10 Ired. (N. C.) L. 314. 298 Specific Offenses disabling his assailant.' One acting in self-defense is justified in acting upon the facts as they appear to him.^ A third party interposing is legally in the attitude of self-defense in defend- ing one not in fault.^ § 508. Oefense Of Property. — A person may defend his habitation against an attack with murderous force, but not against a mere trespass, and is not justified in proceeding to extremity in any case.* One whose chattel is wrongfully taken by another may retake it from him, using no more than reason- able force and not proceeding to the extremity of wounding or using a dangerous weapon.-' A claimant to real estate may not resort to force or means involving a breach of the peace, in order to possess himself thereof." A third party may assist another in the lawful defense of his habitation.^ § 609. Chastisement. — A parent of a minor child, or one standing in loco parentis to it, such as a schoolmaster, or a guar- dian (of the person), is legally justified in inflicting a beating upon such minor child, provided the beating be inflicted strictly for the purpose of correction,* in a moderate and reasonable manner.^ This applies only to a child capable of appreciating correction.'" A wanton, cruel, unreasonable or excessive pun- ishment constitutes an assault and battery, or, if death ensue, murder or manslaughter, according to circumstances." Whether the chastisement is reasonable and proper is a question of fact '1 Russ. Cr., \i ed., 1027. ^Barr d. S., 45 Neb. 459. n East P. C. 289-392; In re Neagle, 135 U. S. 1, 53, 80; Stanley v. C, 86 Kent. 440; Campbell v. C.,'88 lb. 403. n Hawk., oh. 28, §33; Beard -c. U. S., 158 U. B. 550; S. v. Dooley, 121 Misso. 591 ; C. i>. Drew, 4 Mass. 391, 396. 'C V. Donahue, 148 Mass. 529; Storey ». S., 71 Ala. 330 'Denver Railway ii. Harris, 133 U. S. 597. n East P. C. 289 ; Curtis v. Hubbard, 4 Hill, 437 ; Stoueman v. C, 35 Gratt. (Va.) 887. 'Reg. V. Hopley, 2 F. & P. 202 ; Neal v. S., 54 Ga. 281 ; S. v. Dickerson, 98 N. C. 708 ; S. v. Mizner, 50 Iowa, 145, 149 ; Anderson ®. S., 3 Head (Teiiu.), 455. n Hale, 474; Fost. 263; Reg. v. Hopley, 2 P. & F. 202. '"Reg. ». Griffln, 11 Cox C. C. 403. "1 Hawk., ch. 29, §5; Powell v. S., 67 Miss. 119. Assault And Battery 299 for the jury under the circumstances of each particular case."^ In cases of corporal punishment of pupils by their teachers, courts should hold to strict accountability.^ § 510. Aggravated Assaults. — Assaults with intent to murder, rob, rape, or do grievous bodily harm are generally made punishable by statutes with severer penalties than com- mon assaults. The grade of assaults with intent to commit a felony is misdemeanor.^ The statutory intent is an essential ingredient of these offenses,' but is established by inference from circumstances. A person who commits an assault is deemed to intend the commission of a crime which is the natural and probable consequence of his act." Thus, assault made under such circumstances, that if death had ensued, the perpetrator would have been guilty of murder, is assault with intent to murder f if made under such circumstances, that, in the event of ensuing death, the offense would have been man- slaughter, it is assault with intent to kill.' § 511. Federal Statutes. — Penalties are imposed by Fed- eral statutes in the following cases : Assaulting, striking, wounding, imprisoning, or, in any other manner, offering violence to a public minister, in violation of the law of nations — punishable by imprisonment, not exceeding three years, and fine, at the discretion of the court.* Assault, with a dangerous weapon, or with intent to perpe- trate a felony, upon the high seas, or in any water within the admiralty jurisdiction of the United States and out of the juris- diction of any particular state, on board any vessel belonging in whole or part to the United States, or any citizen thereof — ^C. V. Randall, 5 Gray, 36 ; Sheehan ». Sturgess,53Coiin.481, 484; Weggener 0. P., 36 111. App. 164; Hlnkle v. S., 137 Ind. 490; Patterson «. Nutter, 78 Me. 509. 'Cooper V McJunkin, 4 Ind 390. 'S. «. Dent, 3 Gill & Johns. (Md ) 8, 13 ; Hollohan ». 8 , 38 Md. 399 ; Stout V. C, 11 S. & R. 177. 308 Specific Offenses § 524. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., did commit fornication with one C. D. and a male bastard child on the body of her, the said 0. D., then and there did beget, of which said bastard child the said C. D. was afterwards, to wit, on etc., at etc., delivered, and which said bastard child was then and there born alive and is still living, to wit, at County aforesaid and (inserting special facts requisite under particular statute), against the form etc. Bawdy House 309 CHAPTER XLVI. BAWDY liOUSE. § 525. The Offense. — The keeping of a bawdy house is punishable as a nuisance.^ The offense consists of keeping a place of any description for licentious commerce between the sexes. ^ "House," in this connection, virtually means place : it may be a room,^ a boat,* a tent,^ a place of business.^ Inde- cency or disorderly conduct need not be visible from without.^ However peaceably or quietly the place may be kept, if it is for prostitution, guilt attaches.^ The place need not be kept for lucre or gain.' § 526. Lrlability To PuiiisUment. — Corporations are liable to punishment for this offense.^" A married woman may be indicted therefor, either separately, or (if he partici- pates) jointly with her husband." All persons who, in any manner, participate in the offense are liable as principals." The charge does not respect ownership or proprietorship, but the conduct of the place." A husband is liable, if he merely '4 Bl. Comm. 168 ; 1 Russ. Or., 9 ed., 443. ^S. V. Evans, 5 Ired. (N. C.) L. 603; Harwood v. P., 26 N. Y. 190; S. o. Boardman, 64 Me. 539. 'S. ». Garrity, 46 N. H. 61; 0. v. Bulraan, 118 Mass. 456; S. «. Main, 31 Conn. 573, 577. *S. «. Mullen, 35 Iowa, 199 ; S. v. Metcalf, 65 Mo. App. 681. 'Killman v. S., 3 Tex. App. 233. «S. «. Powers, 36 Conn. 77. 'Reg. V. Williams, 10 Cox C. C. 155 ; King v. P., 83 N. Y. 587; Herzlnger e. S., 70 Md. 378, 280. sSylvester v. S., 43 Tex. 496. Cf. S. v. Williams, 30 K J. L. 103; Sparks v. S., 59 Ala. 82, 88. 9S. «. Porter, 38 Ark. 637; 8. v. Smith, 29 Minn. 193, 197. "S. «. Passaic Society, 54 N. J. L. 260. "1 Russ. Cr., 9 ed., 448 ; 8. v. Bentz, 11 Misso. 27 ; C. v. Lewis, 1 Mete. 151 ; C. V. Cheney, 114 Mass. 281 ; C. v. Hopkins, 133 lb. 381. "Lowenstein v. P., 54 Barb. 299; Harlow v. C, 11 Bush (Ky.), 610; C. ». Gannett, 1 Allen, 70; Graeter ». S., 105 Ind. 271. "S. ■». McGregor, 41 N. H. 407. 310 Specific Offenses permits his wife to keep the house, though it be her separate property.^ Letting a house for bawdry is a misdemeanor,^ and if the house is actually kept as such, the person letting it or partici- pating (e. g., as agent for the owner) in the letting, is guilty in legal contemplation of keeping the house/ § 527. Indictment The indictment may be general in form, without stating particulars as to those who frequent the house or the like.* Several may be jointly indicted for keeping separate bawdy or disorderly houses." § 528. Forms or Indictments. — 1 The Jurors etc. present, that A. B., on etc., and thence continually until the day of the finding of this indictment, at etc., unlawfully did keep and maintain a certain common bawdy house, receiving and entertaining therein lewd men and women, and causing and procuring said men and women then and there and therein to commit whoredom and fornication, to the common nuisance of all the people and against the peace etc. 3. The Jurors etc. present, that A. B., on etc., at etc., unlawfully did let to one C. D. a Certain house, there situate, with the intent, that the said C. D. should afterwards, during the continuance of the said letting, there keep and maintain the same as a common bawdy house, against the peace etc." § 529. Evidence. — The eA-idence is, almost of necessity, circumstantial and general in its character. The following matters are relevant, or otherwise admissible to establish the charge : Particular acts of lewdness;'' the character and reputation of the inmates of, and their conduct and language in and about, the house ;' the fact, that persons of both sexes resort 'C. V. "Wood, 97 Mass. 225; Scarborough «. S., 46 Ga. 36; Hunter v. S., 14 Ind. App. 683. ^C. e. Harrington, 3 Pick. 26; Smith v. S., 6 Gill (Md.), 435; S. v. Smith, 15 R. I. 24. 'Lowenstein v. P., 54 Barb. 299. <2 Chitty Cr. L. 39; Beard ». S., 71 Md.275 ; Handy «. S., 63 Misso. 207. 52 Chitty Or. L. 39 ; S. ». McDowell, Dudley (S. C), 346. ■ 'These forms are greatly abridged, but are submitted as containing allega- tions covering all the elements of the offenses charged. '2 Chitty Cr. L. 39; Herzinger v. S., 70 Md. 378. 8C. 0. Gannett, 1 Allen, 7; S. '. McGregor, 41 K H. 407, 413 ; S. o. Herzinger, 70 Md. 278 ; S. ii. Dudley, r,e Mo. App. 450. Bawdy House 311 thereto at all hours ;' the admissions of the accused f statements of the inmates in his presence;^ the character of the accused, t. g.,if a female, of being a prostitute;* the conduct of the accused in the house f the fact, that he had harbored or secreted a fugitive from justice therein ;^ any facts tending to bring home to him knowledge, that any inmate of the house is a prostitute or reputed prostitute/ The following matters are irrelevant and inadmissible : The evil reputation of the house f the fact, that it is orderly and that the neighbors are not disturbed.' IS.®. Garing, 75 Me. 591. ^C. V. Dai-u, 107 Mass. 310. 3S. ». Garing, 75 Me. 591. *Whitlock V. S., 45 Ind. App. 433. »S. V. Smith, 39 Minn. 193, 196. 'Mahalovitch «. 8., 54 Ga. 217. 'Harwood v. P., 26 N. Y. 190. 'According to the weight of authority. Henson v. S., 62 Md. 231 ; S. v. Plant, 67 Vt. 450. 'C. V. Gannett, 1 Allen, 7. 312 Specific Offenses CHAPTER XLVII. BIGAMY. § 530. IVhat Constitutes. — The oftense consists in going through the ceremony of marriage, at a time when the party has a husband or wife living.^ The fact, that the first marriage is voidable is immaterial f but, if a subsisting marriage is, for any reason, absolutely void, a subsequent marriage can not be pun- ished as bigamy.^ Thus, if A marries B, and afterward, during B's lifetime, marries C, and then, when B is dead, or divorced, but while C is living, marries D, such marriage to D is not bigamous.* § 531. lIoiT Regulated. — Offenses against the rights of matrimony were ancientl}- regarded as spiritual offenses, of cognizance only in the ecclesiastical courts.^ Qj stat. 1 Jac. 1, ch. 11, bigamy was declared to be a felony.^ This statute has been held to be common law in the United States.'' The subject is now regulated by statutes in England and in the various states. These statutes generally make punishable the marriage, by one having a husband or wife living, during the lifetime of such husband or wife, except where such hus- band or wife has been absent and unheard of by the party for a certain period, or the former marriage has been legally dis- solved. The offenses of bigamy, marrying more than one woman simultaneously and cohabiting with more than one woman, within any territory or place over which the United States has 'Reg. V. Allen, 12 Cox C. C. 193; Glse ». C, 81 Pa. St. 428; Hayes o. P., 25 N. Y. 390; P. «. Brown, 34 Mich. 339. '3 Inst. 88; S. ■B. Barefoot, 2 Rich. (S. C.) L. 209 ; P. ». Slack, 15 Mich. 193. 'Halbrook v. S., 34 Ark. 511 . *S. o. Sherwood, 68 Vt. 414. n East P. C. 464; 1 Russ. Cr., 9 ed., 268. «4 Bl. Comm. 163. 'U. S. ®. Jennegan, Fed. Cas. 15,474 ; Barber ». S., 50 Md. 161. Bigamy 313 exclusive jurisdiction ar6 made punishable by Federal statutes, which also regulate the procedure in relation thereto.^ Aliens who are polygamists are excluded from admission into the United States.^ § 532. Effect Of Divorce. — The fact, that a divorce of the alleged former marriai^e was obtained before^ the alleged bigamous marriage constitutes a good defense, but not, if there is a prohibition in the decree of a remarriage.* Yet such a decree has no extra-territorial effect, so as to render a mar- riage contracted elsewhere punishable in the state where the decree was passed.' § 533. Knowledge And Intent — A person who marries again, when the former husband or wife is living, must be without fault in ascertaining his or her right to marry. ^ A person is not justified in entering into a bigamous or for- bidden marriage, because he believes it his dutj' to do so.^ An honest, reasonably grounded belief in the death of the party's husband or wife,* or that a former marriage had been dissolved by divorce,' has been held to be a good defense to a charge of bigamy. § 534. Accomplices. — The unmarried party'" to a biga- mous marriage, or a third party" aiding and assisting therein, is punishable, if acting with knowledge of the prior subsisting marriage. ^^ § 535. Indictment. — The indictment should allege the first and second marriages and that, at the time of the second '23 Stat. L. 30; 24 Stat. L. 635; 1 Suppl. U. S. Rev. Stats. 331-333, 568-579. 226 Stat. L. 1084; 1 Suppl. U. S. Rev. Stats. 934. sfiaker -d. P., 2 Hill, 325. *C. V. Lane, 113 Mass. 458; P. ». Faber, 93 N. Y. 146. 'S. V. Outshall, 110 N. C. 538. «S. V. Goodman, 65 Me. 80. 'Reynolds v. U. S., 98 U. S. 145. «Reg. V Tolson, 16 Cox C. 0. 139. Contra : C. «. Mash, 7 Mete. 472. •Squire «. S., 46 Ind. 459. Contra: Davis v. C, 13 Busli (Ky.), 318, 322. '"Reg. V. Bawm, 1 Cox C. C. 33. "Boggus v. S., 34 Ga. 275. I'But held, under Federal statute, that there can be no accomplices. U. 8. V. Miles, 3 Utah, 19, 34. 314 Specific Offenses marriage, the former husband or wife was alive.' Exceptions in the statutes need not be negatived.^ The existence of the tirst marriage need be alleged only in general terms, without stating time or place.^ § 536. I orni Of Indictment. — The Jurors etc. present, that A. B., having, on etc., at etc., married one C. D., and then and there had her for his wife, did afterwards, to wit, on etc., at etc., while he was so married, unlawfully and feloniously marry and take to wife one E. F., the said C. D., his former wife, being then alive, against the form etc. § 537. Evidence. — The prosecution must prove the first marriage; the second marriage; that the former husband or wife was alive at the time of the second marriage. Proof of the first marriage must show its celebration in fact ;* its validity^ according to the law of the place where celebrated. The celebration may be proven by the testimony of persons present together with proof of the official character of the cele- brant;^ by the admissions of the accused;^ by documentary evidence, such as an official certificate,^ together with extraneous proof of identity.' Entries of marriage made by a clergyman in a book kept by him in the regular course of his office are admissible, when supported by his testimony, if living." '3 Chitty Cr. L. 718; Prichard v. P., 149 111. 50 ^Barber v. S., 50 Md. 160, 170-171 ; S. «. Johnson, 12 Minn. 476; Stanglein o. S., 17 O. St. 453 ; Fleming v. P., 27 N. Y. 329; (J. ». Jennings, 131 Mass. 47; S. ■^. Abbey, 39 Vt. 60. ^Hutchinson ». S., 28 Ind. 34; Watson v. S., 13 Tex. App. 70; S. v. Hughes, 35 Kans. 626. Contra : Davis v. C, 13 Bush (Ky.), 318 ; S «. LaBore, 26 Vt. 765. ••Patterson v. Gaines, 6 How. 550, 597; G-aines v. Helf, 13 lb. 472; Gaines v. Hennen, 24 lb. 553, 605-607; Sellman «. Bowen, 8 Gill & Johns. (Md.)50; Jones ». Jones, 48 Md 891,398-402; S. v. Winkey, 48 N. H. 480, 494; S. v. Sherwood, 68 Vt. 414. nieg. V. Kay, 16 Cox C. C. 293; Bird ii. C , 21 Gratt. iVa ) 80. «3 Greenl. Ev. ? 204; Reg. v. Griffin, 14 Cox C. C. 308; Weinberg » S., 25 W.s. 3.0. ^Miles V. V. S., 103 U. S. 304, 311. sGaines ». Relf, 12 How. 472, 535. V, Greenl. Ev. J 204; C. v. Norcross, 9 Mass. 492; S. e. AVallace, 9 N. H.515; Northfield v. Plymouth, 30 Vt. 582, 589. '"Weaver » Lelmau, 52 Md. 708, 721. Bigamy 315 If the marriage took place in a foreign country, its validity according to the law thereof must be shown.' If shown to have been solemnized by a clergyman of some well-known denomi- nation according to the rites of his church, it will be regarded as a prima facie valid marriage.^ If a writing is shown to be necessary to the validity of the marriage, it must be produced.' The second marriage may be established by the same kind of proof as the first.* The prosecution must affirmatively show, that the first husband or wife was alive at the time of the second marriage.* The presumption of the continuance of life operates here.° If the accused apparently brings himself within an exception constituting matter of defense, the government must disprove the matter thus shown.'' If the first marriage is not controverted, or has been plainly established, the alleged second husband or wife is a competent witness as to the second marriage.* »2 Greenl. Ev. H61- ■'Reg. !). Griffin, 14 Cox C. C. 308 ; C. v. Kenney, 130 Mass. 387. 3Reg. v. Althauser, 17 Cox C. C. 630. *3 Greenl. Ev. § 205 ; S. v. Sherwood, 68 Vt. 414. 'LeBrun v. LeBrun, 55 Md. 496, 504. «C. V. McGrath, 140 Mass. 396. 'Reg. V. Curgerwen, 10 Cox C. C. 153. 83 Greenl. Ev. ? 306; Miles e. U. S., 103 U. S. 304. 316 Specific Offenses CHAPTER XLVIII. BLASPHEMY AND PROFANITY. § 538. iVature Of Offenses. — Blasphemy and profanity are punishable as misdemeanors at common law upon the principle of being common nuisances, offenses tending to outrage the general feeling of propriety and decency.^ , § 589. Blasphemy. — Blasphemy consists in maliciously re- viling God or religion.^ It includes all contumelious reproaches, oral or written, of the Deity, of religion in general, or any form of religion.^ Honest expressions of opinion and attacks upon generally accepted beliefs, though directed against the very fundamentals of religion, if the decencies of controversy are observed, are not punishable.* It has been held, that in order to render blasphemous lan- guage punishable, it must have been heard b}' some one.^ Drunkenness has been held to constitute no defense.^ § 540. Profanity Any words importing an imprecation of divine vengeance, or implying divine condemnation, publicly indulged in, though it be but on a single occasion, constitute profanity.^ § 541. Analog-ous Offenses. — It is a misdemeanor, at common law, to collect, upon a public highway, numbers of persons, by means of loud and indecent language, or publicly to utter indecent and infamous words, tending to debauch and corrupt the public morals.* iReg. v. Bradlaugh, 15 Cox C. C. 217, 230 ; Vidal v. Girard, 3 How. 127, 198; S. ®. Appling, 25 Misso. 315; S. v. Graham, 3 Sneed (Tenn.), 184. ^Bell's Case, 6 City Hall Rec. 38. '8 Greenl. Ev. § 68. *Reg. V. Bradlaugh, 15 Cox C. C. 217, 280; Reg. v. Ramsay, lb. 381, 238-289. 'P. V. Porter, 3 Park. Cr. R. 14. «Ib. 'Gaines ». S., 7 Lea (Tenn.), 410 ; Young v. S., 10 lb. 165 ; S. v. Chrisp, 85 N. C. 788 ; C. v. Linn, 158 Pa. St. 22. sBarker v. S., 19 Pa. St. 412 ; C. v. Mohn, 52 lb. 243. Blasphemy And Profanity 317 § 542. Indic-tment. — The indictment should set forth the words according to their tenor, and, at least in the case of" profanity, allege that they were uttered in the presence and hearing of divers persons;^ but, it has been held, the omission of the allegation, that the words were uttered in the presence and hearing of divers persons may be supplied by other words.^ § 543. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., did maliciously and blasphemously (or, profanely), in the presence and hearing of divers persons, speak, utter and publish these blasphemous (or, profane) words, to wit (inserting words), to the common nuisance of all the people and against the peace etc. § 544. Evidence. — The substance only of the alleged words need be proven.* The intent is to be inferred from all the facts and circumstances.* The defendant's extra-judicial confession has been held insufficient to convict of blasphemy.^ 10. V. Barham, 79 N. 0. 646 ; Goree v. &., 71 Ala. 7 ; C. ». Linn, 158 Pa. St. 23. ■^Gaines e. S., 7 Lea (Tenn.), 410. 'Updegraph v. C, 11 S. & R. 394, 410; 8. ■». Barham, 79 N. C. 640. *S Greenl. Ev. | 70. »P. V. Porter, 2 Park. Or. R. 14. 318 Specific Offenses CHAPTER XLIX. BRIBERY. § 545. The Offense. — Bribery is the giving or receiving of a reward or promise designed corruptly to inHuence the con- duct of one in public office, whether judicial, legislative or executive/ including officers de facto^ and the corrupt influenc- ing, in any form, of voters.^ An offer, attempt, or solicitation to give or receive such a reward is a misdemeanor.^ The subject is almost entirely regulated by statutes.^ § 546. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., did unlawfully and corruptly give (or, offer to give) to one C. D., who was then and there {de- scribing official station), the sum of dollars {or, otherwise describing reward), as a bribe, in order to induce the said C. D. (setting forth object), against the peace etc. n Russ. Cr., 9 ed., 323 ; 3 Greenl. Ev. | 71 ; S. v. Ellis, 33 N. J. L. 103. ^Florez v. S., 11 Tex. App. 102. »Reg. v. Lancaster, 16 Cox C. C. 787; S v. Jackson, 73 Me. 91. *C. B. Chapman, 1 Va. Cas. 138 ; Walsh «. P., 65 111. 58 ; S. s. Ellis, 83 N. J.-L. 102; P. s). Ah Fook, 62 Cal. 498. 'See U. S. Rev. Stats. ?? 5449-5451, 5499-5502. Burglary 319 CHAPTER L BURGLARY. § 547.' Deftiied. — Burglary is the breaking and entering of the dwelling-house of another, in the nighMime, with the intent to commit a felony therein.' There must be both a breaking and an entry, but they need not be at the same time.^ § 548. The Premises. — The place entered must be a man- sion, or inhabited dwelling-house.^ Every permanent structure which a person uses as a dwelling-house, which use may consist of habitually sleeping therein,^ and a chamber or room, be it upper or lower, wherein a person inhabits or dwells,^ is a mansion, or dwelling-house. A booth, or a tent, in a fair or market is not a dwelling f but a permanent building of mud and brick, used as a booth at, and slept in during the time of, the fair, is a dwelling.^ The mansion, or dwelling-house, includes all buildings and outbuildings within the same curtilage, or common enclosure f but an outward fence, or an area gate, of the curtilage, not opening into any of the buildings, is not part of the house.' The breaking of a shop, or store, which is parcel of a dwelling- house is a breaking of the dwelling." 14 Bl. Comm. 234. ^C. 0. G-Iover, 111 Mass. 395; P. ■». Gibson, 58 Mich. 368. '3 Buss. Or., 9 ed., 15; 3 Greenl. Ev. g79. ■'3 Russ. Or., 9 ed., 15-16; S. v. Williams, 90 N. C. 734. ^2 Russ. Cr., 9 ed., 15-16 ; Mason «. P., 36 N. Y. 300. «2 Russ. Cr., 9 ed., 15-16 ; Callahan ». S., 41 Tex. 43. '3 Russ. Cr., 9 ed., 16. 83 Greenl. Ev. g 80 ; Pitcher e. P., 16 Mich. 142; Fisher v. S., 43 Ala. 17; Mitchell V. C, 88 Kent. 349. Cf. S. ». Sampson, 13 S. C. 567. 93 Russ. Cr., 9 ed., 6. '"Quinn ». P., 71 N. Y. 561. 320 Specific Offenses The temporary absence of the occupants of the dwelling is immaterial.* If one have several dwelling-houses, the breach of one, in the absence of the family, is burglary.^ At the strict common law, the breaking of a church is also burglary.^ § 549. The Breaking. — There must be a breaking, either actual or constructive, as distinguished from an entrance in the nature of a mere trespass. Entering through an open door, window or other aperture, or merely further pushing open a door or window partially open is not sufficient.'' Actual break- ing means the unloosing, removing or displacing of any cover- ing or fastening of the premises. It may consist of the lifting of a latch or drawing of a bolt ; the raising of an unfastened window; the turning of a key; the turning of a knob, or the pushing open of a closed door, so kept merely by its own weight.' Constructive breaking occurs, whenever an entrance is obtained by intimidation or artifice, as where the owner, or some one within the house, by any device or pretense, is frightened, allured, or otherwise caused, to admit the offender; or the inmates are caused to expose the premises, as upon an outcry of fire, or the discharge of a weapon; or entrance is gained by conspiracy or collusion with a servant or other inmate.* Getting down the chimney,^ or gaining entrance by setting fire to the house,* is a breaking. The breaking may be of an inner door or part of the prem- ises, after unobstructed or licensed entry, as where one has 'S. ». Meerchouse, 34 Misso. 344. 'lb. H Bl. Comm. 234; Reg. v. Baker, 3 Gox C. C. 581. *2 Russ Or., 9 ed., 2; C. v. Strupney, 105 Mass. 588; McGrath o. S., 25 Neb. 780 ; S. V. Kennedy, 16 Mo. App. 287; Green o. S., 68 Ala. 539. '2 Russ. Cr., 9 ed., 2-4; Carter v. S., 68 Ala. 96; S.-b. Fleming, 107 N. C. 905; C. B. Stephenson, 8 Pick. 354; Kent t). S., 84 Ga. 438 ; P. e. Nolan, 22 Mich. 229; P. v. Dupree, 98 lb. 26; Timmons ». S., 34 O. St. 426. «2 Russ. Cr., 9 ed., 8-11 ; C. «. Lowrey, 158 Mass. 18 ; S. ». Johnson, Phill (N. C.) L. 186 ; S. ». Mordecai, 68 N. C. 207 ; S. o. Rowe, 98 lb. 629 ; Johnston V. C, 85 Pa. St. 54; Ducher ». S., 18 Ohio, 308; Nicholls «. S., 68 Wis. 416. 'S. V. Willis, 7 Jones (N. C.) L. 160; Olds v. S., 97 Ala. 81. sWhites. S., 49 Ala. 344. Burglary 321 entered through an open door, or is a lodger or servant, and opens the door of a room, intending to conamit a felony therein.' In such case, the breaking must be of something that constitutes a part of the dwelling, and not of a cupboard, press or other like receptacle, notwithstanding the fact that these, as between heir and executor, may be regarded as fix- tures.^ Breaking out of a house is not a burglarious breaking.' § 550. Tlie Entry. — The entry occurs, when any part of the offender's body, or of any instrument held by him for the purpose of intimidating any one in the house, or of committing the ulterior felony, passes to the slightest degree within the bounds of the dwelling; but this does not include any part of the instrument used for the breaking.^ Getting down a chimney is an entry.' § 551. The Time. — Burglary can be committed only at night, i. e., when there is not daylight (light of the sun) enough left or begun to discern a man's face by.* The break- ing and the entry must both be committed in the night-time, but the breaking may be on one night and the entry on another, provided the breaking be with intent to enter and the entry with intent to commit a felony.'^ § 552. The Intent. — There must be an intent to commit a felony, common-law or statutory.^ An intent to commit a 13 Russ. Or., 9 ed., 7; RoUand v. C, 85 Pa. St. 66; S. v. Scripture, 43 N. H. 485 ; Lowder o. S., 63 Ala. 143 ; S. v. Clark, 43 Vt. 639. ^3 Russ. Cr., 9 ed., 7-8 ; S. v. Wilson, 1 N. J. L. 439, 441. sAdkinson v. S., 5 Baxt. (Tenn.) 569 ; S. d. McPherson, 70 N. C. 339 ; Rolland v. C, 83 Pa. St. 306, 334-335 ; Brown v. S., 55 Ala. 133 ; White v. S., 51 Ga. 385. Contra : S. ». Ward, 43 Conn. 489. *3 Russ. Or., 9 ed., 11-14; S. ». McCall, 4 Ala. 643; Walker e. S., 63 lb. 49 ; Franco v. S., 43 Tex. 376; Nash ». S., 20 Tex. App. 384. '3 Russ. Cr., 9 ed., 4; S. u. Willis, 7 Jones (N. C.) L. 190; Donohoo v. S., 36 Ala. 381. «3 Russ. Cr., 9 ed., 39 ; 8. ». McKnight, 111 N. C. 690 (cases cited). ■■Arch., 19 ed., 588; ante, § 547. 83 Russ. Cr., 9 ed., 40-43; Boon v. S., 13 Ired. (N. C.) L. 344. 31 322 Specific Offenses misdemeanor is not sufficient.^ If the intent is abandoned after entry, the offense is still complete.^ § 553. Participation. — One is guilty of burglary as prin- cipal, if he acts through an innocent agent;' or stands by to watch, while others break and enter ;* or, being a servant, lets others into the house to commit a felony.* If the breaking and entry are on different nights, one present at the breaking, though not at the entering, is guilty of the whole offense,* pro- vided there be the necessary community of purpose.'' § 654. Ovrnersliip. — The premises are said to be those of the person who has the occupancy and possession thereof, so as to have control for the time being,* as distinguished from mere occupancy without control, such as that of a servant or guest.' An apartment in a dwelling-house is said to be the dwelling of the occupant or tenant thereof, if there be no internal commu- nication between it and the remainder of the house.'" § 555. Indictment. — The technical words "burglariously" and "broke and entered" are necessary'. " It must be charged, that the offense was committed in the night," and it is said, that time should be further particularized to the extent of laying the commission "about" a certain hour,'* but this has been denied." The offense should be laid to have been committed in a "dwelling-house," or "mansion-house,"'^ ^Robinson v. S., 53 Md. 151 (cases cited). 'S. V. McDaniel, Winst. (N. C), pt. I, 349. '1 Russ. Cr., 9 ed., 14-15. •lb. 14. 'lb. 10. «Ib. 40. '•Ante, §33. "Arch., 19 ed., 541-544; Webb r>. S., 52 Ala. 422; Huling v. S., 17 O. St. 583, 589. 'Arch., 19 ed., 541-544; Rodgers v. P., 86 N. Y. 360; S. ®. Betsall, 11 W. Va. 703. "Arch., 19 ed., 539 ; 8 Greenl. Ev. §81. "2 Russ. Cr., 9 ed., 50. '^Lewis V. 8., 16 Conn. 32. "2 Russ. Cr., 9 ed., 45-46; S. e. Seymour, 36 Me. 225. '*P. ». Burgess, 35 Cal. 115; Bethune v. S., 48 Ga.-505. "2 Russ. Cr., 9 ed., 46; Thomas «. 8., 97 Ala. 3. Burglary 323 but "house" has been held sufficient.^ If an outhouse forming part of a dwelling has been broken into, the act may be laid as having been done in the dwelling-house, or in a stable, barn, etc., part of the dwelling-house.^ The name of the owner must be alleged.^ There must be an averment of an intended felony in one of three modes of allegation : breaking and entry with intent to commit a felony ; breaking and entry and the actual commission of the felony ; breaking and entry with intent to commit a felony and the actual commission of the felony.* The allegation of intent should specify and describe the intended felony,' but need not be as minute as for the substantive felony.^ § 556. Form Of Indictment. — The Jurors etc. present, that A. B., on etc., about the hour of eleven in the night of the same day, at etc., the dwelling-house of one C. D. feloniously and burglariously did break and enter, with intent the goods and chattels in the said dwelling-house then being, then and there feloniously to steal, take and carry away, and then in the said dwelling-house (describing property), of the value of (stating val^te), of the goods and chattels of (naming owner), in the said dwelling-house then being found, feloniously did steal, take and carry away, against the peace etc. § 557. Evidence. — The breaking and entry^ and time of commission* may be shown by circumstantial proof. An alma- nac may be used to show at what time the sun set.' The pre- cise time of night need not be proved.'" Ownership must be proved as laid." Parol evidence is sufficient for this purpose," even where there appears to be a written lease,'' the title not 'Thompson ». P., 3 Park Or. R. 208, 214. '2 Russ. Or., 9 ed., 46. 'C. •». Perris, 108 Mass. 1. *Q. 0. Hope, 22 Pick. 1 »8. ». Brady, 14 Vt. 353; P. ». Nelson, 58 Cal. 104; S. ». Lockhart, 24 Ga. 420 ; Portwood v. 8., 29 Tex. 47; Mason d. P., 26 N. Y. 200. •2 Russ. Cr., 9 ed., 44 ; Shotwell v. S., 43 Ark. 345. 'C. V. Merrill, Thacher Cr. Oas. 1 ; 8. e. Munson, 7 Wash. 239; P. ■». Curley, 99 Mich. 238. «8 Greenl. Bv. § 83 ; S. v. Bancroft, 10 N. H. 105 ; P. ». Dupree, 98 Mich. 26. »8. ®. Morris, 47 Conn. 179. •»P. ». Burgess, 35 Cal. 115; S. v. Tazwell, 30 La. Ann. 884. "Doan ». 8., 26 Ind. 495. '■'8. V. Jaynes, 78 N. C. 504. "Houston ?'. S., 38 Ga. 165, 324 Specific Offenses being in issue. Intent must be proved as laid.' It may be established by inference from circumstances proven,^ e. g., from the circumstances of another felony committed on the same night as that of the alleged breaking.^ Ordinarily, the very fact of breaking and entering in the night authorizes the presumption of an intent to steal.* Possession of stolen prop- erty may be shown as tending to establish guilt.^ 13 Russ. Cr., 9 ed., 43-44; Neubrandt e. S., 53 Wis. 89 ; P. v. Marks, 4 Park. Cr. R. 153; Starchman v. 8., 62 Ark. 538. But averment of intent to steal is sustained by proof of intent to rob. S. v. Cady, Winst. (N. C), pt. 1, 197. »Steadman r>. S., 81 Ga. 736 ; S. o. Pox, 80 Iowa, 312. •Osborne 0. P., 2 Park. Cr. R. 583. 'Alexander ®. S., 31 Tex. App. 359. 'Neubrandt ®. S., 53 "Wis. 89; Stuart v. P., 42 Micli. 255. Carrying "Weapons 325 CHAPTER LI. CARRYING WEAPONS. § 558. W^liat Acts Punistiable. — Groing about, armed with dangerous and unusua] weapons, so as to cause terror to the people, is a misdemeanor at common law.' Carrying con- cealed weapons is made a crime by statute in probably every state, and the constitutionality of such legislation has been almost universally upheld.^ § 559. Construction Of Statutes. — ^In general, guilt at- taches, whenever one voluntarily does the prohibited acts, regardless of any question of specific evil intent or wrongful motive.^ Statutory phrases have been interpreted to bear meanings aef follows : "To carry arms" — ^to go armed, to wear arms;* "concealed" — wilfully or knowingly covered, or kept from sight,' i. e., from ordinary observation;' "concealed about his person" — concealed near, in close proximity to, him and within his control and easy reach, so that he could promptly seize it, if impelled to do so by any violent motive.' ^Ante, § 485. »C. v. Murphy, 166 Mass. 171 ; S. t. Shelby, 90 Misso. 303; Wright v. C, 77 Pa. St. 470; S. v. Speller, 86 N.iC. 697; Hill v. S., 53 Ga. 472; S. v. Jumel, 18 La. Ann. 399; English v. 8., 35 Tex. 473. 'S. 11. Dixon, 114 N. C. 850; S. ®. Martin, 31 La. Ann. 849; Walls. «. S., 7 Blackf. (Ind.) 572; Cutsinger v. C, 7 Bush (Ky.), 392; Morton v. S., 46 Ga. 292; Reynolds b. S., 1 Tex. App. 616; Livingston i). S., 8 lb. 74; Preston s. S., 63 Ala. 137 ; Carroll «. S., 38 Ark. 99. *Page V. S., 3 Heisk. (Tenn.) 198, n. ; S. v. Carter, 36 Tex. 89 ; Owen v. S., 31 Ala. 387. 'Owen ». S., 31 Ala. 387 ; Stockdale v. S. 32 Ga. 235. «S. V. Johnson, 16 B. C. 187 ; Street v. S., 67 Ala. 87. 'S. V. McManus, 89 N. C. 555; DifEey v. S., 86 Ala. 66; Woodward v. S., 5 Tex. App. 296. 326 Specific Offenses A statute imposing a penalty upon persons having in their possession a dangerous weapon, when "arrested" by an "officer" while in the act of committing a criminal offense, has been held to mean lawfully arrested,^ by an officer having proper authority.^ The offense of carrying a weapon concealed is an act contin- uous in its nature, aud having it at different times or places, or under different circumstances, constitutes. but one crime.' The statutes should, in general, be so construed as to effec- tuate their intention and prevent evasion.* E. g., one who carries the pieces of a weapon which may readily be combined and adjusted, so as to render the complete and effective weapon, incurs the guilt of carrying the weapon.^ § 560. Indictment. — It is ordinarily sufficient to follow the language of the statute ;° yet the offense must be laid, with reasonable certainty, according to the true meaning of the law, and, to that end, it is sometimes necessary to go beyond the statutory words.^ Exceptions must ordinarily be averred, if contained in the enacting clause of the statute,* but not, if contained in a dis- tinct clause.' § 561. Evidence. — It is not necessary to prove negative averments, e. g., that the accused was not k peace officer,*" or a traveler." If carrying more than one weapon is charged, proof of carrying one will support the indictment, if such act constitutes a crime. '^ iC. V. O'Connor, 7 Allen, 583. 'C. V. Doherty, 103 Mass. 443. 'Stress «. S., 88 Ala. 91 ; S. o. Shelby, 90 Misso. 303. *Ante, I 50. 'Hutchinson v. 8., 63 Ala. 3. •Owens ®. S., 8 Tex. App. 404 ; Pickett ». S., 10 lb. 390. 'C. B. Doherty, 103 Mass. 443. «P. V. Pendleton, 79 Mich. 817; S. v. Duke, 42 Tex. 455. 'Wilson v. S., 33 Ark. 557; S. ». Maddox, 74 Ind. 105; S. v. Jackson, 1 Lea (Tenn.), 680; 0. «. McClanahan, 3 Mete. (Ky.) 8. 'oSummerlin v. S., 3 Tex. App. 444. Contra : P. ». Pendleton, 79 Mich. 317. "Wiley®. 8., 52 Ind. 516. >2C. v. Howard, 3 Mete. (Ky.) 407. Champerty And Maintenance 327 CHAPTER LII. CHAMPERTY AND MAINTENANCE. § 562. Mature Of OfTenses. — Maintenance is an unlawful taking in hand or upholding of quarrels or aides, the interven- tion being with some measure of ill design, calculated to promote strife and contention, as distinguished from mere assistance afforded to a litigant out of friendship, charity or compassion.' Champerty is the unlawful maintenance of a suit in consideration of receiving part of the thing in dispute or some profit out of it.^ It is also a misdemeanor, at common law, a species of maintenance, to buy or sell, at an under rate, a doubtful title to lands known to be disputed, in order that the buyer may carry on suit in place of the seller.' The doctrine of maintenance is confined to civil actions.* Champertous con- tracts are void,° but prosecutions for champerty and maintenance have fallen into disuse. '4 Bl. Comm. 185 ; 1 Russ. Or., 9 ed., 353. n Russ. Or., 9 ed., 26S. . Warren, 6 Mass. 73. 23 Russ. Cr., 9 ed., 608. »R. ». Osborn, 3 Burr. 1697; R. v. Bower, Cowp. 323. 42 Russ. Cr., 9 ed., 609: Reg. ». Gloss, 7 Cox C. C. 494. '3 Russ. Cr., 9 ed., 609. •Anonymous, 6 Mod 105; Anonymous, 7 lb. 40; P. i>. Gates, 13 Wend. 311, 319. 'C. V. Boynton, 2 Mass. 77 ; C. v. Spear, 3 Va. Cas. 65 ; Lewis «. S., 2 S. & R. 351 8S. «. Patillo, 4 Hawks (N. C.) L. 348 ; S. v. Stroll, 1 Rich. (S. C.) L. 344. 83 Russ. Cr., 9 ed., 617. '"P. •». Fisher, 4 Park. Cr. R. 306 ; S. i>. Woodson, 5 Humph. (Tenn.) 55. "2 East P. C. 838. 330 Specific Offenses CHAPTER LIV. COMMON SCOLD. § 568. The Offense. — Common scolds are said to be such troublesome and angry women as, by their brawling and wrangling amongst their neighbors, break the public peace, increase discord and become a nuisance to the neighborhood.' The frequent repetition, to the disturbance of the neighborhood, makes scolding (in females) punishable as a nuisance.^ § 569. Procedure. — The words "common scold" are essen- tial,^ and also in themselves sufficient,* to describe the offense. It is not necessary to prove particular expressions used." Insulting and provoking language may be given in evidence, though not spoken in an angry or turbulent manner.^ The puuishmeut, anciently placing in a ducking-stool and plunging in water, is now the same as for other misdemeanors.^ § 570. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., was, and yet is, a common scold and disturber of the peace of the neighborhood, to the common nuisance of all the people, against the peace etc. U Gabbett Cr. L. 747. H Bl. Comm. 168 ; D. 8. v. Royall, Fed. Cas. 16,203; C. v. Mohn, 52 Pa. St. 243. »U. S. V. Royall, Fed. Cas. 16,301. . Wartman, Fed. Cas. 17,210; Van Wezel ». Van Wezel.l Edw. Ch. (N. Y.) 113; Exp. Perkins, 3 Dessaus. (S. C.) 549. Contempt 345 in insolvency does not release a fine for contempt/ and a frau- dulently procured discharge should not be regarded in any case.^ § 596. Form Of Attachment. — State of , to wit : To the Sheriff of County : You are hereby commanded, immediately to apprehend and bring before {naming court) A. B., to answer a contempt by him committed. Witness (inserting proper teste). § 597. Order Of Commitment. — State of ) In the vs. A. B. Ordered, this day af , 18—, that said A. B. is adjudged guilty of a contempt (e. g., in having attempted, by threats of personal violence, to prevent one 0. D. from appearing and testifying as a witness in a certain cause now depending in said Court), and that he pay a fine of dollars, together with the costs of this proceeding, to be taxed by the clerk, and be imprisoned in County Jail for days, and further stand com- mitted to said Jail, until said fine and costs are paid. § 598. Commitment For "Continuing^" Contempt. — State of ) In the vs. A. B. Ordered, this day of , 18—, that A. B. is adjudged guilty of a contempt («. g., in refusing to be sworn and give testimony in a cause now depending before said Court between E. F. and G. H., wherein he, the said A. B., was duly summoned as a witness), and that he stand committed to Jail, until he purge himself of such contempt. § 599. Indictable Contempts. — Contempts, when amount- ing to an obstruction of justice or the like, may also be pro- ceeded against by indictment as misdemeanors, even though the oft'ender has been punished summarily for the contempt;' but ordinarily an indictment does not lie for a mere contempt* Among indictable contempts are included what were formerly called contempts against the king's palaces or superior courts of justice,' such as striking within the precincts of the courts, 'S. V. Spalding, 10 Paige, 284. "Lowe V. Blake, 3 Dessaus. (8. C.) 269. 'In re Brule, 71 Fed. K. 943. *Reg. V. Rogers, 7 Mod. 28. H Bl. Comm. 125. 346 Specific Opfenses rescue of prisoners and affrays or riots near the courts ; threat- ening or reproachful words to a judge sitting in court; affray or contemptuous behavior in inferior courts; injurious treat- ment of persons under the more immediate protection of the courts, such as assaulting or threatening a suitor, counselor or attorney, gaoler or other officer; endeavoring to stifle the truth and prevent the due execution of justice, as by interfering with witnesses, advising a prisoner to stand mute on his arraigment, the discovery by a grand juror to one indicted of the evidence against him.' The following have been held indictable contempts : obstruc- tion of justices of the peace in the execution of their oflice;^ contemptuous words spoken of them jn relation to the execution of their office;^ the improper publication of comments upon the proceedings at the preliminary investigation of a criminal charge.* Other acts, either amounting to contempts, or closely analo- gous, and punishable by indictment as misdemeanors, are what are generally classed as offenses against public justice,'* such as embezzling or vacating records, or falsifying judicial proceed- ings; misconduct of gaolers towards prisoners ; obstructing the execution of lawful process; escape, prison-breach and rescue; bribery and embracery; oppression and extortion' by inferior magistrates and ministerial officers. 'C. ■». Feeley, 2 Va. Cas. 1. ■'Brooker «. C, 12 S. & R. 175. 'R. V. Revel, 1 Str. 420. *Reg. «. Gray, 10 Cox C. C. 184. H Bl. Comm. 127-142. COUNTBEFBITING 347 CHAPTER LVII. COIIN'TERFEITrN'G. § 600. Defined. — Counterfeiting signifies the fabrication of a false image or representation,* and is usually applied to imita- tions of coin or paper money. § 601. At Common Liavc. — Making counterfeit coin has, from the earliest times, been treated as a statutory crime, first as treason, subsequently as felony; but uttering counterfeit coin is a common-law misdemeanor, a species of cheat.^ Procuring base coin with intent to utter it as good has been held to be a misdemeanor at common law f but merely having it in possess- ion with intent to utter has been held not punishable.* The uttering of counterfeit paper money is a common-law cheat.° § 602. Under Federal Liavrs. — Congress is vested with power "to provide for the punishment of counterfeiting the securities and current coin of the United States,"^ and has enacted legislation on the subject,^ including the counterfeiting of foreign coin and securities, which has been held to be within the power "to define and punish ofienses against the law of nations,"* and also the importation and uttering of foreign counterfeit coin, which has been held to be valid on the ground, that the power given to Congress "to coin money" necessarily 'U. S. ®. Marigold, 9 How. 560, 568; U. 8. o. Bogart, Fed Cas. 14,617. 2U. S. «. Coppersmith, 4 Fed. R. 198, 307 ; U. S. o. Yates, 6 lb. 861. 'R. V. Fuller, R. & R. 308. *R. v. Fulton, Jebb, 48. »4»ite, ?565. "Const. U. S., art. 1, ?8. 'U. 8. Rev. 8tats. ?§ 5413-5463 ; 1 Suppl. U. 8. Rev. Stats. 439-430 (foreign money) ; lb. 889-890 (as to manufacture of dies, tools etc.) ; lb. 593 (as to money orders or postal notesj ; lb. 694 (using mails to dispose of counterfeit money). 8U. 8. V. Arjona, 130 U. 8. 479. 348 Specific .Offenses carried with it the correlative power of protecting the creature and object of that power.^ § 603. Under State I^a-^vs. — The states have no power to coin money/ but the jurisdiction of their courts is not taken away or impaired by Federal legislation as to crime.' They may punish cheats and other offenses in connection with mak- ing, uttering or attempting to -utter counterfeit coin or other securities within their own borders,* including foreign coin and securities.^ The same act of passing counterfeit coin or the like may be an offense against and punishable by both governments.* § 604. What Constitutes Counterfeiting. — In order to constitute a counterfeiting, there must be a resemblance of the spurious coin or paper money to the real, not perfect or pre- cise, but such as may, in circulation, ordinarily impose upon the world ; such as is calculated to deceive persons of ordinary observation.^ The spurious article must be in a state to pass current, but need not be finished.* If a genuine coin is reduced in weight by removing part of the metal and then filled in with base metal, so as to make it appear as before, this is a counterfeit ;^ but if a hole is punched through a good coin, leaving its substance intact, but crowding the metal into a difterent shape, and the hole is then filled in with base metal, this is not counterfeiting."" 'U. S. V. Marigold, 9 How. 560. =Const. U. S., art. 1, § 10. ^U. S. Rev. Stats. § 5328. *Pox a. Ohio, 5 How. 410; P. v. White, 34 Cal. 183; Jett v. C, 18 Gratt. (Va.) 933; Martin o. S., 18 Tex. App. 224; Dashing v. S., 78 Ind. 357. 'P. V. McDonnell, 80 Cal. 285. 'Ante, I 71. '1 East P. C. 163-164 ; 3 Greenl. Ev. g 105 ; U. S. v. Hopkins, 26 Fed. R. 443. n East P. C. 164; U. S. ■o. Abrams, 18 Fed. R. 823. «Reg. 0. Hermann, 14 Cox C. C. 279. '»U. 8. V. Lissner, 12 Fed. R. 840. Counterfeiting 349 § 605. uttering And L.lli.e Acts.— A person ie said to "utter" a counterfeit, when he parts with, tenders or offers it, or uses it in some way to get a benefit from it.^ To "pass" means to dehver (not merely offer) as money, or as a known and conventional substitute for money.^ A "putting off" means an actual passing, or getting rid, of the money.' If one knowingly passes, a spurious bank note in absolute payment of a debt, he is not relieved from guilt by a promise to take the note back, should it prove not to be genuine.* Giving a forged or counterfeit coin or instrument to an inno- cent agent, or to an accomplice, in order that he may pass or utter it, or aiding or assisting in passing or uttering it, the party being actively or constructively present at such passing or uttering, makes him a principal offender.® One who, knowing others to be engaged in counterfeiting, promotes the execution of their guilty purpose by harboring them in his house, while thus engaged, is guilty of "assisting" in making the coin.^ § 606. Possession Of Instruments. — The difficulty of proving the fact of actually making or passing counterfeit coin or notes has led to the enactment of statutes intended to make the possession of instruments adapted to counterfeiting, with intent to use, cause or permit them to be used, for that purpose a crime. An instrument adapted to make only one side of a counterfeit coin has been held to be within the general language of such iReg. B. Welch, 4 Cox C. C. 430 ; Reg. c. Jones, 5 lb. 336 ; Reg v. Ion, 6 lb. 1 ; P. «. Brigham, 3 Mich. 550 ; P. v. Caton, 35 lb. 388 ; S. v. Horner, 48 Mlsso. 530. ^U. 8. !). Nelson, Fed. Cas. 15,861 ; P. ■». Brigham, 3 Mich. 550 ; S. v. Beeler, 1 Brev. (S. C.) 483. Pledging or depositing held not a passing. Gentry o. S., 3 Yerg. (Tenn.) 451. '1 East P. C. 179 ; McGregor v. S., 16 Ind. 9. *Perdue v. 8., 2 Humph. (Tenn.) 494. »Reg. V. Greenwood, 5 Cox C. 0. 531 ; U. S. •». Morrow, Fed. Cas. 15,819 ; S. t). Mix, 15 M'isse. 153 ; S. v. Cheek, 13 Ired. (N. C.) L. 114. «U. S. V. Tarr, Fed. Cas. 16,434. 350 Specific Offenses legislation.* The words "die, stamp, or other instrument or tool" have been held not to include such an article as a crucible.^ § 607. Possession Of Counterfeit. — The possession of counterfeit money with intent to pass it is made punishable by various statutes. Possession does not mean, actually having the counterfeit on or about one's person, but within one's power and control, so as to command its use.^ Possession with intent to pass in another state has been held to be an offense within the general prohibitory language of such statutes.* Having possession of different notes of different banks at the same time has been held to constitute one offense.* § 608. Indictment. — An indictment for counterfeiting must show the kind of coin whereof the offense was committed, and it is usual, though said not to be necessary, to express the number of each kind.* In indictments for uttering and the like, it is necessary to aver the scienter J Indictments are almost invariably drawn upon statutes. The general rules must be followed, that, beyond the mere statutory language, all the elements necessary to constitute the offense should be averred,' and that an offense within the purview of the statute must be set forth.' § 609. Forms Of Indictments. — 1. Counterfeiting. The Jurors etc. present, that A. B., on etc., at etc., did falsely and unlaw- fully^" make, forge and counterfeit pieces of false, feigned and coun- terfeit money and coin, of copper and other mixed metals, of the likeness 'C. e. Kent, 6 Mete. 331 ; S. v. Griffin, 18 Vt. 198. ^S. !). Bowman, 6 Vt. 594. 'S. v. Washburn, 11 Iowa, 345. «C. V. Cone, 3 Mass. 132 ; C. ». Price, 10 Gray, 473 ; Clark v. C, 6 B. Monr. (Ky.) 206. »C. v. Benham, 7 Conn. 416. '2 Hale, 187. 'U. S. B. Carll, 105 U. S. 611. •lb. •Fergus «. S., 6 Yerg. (Tenn.) 345. "Care should be taken, to say " feloniously," if the offense is felony by statute. Counterfeiting 351 and similitude of good, legal and current money and gold coin of the United States of America called («. g., ten-dollar pieces), against the peace etc. 2. Uttering And Passing. The Jurors etc. present, that A. B., on etc., at etc., did unlawfully, falsely and deceitfully, with intent to defraud one C. D., utter and pass to the said C. D. two pieces of false, feigned and counterfeit money and coin, one of them of the likeness and similitude of a good, legal and current silver coin of the United States of America, called a dollar, and the other of them of the likeness and similitude of a good, legal and current foreign silver coin of the kingdom of , called a , he, the said A. B., then and there well knowing, that each of the said coins was false, feigned and counterfeit, against the peace etc. 3. Having In Possession. The Jurors etc. present, that A. B., on etc., at etc., unlawfully had in his possession pieces of counterfeit coin made to the likeness of good current coin of the United States, called dimes, otherwise ten-cent pieces, then and there well knowing the same to be counterfeit, with the intent unlawfully, fraudulently and deceitfully to utter and pass them as good and current coin,. against the form etc. § 610. Evidence. — The alleged counterfeit, if in existence and accessible, should be produced.' The spurious character of the coin or other money may be shown by witnesses expert in such matters, or by the admissions of the accused.^ The agency of the accused in the making of a counterfeit may be established by circumstantial evidence.' Gruilty knowledge may be proven by the declarations and conduct of the accused, including the commission of other acts similar to that charged, if the acts are so' connected with or allied to that charged as to form a part of the same transaction or system of dealings.* Among facts thus held relevant' are the uttering or attempted uttering by the accused of forged instruments of the same description as that averred ; his pos- session of such instruments or of the tools or means for their ■SGreenl. Ev. ?107; S. «. Phelps, 2 Root (Conn.), 87; Kirk v. C, 9 Leigh (Va.), 637; C. ®. Bigelow, 8 Mete. 235. =C. 0. Bigelow, 8 Mete. 285. 'U. S. V. Burns, Fed. Cas. 14,691 ; U. S. v. King, Fed. Gas. 15,535. *3 Greenl. Ev. §§lll-llla; Bishop ». S., 55 Md. 138; Bell v. S., 57 lb. 108; Dibble ». P., 4 Park Or. R. 199. 'SGreenl. Ev. §111. 352 Specific Offenses manufacture ; his pointing out a place where such things were concealed ; his assuming different names and making false and contradictory statements in any of these connections. The situation of the accused and his facilities for the commis- sion of the crime may be shown.' 'U. S. B. Taranto, 74 Fed. R. 319. Disorderly House 353 CHAPTER -LVIII. DISORDERLY HOUSE. § 611. The Offense — The keeping of a disorderly house is punishable as a misdemeanor, a species of public nuisance.' The term "house" embraces any edifice, apartment or place. ^ The place is said to be disorderly, if it is kept as a bawdy house,' or a common gaming-house,* or a place of resort for purposes injurious to the public morals, health, convenience or safety ;^ if it is kept as a place where acts prohibited by statute are habitually indulged or permitted;" if it is kept as a place where indecent or immoral shows, representations or perform- ances are given ;' if it is kept or conducted in such a noisy or disorderly manner as tends to disturb the peace and order of the neighborhood, or the public generally,* whether the acts creating the disturbance take place within the house or adjacent thereto.' The keeper of an inn is punishable, not only for con- ducting it in a manner disorderly in the ordinary sense, but also, if he takes exorbitant prices, or improperly refuses to receive and accommodate travelers." H Bl. Comm. 167 ; 1 Russ. Cr., 9 ed., 443. ^s. 0. Garity, 46 N. H. 61 ; C. v. Bulman, 118 Mass. 456. 'Reg. V. Rice, 10 Cox C. C. 155; U. S. v. Gray, Fed. Cas. 15,251. n Russ. Cr., 9 ed., 443-444 ; Cheek v. C, 79 Kent. 359 ; Kneffler v. C, 94 lb. 359; Lordu. S., 16N. H.335. "Common" does not import "public." C. v. Blankinship, 165 Mass. 40. ^Thatcher ». S., 48 Ark. 60 ; Cheek v. C, 79 Kent. 359; Beard v. S., 71 Md. 375 ; S. V. Williams, 30 N. J. L. 103 ; S. w. Haines, 30 Me. 65 (bowling alley) ; C. V. Tilton, 8 Mete. 333 (cock-fighting). «Smith V. C, 6 B. Monr. (Ky.) 31 ; Wilson v. S., 12 lb. 3 ; Meyer d. 8., 41 N. J. L. 6; S. C, 43 lb. 145. n Russ. Or., 9 ed., 444-445. 8U. S. V. Prout, Fed. Cas. 16,094; U. S. v. Coulter, lb. 14,875 ; U. S. v. Elder, lb. 15,089; U. S. v. Columbus, lb. 14,841 ; C. v. Hopkins, 138 Mass. 381 ; S. ». Bertheol, 6 Blackf. (Ind.) 474. 'S. «. Burchinal, 4 Harr. (Del.) 572. 101 Russ. Cr., 9 ed., 443. 23 S54 Specific Offenses All who in any degree participate in the keeping or conduct of a disorderly house are equally liable to punishment.' Corporations are liable to prosecution and pmiishment for this offense.^ § 612. Procedure. — The indictment may be in the same general form as an indictment for keeping a bawdy-house.^ The usual evidence that a house is disorderly is of such noise and conduct in and about the place as disturb or tend to disturb the peace and quiet of the neighborhood.* Evidence of the reputation of the place is irrelevant.' The fact, that the accused has a license to sell liquors or the like is irrelevant.* An allegation of keeping a disorder!}^ house is supported by proof of keeping a bawdy-house, or a common gaming house, or a disorderly place of entertainment.' § 613. Forms Of Indictments. — 1. General Form. The Jurors etc. present, that A. B., on etc , and thence continually until the day of the finding of this indictment, at etc., unlawfully did keep and main- tain a certain common, ill-governed and disorderly house, and in the said house certain evil-disposed persons, as well men as women, of evil name, fame and conversation, to come together, on the days and times aforesaid, there unlawfully did cause and procure, and the said persons in the said house, at unlawfur times, as well in the night as in the day, on the days and times aforesaid, there to be and remain, drinking, tippling, cursing, swearing, quarreling and otherwise misbehaving themselves, unlawfully did permit and sttffer, to the common nuisance of all thcipeople, against the peace etc. 2. Disorderly Place Of Entertainment. The Jurors etc. present, that A. B., on etc., and thence continually etc., at etc., unlawfully did keep and maintain a certain house of entertainment, wherein to exhibit and show to all persons willing to pay the said A. B. for admission therein, and did then and there unlawfully exhibit and show therein to many persons, divers wicked, obscene, scandalous and infamous performances, representations and figures, corrupting to the morals of the public and of youth, to the common nuisance etc., against the peace etc. •Engleman v. S., 54 2SI. J. L. 247; S. C, lb. 257. -'Ante, ? 15. ""Ante, 1 527 ; Beard o. S., 71 Md. 275. *C. «; O'Brien, 8 Gray, 487. »S. V. Maxwell, 33 Conn. 259 ; S. v. Foley, 45 N. H. 466. *S. 0. Foley, 45 N. H. 466. 'C. e. Goodall, 165 Mass. 588. Disorderly House 355 3. Common Gaming-House. The Jurors etc. present, that A. B., on etc., and thence continually etc., at etc., unlawfully did keep and maintain a certain common gaming-house and did then and there cause and procure tnany idle, dissolute and disorderly persons to frequent and come together therein, for the purpose of playing at cards and other games for money and other valuable things, and betting and wasting their substance and otherwise misbehaving themselves, to the com- mon nuisance etc., against the peace etc. 4. Place Where Laws Commonly Violated. The Jurors etc. present, that A. B., on etc., and thence continually etc., at etc., unlawfully did keep and maintain a certain common, ill-governed and disorderly house, wherein he habitually sold and furnished spirituous, malt and intoxicating liquors on the Lord's day, commonly called Sunday, and to minors, or persons under the age of twenty-one years, and to intoxicated persons, in common violation of the laws, to the common nuisance etc., against the peace etc. 356 Specific Offenses CHAPTER LIX DUELING. § 614. The Olfeiise. — Engaging in combats for revenge is a misdemeanor at common law.' The act may, according to circumstances, be punished as affray,^ or assault and battery. If death ensues, the offense is felonious homicide.^ All who are present, in any degree aiding or participating, incur the guilt of principals.^ Challenging another to • fight a duel and sending a threaten- ing letter tending to provoke a challenge, though the fight is intended to take place in another jurisdiction," are misde- meanors.^ The entire subject is generally regulated by statute. The Eederal statutes contain special provisions relating to the army^ and the navy.* Disqualification to hold ofiice is sometimes imposed as a penalty for having engaged or aided in dueling, and such enactment has been upheld against objections raised on constitutional grounds.' § 615. Forms Of Indictments. — 1. Challenging. The Jurors etc. present, that A. B., on etc., at etc., unlawfully did provoke, excite and challenge one C. D. to fight a duel with him, the said A. B., against the peace etc. S. Provoking To Challenge. The Jurors etc. present, that A. B., on etc., at etc., did send and cause to he delivered to one C. D. a certain scandalous, malicious and provoking 13 Inst. 158. '4 Bl. Comm. 145. n Russ. Cr.,9ed., 727. *Ib. 728-739 ; Cullen v. C, 34 Gratt. ( Va.) 624, 636. 'S. ■». Farrier, 1 Hawks (N. C), 487. ^Ante, §485 ; 1 Russ. Cr., 9 ed., 413; S. ». Perkins, 6 Blackf. (Ind.) 30. 'U. S. Rev. Stats. ? 1342, arts. 25-28. 8Ib. ?1624, art.8. 'Barker v. P., 3 Cow. 686. Cf. Royall v. Thomas, 28 Gratt. (Va.) 130. Dueling .357 writing in words and figures following (inserting writing), with the intent to stir up, provoke and excite the said C. D. to challenge the said A. B. to fight a duel with him, the said C. D., against the peace etc. S. Another Form Of Same. The Jurors etc. present, that A. B., on etc. at etc., wickedly, wilfully and maliciously did utter, pronounce, declare and say to and in the presence and hearing of one C. D. these words: "You are a scoundrel and a liar, and I shall take care to let the world know that you are so,'' with the intent to instigate, excite and provoke the said C. D. to challenge him, the said A. B., to fight a duel with and against him, the said C. D., against the peace etc.^ •After form in Arch., 19 ed., 911. 358 Specific Offenses CHAPTER LX. EMBEZZLEMEITT. § 616. Wature Of Offense. — Embezzlement, in a general Bense, denotes the fraudulent appropriation or conversion of personal property by a person to whom it has been entrusted, or into whose hands it has lawfully come. The term is applied to various offenses created by statutes, differing much in their language and in the construction given to them, devised for the purpose of punishing acts differing from larceny merely in the fact that the original taking of the property was law- ful, or with the consent of the owner, or in such manner, that the possession of the owner was not violated.' The offense of embezzlement is, in general, governed by the same principles as larceny.^ § 617. 'What Constitutes. — In order to constitute embez- zlement, it is, in general, necessary that money or other prop- erty should have come into the possession of the accused by virtue of some occupation or employment specified in the particular statute under which the prosecution is had,^ and that it should have been fraudulently converted or appropri- ated by him in violation of the trust implied in such occupa- tion or employment.* The thing itself must be converted. E. g., making a false entry^ in a book of account, whereby one is enabled to obtain a false credit on money collected by him is not embezzlement.* The owner must be deprived of the property by an adverse holding or use.' 'Moore o. U. S., 160 U. S. 368; C. o. Berry, 99 Mass. 428. 'C. e. Parker, 165 Mass. 526. »Reg. V. Barnes, 8 Cox C. C. 129 ; Reg. r. OuUom, 12 lb. 469. *C. V. Hays, 14 Gray, 162. 'Reg. ■». Chapman, 1 Cox C. C. 47. 'C. «. Este, 140 Mass. 279 ; Chaplin v. Lee, 18 Neb. 440. Embezzlement 359 The accused, at the time of conversion or appropriation, must have had possession as distinguished from mere custody; If the thing taken was, at the time of taking, in the possession, actual or constructive, of the owner, the offense is, not embezzle- ment, but larceny/ \_Illustrations : — A, a servant of B, receives a sum of money from a third person for the use of B, and immediately appro- priates it. This is embezzlement.^ If A receives the money from B for the purpose of paying it to a third person, or to use it for any other specific purpose directed by B, but instead appropriates it to his own use, he is not guilty of embezzle- ment (but of larceny^). A puts his money into the hands of B, to count it in hi^ presence and return it to him, and B fraudulently keeps and appropriates it to his own use. B is not guilty of embezzle- ment (but of larceny).^] If an employer has money or property placed in the hands of his servant or employee for the purpose of entrapping or detecting the latter, this circumstance does not alter or affect the question of guilt.' Mere failure to pay over money collected for another, although involving breach of trust, is not embfiizlement.^ There can be no embezzlement where a thing is retained under a bona fide claim of right,' or where otherwise there is no violation of duty.* Some rulings involving special constructions of statutes are referred to in a note.' 'Post, R 703-704. 'Bazeley's Case, 2 Leach, 835 ; C. v. Ryan, 155 Mass. 523. '0. V. Barry, 99 Mass. 428. ■•C. «. O'Malley, 97 Mass. 584. Kinte, § 25 ; Reg. v. Gill, 6 Cox C. C. 295. «C. « Foster, 107 Mass. 221 ; Mulford o. P., 139 111. 586; P. v. Hurst, 62 Mich. 376 ; B. v. Covert, 14 Wash. 652. 'S. V. Reilly, 4 Mo. App. 892; Beaty v. S., 82 Ind. 228. sp. V. Gallaud, 55 Mich. 628 ; P. «. Wadsworth, 63 lb. 500. '"Officer" held to include subordinate appointive officer. U. S. ». Hartwell, 6 Wall. 385. Distinction between public employee and independent officer. S. v. Denton, 74 Md. 517. Embezzlement by state treasurer. S. v. Archer, 73 Md 44. 360 Specific Offenses § 618. Indictment. — All the elements of the offense must be alleged, so as to bring the defendant precisely and clearly within the statute.^ The particular goods, money or other thing embezzled must be specifically alleged,^ and if the offense is made larceny by statute, the indictment should contain all the requisite averments of an indictment for larceny.' Under modern statutes^ it is generally sufficient, to allege the embezzle- ment to be of money, e. g. "certain money, to wit, the sum of dollars," without specifying any particular coin or ' va:luable security.^ § 619. Form Of Indictment. — The Jurors etc. present, that A. B., on etc., at etc., being then employed as clerk to one C. D., and having, by virtue of his said employment, received and taken into his possession, for and in the name and on account of said C. D., the sum of dollars, consisting of money, bank-notes, promissory notes and checks, did fraudulently [and feloniously]' embezzle the said money, [and so did then and there feloniously steal, take and carry away the said money, bank-notes, promissory notes and checks, the property of the said C. D., his employer]', against the form etc. iMoore ». U. S., 160 U. S. 368. 'R. 0. Flower, 5 B. & C. 736; S. C, 8 D. & R. 512. »S. «. Tracey, 73 Md. 447. *E. g., 34 & 25 Vict., ch 96, |71. ^Cf., as to description of money, ante, I 155. 'The words in brackets are used where the offense is felony and larceny under the statute. Embracery 361 CHAPTER LXI. EMBRACERY. § 620. The Olfense. — Embracery is an attempt, by any means, except the production of evidence and argument in due course of trial, to influence, instruct or incline a juror to be more favorable to one side than the other in any judicial pro- ceeding, it b^ing, ^immaterial, whether a verdict is rendered or not, or, if rendered, whether it be true or false.' The following ^re offenses in the nature of embracery :^ , Giving money to another to be distributed among jurors; procuring one's self to be returned on a tales in order to serve one side; for a juror to endeavor to influence his fellows to give a verdict on one side, except on grounds of its propriety; any fraudulent contrivance of like nature to securfe such a ver- dict; giving money to a juror after the verdict. The provisions of the Federal law are set forth in a subse- quent chapter.^ § 621. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., unlawfully and cor- ruptly did solicit, advise and endeavor to influence, cause and procure one C. D., vrho was then and there one of a certain jury impaneled and sworn to try the issue in a certain action then depending in the Court for said County, between E. F., plaintiff, and G. H., defendant, to give his ver- dict in favor of the said G. H., and did then and there utter to the said C. D. divers words and discourses by way of commendation of the said G. H. and in disparagement of the said E. F., against the peace etc. '1 Russ. Cr., 9 ed., 264; 3 Greenl. Ev. ?100; S. v. Brown, 95 N. C. 685. n Russ. Cr., 9 ed., 264; 3 Greenl. Ev. ? 100. ^Post, 1 749. 362 Specific Offenses CHAPTER LXII. EXTORTION. § 622. The Offense Extortion is the unlawful taking by a.nj officer, by color of his otHce, of any money or thing of value that is not due to him, or more than is due, or before it is due.' The offense may be committed by an officer de facto f but it has been held otherwise as to the incumbent of an office which an unconstitutional statute purports to create.* Several may be jointly guilty.* Guilt is not incurred, if the unlawful taking is under an honest mistake or misapprehension of fact;' but mistake of law is said to be no excuse.^ There must be an actual taking or receiving of money or some thing of value : an agreement to receive does not constitute the offense.'^ § 623. Form Of Indictinenf The Jurors etc. present, that A. B., on etc., at etc., then being a, constable in and for said County, and having then and there in his custody one C. D., arrested by him by virtue of a warrant of arrest, did corruptly, deceitfully and extorsively, by color of his said office, demand, receive and take of and from the said C. D. the sum of dollars, as and for a fee due to him, the said A. B., as such constable as aforesaid in that behalf, whereas, in truth and in fact, no fee was then due from the said C. D. to the said A. B. as such constable as aforesaid in that behalf, against the peace etc. . H Russ. Cr., 9 ed., 208-212; C. v. Mitchell, 3 Bush (Ky.), 25. ^S. ». Sellers, 7 Rich. (S. C.) 368, 372. 'Kirby v. S., 57 N. J. L. 320. n Russ. Cr., 9 ed., 210; Reg. v. Tisdale, 20 U. C. Q. B. 272. ^Bowman v. Blyth, 7 E. & B. 26 ; C. v. Shed, 1 Mass. 227. ^Lincoln v. Shaw, 17 Mass. 410 ; Shattuck v. Woods, 1 Pick. 171 ; C. v. Bay- ley, 7 lb. 279. Contra : Resp, n. Hannum, 1 Yeates, 71 ; Cutter o. S., 36 N. J. L. 12.5. '0. V. Coney, 2 Mass. 523. False Imprisonment 363 CHAPTER LXIII. FALSE IMPRISONMENT. § 624. The Offense. — False imprisonment is punishable as a species of aggravated assault. To constitute this offense/ there must be an unlawful detention against the will of the person. A person is said to be detained whether it be in a public prison, a private house, or in the public highway against his will. The detention is unlawful, unless it is under some authority recognized by law. Imprisonment or detention under process is lawful only to the extent to which it is commanded or authorized thereby. Merely preventing one from proceeding along a particular way has been held not to amount to false imprisonment.'' § 625. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., upon one C. D. did make an assault and him, the said C. D.,then and there did beat and, without lawful justification or excuse did detain, restrain and falsely imprison, against the peace etc. n Russ. Cr., 9 ed., 1023 ; Arch., 19 ed., 751-755 ; Reg. ». Lesley, 8 Cox C. C. 269. ^Bird V. Jones, 7 Q. B. 742. ,364 Specific Offenses CHAPTER LXIV. FALSE PRETENSES. § 626. Alature or Offense. — The law of false pretenses is a statutory extension of the common law of cheats and of lar- ceny, designed to cover cases where things of value are obtained by false representations not amounting to a technical cheat' and where there is no "taking" against the will of the owner, because the property in the thing was intended to be parted vnth (hence no larceny).^ The principal English statutes are as follows : 33 H. 8, ch. 1, punishing cheats by "privy tokens" and "coun- terfeit letters in other men's names. "^ . 30 Geo. 2, ch. 24, punishing the obtaining of goods, wares and merchandise by false pretenses.^ 52 Geo. 3, ch. 64, extending the law to choses in action. 7 & 8 Geo. 4, ch. 29, providing, that if it appeared, that the property had been obtained in such manner as to amount to larceny, there should not, by reason of this fact, be an acquittal. 24 & 25 Vict., ch. 96, § 88, providing, that it is a misde- meanor for an}' one by any false pretense to obtain from any other person any chattel, money or valuable security, with intent to defraud ; that if it appears, that the property has been obtained in such manner as to amount to larceny, the party may still be convicted, but can not afterwards be prosecuted for larceny upon the same facts ; that the indictment need simply allege an intent to defraud, without alleging an intent to defraud any particular person, and without alleging ownership of the thing obtained ; that proof of an intent to defraud shall be sufficient, without establishing an intent to defraud a particular 'R. ». Wheatly, 2 Burr. 1125; S. C, 1 W. Bl. 278. 'Reg. ■». Solomons, 17 Cox C. C. 93. 32 East P. C. 826-827. R. V. Douglass, 1 Moody, 462. ^Reg. 0. Giles, 10 Cox C. C. 44. 'Reg. !). Gates, 6 Cox C. C. 540. *Reg. V. Woolley, 4 Cox C. C. 193. »C. ■B.Drew, 19 Pick. 179 'Reg.®. Copeland, Car. &M. 516; Co. Lincoln, 11 Allen, 333; C. v. Lee, 149 Mass. 179. 'S. o. Stanley, 64 Me. 157 ; Watson v. P., 87 N. Y. 561 ; S. v. Hefner, 84 N. C. 751 ; S. B. Sherrill, 95 lb. 663 ; 8. v. Mangum, 116 lb. 998. 8Reg. V. Roebuck, 7 Cox C. C. 126; Reg. o. Ardley, 13 lb. 23. 9S. ». Mills, 17 Me. 211. "Reg. e. Sherwood, 7 Cox C. C. 270; Reg. v. Ragg, 8 lb. 362 ; Reg. v. Lee, 9 lb. 460. False Pretenses 367 A false representation to a creditor, that his debtor is insol- vent, whereby he is induced to part with his claim against such debtor at a sacrifice.' That a certain recipe in writing, combining certain ingre- dients, would produce as a compound a fluid of specified properties and of great value.^] If property is obtained by means of a false affirmation and a false promise operating jointly, or blending into one fraud, the false afiirmation is punishable as a false pretense, notwith- standing the fact, that the false promise was connected or blended with it.^ One false representation of fact without which the fraud would not have been effective is sufficient. [Illustrations: — If goods- are obtained by means of a false promise to pay for them and a false statement as to the party's ability or means to pay for them, the fraud is punishable as a false pretense.* The defendant stated, or represented, to a woman, that he was a single man, and obtained money from her, promising to expend it in furnishing a house for them to live in and .to marry her. This was an obtaining by false pretense.'] § 629. Falsity Of Pretense The pretense under which a thing is obtained must be false in fact.^ Gruilt does not attach' merely because a person employing a pretense believes it to be false. [Illustration : — A being the owner of a first, and B the owner of a second, mortgage upon certain land, B, induced thereto by A, represented to C, that his, B's mortgage, was a first mortgage, by means of which pretense B obtained money from C, upon the supposed security affiarded by B's alleged first-mortgage lien. Held no false pretense on the part of either A or B because A, by his conduct, had estopped himself from setting up his mortgage.^] 'S. 0. Tomlin, 29 N. J. L. 13. '■'In re Greenough, 31 Vt. 279. 'S, r>. Fooks, 65 Iowa, 196 ; S. v. Cowdin, 28 Kans. 269. *Reg. ■». Murphy, 13 Cox C. C. 298. 'Reg. ». Jennison, 9 Cox 0. C. 158. «R. 0. Spencer, 8 0. & P. 420 ; P. u. Tompkins, 1 Park. Cr. R. 224. • 'S. «. Asher, 50 Ark. 437. 368 Specific Offenses § 630. Operation Of Pretense. — The obtaining must have been "by means" of the false pretense, /. e., it must appear, that the pretense operated, in whole or in part, to such an extent, that without it, the owner would not have parted with his goods, money or other property.' Hence, the pretense must have been believed ; otherwise, the person making the pretense incurs the guilt of attempt only.^ The pretense must bear such a causal relation to the parting with the thing obtained as to be the operative cause of the transfer of such thing.* The accomplished wrong must be the direct, though not necessarily the immediate, result of the false pretense employed by the accused. There must be no inter- vening independent cause; but a false pretense may be continuing in operation. [Illustrations : — A, professing to have a claim against B, by a false pretense induces B to consent to the entry of a judgment in a suit based upon the alleged claim, and thereupon obtains payment of the judgment. The money thus paid can not be said to have been obtained by the false pretense.* A, by means of a false pretense, induces B to enter into a contract under which he is furnished with board by B. A obtains the food and provisions supplied by B under the con- tract by the false pretense.^ A, by means of a false pretense, obtains a check from B. Upon presentation, the drawee refuses payment, because the check is not in proper form. A returns the check to B, infor- ming him of the informality, and procures another check in proper form. The pretense is a continuing one, and applies to the obtaining of the second check.* iReg. V English, 13 Cox C. C. 171 ; Reg. v. Lince, lb. 451 ; Reg. v. Jones, 15 lb. 475 ; C. v. Davidson, 1 Gush. 33 ; P. a. Haynes, 11 "Wend. 557 ; Tlieras- son V. P., 83 N. Y. 338 ; S. v. Thatcher, 35 N. J. L. 445 ; Smith v. S., 55 Miss. 513. 2R. ®. Dale, 7 C. & P. 353; Reg. e. Mills, 7 Cox C. C. 263; Reg. v. Hensler, 11 lb. 570. 2Reg. V. Lamer, 14 Cox C. C. 497. *C. ■'. Harkins, 138 Mass. 79. 'Reg. V. Burton, 16 Cox C. C. 62. •Reg. V. Greathead, 14 Cox C. C. 108. False Pretenses 369 A, by a false pretense, obtains goods, delivered from time to time. The pretense is a continuing one, applicable to each delivery.^] The thing obtained need not be in existence at the time of the making of the pretense, in order to be said to have been obtained thereby. If a person, by a false pretense, procures a thing to be made or built and then delivered to him, the pretense applies to the obtaining in this manner.^ § 631. arature Of Device. — Contrary to some earlier adjudications, it is now almost universally held, that a false pretense need not be such an artful device as wovild impose upon a person of ordinary caution and that the defrauded person's opportunity of Imowledge is immaterial. The inquiry in any given case is, not whether the pretense was " calcu- lated " (adapted) to defraud, but whether, being made with intent to defraud, it had that effect? If a person either neglects to inform himself of that which he readily could and, in com- mon prudence and caution, should, have ascertained ; or if, not possessing or not exercising ordinary judgment, he is imposed upon by a shallow device or silly falsehood — these things afford no defense to one who, working upon such carelessness, credulity or folly, fraudulently acquired the other's property. False-pretense statutes were primarily designed (and accordingly worded) to eliminate from the offense of cheating the common-law element which required a device calculated to impose upon ordinary caution. § 632. The Tblng Obtained. — The statutes generally make punishable "the obtaining of any chattel, money or valuable security." It is also made punishable by some statutes, "to obtain the signature of any person to any written instrument." 'C. ». Lee, 149 Mass. 179. 2Reg. •». Martin, 10 Cox C. C. 383. 53 Russ. Cr., 9 ed., 631-623; Reg. ». WooUey, 4 Cox C. C. 193; Reg. ■». Jessop, 7 lb. 399; Bowen v. S., 9 Baxt. (Tenn.) 45; S. v. Vanderbilt, 37 N. J. L. 338; S. v. Fooks, 65 Iowa, 176; Johnson e. S., 36 Ark. 343; S. v. Williams, 13 Mo. App. 415, 434; Colbert v. S., 1 Tex. App. 314; May v. S., 17 lb. 313, 316-317; P. v. Pray, 1 Mich. N. P. 69; Miller v. P., 33 Color. 530. 24 370 Specific Offenses A thing is said to be "obtained," if the owner is deprived of the property therein, not if the accused has secured the mere temporary use,* or has acquired possession only;^ but there may be an obtaining under color of a loan.^ The terms "chattel," "property" etc., are ordinarily held to mean such things as are the subject of larceny/ A "valuable security" means an instrument or writing so worded or endorsed as to be valuable, or of efficacy, in the possession of the accused.^ "Signature" includes endorsement;" but a signature is not said to have been "obtained," unless the instrument bearing it has been delivered to the accused and the instrument as delivered is in such form as to be of efficacy in his hands/ § 633. The Intent. — An actual intent to defraud is essen- tial.8 A false pretense resorted to for the purpose of enforcing payment or collection oia bona fide claim or debt, or of securing a thing to which the person making the pretense believes him- self entitled, is not punishable.' The ordinary rules" as to intent apply. It is sufficient, that the false pretense, in its natural and probable operation, tended to produce the result accomplished." § 634. Participation. — The offense of obtaining property by false pretenses is generally misdemeanor, and the ordinary •Reg. 0. Kilham, 11 Cox C. C. 561. *S. fl. Anderson, 47 Iowa, 143 ; Canter v. S., 7 Lea (Tenn.), 349 ; S. o. Vickery, 19 Tex. 336. 'R. B. Crossley, 3 Moody & R. 17 ; S. C, 3 Lewin, 164; C. v. Lincoln, 11 Allen, 233. *Reg. ». Robinson, 8 Cox C. C. 115 ; S. o. Burrows, 11 Ired. (N. C.) L. 447 ; S. V. Moore, 15 Iowa, 413. »Reg. V. Danger, 7 Cox C. C. 808 ; Blizzard e. S., 70 Md. 385r- «P. «. Chapman, 4 Park. Cr. R. 56. 'lb. «S. V. Garis, 98 N. C. 733. 'C. V. McDuflfy, 126 Mass. 467; S. ». Hurst, 11 W. Va. 54, 71 ; In re Cameron, 44Kans. 64. 'Mrete, 2 18. "Todd V. S., 31 Ind. 514. False Pretenses 371 rules' as to the liability of participants in misdemeanors apply.^ If several act in concert,' or one acts alone by the prior procure- ment or the like of another,* each and every one thus concerned is chargeable as principal in the crime. § 635. Jurisdiction. — The gist of the offense of cheating by false prentenses is the obtaining of the property, the false pretense being the means of effecting the cheat. Hence, the offense is punishable by the tribunals of the territory wherein possession of the thing parted with was obtained, or acquired by the accused, although the false, pretense may have been made elsewhere.'^ § 636. Indictment. — The indictment must specify the pretenses^ and allege their falsity, not in general terms, but particularizing it.' The property obtained must be described with such certainty as to identify it and also to make it appear, that it was the subject of the offense created by the particular statute.* The person to whom the pretense was made and from whom the property was obtained' and the ownership thereof" must be alleged. "Where the pretense is by means of an advertisement, not addressed to any one, it may be alleged to have been made to the person who was defrauded, or " to all persons, that is to say, all persons to whom knowledge of the said advertisement came."" It must appear, by proper averments, that the accomplished fraud was the result of the pretense used.'^ ^Ante, ? 30. 2Reg. V. Moland, 3 Moody, 276. »C. «. Harley, 7 Mete. 462. *Cowen V. P., 14 111. 348. »C. V. Van Tuyl, 1 Mete. (Ky.) 1. 'Arch., 19 ed., 514; S. v. Dyer, 41 Tey. 520. 'R. e. Perrott, 2 M. & 8. 379 ; 8. ■» Levi, 41 Tex. 563 ; 8. v. Pickett, 78 N. C. 458; S. 9. Lambeth, 80 lb. 393; Keller ». S., 51 Ind. 111. 'Blizzard s. 8., 70 Md. 385. •Reg. V. Sowerby, 17 Cox C. C. 767. '"8. V. Lathrop, 15 Vt. 279 ; Blizzard v. 8., 70 Md..385. "Reg. «. 8ilverlock, 18 Cox C. 0. 104. "C. V. Strain, 10 Mete. 521; C. ■». Goddard, 4 Allen, 313; Enders v. 8., 20 Mich. 233; 8. v. Saunders, 63 Misso. 483; Clifford v. 8., 56 Ind. 345; Norris V. S., 25 O. St. 317; Epperson ». S., 42 Tex. 79. 372 Specific Offenses § 637. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., unlawfully, knowingly and designedly did falsely pretend to one C. D., that he, the said A. B., was then the servant of one E. F., the said E. F. then and long before being well known to the said C. D. and a customer of the said C. D. in his, the said C. D's business and way of trade as a woolen draper, and that he, the said A. B., was then sent by the said E. F. to the said 0. D. for five yards of superfine woolen cloth, by means of which said false pretenses he, the said A. B., did then and there unlawfully obtain from the said C. D. five yards of superfine woolen cloth, of the goods, chattels and property of the said C. D., with intent then and there to cheat and defraud him, the said 0. D., of the same, whereas, in truth and in fact, the said A. B. was not then the servant of the said E. F. and had .not then been sent by the said E. F. to the said C. D. for the said cloth, as he the said A. B. then well knew, against the form etc. § 638. Evidence. — It is sufficient to prove the actual sub- stantial pretense alleged, without conforming literally to the allegation thereof in the indictment.^ If several pretenses are alleged, it is sufficient to prove any one.^ Averments in the indictment may be proved according to their legal effect.^ Evidence of other similar acts to that charged is admissible for the purpose of showing evil or fraudulent intent.' . i 12 Russ. Cr., 9 ed., 671 ; Reg. ». Hewgill, Dearsly, 315. ^0. e. Merrill, 8 Cush. 571 ; S. e; Mills, 17 Me. 211 ; S. «. Vanderbilt, 27 N. J. L. 328 ; Webster ». P., 92 N. Y. 422 : S. ■». Vandimark, 35 Ark. 896. 'Arch., 19 ed., 524; G. ». Call, 31 Pick. 515. . Ellis, 7 lb. 850. iR. V. Brain, 6 C. & P. 349 ; R. ®. Ellis, 7 Vo. 850. 'Reg. V. Reeves, 9 C. & P. 35 ; Reg. v. Trilloe, Car. & M. 650; S. C, 3 Moody, 360. «1 Russ. Cr., 9 ed., 671-674; 8. v. Winthrop, 43 Iowa, 519 ; Wallace v. S., 10 Tex. App. 355. 'Reg. B. West, 3 Cox C. C. 500. n Russ. Cr., 9 ed., 671. n Hale, 433. i»l East P. C. 335-337. 384 Specific Offenses or indirectly ; by means of physical agencies/ or the employ- ment of an innocent agent ;^ by placing a helpless or dependent person in a situation of danger or exposure f or by forcing a person to do a thing that causes his death.* The person inflict- ing the corporal injury is deemed to have committed homicide, though other causes may intervene,^ provided the injury bears a certain casual relation to the death* and is sufficiently proxi- mate thereto in point of time/ § 659. Combination Of Causes. — Liability attaches, if one inflicts an injury but for which death vs^ould not have taken place when it did, though other causes may have intervened and contributed. One who causes bodily injury to another laboring under a disorder, disease or bodily infirmity, and thereby hastens or accelerates the death of that other, is deemed to have caused his death.* If death is caused by bodily injury, the person who causes the injury is deemed to have caused the death, although by resort to proper remedies and skilful treatment death might have been averted.' If death results from medical or surgical treatment^" or from a disease*' caused by bodily injury, the person who caused the injury is deemed to have caused death; but, if an injury not mortal is inflicted, and death results solely from the effects of improper treatment, or other independent cause,'^ such as a disease not caused or aggravated by the injury,'' the person inflicting the injury is not deemed to have caused death. H Bl. Comm. 197. 'C. ■». Macloon, 101 Mass. 1. 34 Bl. Comm. 197; R. 0. Huggins, 3 8tr. 882; S. C, 3 Ld. Raym. 1574. n Russ. Cr., 9 ed., 676 ; 3 Greenl. Ev. ? 143. 'Pm(?659. «Post, ? 660. Tost, ? 661. «Reg. ». Plummer, 1 C. & K. 600; 8. s. O'Brien, 81 Iowa, 88; P. v. Moan, 65 Cal. 532. 'Hopkins v. U. S., 4 App. D. C. 430; Clark v. C, 90 Va. 360. loReg. V. Davis, 15 Cox C. C. 174. "Powell ». S., 13 Tex. App. 844; Burnett v. 8., 14 Lea (Tenn.l, 439. 123 Greenl. Ev. § 139 ; S. v. Morphy, 33 Iowa, 370 ; Parsons v. S., 31 Ala. 300. "Reg. ■». Connor, 3 C. & K. 518 ; Livingstone v. C, 14 Gratt. (Va.) 593. Homicide 385 § 660. Causal Connection. — An act or omission that produces bodily injury resulting in death is deemed to have caused the death. The injury must have operated continually, until death ensued, without the interposition of an independent physical cause or an independent human will.' [Illustrations : — A ravished B, communicating to her a dis- ease of which she died. A was held to have killed B.^ A assaulted B, who at the time held in her arms C, an infant, which became so frightened, that it had convulsions of which it died. A was held to have killed C.^ A knocked B down and a horse trampled on B, killing him. A was not deemed to have caused B's death.*] A corporal injury is deemed to have been caused by an act of which it is the natural consequence f and death is deemed to have been caused by an omission, or neglect of duty, if it is the natural consequence of such neglect, provided the thing omitted is directly connected with the preservation of life.^ [Illustrations : — A is employed to put a gun in condition to be fired off on a particular occasion. He delivers it for such use in such an imperfect state, that on being fired on the occasion designated, it bursts, striking B, a by-stander, who dies in consequence. A has killed B.'' A, who is charged with the duty of regulating the ventilation of a mine and directing where air-headings should be placed, in order to insure the safety of workmen engaged therein, omits to direct an air-heading necessary to be placed in a certain part of the mine, in consequence of which neglect there is an explosion of fire-damp, causing the death of B, one of the workmen. A has killed B.* 'Hilton's Case, 3 Lewin, 214 ; C. ». Campbell, 7 Allen, 541 ; C. ». Macloon, 101 Mass. 1 ; Hendrickson e. C, 85 Kent. 381. 2Reg. i>. Greenwood, 7 Cox C. C. 404. SReg. V. Towers, 13 Cox C. C. 530. *P. V. Rockwell, 39 Mich. 503. 'Reg. o. Martin, 14 Cox C. C. 633; Reg. v. Halliday, 61 L. T. N. S. 701. •Reg. V. Pocock, 5 Cox C. C. 173. 'R. V. Carr, 8 C. & P. 163. 8Reg. V. Haines, 3 C. & K. 868. 35 ■386 Specific Offenses A, an official charged with keeping a public road in repair, neglects to provide for such repair and suffers the road to fall into decay. B, driving a cart along the road, falls into a hole, is thrown out and injured, and dies in consequence. A is not deemed to have killed B.'] § 661. Time Of Deatb. — An act or onaission producing bodily injury resulting in death is not deemed the cause of the death, unless the death ensued within a year and a day from the time when the injury was inflicted, in the computation of which time the whole day on which the hurt was done is regarded as the first day.^ § 662. Felonious Homicide. — All homicide is regarded in law as unlawful, or felonious, unless committed under excep- tional circumstances of excuse or justification.^ Felonious homicide, generally speaking, includes all acts designed to take human life ; acts which, though not designed to take life, are probably and naturally calculated to cause death; all mere neglects or omissions of duty connected with the preservation of human life. § 663. Acts Designed To Take l,ife The killing of any human being by an act designed to take human life is felonious homicide. It is immaterial, that no injury was in- tended to the person actually killed. If (e. g.) a blow aimed at one person lights upon and kills another, liability for causing death is of the same nature as if the person assailed had been killed.* If a trap or spring-gun is prepared or set with a gen- eral intent or desi'gn to take the life of any one who may fall or be caught therein, and a mortal wound is thus occasioned, this constitutes felonious homicide of the person actually killed : the general intent becomes special, when the means made use have taken effect on a particular person.^ The rule applies equally if a person does an act designed to take his own life : 'Reg. ». Pocock, 5 Cox C. C. 172. '3 Inst. 53 ; 4 Bl. Comm. 197. Tost. 225. ••lb. 261 ; C. V. Breyessee, 160 Pa. St. 451. »S. V. Barr, 11 Wash. 481. Homicide 387 such person is guilty of the felonious homicide of another person accidentally killed by the means designed to take his own life.^ § 664. Acts Calculated To Cause Death. — Homicide caused by the intentional doing of an act of which death is the natural and probable consequence is felonious,^ but no one is liable for accidental consequences of acts innocent and law- ful in themselves,^ nor for undesigned and improbable conse- quences of unlawful acts.* The following acts resulting in death constitute felonious homicide : Killing in au unlawful attempt to inflict bodily hurt or injury/ although slight hurt only may be intended.^ Any wanton or reckless use of a weapon/ missile,* vehicle,' or other like instrument or physical force or agency, e. g., riding an unruly horse into a crowd,'" letting loose a danger- ous animal," placing poison so that it may be taken for food.'^ (Especially does this doctrine apply where a shot is fired into a crowd," or a highway,'* or a weapon pointed in anger at a person,'* otherwise where a person points a firearm which he has reason to believe not loaded.'^) 'C. e. Mink, 133 Mass. 423. Mwte, ? 18. 'Fost. 359, 365; Reg. o. Bruce, 3 Cox C. C. 363. *1 East P. C. 357; Reg. ®. Franklin, 15 Cox C. C. 163; Estell v. S., 51 N. J. L. 183. 'Reg. V. Campbell, 11 Cox C. C. 328; S. ». Center, 35 Yt. 378. «Fost. 391-295 ; 1 East P. C. 335-338; C. «. Lewis, Addison, 379. 'Post. 363-365 ; 1 East P. C. 265-267; Reg. ». Jones, 13 Cox C. C. 628 ; Reg. ■B. Salmon, 14 lb. 494; Sparks ». C, 3 Bush (Ky.), Ill ; S. ». Vance, 17 Iowa, 138; S. ». Hardie, 47 lb. 647; P. v. Fuller, 3 Park. Cr. R. 16. sPost. 263-263 ; 1 East P. C. 262. 'Post. 263; 1 East P. C. 263; 1 Russ. Cr., 9 ed,, 867-874. '»1 East P. C. 331. "lb. 365. "lb. 366. 13 Aiken e. P., 10 Tex. App. 610. "C. ». Hawkins, 157 Mass. 551. "8. 0. Dugan, 1 Houst. (Del.) Cr. 563. "Fost. 263-365; 1 East P. C. 265-288; Robertson v. S., 3 Lea (Tenn.l, 339. 388 Specific Offenses Engaging in sports productive of danger;^ engaging in an act tending to endanger human life merely to frighten another person.^ Administering improper drugs or medical treatment under circumstances of gross ignorance, rashness or negligence.^ § 665. JVegleets And Omissions. — Homicide caused hy the- neglect or omission of a legal duty to do a thing necessary for the preservation of human life is felonious. Death caused by neglect or omission is felonious homicide in the following instances: Failure to provide shelter and other necessaries for a wife, infant child, apprentice, servant, or other helpless or dependent person,* whether the obligation thus to provide is primarily imposed by law or arises out of a duty voluntarily assumed;^ failure to take proper precaution in the conduct of a business, such as the running of a steamboat* or railroad,^ the manage- ment of a vehicle,* a machine,' or the like, where there is a duty directly connected with the safety of life. There is no liability for a mere failure to guard life in the absence of a legal duty arising out of some such relation or pursuit as above stated,'" except under circumstances where a failure to prevent homicide is punishable as misprision." § 666. Justification And Excuse. — Homicides committed under the following circumstances are not unlawful, or felonious : iFost. 259-261 ; 1 East P. 0. 270-271. 'Errington's Case, 2 Lewin, 217 ; R. o. Conner, 7 C. & P. 438 ; R. v. Sullivan, lb. 641 ; S. V. Roane, 2 Dev. (N. C.) L. 58 ; Collier v. S., 39 Ga. 31. '1 Russ. Cr., 9 ed., 687-699 ; Reg. v. Chamberlain, 10 Cox C. C. 486;|Reg. v. Spencer, lb. 525 ; S. ®. Hardister, 38 Ark. 605 ; C. ®. Pierce, 138 Mass.|165. «1 Russ. Cr., 9 ed., 678-686 ; Reg. v. Nicholls, 13 Cox C. C. 75 ; C. o. Coyle, 160 Pa. St. 36 ; 8. e. Smith, 65 Me. 257. »Reg. ». Instan, 17 Cox C. C. 602. 6U. S. V. Taylor, Fed. Cas. 16,441. 'Reg. V. Pargeter, 3 Cox 0. C. 191 ; S. «. O'Brien, 32 N. J. L. 169. *Reg. ». Jones, 11 Cox C. C. 544. 'Reg. V. Lowe, 4 Cox C. C. 449. "Reg. V. Smith, 11 Cox C. C. 210. iM»i«, ? 39. Homicide 389 In actual battle during time of war;' the execution, by the person, at the time and in the manner, authorized of capital sentences;^ homicide by a military officer acting in accordance with military law, or by a soldier acting in obedience to an (at least) apparently valid order of his military commander;^ homicides in making arrests, preventing flight and escape, sup- pressing disturbances and necessary defense of person and property.* § 667. Making Arrests. — In cases of resistance, the person having authority to arrest or imprison may repel force with force and, if death ensue, will be justified, if he keep within due bounds, both as to using the proper means for the purpose of effecting the arrest or imprisonment and of overcoming the resistance, using no unnecessary or excessive force.° § 668. Preventing Flight. — Upon mere flight, in cases of felony (not misdemeanor), the offender may be killed, pro- vided he cannot otherwise be overtaken.^ [When the doctrine here stated was formulated, felony meant an offense punishable with death,' and it may be considered doubtful, whether the rule is strictly applicable at the present day, and questioned, whether life may be taken, in order to prevent flight, in any but the highest grade of felonies, punish- able with death.'] § 669. Preventing Escape. — After arrest, the officer having effected the arrest and the gaoler or prison-keeper having custody of the accused may in like manner overcome resistance to the restraint imposed by him and repel force with force as in the case of making arrests.' The officer or keeper may kill his prisoner, if absolutely necessary to prevent escape, n Hale, 43, 59 ; 8. v. Gut, 13 Minn. 341, 357. n Hawk., ch. 38, iH-10; 4 Bl. Comm. 178. 'Riggs ®. S., a Coldw. (Tenn.) 85. *Posi,?? 667-673. Mnfe, i 100. «Ib. ; Reneau ®. S., 3 Lea (Tenn.), 730. ''Ante, 1 5. 8U. S. '0. Clark, 81 Fei R. 710. n Hale, 481 ; 1 Hawk.,'ch. 38, g 18; Fost. 331. 390 Specific Offenses whether the offense be felony or misdemeanor; but cannot use any means to recapture an escaped prisoner that would not have been justified in making the first arrest.' § 670. Suppressing Disturbances. — In the case of riots and affrays an officer or private person may interpose to pre- serve the peace, conveying notice of his intention, and if in the struggle ensuing the offender should be killed, or if dangerous rioters standing their ground are killed, as the inevitable-means of suppressing the riot, the homicide will be justified.^ § 671. Defense Of Person.^ — If a forcible and atrocious crime is attempted againt the person — murder, rape, robbery, or the like — it is justifiable to kill the person attempting such crime, if it cannot otherwise be prevented ;' but no unnecessary or excessive force may in any case be used.* If the peril is imminent, one assailed, being himself without fault, need not retreat, but may stand his ground, or even pursue and kill or disable an assailant who maliciously seeks to take his life or do him enormous bodily harm;^ and it is justifiable to arm one's self in anticipation of such an assault.* The person assailed is justified in acting upon the facts as they appear to him.^ A third party interposing is legally in the attitude of self- defense in defending one not in fault.^ An attempted battery, short of an endeavor to destroy life or inflict grievous bodily harm, may be met by resisting force with force,' and, if death ensue, the person assailed will be justified, provided he has used no unnecessary violence and has retreated IS. ■». Sigman, 106 N. C. 728. n Hawk., ch. 28, 2 14; Fost. 374. 'Starr v. U. S., 153 U. S. 614. ^Hopkins v. V. S., 4 App. D. C. 430 ; C. v. Breyessee, 160 Pa. St. 451 ; Storey f). S., 71 Ala. 380. 'Beard ». U. S., 158 U. 8. 550; Rowe v.V. S , 164 lb. 546; Page ». S., 141 Ind. 336. 'Allen «. U. S., 157 U. S. 675. 'Starr v. U. S., 153 U. S. 614; Barr v. S., 45 Net). 459. ^Ante, §507. «Ib. Homicide 391 as far as he conveniently and safely can, in order to avoid the conflict and escape from shedding blood.' Within this principle, an attempted illegal arrest or restraint of liberty may be resisted by the use of reasonable force short of taking life,^ and a person legally arrested may defend himself against the use of excessive force on the part of the ofiicer or person making the arrest' If an attempt is made to convey a person by force beyond the reach of lavv^s, or carry him out of the country, it is said, that he is justified in resisting unto death.^ The fact, that one provoked a quarrel or was a wrongdoer does not operate to forfeit his right of self-defense.^ § 672. Defense Of Property. — An attempted arson or burglary in an inhabited dwelling may be met with sufficient force to prevent it, extending to the taking of the life of the wrongdoer; but this applies only to the defense of an inhabited dwelling, not to a defense of other property, nor to a defense of the habitation against a mere trespass, nor to a taking of life in any case, unless unavoidable.* The setting of spring-guns or like devices in buildings or even in dwellings, in the latter case, at least, if there is no occupant whose life could be endangered by a burglarious entry, is not authorized.' A third party may assist another in the lawful defense of his habitation.* § 673. Divisions Of Felonious Homicide. — Felonious homicide is divided into murder and manslaughter. '1 East P.O. 279-387. 'Goodman ». S., 14 Tex. App. 349; Creighton v. C, 84 Kent. 103; Williams r>. S., 44 Ala. 41. 38. V. Belk, 76 N. C. 10; Williams ®. S., 44 Ala 41, 45. *Creighton v. C, 84 Kent. 108, 108 ; Briggs v. C, 83 Va. 554, 565. sRowe ». U. S., 164 U. S. 546; Foutch ». S., 95 Tenn. 711; Reed «. S., 11 Tex. App. 509. «Beard». U. S., 158 U. S. 550; S. ®. Dooley, 121 Misso. 591; C. ». Drew, 4 Mass 391, 396. '8. V. Ban-, 11 Wash. 481. MKf«, ?508. 392 Specific Offenses Murder is unlawful, or felonious, homicide with malice afore- thought. Manslaughter is unlawful, or felonious, homicide without malice aforethought. "Malice" denotes intent to take life without legal justification or excuse' (intent being used in the sense heretofore defined^). "Aforethought" denotes, that the state of mind imported by "malice" must have preceded or co-existed with the act or omis- sion by which death was caused.' Felonious homicide is deemed not to have been committed with malice aforethought, and involves only the lesser, or miti- gated guilt of manslaughter, if it results from mere neglect or omission or other merely unlawful conduct, where there is no design to take life or inflict serious bodily injury ;^ if committed, without premeditation,^ in the heat of passion, under certain circumstances of provocation.* In cases not falling within these exceptions, felonious homicide is deemed murder.'^ § 674. ninrder And Manslaughter. — Unlawful and un- provoked^ killing by means of an act designed to take life or to inflict grievous bodily injury which would naturally and com- monly involve loss of life is murder.^ Unlawful and unpro- voked killing contrary to intention by means not likely to produce death or mortal injury is manslaughter.*" Unlawrful killing resulting from an act which the perpetrator knows to be likely to cause death or mortal injury is murder." Unlawful 'C.[«. Tork, 9 Mete. 93. 'Ante, 1 18. ^AUen V. U. S., 164 U. S. 493; P. v. Clark, 7 N. Y. 385, 393-394; Mltchum v. S., 11 Ga. 615, 628; S. s. Hockett, 70 Iowa, 443, 449; McAdams «. S., 25 Ark. 405; Donnelly «. S., 36 N. J. L. 601. *Post, 1 674. 'Unpremeditated felonious homicide may be either murder or manslaughter, but the existence of premeditation excludes the idea of the mitigated guilt of manslaughter. «Posi, §675. 'Pointer v. U. S., 151 U. S. 396, 414. »/. e., as defined in ? 675. 94 Bl. Comm. 199. '"Wellar v. P., 30 Mich. 16. "Mayes 0. P., 106 111. 306. Homicide . 393 undesigned killing resulting from an act tending to endanger life, done in a merely heedless or incautious manner, is man- slaughter. Thus, in cases of killing accidentally in sports productive of danger or riot, killing by riding a horse into a crowd, driving a vehicle, throwing stones into a street, firing a weapon, letting a vicious animal at large, the offense is murder, if the person saw or knew the danger and persisted, or acted with mischievous intent, or in wilful disregard of consequences ; it is manslaughter, if he was merely negligent, without mis- chievous intent or wilfulness.' The same distinctions apply as to felonious homicide by omission. If death ensued rather from an incautious neglect than a wilful disposition to injure, or obstinate perseverance in a course of conduct necessarily attended with danger, regard- less of consequences, the offense is manslaughter; otherwise it is murder.^ Excessive chastisement^ of a child by a parent, guardian or schoolmaster, if death ensue, is at least manslaughter. If the beating was inflicted with intent to kill or cause mortal injury, or in a manner or under circumstances likely to cause death or mortal injury, it amounts to murder.^ If one, in resisting or opposing by force an officer of justice or a private person in the execution of his duty or lawful right in the matter of a legal arrest, imprisonment or keeping in custody, or preserving the peace, or dispersing an unlawful assembly, kills such officer, or one assisting him, or such pri- vate person, the offense is murder; but, if such officer or other person acts without legal authority, or in an illegal manner, the offense is manslaughter, unless the force used was excessive and with a design to take life or inflict mortal injury.' The word '1 Hawk., ch. 39, §13; Fost 258-365; 1 East P. 0. 231-335, 260-361; Camp- bell V. P., 11 Cox C. C. 338. n East P. C. 236; R. v. Squire, 1 Russ. Cr., 9 ed., 677-678; Reg. •». Plum- mer, 1 C. & K. 600 ; Reg. v. Marriott, 8 C. & P. 435 ; Reg. v. Conde, 10 Cox C. C. 547; U. S. V. Freeman, Fed. Cas. 15,163; Lewis ». S.", 73 Ga. 164. 'Ante, i 509. *1 Hawk., ch. 39, ? 5; Fost. 363; 1 East P. 0. 361; Powell v. S., 67 Miss. 119. n Russ. Cr., 9 ed., 733-738; 3 Greenl. Ev. § 133. 394 Specific Offenses "officer," in this connection, includes officer de facto} Igno- rance of the fact, that one attempting to arrest is an officer, or vested with authority, places the person resisting in the attitude of self-defense.^ The doing of a merely illegal act does not, apart from its likelihood (under particular circumstances) to cause death, affect the question of guilt," and a mere intent to commit a felony does not render a homicide murder. An act done for the pur- pose of committing a felony is murder, only if known to be dangerous to life and likely in itself to cause death.* The old doctrine, that a mere intent to commit any felony renders a homicide murder is "as much mistaken in law as it is repug- nant to common sense and humanity"^ and would probably be repudiated by every modern tribunal.* § 675. Homicide In Heat Of Passion Felonious homi- cide is deemed not to have been committed with malice afore- thought and to involve only the lesser, or mitigated, guilt of manslaughter, if the act causing death is done in the "heat of passion," caused by adequate, or reasonable, "provocation,"' p? ovided the provocation is not sought or caused by the offen- der as an excuse for killing or doing harm.^ The passion must be sufficiently intense to have temporarily suspended the influence and control of reason.' 'S. i>. Brooks, 39 La. Ann. 817; S. v. Dierberger, 90 Misso. 369; Creighton ». C, 83 Kent. 142; S. C, 84 lb. 103; In re Boyle, 9 Wis. 364. ^Starr v. U. S., 153 U. S. 614. ^Ante, § 664. JReg. 41. Serne, 16 Cox C. C. 311. 'Stephen Gen. View, 2 ed., 131-132. 'The ancient doctrine under which a felonious design upon a neighbor's hen-coop was metamorphosed Into an intent to murder seems to have origi- nated in the imagination of Lord Coke, who wrote at a period when all felonies were punishable capitally, and cannot be supported or defended upon any moral or legal principle or reason. It seems to have been copied hv later writers without any strict investigation and probably without any serious belief, that it would be followed in practice. 'It is immaterial, whether or not there existed a mere Intent to kill. P. ». Freel, 48 Cal. 436. n East P. C. 238; Honesty ». C, 81 Va.283, 298-299; S. v .lohnsou, 1 Ired. (N. C.)L. 3.54. n East P. C. 238; S. ». Hill, 4 Dev. & B. (N. 0.) 491, 496. HoMioiDK 395 Adequate, or reasonable, provocation arises out of the follow- ing acts, or under the following circumstances : Assault and battery of such a nature as to inflict actual bodily harm or great insult;' if two persons engage in a fight upon a sudden quarrel and without the offender's having taken undue advantage, or acted in a cruel or atrocious manner, it being immaterial, which party offers the provocation or commits the first assault;^ an unlawful arrest or imprisonment;' the finding by the husband of his wife in the act of adultery (provocation to him by both guilty parties*) ; the sight by the father of the act of sodomy committed upon his son.^ An injury to a near relation may amount to provocation.^ § 676. Divisions Of Murder On April 22d, 1794, the legislature of Pennsylvania passed an act, which has been very generally followed in the United States by substantially similar legislation, dividing murder into two degrees and restricting the death penalty to the higher degree. This act provides as follows .'' All murder which shall be perpetrated by means of poison, or lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpe- tration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder of the second degree. The terms "wilful, deliberate and premeditated" are inter- preted as follows : 14 Bl. Comm. 191 ; 1 East P. C. 333. n East P. C. 241-243 ; R.,». Shaw, 6 C. & P. 372; S. v. Mitchell, 9 Ired. (N. C.) L. 429; S. v. Floyd, 6 Jones (N. C.) L. 393. n Russ. Cr., 9 ed., 785 ; Reg. v. Carey, 14 Cox C. C. 214 ; RafEerty ». P., 69 111. 111. *1 Russ. Cr., 9 ed., 786; S. v. Samuel, 3 Jones (N. C.) L. 74; S. ®. Holme, 154 Mlsso. 153, 165-167; Shuffin «. P., 62 N. T. 339; Price ». S., 18 Tex. App. 474. n Russ. Cr., 9 ed., 786. ^Collins V. U. 8., 150 U. S. 62; McWhirt's Case, 3 Gratt. (Va.) 594. 396 Specific Offenses ""Wilful" — there must be a specific purpose and design to kill.^ "Deliberate" — there must be a full and conscious knowledge of the purpose to do so.^ "Premeditated" — the design must precede the killing by an appreciable length of time,^ "time enough to deliberate."* In order to justify a conviction of murder in the first degree as thus defined, the jury must find the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.^ Upon the question, whether the killing was wilful, deliberate and premeditated, it is proper for the jury to consider evidence of intoxication, if such there be, in order justly to determine whether the mind of the accused was capable of that delibera- tion or premeditation the existence of which determines the degree." If the killing is proven and no circumstances of justification or excuse appear, the homicide is presumptively murder in the second degree, and the burden is upon the prosecution to establish the circumstances that are essential to guilt in the higher degree.' If the homicide appears clearly to be murder, the verdict should be of murder in the second degree, unless these circumstances are proven beyond all reasonable doubt. § 677. Self-Murder. — The life of a human being cannot lawfully be taken by himself or by another with his consent. A person who intentionally takes his own life,' or that of another at the latter's desire or instance,' is guilty of murder. iQ. 11. Munay, 2 Ashm. (Pa.) 41, 56; C. v. Keeper, lb. 237; C. v. Drum, 58 Pa. St. 9. ^C. ®. Drum, 58 Pa. St. 9 ; Jones v. C, 75 lb. 403. 'P. ®. Majone, 91 N. Y-. 211. *S. ■5. Rutten, 13 Wash. 208. "C. V. Drum, 58 Pa. St. 9. «Hopt 9. P., 104 U. S. 631. 'Hill V. C, 2 Gratt. (Va.) 594. 84 Bl. Comm. 189. n Hawk., ch. 27, § 6. Homicide 397 One who persuades another to kill himself is guilty of murder.^ If the persuasion is acted upon in his presence, he is a principal in the second degree f and if two agree to commit suicide together, aiding or encouraging each other in the use of means to that end, and one only dies, the survivor is guilty of his murder.^ One who encourages another to commit suicide, hut is absent at the commission of the offense, is an accessory before the fact, and, at the strict common law, escapes punish- ment only because he can not be convicted where there can be no conviction of the principal.* One who attempts to take his own life is guilty of a misde- meanor,' and if, as a result of the attempt, another person is killed, he is guilty of a felonious homicide." § 678. Indictment. — It is usual and ordinarily proper to allege an assault and battery upon the deceased.'^ The manner and means of killing, if known, must be set forth as specially as the nature of the case will admit.* The weapon used should be described by name,' no particularity being necessary in the description.'" The manner of using or handling it and thereby causing death must be averred." The wound must be alleged to be mortal,'^ and there must be an averment, that death proceeded from the wound given, poison 14 Bl. Comm. 189. 'C. V. Bowen, 13 Mass. 356 (explained in C. «. Dennis, 105 lb. 162, 163).. »Reg. V. Allison, 8 C. & P. 418. *R. V. Russell, 1 Moody, 356. 'Reg. ». Doody, 6 Oox C. C. 463. «C. V. Mink, 123 Mass. 423. 'Lester v. S., 9 Misso. 666. 83 Hawk., eh. 23, ?84; 1 East P. C. 341; R. v. Tye, R. & R. 345; Haney o. S., 34 Ark. 363 ; S. ». Williams, 36 Tex. 353. •Dryer v. S., 14 Tex. 185. '»S. v. Smith, Phill. (N. C.) 340; P. v. Choiser, 10 Oal. 310; Jeffries «. C, 84 Kent. 337. "1 East P. C. 341 ; 3 CMtty Or. L. 734; Edwards v. S., 37 Ark. 493. "3 Chitty Or. L. 734; S. «. Morgan, 85 N. C. 581. The allegation, that the person died of the wound held a sufficient averment, that it was mortal. Brown v. S., 18 Flor. 472. 398 Specific Offenses administered, etc' A description of the wound is not neces- sary.^ It has been held, that it is unnecessary to locate the wound otherwise than " upon the body."* Poison is sufficiently described as " a certain poison, to wit " (naming it.)* Time and place of both the injury and the death must be alleged, in order that it may appear, that the death ensued' within a year and a day from the injury and that the homicide was committed within the territorial limits of the jurisdiction of the court.^ An indictment for murder,' in addition to the allegation "feloniously," must contain the terms "malice aforethought"^ and " murder."^ The words " unlawfully " and " wilfully " are not necessary.' Proper descriptive words at the beginning of the indict- ment may, by necessary intendment, be applied to subsequent parts.'" An indictment for murder in the first degree, in addition to the other allegations of an indictment for murder, must, in order to sustain a conviction of murder in this degree, aver specifically the intent or other matters essential to guilt in such degree." 13 Chitty Cr. L. 735-736; Lutz v. C, 29 Pa. St. 441. "C. •». Woodward, 102 Mass. 155 ; S. ®. Conley, 39 Me. 78. 'S. ti. Yordi, 80 Kansi 221 ; Sanchez v. P., 22 N. Y. 147. Contra: Nelson v. S., 1 Tex. App. 41. *Epps V. S., 103 Ind. 539 ; S. ». Slagle, 83 N. C. 630. '3 Chitty Cr. L. 736-737; Ball 0. U, S., 140 U. S. 118. n Chitty Cr. L. 243. 'P. ■». Schmidt, 63 Cal. 38. Held, that no other words will suffice. McElroy ». S., 14 Tex. App. 335. n Chitty Cr. L. 243. »S. V. Arnold, 107 N. C. 861. "St. Clair v. U. S., 154 U. S. 134. "According to the weight of reason. Schaffer 0. S., 33 Neb. 557 (cases cited); Blanton ». S., 1 Wash. 365; Snyder «. S., 59 Ind. 105; S. 0. Lowe, 93 Misso. 547, 573-574; Cannon b. S., 60 Ark. 504; S. v. McCormick, 37 Iowa, 402 ; 8. «. Watkins, lb. 415 ; Denham v. S., 33 Flor. 664. Homicide 399 § 679. Forms Of Indictments — - 1. Murder By Striking With An Axe. The Jurors etc. present, that A. B., on etc., at etc., in and upon one C. D. did make an assault and with a certain axe the said C. D. in and upon the back side of the head of the said U. D. then and there feloniously and of malice aforethough did strike and bruise, giving to the said C. D., then and there, with the axe aforesaid, in and upon the back side of the head of the said C. D. one mortal wound ; of which said mortal wound the said C. D. then and there instantly died : and so the said A. B. did, in manner and form aforesaid, feloniously and of malice aforethought kill and murder the said C. D., against the peace etc. 2. Murder By Shooting With A Pistol. The Jurors etc. present, that A. B., on etc., at etc., feloniously, wilfully and of his deliberately premeditated malice aforethought in and upon one C. D. did make an assault, and a certain pistol, then and there loaded with gun- powder and one leaden bullet, then and there feloniously, wilfully and of his deliberately premeditated malice aforethought did discharge and shoot off against and upon the said C. D., thereby then and there striking, penetrating and wounding the said C. D. in and upon the left side of the said C. D. imme- diately under the lowest rib of the said C. D., and inflicting in and upon the said left side immediately under the lowest rib of the said C. D. one mortal wound, of which said mortal wound, the said C. D., from said day of until the — • day of , at aforesaid did languish, and languishing did live, and on wj^hich said last-mentioned day, he, the said C. D., at aforesaid, of the said mortal wound died : and so the said A. B., did in manner and form aforesaid, feloniously, wilfully and of his deliberately premeditated malice aforethought kill and murder the said C. D., against the peace etc. 3. Murder By Droioning. The Jurors etc. present, that A. B., on etc., at etc., feloniously and of his malice aforethought in and upon one 0. D. did make an assault and him, the said C. D., then and there feloniously and of his malice aforethought did cast, throw and push into a certain pond there situate, wherein there then was a great quantity of water, by means of which said casting, throwing and push- ing of the said C. D., into the pond aforesaid by the said A. B., in manner aforesaid, the said C. D., in the pond aforesaid with the water aforesaid, was then and there choked, suffocated and drowned, of which choking, suffocation and drowning the said C. D. then and there instantly died: and so the said A. B. did, in manner and form aforesaid, feloniously and of his malice afore- thought kill and murder the said C. D., against the peace etc. 4. Murder By Poison. The Jurors etc. present, that A. B., on etc., at etc., feloniously, wilfully and of his malice aforethought did give and administer to one C. D. a certain large quantity, to wit, ten grains in weight, of a certain deadly poison called strychnine, he, the said A. B., then and there well knowing the same to be a deadly poison, with the intent, that the said C. D. should then and there take 400 Specific Offenses and swallow the same down into his body, and the said C. D. the said poison, so given and administered as aforesaid, did then and there take and swallow into his body and by reason thereof became then and there mortally sick and distempered in his body, and of said mortal sickness and distemper did then and there languish, and languishing, for the space of one half hour did there live, and afterwards, on the day and year aforesaid, did there die of the mortal sickness and distemper then and there caused by the poison aforesaid, so as aforesaid by the said A. B. then and there feloniously, wilfully and of his malice aforethought given and administered to him, the said CD.: and so the said A. B. did, in manner and form aforesaid, feloniously and of his malice aforethought kill and murder the said C. D. against the peace etc. 5. Murder By Unknown Means. The Jurors etc. present, that A. B., on etc., at etc., in and upon one C. D., feloniously, wilfully and of his malice aforethought did make an assault and the said C. D., in some way and manner and by some means, instruments and weapons to the Jurors aforesaid unknown, did then and there feloni- ously, wilfully and of malice aforethought deprive of life, so that the said CD. then and there died : and so the said A. B. did, in manner and by means unknown as aforesaid, feloniously and of his malice aforethought kill and murder the said C D., against the peace etc. 6. Manslaughter By Driving Over Deceased. The Jurors etc. present, that A. B., on etc., at etc.. in and upen one C D., feloniously did make an assault, and a certain cart, then and there drawn by two horses, which he, the said A. B. was then driving along a public high- way there, in, upon and against the said C. D. feloniously did then and there force and drive, and him, the said C D., did thereby, then and there, throw to and upon the ground, and did then and there feloniously force and drive one of the wheels of the said cart against, upon and over the head of him the said C. D., then lying upon the ground there, and thereby did then and there give to the said C D., in and upon the head of him, the said C D., one mortal fracture and contusion, of which said mortal fracture and contusion the said C D. then and there instantly died: and so the said A. B. did, in manner and form aforesaid, feloniously kill and slay the said C D., against the peace etc. § 680. Short Statutory Forms — ^By 24 & 25 Vict., ch. 100, § 6 and similar statutes in various states, it is made unnec- cessary, in indictments for homicide, to set forth the manner or means of death.' Such legislation has been sustained against objections on constitutional grounds.^ Indictments thereunder may be worded as follows : '3 Russ. Cr., 6 Eng. ed., 145-146. ^Noles ». 8., 34 Ala. 673; Newcomb v. S., 37 Miss. 383; Wolf ». S., 19 O. St. 248; Rowan v. S., 30 "Wis. 139. Homicide 401 1. Murder. The Jurors etc. present, that A. B., on etc., at etc., feloniously and of his [deliberately premeditated] malice aforethought did kill and murder C. D., against the peace etc. 2. Manslaughter. The Jurors etc. present, that A. B., on etc. at etc., feloniously did kill and slay C. D., against the peace etc. § 681. Evidence. — The burden of proofs is upon the pros- ecution throughout, to establish the guilt of the accused beyond all reasonable doubt, and applies to every element necessary to constitute the crime ,^ including every circumstance that enters into the grade, or degree.' Thus, if there is a reasonable doubt as to the degree of murder, or of homicide, the jury must find the lowest degree consistent with the evidence. Neither malice nor any other element of criminality can ever, as matter of law, be "presumed" from a given state of facts.* The corpus delicti may, like any other fact, be established by circumstantial evidence, but the proof must be of the most cogent and convincing character.^ The proof must correspond with the allegations, but it is sufficient, if the death is shown to have been caused in a manner, or by means, of the same general character as those charged.^ If self-defense is claimed, any facts tending to prove the real motive of the accused, or the purpose of the deceased, influenc- ing their respective actions, are relevant in evidence. Included herein are the ferocious, vicious or dangerous disposition or character of the deceased, his prior conduct, threats or declar- ations. They are admissible upon two grounds : ^Ante, ? 357. ^Davls ®. U. S., 160 U. S. 469, 487. 'Davis V. S., 10 Ga. 101 ; Payne v. C, 1 Mete. (Ky.) 370 ; P. v. Kelly ,;^35 Hun, 295 ; Morgan o. S., 16 Tex. App. 593. *S. e. Earnest, 56Kans. 31 ; S. ». Swaze, 30 La. Ann. 1333. '^Ante, I 359. ^Ante,^ 361 ; 3 Greenl. Et. § 140. 36 ^^^ Specific Offenses 1. If known (communicated) to the accused, as tending to show his qvx) animo, his own estimate of his danger, and thus to explain or palliate his conduct.' 2. If unknown (uncommunicated) to the accused, as tending to show his real danger and actual situation arising out of the attitude (intent, feeling) of the deceased.^ In like manner, if self defense is claimed, evidence of the relative strength and size of the accused and the deceased is relevant as bearing upon the motive and conduct of the parties.^ The declarations of the accused antecedent to the alleged killing have been held admissible, when they tend to explain and reconcile his conduct.* The relations between the accused and the deceased prior to the commission of the homicide are relevant to the question of deliberation and premeditation.* § 682. Verdict. — The jury are the exclusive judges as to what degree of homicide they shall find,* and if they errone- ously convict of a lesser degree than that required by the proof, the verdict can not be set aside.' Statutes requiring, that upon an indictment for murder the verdict must find the degree are mandatory, and a verdict not expressly finding the degree is a nullity.* Under such statutes, 'Noles V. S., 26 Ala. 31 ; Powell v. S., 52 lb. ] ; S. «. Keene, 50 Misso. 357; 8. h. Bryant, 55 lb. 75 ; S. ». Downs, 91 lb. 19 ; Palmore o. S., 29 Ark. 348. 'Wiggins ». P., 93 U. S. 465 ; Allison e. U. S., 160 lb. 203 ; Smith b. U. S., 161 lb. 85 ; May v. S., 90 Ga. 798; S. ■». Turpin, 77 N. C. 478; S. v. Dodson, 4 Or. 64; Turpin ». S., 55 Md. 462; 8. o. Helm, 92 Iowa, 540, 547-549. 'Smith V. U. 8., 161 U. S. 85; C. v. Barnacle, 134 Mass. 215; Wilkens v. S., 98 Ala. 1. *a. V. Ridgely, 2 Harr. & McH. (Md.) 120. An expression of fear hj the accused held admissible. C. v. Crowley, 165 Mass. 569. 'P. i>. Barberi, 149 N. Y. 256 {seduction of accused by deceased). «Lane «. C, 59 Pa. St. 371. '8. «. Lindsey, 19 Nev. 47. 'Williams ». S., 60 Md. 402; Johnson «. 8., 30 Tex. App. 419; Dick. v. 8., 3 O. St. 89 ; Parks v. 8., lb. 101; Thompson v. S., 26 Ark. 823; Parrish v. S., 18 Neb. 405; 8. v. Rover, 10 Nev. 388; P. ». Campbell, 40 Cal. 129; Cobia ». S., 16 Ala. 781 ; Levison ®. 8.', 54 lb. 520 ; S. i>. Montgomery, 98 Misso. 399 ; 8. o. Jackson, 99 lb. 60; Hall s. 8., 31 Flor. 176 ; S.e. Moran, 7 Iowa, 286. Contra: Leschi v. Terr., 1 Wash. T. N. 8. 13 ; Cook ». Terr., 3 Wyom. ] 10 ; 8. v. Weese, 53 Iowa, 92; P. v. Rugg, 98 N. Y. 587 ; Terr. ». Romine, 3 N. M. 114. Homicide 403 a verdict of "guilty of murder in the second degree," without expressly negativing murder in the first degree, is sufficient.* It was formerly supposed, that a verdict of "guilty of man- slaughter" upon an indictment for murder, without expressly finding "not guilty of murder," was insufficient,^ but this strict- ness has been relaxed.* iC. 0. Hertly, 109 Mass. 348 ; "Weigliorst v. S., 7 Md. 442. ^3 Hawk., ch. 47, § 5. ^1 Chitty Cr. L. 641. Contra : S. v. Flannigan, 6 Md. 167. 404 Specific Offenses CHAPTER LXVIII. mCEST. § 683. The Offense. — Incest is sexual intercourse or cohab- itation between a man and a woman who are related to each other within the degrees wherein marriage is prohibited by law.^ The term "related" in this definition includes illegitimate consanguinity.^ Incest is not punishable at the strict common law,'^ but is made so by statute in nearly every state. Marriages between persons in the direct line of consanguinity and between brothers and sisters are universally regarded as incestuous.* Relationship by affinity ceases with the dissolution of the mar- riage creating it.^ § 684. Procedure. — The matter and form of the allega- tions and the procedure generally are, to a considerable extent, dependent upon the meaning and construction of the various local statutes. It has been held, that one of the parties to an incestuous intercourse may be indicted alone,* and that upon a joint indictment one alone may be convicted.'' Each act of incestuous commerce is a separate offense, and the crime can not be laid with a continuando} The relationship and pedigree of the parties may be proved by reputation,' or by admissions.^" Other acts of familiarity and intercourse than that alleged are admissible in evidence. ^^ 'Terr. v. Corbett, 3 Mont. 50. ^S. ■». Schaunhurst, 34 Iowa, 547; Morgan v. S., 11 Ala. 389 ; S. d. Lawrence, 95 N. 0. 659 ; P. -u. Lake, 110 N. Y. 61. '4 Bl. Comm. 64-65 ; S. ». Kessler, 78 N. C. 469 ; Turberville v. S., 4 Tex. 128. *C. V. Lane, 113 Mass. 458, 463. sjohnson v. S., 20 Tex. App. 609. "Yeoman ». S., 31 Neb. 171. 'S. V. Ellis, 74 Misso. 385. sBarnhouse o. S., 31 O. 8t. 39. •Ewell ■B. S., 6 Yerg. (Tenn.) 364; S. ■». Bullinger, 54 Misso. 142, 144. "P. ». Jenness, 5 Mich. 305. "S. ®. Markins, 95 Ind. 464 (cases cited). Incest 405 § 685. Forms Of Indictments. — 1. The Jurors etc. present, that A. B., on etc., at etc., unlawfully and incestuously did have carnal knowledge of the body of one C. D., who was then and there the {stating relationship) of him, the said A. B., against the form etc. 3. The Jurors etc. present, that A. B. and C. D., on etc., at etc., unlawfully and incestuously did have carnal knowledge each of the body of the other, the said A. B. then and there being the {stating relationship) of the said C. D. and the said 0. D. the {stating relationship) of the said A. B., against the form etc. 406 Specific Offenses CHAPTER LXIX. KIDNAPPING. § 686. The Offense. — ^Kidnapping is the forcible abduc- tion, or stealing and carrying away, of a person from one country to another.' The offense is essentially a false imprison- ment aggravated by carrying out of the country.^ It has been held, that the offense is complete, if a person is seized with the intent to take him to another country and partially transported, though not beyond the country where seized.' Physical force or violence directly applied to the person is not necessary: the offense may be committed by means of threats, fraud or putting in fear and bringing into subjection to the will of the captor,* as by wrongfully procuring the acqui- escence of a minor unable to give consent,' by taking possession of a child with a strong hand,° by procuring the intoxication of the person taken away.^ Fraud and violence are said to be the same.' A father may incur guilt by carrying away his child, if the custody has been awarded to the mother.' Guilt may be incurred, though the seizure and carrying away is under color of process (e. g., a warrant of arrest), valid upon its face.'" § 687. Federal Statutes. — Every master, or owner, or person having charge of any vessel, who receives on board H Bl. Comm. 219 ; 1 Russ. Cr., 9 ed., 962 ; Click v. S., 3 Tex. 283. ^Click V. S., 3 Tex. 282 ; Eberling ■o. S., 136 Ind, 117. 3S. ». Rollins, 8 N. H. 550. *Moody 0. P., 20 111. 315. 'U. 8. ■». Ancarola, 1 Fed. R. 676 ; 8. v. Rollins, 8 N. H. 550. •8. 0. Farrar, 41 N. H. 53 ; C. v. Nickerson, 5 Allen, 518. 'Hadden ®. P., 25 N. Y. 373. sp. 0. De Leon, 109 N. Y. 226. »8. e. Farrar, 41 N. H. 53. "P. v. Fick, 89 Cal. 144. Kidnapping 407 any other person with the knowledge or intent, that such person is to be carried from any state, territory or district of the United States to a foreign country, state or place, to be held or sold as a slave, or carries away from any state, terri- tory or district of the United States any such person, with the intent, that he may be so held or sold as a slave, shall be punished by a fine of not more than five thousand nor less than five hundred dollars, or by imprisonment not more than five years, or by both.^ Every person who kidnaps or carries away any other person with the intent, that such other person be sold- into involun- tary servitude, or held as a slave; or who entices, persuades or induces any other person to go on board any vessel, or to any other place, with the intent, that he may be made, or held as, a slave, or sent out of the country, to be so made or held; or who, in any way, knowingly aids in causing any other per- son to be held, sold, or carried away, to be held or sold, as a slave, shall be punished by a fine of not less than five hundred, nor more than five thousand dollars, or by imprisonment not more than five years, or by both.^ Whoever shall knowingly and wilfully bring into the United States, or the territories thereof, any person inveigled or forcibly kidnapped in any other country, with intent to hold such person so inveigled or kidnapped in confinement, or to any involuntary service, and whoever shall knowingly and wilfully sell, or cause to be sold, into e^y condition of involuntary servitude any other person, for any term whatever, and every person who shall knowingly and wilfully hold to involuntary servitude any person so sold or bought, shall be deemed guilty of a felony, and, on conviction thereof, be imprisoned for a term not exceeding five years and pay a fine not exceeding five thousand dollars.^ Accessories before or 'U. S. Rev. Stats. § 5524. ^Ib. §5535. =18 Stat. L. 251 ; U. S. v. Ancarola, 1 Fed. R. 676. 408 Specific Offenses after the fact are punishable by imprisonment, not exceeding five years, and fine, not exceeding one thousand dollars.' There are other special provisions as to slavery^ and peonage.'' § 688. Procedure. — The offense is punishable by the tri- bunals of the county where the injured person is seized.* The usual averments in the indictment are assault (or, assault and battery) and the carrying away, or transporting, of the person from the country in which he is seized to another.' An unnec- essary allegation of intent may be rejected as surplusage. * § 689. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., in and upon one C. D. did make an assault and him, the said C. D., then and there did beat and Ill- treat and forcibly and violently abduct, steal, carry away and transport into foreign parts, to wit, into [Muning country], against the peace etc. '18 Stat. L. 251. =U. S. Eev. Stats. §§ 5375-5383. ^Ib §? 1990-1991 , 5336-5337. 4S. i>. Whaley, 3 Harr. (Del.) 538. 'Click V. S., 3 Tex. 383; P. v. Ah Own, 39 Cal. 604. «P. ». Fick, 89 Cal. 144. Larceny 409 CHAPTER LXX. LAEOEIsrY. § 690. Defined. — Larceny is the wrongful and fraudulent taking and removal of goods or chattels from the possfisaioa-«f- another against his will, with intent to depriv^'the~person entit- led thereto of his ownership therein. § 691. Divisions. — Larceny is distinguished into two sorts : simple larceny, or larceny unaccompanied with any circum- stance of aggravation ; compound larceny, or larceny which includes some circumstance of aggravation, such as a taking from one's house or person." Simple larceny, at the strict common law, is distinguished into two sorts : grand larceny, where the value of the thing taken is above twelve-pence ; petit larceny, where the value of the thing taken is not above twelve- pence.^ § 692. Subjects Of Offense. — Larceny, at' the common law, can be committed only as to personal property which is capable of being taken and removed and has some value. The thing need not be of a solid nature or substance: e. g., illumi- nating gas is the subject of larceny.* Any degree of value is sufficient, though it be of a fraction of the lowest denomination of current money,* and the thing need not be of value to any one but the owner.' Subject to exceptions or qualifications hereinafter stated, there can be no larceny of real estate and things that "savor" of the realty ; choses in action ; animals ferae naturae. 14 Bl. Comm. 229. ^Ib. ; 3 Bast. P. C. 736. 'S. v. Wellman, 34 Minn. 231. ♦Reg. •». Norris, 9 0. & P. 347 ; Wolverton ©. C, 75 Va. 909, 913. «R. !). Mead, 4 0. & P. 535 ; S. v. Allen, R. M. Charlt. (Ga.) 518. Cf. C. e. Rand, 7 Mete. 475. 410 Specific Offenses There can be no larceny of a dead body, but the coffin, ehroud, clothes and things buried with the body are the subject of larceny.^ The guilt of larceny attaches, though the thing taken was stolen, or otherwise wrongfully acquired, or was used for pro- hibited or illegitimate purposes.^ § 693. Realty. — Larceny can not, at common law, be com- mitted of things real or savoring of the realty, i. e., of "land"* (including running or standing water^) and things that are part of the substance of the land (minerals ; trees, grain, fruit; build- ings and fixtures) and writings relating to land.* The following are the subjects of larceny: 1. Things only constructively annexed to the freehold,^ e. g., window sashes, not hung or beaded, but fastened by laths nailed across frames ;' chandeliers.' 2. Things, once part of the freehold, which have been severed so as to become personal property, e. g/, turpentine which has run out of trees into boxes ;° water, when stored in pipes or reservoirs for purposes of sale or use ;'" ice, when collected and stored." If the severance and asportation are one continuous act, the guilt of larceny does not attach ; but, if the severance was the act of the owner, or of a third person, or if the severance and taking by the wrongdoer were distinct acts, then, without regard to any intervening shortness of time guilt attaches.'^ 14 Bl. Comm. 236 ; 2 East P. C. 653. 'G. V. Rourke, 10 Gush. 397 ; C. v. Coffee, 9 Gray, 139 ; S. v. May, 20 Iowa, 305 ; Bales v. S., 3 W. Va. 685. H Bl. Comm. 233-234; 3 Russ. Cr., 9 ed., 251 ; S. v. Hall, 5 Harr. (Del.) 493. <3 Bl. Comm. 18. nh. 234 ; 2 East P. C. 596; Reg. v. Powell, 5 Cox C. C. 396. 6 Jackson 11. S., 11 O. St. 104. 'R. V. Hedges, 1 Leach, 201. eSmith ». C, 14 Bush (Ky.), 31. 9rf. V. Jloore, 11 lied. (N. C.) L. 70; S. v. King, 98 N. C. 648. '»Ferrens v. O'Brien, 15 Cox C. C. 332. "Ward V. P., 6 Hill, 144. "4 Bl. Comm. 333 ; 2 Russ. Cr., 9 ed. 251 ; 3 Greenl. Ev. § 163; Bell 0, S., 4 Baxt. (Tenn.) 426; 8. v. Hall, 5 Harr. (Del.) 492; Holly v. S., 54 Ala. 338; S. V. Berryman, 8 Nev. 363 ; C. 0. Steimling, 156 Pa. St. 40. Larceny 411 The English doctrine is, that there must have been an abandon- ment of possession between the times of severance and asporta- tion.* The tendency of the American courts is, to restrict the technical rule under which the taking of things "savoring of the realty" is held not to be larceny within the narrowest bounds. In one instance, it was held, that if the accused has a thing in his possession after severing it from the realty, his mere act of conversion is larceny.^ § 694. 'Written Instruments. — Larceny can not, at com- mon law, be committed of written instruments, considered as such, whether they relate to land^ or concern choses in action,* such as bonds, bills or promissory notes ; a letter ;' a receipt f paper money.^ Larceny may be committed of a piece of paper, even though written upon.* _E. g., stealing rolls of parliament was held larceny " according to the value of the parchment on which they are written, even though they are records of a court of justice, unless they concern the realty."' If the writ- ing consists of a valid deed or evidence of a chose in action, the character of the thing as a mere piece of paper is "merged" in its higher character as a muniment of title or evidence of claim, and the taking of it can not be larceny, even though it be informally executed.'-'' If, however, the instrument is void as a note or the like," or if the obligation thereby created has ceased, by payment or otherwise,*^ the stealing may be prosecuted as larceny of the paper. iReg. V. Foley, 17 Cox C. C. 142. "Exp. Wilke, 34 Tex. 155. ^Ante, § 693. *3 Russ. Or., 9 ed., 260. 'Payne ®. P., 6 Johns. 103. 'Moore «. C, 8 Pa. St. 260. 'Gulp e. S., 1 Port. (Ala.) 83. sp. V. Loomis, 4 Den. 880. 92 Russ. Cr., 9 ed., 261. '"Reg. V. Watts, 6 Cox C. C. 304. "R. 0. Vyse, 1 Moody, 218; Reg. ». Perry, 1 Cox C. C. 223. ■■'R. V. Clarke, 2 Leach, 1036. 412 Specific Offenses § 695. Animals. — The foHowing are the subject of larceny : 1. Domestic animals' fit for food or the service of man, including fowl,^ and the young ones as well as the product and produce of such animals, such as milk, wool, eggs. 2. Reclaimed honey-bees.^ 3. Reclaimed hawks and falcons.* 4. Animals ferae natural fit for food [or the service of man*] if reclaimed or confined, such as hares or deer in a park ; fis]i in a trunk, net, or other enclosed place which is private prop- erty; oysters planted in a bed;^ pigeons in a pigeonhouse, or so tame that they come home to roost;' tame pheasants and partridges.' 5. Game when rightfully killed and taken and thus reduced to possession," but the wrongful killing and removal of an animal ferae naturae is not larceny, if the two acts were parts of one continuous transaction." 6. The flesh and hide of wild animals if fit for food or other use of man.'^ The following are not the subject of larceny : 1. Animals ferae naturae and unreclaimed,'' such as wild animals in a forest, fish in an open river, wild fowl at their natural liberty. 2. Animals not domestic which when reclaimed and tamed can not serve for food but only for pleasure, such as bears. '3 Russ. Ur., 9 ed., 378. ^Included herein are — Peacocks. C. ■». Beaman, 8 Gray, 479. Turlceys. S. v. Turner, 66 N. C. 618. 33 Enss. Cr., 9 ed., 379 ; Harvey v. C, 33 Gratt. (Va.) 941. «3 Russ. Cr., 9 ed., 379. '4 Bl. Comm. 335 ; 3 Russ. Or., 9 ed., 378-380. 'Submitted. 'S. V. Taylor, 37 N. J. L. 117. «2 Russ. Or., 9 ed., 379-280; Reg. v. Cheafor, 5 Cox C. C. 367. 93 Russ. Cr., 9 ed., 280; Reg. v. Shickle, 11 Cox C. C. 189. "Blades «. Riggs, 11 H. L. C. 631. "Reg. 0. Townley, 13 Cox C. C. 59 ; Reg. s. Fetch, 14 lb. 116 ; Reg. v. Foley, 17 lb. 143. I'^SInst. 110; 1 Hale, 511. "4 Bl. Comm. 335; 3 Russ. Cr., 9 ed., 280. Larceny 413 foxes, apes, monkeys, polecats, ferrets, martens,^ raccoons (coons),^ singing birds,' dogs and cats ;* but, partly as the result of statutory interpretation and partly upon common-law grounds, a number of American tribunals have held, that dogs are the subject of larceny.' The reason underlying the old common law on this entire subject is, that larceny was a capital offense, and for the sake of things of a "base nature," such as dogs, cats, bears, etc., however highly valued by the owner, it was deemed wrong, "that a man should die."* § 696. Statutory Changes. — Modern statutes have extended the boundaries of the offense of larceny so as practically to include all personal property which is capable of being taken and carried away, covering fixtures and things savoring of the realty, choses in action and all classes of aniinals. The ordinary rules and principles in relation to larceny at common law apply in the construction of these statutes. A prosecution for the larceny of a written instrument as such can only be maintained on such statutes if the instrument is valid and effective as an evidence of title or claim.'' JE. g., a. draft must be of value as such : if it is so defectively executed as to be void, there can be no prosecution for the larceny of the thing as a draft.* Bank bills, in order to be the subject of lar- ceny as such, must be genuine bills of an existing bank.' But a redeemed bank bill has been held to be the subject of larceny, iNorton o. Ladd, 5 JST. H. 303. ^Warren v. S., 1 Greene (Iowa), 106. Doubted in Haywood v. 8., 41 Ark. 479. «Dalt., ch. 156, ? 7. Under statute covering personal property of every description, mocking birds held to be the subject of larceny. Haywood o. S., 41 Ark. 479. *3Kuss. Or., 9 ed.,281. ^Mullaly 0. P., 86 N. T. 365; Hurley v. S., 30 Tex. App. 833; S. o. McDuffie, 34 N. H. 533; C. ». Hazelwood, 84 Kent. 681 ; 8. v. Brown, 9 Baxt. (Tenn.) 53. Contra: Findlay v. Bear, 8 8. & R. 571 ; "Ward v. S., 48 Ala. 161 ; S. v. Holder, 81 N. C. 537 ; S. o. Lymus, 36 O. St. 400 ; 8. ■». Doe, 79 Ind. 9. «1 Hawk., ch. 33, § 33. 'P. V. Loomis, 4 Den. 380. 8R. V. Pooley, R. & R. 13. sjohnson v. P., 4 Den. 364 ;Low v. P., 3 Park Or. R. 37 ; 8. v. 8mart, 4 Rich. (8. C.) L. 356. 414 Specific Offenses because the bank issuing it would still be bound to make payment to a bona fide holder.' § 697. Oivnerslilp. — There must be an actual ownership as to the thing taken as against the person taking it f but it is not necessary, that the owner should be known.^ Such ownership may be either general, or special,* in the person having possession at the time of taking, or in a third person. The act is equally larceny, whether the taking be from a bailee, from a servant, or from the owner himself.* If one has a general, and another a special, ownership in a thing, property therein may, as against a third person guilty of larceny thereof, be averred in either.* The general owner incurs the guilt of larceny by wrongfully taking his goods out of the possession of one having a special interest therein in the nature of a lien or a liability for their value.^ This doctrine applies equally to the taking of things by one part owner from another.' Larceny may be committed by stealing things from one who has himself stolen them, the title remaining in the true owner.' The rules as to laying ownership in various cases have been heretofore stated." The policy of the law is, to assume ("feign") an ownership, if necessary, rather than let one guilty of steal- ing escape." 'C. ». Eand, 7 Mete. 475. =3 Russ. Or., 9 ed., 283; Holcombe s. S., 69 Ala. 318. n Hawk., ch. 33, § 39. *2 East P. C. 653. 'C. B. Rubin, 165 Mass. 453. «Reg. «!. Vincent, 5 Cox C. C. 537 ; Langford ®. S., 8 Tex. 115 ; Crockett v. S., 4 Tex. App. 380; Jones ». 8., 13 Ala. 153 ; S. o. Mullen, 30 Iowa, 303. T. «. Long, 50 Mich. 349 ; Taylor ». S., 7 Tex. App. 659 ; Adams o. S., 45 N. J. L. 448 ; P. o. Thompson, 34 Cal. 671 ; C. v. Campbell, Addison (Pa.), 233. 8R. v. Bramley, R. & R. 478 ; Reg. ». "Webster, 9 Cox C. C. 13 ; Reg. v. Bur- gess, lb. 303. 'Ward V. P., 6 Hill, 144; C. v. Finn, 108 Mass. 466. ^"Ante, 1 156. "1 Hawk., ch. 33, ? 39. Larceny 415 § 698. Taking And Removal There must be a taking and removaP of the goods and chattels from the possession of the owner by the felon, directly or by the hand of another.'' A thing is said to be taken and removed,^ when every part of it is moved from that specific portion of space which it occupied before it was moved (although the whole of it may not be moved from the whole space which it occupied), and when it is severed from any person or thing to which it was attached in such manner, that the taker has, for however short a time, complete control of it.* [Illustrations : — A removes a parcel from one end of a wagon to another. This is a taking and removal.' If the parcel is only altered on the spot where it lies, there is no taking and removal.^ A, a postman, instead of delivering a letter in due course, or bringing it back in his pouch, as his duty required, if he could not deliver it, puts it in his pocket, intending to steal it. This is a taking and removal.^ A snatches a ring out of a woman's ear, and it drops from his hand to her hair. A has taken and removed the ring.' A snatches a watch from B's waistcoat and forcibly draws the chain and key attached to it from a button-hole through which it had been passed ; his hand being arrested, the key catches upon another button and is thereby suspended. A has taken and removed B's watch.' If A had merely torn the chain and the watch had fallen to the ground without having been in his hand after being detached, there would have been no taking and removal."] "3 Buss. Or., 9 ed., 153. ^C. V. Barry, 125 Mass. 390. ^Stephen Dig., art. 384. ~ *3Russ. Cr., 9 ed., 153-154; 3 Greenl. Ev. §^154-155; Harrison ». P., 50 N. Y. 518 ; 0. «. Chambers, 32 W. Va. 779. >R. V. Coslet, 1 Leach, 336. «3 Russ. Cr., 9 ed., 153; S. ». Jones, 65 N. C. 395. 'Reg. V. Poynton, 9 Cox C. C. 349. *R. V. Lapier, 1 Leach, 820. 9Reg. ». Simpson, 6 Cox C. C. 423. "3 GreenL Et. § 155 ; Thompson v. S., 94 Ala. 535. 416 Specific Offenses Any meaDs by which one intending to steal acquires com- plete control over an object for any period of time constitutes a taking and removal. [Illustrations : — Larceny may be committed by turning on the stop-cock of a gas pipe/ by tapping water from a pipe/ or drawing liquor from a cask.^] An animal is said to be taken and removed when it is caused to move from the place where it was before,* so as to bring it within the control of the person intending to steal it.^ The taking and removal may be accomplished by securing by fraudulent or other wrongful means the delivery of a thing through the physical agency of the owner himself or of an innocent third person. Thus, frightening or terrifying one into delivering or giving up the possession of money or any other thing, even though it be by waj- of exchange for some- thing else, constitutes larceny.* So it is likewise larceny to obtain the goods of another by means of replevin, attachment or other process of law wrongfully and fraudulently sued out with intent thus to deprive the owner of the possession.^ There can be no larceny of a thing without its actual asporta- tion. [Illustrations : — A, authorized to receive money and make payments on account of B, makes a false entry in a book of account kept between them, giving himself a false credit, in consequence whereof a balance appears to be due to, and is received by, A from B. A does not commit larceny.* 'C. V. Shaw, 4 Allen, 308. ^Ferrens v. O'Brien, 15 Cox C. C. 332. ^eg. V. Wallis, 3 Cox C. C. 67. ^Stephen Dig., art. 284; K. ®. Pitman, 2 C. & P. 423; Molton».S.,105 Ala. 18. 'Reg. ». Hogan, 1 Crawf . & D. C. C. 366 ; S. «. Seagler, 1 Rich. (S. 0.) 30 ; S. V. Lundy, 60 Ga. 143; S. v. Gilbert, 68 Vt. 188. The law is sometimes otherwise stated to the effect, that the possession of the ewner must be so far changed, that the dominion of the taker is complete. Edmonds v. S., 70 Ala. 8 ; Croom o. S., 71 lb. 14. «Reg. ». McGrath, 11 Cox C. C. 347 ; Reg. ». Hazell, lb. 597; Reg. v. LoyeU, 8 Q. B. D. 185; S. v. Bryant, 74 N. C. 124. n Hawk., ch. 33, t 8; 2 East P. C. 660; C. «. Low, Thach. Cr. Gas. 477. «Reg. V. Green, 6 Cox C. C. 396. Larceny 417 A makes a bill of sale of B's horse to C, who takes it into his possession in good faith. A has not taken or removed B's horse.'] "When goods or chattels have once been taken and removed, the guilt of larceny can not be purged by restoration.^ ' § 699. Element Of "Trespass." — In order to constitute larceny, there must be a "trespass in the taking,"^ i. e. — 1. A taking "from the possession" of the owner. If the thing taken never was in the possession of the owner, there can be no larceny. \_Illustrations : — A induces B to sign a receipt, upon a promise thereupon to pay him money receipted for, and then wrongfully and fraudulently takes and keeps the receipt without paying B. A does not commit larceny.* A, for a valuable consideration, assigns a chattel to B, and, before B can take possession, wrongfully and fraudulently appropriates it to his own use. A does not commit larceny.^] 2. "Against the will" of the owner. If the owner voluntarily and intentionally parted with the possession in such manner, that another came lawfully into the possession, a subsequent fraudulent misappropriation by the latter is not larceny,^ unless the thing was appropriated in a manner not warranted by the purpose of the delivery.^ 3. The wrongful and fraudulent intent must concur in point of time with the taking.' [^Illustrations : — A receives a letter, supposing it to belong to himself, and, on finding, that it does not, appropriates the con- tents. A does not commit larceny.' 'Hardeman i). S., 13 Tex. App. 207. Of. Reg. ». Jones, Oar. & M. 611 (case of selling to a person a thing in his possession). 23 Russ. Or., 9 ed., 156; 3 Greenl. Ev. § 156; S. ». Scott, 64 N. 0. 586. '3Russ. Or., 9 ed., 153. *Reg. «. Prampton, 2 0. & K. 47 ; Reg. v. Smith, 5 Cox 0. 0. 583. 6Reg. V. Pratt, 6 Cox C. C. 373. «R. V. Raven, J. Kel. 24; Reg. v. Thristle, 3 Cox C. C. 573; S. «. England, 8 Jones (N. C.) L. 399. 'Cartwright «. Green, 3 Leaoh, 963 ; S. ■». Skinner, 39 Or. 599. 8Reg. 1). Holloway, 5 C. & P. 534; Wilson v. P., 39 N. Y. 459. 9R. V. Mucklow, 1 Moody, 160. 27 418 Specific Offenses ' A borrows a chattel from from B, at the time intending to l-eturn it, but afterwards appropriates it to his own use. A does not commit larceny.^ A gives a chattel to B, to hold for him temporarily. B afterwards falsely denies all knowledge of the transaction and keeps the chattel. B can not be held guilty of larceny, unless it appears, that at the time of receiving he had the ajiimus of keeping.^] If a chattel has been tortiously taken, a subsequent conceiving of a design to steal and removal amount to larceny.^ [Illustration : — A drives a flock of lambs belonging to him- self out of B's field and inadvertently drives away with them a lamb belonging to B. If, upon discovering B's lamb, A con- tinues to drive it away and then sells it, he commits larceny.*] § 700. Possession Obtained By Fraud. — A taking by "trespass" is said to exist, even though a thing is voluntarily delivered by the owner, or his servant or agent,* into the pos- session of the taker, if such possession was fraudulently obtained, with intent to deprive the owner of his ownership therein, provided he did not intend to part with his property.* If the owner intended to part with his property in the thing as well as the mere possession, the guilt of larceny does not attach, although the consent to the delivery was obtained by fraud.'^ In neither case does the taker acquire title : the fraud prevents it from passing ; but if the owner intends thai it shall pass with the delivery, there is no larceny, although he was tricked into relin- quishing his possession. The distinction, a purely technical one, is that between being cheated out of a thing entirely and iR. ■». Banks, R. & R. 441. 2Reg. V. Brennan, 1 Crawf. & D. C. C. 560. ^C. White, 11 Cush. 483 ; Beatty v. S., 61 Miss. 18. *Reg. ■». Riley, 6 Cox C. C. 88. 'C. ■». Rubin, 165 Mass. 453. «P. «. Gottschalk, 66 Hun, 64; Smith v. P., 63 N. Y. Ill ; P. v. Rae, 66 Cal. 433; P. V. Tomlinson, 103 lb. 19 ; Devore b. Terr., 3 Okla. 563 ; Fleming v. S., 136 Ind. 149 ; Harris o. 8., 81 Ga. 758. 'Elliott V. C, 13 Bush (Ky.), 176 ; Kellogg ». S., 36 O. St. 15 ; Kelly v. P., 6 Hun, 509. Larceny 419 tricked into yielding up the mere manual possession, the offense being larceny only in the latter case. There is a taking by trespass within this doctrine in the case of an acceptance or receiving from the owner of a chattel or other thing upon a contract or promise not intended to be carried out/ e. g., obtaining goods, money or any other thing upon a promise, express or implied, to return it, which is a mere trick to get possession,^ as under the guise of a loan,* or under a false pretense of safe-keeping,* or under pretext of intending to hire or to carry.^ Obtaining goods from the owner on credit, not intending to pay, is not larceny, although the credit may have been induced by a false pretense or representation;^ but obtaining the pos- session of goods, intending not to pay for them, on condition of cash payment is larcenyJ Obtaining the possession of money or other thing from one who parts with it momentarily on condition (understanding) of receiving an equivalent, the taker's intention being to keep it and give nothing for it (trick of "ringing the changes"), is larceny f but if the owner is tricked into giving up possession by a promise of receiving a thing actually delivered to him, falsely represented as valuable, but in realit}' not so ("purse trick"), the offense is not larceny.' The test of larceny in all cases of fraudulent gaming is, whether or not the victim has staked his money or chattel on the chances of the game. If the money or other thing has thus been staked on the game, the offense of the taker is not larceny.'" If the victim has merely entrusted his money to the 'Reg. B. Russett, 17 Cox C. C. 534; C. «. Rubin, 165 Mass. 453 ; P. i>. Hughes, 91 Hun, 354. 2Reg. 9. Bunce, 1 T. & P. 533. ^Starkie v. C, 7 Leigh (Va.), 752. «Macino v. P., 12 Hun, 137. 'S. V. Lindenthall, 5 Rich. (S. C.) L. 237. 63 East P. C. 669; Reg. ■». North, 8 Cox C. C. 433. '3 East P. C. 671-674 ; Reg. v. Slowly, 13 Cox C. C. 369 ; S. «. Hall, 76 Iowa, 85. sReg. 11. Hollis, 15 Cox C. C. 345. 9Reg. «. Solomons, 17 Cox C. C. 93. "R. 1). Nicholson, 3 Leach, 610. 420 Specific Offenses wrongdoer as a stakeholder/ or to use it in playing for his own account,^ the offense is larceny. If, as in the "bunco game,"* the victim is led to believe, that he will receive back his money plus a prize, the offense is larceny. So if A tricks B into depositing money with him on a bet, although B intends to part with his monej- in the event of losing, yet if A, in receiving it, intended to keep it in any event, he commits larceny.* The same thing applies in the case of the device of "ring-dropping." K A, being in B's company, pretends to find a jewel and places it in B's charge, receiving a deposit of money from B, to be kept until division can be made, the whole proceeding being a trick to get possession of and keep the money, A commits larceny;' but the offense is not larceny, if A fraudulently induces B to buy his share in the find, falsely represented as valuable.^ The tendency of modern ruling is, at least to narrow, if not abolish, the technical rule under which obtaining poses- sion by fraud is held not to amount to larceny if the property was also relinquished. Thus, it has been held, that if a person is induced to hand over money to cover a wager, understanding and expecting, that it will not be delivered until won or honestly won, there is a condition, that it shall not be otherwise delivered, and if the wager is fraudulent and the transaction a swindle, the law holds the condition not complied with, and the offender is guilty of larceny.^ The doctrine of this section applies in cases where possession by fraudulent means is acquired in the absence of the owner if he has deposited his chattel in some such way, that it may be removed by any one, the intention being, that the thing shall not be removed without rendering an equivalent. E. g., it is iR. 0. Robson, R. & R. 413; Stinson ». P., 43 111. 397. 2R. V. Horner, 1 Leach, 270; Welsh v. P., 17 111. 339. 3P. B. Shaughnessy, 110 Cal. 598. *Reg. B. Buckmaster, 16 Cox C. C. 339. =2 East P. C. 678-680 «Reg. ®. Wilson, 8 C. & P. 111. 'Reg. B. Buckmaster, 16 Cox C. C. 339. Larceny 421 larceny to remove an article from an automatic box by inserting a bogus coin in the slot.^ Obtaining a chattel from a mere custodian who has no authority to deliver or transfer the possession by a false repre- sentation of, or pretense of authority from, the owner is a taking by trespass.^ If the owner himself is induced to give up posses- sion under a false representation of a request from a third person, e. g.,& request purporting to come from one for whom an article was manufactured, the offense is ordinarily not larceny, as in such case ownership as well as possession is parted with.^ § 701. Fraudulent Conversion. — A mere fraudulent con- version or appropriation of a thing that has come rightfully into the possession of the wrongdoer does not constitute lar- ceny. Taking and intent to steal must concur in point of time. If A removes B's goods from a fire and subsequently converts them to his own use, A is not deemed guilty of larceny, if at first he took the goods honestly, and the inten- tion to convert them was conceived afterwards.* Again, if the thing was not in the possession of the person entitled thereto, there is no trespass and can consequently be no larceny in the taking. If A receives from B a check to get cashed, a note to get changed, a chattel to pawn, the proceeds to be by A either returned to or disbursed for B, A does not commit larceny, if he fraudulently appropriates the proceeds.' It is otherwise, if he steals the thing itself that is entrusted to his care or charge.^ § 702. Tilings Delivered By Mistake. — A mere fraudu- lent conversion or appropriation of money or a chattel which has been delivered or paid to the wrongdoer by the owner does iReg. ». Hands, 16 Cox C. C. 188. "B. V. Hench, B. & B. 163; 0. o. Collins, 12 Allen, 181. 'R. «. Adams, B. & B. 325. «B. ■». Leigh, 3 East P. C. 694. "Reg. ». Goodenough, 6 Cox C. C. 206 ; C. ». King, 9 Cush. 284 ; P. v. Creager, 102 N. Y. 510. ^Post, I 703. 422 Specific Offenses not constitute larceny;^ but if the offender knew of the mis- take at the time of receiving, as where A inadvertently pays to B a one-hundred, for a ten-dollar bill, and B knows of the mis- take and fraudulently takes advantage of it, the offense is larceny, even though B was entitled to a portion of the sum handed him.^ If a person is entitled to only a portion of the money thus given to him by the owner, he is guilty of larceny in appropriating the whole.^ He is chargeable with larceny of the whole amount received, though he gave change.* If a thing is delivered by mistake by one having no property in it, the mere subsequent fraudulent conversion with intent to. steal constitutes larceny.' § 703. Liarceny By Custodian. — Goods or chattels which are in the mere custody or charge of a person who has no special property in them and is under no special contract respecting them are deemed to be in the possession of the owner, and a conversion thereof by such person with intent to deprive the owner of his ownership therein is a taking by tres- pass.' [Illustrations : — A hands B a coin or paper money to change,^ or to take a smaller sum out of and return the change,* and B pockets the money thus given him. B commits larceny. A, the obligor, hands to B, the obligee, a bond, in order that B may inspect it, and B immediately throws it into the fire. B commits larceny.' If B acted under a bona fide claim of right, he would probably not be deemed to have committed larceny, even though he obtained the custody by a trick." 'Reg. v. Flowers, 16 Cox C. C. 33; Bailey v. S., 58 Ala. 414. 'S. r. Houston, 1 Houst. (Del.) Cr. 155 ; Wolfstein v. P., 6 Hun, 121 ; S. o. Ducker, 8 Or. 394. 'C. V. Lannan, 153 Mass. 287. Cf. Reg. «. Hehir, 18 Cox C. 0. 267. "Walters «. S., 17 Tex. App. 226. 'Reg. «. Little, 10 Cox C. C. 559. «3 Greenl. Ev. ?162; Crocheron v. S., 86 Ala. 64; P. ». Call, 1 Den. 120. 'Levy B. 8., 79 Ala. 259. «Hildebrand v. P., 56 N. Y. 294. 'Dignowitty v. 8., 17 Tex. 521. "S. ». Deal, 64 N. C. 270. Lakceny 42-3 A, seated in a wagon, asks B to change a bank^ note of five dollars and take a sum due to Mm, B, out of it. B counts out the change and places it in A's wagon and A drives off with the change without having handed over to B the five dollars. A has committed larceny.^] § 704. L.arceny By iServant. — Goods or chattels which are in the mere charge of a servant, or in his custody by delivery from the master,^ are deemed to be in the possession of the master (owner), and a conversion thereof by the servant with intent to deprive the master of his ownership therein is a taking by trespass, it being immaterial, that the original taking was in good faith.^ It is not larceny for a servant fraudulently to convert a thing delivered to him by a third person for his master, provided, he does 80 before the thing has reached its destination or something more has happened to render him a mere custodian,* as where he receives merchandise for his master, places it in the master's wagon and then steals it.^ A servant is any employee who is subject to the direction and control of his employer^ as distinguished from one merely engaged under a contract in an independent operation, not subject to such direction and control.^ § 705. L.arceny By Bailee. — One to whom a thing was delivered as bailee has possession, as distinguished from cus- tody, and a conversion thereof by him, during the time of the bailment, is not a taking by trespass and can, therefore, not amount to larceny f but if he obtained possession with the intent fraudulently to deprive the owner of his ownership therein, 'S. V. Anderson, 35 Minn. 66. 2Reg. V. Hawkins, 4 Cox C. C. 334; "Walker v. C, 8 Leigh (Va.), 743 ; C. i>. Ryan, 155 Mass. 533. 'S. V. Schingen, 30 Wis. 74. "C. V. Ryan, 155 Mass. 533 ; Snapp ». C, 82 Kent. 173. sReg. V. Reed, 6 Cox C. C. 384. «Reg. V. Tite, 8 Cox C. C. 458; Heygood v. S., 59 Ala. 49. 'Reg. V. Hey, 3 Cox C. C, 583 ; Reg. «. Negus, 12 lb. 492; Heygood v, S., 59 Ala. 49. 82 East P. C . 693 ; R. v. Banks, R. & R. 441 ; Reg. v. Hey, 3 Cox 0. C. 583 ; Hill V. S., 57 Wis. 377; Hernandez ». B., 30 Tex. App. 151. 424 Specific Offenses there is a taking by trespass, aud the guilt of larceny attaches,* although no actual conversion may hav^ taken place.^ If A receives B's watch to repair and sells it, he is not guilty of larceny, unless he had such intent at the time of receiving.^ A taking by one to whom a thing was delivered as bailee after the determination of the bailment is a taking by trespass. A bailment may come to an end^ by the completion of the purpose for which it was made,' by the tortious act of the bailee, as where a carrier or other bailee entrusted with the possession of goods or chattels abstracts a portion of them by " breaking bulk,"^ or by the countermand of the bailee's authority/ In order to constitute such a " breaking " it is not necessary that there should be an actual removal or destruction of a fastening, such as the breaking open of a case or package. The separation of a part of goods delivered as one entire mass, by weight or bulk, has been held to constitute a breaking,* and this doctrine has been extended in the United States to embrace such a case as that of taking one package out of a load of several.' In England, the term seems restricted in meaning to a removal of fastening or severance of parts of a concrete mass. Hence, separating one out of a flock of sheep,"* or removing one of several carts of coal" is held not a "breaking bulk." The criteria of bailment are employment in an independent capacity,'^ as distinguished from service under the control and 13 East P. C. 685-693 ; P. v. Smith, 23 Cal. 280 ; 8. v. Williams, 85 Misso. 339. =iReg. V. Janson, 4 Cox C. C. 82. 3Reg. ». Thristle, 3 Cox C. C. 573. «2 Russ. Cr., 9 ed., 336; C. v. James, 1 Pick. 375. »3 Bast P. C. 693-695. «Ib. 695-698 ; 3 Russ. Cr., 9 ed., 343-246 ; Reg. ®. Colhoun, 2 Crawf . & D. C. C. 57; 8. ». Fairclough, 29 Conn 47; Robinson i>. 8., 1 Coldw. (Tenn.) 130. 'Reg. B. 8teer, 3 Cox C. C. 187. 82 East P. C. 698 ; Nichols v. 8., 17 N. Y. 114. 'C. V. Brown, 4 Mass. 580. '«R. ». Reilly, Jebb, 51. "Reg. 1). Cornish, 6 Cox C. C. 482. "Reg. V. Saward, 5 Cox C. C. 295. Larceny 425 direction of a master^ and obligation to redeliver the identical thing received from the owner, though it be in an altered form^ as distinguished from a mere trust, such as the application of money which need not be returned in the identical coin or notes received.' § 706. Taking By Or From Ovrner's Husband Or Wife. — A married woman can not incur the guilt of larceny by a taking of her husband's goods or chattels,* nor can a third person incur such guilt by receiving them from her,^ unless he be at the time guilty of adulterous misconduct with her,^ nor does he, even in such event, incur the guilt of larceny by carrying off the wearing apparel of the wife at her instance.^ It has been held, that the exemption of one who receives from the wife rests upon the theory of her presumed agency and the implied consent of the husband to the taking, and that, therefore, a third, person receiving from the wife is guilty of larceny, if he knows the taking to be against the will of the husband, though there be no adulterous misconduct.* The husband can not, at the common law, incur the guilt of larceny by a taking of his wife's goods or chattels, but where statutes have abolished the husband's interest in the wife's property, this rule is said not to obtain.^ § 707. Treasure-Trove Larceny can not be committed of things wherein no one has any determinate property.^" Hence, according to the strict common law, the taking of treasure-trove or the like before it has been seized (reduced into possession) by the person entitled thereto is not larceny.'^ Concealing treasure-trove is a misdemeanor.'^ "■Ante, 1 704. ^Hyde v. Cookson, 21 Barb. 93, 103. sReg. ■». Hassall, 8 Cox C. C. 491. n Russ. Cr., 9 ed., 41. '3 lb. 383 ; Reg. v. ToUett, Car. & M. 113 ; Reg. «. Avery, 8 Cox C. C. 184. »3 Russ. Cr., 9 ed., 283 ; P. ■». Scbuyler, 6 Cow. 572. 'Reg. ». Fitch, 7 Cox C. C. 269. sp. ». Cole, 43 N. Y. 508. 'Beasley v. S., 138 Ind. 553. i»2 Russ. Cr., 9 ed., 396. "Reg. ». Clinton, Ir. R. 4 C. L. 6. "Reg. V. Toole, 11 Cox C. C. 75. 426 Specific Offenses § 708. Thiiig-s Found. — One who takes into his possession another's goods or chattels which he finds does not incur the guilt of larceny by any mere conversion of theni.^ If the finder takes and removes them with the fraudulent intent to deprive the owner of his ownership therein, he is guilty of larceny, pro- vided, at the time, from their situation, from marks upon them, or otherwise, he has knowledge who the owner is, or has reason to believe, that they have not been lost, but merely misplaced or deposited by the owner where found.^ The English and some American authorities add, "if he has reasonable means of ascer- taining" the owner.-^ § 709. Intent. — It is essential to the guilt of larceny, that the taking and removal of the goods or chattels should be wrongful, fraudulent and with intent to deprive the owner of his ownership therein. -, The intent must concur in point of time with the taking.* The act must be fraudulent as well as wrongful, prompted by an evil and dishonest motive, measuring up to the idea of "stealing," or "theft :"^ a taking merely wrongful, tortious or by way of trespass is insufficient.' If an employer gives his servant money to pay his railwaj^ fare, or to pay toll, and the servant walks, or drives over a free road, and saves the money and spends it, this is not larceny.^ A servant, in good faith 'and out of charity, gave away some articles of small value belonging to his employer. This was held not to constitute larceny.' Larceny is not committed if a thing is wrongfully taken to be used only temporarily," as by taking a horse tortiously 'C. V. Dean, 49 Iowa, 73. ^Tanner v C, 14 Gratt. (Va.) 635; Lane v. P., 10 111. 305; Griggs ». S., 58 Ala. 425 ; Wolfington v. S., 53 Ind. 343. ^Stephen Dig., art. 303 ; C. v. Titus, 116 Mass. 42. *R. V. Holloway, 5 C. & P. 524; Blunt o. C, 4 Leigh (Va.>, 689. 'Keg. V. Bailey, 12 Cox C. C. 129. 'R. V. Dickinson, R. & R. 420; McCourt v. P., 64 N. Y.583; Landin b.S.,10 Tex. App. 63; Winn v. S., 11 lb. 304; Ainsworth ®. S., lb. 339. 'Reg. V. Deering, ]1 Cox C. C. 298. ^S. V. Fritcher, 54 Misso. 424. 'Wilson ». S., 18 Tex. App. 270; Brown v. H., 105 Cal. 66. Larceny 427 merely to ride.^ The intent must be to deprive the owner ot his ownership, i. e., his property, his beneficial interest. This intent may sufficiently exist consistently with an intent to restore the mere possession, as where one takes another's chattel intend- ing to sell it to him as that of a third person,^ or to restore it upon the offer of a reward,' or steals a railroad ticket from the company issuing it, to be used in traveling, and thus restored to the mere possession of the owner.* According to the old aiithorities, the taking must be lucii causa (for the sake of gain),' or with a desire to convert the thing taken to the offender's own private use or advantage,^ so that the mere taking and removal of another's chattel with intent maliciously to destroy it would not amount to larceny.'^ The weight of modern ruling is to the efiect, that a motive of greed or gain is not essential to the guilt of larceny.' Taking by a servant of grain of his employer, to feed the employer's horses' and the taking and secreting or destroying a letter for the pur- pose of suppressing the information contained in it'" have been held to involve the guilt of larceny. § 710. Claim Of Riglit. — One who takes another's goods or chattels under a bona fide claim of right,'' in himself or another,'^ no matter how ill-founded, does not incur the guilt of larceny; but this rule has no application to an assertion of right which is a mere pretense to obtain possession.'^ Taking ^S. V. York, 5 Harr. (Del.) 493 ; Dove ». S., 37 Ark. 361 ; Umfrey ii. S., 63 Ind. 303. 2Reg. B. Hall, 3 Cox 0. C. 345. ^Berryi). S., 31 O. St. 319. *Reg. B. Beecham, 5 Cox C. C. 181. 54 Bl. Comm. 333. «R. 1). Van Muyen, R. & R. 118. 'Pence v. S., 110 Ind. 95. 'S. V. Slingerland, 19 Nev. 135 (cases cited). 93 Russ. Cr., 9 ed., 148. "Reg. V. Jones, 3 Cox C. C. 6; Reg. ». "Wynn, 3 lb. 371. "3 East P. C. 659; P.®. Wells, 89 Hun, 96; Causey ». S., 79 Ga. 564; Harris V. S., 17 Tex. App. 177. i^Miles ». S., 1 Tex. App. 510; Baker v. S., 17 Flor. 406. "Reg. V. Wade, 11 Cox C. C. 549 ; S. ». Hunt, 45 Iowa, 673 ; Crawford v. S., 90 Ga. 701. 428 Specific Offenses a thing in satisfaction of a claim or debt, or to coerce payment thereof, is not a taking under claim of right within the mean- ing of the rule.^ § 711. Taking Several Articles. — The larceny of several articles at one time and place, whether belonging to the same owner or not, constitutes but one offense, and there can be but one prosecution therefor.^ If several takings and removals are so connected as to form one transaction, they constitute one offense f if the transactions are disconnected, though the takings be in the same place and at short intervals, they consti- tute several offenses.* § 712. Jurisdiction If goods are stolen in one county and carried into another, whether immediately or not, the offense may be prosecuted in either county, every asportation being deemed a new caption.'* If the offense be compound, as a stealing from a particular place, or from the person, it can be prosecuted as such only in the place where the original taking took place.' In order to render the offense cognizable in the county to which the goods are removed, it is necessary, that they continue specifically the same goods.^ If a live fowl be stolen in one county and there killed and then brought into another count}', a prosecution cannot be maintained in the latter place for larceny of the live fowl.* The asportation in the latter county must also be voluntary. If A steals goods in Sussex County and carries them into Surrey County, where he is arrested, he may be prosecuted in either county; but if, 'Gettinger v. S., 13 Neb. 308; Farrell v. P., 16 111. 506; Butler ». S., 3 Tex. App. 403. Contra: Reg. v. Hemmings, 4 F. & F. 50; Wolf v. S., 14 Tex. App. 310. ^8. B. Warren, 77 Md. 131 (cases cited); Wilson v. S., 45 Tex. 76; Quitzow V. S., 1 Tex. App. 47; Hudson ii. S., 9 lb. 151 ; S. ®. McCormack, 8 Or. 336. Contra: S. v. Lambert, 9 Nev. 321 (cases cited). meg. V. Bleasdale, 3 C. & K. 765 ; S. v. Martin, 83 N. C. 672. *Eeg. B. Birdseye, 4 C. & P. 386. '4 Bl. Comm. 305 ; 3 Greenl. Ev. ? 153 ; C. v. Rand, 7 Mete. 475 ; C. ». Cous- ins, 3 Leigh (Va.), 708; S. a. Bryant, 9 Rich. (S. C.) 113. nHale, 586 ; 3 Greenl. Bv. ? 153 ; R. v. Thomas, 3 East P. C. 605 ; S. C^, 3 Leach, 634 ; Smith v. S., 55 Ala. 59. '3 Greenl. Ev. §153; Haskins v. P., 16 N. Y. 344, 349. 8R. ■». Edwards, R. & R. 497. Larceny 429 having the goods in his possession, the officer takes him into Kent County, there can be no prosecution in the latter place.' If a joint larceny be committed in one county and the goods divided, and each felon takes a separate share into another county, there can be no joint prosecution in the latter.^ If goods are stolen in one state or country and carried into another, every subsequent asportation of them with the original fraudulent intent in the new territory is deemed a new caption, and the offender is deemed guilty of larceny.^ § 713. Indictment. — The indictment must, according to the rules heretofore stated, contain a proper description of the goods and chattels* or money^ taken as well as a proper aver- ment of ownership.* Very particular description of the thing taken is not neces- sary.^ Such designations as the following are sufficient : "one hide;"^ "ahorse;"' "one watch ;"i'' "a book."" Under statutes making writings the subject of larceny, any description of a written instrument applicable to it as a chattel, any averment from which it appears with reasonable certainty, that the thing taken was the subject of larceny is ordinar- ' ily held sufficient.*^ Some cases hold, that there must be a ^R. ». Simmonds, 1 Moody, 408. 23 Russ. Cr., 9 ed., 339-230 ; 3 Greenl. Ev. ? 153. 'Watson B. S., 36 Miss. 593 ; S. 0. Cummings, 33 Conn. 360 ; Worthington 0. S., 58 Md. 403; S. o. Hill, 19 S. C. 435; S. v. Morrill, 68 Vt. 60; S.». Under- wood, 49 Me. 181 ; S. ■». Bennett, 14 Iowa, 479 ; Ferrill v. C, 1 Duv. (Ky.) 153 ; S. «. Newman, 9 Nev. 48 ; Stinson ». P., 43 111. 397 ; S. v. Johnson, 3 Or. 115, Contra: S. b. Le Blanch, 31 N. J. L. 83 ; Simmons v. C, 5 Binney, 617; Beal 0. S., 15 Ind. 378 ; P. ». Loughbridge, 1 Neb. 11 ; Lee ®. S., 64 Ga. 303; P. 0. Gardner, 3 Johns. 477 ; Strouther v. C, 93 Va. 789. *Ante, g 154. ^Ante, 1 155. ^Ante, 2 156. 'S. ». Scribner, 3 Gill & Johns. (Md.) 346, 353. SS. ». Dowell, 3 Gill & Johns. (Md.) 310. 'McBride ». C, 13 Bush (Ky.), 337. "Williams ». S., 35 Ind. 150. "Turner v. S., 103 Ind. 435. "0. ®. Brettun, 100 Mass. 306; C. v. Collins, 138 lb. 483; Levy v. 8., 79 Ala. 359. 430 Specific Offenses description in the words of the statute or in words of equiva- lent import.* Value need not be alleged, unless it enters as an element into the penalty or in some other such way becomes material to the grade of the offense charged.^ If the allegation becomes thus necessary, and the larceny of several articles is charged, the value of each should be inserted.^ It is permissible to state value in the aggregate;* but, in such case, the offense must be made out as to each article, whereas, if value is stated separately, there may be a conviction upon proof as to any one.^ The appropriate technical words to describe the criminal act are "steal, take and carry away" and the intent is sufficiently designated by the word "feloniously." § 714. Form Of Indictment The Jurors etc. present, that A. B., on etc., at etc., one silver tankard [of the value of fifty dollars], of the goods and chattels^ of one C. D., feloniously did steal, take and carry away, against the peace etc' § 715. Descriptions Of Tilings Talien. — 1. Chattels. One horse, of the value and one wagon of the value of Twenty pounds of wool, each pound of the value of 2. Illuminating Gas? One thousand feet of illuminating gas, each cubic foot thereof of the value of- 'C. 0. Boyer, 1 Binney, 301 ; Kearney ». S., 48 Md. 16 ; Stewart v. S., 63 lb. 413. 'Lopez V. S., 30 Tex. 780 ; Sheppard v. S., 43 Ala. 531 ; Caldwell v. S., 49 lb. 34 ; Adams o. 8., 60 lb. 53 ; S. ». Daniels, 33 Misso. 558 ; Adams ®. C, 33 Gratt. (Va.) 949. ^3 Chitty Cr. L. 947 a. *Jackson e. 8., 69 Ala. 349; S. v. Beatty, 90 Misso. 148; S. ». Buck, 46 Me. 531 ; Ware v. S., 3 Tex. App. 547; 8. o. Brew, 4 "Wash. 95. ^Ante, ? 375. "In describing things not falling under the designation of goods and chattels, such as writings, for "of the goods and chattels of" substitute "the property of." 'For forms of indictments for solicitations and attempts to commit larceny, see ante, § 518. «See Reg. v. White, 6 Cox C. C. 313. Larceny 431 3. Ore From. Mine} Twenty pounds' weight of copper ore, the J)roperty of C. D , from a certain mine of copper ore of the said C. D., there situate. 4. Growing Tree} One oak tree, of the value of , the property of C. D., then growing in a certain park of the said C. D., there situate.' 5. Gi-owing Fruit} Twenty pounds' weight of grapes, the property of 0. D., then growing in a certain garden of the said C. D., there situate. 6. Lead From Dwelling} Sixty pounds' weight of lead, the property of 0. D., then being fixed to the dwelling-house of the said C. D., there situate. 7. Choses In Action. One bill of exchange for the payment of dollars. Two bank notes, each for the payment and of the value of dollars. Two promissory notes, each for the payment and of the value of dol- lars. Divers notes of the United States currency, the number and denomination of which are to the Jurors aforesaid unknown, for the payment of divers sums of money, in whole amounting to the sum of dollars, the prop- erty and notes of C. D.° Thirty dollars in United States paper currency, the exact description and denomination of which are to the Jurors aforesaid unknown, of the value of thirty dollars ° Sundry gold coins, current money in this Commonwealth, of the aggregate value of dollars, a more particular description of which the Jurors cannot give, as they have no means of knowledge ; sundry bank bills, cur- rent as money in this Commonwealth and the British Provinces, then due and unpaid, of the aggregate value of dollars, a more particular descrip- tion of which the Jurors cannot give, as they have no knowledge ; and sundry silver coins, current as money in this Commonwealth, of the aggregate value of dollars, description not known to the Jurors.' Silver (or, copper) coin of the value of dollars.' Sixty dollars, of the current gold coin of the United States, of the value of sixty dollars.' lArch., 19 ed., 397. 2Ib. 398. 3Ib. 404. *Ib. 405. 'Johnson «. C, 29 Gratt. (Va.) 796. 'Owens 9. S., 104 Ala. 18. 'C. ®. Sawtelle, 11 Cush. 143. »C. «. Gallagher, 16 Gray, 240 ; S. v. Jackson, 26 W. Va. 350. 'McKane ». S., 11 Ind. 195. 432 Specific Offenses § 716. Evidence. — Questions of evidence arising in pros- ecutions for larceny are mainly referable to the general rules of evidence heretofore stated, particularly those in regard to the proof of allegations as to "real and personal property,"^ "owner- ship and possession"^ and "number, quantity and value. "^ The doctrine formerly held, that recent possession of stolen goods raised a presumption of guilt which must be overcome by proof on the part of the accused has been wholly repudiated by the best considered modern cases. The burden of proof never shifts in a criminal case, and guilt can not be presumed from any given state of facts.* Recent possession of stolen property is merely a fact relevant to the question of guilt, to be considered by the jury, in connection with all the other evidence submitted to them, in determining the guilt or innocence of the accused.' The presumption, if it arises in any case, is one wholly of fact, not of law.' No legal significance attaches to the defendant's failure or inability to explain his possession ; and the safe and correct practice is not to charge as to its effect.' If the taking of a writing is the subject of the charge, sec- ondary evidence of its contents is admissible, without laying the foundation therefor by notice to produce.^ If the thing taken is alleged to be the property of a corpora- tion, proof of de facto existence, by reputation or otherwise, is admissible.' The allegation of value need not be sustained, unless material to the charge (entering into the punishment). The thing taken should appear, in all cases, to be of some value ; but evidence ^Ante, ? 373. ^Ante, ? 374. ^Ante, i 375. ^Ante, i 357. 'S. ». Hodge, 50 N. H. 510; Stover «. P., 56 N. Y. 315; Boyd ». S. 34 Tex. App. 570. ^Smith V. S., 58 Ind. 340 'Hannah ». S., 1 Tex. App. 578, 583. «Reg. ■». Brennan, 3 Crawf . & D. C. C. 109 ; McGinnis ®. S., 34 Ind. 500 (cases cited). 'Smith V. S., 38 Ind. 331 ; P. v. Oldham, 111 Cal. 648 ; Fleener «. S., 58 Ark. 98. Larceny 433 of value need not be direct; it may be inferred.' The jury may arrive at the conclusion , that a thing has some value by merely inspecting it.^ If a particular value is material, the standard is market value, or, if a thing has no market value, what it would cost to replace it.^ ITo strict rule obtains as to mode of proof irk this connection. The proof may consist of any evidence from which the value can fairly be inferred — the opinion of the owner, of an expert or of any person having knowledge or experience in regard to the value of the thing being admissible and prima fade sufficient. ^ If the taking of coin or paper money isthe subject of the charge, the jury should be satisfied of its genuineness.^ It is sufficient proof of genuineness, that the note or coin appears to be such as generally circulates as money,^ or that the defen- dant passed, or admitted that he passed it, as genuine.'' A reasonable view is, that the courts take judicial notice of the current coin and circulating media of the country, and that no proof need be offered on the subject, the defendant being, of course, at liberty to show, that the alleged coin or note is spurious or counterfeit.' The value of a coin or paper currency is what its face imports.' Evidence of intoxication is relevant to the question of intent in taking.'" § 717. Federal Statute. — Every person who, upon the high seas, or in any place under the exclusive jurisdiction of the United States, takes and carries away, with intent to steal ^Houston V. S., 13 Ark. 66. 20. «. Burke, 12 Allen, 182 ; S. ». Gerrish, 78 Me. 20. ^Martinez ». S., 16 Tex. App. 122. *Ib.; S. ®. Finch, 70 Iowa, 316; Printz v. S., 42 Mich. 144. 'Low V. P., 2 Park. Or. R. 37. «Hildreth v. P., 32 111. 36. 'Cummings v. S., 2 Va. Cas. 128; Baldwin v. S., 1 Sneed (Tenn.), 411. 8Shaw V. S., 3 Sneed tTenn.), 86; Hummel v. S., 17 O. St. 638. 'Collins ». P., 39 111. 233; Duvall v. S., 63 Ala. 12. "P. V. Walker, 38 Mich. 156. 28 434 Specific Offenses 'or purloin, the personal goods of another shall be punished by a fine of not more than one thousand dollars, or by imprison- ment not more than one year, or by both such fine and impris- onment.^ 'U. S. Rev. Stats. ? 5336. (Construed in U. S. v. Davis, Fed. Gas. 14,930.) Libel 435 CHAPTER LXXI LIBEL. § 718. General Doctrines. — A libel is a writing contain- ing defamatory, censorious or obscene matter. The malicious publication of such a writing constitutes the oiFense of libel/ punishable as a common-law misdemeanor.^ The term writing, as above used, includes printing, ordi- nary writing, signs, pictures, effigies and every mode of like visible representation whereby the libelous matter is made intelligible.' A libel may be either direct, or by way of insinuation or irony.* The language used is to be understood according to its true meaning and import and the sense in which it was intended, to be gathered from the context and the circum- stances uiader which it was used,^ but the application to the person supposed to be libeled must be known or understood from the writing itself.^ To publish a libel, is to read, exhibit, communicate, or other- wise make it known to others or to another, provided, in the case of a person not the author, that he has the opportunity of knowing its contents.^ Making a libel known to the person defamed is generally regarded as a publication* and, by all the authorities, as a misdemeanor.^ '3 Greenl. Bv. ? 164. •'C. ». Chapman, 13 Mete. 68 ; S. ■». Burnham, 9 N. H. 34. n Hawk., ch. 73, ?3. n Russ. Cr., 9 ed., 333. «3 Ureenl. Ey. §g 174-175 ; Avirett ». S., 76 Md. 510. '1 Hawk., oh. 73, § 10; 3 Greenl. Ev. ii 169-173. 8Reg. V. Brooke, 7 Cox C. C. 351 ; Swindle ». S., 3 Yerg. (Tenn.) 581. 9S. i>. Avery, 7 Conn. 366. 436 Specific Offenses Making or preparing a libel [with intent to publish]^ is a misdemeanor.^ All who are in any degree concerned in the preparation of a libel,* or in procuring or causing its publication,* are princi- pals. A person is said to cause or procure the publication, if it is made by another who is his servant or agent, unless the latter goes beyond his authority.* The intentional publication of libelous matter without legal justification or excuse constitutes the requisite malice.* § 719. Kinds Of L,ibel — Libels may in general be classed as follows : 1. Defamations of individuals or bodies of persons — punish- able on account of their tendency to create breaches of the peace.^ 2. Censorious publications tending to disturb the tranquility of society by inciting the people against the government.' 3. Obscene writings tending to corrupt the public morals.' Libel may be directed against several persons, or a body of men, as well as against an individual,'" against the dead as well as the living," against a person in an official or public capacity as well as in his private capacity.'^ Defamation includes whatever tends to subject the person against whom a publication is directed to public hatred, con- tempt or ridicule, and does not necessarily import an imputation \ 'Submitted. 2R. 0. Paine, 5 Mod. 163, 167 ; R. v. Buidett, 4 B. & Aid. 95, 157. '1 Russ. Cr., 9 ed., 354; R. v. Paine, 5 Mod. 163, 167. *1 Russ. Cr., 9 ed., 857-358; Clay e. P., 86 111. 147; S. «. Osborn, 54 Kans. 478. »3 Greenl. Ev. § 178 ; Reg. «. Holbrook, 13 Cox C. C. 650. «Reg. ». Munslow, 18 Cox C. C. 112; Richardson e. S., 66 Md. 205. '4 Bl. Comm. 150-151. «1 Russ. Cr.,'9 ed., 321 ; R. v. Lambert, 2 Camp. 898. •1 Russ. Cr., 9 ed., 331 ; R. v. Curl, 2 Str. 788. Cf. Swearingen v. U. S 161 U. S. 446. ■n Russ. Cr., 9 ed., 323; Brennan v. Tracy, 2 Mo. App. 540; S. v. Boogher 3 lb. 443 ; S. V. Brady, 44 Kans. 435. ' I'R V. Topham, 4 T. R. 126. "C. V. Wright, 1 Cush. 46 ; Cm. Damon, 136 Mass. 441 ; S. v. Lyon, 89 N. C. 568 ; S. ». DeLong, 88 Ind. 313 ; Richardson ». S., 66 Md. 305. Libel 437 of crime, moral turpitude, or otherwise scandalous matter;^ but mere words of censure or reproach are not libelous.^ The form of the writing is immaterial. A may be guilty of libeling B as well as C by publishing a writing, purporting to be signed by B, containing indecent reflections upon C, it being a defamation of B to impute to him the use of indecent langu- age.^ § 720. Justification And Excuse. — The following publi- cations of defamatory matter are not punishable : 1. Those made in good faith in the discharge of a public or private duty, or the prosecution of one's own rights or inter- ests.* Included herein are the giving of the character of a servant ; making confidential communications by or to a person interest ted, by way of admonition or advice, or in the confidence of friendship ; communications asking for the redress of supposed public abuses to persons having power to reform them ; charges in the course of church or fraternity discipline ; criticism of works of literature, science or art and of public performances or entertainments; advertisements with a view to acquiring information to which the advertiser is entitled. "In good faith" means : under a belief in their truth and from a sense of duty, or in the assertion of a right, not going beyond the exigencies of the occasion,' not exceeding in extent or manner what is reasonably necessary.^ H Bl. Comm. 150 ; 1 Buss. Or., 9 ed., 343; White v. Nicholls, 3 How. 366 ; S. V. Spear, 13 R. I. 324; S. v. Atkins, 43 Vt. 353; Steele v. Southwicli, 9 Johns. 314. ^Tappan o. Wilson, 7 Ohio, 190 ; P. ■». Jerome, 1 Mich. 143 ; S. ». Farley, 4 McCord (S. C), 317. 88. B. HoUou, 13 Lea (Tenn.), 483. n Russ. Cr., 9 ed., 345-351; Reg. v. Perry, 15 Cox C. C. 169; "White v. NichoUs, 3 How. 366 ; Maurice ». "Worden, 54 Md. 333 ; S. v. Burnham, 9 K. H. 34. •Jacob V. Lawrence, 14 Cox C. 0. 331. «A communication of this kind may be libelous by reason of being sent on a postal card or telegram instead of in a letter. Williamson ®. Freer, L. R. 9 0. P. 393. 438 Specific Offenses 2. Discussions in good faith of the public conduct and quali- fications of a public officer or candidate for public office,' or a matter of public interest.^ 3. Averments and allegations in judicial pleadings or appli- cations to courts, magistrates or the legislature for redress.^ 4. Publications in the ordinary course of legislative or judi- cial proceedings,* if fairly made,' the exemption from punishment not extending to the publication of comment or extraneous mat- ter,' nor perhaps to ex parte or preliminary judicial proceedings.' Members of legislative bodies are not liable for defamatory words spoken in debate, but this protection does not extend to their publication of defamatory matter.' The truth of scandalous words in general is no defense, but this doctrine has been modified by legislation in England and the United States.' The publication of an obscene libel does not fall within the operation of any of the circumstances of justification or excuse above stated. § 721. Jurisdiction. — ^A libel is said to be published in any place where the defamatory or otherwise libelous matter is circulated or communicated, every act of participation therein constituting the offense of libel." Prosecution may take place either where a publication was mailed or the like, or where it was received and caused to be distributed or otherwise commu- nicated." iCrane ». Waters, 10 Fed. R. 619 ; C. v. Waidwell, 136 Mass. 164 ; S. ». Balch, 31 Kans. 465'. ^Davis B. Duncan, L- R. 9 C. P. 396. 'White 0. Nicholls, 3 How. 366. ■'Millish V. Lloyds, 13 Cox C. C. 575 ; Thomas e. Croswell, 7 Johns. 264. «Reg. B. Gray, 10 Cox C. C. 184; C. ». Blanding, 3 Pick. 304. n Stark. Sland. 365 ; Cowley v. Pulsifer, 137 Mass. 393 ; Oilman v. McClatchy, 111 Cal. 606. 8R. V. Creevey, 1 M. & S. 373. '6 & 7 Vict., ch. 96, 2 6 ; 3 Greenl. Ev. ? § 176-177. •»3 Greenl. Ev. §169. "lb. §173; R. V. Watson, 1 Campb. 315; R. o. Williams, 3 lb. 506; In re Palliser, 136 U. S. 257, 366; C. v. Blanding, 3 Pick. 304; In re Kowalsky, 73 Cal. 130; C. v. Dorrance, 14 Phila. 671. Libel 439 § 722. Indictment. — The indictment in its usual form gen- erally sets out the libelous writing or act; the malicious intent; its object, or the person whom it was designed to disgrace or injure; the publication, with proper innuendoes referring the libelous matter to its alleged object.' The rules heretofore stated as to alleging "written instru- ments"^ and "words in foreign language"^ apply. The averment "maliciously" in connection with that of pub- lication is usual, but not necessary.* It should be stated, or appear affirmatively, that alleged defamatory words were published "of and concerning" the per- son injured.'^ If the matter written is not itself prima facie libelous, but requires explanatory facts to show, that it is so, such facts should be averred by a formal inducement,^ and there should further be an innueiido explaining the defendant's meaning by reference to such inducement, or matter previously alleged^' An innuendo can explain only where something already appears in the pleading upon which to ground the explanation ; it can- not, of itself, add to or affect the sense of previous averments.* § 723. Forms Of Indictments — 1. On Frivate Person. The Jurors etc. present, that A. B., on etc., at etc., unlawfully and maliciously did publish a certain libel containing divers scandalous and defamatory matters and things of and concerning one C. D. {inserting such of the subjects of the libel as it may be necessary to refer to by innuendoes), according to the tenor following, that is to say, {setting out libel with such innuendoes as may he necessary to render it intelligible), against the peace etc. 2. On Judge And Jury. The Jurors etc. present, that heretofore, to wit, at a Court of , on the day of ■ , in the year etc., at etc., before the Honorable P. P., '3 Greenl. Ev. § 166 ; S. «. Henderson, 1 Rich. (S. C.) 179 ; Wilson v. Hamil- ton, 9 lb. 382. ■'Ante, §151. ^Ante, 1 153. *Reg. D. Munslow, 18 Cox C. C. 112. *3 Chitty Cr. L. 875 ; S. ». Brownlow, 7 Humph. (Tenn.) 63. «3 Chitty Cr. L. 873 ; Arch , 19 ed., 830. '3 Chitty Cr. L. 875 a ; Arch., 19 ed., 830. 63 Chitty Cr. L. 875 * ; Arch., 19 ed., 830; Avirett v. S., 76 Md. 510. 440 Specific Offenses judge of said Court, a certain issue duly joined in said Court between one A B., plaintiff, and one C. D., defendant, in a certain action of debt, having come on to be tried in due form of law, and having been then and there tried by a certain jury of the country in that behalf duly sworn and taken between the parties aforesaid, E. F., on etc., at etc., unlawfully and maliciously did publish a certain libel containing divers scandalous and defamatory matters and things of and concerning the administration of justice in this State and of and concerning the said Honorable F. P. and the jurors by whom said issue was so tried as aforesaid, according to the tenor following, that is to say (setting out libel with requisite innuendoes), against the peace etc. S. Obscene Libel. The Jurors etc. 'present, that A. B., on etc., at etc., did maliciously publish a certain scandalous and obscene libel, one part whereof is of the tenor fol- lowing, that is to say, {setting same out), (or, which said libel is so obscene, that it cannot with decency be set forth), against the peace etc. 4. Libel In Foreign Language. The Jurors etc. present, that A. B., on etc., at etc., unlawfully and mali- eiously did publish a certain libel, containing etc., in the language, according to the tenor following, that is to say, (setting forth the foreign words), which scandalous and defamatory words in the language, hereinbefore mentioned and set forth, being translated into the English language, were And are of the same signification and meaning as the English words following, that is to say, (inserting translation and any required -innuendoes) against the peace etc. 5. Hanging In Effigy. The Jurors etc. present, that A. B., on etc., at etc., in a certain yard and place, near to a certain highway there situate and within full view of all persons who then and there passed along said highway, unlawfully and mali- ciously did erect, set up and fix a certain gibbet and gallows and also, to and upon said gibbet and gallows, a certain effigy and figure is tended to repre- sent one C. D., with the name of the said C. D. inscribed on a piece of wood and aflBxed to the said effigy and figure, together with divers scandalous inscriptions and devices, affixed upon and about the same, reflecting upon the character of the said C. 1)., and did then and there keep and continue the said gibbet and gallows, so erected and set up as aforesaid, with the said effigy and figure hung up and suspended to and from the same as aforesaid, together with the several inscriptions and devices aforesaid, so affixed as aforesaid, for the space of four days then next following, and during all that time unlawfully and maliciously did there publish and expose the said gibbet and gallows with the said effigy, figure, inscriptions and devices thereon to the sight and view of divers persons passing and repassing in and along the highway aforesaid, against the peace etc. § 724. Evidence. — The rules heretofore stated as to prov- ing the contents of "written instruments'" and "substance of ^Ante, ? 270. See also § 373 ("words in foreign language"). Libel 441 issue'" apply. Delivery of the writing is sufficient proof of publication.^ The fact, that the defendant wrote the libel which is in another's possession is prima facie proof of publica- tion.^ The malice, or criminal intent, need not be expressly proven.^ The colloquium may be proven by witnesses having knowledge of the parties and circumstances, who , may state their belief, that the libelous matter has the reference alleged, or by other circumstances.' The innuendo is a question of fact for the determination of the jury.* It is not susceptible of specific proof.' ^Ante, § 263. ^3 Greenl. Bv. § 170. »Ib. *Ib. ? 168; S. ». Brady, 44 Kans. 435. 53 Greenl. Ev. i 174. '0. V. Keenan, 67 Pa. St. 203. '3 Greenl. Ev. § 175. 442 Specific Offenses CHAPTER LXXII. MALFEASANCE AND MISCOKDUCT EST OFFICE. § 725. General Doctrines. — Any act or omission in breach of official duty and any act of oppression under color or by virtue of official authority by any public officer is, as a general rule, punishable as a misdemeanor.' "Public officer" means one holding employment or appointment under the government.^ A de facto officer is a public officer within the meaning of this section.^ § 726. TVliat Conduct Punishable. — The following acts and omissions of public officers are misdemeanors : ]!^eglect or non-performance of any positive duty imposed by law;* extortion;^ oppressive and wilful abuse of authority* (to be distinguished from mere error of judgment where an officer has discretionary power') ; fraud or breach of trust affecting the public;* grossly indecorous conduct, such as sit^ ting as a justice while drunk,^ getting drunk during time of service as a grand juror.'" n Russ. Cr., 9 ed., 200; South v. Maryland, 18 How. 396; C. v. Callaghan, 2 Va. Cas. 460; Hiss 9. S., 24 Md. 556 ; C. ». Coyle, 160 Pa. St. 36. 2U. S. 0. Mouat, 124 U. S. 303. =S. B. Long, 76 N. C. 254; S. v. Stone, 40 Iowa, 547 ; S. v. Goss, 69 Me. 22. *1 Russ. Cr., 9 ed., 203; Resp. ». Montgomery, 1 Yeates, 419; Mincher ». S., 66 Md. 227. Mra<«,?? 622-623. n Russ. Cr.,9 ed.,200; P. ». Norton, 7 Barb. 477 ; P. <;. Coon, 15 Wend. 277; Hiss V. S., 24 Md. 556. n Russ. Cr., 9 ed., 200; Friend v. Hammill, 84 Md. 298. n Russ Cr., 9 ed , 207. 'C. v. Alexander, 1 Va. Cas. 156; C. v. Mann, lb. 308. '"C. ■0. KefEer, Addison (Pa.), 390. Malfeasance And Misconduct In Office 443 An officer is not punishable for acts of his deputies or sub- ordinates in which he does not participate. The doctrine of ''■respondeat superior" has no application in the criminal law.^ § 727. Forms Of Indictments. — 1. Constable Refusing To Execute Warrant. The Jurors etc. present, that on etc., at etc., one A. B., who was then a Justice of the Peace in and for said County, issued his warrant in due form under his hand and seal, directed to one C. D., who was then a constable in and for said County, commanding said C. D. immediately to apprehend and hring before said A. B. one E. F., charged, as recited in said warrant, upon the oath of one G. H, with (reciting charge) and then and there delivered said warrant to the said C. D., but the said C. D. did then and there unlawfully, wilfully and contemptuously neglect and refuse to apprehend and bring before the said A. B. the said E. F., as he ought by the command of the said warrant to have done, against the peace etc. 2. Magistrate Refusing Bail. The Jurors etc. present, that A. B., on etc., at etc., being then a Justice of the Peace in and for said County, caused one C. D. to be apprehended and brought before him upon the alleged charge of (reciting charge), and having then and there examined the said C. D. touching the said offense, and then and there wickedly and maliciously intending and contriving to injure and oppress the said C. D., did then and there unlawfully, wilfully and corruptly, under colour of his authority as a justice of the peace as afore- said, order and cause the said C. D. to be carried to the gaol of said County and to be there unlawfully imprisoned and detained for the space of ten days then next following, under the false pretense and pretext, that the said C. D. had then and there been ordered and required by the said A. B. to find sure- ties for his appearance at the next term of the (describing court), to answer the said charge, and had been unable to find such sureties as aforesaid, whereas, in truth and in fact, the said A. B. had then and there, immediately upon the conclusion of the examination aforesaid, wilfully, corruptly and maliciously refused to admit the said C. D. to bail, although the said C. D. then and there tendered bail by offering to enter into a sufficient recognizance in any reasonable sum with two competent sureties who were then and there present and then and there signified to the said A. B. their will and desire to become sureties for the appearance of the said A. B. as aforesaid, against the peace etc. 3. Magistrate Corruptly Retaining Money. The Jurors etc. present, that on etc., at etc., one A B. having been arrested upon the charge of stealing a bank-note of the denomination and value of ten dollars current money of the United States and having then and there been brought for a preliminary hearing upon said charge before C. D., who ^1 East P. C. 331 ; C. v. Lewis, 4 Leigh (Va.), 664; S. ». Berkshire, 3 Ind. 207. 444 Specific Offenses was then a justice of the peace in and for said County, and the said bank- note, which was found upon the person of said A. B. at the time of his arrest as aforesaid, having then and there been delivered to said C. D., and the said C. D. having afterwards, on the same day, at the County aforesaid, dismissed said charge, it then and there became his duty to return said bank-note to the said A. B., but the said C. D., although requested by said A. B. to return the said bank-note to him and well knowing the said A. B. to be entitled to have said bank-note returned to him, did then and there wilfully, corruptly and oppressively refuse to return said bank-note to said A. B., against the peace etc. Mayhem And Bobily Hurt 445 CHAPTER LXXIII. MAYHEM AITD BODttY HURT. § 728. Mayhem. — Mayhem, or maim, is bodily harm, or the infliction thereof, whereby a man is deprived of the use of any member of his body, or any sense, which he can use in fighting, or by the loss of which he is generally and perma- nently weakened; but a bodily injury is not a maim merely because it is a disfigurement.^ Cutting off, disabling or weak- ening a hand or finger, striking out an eye or a front tooth and castration are maims ; but cutting off an ear or the nose is not maim.^ § 729. Statutory Provisions. — The offense of inflicting serious bodily hurt has since an early date been regulated by statutes. By 5 H. 4, ch. 5, to remedy a mischief that then prevailed, of beating, wounding, imprisoning or maiming persons and then cutting their tongues or putting out their eyes, in order to pre- vent them from giving evidence against the perpetrators, it was enacted, that "in such case, the offenders that so cut tongues or put out the eyes of any, and that duly proved and found thsit such deed was done of malice prepensed, shall incur the pain of felony." 37 H. 8, ch. 6 provided, that if any person "maliciously, willingly or unlawfully cut or cause to be cut off the ear or ears of any subject, otherwise than by authority of law, chance- medley, sudden affray, or adventure, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass, but shall forfeit £10 to the king for every such offense, in the name of a fine." ^Stephen Dig., art. 306. n East P. C. 393. 446 Specific Offenses 22 & 23 Car. 2, ch. 1 was commonly called the Coventry Act, from the circumstance of its having been passed in conse- quence of an assault made on Sir John Coventry in the street and slitting his nose by persons who had lain in wait for him, presumably in revenge for certain utterances by him in parlia- ment. It provided, "that if any person or persons shall, on purpose and of malice aforethought, by laying in wait, unlaw- fully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject, with intention in so doing to maim or disfigure him in any manner before mentioned, that then the person or persons so offending, their counselors, aiders and abettors, Icnowing of and privy to the offense as aforesaid, shall be declared to be felons and suffer death, as in cases of felony, without benefit of clergy" — but not to work corruption of blood, forfeiture of dower, or of the lands or goods of the offender. The ground, in England and probably throughout the United States, is now covered by statutes and prosecutions for common- law mayhem are almost, if not wholly, obsolete. § 730. Federal Statute. — Every person who, within any of the places upon land under the exclusive jurisdiction of the United States, or who, upon the high seas, in any vessel belong- ing to the United States, or to any citizen thereof, maliciously cuts oft" the ear, cuts or disables the tongue, puts out an eye, slits the nose, cuts oft' the nose or lip, or cuts off or disables any limb or member of any person, with intent to maim or disfigure such person, shall be imprisoned at hard labor, not more than seven years, and fined, not more than one thousand dollars.^ § 731. Construction Of Statutes. — In the construction of statutes relating to bodily Jiurt, meanings are attached to certain words and phrases as follows : "Malice," "malicioiisly" — apply to a wrongful act done intentionally, without legal justification or excuse.^ 'U. S. Rev. Stats. §5348. 'Ante, §45 ; R. ». Hunt, 1 Moody, 93 ; S. v. Crawford, 2 Dev. (N. C.) L. 425. Mayhem And Bodily Hurt 447 "Malice aforethought,'" "wilful, deliberate and premeditated"^ — have the same meanings as in the law of homicide. "Intent," "intentional" — apply to the voluntary doing of an ■ act of which the hurt is the probable and natural consequence.' "Grievous bodily harm" — such as seriously interferes with comfort or health.* "Wound," "wounding" — an injury by which the skin is broken,^ as distinguished from a rupture of the cuticle;^ in a larger sense, "any lesion of the body resulting from external violence, whether accompanied or not by rupture of the skin or mucous membrane."' "Biting off" a member — ^biting off enough thereof to muti- late.« "Member" — any part appurtenant to the body."' § 732. Indictment. — In indictments for common-law may- hem, the words "feloniously" and "maim" were held essential.'" Prosecutions are now exclusively under statutes, and as these vary greatly in their terms in different states, it is not believed that any forms would prove specially helpful in this connec- tion." '■Ante, § 673. ^Ante, I 676; Godfrey v. P., 5 Hun, 369. ""Ante, §510; R. B. Cox, R. & R. 362; S. ». Gerkin, 1 Ired. (N. C.) L. 131. *R. v. Ashman, 1 F. & F. 88; Reg. ■». McNeill, 1 Crawf. & D. C. C. 891. '^S. V. Leonard, 22 Misso. 449. «C. ®. Gallagher, 7 Mass. 245, 249. 'Century Diet. «S. B. Gerkin, 1 Ired. (N. C.) L. 121 ; S. «. Harrison, 80 La. Ann. 1329. 'Godfrey e. P., 5 Hun, 369. '"l East P. C. 401-403. "For forms under English statutes, see 2 Chitty Cr. L. 787-794. 448 Specific Offenses CHAPTER LXXIV. ]STJISAE"CE. § 733. General Doctrines. — A public, or common, nuisance is an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs, or causes incon- venience or damage to, the public in the exercise or enjoyment of rights common to all.^ A nuisance is public, if it annoys such part of the public as necessarily come in contact with it.'' A thing may be a nuisance, though it does not appear, that more than one person is in fact annoyed.* It is immaterial, that a thing in other respects falling within the definition of a public nuisance to a certain extent operates beneficially.* ISo length of continuance can legalize a nuisance,' and the pres- ence or toleration of other nuisances will not justify any one of them.^ If an act causing public inconvenience, ordinarily amounting to a nuisance, is authorized by statute under certain conditions or restrictions, an obstruction or the like in excess of the statutory permission is punishable as a nuisance.'^ § 734. General Classification. — Under the head of public nuisances are embraced obstructions and annoyances as to high- ways ; ofl^nsive trades and manufactures ; all disorderly houses,* including bawdy houses,' unlicensed booths, stages and the 'Stephen Dig., art. 176 (substantially followed). •■•Hackney «. 8., 8 Ind. 494. sinnes ». Newman, L. R. 1894, 2 Q. B. 392 ; C. v. Oaks, 113 Mass. 8. *Kesp. 0. Caldwell, 1 Dall. 150 ; P. v. Horton, 5 Hun, 516. 'Philadelphia Road v. S., 20 Md. 157 ; Woodyear v. Schaefer, 57 lb. 1 ; Doug- lass V. S , 4 Wis. 387; S. v. Rankin, 3 S. C. 438 ; S. v. Franklin Falls, 49 N. H. 240. n Russ. Cr., 9 ed., 437; C. v. Perry, 139 Mass. 198. 'Reg. e. Scott, 3 Q. B. 543; Louisyille R. R. v. S., 3 Head (Tenn.), 523; Ren- wick V. Morris, 7 Hill, 575 ; C. c. Church, 1 Pa. St. 105 ; C. v. Erie R. R., 27 lb. 339. 'Ante, R 611-613. ■>Ante, II 525-529. Nuisance 449 like ; disorderly conduct, including barratry,^ common scolding," eavesdropping; acts of public scandal and indecency, including blasphemy and profanity,^ obscene libels ;* certain acts injurious to the public health and welfare. § 735. IVulsances Affecting Public IVays. — Under this head are included annoyances in highways and public rivers by rendering the same inconvenient or dangerous to pass, by way of positive obstruction, or by neglect to repair.^ A highway is any thoroughfare or place which the public has a right to use,^ including a turnpike road,^ a public square or common,* a cut de sac.^ "Public river," in this connection, includes navigable waters^' as well as such as have a natural capacity for valuable floatage, or for being used as highways for public purposes." The following are common nuisances : 1. Obstructing a highway by any permanent work or erec- tion thereon, or injury thereto, which renders it less commodi- ous to the public than it would otherwise be ; or preventing them from having access to any part of it by an excessive and unreasonable temporary use thereof, or by so dealing with the land in the immediate neighborhood of the highway as to prevent the public from using and enjoying it securely." [Illustrations : — Digging a ditch in, making a hedge or placing a gate across a highway; laying logs in it; ploughing it up;^^ 'Ante, §§ 519-521. ^Ante, ?? 568-570. "Ante, U 538-544. ^■Ante, i 719. H Bl. Comm. 167. n Russ. Or., 9 ed., 458 ; Cleaves v. Jordan, 34 Me. 9, 13. 'C. V. Wilkmson, 16 Pick. 175 ; Pittsburgh R. R. ■». C, 104 Pa. St. 583. «S. 0. Atkinson, 34 Vt. 448 ; S. ». Long, 94 N. C. 896 ; C. «. Bowman, 3 Pa. St. 202. 'Peckham v. Lebanon, 39 Conn. 231 ; Adams v. Harrington, 114 Ind. 66, 72 ; Bartlett v. Bangor, 67 Me. 460. "Georgetown v. Alexandria, 13 Pet. 91 ; 8. ». Narrows Island, 100 N. C. 477. "Moore v. Sanborne,2 Mich. 519 ; Thompson v. Androscoggin, 54 N. H. 545. i^Stephen Dig., art. 189; 1 Russ. Cr., 9 ed., 485; S. v. Merrit, 35 Conn. 314; P. ». Cunningham, 1 Den. 524. "S. V. Useful M'f'g. Co., 43 N. J. L. 504. 29 450 Specific Offenses imaking an excavation near it; placing over it door-steps incommoding the public;' erecting a fruit stand in a city street f closing up a way (even though another be opened in its place).^ Allowing wagons to stand before a warehouse for an un- reasonable length of time;* sawing timber in a public street;' allowing stage coaches to stand plying for passengers in the public streets;* excavating an area close to a foot-path, and leaving it unfenced ;' digging a trench for the purpose of laying gas pipes, and leaving it exposed;* conducting auction sales in the public streets ;' working quarries of stone so as to endanger the safety and comfort of passengers and dwellers in the neigh- borhood ;" placing upon or near to a highway objects calculated to frighten horses." Suffering a highway to be incommoded by reason of the foulness of adjoining ditches, or by overhanging boughs of trees, or by the menace of a ruinous building.'^] 2. Like acts impeding or obstructing the navigation of a public river or interfering with or obstructing its use by the public.'^ 3. Neglect to repair a highwa}- in accordance with a duty imposed on the party by law." ' 'C. V. Blaisdell, 107 Mass. 334. ^S. V. Berdetta, 73 Ind. 185. »Wethered v. Bray, 7 Ind. 706. *R. r>. Russell, 6 E. 437. 'R. V. Jones, 3 Campb. 230. «R. 0. Cross, 3 Campb. 334. 'Barnes b. Ward, 9 C. B. 393. sReg. V. Sheffield Gas Co., 22 Eng. L. & Eq. 300. 9C. V. Milllman, 13 S. & R. 403. '»Reg. ». Mutton, ]0 CoxC. C. 6. "Ayer «. Norwich, 39 Conn. 376; Cincinnati R. R. o. C, 80 Kent. 137. ■n Russ. Cr., 9 ed., 485. "lb. 531-541 ; 3 Kent. Comm. 411-412; Pennsylvania v. Bridge Co., 13 How. 518; P. 0. St. Louis, 10 111. 351; P. v. Horton, 5 Hun, 516; 8. ». Knotts, 3 Speers (S. C), 692 ; Larson v. Furlong, 63 Wis. 323 ; Dyer v. Curtis, 73 Me. 181. "1 Russ. Cr., 9 ed , 494; Baltimore Road «. B., 63 Md. 573. Nuisance 451 A public bridge buiH in a highway is, for the purposes-, of passage, a part of the highway, and its obstruction or non- repair is a misdemeanor.* The obstruction of navigable waters is made punishable by Tederal statutes.^ § 736. Offensive Trades And Manufactures. — The car- rying on of a trade or business in such manner or under such circumstances as, by loud noises, ofiensive or unwholesome smells, or the like, to injure the public health, disturb the public convenience, or otherwise annoy the public in the exer- cise or enjoyment of rights common to all is a common nuisance.' The circumstances peculiar to a business, locality, surroundings, the employments of persons in the vicinity, enter into the determination of the question, whether or not it constitutes a common imisance,* and a change in such cir- cumstances may render it a common nuisance, although it was not such at its establishment.* § 737. Collecting- Crovrds. — It is a misdemeanor to col- lect or attract a crowd in a public place by loud and indecent language," or loud and unseemly noises,'^ or in any such man- ner as to create disorder or obstruction of the highway.* § 738. Disturbances And Disorderly Conduct. — The following acts are misdemeanors : Making loud noises in the night to the disturbance of the neighborhood;^ driving through a crowded highway at '1 Russ. Cr., 9 ed., 544; C. v. Central Bridge, 13 Cush. 243. ■^37 Stat. L., ch. 158; 28 lb., ch. 299. n Russ. Cr.,9 ed., 435-443; 3 Greenl. Ev. 2 184; Ashbrook s. C.,1 Bush(Ky.), 139; C. V. Kidder, 107 Mass. 188; C. «. Perry, 139 lb. 198; Horner ». 8., 49 Md. 277. *0. V. Miller, 139 Pa. St. 77. «S. ». Detroit "Works, 83 Mich. 471. 'Ante, §541. 'C. V. Oaks, 113 Mass. 8. n Russ. Or., 9 ed., 487; Walker «. Brewster, L. R. 5 Eq. 35. 9R. V. Smith, 1 Str. 704. 452 Specific Offenses dangerous speed;' publicly beating an animal in a cruel man- ner ;^ cock-fighting and other barbarous sportfe.* § 739. Disturbing meetings. — It is a misdemeanor to disturb a meeting or gathering of persons assembled for relig- ious worship* or any other lawful purpose, such as a town meeting,^ a meeting of school directors,* a dramatical or musical exhibition/ The ground is generally covered by statutes, and the tendency of the courts is towards a liberal construction, so as to carry out fully their design of protecting peaceable assemblies, espec- ially those for religious worship, against all manner of distur- bance or annoyance. Statutes against disturbing religious assemblies have been held to extend to the protection of such assemblies from disturbance before and after, as well as during actual service and so long as any portion of the congregation remains upon the grounds.* -The disturbance of any one person's devotions has been held to be a disturbance of wor- Bhip.' Such disturbance may consist of a slight act.'" § 740. Eavesdropping. — Eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse and thereupon to frame slanderous and mischie- vous tales, are a common nuisance." It has been held, that one who stealthily approaches a grand-jury room for the purpose of overhearing the proceedings is guilty of a misdemeanor.^^ lU. S. V. Hart, Fed. Cas. 15,316. 'U. S. ». Jackson, Fed. Cas. 15,453 ; P. «. Stakes, 1 Wheeler Cr. Cas. 111. ^C. e. Tilton, 8 Meto. 282, 234. *S. «. Ramsey, 78 N. C. 448 ; P. e. Crowley, 33 Hun, 413 ; S. v. Wright, 41 Ark. 410. 'C. o. Hoxey, 16 Mass. 385. «Camphell v. C, 59 Pa. St. 266. ■■C. e. Porter, 1 Gray, 476 (decided under a statute, but the reasoning would apply at common law). 'Dawson v. S., 7 Tex, App. 59; Kinney ii. S., 38 Ala. 224; Lancaster v. S., 53 lb. 398. »S. B. Wright, 41 Ark. 410. '»£'. g., cracking and eating nuts. Hunt v. S., 3 Tex. App. 116. i'4 Bl. Comm. 168; 1 Russ. Cr., 9 ed., 453; C. v. LoTett,;4 Pa. L. J. Rep. 5. "^S. V. Pennington, 3 Head (Teun.), 399. I'J'UISANCB 453 § 741. Scandal And Indecency. — "Whatever openly out- rages decency and is injurious to public morals is a misdemeanor.' Under this head are included the following : 1. Open and notorious lewdness.^ The common law on this subject has been enlarged in num- bers of states by statutes punishing such conduct as "lewdness,"* "lacivious behavior,"* "lewd and lascivious cohabitation."* 2. Indecent, immoral or otherwise offensive exhibitions or shows.' 3. Indecent exposure of person. This consists of exposure in public of the entire person, or of parts that cannot properly be exhibited in public' An expos- ure is said to be "public," or in a "public place," if it occurs under such circumstances as to render it probable, that it would be seen by a number of persons, it being immaterial that it was not actually seen by any one.' 4. Certain offenses connected with dead bodies and sepulture, including defacing tombs, sepulchres or monuments of the dead ;° refusal or neglect to bury ;'° casting away a body without rites ;" preventing buriaP^ or burial service ;" detaining a body 11 Russ. Or., 9 ed., 449 ; S. v. Rose, 32 Mlsso. 560. n Russ. Or., 9 ed., 449; Brooks v. S., 2 Yerg. (Tenn.) 482 ; Grisham ». S., lb. 589. SQ. V. Warden, 128 Mass. 52. *Fowler v. S., 5 Day (Conn.), 81. '0. V. Munson, 127 Mass. 459; Schoudel v. S., 57 N. J. L. 209. «Reg. V. Grey, 4 F. & P. 73; Reg. v. Saunders, 13 Cox C. C. 116; Knowles V. S., 3 Day (Conn.), 103; C. v. Sharpless, 2 S. & R. 91. n Russ. Cr., 9 ed., 449-452. «Reg. V. Harris, 11 Cox C. C. 659 ; P. v. Bixby, 4 Hun, 636; Van Houten v. S., 46 N. J. L. 16; S. ». Roper, 1 Dev. & B. (N. C.) 208; S. v. Millard, 18 Vt. 574. 93 Inst. 202. 'n Russ. Cr., 9 ed., 631-632. Cf. Reg. v. Price, 15 Cox C. C. 389, as to burn- ing (cremating) body. 11 Kana van's Case, 1 Me. 236. in Russ. Cr., 9 ed., 637. "lb. 454 Specific Offenses for a debt ;' selling a body for dissection ;^ taking it from the grave.* 5. Such atrocious acts as buying or selling a wife.* No usage can justify conduct that shocks decency.^ § 742. IVulsances To Health And Safety. — Whatever endangers human life, health or personal safety is a common nuisance.* Under this head are included the taking of an infected per- son^ or anima? into a public place ; polluting a well or other water supply f maintaining a dwelling, so filthy and crowded as probably to breed disease;'" maintaining a urinal or the like in a situation where it is likely to breed disease ;" supplying, or preparing for supply, noxious or unwholesome food ;'^ keeping gunpowder or other combustible articles in populous places in such quantities as to endanger the public safety.*' § 743. Indictment. — The indictment must set forth such facts and circumstances as to make it appear, that the act or omission charged is a nuisance in itself, or by reason of special circumstances averred." Jfo more specific allegation of place is ordinarily required than in other cases."' The offense is, at common law, ordinarily charged to be "to the common nuis- ance" of all the liege subjects etc., or of the citizens of the '1 Russ. Or., 9 ed., 637. ^Ib. 629, 631 ; Reg. ®. Frist, 8 Cox C. C. 18. »1 Russ. Cr., 9 ed., 629; Reg. v. Sharpe, 7 Cox C. C. 314; Reg. v. Jacobson, 14 lb. 522 ; C. o. Cooley, 10 Pick. 37 ; Kanavan's Case, 1 Me. 226. *R. V. Delaval, 3 Burr. 1434, 1438. 5R. 0. Cruuden, 2 Campb. 89 ; Reg. «. Reed, 12 Cox C. C. 1. «3 Greenl. Ev. ? 184. n Russ. Cr., 9 ed., 168-169. 8Ib. 170. 'lb. 171 ; S. 0. Buokman, 8 N. H. 203. '"Meeker v. Van Rensellaer, 15 Wend. 397. "S. V. Purse, 4 McCord (S. C), 472. ^^Ante, §564; Hunter v. S., 1 Head (Tenn.), 160. "1 Russ. Cr., 9 ed., 439 ; Reg. «. Lister, 7 Cox C. C. 343 (naptha) ; Cheatham e. Shearon, 1 Swan (Tenn.), 213; Bradley v. P., 56 Barb. 72; C. v. Kidder, 107 Mass'. 188; Wilson i>. Phoenix Powder Co., 40 W. Va. 413. "3 Greenl. Ev. § 185 ; U. y. Webb, 6 Rand. (Va.) 726. »S. 0. Snead, 16 Lea (Tenn.), 450; Droneberger v. S., 113 Ind. 105; S. v. Sturdivant, 31 Me. 9 ; Jenks o. S., 17 Wis. 665. Nuisance 455 particular state, the public, all the people, or the like; but there seems to be no reason, why such an averment should be con- sidered essential § 744. Continuing' IVulsances And Abatement. — If the indictment avers the nuisance to be continuing and describes the location v?ith particularity, the court may, on conviction, in addition to the punishment, order the defendant, at his own cost, to abate it;' but only so much of the thing as causes the nuisance ought to be abated.^ The order should be passed at the time of sentence and the defendant may be imprisoned, until he complies with it; and, if he fails to comply, the court may issue its writ or order to the sherift' to abate the nuisance, the defendant remaining imprisoned, until the costs and charges of that proceeding are paid.''' The ancient mode of proceeding was by a writ de nocumento amovendo* a modified form of which is given in the next following section. The -tentire mode of procedure is regulated by statutes in a number of states. The defendant is also subject to be again indicted for further con- tinuing a nuisance.^ § 745. liVrit To Abate IVuisance State of , to wit .- To the SherifE of County : Whereas, at a Court for said County, holden at , on the day of , in the year eighteen hundred and , one A. B. was duly convicted upon an indictment duly found by the grand jurors of said State, in and for said County, charging that {setting forth indictment), and thereupon it was considered and adjudged, that the said A. B. (reciting sentence), and further, that the said A. B. abate the said nuisance and stand committed until [said fine and costs are paid and] said order is complied with : And whereas, the said A. B. hath not abated said nuisance : You are, therefore, commanded, that the said (describing nuisance in words of indictment) you do without delay remove, or cause to be removed, and how you have executed this writ make known to said Court, to be held at , on (naming return day), and have you there this writ Witness {inserting teste). 'Ashbrook v. C, 1 Bush (Ky.), 139; Wroe v. S., 8 Md. 416; Munson v. P., 5 Park. Cr. R. 16. ^Brigham o Bristol, 65 Me. 426. 'Taggart o. C, 21 Pa. St. 527 ; Barclay v. C, 25 lb. 503. *2 Gude's Pr. 556. 'Campbell v. S., 16 Ala. 144. 456 Specific Offenses § 746. Forms Of Indictments. — 1. Obstructing Highway. The Jurors etc. present, that A. B., on etc., and thence continually until the day of the finding of this indictment, at etc., in a certain public highway there, called Street, unlawfully did cause and permit divers wagons, carts and drays to stand and remain for the space of several hours during each of the said days, and divers large and cumbrous bags, boxes and parcels, which had been or were intended to be conveyed in such wagons, to lie dur- ing such time scattered about said street, whereby the said highway was then and there obstructed and rendered inconvenient and unsafe to be passed and traveled, to the common nuisance of all the people, against the peace etc. 2. Erecting Gate Across Highway. The Jurors etc. present, that A. B., on etc., at etc., unlawfully did erect and place across a certain highway there, called Lane, immediately in in front of a dwelling-house, occupied by said A. B. and situate at the inter- section of the - — — side of said lane with the side of Road, a certain gate, and did then lock and fasten said gate there, whereby said highway was then and there rendered impossible to be traveled, and did then and there continually, until the day of the finding of this indictment, and still doth there unlawfully continue the said gate and keep the same locked and fastened and said highway obstructed as aforesaid, to the common nuisance etc., against the peace etc. 3. Offensive Trade. The Jurors etc. present, that A. B., on etc., and thence continually etc., at etc., near unto divers public streets and common highways and also near unto the dwelling-houses of divers people, unlawfully and injuriously did make, erect and set up [or, conduct and use) a certain furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts, and did there, during all the time aforesaid, unlawfully and injuriously boil, and cause to be boiled, in the said boiler, large quantities of tripe and other entrails and ofEal of beasts, by reason of which said premises, noisome, offensive and unwhole- some smokes, smells and stenches, during the time aforesaid, were thence emitted and issued, so that the air then and there was, and yet is, greatly filled and impregnated with the said smokes, smells and stenches, and was and is rendered and become, corrupted, offensive, uncomfortable and unwholesome, to the common nuisance etc., against the peace etc. 4. Deleterious Smoke And Vapors. The Jurors etc. present, that A. B., on etc., and thence continuallj- etc., at etc., unlawfully and injuriously did erect [or, conduct and use) certain furnaces and ovens for the burning of coke, and did there, during all the time aforesaid, unlawfully and injuriously cause and permit great quantities of smoke and of sulphurous and other noxious, unwholesome and injurious vapor to arise from the said furnaces and then and there to impregnate the surrounding air and enter the dwelling-houses there situate, to the common nuisance etc., against the peace etc. Nuisance 457 5. Indecent Exfosure. The Jurors etc. present, that A. B., on etc., at etc., in a certain highway there, in the sight and to the view of divers persons did indecently and pub- licly expose those privy parts of his person, naked and uncovered, which decency requires to be clothed, to the common nuisance etc., against the peace etc. 6. Disturbing Meeting. The Jurors etc. present, that A. B., on etc., at etc., did unlawfully hinder, interrupt, disturb and obstruct a congregation of persons then and there lawfully assembled for divine service in a meeting house there, by then and there making loud and unseemly noises and otherwise misbehaving himself, to the common nuisance etc., against the peace etc. 7. Disinterring Body. The Jurors etc. present, that A. B., on etc., at etc., unlawfully and inde- cently did dig open a grave in a burial ground there, wherein had been and was then interred the body of one C. I)., deceased, and the said body out of the said grave then and there unlawfully and indecently did take and carry away, to the common nuisance etc., against the peace etc. 458 Specific Offenses CHAPTER LXXV. OBSTRUCTING JUSTICE A^J) GOVERNMENT. § 747. ■What Conduct Punisliable. — Obstruction of the administration of justice or execution of the laws is a misde- meanor. Under this head are included, in addition to offenses defined under specific titles, the following: Violence and threatening, contemptuous or reproachful words or behavior to one engaged in the judicial administration of justice;' injurious treatment of those who are immediately under the protection of a court of justice,^ such as assaulting or threatening an adversary for bringing suit, a counselor or attorney for being employed in a suit, a juror for his verdict, a gaoler or other ministerial oflicer for keeping one in custody and properly executing his duty; preventing, or endeavoring to prevent, the attendance of a witness;' refusal to serve an ofiice;* buying and selling offices ;' refusal to assist a peace officer in the execution of his office ;'' certain obstructions of officers and process;^ stealing, secreting or destroying records;' publishing matter tending to impede the course of justice;' spying out the deliberations of a grand jury ;'" certain neglects of duty imposed by statutes and obstruction of the execution of statutes;" dis- obedience to orders of magistrates.'^ 14 Bl. Comm. 126. 'S. V. Keyes, aVt. 57; C. b. Reynolds, 14 Gray, 87; S. v. Ames, 64 Me. 386. n Russ. Cr., 9 ed., 212. Contra: S. v. McEntyre, 3 Ired. (N. C.) L. 171. n Russ. Cr., 9 ed., 214. «Ib 409 ; Coyles 9. Hurtin, 10 Johns. 85. ^Post, ?748. 'i Russ. Cr., 9 ed., 850. Expressly provided for by U. S. Rev. Stats. §§ 5394, 5403, 5408. 9R. Fisher, 2 Campb. 563. •"S. ■». Pennington, 3 Head (Tenn.), 299. "1 Russ. Cr., 9 ed., 573-580. , Obstructing Justice And Government 459 § 748. Obstructing Officers And Process. — Obstructing the execution of lawful process or the performance of a lawful duty by a ministerial officer is a misdemeanor.' To "obstruct" includes any impediments, direct or indirect, -active or passive, to the execution of process or exercise of authority.^ "Officer" means one who is executing an agency of the state (government) under authority of law,^ including a deputy, a special officer, or a private person authorized to act in the particular case.* It has been held, that resistance to an officer in good faith attempting to take goods under lawful process is not justified, though the officer is a trespasser f otherwise, where the officer acts entirely without warrant in law.^ § 749. Federal Statutes. — Every person who knowingly and wilfully obstructs, resists, or opposes, any officer of the United States in serving, or attempting to serve or execute, any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process, or assaults, beats, or wounds, any officer or other person author- ized, in serving or executing any writ, rule, order, process or warrant, shall be imprisoned, not more than twelve months, or fined, not more than three hundred dollars.^ Every person who corruptly, or by threats or force, endeavors to infiuence, intimidate, or impede, any witness or officer in any court of the United States in the discharge- of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of jus- tice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment, not more than three months, or both.* 11 Russ. Cr., 9 ed., 569-5,73. =U. S. V. McDonald, Fed. Cas. 15,667. 'Andrews e. S., 78 Ala, 483. *S. V. Moore, 39 Conn. 344; Dougherty «. S., 106 Ala. 63, 66. «S. «. Richardson, 38 N, H. 308 (cases cited). 'Bryant v. S., 16 Neb. 651. 'U. S. Rev. Stats. ?5398. aib. ?5399. 460 Specific Offenses Every person who corruptly, or by threats or force, or by threatening letters, or any threatening communications, endeav- ors to influence, intimidate, or impede, any grand or petit juror of any court of the United States in the discharge of his duty, or who corruptly, or by threats or force, or by threatening letters, or any threatening communications, influences, obstructs! or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice therein, shall be punishable by a fine of not more than one thousand dollars, or by imprisonment, not more than one year, or by both such fine and imprisonment.^ Every person who attempts to influence the action or decision of any grand or petit juror upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or communication, in print or writing, in relation to such issue or matter, without the order, previously obtained, of the court before which the juror is summoned, shall be punishable by a flne of not more than one thousand dollars, or by impris- onment, not more than six months, or by both such fine and imprisonment.^ § 750. Conspiracy To Obstruct Justice. — If two or more persons in any state or territory conspire to deter, by force, intimidation or threat, any party or witness in any court of the United States from attending such court, or from testifj^ing to any matter pending therein, freely, fully and truthfully, or to injure such party or witness, in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment, of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment, lawfully assented to by him, or of his being, or having been, such juror, each of said persons shall be punished by a flne of not less than five hundred, nor more than five thousand, dollars, or by imprisonment, with or without hard labor, not less than 'U. S. Rev. Stats. §5404. Hh. § 5405. Obstructing Justice And Government 461 six months nor more than six years, or by both such fine and imprisonment.' § 751. Forms Of Indictments. — 1. Refusing To Assist Officer. The Jurors etc. present, that on etc., at etc., A. B., a constable of said County, lawfully apprehended and took into his custody one C. D. on a charge of assault and battery then and there committed by said 0. D. in the iight and view of said A. B., and the said 0. D., then and there, after said apprehension, unlawfully resisted the said A. B. and attempted to escape from said lawful custody, whereupon the said A. B., having reasonable necessity for so doing, then and there required and commanded E. F. to assist him in detaining the said C. D. and preventing his escape ; but the said E. P., well knowing the premises, did then and there unlawfully and wilfully neglect and refuse to assist the said A. B. as thus as aforesaid required and commanded, against the peace etc. 2. Obstructing Officer The Jurors etc. present, that on etc., at etc., A. B., a justice of the peace, in and for said County, duly issued his warrant under his hand and seal, directed to CD., a constable of said County, reciting {giving substance of clause containing recital), and commanding (giving substance of command); whereupon, on the day and at the County aforesaid, while the said C. D., by virtue of his office as such constable and in pursuance of the command of said writ and then and there having the said writ in his possession, was pro- ceeding, in execution of said command (stating facts), E. F., well knowing the premises, did unlawfully and wilfully obstruct and impede the said C. D. in the performance of his office and execution of the writ aforesaid by then and there (stating facts), against the peace etc. 3. Dissuading Witness. The Jurors etc. present, that on etc., at etc., A. B., contriving and intend- ing to impede and obstruct the administration of justice, did unlawfully persuade, cause and procure one C. D. to absent himself from attending as a witness to give evidence in a cause then and there depending in the Court of said County, in which B. F. was plaintiff and Or. H. defendant, after said C. D. had been duly summoned to testify in said cause, as he, the said A. B., then and there well knew, against the peace etc. 'U. S. Rev. Stats. ? 5406. 462 Specific Offenses CHAPTER LXXVI. PERJURY. § 752. Defined. — Perjury consists in wilfully making a false statement upon oath as to matter material to the point in question in a judicial proceeding or due course of justice.' § 753. Mature Of Offense. — Perjury is punishable as an obstruction of justice, and the cognizance of the offense belongs peculiarly and exclusively to the government in whose tribunals the proceeding is had in which the false swearing was done.^ It is immaterial, that the party was not competent or com- pellable to testify or be sworn,^ or that he was not credited, or otherwise accomplished no actual mischief;' but, if an oath made under particular circumstances was wholly unnecessary, 80 that it would be entitled to no consideration and be of no legal weight, the falsity of the statement sworn to can not constitute perjury.* The offense consists essentially in the vdlful false statement of a material fact or facts under oath, without reference to the mode of statement, whether in writing or oral, before or after oath administered.* § 754. The Oatli. — An oath is a solemn declaration of truth-telling confirmed by an appeal to. the Deity under the sanction of religion. It must be taken before an officer or tri- bunal duly authorized to administer it.^ The form is not essen- tial;' but there must be an unequivocal act, in some form, in ■3 Greenl. Ev. § 188. ^In re Loney, 134 U. S. 372. 38 Greenl. Ev. ? 191 ; Mackin v. P., 115 111. 312. *3 Russ. Cr., 9 ed., 23 ; Reg. v. Philpotts, 5 Cox C. C. 363. *S. B. Helle, 2 Hill (S. C), 290 ; Silver ». S., 17 Ohio, 365. »C. V. Hatfield, 117 Mass. 227. '3 Russ. Cr., 9 ed., 6; U. S. «. Curtis, 107 U. S. 671 ; V. S. v. Hall, 131 lb. 50. If administered in the presence of the court, it is deemed to have been taken before the court, though the officer administering it be incompetent. Master- ton i). S., 144 Ind. 240. ' »3 Greenl. Ev. 1 192. Perjury 463 the presence of an authorized officer, by which the affiant then and there takes upon himself the obligation of the oath.^ It is immaterial, that the oath was irregularly taken, ^ but if a statute requires it to be in a certain form, in order to be considered, the form becomes material.' The oath may be taken before a de facto officer.^ An affirmation, which differs from an oath in omitting the appeal to the Deity, when permitted by law to take the place of an oath, places the person taking it in like situatioia as to penal consequences of falsity as an oath. § 755. Tlie Proceeding. — The oath must be taken in a judicial or other public proceeding, i. e., a proceeding in the administration of justice or of government.^ It may be taken before a court, whether of record or not, civil or military ; before a commissioner, a magistrate, or any other official; before a grand jury^ or other body having authority to take statements upon oath ; before or after judgment ; to sustain proceedings already begun, or to initiate them ; in support of a plea,' an application for a continuance,^ or a new trial,^ or for a peace warrant;'" in justifying bail." If, upon qualification for any office or employment, an oath is required as to some matter of fact, a wilful false statement in such matter constitutes perjury;'^ but the offense does not extend to promissory oaths, such as an oath of office.'^ False swearing does not amount to perjury in any case where the oath was "extra-judicial," i. e., not required by law," or 'O'Reilly «. P., 86 N. Y. 154 '3 ttreenl. Ev. ? 193. 'S. V. Steele, 1 Yerg. (Tenn.) 394. "Izer ». 8., 77 Md. 110. '3 Russ. Or., 9 ed., 3 ; 8 Greenl. Ev. ? 190. «Izer v. S., 77 Md. 110. 'S. B. Roberts, 11 Humph. (Tenn.) 539. «S. V. Shupe, 16 Iowa, 366; 8. ®. Flagg, 27 Ind. 24. '8. «. Chandler, 42 Vt. 446. '»R. V. ParneJl, 2 Burr. 806. "3 Russ. Cr., 9 ed., 3, 21 ; 8 Greenl. Ev. i 190. '^3 Greenl. Ev. § 190. "1 Hawk., ch. 69, § 3 ; 8. o. Dayton, 33 N. J. L. 49. "8 Russ. Or., 9 ed., 6 ; Linn «. C., 96 Pa. St. 385. 464 Specific Offenses where the suit or proceeding iu which the false testimony was given or statement was made was unauthorized or wholly with- out warrant of law in its inception or some subsequent step ;^ hut it is immaterial, that the proceedings were merely irregular or illegal.^ § 756. Materiality. — The matter sworn to must be material to the point in question,^ and the materiality of a statement is to be ascertained by reference to the time when it was made.* A statement is said to be "material," if it has a bearing, direct or indirect, upon the matter in question, so as to influence its determination.' Any testimony in a cause that tends, in itself, or in combination with other evidence, to influence the result on a direct or collateral issue is material.* It is sufficient, that the false statement tends to affect the weight or credibility of any other evidence, or of the person making it, or any other witness.'' A fact may be material, though evidence of its exist- ence was improperly admitted.' § 757. Opinion And Belief. — A false statement as to the affiant's opinion or belief, if otherwise material, amounts to perjury;" but a charge of perjury can not ordinarily be pre- dicated upon a statement of opinion or conclusion upon matter of law by a non-expert witness.'" 13 Greenl. Ev. § 201; Reg. v. Pearce, 9 Cox C. C. 358; S. v. Hall, 49 Me. 412. 'Reg. 0. Meek, 9 C. & P. 513 ; S. «. Hall, 7 Blackf. (Ind.) 25; S. v. Lewis, 10 Kans. 157; S. c. Peters, 107 JST. C. 876. 33 Russ. Cr., 9 ed., 11-33. *3 Greenl. Ev. g 196. 'lb. i 195; Reg. v. Mullany, 10 Cox C. C. 97; C. v. Grant, 116 Mass. 17 ; Bradberry v. S., 7 Tex. App. 375. «S. B. Keenan, 8 Rich. (S. C.) L. 456; Wood «. P., 59 N. Y. 117; S. ». Schupe, 16 Iowa, 36. 'Reg. V. Baker, 1895, 1 Q. B. 797 ; U. S. ». Landsberg, 23 Fed. R. 585 ; P. v. Courtney, 94 N. Y. 490 ; Henderson ». P., 117 111. 365 ; S. c. Day, 100 Misso. 242. 8Reg. e. Gibbons, 9 Cox C. C. 105. 93 Russ. Cr., 9 ed., 2; S. e. Lea, 3 Ala. 602. '»S. V. Henderson, 90 Ind. 406. Cf. Hoch v. P., 3 Mich. 552. Perjury 465 § 758. Falsity. — The statement is deemed to be false, if at the time of making it the party does not know or beheve it to be true, though it may be true in fact.' § 759. latent. — The false swearing must be wilful: the falsity must be accompanied with some degree of deliberation ; it must be owing to perverseness and design.^ § 760. False Swearing. — The making or using of a false statement under oath, though not amounting to perjury, is pun- ishable as a misdemeanor, if the circumstances are such as to constitute it an obstructing of justice or government. It is a misdemeanor to use a false affidavit taken abroad with intent to mislead the courts,' or otherwise to make, use or procure a false affidavit to be used in a judicial proceeding or before a department of government.* § 761. Subornation And Inciting. — To incite or solicit another to commit perjury is a misdemeanor, though the person instigated does not commit the oiFense.* To procure another to commit perjury, i. e., to incite or solicit one to commit a perjury which he actually commits in conse- quence of such inciting or soliciting, is punishable as a distinct misdemeanor, called subornation of perjury.^ In order to con- stitute this offense, the person soliciting or inciting must contemplate and procure the commission of the full offense of perjury, including the requisite evil intent.^ § 762. Federal Statutes. — Every person who, having taken an oath before a competent tribunal', officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify '3 Russ. Or., 9 ed., 2 ; S. ». Gage, 17 N. H. 373 ; S. v. Knox, Phill. (N. C.) L. 312 ; S. V. Cruikshank, 6 Blaokf. (lud.) 62. ''3 Russ. Or., 9 ed., 2; TJ. S. v. Moore, Fed. Cas. 15,803; Johnson v. P., 94 111. 505; Hood 9. 8., 44 Ala. 81 ; Byrnes «. Byrnes, 102 N. Y. 4. '3 Russ. Cr., 9 ed., 23; Gibson v. Tilton, 1 Bland (Md.), 352, 355. *Reg. V. Chapman, 3 Cox C. C. 467 ; Reg. v. Hodgkiss, 11 lb. 365. '3 Russ. Cr., 9 ed., 1 ; 3 Greenl. Ev. ? 188 ; Reg. v. Clement, 26 U. C. Q. B. 297. «3 Russ. Cr., 9 ed., 1 ; 3 Greenl. Ev. § 188. 'U. S. V. Evans, 19 Fed. R. 912; C. v. Douglass, 5 Mete. 241 ; Coyne v. P., 124 III. 17. 30 i66 Specific Offenses 1;ruly, or that any written testimony, declaration, deposition, or •certificate, by him subscribed, is true, wilfully and contrary to ^such oath states or subscribes any material matter which he ■does not believe to be true is guilty of perjury and shall be punished by a fine of not more than two thousand dollars and by imprisonment, at hard labor, not more than five years, and shall, moreover, thereafter be incapable of giving testimony in any court of the United States, until such time as the judgment against him is reversed.' Every person who procures another to commit any perjury is guilty of subornation of perjury and punishable as in the preceding section prescribed." Perjury and subornation of perjury before a secretary of legation or consular officer abroad is punishable in any district of the United States, the proceedings and punishment being the same as if the offense had been committed within the United States.^ § 763. Indictment. — The indictment must specify all the elements of the offense : the judicial proceeding, or due course of justice; the oath lawfully taken by the accused; his testi- mony, or statement; its materiality; its falsity.* In indictments for perjury and subornation of perjury, under statutes which may be considered declaratory of the common law, it is sufficient to set forth the substance of the offense charged and by what court, or before whom, the oath was taken, averring such court or person to have competent author- ity to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth any part of the record or proceedings other than as aforesaid, and without setting forth the commission or authority of the court or person before whom the perjury was committed.' The allegation of the court and cause is mere lU. S. Rev. Stats. J5392; Caha ®. U. 8., 152 U. S. 211. ^b. ?g393. 'lb. i 1750. *3 Greenl. Ev. ? 189. '23 Geo. 3, ch. 11 ; Alexander Brit. St. 766 ; U. S. Rev. Stats. § 5396 ; Mark- ham V. U. S., 160 U. S. 319 ; Deckard v. 8., 38 Md. 186 ; 8. ». Peters, 42 Tex. 7. Perjury 467 matter of inducement,* and it is sufficient to set out, that a certain cause, proceeding or inquiry, particularized by reference to its title or like description, was pending and came on for hearing, trial, investigation etc. before a court or official desig- nated by style or name and official title.^ It must be sufficiently apparent from the averments, that the court or officer had jurisdiction in the premises ; but it need not be alleged in any express or set form of vrords, that the court or officer had jur- isdiction or authority/ The oath is sufficiently averred by the allegation, that the defendant was "duly sworn," or words of the same import.* This averment must be direct.^ The false statement is sufficiently averred by alleging the substance, or purport.* The materiality may be averred by setting forth the circum- stances which render the false statement material, or by the mere allegation, that it was material.' The averment of falsity is technically called the assignment of perjury. This averment consists of an express* contradiction of the defendant's oath, by falsifying, by particular averments adapted to the circumstances, those parts of the defendant's statement which are untrue.' If the defendant has taken con- tradictory oaths, it must be shown which was false.*" Several assignments may be averred in one count, and if only one be >2 Chitty Cr. L. 306-307. ^This designation is essential. U.S. ». Wilcox, Fed. Cas. 16,693; Kerr ». P., 43 111. 307 ; Bradberry «. S., 7 Tex. App. 375; S. •». Oppenheimer, 41 Tex. 83. 'S.B.Jones, 59 Vt. 117; S. ®. Plummer, 50 Me. 317; S. v. Nickerson, 46 Iowa, 447; Masterton ». S., 144 Ind. 340. *3 Russ. Cr., 9 ed., 59; Tuttle v. P., 36 N. Y. 431 ; Massie ». S., 5 Tex. App. 81 ; S. V. O'Hagan, 38 Iowa, 504. *P. ®. Dunlap, 113 Cal. 73 (cases cited). «S. ». Neal, 43 Misso. 119. '3 Chitty Cr. L. 307-308; Markham v. U. S., 160 U. S. 319; Deckard v. S., 38 Md. 186; S. ■». Sleeper, 37 Vt. 133. S3 Russ. Cr., 9 ed., 70 ; Burns ». P., 59 Barb. 531 ; Turner ». 8., 30 Tex. App. 691. '3 Chitty Cr. L. 811. i»3 Russ. Cr., 9 ed., 71. 468 Specific Offenses good, the pleading is sufficient.' If the defendant swore as to his belief, that must be negatived,^ it being sufficient, in such case, to allege, that he "well knew" to the contrary of what he swore.' An innuendo may be inserted for the purpose of explaining the defendant's testimony or statement by reference to former matter.' The usual forms contain a small collection of qualifying adverbs in connection with the averment of perjury. It is suffi- cient^ and probably necessary,^ to allege, that the act was done "wilfully and corruptly" — at least, to use words of equivalent meaning. The phrase "maliciously and corruptly" has been held sufficient,' and even "corruptly" has been held not essential, if an equivalent is used.' "Falsely" is not necessary.' The usual concluding phrase "and so the defendant did commit wilful and corrupt perjury" is clearly unnecessary.'" If the offense is defined by statute, it is sufficient to follow the statutory words in describing it." Indictments for subornation must allege the incitement and the consequent perjury, the description of which\must embrace all the essential elements of perjury.'^ § 764. Forms Of Indictments. — 1. Perjury. The Jurors etc. present, that on etc., at etc., before the Court, the Honorable X. Y., one of the judges thereof, presiding, a certain issue duly joined in an action of tort between A. B., plaintiff, and one C. D., defendant, came on to be tried in due course of law, and was then and there tried by a jury of said County in that behalf duly sworn and taken between the parties 13 Chitty Cr. L. 313 ; C. v. McLaughlin, 122 Mass. 449 ; S. v. Smith, 63 Vt. 301. 2S. ». Lea, 3 Ala. 603. 33 Chitty Cr. L. 312. ♦3 Buss. Cr., 9 ed., 72. 'S. v. Smith, 63 Vt. 301. «S. ». Davis, 84 N. C. 787. 'S. V. Spencer, 45 La. Ann. 1. ss. V. Anderson, 92 Iowa, 764. 9S. V. Smith, 63 Vt. 201. '»2 Chitty Cr. L. 312. "U. S. V. Hearing, 36 Fed. R. 744; S. 0. Bixler, 63 Md. 354. i2p. J). Ross, 103 Cal. 425. Perjury 469 aforesaid, upon which trial E. F. then and there appeared as a witness for and on behalf of the said A. B., and was then and there duly sworn before the said Honorable X. Y., that the evidence which he, the said B. F., should give to the court and jury in the said matter then depending before them should be the truth, the whole truth and nothing but the truth, the said Honorable X. Y. then and there having competent authority to administer the said oath ; and at and upon the trial of the said issue so joined, it then and there became and was a material question, whether the said C. D. had assaulted and beat the said A. B. ; and the said E. F,, being so sworn as aforesaid, then and there, on the trial of said issue, upon his oath aforesaid, did wilfully and corruptly depose and say, in substance and effect, that {setting out testimony), whereas, in truth and in fact, {averring falsity), against the peace etc. 2. Subornation. The Jurors etc. present, that heretofore, to wit, on etc., at etc., a certain issue was joined in (naming court), between A. B., plaintiff, and 0. D., defendant, in an action of ; and afterward, before the trial of said issue as herein- after mentioned and while the same was pending, to wit, on etc., at etc., E. F. wilfully and corruptly did solicit, suborn and endeavor to procure one G. H. to be and appear as a witness at the trial of said issue, for and on behalf of the said A. B., and upon said trial falsely to swear and give in evi- dence certain matters material to the inquiry upon said issue, in substance and effect following, that is to say, that etc. ; and afterward, to wit, on etc., at etc., before the said (naming court), the Honorable X. Y., one of the judges thereof, presiding, the issue aforesaid came on to be and was tried in due course of law, by a jury of said County in that behalf duly sworn and taken between the pai'ties aforesaid ; upon which trial there, on the day last afore- said, the said G. H., through and in consequence of the solicitation, suborna- tion and procurement of the said E. F., did appear as a witness for and on behalf of the said A. B., and was then and there duly sworn before the said Honorable X. Y., that the evidence which/ he, the said Q. H., should give to the court and jury in the said matter then depending before them should be the truth, the whole truth and nothing but the truth, the said X. Y. then and there having competent authority to administer the said oath ; and at and upon the trial of the said issue so joined, it then and there became and was a material question, whether {stating facts), whereupon the said G. H., being so sworn as aforesaid, then and there, on the trial of said issue, upon his oath aforesaid, did wilfully and corruptly depose and say, in substance and effect, that (setting out testimony), whereas, in truth and in fact, (assigning perjury), and whereas, in truth and in fact, the said E. F., when he solicited, suborned and endeavored to procure the said G. H. falsely to swear and give evidence as aforesaid, well knew, that {pursuing words in assigning perjury), against the peace etc § 765. Evidence. — The proof must cover the various alle- gations as to the elements of the offense : the judicial proceed- ing, or due course of justice; the oath lawfully taken by the 470 Specific Offenses accused; his testimony, or statement; its materiality; its falsity. One witness is sufficient to establish any of these alle- gations,* except as hereinafter stated in regard to falsity, and the same doctrine applies as to the proof of subornation.^ It is sufficient, if it appears prima facie, that the court before which the proceedings were had had jurisdiction of the subject-matter and that the judge or official before whom the oath was taken was de facto in the ordinary exercise of the office ; but, if the authority to administer the oath was derived from a special commission, or delegated to be exercised only under particular circumstances, the circumstances establishing the authority must be shown.^ "Variance as to matter of induce- ment is fatal, unless the allegation can be rejected as surplusage.* The allegation as to the oath is supported by proof, that it was taken in any of the modes usually practised; but an allegation as to the mode of taking it is essentially descriptive and must be supported.' The allegation as to the testimony, or state- ment, is sufficiently established by proof of its substance and effect.' K there are several distinct assignments of perjury upon the same statement, proof of one is sufficient.^ The materiality must be established by evidence, like any other part of the case.* The proof is found in the record and proceedings of the tribunal or officer before whom or which the testimony was given, or statement made, and if the alleged perjury consists of parol testimony, evidence must be given of so much of the state of the cause and its posture at the time when such testimony was given as to show materiality.' '3 Greenl. Ev. g 198. ^C. B. Douglass, 5 Mete. 241. '3 Greenl. Ev. ? 190 ; Keator ». P., 32 Mich. 484. ♦3 Russ. Cr., 9 ed., 41-42 ; 2 Chitty Cr. L. 307 ; S. «. Langley, 34 N. H. 529. 53 Greenl. Ev. ? 192. •lb. §194; Harris ». P., 64 N. Y. 14S. '3 Greenl. Ev. §193; S. v. Blaisdell, m N. H. 328 (cases cited). «C. V. Pollard, 13 Mete. 23.5 ; 8. 0. Aikens, 82 Iowa, 403; Lawrence v. C, 3 Tex. App. 479. »8 Greenl. Ev. § 197. Perjury 471 Whether or not a statement was material under the circum- stances is a question of law for the court.^ The evidence of falsity must be something more than sufficient to counterbalance of oath of the accused.^ This may consist of the oath one witness corroborated by circumstances, and circumstances evidenced in writing may combine to the same effect.^ Documentary evidence may establish falsity: when the falsity is directly proven by documents or writings coming from the accused under circumstances showing corrupt intent; when his statement is contradicted by a public record, proved to have been well known to him when he made the oath ; if his necessary knowledge of the falsity can be predicated upon his own written statements in relation to the matter sworn to by him, or other writings in his possession, treated by him as containing evidence of the facts recited therein.'' Mere evidence of opposing statements of the accused does not establish falsity.^ In rebuttal of proof of falsity, the same evidence is relevant, in general, that was or might have been used in the proceeding or upon the inquiry in the course of which the false statement is alleged.^ § 766. Procedure. — It has been held, that several can not be joined in one count for perjury.' Acquittal upon the charge of perjury operates to entitle one charged with subornation thereof to an acquittal.* iSmith «. S., 27 Tex. App. 50; Cothran «. S., 39 Miss. 541 ; S. ». Williams, 30 Misso. 364. n Greenl. Ev. §2 257-357 a; 8. v. Blize, 111 Misso. 464. n Greenl. Ev. ? 358. 3 Greenl. Ev. ?213; Parker v. S., 67 Md. 329; Baccio ». P., 41 N. Y. 265; Brogy 0. C, 10 Gratt. (Va.) 722. '3 Greenl. Ev. §214; Shartzer v. S., 63 Md. 149 ; 0. v. Harris, 181 Mass. 336. *Snowden «. U. S., 2 App. D. C. 89 ; Burt v. S., 23 O. St. 394; Phillips ». S., 9 Humph. (Tenn.) 246; S. v. Byrnes, 47 Conn. 465; P. e. Gage, 62 Mich. 271. ♦Woods V. P., 55 N. Y. 515. '1 Kuss. Or., 9 ed., 928. 'Richie ». S., 58 lud. 355. 'Campbell ». P., 34 Mich. 851. 8C. V. Murphy, 2 Allen, 163; S. f. Shear, 51 Wis. 460. 'Stevens «. S., 66 Md. 202. Receiving 485 . CHAPTER LXXX. EECErvmG. § 787. Nature Of Offense. — Receiving stolen goods or- chattels, knowing them to be stolen, is made a substantive offense by modern statutes.' In order to constitute this offense,, it is, in general, necessary that there should exist the elements of a stealing of the goods, an act of receiving, knowledge that, they were stolen and dishonest or corrupt intent. The guilt, of receiving does not attach, where a thing stolen is obtained by transfer from a mere receiver,^ and one who has partici-. pated in the larceny can not be punished as receiver of the thing stolen.^ The thing received must bear the character of stolen property at the time of the receiving.* If goods were stolen abroad,^ i. e., if the larceny was com- pleted abroad, the receiving is not punishable;^ otherwise, if there has been an asportation amounting' to a new caption in the territory where they were received.^ § 788. Tlie Stealing. — There must have been such a. taking and removal of the thing in question by the person, from whom it is received as to amount to larceny on his part. Thus, in the case of a conversion by a servant^ or bailee, the matter of the liability as receiver of one obtaining by transfer from him depends upon the question, whether or not there has been such a conversion in the first instance by the servant' or bailee'" as to amount to larceny. And, as a married woman ^Ante, 1 42. 2Reg. «. Kelly, 3 C. & K. 379 ; Foster v. 8., 106 Ind. 773. 'S. V. Honig, 78 Misso. 349. 'Reg. ®. Hancock, 14 Cox C. 0. 119 ; U. 8. ». De Bare, Fed. Cas. 14,935. Mmie, I 713. «Reg. ■». Carr, 15 Cox C. C. 131, n. •■C. V. White, 133 Mass. 430. 83 Russ.' Cr., 9 ed., 548. ^Ante, § 704. ■»4TO*e,§705; 486 SPBCiric Offenses can not incur the guilt of larceny by a taking of her husband's goods or chattels,' one who receives a thing so taken is not punishable.^ It is immaterial, whether the act of stealing is larceny at the common law or under statutes, simple larceny or com- pound larceny, e. g., robbery, or embezzlement declared by statute to amount to larceny.'^ § 789. The Receiving. — A manual possession or touch is not necessary to constitute receiving, but one is said to receive goods as soon as he obtains control over them, and the receiving may be by an agent, or through the instrumentality of another.* A husband may receive from, or through the agency of, his wife,^ but the wife cannot incur guilt by receiving from the husband.* The receiving of various articles belonging to different owners at the same time constitutes one offense,^ and acts of receiving by several, though at different times and places, in pursuance of a joint purpose thus accomplished, constitute a joint receiving.^ § 790. Guilty Knowledge. — The receiver, at the time of receiving,' must have guilty knowledge, i. e., he must either know, believe, or have reason to believe, that the thing in ques- tion has been stolen, direct or absolute knowledge not being essential." § 791. Intent — The receiving must be with a corrupt or dishonest intent, i. e., in aid of the felon, in order to secrete the thing received, or in some way to defraud the owner." 'Ante, I 706. •Reg. ». Kenny, 13 Cox C. C. 397. »Reg. V. Frampton, 8 Cox C. C. 161. *Reg. V. Miller, 6 Cox C. C. 353 ; Reg. ». Smith, lb. 554; S. •». Stroud, 95 N. C. 626 ; Huggins ». 8., 41 Ala. 393. 'Reg. ■». Woodward, 9 Cox C. C. 95. *Ante, ? 14. '8. s. Nelson, 29 Me. 329. sp. 0. Stein, 1 Park. Cr. R. 202. "S. V. Caveness, 78 N. C. 484, 491. "2 Russ. Cr., 9 ed., 567; C. v. Leonard, 140 Mass. 473 ; Murio o. S., 31 TPhila. R. R. o. Lehman, 56 Md. 209, 238. 'Yonoski «. S., 79 Ind. 393. »C. B. Louisville R. R., 80 Kent. 291. *Whitcomb v. Gilman, 35 Vt. 297. 'Crosman v. Lynn, 121 Mass. 301. 'Purefoy e. P., 65 111. App. 167. Sodomy 497 CHAPTER LXXXIV. SODOMY. § 810. Tlie Offense. — Sodomy is carnal knowledge against the order of nature by a man with a man or with a woman {^per anum), or by a man or woman with a beast, a consenting party being a principal.' Attempt (solicitation, incitement) to com- mit the offense is a misdemeanor.^ § 811. Forms Of Indictments. — 1. With Man. The Jurors etc. present, that A. B., on etc., at etc., in and upon one C. D. feloniously did make an assault, and then and there feloniously and against the order of nature had a venereal affair with and carnally knew the said C. D. and then and there feloniously and against the order of nature with the said C. D. did commit and perpetrate the detestable and abominable crime of buggery, against the peace etc. 2. With Beast. The Jurors etc. present, that A. B., on etc., at etc., with a certain cow feloniously and against the order of nature had a venereal affair, 9,nd then and there feloniously and against the order of nature carnally knew the said cow, and then and there feloniously and against the order of nature with the said cow did commit and perpetrate the detestable and abominable crime of buggery, sigainst the peace etc. '1 Russ. Or., 9 ed., 937-939. "Reg. V. Ransford, 13 Cox C. C. 9. 33 ■498 Specific Offenses CHAPTER LXXXV. TREASON. § 812. Constitutional Provision. — Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 'No person shall be convicted of treason, unless on the testi- mony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work ■corruption of blood or forfeiture except during the life of the person attainted.' § 813. Statutory Provisions. — 'Every person owing allegi- ance to the United States who levies war against them, or adheres to their enemies, giving them aid and comfort, within the United States or elsewhere, is guilty of treason.^ Every person guilty of treason shall suffer death, or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years and fined not less than ten thousand dollars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United. States.^ § 814. Misprision Of Treason. — Every person owing allegiance to the United States and having knowledge of the commission of any treason against them who conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the 'Const. U. 8., art. 3, ? 3. 'U. S. Rev. Stats. ?5331. n\>. ?5332. Treason 499 governor, or to some judge or justice, of a particular state, is guilty of misprision of treason, and shall be imprisoned, not more than seven years, and fined, not more than one thousand dollars.^ § 815. Rebellion And InsuiTection.— Every person who incites, sets on foot, assists, or engages in, any rebellion or insurrection against the authority of the United States, or the laws thereof, or gives aid or comfort thereto, shall be punished by imprisonment, notmore than ten years, or by a fine of not more than ten thousand dollars, or by both of such punish- ments, and shall, moreover, be incapable of holding any office under the United States.^ § 816. Correspondence 'Witli Foreign Government. — Every citizen of the United States, whether actually resident or abiding within the same, or in any foreign country, who, with out the permission or authority of the government, directly or indirectly commences or carries on any verbal or written cor- respondence or intercourse with any foreign government, or any officer or agent thereof, with an intent to infiuence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or contro- versies with the United States, or to defeat the measures of the government of the United States, and every person, being a citizen of, or resident within, the United States and not duly authorized, who counsels, advises, or assists in any such corres- pondence, with such intent, shall be punished by a fine of not more than five thousand dollars and by imprisonment during a term not less than six months nor more than three years; but nothing in this section shall be construed to abridge the right of a citizen to apply, himself or by his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any ot its agents or subjects.^ 'U. S. Rev. Stats. ? 5333. ^Ib. § 5884. 3Ib. ? 5335. 500 Specific Offenses § 817. Conspiracy Against Government. — If two or more persons in any state or territory conspire to overthrow, put down, or to destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay, the execution of any law of the United States, or by force to seize, take or possess, any property of the United States contrary to the authority thereof, each of them shall be punished by a fine of not less than five hundred, and not more than five thousand, dollars, or by imprisonment, with or without hard labor, for a period not less than six months, nor more than six years, or by both such fine and imprisonment.^ § 818. Recruiting Or Enlisting Against Government.— Every person who recruits soldiers or sailors within the United States to engage in armed hostility against the same, or who opens within the United States a recruiting station for the enlistment of such soldiers or sailors, to serve in any manner in armed hostility against the United States, shall be fined, not less than two hundred dollars, nor more than one thousand dollars, and imprisoned, not less than one year, nor more than five years.^ Every soldier or sailor enlisted or engaged within the United States with intent to serve in armed hostility against the same shall be punished by a fine of one hundred dollars and by imprisonment, not less than one year, nor more than three years.' § 819. Meaning Of Terms. — A person "owing allegiance" to the United is a citizen, wherever resident, or an alien, while sojourning here.* The commission of the crime of treason consists in the actual doing of some of the acts designated by the Constitution, not in mere conspiracies or attempts.^ lU. S. Rev. Stats. ? 5336. ^Ib. ?5387. ^Ib. § 5838. *3 Greenl. Ev. ? 339; Carlisle v. U. S., 16 Wall. 147, 154. 'Exp. Bollman, 4 Cranch, 75, 120 ; U. S. ». Pryor, Fed. Gas. 16,096. Treason 501 In order to constitute a " levying of war," a body of men must be actually assembled for the purpose of effecting by force a purpose hostile to the government.' "Enemies" of the United States are foreign persons or powers in open hostility toward them.* "Adhering" to the enemies of the United States is consti- tuted by such acts as joining them; delivering up to them fortified places or ships of war ; raising troops for them ; supplying them with arms, money, or information.' " Aid and comfort " comprehends whatever acts, in their natural consequences, if their design were successful, would encourage or advance the interests of the enemy.* " Overt," in the law of crimes, is applied to " act," to inten- sify the distinction between a design, or intent, and something actually and manifestly done in the execution of it.* § 820. Procedure. — The offense must be laid to have been committed by the accused "traitorously (or, treasonably) and against his allegiance."^ An overt act must be alleged,^ and there can be no conviction, except on confession in open court, or the testimony of two witnesses to the same overt act.* ■ Sev- eral overt acts may be alleged in one count,^ but if only one is well laid and proved, that is sufficient.'" Prosecutions for treason are almost unknown in the United States. A mere reference to precedents of indictments is deemed sufficient." lExp. BoUman, 4 Crancli, 75, 136. 23 Greenl. Et. §344; TJ. S. b. Greathouse, Fed. Cas. 15,234. '3 Greenl. Ev. ? 344. CORROBORATION (See Accomplices) COSTS general doctrine 349 in extradition cases 416, 418' upon certiorari 437 COUNSEL when communicated with by accused, may not prosecute 135' right of accused to 202 confidential communications to 311 COUNTERFEITING 600-ttlO punishable as cheat 565 COUNTERMAND of instigated crime. 34 COUNTS joinder of 163 finding as to one or more 331 COUNTY jurisdictional limits , 75- COURSE OF LAW (See Due Course Of LaM) COURT, COURTS trial by without jury 68 state, jurisdiction of 76, 79 Federal, jurisdiction of 7*7, 78' magistrates not within designation. 80 COURT AND JURY respective provinces 247 COVENTRY ACT provisions of 729 COVERTURE (See Feme Covert) CREDIT fraudulently obtaining goods on 700 CRIME (See Infamous Crime) defined. .' 1 what conduct punishable '. S grades of 3-9 steps in commission of 11 CRIMINAL LIABILITY 1 8-35 CRITICISM when privileged 730 CROSS-EXAMINATION doctrine as to 319 618 Index CROWD (See Collecting Crowds) section riding or firing into 664, 674 CRUCIBLE not an instrument of counterfeiting 606 CRUEL PUNISHMENT (See Punishment) CUL DE SAC obstruction of 735 CUMULATIVE PUNISHMENT rule as to imposition of 353 CURED BY VERDICT general doctrine 336 as to duplicity 144 CURTILAGE in law of arson 490 in law of burglary 548 CUSTODIA LEGIS interfering with property in 591 CUSTODIAN larceny by 703 CUSTODY of accused 196 commitment to of sheriff 347 DANGEROUS ANIMAL letting at large 664,674 DAY meaning 45 of offense, averment of 149 DAY AND YEAR AFORESAID use in averring time 148 DEAD libel of 719 DEAD ANIMAL (See Carcass) description in indictment , 154 DEAD BODY stealing 692 offenses connected with 741 DEAD WITNESS (See Deceased Witness) DEAF AND DUMB tSee Dumb Person) DEATH (See Abatement; Death Penalty) DEATH PENALTY general doctrine 343 inquiry of accused 343 pregnancy of female convict 35I reprieve, suspension and commutation 343 366 357 DEBT (See Action) fine is not 345 costs are not 349 award in bastardy case is not 533 Index 519 DECEASED WITNESS section supplying testimony of SOS- DECLARATIONS (See Dying Declarations) of third persons 285 of bodily and mental feeling 386 evidence of in cases of homicide 681 DEER larceny of 695 DE FACTO OFFICER bribery of 545 extortion by 633 resistance to 674 liability of 735 administration of oath by 754 DEFAMATION, DEFAME meaning in law of libel 719 DEFECT in commitment 114 of form 336 DEFENDANT, DEFENDANTS joinder of 163 competency as witness 301 DEFENSE, DEFENSES modes of 175 order of 176 what are matters of 186 of person 507, 671 of property 508, 673 DEGREE OF CRIME finding in verdict 383, 683 of homicide 673 of murder 676 DELIBERATE meaning in law of homicide 676 meaning in law of mayhem 731 DEMURRER general doctrine 178 to challenge to array 318 DENTISTRY legislative power of regulation 63 DEPOSITIONS not admissible against accused 70 may be admitted for accused 252 DESCRIPTION proof of matter of 361 DESERTERS jurisdiction as to 79 DESTROYED WRITING mode of alleging 151 520 Index DESTROYING EVIDENCE SBCTifrN as an admission 283 DETAINER (See Forcible Detainer) PETENTION warrant of 405 when a false imprisonment 624 DIAGRAM production in evidence 255 DIES NON verdict rendered and jury discharged on 327 DIMINUTION OP RECORD remedy and forms 43ff, 440 DIPLOMATIC AGENT immunity of 74 DIRECTING VERDICT doctrine as to 249 DISBARMENT of attorney ., 580,588 DISCHARGE OF ACCUSED general doctrine 341 upon preliminary hearing 106 DISCHARGING JUROR doctrine as to 213 DISCHARGING JURY doctrines as to 197, 216i 251 DISCLOSURE (See Confidential Communication) DISCRIMINATION between citizens of different states 65 DISEASE etmstitutionality of legislative provisions 61 as objection to juror 222 DISJUNCTIVE ALLEGATIONS doctrine as to 145 DISLOYALTY challenge for .' 228 DISOBEDIENCE contempt by 584 to orders of magistrates 747 DISORDERLY CONDUCT punishable as a misdemeanor 737, 738 DISORDERLY HOUSE (iil.613 right to suppress 60 DISORDERLY PERSONS summary proceeding against 56, 60 DISPOSITION of accused, evidence of 390 of person killed, evidence of 681 DISTANCE how measured ; 45 Index 521 DISTRICT ATTORNEYS section of United States 134 DISTRICT COURTS jurisdiction 77 DISTRICT OP COLUMBIA provisions as to extradition 419 DISTURBANCE when a misdemeanor 7S7-739 DIVORCE effect in cases of alleged bigamy 532 DOCUMENTS, DOCUMENTARY EVIDENCE admissibility 70 what may go to jury 350 DOG larceny of 695, 696 entering another's dwelling and killing 643 • DOORS (See Breaking Doors) DOUBLE PLEADING dtictrine as to. 190 DRAFT larceny of 696 DRINK frauds in relation to articles of 564 DRIVING (See Street) DRUGS legislative power as to regulations 61, 62 giving to procure abortion 465 DRUNKENNESS as affecting responsibility 31 as defense to charge of blasphemy 539 to charge of homicide 676 t6 charge of larceny 716 disqualifies as juror 233 as affecting witness 304 confession during 381 as official misconduct 736 DUE COURSE OF LAW" constitutional guaranty 56 DUE PROCESS OF LAW constitutional guaranty 56, 349 DUELING 614-615 DUMB PERSON arraignment 173 trial; 208 examination as witness. 305 DUPLICITY in indictment 144 DURESS pleading guilty under 363 522 Index DWELLING SECTION in law of arson 490 in law of burglary 548 criminal trespass 643 maintaining in crowded or filthy condition 743 defense of 508, 673 when apartment is a 554 DYING DECLARATIONS doctrine as to 387 EAVESDROPPING offense of 740 EDUCATIONAL INSTITUTION legislative power to provide for protection 60 EFFIGY libel by means of 718, 733 (5) EGGS larceny of 695 ELISOR appointment of 81 EMBEZZLEMENT 016-6(W EMBRACERY 630-631 EMISSION in law of rape 778 EMPLOYEES legislature may provide for safety of 60 larceny by 704 EMPLOYMENTS legislative powers as to 63, 64 ENDORSEMENT upon indictment ., . . 137 ENEMY, ENEMIES meaning in law of treason 819 ENGINEERING legislative power of regulation 63 ENLISTING against government 818 ENTERTAINMENT disorderly place of 611 ENTRY, ENTRIES (See Forcible Entry) in law of burglary 550 false, making not embezzlement 617 lost, how supplied 168 of marriage by clergyman 537 EQUAL RIGHTS constitutional guaranty 57 ERROR (?^&e Writ Of Error) ERROR OF FACT in rendition of judgment, remedy 363 Index 523 SECTION Escape 770-775 recapture 102 homicide in preventing. . . 100, 669 attempted, as an admission 283 EVASION of statute 50 Evidence. .ass-aiio introduction of 342 EXAMINATION OP WITNESSES 300-335 EXCEPTIONS (See Bill Of Exceptions ; Negatimng) EXCLUSION OF WITNESSES (See Witnesses) EXECUTION of warrant 94 of judgment for fine 346 EXEMPTION from jury duty, not a disqualification 322 EXHIBIT, EXHIBITS what may go to jury 350 EXHIBITING, EXHIBITION immoral or indecent 611 of forged instrument 650 EXISTENCE of person or corporation, proof of 380 EXPERIMENTS in illustration of evidence 354 EXPERT, EXPERT TESTIMONY general doctrines 292-296 in prosecutions for abortion 470 EXPLANATIONS OF POSSESSION {See Possession) Exports imposts or duties on 65 EX POST FACTO LAWS constitutional prohibition 66 EXPOSURE (See Indecent Exposure) homicide by 658 EXTORTION (>S3-6a3 EXTRADITION (See Foreign Extradition ; Interstate Extradition) FABRICATING EVIDENCE as an admission 283 FACT (See Error Of Fact) FAITH {See Good Faith) FALCONS larceny of 695 FALSE ENTRY (See Entry) FALSE IMPRISONMENT 684-635 FALSE PERSONATION when punishable 564 524 Index SECTION FALSE PRETENSES 630-638 FALSE STATEMENT as an admission 383 FALSE SWEARING a misdemeanor, though not amounting to perjury 760 FALSE TOKEN in law of cheats 565 FALSE WEIGHT cheating by t 565 FALSITY in law of perjury 758 FATHER meaning in law of abduction 456 may- incur guilt of kidnapping his child 686 FAVOR challenge to 221 FEDERAL CONSTITUTION force and application of provisions 54, 55 FEDERAL CONVICTS sentence to state prison 345 FEDERAL COURTS jurisdiction 77, 78 jurisdiction as to contempts 581 FEDERAL JURISDICTION generally 75 apportionment as to courts 77 removal of cases from state courts 78 habeas corpus 442 FEDERAL OFFICER assault upon 511 obstructing 749, 774 PEELING declarations of 386 FELONIOUSLY averment in indictment 159 FELONY general doctrines 5-7 accomplices in 28 FELONY CHARGE (See Chavge) FEMALE disqualified as juror 222 FEME COVERT criminal liability. 14 FIERI FACIAS in penal action. . .% 346 FIGHT, FIGHTING (See OTiaOenge) meaning in law of affray 481 Index 525 FILLING COIN section when a counterfeiting 604 FINDER, FINDING doctrine as to larceny 708 FINE excessive prohibited 73 sentence of 346 remission by President 365 FIREARM pointing at person 664 PISH constitutionality of legislation 60 larceny of 695 FIXTURES stealing 693, 696 FLESH of animal, larceny of '. 695 PLIGHT from justice, what constitutes 432 homicide in preventing 100, 668 as an admission of guilt 383 POOD constitutionality of legislation 61 frauds in relation to articles of 564 supplying or preparing noxious or unwholesome 743 FORCE use of in making arrest 100 in law of assault and battery 501 in law of kidnapping 686 in law of rape 779 in law of robbery 804 FORCIBLE DETAINER 639-545 FORCIBLE ENTRY 639-645 FORCIBLE TRESPASS 639-645 FOREIGNERS jurisdiction as to ., 74 arraignment of ... 173 FOREIGN GOVERNMENT (See Correspondence) FOREIGN LANGUAGE allegation of words in 153 proof of same 373 FOREIGN LAWS proof of 397 FOREMAN of grand jury 183 signature to indictment not necessary 137 FORFEITURE of bail 132 claim to, a disqualification as juror 236 remission by President 865 626 Index SBCTIOSr FORGERY «46-655 FORM, FORMAL constitutionality of legislation 56, 141 certain allegations no longer necessary 137 no arrest of judgment for certain defects 336 FORMER ACQUITTAL, CONVICTION, JEOPARDY pleas of 183 proof of 280 FORMER PROCEEDING admissibility of evidence given on 298 FORMER STATEMENT of witness, evidence of ; .322, 323 FORMER TRIAL proof of fact of 280 admissibility of evidence given on 298 FORNICATION. . .- 471-479 between persons of different races 47 FRAUD, FRAUDS (See Cheats) acquittal or conviction obtained through 71 in law of kidnapping 686 larceny where possession obtained by 700 FREEHOLD, FREEHOLDER qualification of juror 222 FREIGHT TRAIN running on Sunday may be prohibited 60 FRESH PURSUIT breaking doors upon 101 FRIGHTENING obtaining possession of goods by means of 698 FROM meaning in statute 45 FROM AND AFTER meaning 43 FRUIT larceny of 693 FRUITS OF CRIME evidence of possession of 388 FUGITIVE FROM JUSTICE meaning 422 FUNERAL removal of disturber 506 GAME LAWS constitutionality 60 GAMING fraudulent, larceny by means of 700 GAMING HOUSE a disorderly house 611 Index 527 GAOL SECTION ordinarily the proper place of imprisonment 113 GAOLER must certify commitments to court 108 immunity and liability 113 homicide by in preventing escape 669 GAS larceny of 692 GENERAL ISSUE (See Plea, Pleas) GENERAL TERMS limitation of meaning 46 GIFT ENTERPRISES suppression of 60 GOOD BEHAVIOR surety of 376, 377 GOOD FAITH meaning in law of libel 720 GRADE (See Crime) GRAIN larceny of 693 GRAND JUROR examination as witness ; 308 misconduct of 599, 726 GRAND JURY general doctrines 131, 138 institution of not included in guaranty of due process 56 when finding by necessary 86 spying out proceedings of 740, 747 GRAND LARCENY meaning 691 GRAVE larceny from 692 violation of 741 GRIEVOUS BODILY HARM meaning 731 GUILTY (^ee Duress ; Plea, Pleas) GUNPOWDER keeping in populous place 743 HABEAS CORPUS general doctrines 441-445 no discharge for defective process 99 review of commitments 114^-115 in cases of foreign extradition 412 in cases of interstate extradition 431 in contempt cases 595 certiorari as ancillary to 435 HABITATION (See Dwelling) 528 Index HAND SECTION holding up at arraignment 170 HANDCUFFS use of ; 103 HANDWRITING evidence as to 395 HANGING IN EFFIGY (See Effigy) HARBORING of another's wife or child 451 HARES larceny of 695 HARLOT is subject of rape 777 HARM (See Bodily Harm, Hurt) HAWKS larceny of 695 HEALTH (See Public Health) HEARING (See Preliminary Examination, Hea/ring) HEAT OF PASSION homicide in ; 675 HIDES larceny of 695 HIGH SEAS jurisdiction 75 assault committed upon 511 larceny 717 bodily hurt 730 piratical offenses 768 rape 780 receiving or concealing stolen goods 793 HIGH TREASON as a grade of crime 4 HIGHWAY legislative power of regulation 60 obstructions and nuisances 541, 735 unlawful detention in 634 HIRING OUT of convict 58 HOLDING UP (See Hand) HOLIDAY (See Dies Non) HOMICIDE 656-682 j urisdiction 75 by abortion 463 in dueling 614 HOSTILE WITNESS mode of examination 381, 384 HOSTILITY as ground of challenge 289 Index 529 HOUR SECTION of passage of statute 43 allegation of 149 HOURS OF LABOR legislative power of regulation 60, 64 HOUSE {See Bawdi/ House ; Disorderly House ; Dwelling; Public House) meaning 548, 611 HUE AND CRY arrest upon 97 HUNGER, HUNGRY admissibility of complaint 286 HURT (See Bodily Harm, Hurt) HUSBAND competency as witness for wife 301 surety of peace against wife 381 setting fire to wife's house 491 liability for bawdy house kept by wife 536 larceny by taking by or from wife 706 receiving stolen goods from wife 789 may be accomplice in rape upon wife 777 HYPOTHETICAL QUESTION general doctrine 293 as to sanity 394 ICE larceny of 693 IDEM SONANS doctrine as to names 144, 267 IDENTITY proof of 259, 280 IGNORANCE of law 23 of fact 24 defense of in cases of abduction 459 in cases of illicit cohabitation 475 in cases of bigamy 533 ILLEGALITY in arrest and procedure generally, no defense 99, 186 ILLEGITIMATE iSee Bastard ; Bastardy) IMMEDIATELY use of in indictment 148 IMMORAL SHOW place of a disorderly house 611 IMPEACHING WITNESS doctrine as to 323 IMPORTS imposts or duties on ... 65 IMPOSTS on imports or exports , 65 34 530 Index IMPRISONMENT (See False Imprisonment) section excessive prohibited 73 place of 112 sentence of 345 ior non-payment of fine 346 for costs 349 in bastardy cases 532 for contempt 594, 595 INCEST 683-685 INCITING, INCITEMENT to crime 515 to perjury 761 INCOMPETENCY of witness, objection for 300 INCONSISTENT STATEMENT (See Prior Statement) INCORPORATION proof of 280, 716 INDECENCY when punishable 741 INDECENT EXPOSURE a misdemeanor 741 INDECENT LANGUAGE public use of 541 INDECENT SHOW place of a disorderly house 611 INDICTMENT 136- 1 68 prosecution by 138 reading at arraignment 170 proper objection to must be sustained 175 right to copy 198 arrest of judgment for defects in 336 in extradition cases 425 INDUCEMENT averment of matter of 140 in indictments for libel 723 INFAMOUS CRIME what constitutes 10 mode of prosecution 86 challenge for 333 disqualification of witness 307 INFANT, INFANCY criminal liability 13 constitutionality of statutes 64 ground of challenge 222 liability for rape 777 INFECTION constitutionality of statutes 61 doing act tending to spread 743 Index 531 INFIRMITY SBCTiON as objection to juror 232 INFLUENCING VERDICT a misdemeanor 630 INFORMANT, INFORMER officer not compelled to disclose 314 when share of penalty not released by pardon 366 INFORMATION prosecution by 86, 129 INJUNCTION when remedy lies 448 violation as a contempt 584 INJURY (See Wilful Injury) INNKEEPER misdemeanors by 611 INNOCENCE presumption of 258 INNOCENT AGENT procuring crime through 31 INNUENDO in indictments for libel 722, 725 for perjury 763 IN NULLO EST ERRATUM plea of 355, 359 INQUISITION OF HOMICIDE 391-405 INSANE, INSANITY criminal liability 20 must be formal proceeding to authorize confinement 56 constitutionality of statutes , 60 arrest and restraint 98, 506 occurring after accusation i 308 disqualification as juror 222 proof of 277 expert testimony 294 supplying testimony of witness who has become 398 examination as witness 303 surety of peace by or for 379, 381 INSCRIPTIONS proof of 380 INSINUATION libel by way of 718 INSOLVENCY does not relieve from fine 346 INSPECTION of defendant's books or person not allowed 69 of chattels and things 205, 806 INSPECTION LAWS constitutionality 60 532 Index INSTANTLY section use of in indictment 148 INSTITUTED when prosecution said to be 87 INSTRUCTIONS tojury 246-249 do not cure overruling of proper objection in pleading 175 INSTRUMENT (See Writing) of crime need not be alleged 140, 513 adapted to counterfeiting, possession of 606 INSURANCE TABLES admissibility in evidence 296 INSURRECTION statutory provision 815 INTENT general doctrine 18 allegation of 157 alleging more than one 144 proof 376 in law of arson 492 of assault and battery 503 of bigamy 533 of burglary 553, 557 of false pretenses 633 of forgery 651 of homicide 678 of larceny 709 of mayhem 731 of perjury 759 of receiving 791 INTEREST disqualifies as juror 226 as affecting competency of witness 301 as affecting credibility 332 INTERFERENCE with subject of litigation 591 INTERPRETER general doctrine 307 at arraignment 172 for dumb person 306 INTERSTATE COMMERCE regulations of 59, 65 INTERSTATE EXTRADITION 417-433 INTIMIDATION of officer, juror, witness 749, 750 INTOXICATING LIQUOR (See Liquor) INVOLUNTARY SERVITUDE constitutional prohibition 58 Index 533 IRONY SBCTioK libel by way of 718 IRREGULARITY in arrest and procedure generally not a defense 99, 114, 186 not ground for arresting judgtaent 335 ISSUE making up and entry 173, 190 JAILER (See GaoUr) JEOPARDY constitutional provision 71 pleading and proof 183, 280 punishments for contempt 599 effect of verdict in case of tlieft 807 JOINDER of offenses in one count 144 of counts 163 of defendants 163, 766 of issue 173, 190 in demurrer 178 in error 355, 359 JOINT DEFENDANTS arraignment and plea 172 severance in trials 203 verdict 332 judgment 353 JUDGE presence at trial '. 197 examination as witness 310 JUDGMENT 341-353 upon demurrer , 178 upon plea in abatement 180 upon plea of pardon 184 upon writ of error or appeal 364 presence of accused at rendition 195 arrest of 334^338 revoking or annuling for error of fact 363 JUDICIAL PROCEEDING, PROCEEDINGS publication of 720 meaning in law of perjury 755 JUNIOR not part of name 147 JURISDICTION general doctrines 74-79 plea to 179 as to false pretenses 685 kidnapping 688 larceny 713 534 Index JURISDICTION (continusd) section libel 721 perjury 753 piracy 767 JURY, JURORS (See Gfrand Jury; Petit Jury) general doctrines 212-238 right to trial by 68 list of 200 on issue of insanity 208 in case of pregnancy 351 upon inquisition of homicide 397-401 argument before 244-245 instructions and directions to 246-249 what documents may go to 250 discharge .' 251 experiments by 254 polling 328 examination as witnesses 309 embracery and influencing 620 contempts by 586 misconduct or disqualification entitling to new trial 840 JUSTICE OF THE PEACE office of 80 examination of accused by 105-108 crime committed in presence of 91, 98 inquisition of homicide by 391 jurisdiction as to contempts 581 disobeying orders of 747 examination as witness 310 punishable for misconduct 736 JUSTIFICATION of defamatory matter 730 JUVENILE INSTITUTION commitment to 64 KEEPING OPEN meaning 808 KIDNAPPING 686-689 of accused no defense 99 homicide to prevent 671 KINDRED as gi'ound of challenge 237 KING'S BENCH jurisdiction of 76 KNOWLEDGE (See Carnal Knowledge ; Ignorance; Scienter) allegation of 158 in receiving stolen goods 790, 795 Index 535 LABOR {See Sours Of Labor ; Wages) section LANB not subject of larceny 693 LANGrUAGB (See Indecent Language ; Foreign iMnguage) LARCENY 690-717 as an element of robbery 802 LASCIVIOUS, LASCIVI0U8NESS meaning 475 when punishable 741 LAW OF THE LAND meaning 56 LEADING QUESTIONS doctrine as to 321 LEASING HOUSE (See Letting House) LEGAL ADVISER (See Attorney) LEGAL EFFECT, LEGAL OPERATION averment according to 140 proof according to 265 LEGISLATIVE, LEGISLATURE power as to contempts 581 publication of proceedings 730 LETTER may constitute name 147 sending threatening 614, 615 theft of 694, 696 LETTER CARRIER assault upon 511 LETTING HOUSE for bawdry 526 LEVARI FACIAS to enforce fine 346 LEVYING WAR (See War) LEWD, LEWDNESS meaning 475 when punishable 741 LIABILITY (See Criminal lAaUlity) LIBEL 718-734 as a contempt 593 LIBERATE warrant of 117 LIBERTY (See Personal Liberty) LICENSE, LICENSE LAWS constitutionality of legislation 65 violations in case of clubs 17 burden of proof 366 LIGHTER PUNISHMENT than provided, imposing not error 343 LIMITATIONS statute of 87 536 Index LIMITING TIME (See Time Limit) section LIST OF JURORS {See Jury, Jm-ors) LIST OF WITNESSES (See Witnesses) LIQUOR, LIQUOR LAWS violations in case of clubs 17 evasions 50 constitutionality 63 selling or furnishing to minor 64 police power of states 65 LOAN larceny under pretense of .* 700 LOCAL OPTION LAWS constitutionality 63 LOCOMOTIVE ENGINEERING legislative power of regulation 62 LORD'S DAT {See Dies mn ; SabbatTi- Breaking) LOST PAPER, WRITING mode of allegation 151 how supplied 168 LUCRI CAUSA doctrine in law of larceny 709 MAGISTRATE (See Justice Of The Peace ; Subordinate Magistrates) MAIM (See Mayhem) MAINTENANCE 562 MALFEASANCE IN OFFICE 725-737 MALICE, MALICIOUSLY meaning 45 in law of arson 492 in law of homicide • 673 in law of libel 718,722,725 in law of mayhem 731 no legal presumption 681 mal'icious injury to person 502 MANDAMUS when remedy lies 446 mansion house in law of burglary 548 MANSLAUGHTER general doctrines 673-675 form of verdict 682 MANUFACTURES oifensive, a nuisance 736 MAP production in evidence 255 MARRIAGE confidential communications during 313 proof of 478, 537 Index 537 MARRIAGE [continued) section incestuous 683 as a defense to alleged adultery 475 MARRIED "WOMAN (See Feme Covert; Wife) MARSHAL of United States 83, 134 MASTER, MATE, OF VESSEL assault upon 511 MATERIAL, MATERIALITY in law of perjury 756 MATRONS jury of 351 MAYHEM 728-733 MEANS need not be alleged ordinarily 140, 513 allegation and proof in indictment for homicide 678, 681 alleging several in one count 144 MEDICAL BOOKS not admissible in evidence 296 MEDICAL EXPERT evidence of 292-29+, 470 MEDICINE legislative power to regulate practice 62 MEETING (See Public Meeting) disturbance of 739 MEMBER meaning in law as to bodily hurt 731 MEMORANDUM use and production by witness 325 MEMORY (See Refreshing Memory) MENTAL FEELING declarations of 286 MENTAL UNSOUNDNESS (See Insane, Insanity) MERCANTILE INTERESTS constitutionality of legislation 60 MERGER general doctrine 9 in law of conspiracy 576 MILITARY OFFICER homicide by 666 MILK larceny of 695 MINERALS larceny of 693 MINISTER (See Public Minister) MINISTERIAL OFFICERS 83-85 MINOR (See Infant, Infancy) MINOR OFFENSE conviction upon proof of ■ 364 538 Index minute • section of passage of statute 43 MISCEGENATION constitutionality of legislation 57 MISCONDUCT IN OFFICE 725-727 MISDEMEANOR meaning 8 how prosecuted when part of felony 9 accomplices in 30 MISNOMER plea in abatement for 180 MISPRISION of treason and felony 29, 89, 814 MISSPELLING (See Spelling) MISTAKE (See Ignorance) no defense to charge of abduction 459 effect in cases of extortion 622 larceny of things delivered by 703 MODEL production in evidence 355 MODIFICATION of sentence 342 MONEY (See Pruon&r) description of 155, 618 proof of description 273 MONTH meaning in statute 45 MONUMENT of dead, defacing 741 MOTION to strike out judgment 363 MOTIVE general doctrine 19 relevancy in evidence 388 MULATTO enslaving 768 MUNICIPALITY delegation of powers to 59 MURDER general doctrines 673-675 divisions 676 form of verdict 683 on high seas 768 MUTE (See Standing Mute) NAME allegation in warrant' 93 in commitment 110 in indictment 147 proof 267 Index 539 NATIONALITY (See Ship) section NATURE AND CAUSE OF ACCUSATION right to be informed of 141 NAVIGABLE WATERS offenses committed on 75 NAVIGATION obstruction of 735 NAVY visiting foreign, exemption from laws 74 apprehension of deserters 79 dueling in 614 NECESSARIES homicide through failure to provide 665 NECESSITY general doctrine 22 as justifying force and restraint 506 works of '.. 808 NEGATIVE AVERMENTS proof of 266 NEGATIVE EVIDENCE of character 290 NEGATIVING PROVISOS AND EXCEPTONS doctrine as to 111,143 NEGLECT homicide through 665, 673, 674 NEGRO enslaving 763 NEW TRIAL 33 W-340 NIGHT, NIGHT-TIME arrest at 94 in law of burglary ., 551 NIGHT-WALKERS arrest of 95 NOISES when making punishable 737, 738 NOLLE PROSEQUI doctrine as to 209 NOLO CONTENDERE plea of 189 NON-REPAIR punishable as a nuisance 735 NOTE (See Promissory Note) NOT GUILTY plea of 185 court may direct entry 173 NOXIOUS meaning in law of abortion 465 540 Index SECTION NUISANCE 733-71G constitutionality of legislation 56, 61 ■when not reached by pardon 366 NUL TIEL RECORD replication of 183 NUMBER allegation of 154 proof of allegation 375 of jurors 212 of witnesses required 315 of witnesses to be called, limiting 242 OATH to complaint or charge 91 of jurors 237 of jurors upon issue of insanity 208 of grand jurors 132 of witness 317 on inquiry as to competency 300 of interpreter 172, 207 of officer in charge of jury 238 upon inquisition of homicide 400 admission or confession under 284 in law of perjury 754 OBJECTION to witness, when to be made 300 OBSCENE PUBLICATIONS, WRITINGS right to suppress 60 , punishable as libel 719 mode of averment 151 OBSTRUCT, OBSTRUCTION meaning 748 of highway or river 541, 735 of inquisition of homicide 394 OBSTRUCTING JUSTICE AND GOVERNMENT 747-751 may be punished as contempt 590 OCCUPATIONS legislative power of regulation 63 OFFAL constitutionality of legislation 61 OFFER to give or receive bribe 545 OFFICE malfeasance and misconduct in 735-727 disqualification to hold as a penalty 614 Index 541 OFFICER (See Military Officer; Public Officer) section judicial 80-81 ministerial 83-85 arrests by 95 entering public house 98 breaking doors 101 treatment of prisoner 108 things found upon prisoner 104 of grand jury 133 in charge of petit jury 338 appointment, how proved 380 report of, when not admissible in evidence 385 disclosure of informant 814 may be bound to peace 381 bribery of 545 false personation of 564 contempt by 587 extortion by 633 homicides by 667-670 homicide of, in resisting ' .671, 674 malfeasance and misconduct 735-737 suffering escape 778 OFFICIAL PERSON libel of 719 OF OUR LORD averment unnecessary 149 OLD AGE not ground of challenge 333 " OMISSION homicide through 665, 678, 674 OPEN (See Keeping Open) -OPENING AND CLOSING rules as to 344 OPENING STATEMENT rules as to 341 OPERATION (See Legal Effect, Legal Operation) OPINION as evidence '. 293-395 as ground of challenge 881 false pretense involving matter of 638 false oath as to matter of 757 OPPORTUNITY for commission of crime, evidence of 388 OR use in pleading 145 ORDER of defenses 176 of challenges 317 of trial 340 542 Index ORIGINAL PACKAGES section taxation of goods in 65 ORPHANS' HOME prohibiting sale of liquor near 63 OTHER ACTS, OTHER CRIMES than charged, evidence of 291, 795 OUTWARD FORM charging ofEense according to 140 OVERHEAD WIRES constitutionality of prohibition 60 OVERT ACT in law of treason 819, 820 OWING ALLEGIANCE meaning 819 OWNERSHIP allegation 156 proof 274 in law of arson : 491 in law of burglary 554, 557 of stolen goods 697 OYSTERS larceny of 695 PACKAGE (See Original Packages) PAINS AND PENALTIES bills of 67 PANEL right to copy of 200 PARADES right to prohibit 60 PARDON 365-369 plea of 184 does not discharge recognizance of peace 390 PARENT chastisement of child 509, 674 PAPER, PAPERS seizure of 69 larceny of 694 PARTIAL VERDICT doctrine as to 331 PARTICEPS CRIMINIS {S,Be Accomplices) PARTICIPATION IN CRIME 36-43 in burglary 553 in counterfeiting 605 in keeping disorderly house 611 in dueling 614 in libel 718 PARTICULAR EXPRESSIONS in statute, interpretation of 45 Index 543 PARTICULARITY section in indictment 140, 142 PARTICULARS (See Bill Of Particulars) PARTIES competency as witnesses 301 PART OWNERSHIP doctrine as to stolen goods 697 PARTRIDGES larceny of 695 PASS meaning in law of counterfeiting 605 PASSION (i^fte. Heat Of Passion) PATERNITY proof of 533 PEACE (See Surety Of The Peace) PEACE OFFICERS oflSce and authority 83-86 PEONAGE keeping in 687,768 PEREMPTORY CHALLENGE doctrine as to 319 PERFORMANCE (See Contract) indecent or immoral 611 PERJURY 753-760 PERSON (See Indecent Exposure) includes corporation 16 PERSONAL EXAMINATION party can not be suTDJected to 69 PERSONAL LIBERTY guaranty and limitatians of 58, fiO PERSONAL PROPERTY description 154 proof of same 273 PERSONATION of officer 564 PENAL ACTION (See Abatement; Action) procedure against several offenders 852 how judgment enforced 346 PENAL STATUTES construction of 44 PENALTY, PENALTIES kinds of 344^-348 compounding 41 effect of statutory change 48 v/hen ex post faoto ,. 66 imposition of severer upon subsequent conviction 71 ascertainment in verdict 333 when not released by pardon 366 544 Index PENDENCY OF CHARGES (See Several Charges) section PENETRATION in law of rape 778 PETIT JURY 313-338 PETIT LARCENY meaning 691 no accomplices in 28 PETIT TREASON meaning 4 PHARMACY legislative power to regulate practice 63 PHEASANTS larceny of 695 PHOTOGRAPH production in evidence 255 PHOTOGRAPHY forgery by means of 647 PHYSICIAN (See Medical Expert) PICTURE production in evidence 255 PIGEONS larceny of 695 PILLORY prohibited under Federal law 344 PIRACY 767-76» PLACE (See Public Place) jurisdiction as to 75 of inquisition of homicide 393 of imprisonment 112 of accused at trial 19fi allegation of generally 148, 150 same in indictment for homicide 678 in indictment for nuisance 743 proof of 269 PLACE OF TRIAL change of after crime committed 66 PLAN production in evidence 255 PLEA, PLEAS entry of 178 classification 175 not guilty. . . 87, 185 guilty 173, 187, 362 special in bar 182-184 to jurisdiction 179 in abatement 180 to challenge to array 218 upon writ of error 355, 359 PLEADING 175-193 Index 545 PLEADING OVER section general rule .' 190 after demurrer or plea overruled 178, 179, 180, 188, 184 PLUMBING legislative power of regulation 63 POISON . constitutionality of legislation as to 61 homicide by 664,676 description in indictment 678 POISONOUS meaning in law of abortion 465 POLICEMAN office of 85 POLICE POWER nature and scope 59-65 POLLING of jury 338 POLLS challenge to 317-331 POLYGAMY (See Bigamy) POOR CONVICTS release from imprisonment for fine 346 POSSESSION of certain things may be punished 60 allegation of 156 proof of 374 admissibility in evidence of explanations of 386 of fruits of crime 388 meaning in law of abduction 455 of counterfeits and counterfeiting instruments 606, 607 of forged instrument 650 of stolen goods 716 POST MORTEM EXAMINATION coroner may procure 79 PRAYERS for instructions to jury 348 PREGNANCY (See Death Penalty) PREJUDGMENT as ground of challenge 238 PREJUDICE as ground of challenge 339 PRELIMINARY EXAMINATION, HEARING of accused 105-108 PREMEDITATED meaning in law of homicide 676 in law of mayhem 781 35 S46 Index PREMISES SECTION description in indictment 154 in law of burglary 548 PREPARATION for crime, relevancy in evidence 288 PRESENCE at commission of crime 26 of accused at trial 195, 217 of judge at trial 197 PRESENCE OF THE COURT meaning in law of contempt 583 PRESENTMENT nature and form; 127 PRESCRIPTION no defense t© nuisance 733, 741 PRESIDENT approval of laws 48 power to reprieve, pardon etc 365 power as to surrender of fugitives 415 PRESUMPTION, PRESUMPTIONS of law, need not be alleged 140 of innocence 258 of guilt or any particular element of guilt do not exist 258, 681 PRETENSE (See False Pretenses) PREVIOUS CONVICTION allegation of 160 PRICES legislative power of regulation 311 PRIEST (See Clergyman) PRINCIPAL in first degree 31 in second degree 32-33 distinct from accessory 37 modes of charging 164 in counterfeiting 605 in libel 718 PRINCIPAL CHALLENGE to polls, nature of 221 PRIOR STATEMENT of witness, evidence of 322, 333 PRISON what constitutes 770 PRISON BREACH 770-775 PRISONER (See Escape) disposal and treatment of 103, 118 money and effects found upon 104 removal for trial 444 PRIVATE COMMUNICATION (See Confidential Communication) Index 547 PRIVILEGED COMMUNICATION section in law of libel 720 PROBABLE CAUSE for issue of warrant 91 PROCEEDINGS publication of legislative and judicial 720 PROCEEDINGS IN COURT 136-135 PROCEDENDO doctrine as to 364 PROCEDURE legislative power to change 66 PROCESS (See Color Of Process; Due Process Of Law; Witnesses) upon presentment or indictment 130 where accused improperly absent 195 no release for defects in 99 abuse of 589 obstruction of 590, 748-749 PROCUREMENT, PROCURING of crime 37, 81, 34 of counterfeit 601 of false instrument '. 650 of perjury 761 PROFANITY 53S-544 PROFESSIONAL COMMUNICATIONS (See Attorney; Confidential Communication) PROHIBITION writ of, when lies 447 PROMISE false pretense involving 638 PROMISSORY NOTE theft of 694,696 PROOF (See Burden Of Proof; Extrinsic Proof) instruments and means of 253 PROPERTY description 154 proof of description 273 defense of 508, 672 PROPTER AFFECTUM, DEFECTUM, DELICTUM classifications of challenges 332-231 PROSECUTION modes of 86 time for 87 how instituted 136 PROSECUTING ATTORNEY appointment and office of 134-135 PROSECUTOR meaning 105 private («'. «., instigator) may be compelled to pay costs 349 548 Index PROSTITUTION section meaning in law of abduction ' 457 PROVISIONS selling or offering unwholesome 564 PROVISOS (See Negatimng) PROVOCATION in law of homicide 675 PROVOKING CHALLENGE misdemeanor of 614, 615 (2) PUBLIC meaning in law of nuisance 733 PUBLIC CONVEYANCE legislative regulation of means of 60 PUBLIC HEALTH legislative power of regulation 61 nuisances to 743 PUBLIC HIGHWAY (See Highway) PUBLIC HOUSE entry and arrest in case of disturbance 98 PUBLIC MEETING {^Qet Meeting) legislative provisions as to 60 PUBLIC MINISTER immunity of 74 violence to 511 PUBLIC OFFICER (See Officer) meaning of term 725 PUBLIC PLACE meaning in law of affray 433 PUBLIC SAFETY legislative power of providing for 60 nuisances to 743 PUBLIC SCHOOLS separation of races in 57 PUBLIC SQUARE obstruction of 735 PUBLIC TRIAL right to 194 PUBLIC WELFARE legislative power of providing for 60 PUBLICATION, PUBLICATIONS (See Obscene Publications, Writings) when a contempt 593 meaning in law of libel 718 as an obstruction of justice 747 proof of 734 PUBLISH meaning in law of libel 718 PUNISHMENT (See Lighter Punishment) general doctrines 843-348 Index 549 PUNISHMENT (continued) section cruel and unusual 72 of accessory 38 effect of statutory change / 48 ■when ex post facto 66 Increased for subsequent offense 71 PURGING CONTEMPT doctrine as to 594 PURPORT allegation by 151 PURPOSES OF PROSTITUTION meaning in law of abduction 457 PURSE TRICK theft by means of 700 PURSUIT (See Fresh Pursuit; Quick Pursuit) PUTTING OFF meaning in law of counterfeiting 605 QUANTITY allegation 154 proof 275 QUARANTINE legislative power of regulation 61 QUASHING of information 129 of indictment 177 QUICK PURSUIT arrest on 95 QUI TAM ACTION nature of 86 RACES separation of 57 RAILROAD, RAILWAY legislative power of regulation 60 RAPE 770-786 act may be punished as adultery or fornication 474 REAL EVIDENCE doctrine as to 253 REAL PROPERTY, REALTY description 154 proof of description 273 regaining possession 508 in law of larceny 693, 696 REASONABLE DOUBT general doctrine 256 in cases of homicide 681 REBELLION against government 815 550 Index REBUTTAL , bbction evidence in 299 RECAPTURE (See Mseape) RECEIPT theft of 694, 696 RECEIVER interfering with 591 RECEIVING 787-795 nature of offense 43 RECENT POSSESSION of stolen goods 716 RECOGNIZANCE of accused for appearance 117-134 of witnesses , 135 to keep the peace 366, 387-390 RECONSIDERATION of verdict 334 RECORD, RECORDS proof 280 correction 334 supplied, if lost 168 diminution of '. 436, 440 forgery of ., 647 stealing, secreting, destroying 747 RECRUITING against government 818 RE-EXAMINATION doctrine as to 320 REFORMATORY commitment to 64 REFRESHING MEMORY of witness 335 REFUSE constitutionality of legislation as to 61 REGISTER official, admissibility in evidence 280 RELATIONSHIP as ground of challenge: 337 RELEVANCY of evidence 388 RELIGIOUS BELIEF of witness 306 RELIGIOUS MEETING constitutionality of legislation 60 disturbance of 739 RELIGIOUS MOTIVE no defense to charge of crime I9 REMEDY effect of statutes prescribing 47-48 Index 551 EEMOTENESS sbctiok of evidence 288 EBMOVAL (See Cliange of Venue; Federal Courts) of accused from court room 195 of indictment by certiorari 435, 439 in law of larceny 698 REPAIR neglect of 735 REPEAL statutory, effect and operation ... .51-53 REPETITION OF OFFENSES (See Punishment) REPLEVIN larceny by means of 698 REPLICATION to various pleas 179, 180, 183 REPORT official, admissibility in evidence 385 REPRESENTATIONS of objects, production in evidence 355 REPRIEVE power of court to grant 343 in case of pregnancy 351 power of President 365 of executives 366 REPUGNANCY in pleading 146 REPUTATION (See Character) name may be acquired by 147 proving corporate existence by 380 of house as disorderly irrelevant 613 RESCUE 770-775 of surrendered fugitive 418, 774 RES GESTAE general doctrine 386 declarations of third persons 385 RESIDENCE as qualification of juror 233 proof of 280 RESISTANCE to arrest... 100 to oflicer 748 homicide in course of 667, 671, 674 RESPONDEAT OUSTER (See Pleading Over) RESPONDEAT SUPERIOR doctrine does not apply in criminal law 736 RESTITUTION, RESTORATION order of court as to 350 of condemned property upon pardon 368 does not purge guilt of larceny 698 552 Index RESTRAINING, RESTRAINT section of accused 196 of person, when justified 506 RETAKING of chattel • 508, 64* of property after adverse adjudication 591 RETROSPECTIVE LAWS constitutional provision 66 RETURN to warrant 94 of presentment or indictment 138 to writ of error 355, 357 to certiorari 437, 438, 440 REVENUE LAWS violation in case of clubs 17 construction 44 REVERSAL of judgment, rule as to 364 REVIEW of commitments 114-115 upon writ of error 354 REVIVOR of repealed laws 53 RIGHT (See Claim Of Right) RINGING THE CHANGES larceny by means of 700 RIOT 796-SOO homicide in suppressing 670 RIVER between neighboring states 75 obstruction of 735 ROBBERY , 801-807 on high seas 767, 768 ROOF throwing down 643 ROUT 70(>-800 RULE ARGUMENT upon writ of error 355 SABBATH BREAKING 808-S09 constitutionality of statutes 60 SAFETY (See Public Safety) SALES of goods, legislative power of regulation 60 SALOON (See Public House) constitutionality of legislation 63 legislation prohibiting admission of minor 64 SASH (See Window Sash) SCANDALOUS CONDUCT whe punishable 741 Index 553 SCHOOLS (See Public SchooU) section SCHOOLMASTER inflicting corporal punishment 509 SCIENTIFIC BOOKS (See BooU) SCIENTER averment 158,608 proof 610,795 SCIRE FACIAS to enforce recognizance 389 SCOLD (See Common Scold) SCRUPLE as ground of challenge 330 SEAL to warrant 98 to commitment 110 forgery of 647 SEALED VERDICT doctrine as to 329 SEAMAN apprehension of deserting 79 assault by or upon, cruelty to 511 SEARCH of prisoner - 108 SEARCH WARRANTS 370-375 SECONDARY EVIDENCE general doctrine 379 of writings 380 SECRBSY of proceedings of grand jury ' 133 SECRET SOCIETY membership as ground of challenge 327 SEDUCTION doctrine as to 450 SELECTION OF JURORS (See Challenge; Striking Jurors ; Talesmen) general doctrine ■ 213 SELF-CRIMINATION constitutional provision 69 SELF-DEFENSE right of 507,671 evidence relating to 681 SELF-MURDER doctrine as to 677 SENIOR no part of name 147 SENTENCE 311-353 suspension by executive 366 SEPARATION of jury 338 554 • Index sepulchre section defacing 741 SEPULTURE offenses connected Tvith 741 SEQUESTRATION of witnesses 343 of property of corporation 593 SERFDOM prohibited 58 SERVANT larceny by 704 giving character of 730 SETTING ASIDE JUROR doctrine as to 313 SEVERAL ACTS joinder in one count 144 SEVERAL ARTICLES larceny at one time 711 SEVERAL CHARGES pendency of 181 sentence upon 353 SEVERAL DEFENDANTS joint charge 144 verdict 332 judgment 353 SEVERAL OFFENSES joinder in one count . .' 144 SEVERAL PERSONS charging injury to 144 SEVERANCE in trial of joint defendants 303 SHERIFF powers and functions 83 charge of accused during trial 196 commitment to custody of 347 SHIP, SHIPS , offenses on foreign 74 jurisdiction as to offenses on 75 assaults committed on 511 infliction of bodily hurt upon person on 730 piratical offenses upon 768 proof of nationality 380 SHOW (See Immoral Shaw ; Indecent Show) SHROUD larceny of 693 SIMILAR TRANSACTIONS evidence of, when relevant 289 SIMPLE LARCENY meaning 691 Index 565 SIZE SECTION relative, of parties, in cases of homicide 681 SKETCH production in evidence 255 SLAVE TRADE engaging in 768 SLAVERY constitutional prohibition 58 statutory 687, 768 SLEEP confession during 381 SLOT MACHINE (See Automatic Box) SKATCHING in law of robbery 804 SOCIAL CLUB violations of law by 17 SOCIETY membership as ground of challenge 227 SODOMY 810-Sl 1 SOLDIER homicide by ^ 666 SOLICITATION * general doctrines 11, 515 to commit adultery 473 to give or receive bribe 545 to commit perjury 761 to commit sodomy 810 SOLICITOR-GENERAL of United States 134 SOLITARY CONFINEMENT when imposition ex post facto 66 SOVEREIGNS visiting, immunity of ' 74 SPECIAL LEGISLATION when authorized 57 SPECIAL PLEAS rules as to 182-184 SPECIAL PROSECUTING ATTORNEY appointment of 135 SPECIAL VERDICT doctrine as to 330 SPECIES when indictment must aver 140 SPECIFIC PERFORMANCE (See Contract) SPECIFIC TERMS limiting meaning of general terms 46 SPEEDY TRIAL rightto 193 556 Index SPORTS SECTION homicide ensuing in 664 barbarous punishable 738 SPRING GUN homicide by means of 663, 672 SQUARE (See Public Square) STANDING MUTE at arraignment 173 STANDING UP compelling of accused 69 STATES jurisdiction over offenses 75, 76, 79 STATUTES AND STATUTORr CONSTRUCTION 43-53 indictments upon 142-143 STEPS (See Crime) STET entry of 318 STREET, STREETS legislative povper of regulation 60 obstruction 735 collecting crowds 737 reckless driving 738 STRENGTH relative, of parties, in cases of homicide 681 STRIKES of workmen 575 "STRIKING" JURORS practice as to 235 STRIPES constitutionality of statutes authorizing 72 prohibited under Federal law 344 SUBORDINATE MAGISTRATES 80-81 SUBORNATION of perjury * 76I SUBSEQUENT OFFENSE (See Punishment) SUBSTANCE allegation according to. 151 SUBSTANCE OF ISSUE proof of 263 SUICIDE (See Self- Murder) SUING, SUIT (See Bringing Suit) SUMMARY PROCEEDINGS constitutionality of legislation 56 prosecution by gg SUMMING UP (See Argument) SUMMONS process of 130 Index 557 SUNDAY (See Dies Non; Sabbath-Breaking) bectioit arrest on 94 inquisition of homicide on 396 SUPERSEDEAS of proceeding for surety of peace 386 SUPREME COURT jurisdiction 77 SURETY in bail 116-135 disqualification as juror 326 SURETY OF THE PEACE 376-390 SURGERY legislative power to regulate practice 63 SURPLUSAGE in indictment 146, 149, 161 need not be proven 262 in verdict 326, 334 SURRENDER of principal by surety 130 SUSPENSION of sentence 342, 366 SUSTAINING WITNESS doctrine as ta 323 SWEARING (See Oath) TABLES (See Insurance Tables) TAKING in law of larceny 698 in law of robbery 803 TALESMEN summoning of 214 TAXES right of states to impose 65 TECHNICAL WORDS in statutes 45 in indictment 159 TEMPORARY TAKING not larceny 709 TENOR allegation by 151 TERROR in law of affray 4S3 TESTE of process 130 THALWEG the jurisdictional line between states 75 THEN AND THERE use in averring time and place ] 48 558 Index threats section as entitling to surety of peace 382 evidence of in cases of homicide 681 THREATENING MESSAGE ofiense of sending 614 TIME (See Limitations) of taking effect of statute 43 computation of 45 allegation of 148, 149 same in indictment for homicide 678 of trial 193 proof of 268 in law of burglary 551 TIME LIMIT of argument 244 TIPSTAFF office of 85 TITLES speculating in 562 TOKEN (See False Token) TOMB defacing 741 TONNAGE duty on 65 TOOLS for counterfeiting, possession of ■ 606 TORTURE prohibited 72 TRADE, TRADES legislative power of regulation 62 offensive, a nuisance 736 TRADEMARK forgery of .r 647 TRAP homicide by means of 663 TREASON 8ia-890 as a grade of crime 4 accomplices in ; 39 TREASURE-TROVE theft and concealment 707 TREES larceny of 693 TRESPASS (See Forcible Trespass) meaning in old books 8 in law of larceny , 699 TRESPASS AB INITIO doctrine does not apply in criminal law 12 Index 559 TRIAL SECTION matters relating to 193-311 by court without jury 239 order of 240 incidents of 241-251 TRICK larceny by means of 700 TRIORS of challenges 233, 383 TRUE BILL endorsement of 138, 137 TRUTH as a defense to alleged libel - . 730 TURNPIKE ROAD obstruction of 735 TURPENTINE larceny of 693 UNCONSTITUTIONAL meaning 54 UNKNOWN averment where thing is 140, 145 where name is 93, 110, 147 proof in such case 367 UNLAWFUL ASSEMBLY 7M6-800 UNLAWFULLY use of averment 159 UNUSUAL PUNISHMENT (See Punishment) USAGE (See Prescription) USE OF THING depriving of not larceny 709 UTTER, UTTERING in law of counterfeiting 601, 605 in law of forgery 650 VAGRANTS effect of guaranty of due process 56 can not be hired out 58 constitutionality of legislation 60 VALUE allegation 154, 713, 805 proof 375, 716 in law of larceny 698 in law of robbery 803 VARIANCE (See Allegations) between presentment and indictment 138 VENUE (See Change Of Venue; Place) 560 Index SECTION VERDICT 3S6-334 presence of accused 195 directing 249 finding of minor offense 364 on issue of insanity , 208 upon inquisition of homicide '. 401 in cases of adultery and fornication ; 479 of conspiracy 580 of homicide 682 of incest 684 of perjury 766 of rape 786 of riot 799 of robbery 807 improper influencing 620 VESSEL (See a hip, Ships) VIEW of premises or place by jury 206 of body upon inquisition of homicide 399 VIEW OF OFFICER offense committed in 95 VIOLENCE in law of robbery 804 VOIRE DIRE examination as to competency as juror 334 as to competency as witness 800 VOLUMINOUS FACTS mode of proof 380 VOTER bribery of 545 WAGES combination to raise 575 WAIVER of preliminary examination 105 WAR homicide during 660 levying 819 WARRANT (See Bench Warrant ; Search Warrant) of arrest 89 96 to find surety of peace 385 of coroner 405 WATER larceny of 693 polluting 743 WATER SUPPLY (See Water) legislative power as to regulations 61 Index 561 WAY (See Highway) sbction WEAPON, WEAPONS (See Jlrmee? ; Carrying Weapons) allegation in indictment for homicide 678 WEIGHT (See False Weight) WELFARE (See Public Welfare) WELL (See Water) WHIPPING (See Stripes) WIPE of accomplice as witness 301 surety of peace against husband 381 setting fire to husband's house 491 taking by or from of husband's goods 706 receiving husband's goods from 788 receiving stolen goods from husband. 789 buying or selling 741 WILFUL, WILFULLY meaning 45 in law of arson 492 in law of homicide 676 in law of mayhem 731 WILFUL INJURY to person of another 603 WITHDRAWING PLEA of guilty ...; 187 WITNESS, WITNESSES 300-335 self -crimination 69 confronting with 70 recognizance of 13S before grand jury 131 list of 199 process for 201 limiting number 342 exclusion from court room 243 upon inquisition of homicide 402 habeas corpus ad testificandum 445 contempts by. 585 preventing attendance 747 intimidating, impeding 749 WINDOW SASH larceny of • 693 WIRES (See Overhead Wires) WOMAN may be accomplice in rape 777 WOOL larceny of 695 WORDS allegation 153, 153 proof 871, 378 86 562 Index WOKKMEN (See Wages) section WORSHIP (See Beligoua Meeting) removal of disturber 506 "WOUND, WOUNDING meaning 731 allegation in indictment for homicide 678 WRITING, WRITINGS (See Contemporaneous Writing) allegation 151, 713 proof 370,280, 716 admission in 383 what may go to jury 350 larceny of 693, 694, 695 meaning in law of libel 718 WRIT OF ERROR 354-364 in Federal courts 77 does not lie after acquittal 71 WRITTEN INSTRUMENT (See Writing, Writings) TEAR averment of 149 TABLE OF CASES. PAflB Aaron v. S., 40 Ala. 307 323 Abbey b. S., 39 Vt. 60 314 Abbott, C. B., 130 Mass. 473 185 Abraham, Reg. •»., 8 Cox C. C. 430 183 Abrams ». Foshee, 3 Iowa, 374 379 U. S. v., 18 Fed. R. 833 348 Acheson v. Everett, Cowp. 383 64 Achison, 8. «., 3 Lea (Tenn.), 739 8 Adams «. Barrett, 5 Ga. 403 3 V. C, 23 Gratt. (Va.) 949 430 C. ■»., 4 Gray, 37 170 0. !)., 13 Mass. 15 380, 381 C. v., 114 Mass 333 396 C. B., 137 Mass. 15 114,166 V. Harrington, 114 Ind. 66 449 R. «., R. & R. 235 431 B. 8., 53 Ala. 379 180 V. 8., 60 Ala. 53 430 V. 8., 63 Ala. 177 390 V. 8., 38 Flor. 511 174, 197 ®. 8., 45 K. J. L. 448 414 8. «., 76 Miss. 355 6 8. 0., 64 N. H. 440 110 Adelphi Club, P. ■»., 149 N. Y. 5 9 Adington, 8. «., 3 Bailey (S. C), 516 34 Adkinson ®. 8., 5 Baxt. (Tenn.) 569 331 Adler, P. v., 140 N. Y. 331 V. Whitbeck, 44 O. 8t. 539 Ah Chew, 8. »., 16 Nev. 50 Ah Fook, P. v., 63 Cal. 493 Ah Lee, S. o., 8 Or. 314 Ah Llm V. Terr., 1 Wash. St. 156 Ah Own, P. «., 39 Cal. 604 Ah Peen, Exp., 51 Cal. 380 Ah Sam, 8. i)., 14 Or. 347 Ah Wah, Terr, v., 4 Mont. 149 Ah Yek, P. v., 39 Cal. 575 Ah Ying, P. v., 43 Cal. 18 Ah Yute, P. v., 56 Cal. 119 Aiken v. P., 10 Tex. App. 610 S. v., 33 Iowa, 403 8. v., 43 8. C. 433 Aikin ®. P., 58 Ark. 544 P. v., 66 Mich. 460 Ainsworth ®. 8., 11 Tex. App. 339 V. U. 8., 1 App. D. C. 518 Albany, P. v., 11 Wend. 539 R. R., P. v., 13 Abb. Pr. 171 : 30 How. Pr. 358 113 36 43 318 136 43 408 45 103 141 483 137 194 387 470 39 134 113 436 96 8 343 PAGB Albee, S. v., 61 N. H. 433 139 Albin V. 8., 63 Ind. 598 174 Albright v. Lapp, 36 Pa. St. 99 61 Alden, P. v., 113 Cal. 364 379 Aldrich «. Blackstone, 138 Mass. 148 495 Alexander, C. o., 1 Va. Cas. 156 443 V. S., 13 Tex. 540 15 ». S., 31 Tex. App. 359 334 8.O., 7Rich. (3. C.)L. 5 489 8. »., 14 Rich. (S. 0.) 347 33 ■0. U. 8., 138 U. S. 353 300 Alger, C. v., 7 Cush. 53 89 Alibez, P. v., 49 Cal. 453 100 Alkenbrack ». P., 1 Den. 80 165, 173 Allegheny v. Watts, 3 Pa. St. 463 347, 349 Allen V. C, 3 Leigh (Va.), 727 318 C. v., 138 Mass. 46 193 V. London Railway, 11 Cox C. C. 631 70 V. Martin, 10 Wend. 300 73 Reg. »., 9 Cox C. C. 130 138 Reg. v., 10 Cox C. C 405 176 Reg. v., 13 Cox C. C. 193 313 V. 8., 73 Ala. 33 183 V. 8., 74 Ga. 769 155 •0. 8., 54 Ind. 461 141 V. 8., 61 Miss. 637 156 S. •»., 47 Conn. 121 30, 33 S-t'-.R. M. Charlt,(Ga.)518 409 8. v., 103 N. C. 433 108 8. »., 2 Humph. (Tenn.) 358 86 8. »., 8 W. Va. 680 115 ». U. S., 150 U. 8. 551 6, 159 V. U. 8., 164 V. 8. 492 393 Allgood V. 8., 87 Ga. 668 171 Allison, Reg. v., 8 C. & P. 418 397 V. U. 8., 160 U. 8. 303 159, 197, 403 Althauser, Reg. »., 17 Cox C. C. 630 315 Ambrose Light,The, 35 Fed. R. 408 473 Amedy, U. 8. v., 11 Wheat. 393 8 American Telegraph Co. v. Hess, 135 N. Y. 641 41 Ames' Case, 3 Me. 365 878 Ames, S. «., 64 Me. 886 468 564 Table Of Oases PAGE Ancarola, U. 8. «., 1 Fed. R. 676 406, 407 Anderson v. C, 5 Rand. (Va.) 627 284 e. S., 43 Conn. 514 216 ®. 8., 3 Head (Tenn.), 455 298 8. v., 47 Iowa, 142 870 8. «., 92 Iowa, 764 468 8. v., 25 Minn. 66 423 Apdrews, P. o., 115 N. Y. 427 9 V. 8., 78 Ala. 483 459 Androscoggin «. Betliel, 64 Me. 441 8 Angel V. S., 42 Kans. 216 277 Angell, V. 8. «., 11 Fed. R. 34 194 Anonymous, 3 Atk. 219 340 Fortes. 240 77 J. Kel. 8 501 LofEt, 451 343 8 Mod. 97 306 6 Mod. 105 829 7 Mod. 10 247 7 Mod. 40 829 Poph. 12 70 Raym. 68 216 12 Rep. 89 31 R. & R. 489 101 1 Salk. 84 343 1 Str. 384 328 Y. B. 22 B. 1, 556 (Horw. ed.) 87 63 Me. 590 211 Appeal Tax Court v. Patterson, 50 Md. 354 34 Applegarth, 8. v., 81 Md. 293 46 Applegate, 8.»., 2 McO. (8. C.) 110 336 Applint:, 8. v., 25 Misso. 315 316 Archer e. Railroad, 106 N. Y. 589 162 V. 8., 45 Md. 88 32, 186 8. v., 73 Md. 44 859 Arcia o. 8., 28 Tex. App. 198 170 Ardesco Oil Co. s. Gilson, 63 Pa. 8t. 146 190 Ardley, Reg. v., 12 Cox C. C. 23 366 Arjona, U. 8. ®.,120ir. 8. 479 347 Armistead v. S., 43 Ala. 340 170 Armstrong, 8. c, 106 Misso. 395 100 Arnold, P. v., 46 Mich. 268 333 8. »., 13 Ired. (N. C.) L. 184 184 8. v., 107 N. 0. 861 398 Arp. V. 8., 97 Ala. 5 12 Arthur o. Craig, 48 Iowa, 264 234 Ashbrook v. C, 1 Bush (Ky.), 139 451, 455 Asher v. 8., 50 Ark. 427 367 Ashley's Case, 12 Rep. 90 70 Ashley, 8. v., Dudley (Qa.), 188 30 Ashman, R. v., 1 F. & F. 88 447 Aspinall, Reg.®., 18 Cox C. C. 563 96, 832, 833 Atchison, 8. c, 8 Lea (Tenn.), 729 113 Atiierton, S. v., 50 Iowa, 189 480 PAGE Atkinson, 8. o.,40 8. C. 363 114, 133 8. v., 24 Vt. 448 449 8. 0., 40 Vt. 252 437 Atty.-Gen. v. Kwok-a-Sing, 12 Cox C. C. 565 472 e. Lockwood, 9 M. & "W. 378 39 Aurora o. U. 8., 7 Cranch, 382 34 Austin B. S., 14 Ark. 555 204 8. v., 108 N. C. 780 209 S. v., 114 N. C. 855 46 8. «., 6 Wis. 205 210, 213 Avant V. 8., 71 Miss. 78 293 Avery v. 8., 7 Conn. 267 284, 435 Reg. v., 8 Cox C. C. 184 435 Avirett v. 8., 76 Md. 510 91, 131, 128, 215, 435, 489 Ayer «. C, 3 Cush. 150 351 Ayers, In re, 123 U. 8. 448 344 V. Norwich, 39 Conn. 376 450 0. Watson, 133 TJ. 8. 894 306 Axtell's Case, J. Kel. 13 12 Babcock, P. v., 7 Johns. 301 329 Baccio V. P., 41 N. Y. 265 484 Bacon, S. o., 41 Vt. 536 139 Baden, 8. o., 43 La. Ann. 295 106 8. v., 87 Minn. 213 17 Bagley, C. v., 7 Pick. 379 97 Bahama Islands Case, 1898, A. C. 188 343 Baildon ®. Walton, 1 Exeh. 617 18§ Bailey, C. v., 1 Mass. 63 104 Reg. B., 13 Cox C. C. 139 426 ■0. 8., 58 Ala. 414 422 «. 8., 20 Tex. App. 68 172 8. v., 31 N. H. 521 165 Bain, Exp., 121 U. 8. 1 64, 81, 115 V. 8., 70 Ala. 4 134 Baird, P. ■»., 11 Hun, 389 48 Baiz, In re, 135 U. S. 403 55 Bakeman, C. v., 105 Mass. 53 139 C. v., 131 Mass. 577 385, 386 Baker, C. v., 153 Mass. 387 9 ®. P., 105 111. 453 381 V. P., 3 Hill, 325 813 Reg. 0., 8 Cox C. C. 581 330 Reg. v., 1895, 1 Q. B. 797 464 0. 8., 17 Flor. 406 437 V. 8., 13 O. St. 214 138 V. 8., 14 Tex. App. 332 171 V. 8., 45 Wis. 11 807 V. 8., 88 Wis. 140 71 S. v., 65 N. C. 833 395 Balch, 8. »., 81 Kans. 465 157, 438 Baldwin, C. v., 11 Gray, 197 377 V. 8., 1 8need (Tenn.), 411 483 8. v., 36 Kans. 1 190 S. «., 80 N. C. 390 148 Bales c. 8., 3 W. Va. 685 410 Table Of Cases 565 Balkum «. S., 40 Ala. 671 Ball V. U. S., 140 U. S. 118 PAGE 294 102, 103, 218, 398 U.S.o.,163U.S.662 51,154,209 Ballentine v. S., 48 Ark. 45 100 Ballew ». U. S., 160 U. 8. 187 27, 232 Baltimore Road ». S., 63 Md. 573 450 Bamber u. C, 10 Pa. St. 339 289 Reg. ■»., 5 Q. B. 279 12 Bancroft, S. «., 10 N. H. 105 328 Bank of Colorado v. Okely, 4 Wheat. 235 36 Banks, R. ■»., R. & R. 441 418, 423 V. S., 96 Ala. 78 285 Bankus v. S., 4 Ind. 114 489 Bannen, Reg. v., 1 C. & K. 295; 2 Moody, 309 19 Bannon v. U. S., 156 U. S. 464 3, 110, 881, 333 Baptiste v. De Volumbrun, 5 Harr. & Johns. (Md.) 86 12 Barber, Exp., 16 Tex. App. 369 183 V. S., 18 Flor. 675 144 V. S., 50 Md. 161 99, 312, 814 Barberi «. P., 149 N. Y. 256 402 Barbier ». Connolly, 113 U. S. 27 39,41 Barclay ®. C, 25 Pa. St. 503 455 Barden v. Montana Club, 10 Mont. 330 9 Barefoot o. S., 89 N. C. 565 375 ». S., 2 Rich. (S. C.) L. 209 312 Barfield ». S., 29 Ga. 127 877 Barge «. C, 3 Pa. 262 129 Barger, TJ. S. o., 7 Fed. R. 193 149 Barham, S. »., 79 N. C. 646 105, 317 Barker ». P., 3 Cow. 686 356 P. v., 60 Mich. 277 141 «. S., 19 Pa. St. 412 316 0. Wilford, Kirby (Conn.), 232 341 Barksdale, S. v., 5 Humph. (Tenn.) 154 8 Barlow, C. v., 4 Mass. 39 3 C. »., 97 Mass. 597 186 ®. U. S., 7 Pet. 404 18 Barnacle, C. »., 134. Mass. 215 402 Barnard, R. «., 7 C. & P. 784 365 Barnes v. S., 60 Miss. 355 143 S. ■»., 59 Misso. 154 U9 «. Ward, 9 C. B. 392 450 Barney, C. «., 10 Cush. 480 289 Barnhouse ». S., 31 O. St. 39 404 Barr ®. S., 45 Neb. 459 298, 390 S. «., 11 Wash. 481 386, 391 Barratt, Reg. «., 12 Cox C. C. 498 480 Barrett, C. v., 9 Leigh (Va.), 665 89 V. Long, 3 H. L, C. 415 145 Barronet, In re, 1 E. & B. 1 84 FABE Barrow «. Lewellin, Hob; 62 288 Barry, C. v., 125 Mass. 390 415 Exp., 85 Cal. 608 842 Bartlett ». Bangor, 67 Me. 460 449 Basham ». C, 87 Kent. 440 180 Bass, Reg. «., 3 C. & K. 823 74 «. 8., 186 Ind. 165 194 Bassett ». S., 41 Ind. 808 280 9. U. S., 137 U. 8. 496 197 Batchelder v. S., 5 N. H. 549 375 Batchelor ®. U. a, 156 U. S. 436 96, 98 Battis, 0. ■»., 1 Mass. 95 118 Battles. 8., 4 Tex. App. 595 483 Bauer, P. »., 87 Hun, 407 219 Bawm, Reg. »., 1 Cox C. C. 33 813 Bayard In re, 25 Hun, 546 53 ». Passmore, 8 Yeates, 488 842 Bayley, C. »., 7 Pick. 279 362 Bayne v. 8., 88 Misso. 604 872 Baynum v. Baynum, Ambler, 68 344 Baysinger v. S., 77 Ala. 68 379 Bazeley's Case, 2 Leach, 835 359 Beach, P.O., 87 N.Y. 508 180 Beal '0. 8., 15 Ind, 878 429 Beale ®. C, 25 Pa. St. 11 382 Beaman, C. »., 8 Gray, 497 106, 413 Bean, C. o., 11 Cush. 414 98 C. 0., Ill Mass. 438 206 8. «., 77 Me. 486 138 Bear, R. »., 2 Salk. 417 104 Beard v. S., 71 Md. 275 158, 310, 358, 354 «. S., 74 Md. 130 47, 219 V. U. a., 157 U. 8. 675 397 ®. U. 8., 158 U. 8. 550 398, 390 391 Beasley ». P., 89 111. 571 381 ®. 8., 18 Ala. 535 301 «. 8., 138 Ind. 552 425 «. S., 3 Yerg. (Tenn.) 481 220 Beaty v. S., 82 Ind. 338 359 Beatty v. Gillbanks, 15 Cox C. C. 138 490 V. 8., 61 Miss. 18 418 «. S., 90 Misso. 143 430 Beauchamp, P. »., 49 Cal. 41 132 V. Tunnell, 1 Bibb (Ky.), 441 180 Beaudet, 8. ■»., 53 Conn. 536 181 Becker, 8. »., 80 Wis. 313 86 Beckham v. S., 100 Ala. 15 177 Bedingfield, Reg. v., 14 Cox C. C. 341 182, 183 Beecham, Reg. o., 5 Cox C. C. 181 427 Beeler, 8. »., 1 Brev. (8. C.) 482 349 Beeston, Reg. »., 6 Cox C. C. 425 194 Behrendt, In re, 22 Fed. R. 699 255 Belden, S. «., 33 Wis. 130 52 Belk, 8. v., 76 N. C. 10 891 Bell's Case, 6 City Hall Rec. 38 41, 316 666 Table Of Cases PAGE Bell e. Clapp, 10 Johns. 263 237 e. Mallory, 61 111. 161 489 V. S., 4 Gill (Md.), 301 3S9 «. 8„ 57 Md. 108 188, 351, 383 e. 8., 4 Baxt. (Tenn.) 436 410 S. v., 39 Iowa, 316 11 S. «., 37 Md. 675 113, 153 Bellet, P. ■»., 99 Mich. 151 41 Bellls, Reg. o., 17 Cox C. C. 660 376 Belt V. U. S., 4 App. D. C. 35 49 Belvin o. Richmond, 13 Va. L. J. 39 338 Bemis «. Leonard, 118 Mass. 503 36, 38 Ben V. 8., 32 Ala. 9 99 Bendit, P. v., Ill Cal. 374 377 Beaedict v. 8., 44 O. St. 679 300 Benfield, R. «., 3 Burr. 980 100,113 Benham, C. v., 7 Conn. 416 350 Bennett, S. v., 64 Me. 367 180 V. Smith, 31 Barb. 439 274 a. C, 8 Leigh (Va.) 745 153 C. »., 108 Mass. 27 40, 44 V. P., 96 111. 603. 183 V. S., 63 Ark. 516 380 S. p., 14 Iowa, 479 439 S. v., 40 S. C. 308 300 U. S. »., Fed. Cas. 14,571 311 Benson o. McMahon, 137 U. S. 457 354, 378 B. Monson, 9 Mete. 563 8 V. U; S., 146 U. S. 335 196, 197 Benthall, S. v., 83 N. C. 664 130 Benton o. 8., 30 Ark. 328 136 Bentz, 8. v., 11 Misso.27 7, 209 Benzinger, 8. «., 88 Md. 481 33 Berdetta, 8. v., 73 Ind. 185 450 Bergman, Exp., 18 Nev. 331 222 Exp., 3 Wyom. 396 343 Berkshire, S. »., 2 Ind. 207 443 Bernadotti, Reg. o., 11 Cox C. C. 316 183 Berrian v. S., 23 N. J. L. 9 129 Berry, C. v., 99 Mass. 438 358, 359 Reg. ».,13CoxC.C. 189 138 o. 8., 31 O. St. 319 427 «. 8., 27 Tex. App. 483 172 «. 8., 30 Tex. App. 433 174 8. ■»., 9. N. J. L. 374 115 Berryman, S. v., 8 Nev. 363 410 Bertheol, S. o , 6 Blackf. (Ind.) 474 353 Bertini, S. v., 34 La. Ann. 46 136 Bessette v. 8., 101 Ind. 85 157 Best, 8. c, 108 N. C. 747 33 8. «., Ill N. C. 638 300 Bethel, R. «., 5 Mod. 19 331 Bethune v. 8., 48 Ga. 505 322 Betsall, 8. v., 11 W. Va. 703 323 Betton, C. v., 6 Gush. 427 133 PAGE Beyer v. P., 86 N. Y. 369 15, 276 Bibb e. 8., 94 Ala. 31 7 Bickley «. C, 2 J. J. Marsh. (Ky.) 572 87 Bickum, C. ■»., 153 Mass. 388 135 Biddle v. S., 67 Md. 304 142, 145 Bidwell, Reg. »., 2 Cox C. C. 298 96 Bigelow, C. r>., 8 Mete. 235 351 V. Sprague, 140 Mass. 435 148 Biggs V. Garrard, 6 B. Monr. (Ky.) 484 341 Biles V. C, 32 Pa. St. 529 378 Bill V. 8., 29 Ala. 34 143 8. v., 13 Ired. (N. C.) L. 373 265, 266 Billings, 8. v., 55 Minn. 467 37 Bird ®. C, 21 Gratt. (Va.) 80 314 V. Jones, 7 Q. B. 743 363 Birdseye, Reg. v., 4 C. & P. 385 4JJ8 Birdsong ». S., 47 Ala. 68 149 Birkett v. 8., R. & R. 86 380 Birmingham, Reg. »., 9 C.& P. 469 8 Birnie, R. «., 5 C. & P. 306 ; 1 Moody & R. 160 71 Biscoe 8. 8., 67 Md. 6 178 B. 8., 68 Md. 394 57, 310 Bishop, C. »., 165 Mass. 148 183 V. 8., 55 Md. 138 188, 351, 383 8. v., 98 N. C. 773 180 Biswell, Reg. v., 3 Cox C. C. 379 376 Bittenhaus c. Johnston, 92 Wis. 588 38, 42 Bittings ■B. 8., 56 Ind. 101 381 Bixby, P. 0., 4 Hun, 636 453 Bixler, 8. «., 63 Md. 354 5, 468 Black, In re, 53 Kans. 64 312 V. 8., 2 Md. 376 110 V. Woodson, 39 Md. 194 194 Blackburn, C. «., 1 Duv. (Ky.) 4 333 8. »., 80 N. C. 474 184 Blackson, R. v., 8 C. & P. 43 33, 114 Blades «. Riggs, 11 H. L. C. 631 412 Blair, C. v., 136 Mass. 40 185, 381 ». Pelham, 118 Mass. 430 162 V. Seaver, 26 Pa. St. 274 199" Blaisdell, C. o., 107 Mass. 234 450 S. v., 59 N. H. 338 470 Blake o. Burke, 43 Md. 45 74, 371 P. v., 1 Wheeler Cr. Cas. 490 396 Blanchard, P. v., 90 N. Y. 314 365 Bland «. S., 2 Ind. 608 73 Blanding, C. v., 3 Pick. 304 438 Blaney o. 8., 74 Md. 153 69, 93, 209 247 Blankinship, C. v., 165 Mass. 40 353 ®. 8., 54 Ark. 244 174 Blanton «. 8., 1 Wash. 365 398 Bleasdale, Reg. «., 3 C. & K. 765 438 Blitz e. U. S., 153 U. 8. 308 98, 112, 324 Table Or Cases 56T Bliven, P. v., 112 N. T. 79 Blize, S. «., Ill Misso. 464 Blizzard, S. v., 70 Md. 385 PAOE 97 471 108, 270, 371 Block V. S., 100 Ind. 357 145, 147, 148 Bloedow, 8. v., 45 Wis. 279 109 Blood V. Martin, 21 Ga. 127 338 Bloodworth v. S., 6 Baxt. (Tenn.) 614 481 Bloomer ». S., 48 Md. 521 207, 334 335 Blount V. Kimpton, 1 55 Mass. 378 200 Blunt V. C, 4 Leigh (Va.), 689 426 Boardman, S. v., 64 Me. 529 309 Bode 0. S., 7 Gill (Md.), 326 98 Bodine, P. v., 1 Den. 281 144, 147 Boehme ». Mayor, 61 Md. 259 43 Bogart, P. v., 36 Gal. 245 107 U. S.®., Fed. Gas. 14, 617 347 Boggus V. S., 34 Qa. 275 313 Bohan, S. v., 15 Kans. 407 183, 185 Boland v. P., 25 Hun, 423 99 Boles V. 8., 58 Ark. 85 108 Bollman, Exp., 4 Granch, 75 82, 500, 501 Bond V. Evans, 16 Cox G. G. 461 14 Keg. 0., 1 Den. C. G. 517 106 Bonnell G. v., 8 Phila. 539 42 Bonner, In re, 151 U. S. 243 51, 81, 219, 232 Reg. v., 7 Cox C. G. 13 105 Bonney, S. o., 34 Me. 383 105 Boon,S.'!).,13Ired.(N.C.)L. 244 321 Booth, In re, 3 Wis. 1 370 Bootyman, R. v., 5 G. & P. 300 129 B. O. R. R. V. Boyd, 67 Md. 31 157 ®. Gain, 81 Md. 87 69, 70 S. V. 15 W. Va. 363 8 Borst c. Becker, 6 Johns. 332 146 Boston R. R. e. 8., 33 N. H. 215 8, 90 Bostwick 8. 8., 61 Ga. 635 136 Boswell, Reg. ■»., Gar. & M. 584 179 S. v., 2 Dev. (N. G.) L. 200 206 Bosworth, G. «., 113 Mass. 280 125 8. a., 54 Conn. 1 103 Bott, U. S. v., Fed. Gas. 14,636 280 Bottomley ®. U. 8., Fed. Gas. 1,688 186 Boudrie, G. »., 14 Gray, 418 223 Bourke v. Mealy, 14 Cox C. G. 339 25 Boutwell, C. ■»., 129 Mass. 134 877 Bowen, G. v., 13 Mass. 856 397 Exp., 35 Flor. 214 23 V. Hunter, 45 How. Pr. 193 336 P. o., 43 Cal. 439 234 Reg. v., 1 Cox C. G. 88 99 8.®., 16 Kans. 475 209 B. S., 9 Baxt. (Tenn.) 45 369 Bower, R. ■»., Cowp. 333 339 PASS Bowers v. S., 23 Tex. App. 42 209 Bowes, R. v., 1 T. R. 696 244 Bowman d. Blyth, 7 E. & B. 26 362 V. C., 96 Kent. 8 73 C. 0., 3 Pa. 8t. 302 . 449 V. Chicago R. R., 125 U. 8. 465 44 8. »., 78 N. C. 509 190 8. v., 6 Vt. 594 350 Boyd 0. S., 14 Lea (Tenn.), 161 163 0. 8., 34 Tex. App. 570 432 V. U. 8., 116 U. 8. 616 49, 236, 237 V. U. 8., 142 U. S. 450 199 Boyer, C. »., 1 Binney, 201 .430 V. Kjnnick, 90 Iowa, 74 232 Boyle, In re, 9 Wis. 264 81,394 ■b. 8., 97 Ind. 333 184 V. 8., 57 Wis. 472 193 Boynton, G. v., 2 Mass. 77 329 G. »., 12 Gush. 499 109 Brabham, S. «., 108 N. G. 793 180 Bradberry v. S., 7 Tex. App. 375 464, 467 Bradford, G. v., 126 Mass. 42 188, 293 V. 8., 54 Ala. 230 116 Bradlaugh, Reg. v. 14 Cox 0. C. 68 104, 105 Reg. v., 15 Cox C. C. 217 316 Bradley v. Beetle, 153 Mass. 154 269 Exp., 7 Wall. 364 372 ». Mirick, 91 N. Y. 398 194 V. P., 56 Barb. 73 454 8. V. 34 Tex. 95 301 8. v., 67 Vt. 465 53 Bradney, G. v., 126 Pa. St. 199 130, 131 Bradshaw, Reg. v. 14 Cox G. C. 83 9 396 V. 8., 16 Gratt. (Va.) 507 ' 116 Brady ®. Davis, 9 Ga. 78 66, 90 P. v., 56 N. Y. 182 262, 263, 264 S. ■»., 44 Kans. 485 441 8. ■»., 1 8wan (Tenn.), 84 58 8. v., 14 Vt. 353 95, 323 Bramley, R. v., R. & R. 478 414 Bransby, P. »., 33 N. Y. 525 295 Brashears v. S., 58 Md. 563 197 Brassfleld v. S., 55 Ark. 556 102 Braynard, C. v., 6 Pick. 113 245 C. i'.,Thacb. Gr. Gas. 146 341 Brazelton v. 8., 66 Ala. 96 148 Breckenridge v. C., 97 Kent. 367 494 Breese v. 8. 13 O. St. 146 19 Brennan, Reg. »., 1 Crawf. & D. C. G. 560 418 Reg. ■»., 8 Crawf. & D. C. C. 109 432 Brettun, C. v., 100 Mass. 206 104, 429 Brew V. S., 4 Wash. 95 430 568 Table Of Casks PAGE Brewer o. 8., 33 Ark. 176 288 o. S.,32Tex. App. 74 378 ^reyessee, C. v., 160 Pa. St. 451 10 886, 390 Brick Church e. Mayor, 5 Cow. 538 43 Brickett, C. 8., 8 Pick. 138 84 Bridges ». Sheldon, 7 Fed. R. 17 341 Srigham o. Bristol, 65 Me. 436 455 P. 0., 3 Mich. 550 349 .Briggs 0. C, 82 Va. 554 391 C. e., 11 Mete. 573 170 S. 0., 9 R. I. 361 383 S. v., 34 Vt. 501 381 U. S. 0., 8 Mackey (D. C), 585 216 Britt, 8. »., 78 N. C. 439 307 Britton ». 8., 4 Coldw. (Tenn.) 173 181 Broad o. Pitt, 3 C. & P. 518 301 Brogy 0. C, 10 Gratt. (Va.) 723 484 Bronson v. Schulten, 104 U. S. 410 331 Brooke, Reg. v. 7 Cox C. C. 351 435 Brooker o. C, 13 8. & R. 175 346 Brooks*). C, 61 Pa. St. 353 70 0. 8., 3 Terg. (Tenn.) 483 458 8. v., 39 La. Ann. 817 394 8. c, 93 Misso. 542 181 U. 8. o.,3McArthur(D.C.), 815 379 U. 8. »., 44 Fed. R. 749 130 Brotherton, P. «., 47 Cal. 388 334 Broughton, 8. e., 7 Ired. (N. C.) L. 96 180, 199 Brow, S. ®.,66]Sr. H. 577 276 Brown ». C, 73 Pa. St. 321 183 C. o., 4 Mass. 580 434 C. 0., 14 Gray, 419 100, 383, 383 C. 11., 15 Gray, 189 106 Brown's Case, 112 Mass. 409 262 Brown o. Davidson, 59 Iowa, 461 336 Exp., 97 Cal. 83 344 D. Moore, 61 Cal. 342 344 ■B. P., 39 Mich. 333 97 P. B., 34 Mich. 339 313 P. o., 6 Cow. 41 348 V. Perkins, 1 Allen, 89 16 Reg. e., Car. &M. 314 63 Reg. «., 10 Cox C. C. 458 306 Reg. »., 14 Cox C. C. 144 21 Reg. v., 16 Cox C. C. 715 884 «. 8., 55 Ala. 133 331 e. S., 10 Ark. 167 92 V. 8., 28 Ark. 126 492 8. S., 105 Cal. 66 426 n. S., 18 Flor. 472 397 B. S.,S8Qa.l99 20,24 u. 8., 72 Md. 468 206, 278 8. v., 21 Kans. 38 180 8. T., 95 N. C. 685 361 8. v., 84 S. C. 824 108 FAGE Brown, S. v., 9 Baxt. (Tenn.) 53 413 V. U. 8., 150 U. 8. 93 181, 334 ». U. S., 154 U. 8. 321 205 U. 8. ■»., Fed. Cas. 14,665 65 U. S. v., 40 Fed. R. 457 197 «. Walker, 161 U. 8. 591 49, 50 Brownlow, Reg. v., 11 Ad. & El. 119 102 8. v., 7 Humph. (Tenn.) 63 105, 439 Brownson v. Leach, 74 Mich. 713 307 Bruce, Reg. v., 2 Cox C. C. 363 387 Brucker «. 8., 16 Wis. 333 91, 153 Brule, In re, 71 Fed. R. 943 336, 341, 345 Brunker, 8. v., 46 Conn. 337 170 Brunson, 8. «., 3 Bailey (8. C), 149 284 Bryant v. S., 16 Neb. 651 459 8. «., 55 Misso. 75 403 8. v., 74 N. C. 134 416 S. 0., 9 Rich. (8. C.) L. 113 438 Bryson, S. e., 79 N. C. 648 196 S. a., 82 N. C. 576 159 8. v., 90 N. C. 747 103, 170 Buchanan, Reg. e.,2 Cox C. C.36 29, 30 «. 8., 55 Ala. 154 286 S. «., 5 Harr. & Johns. (Md.) 317 274, 329 8. v., 5 Harr. & Johns. (Md.) 500 331, 335 Buchannon ». 8., 95 Kent. 334 33 Bucher o. Fitchbui-g R. R., 131 Mass. 156 495 Buck V. C, 107 Pa. St. 486 34, 138 S. v., 46 Me. 531 430 8. J)., 120 Misso. 479 37 Bucklin ii. U. 8. (No. 3), 159 U. 8. 683 212 Buckman, S. «., 8 N. H. 303 98, 115 454 Buckmaster, Reg. b., 16 Cox C. C. 339 420 Budd ». N. T., 143 U. 8. 517 43 Buddensieck, P. «., 103 N. Y. 487 161 Budge, P. 0., 4 Park. Or. R. 519 349 Buffalo Press Club v. Greene, 86 Hun, 130 25 Buffington v. Smith, 58 Ga. 341 86 BufEum's Case, 13 N. H. 14 343 Bugbee, C. ■»., 4 Gray, 206 102 Bullard ®. S., 38 Tex. 504 141 S. B., 16 N. H. 139 180 Bullinger, 8. ■a., 54 Misso. 143 404 Bulman, C. b., 118 Mass. 456 309, 353 Bulson B. P., 31 111. 409 85 Bunce, Reg. o. , 1 F. & P. 583 419 Bundy, S. «., 64 Me. 507 lul Table Op Cases 569 PAGE Bunger, S, v., 14 La. Ann. 461 88 Burchinal, S. o. , 4 Harr. (Del.) 572 353 Burdett, R. v., 4 B. & Aid. 95 436 Burgess, P. u., 35 Cal. 115 333 Reg. v., 9 Cox C. C. 302 414 Beg. v., 15 Cox C. C. 779 25 0. 8., 44 Ala. 190 99 v. Salmon, 97 U. S. 381 26, 47 Burgiss, R. v., 7 C. & P. 448 74 Burk B. S., 2 Harr. & Johns. (Md.) 426 112, 142 Burke, C. v., 13 Allen, 182 433 PAGE C. «., 105 Mass. 376 480 Reg. v., 10 Cox C. C. 519 133 8. »., 54 N. H. 92 97 V. Terr., 2 r)kla. 499 336, 343 Burkhard v. 8., 18 Tex. App. 599 93 Burnett «. S., 14 Lea (Tenn.), 439 384 Burnham v. S., 9 N. H. 34 435, 437 Burns ». P., 59 Barb. 531 467 U. 8. v., Fed. Cas. 14,691 351 Burrows, S. v., 11 Ired. (N. C.) L 447 370 Burrus, In re, 136 U. 8. 586 344 Burt V. Panjaud, 99 U. S. 180 151 11. S., 23 O. St. 394 484 Burtis, Exp., 103 U. 8. 283 272 Burton v. DriggF, 30 Wall. 135 176 Reg. ■»., 16 Cox C. C. 63 368 Bush, P. v., 68 Cal. 623 136 P. »., 4 Hill, 133 304 P. »., 7 Johns. 549 102 V. Kentucky, 107 U. S. 110 38 Bushel's Case, Vaughn, 135 ; 6 How. St. Tr. 999 81 Bushnell, Exp., 8 O. St. 599 121 Bussey ». S., 71 Ga. 100 493 Butcher's Co. v. Crescent Co., Ill U. 8. 746 42 Butler, P. v., 16 Johns. 203 289 D. S.,97Ind. 378 150,156 V. 8., 3 Tex. App. 403 428 8. v., 72 Md. 98 319 S. «., 8 Yerg. (Tenn.) 83 91 8. v., 8 Wash. 194 284 Butman's Case, 8 Me. 113 115 Butterick, C. v., 100 Mass. 13 168 Butterworth «. Stagg, 3 Johns. Cas. 291 341 Button, Reg. v., 3 Cox C. C. 229 4 Buzell «. Emerton; 161 Mass. 176 66 S. »., 58 K. H. 257 33, 125 8. v., 59 N. H. 65 23 Buzzo, U. S. V. 18 Wall. 135 211 Byers v. C, 42 Pa. St. 89 37 ». 8., 63 Md. 307 91,95,115,214 Byrd «. 8., 1 How. (Miss,) 347 119 Byrne v. 8., 13 Wis. 519 99 37 PAGE Byrnes v. Byrnes, 102 N. Y. 4 465 C. 0., 136 Mass. 348 110 P. »., 33 Hun, 98 361 S. v., 47 Conn. 465 484 Cadle, 8. v., 19 Ark. 613 101 Cady, 8. v., Winst. (N. C.) pt. I, 197 834 Caha «. U. 8., 153 U. S. 311 466 Cahill V. P., 106 111. 631 73 Cahoon, P. «., 88 Mich. 456 157 Calder v. Bull, 3 Dall. 386 47 Caldwell v. C, 7 Dana (Ky.), 339 334 Resp. »., 1 Dall. 150 448 V. S., 49 Ala. 34 430 V. S., 55 Ala. 133 333 V. 8., 38 Tex. App. 566 97 8. v., 115 N. C. 794 55 V. Texas, 137 U. 8. 693 36 Calhoun, S. «., 73 Iowa. 433 493 8. v., 50 Kans. 523 330 Calkins, 8. v., 73 Iowa, 138 379 Call, C. v., 31 Pick. 509 311, 384 C. »., 31 Pick. 515 97, 373 P. v., 1 Den. 130 333 Callaghan, C. e., 3 Va. Cas. 460 3, 443 P. v., 4 Utah, 49 113, 168 Callahan ». 8., 41 Tex. 43 319 8. »., 134 Ind. 364 104 Callan v. Wilson, 137 U. 8. 540 37, 48 Callow V. Young, 56 L. T. K S. 147 343 Oalton V. Utah, 130 U. S. 83 158 Calvert v. Williams, 34 Md. 673 38 Cameron, In re, 44 Kans. 64 870 V. 8., 14 Ala. 546 286 U. 8. v., 15 Fed. R. 794 161 Camp, 8. »., 41 N. J. L. 306 373 Campbell v. C, 88 Kent. 402 298 V. C, 59 Pa. St. 266 452 V. C, 84 Pa. St. 187 16 C. v., 7 Allen, 541 385 C. »., Addison (Pa.), 233 414 o.P.,159 111.9 163,178,203 V. P., 34 Mich. 351 484 P. v., 40 Cal. 129 403 Reg. v., 11 Cox C. C. 328 387, 393 V. 8., 16 Ala. 144 455 V. S., 55 Ala. 80 180 8. ■»., 64 N. H. 402 43 Canada, 8. ■»., 68 Iowa, 397 483 Cancemi v. P., 18 N. Y. 128 141 Cannon, P. »., 139 N. Y. 32 42 ■B. Rands, 11 Cox C. C. 631 25 e. 8., 60 Ark. 564 398 V. 8. 32 Tex. App. 180 128 ®. Stuart, 3 Houst. (Del.) 223 370 570 Table Of Cases Canter v. 8., 7 Lea (Tenn.), 349 Capritz v. S., 1 Md. 569 Carey, Reg. v., 14 Cox C. C. 214 Carleton v. Rugg, 149 Mass. 550 PAGE 370 170 395 37, 273 Carlisle o. U. S., 16 Wall. 147 235, 500 Carll, U. S. »., 105 U. S. 611 98, 109, 214, 350, 382 Carlton v. P., 150 111. 181 292, 293 Carnal ». P., 1 Park. Cr. R. 272 144, 147, 150 Carnochan, Exp., T. U. P. Charlt. (Ga.) 315 338 Carpenter v. P., 8 Barb. 603 276 P. v., 102 N. y., 239 150 8. v., 74 N. 0. 230 65 Carr, R. v., 8 C. & P. 163 385 Reg. ■»., 15 Cox C. C. 129 56 Reg. 0., 15 Cox C. C. 131, n 485 S. »., 5 N. H. 367 104, 379 U. 8. v., Fed. Cas. 14,732 12 Carrier, P. v., 46 Mich. 422 275 Carroll «. 8., 28 Ark. 99 325 V. 8., 63 Md. 551 10 ?i. 8., 5 Neb. 31 136 8. ■»., 13 Mont. 246 173 Carotti c. 8., 42 Miss. 334 284 Carson «. P., 4 Col. App. 463 52 100 R. v., R. & R. 303 167 Carter v. Boehm, 1 Smith L. C. 550 189 C. 0., 94 Kent. 527 16 C. »., 182 Mass. 12 43 P. »., 29 Barb. 208 373 V. 8., 68 Ala. 96 320 V. 8., 2 Ind. 617 283 S. •»., 36 Tex. 89 325 U. 8. V. Fed. Cas. 14,740 341 Cartwright ». Green, 2 Leach, 952 417 Cartwright's Case, 114 Mass. 230 339 ,343 Carver, 8. »., 49 Me. 588 214 V. U. 8., 160 U. 8. 553 184 «. U. 8., 164U. 8. 694 183,184 Car will ®. 8., 35 Ala. 392 287 Casborus, P. »., 13 Johns. 351 215 Case, Reg. v., 4 Cox C. C. 220 15, 295 Casey, C. v., 11 Cush. 417 182 C. v., 12 Allen, 214 138 Cash B. S., 2 Overton (Tenn.), 198 287 Oassata, P. v., 6 N. T. App. Div 386 163 Cassels, P. v., 5 Hill, 164 81 Castles, C. v., 9 Gray, 123 381 Castro 0. Reg., 6 App. Cas. 329 112 ■». Reg., 14 Cox C. 0. 546 224 Caswell, P. v., 20 Wend. 86 487 Cathcart v. C, 37 Pa. St. 108 96 222 Caton, P. »., 25 Mich. 388 349 PAGE Caton, Reg. v., 12 Cox C.'C. 624 20 U. 8. ■»., Fed. Cas. 14,758 91 Causey v. 8., 79 Ga. 564 427 Cavanaugh, P. v., 1 Park. Cr. R. 588 220 Caveness, S. »., 78 K. C. 484 486 Cecil, 8. v., 54 Md. 426 247, 249 Center, S. »., 35 Vt. 378 387 Central, C. »., 12 Cush. 242 8, 451 R. R. ». Mitchell, 63 Ga. 173 148 Chahoon v. C, 20 Gratt. (Va.) 733 380 Chamberlain, Reg. v., 10 Cox C. C. 486 9, 388 Chambers v. 8., 26 Ala. 59 306 8. 0., 22 W. Va. 779 415 Chandler, C. ■»., Thacher Cr. Cas. 187 ■ 378 R. e., 1 Ld. Raym. 581 78 R. »., 1 Ld. Raym. 545 68 8. »., 2 Harr. (Del.) 553 41 S. ■»., 42 Vt. 446 463 Chaplin v. Lee, 18 Neb. 440 358 Chapman, C. v., 13 Mete. 68 435 C.-c., 11 Cush.622 113 C. B., 1 Va. Cas. 138 318 In re, 4 Kans. App. 49 269 P. B., 62 Mich. 280 16, 480 P. v., 4 Park. Cr. R. 56 370 Reg. «., 1 Cox C. C. 47 358 Reg. »., 3 Cox C. C. 467 465 ». Rochester, 110 N. Y. 273 373 Chappel V. 8., 7 Coldw. (Tenn.) 92 174 Chappell V. Jones, 8 Humph. (Tenn.) 107 265 Charles, S. v., 6 Eng. (Ark.) 389 482 U. 8. ■». Fed. Cas. 14,786 199 Charlotte R. R. ». Gibbes, 142 U. 8. 386 38 Chase, C. v., 125 Mass. 203 96 Chateaugay v. Blake, 144 U. 8. 476 190 Cheadle v. 8., 110 Ind. 301 342 Cheafor, Reg. v., 5 Cox C. C. 367 412 Cheatham v. 8., 59 Ala. 40 122 V. [shearon, 1 Swan (Tenn.), 213 454 Cheek v. C, 79 Kent. 359 353 V. 8., 87 Kent. 42 209 8. B., 13 Ired. (N. C.) L. 114 849 Cheltenham, Rwy., In re, L. R. 8 Eq. 580 342 Cheney, C. v., 6 Mass. 347 124 C. v., 108 Mass. 88 34 C. 0., 114 Mass. 281 309 V. »., 7 Ohio, 232 186 Chesapeake Club s. S., 63 Md. 446 50 Chesley, S. v., 107 Mass. 223 125 Chew Hong v. U. S., 113 U. 8. 536 32 Table Of Oases 571 PAGB Childers «. 8., 16 Tex. App. 534 173 CMsholm «. Doulton, 16 Cox C. 0. 675 9 Chitty, S. v., 1 Bailey (S. C), 379 306 Choate, 0. v., 105 Mass. 451 174, 188 Choiser, P. «., 10 Cal. 310 397 Chrisp, S. v., 85 N. C. 783 316 Christian, C. •»., 7 Gratt. (Va.) 631 89 Christie v. S., 44 Ind. 408 146 Church, C. v., 1 Pa. St. 105 448 V. Hubbart, 3 Cranch, 187 193 S. v., 63 N. C, 15 394 Churchill, C. v., 5 Mass. 174 134 0. v., 3 Mete. 118 34 Cinciunati R. R. ». C, 80 Kent. 137 450 City Passenger Rwy. v. Knee, 83 Md. 77 307 Claasen, In re, 140 U. H. 300 5 V. U. S., 143 U. S. 140 315, 335 Claflin, U. S. ■»., 97 U. S. 546 33 Clair, C. »., 7 Allen, 535 106, 173 V. U. S., 154 U. S. 134 183 Clare v. H., 30 Md. 163 133, 143, 335 Clarence, Reg. «., 16 Cox C. C. 511 15, 397 Clark V. C, 6 B. Monr. (Ky.) 306 350 V. C, 90 Va. 360 384 In re, 1 Blackf. (Ind.) 133 39 P. -v., 7 N. Y. 385 393 Reg.».,6CoxC. C.310 100,111 i>. 8., 13 Ga. 350 168 V. S., 57 N. J. L. 489 137 S. 0., 33 La. Ann. 558 133 S. »., 38 N. H. 176 45 S. •»., 43 Vt. 639 331 U. S. v., 31 Fed. R. 710 389 Clarke e. Bradstreet, 80 Me. 454 161, 307 R. 0., 3 Leach, 1036 411 U. S. v., 31 Fed. R. 710 73 Clarke's Case, 13 Cush. 330 81 Clawson V. U. S., 114 U. S. 477 143 Clay V. P., 86 111. 147 436 13. 8., 40 Tex. 67 19 9). S., 3 Tex. App. 499 385 Clayborne, S. v., 14 Wash. 633 98 Clayton, Reg. v., 1 C. & K. 138 18 Cleayeland, 8. »., 6 Nev. 181 380 Cleaves v. Jordan, 34 Me. 9 449 Cleek 1). S., 31 Gratt. (Va.) 777 73 Clement, Reg. v., 36 U. C. Q. B. 397 465 Clements v. 8., 84 Ga. 660 493 V. "Williams, 3 Scott, 814 341 Cleveland v. Chamberlain, 66 U. S. 419 341 Click V. S., 8 Tex. 383 406, 408 Clifford e. S., 56 Ind. 345 371 PAGE Clifford ». 8., 30 Md. 575 330 Clink V. Russell, 58 Mich. 343 85 Clinton, Reg. v., Ir. R. 4 C. L. 6 435 Clive 1). 8., 54 N. J. L. 46 395 Clore's Case, 8 Gratt. (Va.) 606 137 Closs, Reg. v., 7 Cox C. C. 494 339, 378 Olottu, 8. v., 33 Ind. 409 46 Clough, 8. v., 49 Me. 573 91 Clune ». U. S„ 159 U. 8. 590 316, 335 Cluverius v. C, 81 Va. 787 147 Clyburn, 8. «., 16 8. C. 375 156 Coal-Float i). JeHersonville, 113 Ind. 15 40 Coates ». Mayor, 5 Cow. 585 43 Cobb «. P., 84 111. 5U 133 Cobbett, Resp. v., 3 Yeate^, 93 339, 345 Cobia B. 8., 16 Ala. 781 403 Cochrane u. 8., 6 Md. 400 133 Cockfield, S. v., 15 Rich. (8. C.) 316 173 Codd ». Cabe, 13 Cox C. C. 303 68 Cody, C.B., 165 Mass. 133 134 Coe, R. »., 6 C. & P. 403 380 Coella, S. B., 8 Wash. 51 188 Coffee, C. v., 9 Gray, 139 410 8. v., 56 Conn. 399 199 S. »., 3 Murphy (N. C), 330 105 CofiBn V. U. 8., 156 U. S. 483 158, 159 163, 170 Cogswell ®. S., 49 Ga. 103 119 Cohens v. Virginia, 6 Wheat. 364 335 Colbert ». 8., 1 Tex. App. 314 369 Colburn v. 8wett, 1 Mete. 333 39 Colby V. Jackson, 13 K. H. 536 73, 397 Cole P. v., 43 N. Y. 508 304, 435 8. »., 48 Misso. 70 53 8. »., 3McCord(S. C.),117 489 U. 8. v., Fed. Cas. 14,833 334 Coleman, v. P., 58 N. Y. 555 488 V. P., 55 N. Y., 81 195, 488 1). S., 10 Md. 168 85 V. Tennessee, 97 U. 8. 509 135 Colhoun, Reg. «., 3 Crawf. & D. C. C. 57 434 Collberg, C. v., 119 Mass. 350 15, 396 Collier v. S., 39 Ga. 31 888 Collins 1). C, 13 Bush (Ky.), 371 180 C. v., 138 Mass. 483 439 C. v., 13 Allen, 181 431 V. Nail, 3 Dev. (N. C.) L. 334 365 V. P., 39 111. 333 483 P. »., 30 How. Pr. Ill 348 8. v., 30 Iowa, 85 174 S. v., 53 Kans. 100 17 8. v., 115 N. C. 761 169 V. U. 8., 150 U. 8. 63 395 Colly, 8. «., 39 La. Ann. 841 365 572 Table Of Cases PAGE Colorado Coal Co. v. U. S., 123 U. 8. 307 169 Colton, C. »., 8 Gray, 488 41 Columbian Athletic Club». S.,143 Ind. 98 273 Columbus, U. S. v., Fed. Cas. 14,841 353 Colvin V. S., 11 Ind. 361 380 8. v., 11 Humph. (Tenn.) 699 53 Combes o. P., 39 III. 183 82 Comfort V. C, 5 Whart. (Pa.) 437 68 Commercial Bank ». McLeod, 65 Iowa, 665 74 Commissioners v. Hovey, 74 Md. 262 40 Common Council, S. s., 53 Miss. 238 266 Common Pleas, S. v., 36 N. J. L. 72 44 Comstock V. S., 14 Neb. 205 480 Compton, R. ■»., Y. B. 41 E. 3, 55 72 S. «., 13 W. Va. 852 121 Conde, Reg. v., 10 Cox C. C. 547 182, 393 Cone, C. v., 2 Mass. 132 350 Coney, C. »., 2 Mass. 523 362 Reg. v., 15 Cox C. C. 46 15, 296 Conkling, P. «., Ill Cal. 616 162 Conlan, S. v., 60 Conn. 483 122 Conley, ®. P., 83 N. Y. 464 162 S. ■»., 89 Me. 78 398 Connecticut Ins. Co. v. Lathrop, 111 V. S. 612 191 V. 8chaefer, 94 U. S. 457 208 Conner, R. v., 7 C. & P. 438 388 Reg. !)., 2 CoxC.C. 65 290 ». S., 25 Ga. 512 137 S. v., 30 O. St. 405 99 Connor, In re, 16 Ir. C. L. N. S. 112 45 V. P., 18 Color. 373 15 Reg. ».,2 C.&K. 518 384 V. S., 29 Flor. 455 102 U. 8. v., Fed. Cas. 14,847 13 Connors ii. U. 8., 158 U. 8. 408 151 Conover v. Wood, 5 Abb. Pr. 84 340 Constitution, The, 4 P. D. 39 55 Cook V. Hoyt, 13 111. 144 265 In re, 49 Fed. R. 833 264 P. B., 61 Cal. 478 276, 277 P. «., 12 Mete. 93 276 R. »., R. & R. 176 114 V. 8., 24 N. J. L. 843 189 0. Terr., 3 Wyom. 110 402 ». U.S., 138 U.S. 157 48,56,181 U. 8. v., 17 Wall. 168 65, 99 Cooke, R. v., 5 B. & C. 538 385 Cooley, C. »., 10 Pick. 37 454 PAGE Coolidge, U. 8. «., 1 Wheat. 415 57 U. 8. «., Fed. Cas. 14,657 29, 219 Coombs «. Dunlap, 19 Wis. 591 365 U. 8. »., 13 Pet. 75 35 Coon, P. «., 45 Cal. 672 173 P. «., 15 Wend. 277 442 Cooper 0. Asprey, 3 Best & S. 932 340 C.®., 5 Allen, 495 188 V. Holmes, 71 Md. 20 229 In re, 33 Vt. 253 336 V. Junkin, 4 Ind. 290 299 V. 8., 64 Md. 40 129 V. 8., 33 Tex. 881 189 B. 8., 19 Tex. 449 216 8. »., 22 N. J. L. 53 279 Cope, R. v., 1 Str. 144 331 Copeland, Reg. «., Car. & M. 516 365, 366 Copp, 8. «., 15 N. H. 212 181, 866 Copperman a. P., 56 N. Y. 591 188, 488 Coppersmith, U. 8. i)., 4 Fed. R. 198 347 Corbett v. Haigh, L. R. 5 C. P. D. 50 82 v. 8., 34 Ga. 391 82 Terr. i>., 3 Mont. 50 385, 404 Corden, R. v., 4 Burr. 2279 79 Cordova v. 8., 6 Tex. App. 207 180 Corey, P. «., 148 N. Y. 476 176, 185, 191 192 Corkin, C. «., 136 Mass. 439 ' 282 Cornelison ». C, 84 Kent. 583 180 Cornelius, R. v., 2 Str. 1210 .49 Cornforth, R. v., 3 Str. 1162 276 Cornish, Reg. v., 6 Cox C. C. 432 424 8. »., 66 N. H. 329 9, 14 Corrigan, S. v., 24 Conn. 286 100, 111 Cortez, In re, 136 U. 8. 830 256 Coslet, R. «., 1 Leach, 236 415 Costello, C. v., 121 Mass. 371 132 Costelo V. Crowell, 139 Mass. 588 193 Costley, C. ■»., 118 Mass. 1 171 Cothran ». 8., 89 Miss. 541 471 Cotteral, P. »., 18 Johns. 115 289 Coulson, Reg. «., 4 Cox C. C. 237 104 Coulter, 8. v., Wright (Ohio), 421 388 U. 8, v., Fed. Cas. 14,875 353 Counselman v. Hitchcock, 142 U. S 547 49 Countess of Rutland's Case, 6 Rep. 73 69 County Comm'rs ®. Wise, 71 Md. 43 162 Courtney, P. v., 94 N. Y. 490 464 Court of Sessions, P. »., 144 N. Y. 288 219 Courtoy v. Bozier, 20 Ga. 369 66 Table Of Cases 578 PAGE Cousins, C. v., 3 Leigh (Va.), 708 438 Covert, S. ■»., 14 Wash. 653 359 Covington, S. v., 94 N. C. 913 379 S. »., 3 Bailey (S. C), 569 15 Cowan, S. ■»., 1 Head (Tenn.), 380 91 Cowdin, S. v., 38 Kans. 369 367 Cowen V. P., 14 III. 348 371 Cowley V. P., 83 N. Y. 464 103 1). Pulsifer, 137 Mass. 393 438 «. S., 10 Lea (Tenn.), 383 396 Coxe.'P., SON. Y. 500 97 R. v., R. & R. 363 447 Reg. !)., 15 Cox C.C.611 301 S. v., S Tex. App. 354 115 C. v., 157 Mass. 300 165 Coy, In re, 137 U. S. 731 80 Coyle, C. »., 160 Pa. St. 36 9, 388, 443 Coyles V. Hurtin, 10 Johns. 85 63, 458 Coyne ». P., 134 111. 17 465 Crah, S. v., 131 Misso. 554 834 Craft V. C, 34 Gratt. (Va.) 603 216 Craig, Exp. Fed. Cas. 3,331 74 V. First Church, 88 Pa. St. 43 43 Crain v. U. S., 163 U. S. 635 99, 113, 118 Cramlington's Case, Cro. Jac. 345 103 Cramp, Reg. v., 14 Cox C. C. 401 380 Crane v. Waters, 10 Fed. R. 619 438 Craven R. «., R. & R. 14 166, 173 Crawford ». S., 90 Ga. 701 437 S. ■i).,3 Dev. (N. C.) L. 435 446 V. Tyrrell, 138 N. Y. 341 373 V. Williams, 1 Swan (Tunn.), 341 330 Crawlin, Exp., 93 Ala. 101 53 Creadon, C. v., 163 Mass. 466 167 Creager, P. v., 103 N. Y. 510 431 Creed ». P., 81 111. 565 390 Oreevey, R. v., 1 M. & S. 373 438 Creiehton «. C, 83 Kent. 143 394 V. C, 84 Kent. 103 391, 394 Crespin, Reg. v., 11 Q. B. 913 301 Crighton, R. v., R. & R. 63 yo Crisham, Reg. v., Car. & M. 187 113 Crocheron ®. 8 , 86 Ala. 64 323 Crockett o. S., 80 Ga. 104 167 «. B., 4 Tex. App. 330 414 Crofts, R. 0., 7 Mod. 397; 3 Str. 1120 7 Reg. v., 9 0. & P. 219 176 Cronin, C v., 1 Quarterly Law J. (Va.) 138 203 Crook,8.«.,115N. C. 760 318,319 Croom •>. S., 71 Ala. 14 416 Crosman v. Lynn, 121 Mass. 301 496 PAGE Cross, In re, 146 U. S. 271 223 V. North Carolina, 133 U. 8. 131 53 R. «., 3 Campb, 324 450 R. e., 1 Ld. Raym. 711 4 ». Watts. 13 C. B. N. S. 239 31 Crossley, R. i>., 3 Moody & R. 17 ; 3 Lewin, 164 370 Crotty, 0. v., 10 Allen, 403 66, 68 Crouther's Case, Cro. Eliz. 654 30 Crow, 0. 8., 34 Tex. 12 343 D. 8., 6 Tex. 334 127 V. 8., 33 Tex. App, 364 167 S. 0., 1 Ired. (N. C.) L.375 294 Crowell, 8. v., 25 Me. 171 169 Crowley, C. »., 165 Mass. 569 403 V. Ohristensen, 137 U. 8. 86 44 P. v., 33 Hun, 413 453 8. »., 100 Cal. 478 173 Orozier a. Cundy, 9 D. & R. 334 237 Cruikshank, 8. »., 6 Blackf. (Ind.) 63 465 U. 8. »., 92 U. 8. 542 96, 97 Crumney, 8. v., 17 Minn. 73 110 Crump 1). C, 84 Va. 937 332 Crumpton v. 8., 43 Ala. 31 318 Crunden, R. v., 3 Campb. 89 464 Cruse, Reg. «., 8. C. & P. 541 19 S. ■»., 74 N. C. 491 178 Crutchley, R. v., 5 C. & P. 133 13 Cullen i>. C, 34 Gratt. (Va.) 624 856 Cullom, Reg. ■!),,12CoxC. C.469 358 Culp V. 8., 1 Port. (Ala.) 33 411 Cumberland v. Portland, 56 Me. 77 8 Cummings v. Missouri, 4 Wall. 377 47,48 V. 8., 3 Va. Uas. 138 433 S. «.,33Conn. 360 429 Cummins, In re, 16 Color. 451 16 Cummons, P. o, 56 Mich. 544 276 Cunningham, P. v., 1 Den. 524 449 Cureton v. Reg., 8 Cox C. C. 481 111 Curgerwen, Reg. v., 10 Cox C. C. 152 316 Curkendall v. P., 36 Mich. 209 289 Curley, P. »., 99 Mich. 338 833 Curtis V. Bradley, 65 Conn. 99 308 C.v.,9 Allen, 366 99 V. Hubbard. 3 Hill, 437 298 P. v., 113 Cal. 68 115 8. v., 4 Dev. &B. (N. C.)L. 333 374 U. 8. v., 107 U. 8. 671 462 Cutshall, 8. »., 110 N. C, 5.^8 55, 313 Cutsinger ». S., 7 Bush (Ky.), 892 335 Cutter?). 8, 36N. J. L. 136 363 674 Table Of Cases PAGE Dabney v. Mitchell, 66 Ala. 495 300 Dacey, 0. v., 10 Mass. 306 170 Dailey, C. «., 3 Cush. 80 141 P. v., 73 Hun, 16 303 Dale, R. v., 7 C. & P. 353 368 Reg. 8., 5 Cox C. C. 171 • 101 Daley, C. v., 148 Mass. 11 7 Dalton, Exp., 44 O. St. 143 336 Damon's Case, 6 Me. 148 114 Damon, P. v., 13 Wend. 351 143 S. v., 3 Tyler (Vt.), 387 100 Dana, C. «., 3 Mete. 339 336 c. S., 3 0. St. 91 105 Danbui-y v. Cooper, 10 B. & C. 337 131 Dane, P. v., 59 Mich. 550 157 Danger, Reg. v., 7 Cox 0. C. 307 370 Daniels, S. v., 33 Misso. 558 430 Danily, P. » , 53 Hun, 479 113 Darby v. 8., 75 Ga. 63 184 Darcy v. Markham,Hob. 130 388 Darrah, S. v., 1 Houst. (Del.) Cr. 113 110 Darst V. P., 61 111., 386 489 Daru, C. b., 107 Mass. 310 311 Dascom, C. »., Ill Mass. 404 53 Dashing ». S., 78 Ind. 357 348 Daubert, S. «„ 43 Misso. 343 138 Davidson, C. ■»., 1 Cush. 38 368 e. New Orleans, 96 U. S. 97 36 P. v., 67 How. Pr. 416 83 V. S., 77 Md. 388 155 DaTis 0. Season, 133 U. S. 333 41 e. Burgess, 54 Mich. 514 63 «. C, 13 Bush (Ky.), 318 313, 314 C. «., 11 Pick. 433 306 Davis' Case, 133 Mass. 834 261 Davis «. Davis, 83 Hun, 500 338 V. Duncan, L. R. 9 0. P. 396 438 «. Hunter, 7 Ala. 135 149 In re, 38 Kans. 308 83 P. v., 53 Mich. 569 130 P. v., 56 N. Y. 95 130 R. v., Sayer, 163 30 Reg. v., 14 Cox C. C. 668 13 Reg. v., 15 Cox C. C. 174 884 Reg. v., 18 U. C. Q. B. 180 365 V. S., 17 Ala. 354 194 «. S., 10 Ga. 101 401 0. S., 58 Ga. 170 307 «. S., 6 Blackf. (Ind.) 494 53 V. S., 100 Ind. 154 99 e. 8., 3 Harr. & Johns. (Md.) 154 3 V. S., 38 Md. 15 189, 307 I). 8., 39 Md. 354 117, 119 «. 8., 6 How. (Mis».) 890 88 PAGE Davis 0. S., 15 Ohio, 73 154 V. S., 3 Tex. App. 435 40 S. v., 41 Iowa, 311 111 8. «„ 108 Mass. 666 49 8. «., 1 Ired (N. 0.) L. 135 394 8. v., 69 N. C. 313 104 8. v., 84 N. C. 787 468 S. B., 53 Vt. 376 153 V. South Carolina, 107 U. S. 507 60 D. U. 8., 160 U. 8. 469 11, 163, 174, 401 U. 8. , Fed. Cas 14,933 133 U. 8. v., Fed. Cas. 14,930 434 «. Zimmerman, 91 Hun, 489 373 Davison's Case, 13 Abb. Pr. 139 344 Davison, R. v., 31 How. St. Tr. 99 188 Dawes, 8. », 75 Me. 51 105 Dawkins, 8. v., 33 8. C. 17 313 Dawson «. 8., 7 Tex. App. 59 453 Day V. 8., 7 Gill (Md.), 381 64 c. 8., 4 Md. 363 66 8. v., 100 Misso. 343 464 «. Stickney, 14 Allen, 355 306 Dayton, 8. v., 33 N. J. L. 49 115, 463 Deacon, 8. v., 8 S. & R. 47 70 Deacons, P. e., 109 N. Y. 374 189 Deal, S. »., 64 N. C. 370 433 Dealey v. U. 8., 153 U. S. 539 53, 111, 138 139 Dean, C. i;., 49 Iowa, 73 ' 436 C. »., 1 Pick. 387 17 C. «., 109 Mass. 349 4, 138, 168 C. V , 110 Mass. 64 109 Dearborn, S. »., 59 N. H., 348 185 Deaton, 8 «., 93 N. C. 788 113 De Bare, U. 8. v., Fed. Cas. 14,985 485 De Bode's Case, 8 Q. B. 308 193 Debney v. 8., 45 Neb. 856 67 Debs, In re, 158 U. 8. 564 373, 336 Deckard o. 8., 38 Md. 186 270, 466, 467 Dee, Reg. v., 15 Cox 0. C. 579 481 D^ley, R. v., R. & R. 303 165 Deems ». Mayor, 80 Md. 164 43 Deering,Reg.'!).,llCoxC.C.398 436 Deford e. 8., 30 Md. 179 139 Degener, Exp., 30 Tex. App. 566 344 Dejardin, C. »., 136 Mass. 46 164 Delahoussaye, 8. v., 37 La. Ann. 551 137 Delana, Terr. »., 3 Okla. 573 378 Delany, C. v., 1 Grant (Pa.), 334 333 Delaval, R. »., 3 Burr. 1434 464 Delaware v. C, 60 Pa. St. 367 8 Delehan, C. ■»., 148 Mass. 254 313 De Leon, P. v., 109 N. Y. 336 406 Dellwood, 8. v., 83 La. Ann. 1229 183 Table Of Cases 575 Denham «. S., 22 Flor. 664 Dennis, 0. v., 105 Mass. 162 ». Lane, 6 Mod. 131 P. e., 4 Mich. 609 V. S., 91 Ind. 291 PAGE 398 397 241 82 165 Dent, S. »., a Gill & Johns. (Md.) 8 96, 299, 301 V. West Virginia, 129 U. S. 114 37, 44 Denton, Reg. v., 18 Q. B. 761 33 S. «, 74Md. 517 359 Denver Railway v. Harris, 123 U. S. 597 298, 373 Dering, 8. v., 84 Wis. 585 40 Derrick, S. v., 1 McMuU. (S. C.) 338 307 Der Woon, In re, 18 Fed. R. 898 263 Desmarteau, C. v., 1 Gray, 1 101, 105 Detroit Works, S. v., 82 Mich. 471 451 Devlin, S. v., 25 Misso. 174 155 Devore 0. Terr., 2 Okla. 562 418 Devoto V. 0., 3 Mete. (Ky.) 417 488 Dewick, P. d., 2 Park. Or. R. 230 150, 151 De Winton, P. v., 113 Cal. 403 292 De Wolf, S. » , 8 Conn. 93 198 Dexter v. Hall, 15 Wall. 9 190 Dias V. Merle, 2 Paige, 494 341 Dibble «. P., 4 Park. Cr. R. 199 351 Dick 11. 8., 3 O. St. 89 402 V. 8toker, 1 Dev. (N. C.) L. 91 84 Dickenson v. Fitchburg, 13 Gray, 546 190 V. S., 30 Neb. 72 85 Dickerson, 8. v., 98 N. C. 708 298 Dickinson, R.'w., R. &R. 430 426 V. S., 41 Wis. 299 279, 283, 383 Diehl V. Rogers, 16 Pa. St. 316 199 Diekelman, U. S. »., 92 U. 8. 530 55 Dierberger, 8. » , 90 Misso. 369 394 8. v., 96 Misso. 666 72 Diffey v. 8., 86 Ala. 66 335 Dignowitty v. S., 17 Tex. 521 432 Dilger v. 0., 88 Kent. 550 69 Dill V. P., 19 Color. 469 171 Dille V. 8., 34 O. 8t. 617 157 Dillenback e. Jerome, 7 Cow. 294 108 Dillin V. P., 8 Mich. 357 185 Dillingham ». U. 8., Fed. Cas. 3,913 86 Dillon «. O'Brien, 16 Cox C. C. 345 74 Dilworth v. C, 13 Gratt. (Va.) 689 149 Dinkey v. C., 17 Pa. St. 136 384, 386 Di Sora i>. Phillips, 10 H. L. C. 624 193 District of Columbia v. Armes, 107 U. 8. 519 198 Divine's Case, 11 Abb. Pr. R. 90 81 PAGE Dixon, R. «., 10 Mod. 335 7 R. B., 3 M. & 8. 11 ; 4 Campb. 13 96 ». 8., 3 Tex. App. 481 233 V. 8., 13 Tex. App. 438 118 8. e.,114N. C. 850 325 Doan V. S., 26 Ind. 495 323 Dodge, S. »., 81 Me. 391 103 Dodson, Reg. »., 4 Cox C. C. 358 72 S. «., 8 Or. 64 403 Doe, P. v., 1 Mich. 451 143 8. 11., 79 Ind. 9 413 8. » , 5 Iowa, 541 89 D'Oench, P. »., Ill N. Y. 359 41 Doeppe, 8. »., 68 Misso. 308 108 Doherty, C. «., 103 Mass. 443 98, 326 Reg. V , 16 Cox C. C. 306 11 Dohring, P. v., 59 N. i'. 374 200 Dolan«. P.,64N. Y. 485 133 Donahue, C. v., 148 Mass. 529 298, 375 Don Moran v. P., 25 Mich. 356 481 Donohoo V. S., 36 Ala. 281 321 Donohue, In re, 52 How Pr. 351 ; 1 Abb. N. Cas. 1 45 P. v., 84 N. Y. 438 363 Donovan, 8. »., 61 Iowa, 378 285 Donnelly v. 8., 26 N. J. L. 463 184, 392 Doran, C. v., 14 Gray, 37 103 Dorrance, C. »., 14 E'hila. 671 438 Doody, Reg. <,.,6CoxC. C. 463 397, 463 Dooley, 8. v., 121 Misso. 591 398, 391 Doss e. C, 1 Gratt. (Va.) 557 157 Dossett V. U. S., 3 Okla. 591 163 Doty, 8. v., 3a N. J. L. 403 341 Dougherty «. P., 1 Color. 514 280, 281 V. 8., 106 Ala. 63 459 Douglass, C. «., 5 Mete. 245 ' 465, 470 R. v., 1 Moody, 462 366 ■e. 8., 4 Wis. 387 448 8. «., 5 Sneed (Tenn.), 608 27 Dove!). 8., 37 Ark. 261 427 Dover v. Maestaer, 5 Esp. 92 65 8. «., 9 N. H. 486 64,89 Dowdigan, P. »., 67 Mich. 92 160 Dowell, 8. 11., 3 Gill & Johns. (Md.) 310 105, 429 S. v., 106 N. C. 722 480 Dowers, 8. v., 45 N. H. 453 96 Downing v. 8., 4 Misso. 573 171 Downs, S. «., 91 Misso. 19 402 Doyle V. Lynn, 118 Mass. 195 495 8. V , 107 Misso. 36 198 Drake v. S., 75 Ga. 413 161 8. v., 30 N. J. L. 423 100 8. 11., 113 N. C. 634 179 Drew, C. v., 3 Cush. 279 134 C. v., 19 Pick. 179 37, 366 i C. v., 4 Mass. 391 [398, 39i 576 Table Of Cases PAGE U. S.®., Fed. Oas. 14,993 13 Driscoll, U. S. v., Fed Cas. 14, 994 110 Driver, S. »., 78 N. 0. 423 53 Droneberger o. 8., 113 Ind. 105 454 • Drum, C. v., 58 Pa. St. 9 396 Dryer e. S., 14 Tex. 185 397 Ducker v. S., 18 Ohio, 308 330 B. S., 8 Or. 394 433 Duckett % S., 93 Ga. 415 56 Duckwortli, Reg. v., 17 Cox C. C. 495 299, 303 Dudley, Reg. v., 15 Cox C. C. 624 12 8. »., 50 Mo. App. 450 210 Duffey's Case, 1 Lewin, 194 20 Duffin V. P., 107 111. 113 105 Duffy, Reg. v., 4 Cox C. C. 34 131 8. e. 57 Conn. 235 200 Dugan, 8. v., 1 Houst. (Del.) Or. 563 387 Duggan, 8. v., 15 R. I. 413 123 Duhammel, S. » , 3 Harr. (Del.) 582 25 Duke, 8. v., 42 Tex. 455 336 Dunbar o. U. 8. 156 U. 8. 185 98, 105, 175, 176, 179, 315 Duncan, 8. o. 106 Misso. 288 132 8. «., 6 Ired. (N. C.) L. 98 33 8. «., 7 Wash. 336 132 V. D. 8., 152 U. S. 337 47 Dungan, C. v., 12 Mete. 333 63 Dunlap, P. v., 113 Cal. 73 467 V. 8., 9 Tex. App. 179 209 Dnnlop, Reg. »., 15 U. 0. Q. B. 118 379 Dunn 0. Reg., 3 Cox C. C. 205 339 Reg. v., 13 Ad. & El. 599 242 8. »., 109 N. C. 839 104 Dunne v. P., 94 111. 120 41 Dupree, P. v., 98 Mich. 26 230, 333 Durant v. P., 13 Mich. 351 488 Durein, 8. v., 39 Kans. 688 144 Dusenberry, 8. v., 113 Misso. 377 300 Dustin, U. 8. v., Fed. Cas. 15,011 218 Dutcher ». Wright, 94 TJ. 8. 553 28 Duttenhofer ». 8., 34 O. St. 91 301 Duvall V. 8., 63 Ala. 13 433 0. 8., 6 Harr. & Johns. (Md.) 9 98 Dwinnels v. Boynton, 3 Allen, 310 336, 237 Dyer e. C, 23 Pick. 402 209 V. Curtis, 72 Me. 181 450 8. v., 59 Me. 303 282 S. v., 41 Tex. 530 371 Dyson, Exp., 25 Miss. 356 82 Eagan, C. !>., 103 Mass. 71 7 Sari V. 8., 33 Tex. App. 570 94 Early*). C, 86 Va. 921 139 PAGB Earnest, S. o., 56 Kans. 31 401 Earp ». 8., 56 Ga. 136 178 Eastman o. C, 4 Gray, 416 111 C. v., 1 Cush. 189 334 0. 8., 109 Ind. 278 44 Easton o. 8., 39 Ala. 551 344 Easton Club, 8. v., 73 Md. 97 8, 9 Eastwood V. P., 3 Park. Or. R. 35 136 Eaton, C. «., 15 Pick. 373 99 8. v., 75 Misso. 586 134 Eberhart v. S., 47 Ga. 598 143 EberlingB. 8., 136Ind. 117 406 Eberspacher. P. v. 79 N. Y. 410 71 Eckhard v. P., 83 N. Y. 462 280 Eddon, S. v., 8 Wash. 292 183, 185 Edelen,». Gough, 8 Gill ( Md.), 187 145 Edgell, Reg. v., 11 Cox C. C. 133 290 Edgerly, C. v., 10 Allen, 184 160, 181 Edgerton v. 8., 67 Ind. 588 495 Edgington v. U. S., 164 U. 8. 361 187 Edmonds v. 8., 70 Ala. 8 416 Edwards ». C, 78 Va. 39 235 C. a., 4 Gray, 1 95 In re, 43 N. J. L. 555 73 R. v., R. & R. 497 428 e. 8., 27 Ark. 493 397 V. S., 47 Miss. 581 93 8. v., 112 N. C. 901 189 Bighmy ». P., 79 N. Y. 546 135 Bilenbecker v. District Court, 134 U. 8. 31 36 Elbin D. Wilson, 33 Md. 135 93 Elborn v. Zimpelman, 47 Tex. 503 162 Elder, P.O., 100 Mich. 515 16 U. 8. «., Fed. Cas. 15,039 353 Elderton, R. v., 6 Mod. 73 77 Eldredge v. S., 37 O. St. 191 334 Elliott ®. C, 13 Bush (Ky.), 176 418 V. Halmarack, 1 Mer. 303 340 V. Piersol, 1 Pet. 328 81 B. 8., 73 Ind. 10 149 U. 8. ■»., Fed. Cas. 15,044 111 Ellis, R. v., 7 0. & P. 850 383 8.®., 4 Misso. 474 100 8. v., 74 Misso. 385 404 S. v., 119 Misso. 437 109 8. 0.. 33N. J. L. 103 318 Elwell, C. o., 3 Mete. 190 109, 286 Elworthy, Reg. «., 10 Cox C. C. 579 175 Emerson, «. S., 43 Ark. 373 176 Emery v. Bowen, 5 L. J. Ch. 349 340 ». Chesley, 18 N. H. 198 66 Bmmert v. Missouri, 156 U. S. 396 46 Emmons, C. »., 98 Mass. 6 161 Enders v. 8., 30 Mich. 233 371 Engeman «. 8., 54 N. J. L. 247, 257 354 Table Of Cases 577 PAGE England, S. •»., 8 Jones (N. C.) L. ^ 399 417 English, Reg. ■»., 13 Cox C. C. 171 368 V. S., 35 Tex. 473 325 Ennis «. Smitli, 14 How. 400 193 Enoch, R. v., 5 C. & P. 383 383 Eppersons. S., 43 Tex. 79 371 Bppinijton, P. v., 105 Cal. 36 176, 193 EppsB. S., 103 Ind. 539 398 Erie R. R,, C. »., 27 Pa. St. 339 448 V. Pennsylvania, 158 U. S. 431 46 Errington's Case, 2 Lewin, 217 388 Escanaba v. Chicago, 107 U.S. 678 39 Essex Club, 8. b., 53 N. J. L. 99 9 Este, C. « , 140 Mass. 279 358 Estella. S.,51N. J. L. 183 10,387 Estes ». S , 2 Humph. (Tenn.) 496 239 Etress v. S., 88 Ala. 91 836 Evans v. P., 49 N. Y. 86 279 P. »., 73 Mich. 3(i7 157 Reg. ffl., 8 C. & P. 765 103 «). S., 63 Ala. 6 170 V. S., 80 Ala. 4 493 ». S., 58 Ark. 47 113 S. v., 7 Gill & Johns. (Md.) 2190 114, 115 8. «., 124 Misso. 397 183, 184 8. «., 5 Ired. (N. C.) L. 603 309 V. U. 8., 153 U. 8. 584 96, 98, 99 U. 8. »., 19 Fed. R. 912 465 Evered, R. v., Cald. 36 78 Everett?). Lowdham,5 C. & P. 91 156 V. S., 33 Flor. 661 113 Ewell V. 8., 6 Yerg. (Tenn.) 364 404 Ewer, P. v., 141 N. Y. 129 46 Ewing V. St. Louis, 5 Wall. 413 265 V. Thompson, 48 Pa. St. 372 366 Eyre, C. »., 1 8. & K. 347 294 Ezeta, In re, 63 Fed. R. 973 353, 355 Faber, P. «., 93 N. Y. 146 813 Fahnestock «. S., 103 Ind. 156 99 Fair ». S., 58 Ala. 74 133 Fairclough, 8. »., 39 Conn. 47 424 Falk V. P., 43 111. 331 216 Falkenham, S. v., 73 Md. 463 33, 96, 319 Falvey, C. v., 108 Mass. 304 168 Pancher, P. ».. 2 Hun, 326 91 Fanning, 8. v., 94 N. C. 940 387 Farmington ». Commissioners, 112 Mass. 306 366 Farley, S. «., 4 McCord (8. C.) 317 437 Farnham v. Pierce, 141 Mass. 303 45 Farrar, 8. v., 41 N. H. 53 406 V. Warfleld, 8 Mfirt. (La.) N. 8. 697 137 38 PAGE Farrell v. P., 16 111. 506 428 V. S., 33 O. St. 456 14 Farrier 8. v., 1 Hawkes (N. C.) 487 356 Farrow, Reg. v., D. & B. 164 280 Faulkner, Reg. v., 13 Cox C. C. 500 390 Faust, P. »., 113 Cal. 173 101 '0. U. 8., 163 U. S. 453 103 Fayette v. Batton, 108 Pa. St. 591 346 Feamster 8. »., 12 Wash. 461 98 Fearnley, K. «., 1 T. R. 316 121 Feeki). Bloomingdale,82Mich. 393 44 Peeley, C. v., -i Va. Cas. 1 346 Felix, P. !)., 45 Cal. 163 318 Felker; P. v., 61 Mich. 110 218 Fell V. 8., 43 Md. 71 35, 44 Fellows, 8. »., 50 Wis. 65 384 Felsenthal v. 8., 30 Tex. App. 675 187 Felter, S. »., 35 Iowa, 67 191 Feltes, S. »., 51 Iowa, 495 177 Fenlason, 8. v., 78 Me. 495 185 Fenly, S. v., 18 Misso. 445 381 Fenwick v. S., 63 Md. 239 174 Fergus v. S., 6 Yerg. (Tenu.) 345 350 Ferguson v. 8., 33 tla. 658 30 Ferrand, R. v., 3 B. & Aid. 260 249 Ferrens v. O'Brien, 15 Cox C. C. 332- 410, 416 Ferrier, In re, 103 111. 367 45 Ferrigan, C. v., 44 Pa. St. 386 185 Perrill v. C, 1 Duv. (Ky.) 153 439 Fertilizing Co. ®. Hyde Park, 97 U. S. 659 43 Fetter, In re, 33 N. J. L. 311 363, 364 Pick, P. v., 89 Cal. 144 169, 406, 408 Field V. Clark, 143 U. S. 469 36 Fielder v. Illinois, 143 U. S. 453 219 Fifes. C.,39 Pa. St. 439 212 Finch, 8. v., 70 Iowa, 316 433 Findlay ». Bear, 8 8. & R. 571 413 S. v., 101 Misso. 217 176 Finn, C. »., 108 Mass. 466 108, 414 Firestone v. Rice, 71 Mich. 377 74 Fischblatt, C. v., 4 Mete. 354 168, 309 Fish, P. »., 4 Park. Cr. R. 206 2, 339 Fisher, C. «., 7 Gray, 493 95 V. P., 23 111. 283 154 ' R. ■»., 3Campb. 553 458 to. S., 43 Ala. 17 319 S. v., 65 Misso. 437 381 Fitch, Reg. «., 7 Cox C. C. 369 435 Fitzgerald v. C, 5 Allen, 509 325 S. v., 49 Iowa, 260 280 8. v., 63 Iowa, 268 194 8. v., 51 Minn. 534 71 Flagg ». P., 40 Mich. 706 178 S. »., 37 Ind. 34 468 Flaherty, C. v., 140 Mass 454 7 578 Table Op Cases PAGE Flannigan, S., 6 Md. 167 403 Flattery, Reg. v., 13 Cox C. C. 388 481 Fleener, 8. ■»., 58 Ark. 98 14, 170, 432 Fleming v. P., 27 N. Y. 339 314 V. S., 11 Ind. 234 148 V. 8., 136 Ind. 149 158, 418 8. ■B.,107N. 0. 905 320 Fletcher v. Calthrop, 6 Q. B. 887 78 V. Peck, 6 Cranch, 87 35, 47 ». S., 12 Ark. 169 127 8. ■»., 5 N. H. 257 30 8. ■»., 24 0r. 295 163 Fley, 8. v., 2 Brev. (8. 0.) 338 23 Flint, S. »., 62 Misso.' 398 101 S. 11., 66 Vt. 304 207 Florez «. S., 11 Tex. App. 103 318 Flower, R. »., 5 B. & C. 736 ; 8 D. & R. 513 360 Flowers, Reg. v., 16 Cox C. C. 33 432 Floyd, 8. »., 16 Jones (N. C.) L. 393 395 Flynn o. 8., 8 Tex. App. 398 334 Foat ». 8., 28 Tex. App. 537 87 Fogerty, C. ■»., 8 Gray, 489 483 Foley, Reg. v., 17 Cox C. C. 142 411, 413 8. v., 45 N. H. 466 854 Folkes V. Chadd, 8 Dougl. 157 190 Follansbee, C. v., 155 Mass. 274 279 Folsom V. U. S., 160 U. 8. 121 59 Fong Ah Sing, P. v., 64 Cal. 253 183 Fong Yue Ting v. U. 8., 149 U. 8. 698 40 Fooks, S. v. 65 Iowa, 196 367, 369 Foote ». 8., 59 Md. 264 53 Forbes, P. v., 143 N. Y. 319 50 Forcier, 8. «., 65 N. H. 43 44: Ford, C. »., 180 Mass. 64 208 D. 8.,12Md. 514 51 U. 8. 0., 99 U. 8. 594 128 Fore, S. »., 1 Ired. (N. C.) L. 378 385 Forehand ®. 8., 51 Ark. 553 162 Forrist v. Leavitt, 53 N. H. 481 66 Forsyth v. Doolittle, 180 U. 8. 73 190 Fort, 8. v., 1 N. C. L. Repos. 510 214 Foss, Exp., 102 Cal. 347 253 Foster «. Blount, 18 Ala. 687 29 V. C, 8 W. & S. (Pa.) 77 129 C. »., 107 Mass. 221 359 C.B., 123 Mass.- 317 318 V. Dickerson, 64 Vt. 283 191 V. Medfield, 8 Mete. 1 34 0. P., 50 N. Y. 598 158 e. P., 63 N. Y. 619 161 V. 8., 106 Ind. 773 485, 487 V. 8., 71 Md. 558 107 e. 8., 70 Miss. 755 136 Foster's Case, 5 Rep. 59 68 PAGE Foutch 9. 8., 95 Tenn. 711 891 Fowler, P. ®., 88 Cal. 136 377 V. 8., 100 Ala. 96 108 ». 8., 5 Day (Conn.), 81 453 V. a., 3 Heisk. (Tenn.) 154 801 Fox ». Ohio, 5 How. 410 348 P. »., 121 N. Y. 449 177 8. v., 80 Iowa, 312 100, 109, 834 U. 8. v., 3 Mont. 513 181 U. S. v., Fed. Cas. 15,156 108 U. 8. v., 95 U. 8. 670 6, 47 Foye, U. S. v., Fed. Cas. 15,157 lfi5 Frampton, Reg. »., 3 C. &K. 47 417 Reg. s., 8 Cox C. C. 161 486 Francis, R. v., 2 Str. 1015 103 Franco «. 8 , 43 Tex. 276 321 Frank, P. v., 1 Id. 200 172 ». 8., 27 Ala. 37 178 Franklin, P. v., 3 Johns. Cas. 399 104 ». 8., 69 Ga. 36 163 Franklin Falls, S. «., 49 N. N. 240 448 Frazee, In re, 03 Mich. 396 11 Frazier v. 8., 135 Ind. 38 186 Frederick, In re, 149 U. 8. 70 80 Freel, P. »., 48 Cal. 436 394 Freeland v. P , 16 111. 380 490 Freelove, C. «., 150 Mass. 66 97 Freeman ». P., 4 Den. 9 145, 151 8. v., 38 N. H. 426 45 8. «., 86 N. C. 688 73 8. »., 63 Vt. 496 314 U. 8. v., Fed. Cas. 15,162 893 Freeny v. Preeny, 80 Md. 406 198 Freer, P. v., 1 Caines (N. Y.), 518 843 Freeth, R v., R. & R. 127 365 FreleighB. 8., 8 Misso. 606 104 French v. French, 1 Hogan 138 337 V. P., 3 Park. Cr. R. 114 88 V. 8., 85 Wis. 400 149, 318 Frey v. C, 83 Kent. 190 16 Friederich ». P., 147 111. 310 399 Friedland, P. v., 3 N. Y. App. Div. 333 187 Friend ». Hammill, 34 Md. 398 442 Frishie v. U. 8., 157 U. 8. 160 94 Frisby v. 8., 36 Tex. App. 180 173 S. «., 19 La. Ann. 143 154 Frisch, S. v., 45 La. Ann. 1383 15 Frist, Reg. »., 8 Cox C. C. 18 454 Pritcher, 8. »., 54 Misso. 434 426 Frith, R. »., 33 How. St. Tr. 307 138 Reg. v., 11 Cox C. C. 334 103 Frolickstein ». Mayor, 40 Ala. 735 41 Fry, 8. v., 67 Iowa, 475 303 Fuller, C. «., 163 Mass. 499 103 P. v., 3 Park. Cr. R. 16 387 R. v., R. & R. 308 347, 379 ®. S., 1 Blackf. (Ind.) 63 115 t). 8., 30 Tex. App. 559 366 Table Of Cases 579 PAGE Fuller, 8. v., 39 Vt. 74 144 Fullerton, U. S. v., Fed. Cas. 15,176 159 Fulton, Eeg. . Wilmer, 71 Md. 361 313 Gale, U. S. !>., 109 U. S. 65 91,133,214 Gallagher, 0. ■»., 7 Mass. 345 447 C. a., 16 Gray, 340 431 Gallaud ». P., 55 Mich. 638 359 Gallears, Reg. »., 3 Cox C. C. 573 107 Gallio, P. «., 149 N. Y. 106 136 Galloway, P. v., 17 Wend. 540 378 Gandolpho ». S., 11 O. 8t. 114 188 Gannett, C. ® , 1 Allen, 7 309, 310, 311 Garbetl, Reg. v., 3 Cox C. C. 448 180 Garcia ». Terr., 1 N. Mex. 415 53 Gardner «. P., 106 111. 76 137 P. »., 3 Johns. 477 429 P. »., 144 N. Y. 119 50, 133, 304 8. v., 13 Tenn. 134 116 Garing, 8. v., 75 Me. 591 311 Garis, 8. «., 98 IST. C. 733 370 Garity, S. «., 46 N. H. 61 853 Garland, Exp., 4 Wall. 333 233, 334, 335 Garlitz v. 8., 71 Md. 393 150, 186 Garmanc. S., 66 lUisso. 196 156 Garnett v. Ferraud, 6 B. & C. 611 347 Garrity, 8. »., 46 N. H. 61 309 Garvey, 8. »., 35 La. Ann. 191 180 Gaston V. Commissioners, 3 Ind. 497 347 S. ■»., 73 N. C. 93 17 Gates V. P., 14 111. 443 179 P. »., 13 Wend. 311 339 Gaunt ®. 8., 50 N. J. L. 491 161 Gaylor, Eeg. «., 7 Cox C. C. 353 22 Gazzolo, C. ■!)., 123 Mass. 320 488 Gearhart v. Dixon, 1 Pa. St. 324 39 Geary ». P., 33 Mich. 320 306 Gebhardt v. 8hindle, 15 8. & R. 335 196, 198 Geer v. Connecticut, 161 U. S. 519 47 Gee Wo v. 8., 36 Neb. 341 99 Generous, The, 2 Dods. 333 13 Genner v. Sparks, 6 Mod. 173 ; 1 Salk. 79 73 PAGE Gentry v.S.,3 Yerg. (Tenn.) 451 349 Genz, 8. •».,57K.J. L.M59 119 Georgetown v. Alexandria, 13 Pet. 91 449 Gerkin, 8. «., 1 Ired. (N. C.) L. 131 447 Gerrish, S. «., 78 Me. 30 433 Gettinger o. S., 13 Neb. 308 428 Gibbons v. P., 33 111. 518 153 Reg. v., 9 Cox C. C. 105 464 Gibert, U. 8. «., Fed. Cas. 15,304 117, 139, 133, 135, 137 Gibney, C. v., 3 Allen, 150 490 R. v., Jebb, 15 178 Gibson, C. »., 2 Va. Cas. 70 309 V. Mississippi, 162 U. 8. 565 88,48 P. «., 58 Mich. 368 319 «. S., 79 Ga. 344 131 V. 8., 54 Md. 447 4, 99, 389 8. «.,10 Ired. (N.C.)L. 314 297 0. Tilton, 1 Bland (Md.), 353 465 Gideon, 8. b., 119 Misso. 94 134 Giddings, Reg. v., Car. & M. 634 100 Gilbert, C. »., 160 Mass. 157 42 R. »., 1 E. 583 107 8. »., 68 Vt. 188 416 Giles, C. «., 1 Gray, 466 130 Reg v., 10 Cox C. C. 44 366 Gill, R. »., R. & R. 431 101, 103 Reg. v., 6 Cox C. C. 295 359 V. 8., 39 W. Va. 749 330, 331 Gillespie, C. v , Addison (Pa.), 367 31 Gillham, E. »., 6 T. R. 365 167 Gilliam v. 8., 1 Head (Tenn.), 38 306 Gilman v. McClatchy, 111 Cal. 606 438 Gillson, P. «., 109 N. Y. 389 40 ■Gise V. C. 81 Pa. 8t. 438 313 Givens v. 8., 76 Md. 485 310 V. 8., 6 Tex. 344 168 8. «., 5 Ala. 747 878 Glackan v. C, 3 Mete. (Ky.) 333 365 Glass V. Bennet, 87 Tenn. 478 374 Glenn, 8. «., 54 Md. 573 37, 64, 67, « 80, 331, 366, 370 Glever v. Hynde, 1 Mod. 168 297 Gloster, Reg. «., 16 Cox C. C. 471 188 Glover v. C, 86 Va. 3€2 303 C. v., Ill Mass. 395 31, 319 8. »., 37 S. C. 603 304 Gloversrille v. Howard, 70 N. Y. 287 44 Goddard, C. »., 18 Mass. 455 135 C. v., 4 Allen, 812 371 Godfrey v. P., 5 Hun, 369 447 Reg. v., 7 Cox C. C. 392 109, 111 Gofl, 8. v., Wright (Ohio), 78 838- 580 Table Of Cases PAGE Goins V. S., 46 O. St. 457 24 Goldberg, P. v.', 39 Mich. 345 487 Golden Gate v. Superior Court, 65 Cal. 187 343 Golding, In re, 57 N. H. 146 81 Goldsmith, Reg. v., 12 Cox C. C. 479 214 Reg. B., 13 Cox C. C. 594 333 Goldstein e. P., 83 N. C. 331 7 P. ■»., 33 Cal. 433 137 R. «., R. & R. 473 105 Gomez, U. S. ■»., 1 Wall. 690 366 Gompertz, Reg. v., 9 Q. B. 834 335 Gonzales, P. v., 35 N. T. 49 161 S. v., 36 Tex. 197 93 Good, Reg. v., 1 C. & K. 185 7 Goodall, C. 9., 165 Mass. 588 39, 354 R. v., Sayer, 139 77 Goodenough, Reg. v., 6 Cox C. C. ' 306 431 Goodhall, R. v., R. & R. 461 365 Reg. v., 3 Cox C. C. 41 279 Goodin v. S., 16 O. St. 344 117 Gooding, U. S. v., 13 Wheat. 460 96, 98, 181 Goodman t. S., 14 Tex. App. 349 391 S. v., 65 Me. 30 313 Goodrich o. P., 19 N. T. 574 338 Goodrum v. S., 60 Ga. 509 303 Goodwin, C. »., 133 Mass. 19 38 V. S., 103 Ala. 87 187 Gordon, P. »., 70 Cal. 467 15 P. «., 99 Cal. 337 194 0. S., 53 Ala. 308 14 V. S., 93 Ga. 531 6 V. 8., 46 O. St. 607 44 S. «., 46 N. J. L. 433 377 U. S. v., Fed. Cas. 15,381 318 Gore's Case, 9 Rep. 81 9 Goree ». S., 71 Ala. 7 317 Gottschalk, P. v., 66 Hun, 614 418 Gould ». Crawford, 3 Pa. St. 89 198 Exp., 99 Cal. 360 49 Gove, S. v., 84 N. H. 510 98 Grace, S. v., 18 Minn. 398 87 Graeter v. S., 105 Ini. 371 309 Graham, Reg. D., 16 Cox C.C. 430 490 S. v., 3 Sneed (Tenn.), 134 316 Grainger v. Hill, i Bing. N. C. 313 ; 5 Scott, 561 66 Grant, C. «., 116 Mass. 17 404 V. P., 4 Park. Cr. R. 537 135 ®. S., 33 Flor. 291 218 V. Thompson, 18 Cox C. C. 100 337 Graves, Exp., 61 Ala. 381 318 P.B., 5Park. Cr. R. 134 113 ®. n. S., 150U. S. 118 157 Gray f. Davis, 37 Conn. 447 338 PAGK Gray, Exp., 77 Misso. 160 330 P. v., 61 Cal. 164 183 P. v., 5 Wend. 289 159 Reg. v., 9 Cox C. C. 417 110 Reg. V. 10 Cox C. C. 184 346, 348 Reg. »., 17C0X C. C.299 309 ®. 8., 63 Ala. 66 302 S. v., 55 Kans. 135 202 U. 8. e.. Fed. Cas. 15,351 358 Greathead, Reg. v., 14 Cox C. C. 108 368 Greathouse's Case, Fed. Cas. 5,741 80 Greathouse, U. S. v.. Fed. Cas. 15,354 501 Great North Rwy., Reg. v., 3 Cox C. C 70 8 Great Western, Reg. e., 3 Q. B. 333 346 Green, C. v., 13 Mass. 1 86 C. «., 136 Pa. St. 531 93 V. Mayor, 6 Ga. 1 43 e. Norvil, 3 Hill (8. C), 263 143 P. V. 58 Cal. 60 136 P. B., 1 Park. Cr. R. 11 180 Reg. ».,6CoxC. C. 396 416 0. 8., 68 Ala. 539 320 ». 8., 59 Md. 123 146 ». S., 88 Tenn. 634 137 S. »., 92 N. C. 779 185 Greenough, In re, 81 Vt. 279 367 Greenwood, Reg. v., 5 Cox C. C. 521 18, 349 Reg. v., 7 Cox C. C. 404 385 Greer «. S., 53 Ind. 420 174 8. v., 28 Minn. 426 177 Gregg V. Jamison, 55 Pa. 8t. 468 206 Greiner, U. S. ■»., Fed. Cas. 15,263 340, 244 Grenada ». Brown, 112 U. S. 261 35 Grey, 0. »., 2 Gray, 501 100 Gregg, Reg. »., 4 F. & F. 73 458 Griffin, Reg. v., 6 Cox C. C. 219 201 Reg. s., 11 Cox C. C. 403 298 Reg. v., 14 Cox C. C. 308 314, 815 S. v., 18 Vt. 198 350 Griffis, S. «., 8 Ired. (N. C.) L. 504 302 Griffiths, Reg. v., 7 Cox C. C. 501 377 Griggs ». 8., 58 Ala. 425 426 Grimm «. U. S., 156 U. S. 604 16 Grimmett v. S., 22 Tex. App. 36 181 Grisham v. S., 2 Yerg. (Tenn.) 589 453 Groenvelt's Case, 1 Ld. Raym. 313 319 Groesbeck, U. 8. o., 4 Utah, 487 324 Gross, C. v., 99 Mass. 438 180 S. »., 69 Me. 22 442 Guenther, P. v., 24 N. Y. 100 309 Table Of Cases 581 PAGE Guiteau, U. S. v., 1 Mackey (D. C), 498 57 Gulf Railway B.Hefley, 158 U.S. 98 46 Gumber, 8. v., 37 Wis. 298 34 Gusti, P. 0., 113 Cal. 177 99 Gut V. Minnesota, 9 Wall. 35 48 S. «., 13 Minn. 341 389 Hacker, In re, 73 Fed. R. 464 80 Hackett v. 0., 15 Pa. St. 95 110 Hackney v. S., 8 Ind. 494 448 V. Welsh, 107 Ind. 353 363 Hadden v. P., 35 N. Y. 373 406 Hadley, 0. v., 11 Mete. 66 13 Hadly, 8. »., 54 N. H. 334 384 Hagan, Reg. v., 13 Cox 0. 0. 357 185 Hagar v. 8., 71 Ga. 164 379 Haggerty, P. «., 46 Cal. 354 389 Haines, Reg. »., 2 C. & K. 368 " 10, 14, 385 S. »., 30 Me. 65 353 8. v., 33 8. C. 170 • 365 Halbrook «. 8., 34 Ark. 5U 313 Hale, 8. v., 44 Iowa, 196 122 Halford, 8. «., 104 N. C. 874 173 Hall V. C, 80 Va. 555 214 V. C, 89 Va. 171 183 C. «., 15 Mass. 240 106 D. Planner, 1 Lev. 196 397 V. Hall, 6 Gill & Johns. (Md.) 386 66, 73 B.Hennesly, Cro. Eliz. 486 ■ 35 In re, 10 Mich. 31 n 344 Reg. v., 3 Cox O. C. 345 437 V. 8., 31 Flor. 176 403 V. S., 65 Ga. 36 177 V. a., 3 Lea (Tenn.), 553 . 393 8. ■B.,-5 Harr. (Del.) 493 410 S. ».-, 7 Blackf. (Ind.) 35 464 8. ■»., 76 Iowa, 85 419 8. v., 49 Me. 413 464 8. 11., 93 N. C. 571 393 8. »., 114 N. C. 909 55 V. U. 8., 150 U. S. 76 157, 186 U. 8. v., 131 U. 8. 50 463 Hallett, P. v., 1 Color. 352 93 Halliday, Reg. v., 61 L. T. N. 8. 701 385 Hallinger v. Davis, 146 U. 8. 314 49 Halloran ». 8., 80 Ind. 5H6 53 Halloway, C. «., 44 Pa. St. 310 333 Hamilton, C. v., 15 Gray, 80 109 C. »., 130 Mass. 383 43, 46 C. v., 129 Mass. 479 52 11. P., 39 Mich. 173 206 P. v., 95 Mich. 210 307 !). S., 36Ind.280 183 U. S. «., 109 U. 8. 63 120 t'. Whitridge, 11 Md. 138 273 PAGE Hamlin v. S., 67 Md. 383 144, 152 8. V. 47 Conn. 95 131 Hammond, R. v., 3 Esp. 718 334 U. 8. v., Fed. Cas. 15,394 91 Hancock, Reg. »., 14 Cox C. C. 119 485 Hand, 8. »., 6 Ark. 165 101 U. 8. »., Fed. Cas. 15,397 294 Handeock ». Baker, 2 B. & P. 260 73 Handline ». S., 6 Tex. App. 847 180 Hands, Reg. «., 16 Cox C. C. 188 431 Handy «. Johnson, 5 Md. 450 303 V. S., 63 Misso. 307 310 8. »., 20 Me. 81 173 Haney, C. «., 127 Mass. 455 182 e. S., 34 Ark. 263 897 Hann!). 8., 13 Tex. App. 383 115 Hannah v. 8., 1 Tex. App. 578 433 Hannett, >s. v., 54 Vt. 83 390 Hannum, Resp. »., 1 Yeates, 71 363 Hanselman, P. B., 76 Gal. 460 15 Hardeman v. 8., 13 Tex. App. 307 417 Harden, 8. «., 1 Bailey (S. C), 3 310 Hardie, S. v., 47 Iowa, 647 387 Harding v. P., 10 Color. 387 309 Hardister, 8. »., 38 Ark. (»05 388 Hardy, C. «., 2 Mass. 303 117, 118 ». U. 8., 71 Fed. R. 158 85 Hare, C. v., 9 Gray, 110 177 V. 8., 4 How. (Miss.) 187 153 Harkins, C. v., 138 Mass. 79 368 Harley, C. v., 7 Mete. 463 371 C. v., 7 Mete. 506 173 R. «., 7 C. & P. 869 280 Harlow ». C, 11 Bush (Ky.), 610 309 Harmon, C. «., 3 Gray, 389 104 U. 8. «., 45 Fed. R. 414 10 U. S. v., 68 Fed. R. 473 51, 319, 333 Harneo. 8. 39Md. 553 301 Harnor, P. «., 149 N. Y. 195 38, 39, 41 Harp V. Osgood, 2 Hill, 216 86 Harrie, R. v., 6 C. & P. 105 135 Harrington, C. v., 3 Pick. 26 170, 310 C. »., 130 Mass. 35 HO V. Dennie, 13 Mass. 93 86 P. v., 43 Cal. 165 133 Harris v. Barber, 139 U. 8. 366 365 C. v., 131 Mass. 386 484 V. P., 138 111. 585 49, 141 V. P., 64 N. Y. 148 470 P. v., 136 N. Y. 433 185 Reg. 1)., 7 T. R. 302 31 Reg. v., 9 Cox C. C. 503 471 Reg. v., 11 Cox C. C. 659 453 V. 8., 31 Ark. 196 210 V. 8., 81 Ga. 758 418 V. S., 17 Tex. App. 177 437 8. «., 3 Harr. (Del.) 559 172 582 Table Of Cases PAGE Harris, S. »., 8 Jones (N-C.) L. 136 138 S. !<., 64 N. C. 137 173 S. «., 91 N. C. 656 89 Harrison «. P., 50 N. Y. 518 415 S. v., 30 La. Ann. 1339 447 ». U. S., 163 U. S. 140 145 Hart, Exp., 63 Fed. R. 349 360, 361, 363 C. v., 11 Gush. 130 96, 99 R. v., Cowp. 339 171 V. S., 14 Neb. 573 157 U. S. »., Fed. Cas. 15,316 453 Harten, S. »., 4 Harr. (Del.) 583 186 Hartman, P. v., 103 Cal. 342 131 Hartranft's A.pp., 85 Pa. St. 433 302 Hartwell, U. S. »., 6 Wall. 385 37, 359 Harvey «. C, 33 Gratt. (Va.) 941 412 Reg. «., 11 Cox 0. C. 663 98 S. u., 131 Misso. 339 174 Haryick ». S., 49 Ark. 514 304 Harwood v. C, 53 Pa. St. 434 112 V. P., 26 N. Y. 190 309, 311 V. Siphers, 70 Me. 464 68 Has, C. v., 133 Mass. 400 41 HaslDrouck, P. » , 11 Utah, 391 44 Haskell, S. »., 76 Me. 399 100 Haskins v. P., 16 N. Y. 344 107, 438 Hassall, Reg. v., 8 Cox C. C. 491 425 Hastings v. Rider, 99 Mass. 623 191 Hatfield, C. e., 117 Mass. 337 463 Hathaway v. Helmer, 35 Barb. 39 148 Haughton, R. b., 5 C. & P. 555 289 Haven, S. v., 59 Vt. 399 99 Hawker ». P., 75 N. Y. 487 113 Hawkins, C. »., 157 Mass. 551 10, 387 ». P., 106 111. 688 52 R. v., 3 C. & P. 392 20 Reg. v., 4 Cox C. C. 224 423 ». S., 13 Ga. 322 287 Hawley, P. «., Ill Cal. 78 153 Hayden, C. v., 163 Mass. 453 92 C. v., 150 Mass. 332 293 ». Tucker, 37 Misso. 214 273 Hayes v. Fischer, 102 U. S. 121 344 «. Missouri, 120 U. S. 68 38 V. P., 25 N. Y. 390 313 S. V. 34 Misso. 358 103 S. v., 78 Misso. 307 391 S. v., 105 Misso. 76 15 Haygoodi). S., 98 Ala. 61 376 Haynes, C. «., 3 Gray, 72 109 P. «., 11 Wend. 557 368 P. v., 14 Wend. 546 166 S. v., 66 Me. 307 290 Hays, C. v., 14 Gray, 162 358 D. P., 1 Hill, 351 483 ». S., 40 Md. 633 180, 183, 185, 283 Haywood.«. S., 41 Ark. 479 413 PAGE Hazell, Reg. v., 11 Cox C. C. 597 416 Hazlewood, C. v., 84 Kent. 681 413 Head ». Martin, 85 Kent. 480 73 Head-Money Cases, 112 U. S. 580 40 Healey, R. »., 1 Moody, 1 97 Heard v. Pierce, 8 Cush. 338 91 1). S., 81 Ala. 55 390 Hearing, U. S. v., 26 Fed. R. 744 468 Hearsey, C. v., 1 Mass. 138 215 Heathman, S. v., Wright (Ohio) 690 77 Hedderich v. S., 101 Ind. 564 35 Hedges, R. v., 1 Leach, 301 410 Hefflin, S. v., 8 Humph. (Tenn.) 84 288 Hefner, S. »., 84 N. C. 751 366 Hehu V. S., 67 Miss. 562 200 Height 11. Lucia, 36 Wis. 355 336 Heineman v. S., 23 Tex App. 44 99 S. »., 80 Wis. 253 44 Helfrich v. C 33 Pa. St. 68 384, 285 Helier, Reg. «., 18 Cox C. C. 367 433 Helle, S. «, 2 Hill (S. C), 290 462 Helm, S. v., 92 Iowa, 540 403 Helmore v. Smith, 56 L. J. Ch. D. 145 341 Hemmings, Reg. »., 4 F. & F. 50 438 Hemp, R. v., 5 C. & P. 468 188 Hems, R. «.,7 C. &P. 313 71 Hench, R. «., R. & R. 163 421 Henderson C, 8 Gratt. (Va.) 708 375 V. James, 58 O. St. 248 824 «. P., 117111.265 464 ». S., 70 Ala. 29 308 V. S., 2 Tex. App. 89 100 S. B., 90 Ind. 406 464 S. v., 35 La. Ann. 45 17 S. «., 1 Rich. (S. C.) 1.79 439 Hendrickson e. C, 85 Kent. ?81 385 Henn, 8. v., 39 Minn. 464 100 Hennersdorf ». S., 35 Tex. App. 597 495 Hennessey v. P., 31 How. Pr. 339 291 P. v., 15 Wend. 147 178 Hennington v. Georgia, 163 U. S. 299 41 Henrich, Exp., 10 Cox C. C. 626 353 In re. Fed. Cas. 6,369 353, 355 Henry, C. »., 118 Mass. 460 380 Hensler, Reg. »., 11 Cox C. C. 570 836 Henson v. S., 63 Md. 331 311 Henwood, Reg. v., 11 Cox C. C. 526 103 Herbert, U. S. e.. Fed. Cas. 15,354 96, 301 Herford, Reg. «., 3 El. & El. 115 846, 373 Herman, C. v., 4 Pa. St. 269 347 Table Op Cases 583 PAGE Herman,». P., 131 111. 594 112 Reg. v., 14 Cox C. C. 279 348 ®. 8., 73 Wis. 248 161 Hernandez ®. S., 20 Tex. App. 151 433 Herres, In re, 33 Fed. R. 165 254 Hersey, C. v., 2 Allen, 181 96 Hertley, 0. v., 109 Mass. 348 403 Herzinger v. S., 70 Md. 278 309, 310 Hesketh v. Braddock, 3 Burr. 1847 147 Hess, P. v., 8 N. Y. App. Div. 143 200 V. S., 5 Ohio, 5 104 U.S. «.,124 11.8.488 98 Hester v. C, 85 Pa. St. 139 139 S. ®., 48 Ark. 40 100 Hettick, P. »., 1 Wheeler Cr. Cas. 899 155 Hevice, Resp. »., 3 Yeates, 114 274 Hewecker, U. S. »., 164 U. 8. 46 59 Hewgill, Reg. v., Dearsly, 315 372 Hewitt vs. Charrier, 16 Pick. 353 44 V. Cory, 105 Mass. 445 207 B. Neuberger, 141 N. Y. 539 9 Hey ». C, 33 Gratt. (Va.) 946 156 Reg. v., 3 Cox C. C. 582 423 Heygood v. 8., 59 Ala. 49 428 Heymann v. Reg., 12 Cox C. C. 383 314, 331 Hickey, Exp., 4 Sm. & M. (Miss.) 751 233, 342 V. S., 23 Ind. 21 494 Hickory d. U. 8., 151 U. 8. 303 134, . 192 «. U. S., 160 U. S. 408 159,180, 197 Hicks' Case, Hob. 215 288 Hicks «. U. 8., 150 U. 8. 442 16 Hide, C. v., 94 Kent. 517 377 Higgins ». Minaghan, 78 Wis. 603 149 Reg. »., 2 E. 5 305 8. v., 13 R. I. 880 37 Hildebrand v. P., 56 ^L Y. 394 422 Hildreth v. P., 32 111. 36 433 Hill V. C, 2 Gratt. (Va.) 594 396 ». C, 88 Va. 688 156 C. »., 11 Cush. 137 199 C. v., 14 Mass. 307 118 R. II., 2 Ld. Raym. 1415 79 11. 8., 53 Ga. 472 325 V. 8., 57 Wis. 377 428 S. v., 4 Dev. & B. (N. C.) 491 394 S. v., 91 N. C. 561 8 8. v., 13 R. I. 814 129 S. v., 19 8. C. 485 439 8. »., 30 Wis. 416 53 U. 8. v., Fed. Cas. 15,364 89 PAGE Hillman, Reg. «., 9 Cox C. C. 385 380 Hilton, Reg. v., 8 Cox C. C. 87 111 Hilton's Case, 3 Lewin, 214 885 Hiltz, Exp., Ill U. 8. 776 266 Hinds, C. v., 101 Mass. 209 381 Hinkle v. 8., 127 Ind. 490 299 Hinton, 8. v., 6 Ala. 864 284 Hirsch, 8. e., 45 Misso. 429 169 Hiss V. 8., 34 Md. 556 443 ». 8., 5 Ohio, 1 110 Hix V. P., 157 111. 382 101 Hobbs V. 8., 133 Ind. 404 307 Hobcrg «. 8., 8 Minn. 362 154 Hoch i>. P., 3 Mich. 552 464 Hockett, S. »., 70 Iowa, 442 892 Hodgdon, P. v., 55 Cal. 73 183 Hodge, 8. «., 50 N. H. 510 433 Hodges, Exp., 87 Cal. 102 40 «. S., 8 Ala. 55 133 S.».,55Md. 127 35,110,486,487 Hodgkiss, Reg. «., 11 Cox C. C. 365 111, 465 Hodgson,R. »., 3 C. &P. 422 129 Reg. I'., 7 Cox C. C. 123 880 Hoffman, ^». e„ 58 Kans. 700 106 U. 8. D., 4 Wall. 161 373 Hogan, Reg. v., 1 Crawf. & D. C. C. 366 416 Hogg, R. «., 6 C. & P. 176 194 Holbrook, Reg. »., 13 Cox C. C. 650 436 Holconib V. Holcomb, 28 Conn. 177 196, 198 Holcombe «. 8., 69 Ala. 218 414 Holder, 8. »., 81 N. C. 537 413 ».U. 8.,150U. 8. 91 156,316, 229 Holley, 8. »., 1 Brev. (8. C.) 35 218 Hollingsberry, R. »., 4 B. & C. 329 166 Hollingsworth v. Duane, Fed. Cas. 6,616 342 ». 8., 58 Ark. 387 306 Hollis, Reg. »., 13 Cox C. C. 468 380 Reg. D., 15 Cox C. C. 345 419 Hollohan r. 8., 32 Md. 399 299, 301 Hollou, 8. v., 12 Lea (Tenn.), 482 487 Holloway, R. v., 1 C. & P. 138 106 R: v., 5 C. & P. 524 417, 426 Reg. •»., 9 C. & P. 43 91 Holly D. 8. 54 Ala. 238 410 Holme, 8. v., 54 Misso. 153 395 Holmes, C. «., 119 Mass. 195 100 C.V., 137 Mass. 434 303 C. «., 157 Mass. 333 185 Reg. »., 2 F. & F. 788 198 8. v., 28 Minn. 330 100 S. v., 48 N. H. 477 73 U. S. v., Fed. Cas. 15,383 121 584 Table Of Cases PAGE Holstine, C. v., 132 Pa. St. 357 128 Holt V. P., 13 Mich. 224 151 S. v., 90 N. C. 749 49 Holyday «. Oxenbridge,Cro. Car. 234 71 Holy Trinity Church v. V. S. 143 U. S. 457 27 Homer v. C, 106 Pa. St. 221 33 Honesty v. C, 81 Va. 283 394 Honig, S. v., 78 Misso. 249 485 Hood '0. S., 44 Ala. 81 465 «. S.,56Ind. 263 284 Hooker v. 6., 4 Ohio, 348 144 V. Smith, 19 Vt. 151 62 Hoover v. S., 59 Ala. 57 285 Hope «. C, 9 Mete. 174 173 C. v., 22 Pick. 1 323 Hopkins, C. o., 133 Mass. 881 309, 353 Exp., 17 Cox C. C. 444 78 R. v., Car. & M. 254 276 V. U. S., 4 App. D. C. 480 52, 384. 390 U. S. v., 26 Fed. R. 443 ' 348 Hopley, Reg. v.,2F. & P. 202 298 Hopt «. P., 104 U. 8. 681 11, 896 ». Utah, 110 U. S. 574 175 V. Utah, 120 U. S. 480 188 Horacek, S. ?).,41 Kans. 87 9 Home, S. v., 92 N. C. 805 294 Horner, R. v., Cald. 205 72, 80 R. »., 1 Leach, 270 420 II. S., 49 Md. 277 451 S. v., 48 Misso. 520 349 Horregan, C. v., 127 Mass. 450 45 Horton, C. «., 9 Pick. 206 128 P. v., 5 Hun, 516 448, 450 V. S., 60 Ala. 72 100 S. v., 63 N. C. 595 121 8. »., 100 N. 0. 443 161,807 House, S. v., 71 N. C. 518 18 House of Refuge v. Ryan, 87 O. St. 197 45 Houston e. S. 13 Ark. 66 433 V. S., 38 Ga. 165 323 S. v., 1 Houst. (Del.) Cr. 155 i22 8. v., 29 S. C. 108 7 Howard, C. v., 3 Mete. (Ky.) 407 326 Res. v., 11 Mod. 109 245 8. v., 88 N. C. 650 7 8. v., 32 Vt. 380 281 U. S. v., Fed. Cas. 15.403 166, 173 ». U. 8., 75Fed.R. 986 77,221, 224 Howell V. P., 5 Hun, 620 159 Hoyt V. P., 140 111. 588 203 S. »., 46 Conn. 830 185 8. «., 47 Conn. 518 157, 211 Hoxey, C. v., 16 Mass. 885 452 PAGE Hubbs, S. v., 58 Ind. 415 301 Hudson, C. v., 97 Mass. 565 185 Reg.®., 8 Cox C. C. 305 15 «. 8., 9 Tex. App. 151 428 S. v., 13 Mont. 112 56 S. v., 32 N. J. L. 365 366 U. S. ■»., 7 Cranch, 82 57 Quarter Sessions, S. v., 46 • N. J. L. 112 128 Hudspeth e. 8., 50 Ark. 534 206 Huff 0. Nims, 11 Neb. 263 192 Huffman v. Click, 77 N. C. 55 193 Huggins, R. ■B.,2 Str. 883; 2 Ld. Raym. 1574 384 i>. S., 41 Ala. 393 180, 486 Hughes, In re, Phill. (N. C.) L. 57 363 V. P., 5 Color. 486 343 V. P., 8 Color. 536 52 P. v., 91 Hun, 354 419 Reg. v., 14 Cox C. C. 284 71 V. S., 13 Ala. 458 23 8. v., 35 Kans. 626 314 8. v., 72 N. C. 25 489 Huling V. 8., 17 O. St. 583 323 Hull «. Head, 3 Edw. Ch. (N. Y.) 286 338 V. L'Bplatimer, 49 How. Pr. 500 341 V. 8., 120 Ind. 153 165 Hulse, Exp., 21 L. J. M. C. 21 242 Hultz, 8. v., 106 Misso. 41 61 Humes v. Taber, 1 R. I. 464 287 Hummel v. 8., 86 Ind. 481 139 B. 8., 17 O. St. 628 433 Huqamings, R. v., Comb. 374 30 Hunnicutt ». Peyton, 102 U. 8. 883 229 Hunscom v. Hunscom, 15 Mass. 184 199 Hunt, C. v., 4 Pick. 253 301 R. v., 3 Campb. 384 167 R. v., 3 B. & Aid. 566 334 R. 11., 1 Moody, 93 446 Reg. »., 8 Cox C. C. 177 387 ». S., 3 Tex. App. 116 452 8. v., 45 Iowa, 673 437 Hunter v. C, 79 Pa. 8t. 503 112, 167 «. 8., 14 Ind. App. 683 310 V. 8., 1 Head (Tenn.), 160 454 S. !)., 48La. Ann. 157 119 V. U. S., 1 Piuney (Wis.), 91 284 Huntington v. McMahon, 48 Conn. 174 341 Huntley, Reg. v., 8 Cox C. C. 260 101 S v., 3 Ired. (M. C.) L. 418 288 Hurds, S. »., 19 Neb. 816 109 Hurley v. S., 30 Tex. App. 388 413 Hurst, I', v., 62 Mich. 376 359 8. v., 11 W. Va. 54 370 Table Of Cases 585 PAGE Hurtado t. California, 110 U. S. 516 37, 64 Hussey, C. o., 157 Mass. 415 286 Hutcheson v. Peck, 5 Johns. 196 274 Hutchinson, C. «., 10 Mass. 325 197 V. S., 63 Ala. 3 336 V. 8., 38 Ind. 84 314 «. S., 19 Neb. 363 149 S. v., 60 Iowa, 478 163 S. v., 36 Me. 361 384 Hyde v. Cookson, 21 Barb. 93 435 ». Greuch, 63 Md. 577 340, 242, 243, 244, 345 Hyer, S. v., 89 N. J. L. 598 379 Igo, C. «., 158 Mass. 199 100 Imwood V. S., 43 O. St. 186 37 Ingersoll v. Skinner, 1 Den. 540 224 Ingham, Reg. v., 9 Cox C. C. 508 349, 250 Ingraham, C. v., 7 Gray, 46 306 i>. U. S., 155 U. S. 438 175 Ingram v. S., 27 Ala. 17 87 Inness B. Newman, 1894, 2 Q. B. 292 448 Instan, Reg. v., 17 Cox C. U. 602 9, 388 Ins. Co. r. Mosely, 8 Wall. 397 183 V. Ritchie, 5 Wall. 541 33 Interstate C)ommission «. Brinson, 154 U. S. 489 37, 336 Intoxicating Liquors, S. v. 85 Me. 304 305 Ion, Reg. v., 6 Cox C. C. 1 349 Iowa V. Illinois, 147 U. S. 1 56 Iron Mountain R. R. v. Johnson, 119 U. S. 608 373, 375 Irvine, Exp., 74 Fed. R. 954 81 Irving, P. !)., 95 N. Y. 541 204 Irwin V. S., 54 Ga. 39 178 Isaac V. S., 33 Md. 410 319 Izer V. S., 77 Md. 110 199, 463 Jacob «. Lawrence, 14 Cox C. C. 331 437 S. v.; 30 S. C. 131 488 Jacobs, C. v., 152 Mass. 276 9 In re, 98 N. Y. 98 40 P. 0., 35 Mich. 36 365 S. v., 94 N. C. 950 375 Jacobson, Reg. «., 14 Cox C. C. 522 454 Jackson ». C, 19 Gratt. (Va.) 656 184 C. v., 132 Mass. 16 188 In re. Fed. Cas. 7,136 263 In re, 96 U. S. 737 220 V. P., 9 Mich. Ill 365, 266 P. v., 3 Hill, 93 167 PAOB Jackson, R. »., 1 Leach, 267 99 V. S., 69 Ala. 349 480, 492, 493 ■B. S., 83 Ala. 76 177 V. S., 102 Ala. 76 209 V. S., 104 Ala. 1 135 V. S., 11 O. St. 104 410 V. S., 28 Tex. App. 870 161 V. S., 81 Wis. 137 194 S. v., 36 Fed. R. 358 260, 264 8. v., 12 La. Ann. 679 133, 184 S. v., 78 Me. 91 818 S. »., 99 Misso. 60 403 S. v., 118 Misso. 491 185 S. v., 7 S. C. 288 381, 335 S. »., 1 Lea (Tenn.), 680 326 S. ».,26 W. Va. 250 481 U. S. v., Fed. Cas. 15,453 453 Jacques v. C, 10 Gratt. (Va.) 690 148 Jaeger, S. v., 66 Misso. 173 181 Jaehne v. New York, 138 V. S. 189 48 James v. C, 13 S. &. R. 330 330 C. t,., 1 Pick. 375 106, 434 C. v., 99 Mass. 438 135 Reg. v., 3 Cox C. C. 227 169 Jamison, S. v., 88 Minn. 21 375 Jane v. C, 3 Mete. (Ky.) 80 179 K. S., 3 Misso. 45 101 Janson, Reg. «., 4 Cox C. C. 82 434 Janzen ®. P., 159 111. 440 188 Jarrard v. S., 116 Ind. 98 45 Jarvis, R. v., 1 Burr. 148 78 R. v., 3 Moody & R. 40 22 Reg. «., 3 F. & F. 108 828 Jassino, P. v., 100 Mich. 585 187 Jay, S. e.,84N. J. L. 368 105 Jaynes, S. »., 78 N. C. 504 323 Jefterds b. P., 5 Park. Cr. R. 518 177 Jeflerson v. S., 53 Miss. 767 141, 148 S. »., 66 N. C. 309 133 Jeffries ». C, 84 Kent. 287 397 C. v., 7 Allen, 548 111, 168 Jellico Coal Co. ■». C, 96 Kent. 378 18 Jenkins, Exp., Fed. Cas. 7,259 (1st case) 80 Jenkins «. Davis, 10 Q. B. 314 196 R. »., R. & R. 492 179 Reg. «., llCoxC. C.250 185 V. S., 53 Ga. 88 291 S. o.,32Kans. 477 144 V. Whyte, 63 Md. 437 45 Jenks V. S., 17 Wis. 665 454 Jennegan, U. S. v., Fed. Cas. 15,474 312 Jenness, P. ■»., 5 Mich. 305 404 Jennings ®. C, 105 Mass. 586 138, 168 C. v., 121 Mass. 47 99, 314 Reg. v., 1 Cox C. C. 115 99 Reg. »., 7 Cox C. C. 397 165 39 586 Table Of Cases PAGE' Jennison, Reg. «., 9 Cox 0. C. 158 367- Jerome, P. o., 1 Mich. 142 437 Jessop, Reg. v., 7 Cox C. C. 399 369 Reg. v., 16 Cox C. C. 204 19 Jett V. C, 18 Gratt. (Va.) 933 348 Jewell V. C, 32 Pa. St. 94 133 Jewison v. Dyson, 9 M. . 8., 51 Ind. Ill 871 «. S., llMd. 535 39 0. S., 13 Md. 333 34 Kelley, C. v., 10 Cush. 69 170 Kellogg, C. v., 7 Cush. 478 178 V. S., 48 Miss. 57 86 V. S., 36 O. M. 15 418 Kelly, C. v., 10 Cush. 69 169 In re, 71 Fed. R. 545 58 V. P., 6 Hun, 509 418 P. v., 35 Hun, 395 174, 401 P. »., 94 N. Y. 526 157 V. Parmalee, 15 Conn. 360 67 R. v., R. & R. 421 80 Reg. v., 3 C. & K. 379 485 Reg. »., 3 Cox C. C. 171 19 ®. 8., 75 Ala. 31 196, 197 Kelsoe, S. «., 11 Mo. App. 91 176 Kemmler, In re, 186 U. S. 436 58, 322 Kemp, 8. v., 87 N. C 588 386 Kemper ». C, 85 Kent. 319 52 Kempf, S. v., 26 Misso. 429 489 Kendall, C. ■»., 118 Mass. 210 302 V. Kingsley, 120 Mass#94 38 Kennedy v. P., 39 N. Y. 345 101 V. 8., 31 Flor. 428 108 8. v., 7 Blackf. (Ind ) 233 167 S. v., 16 Mo. App. 387 830 8. «., 76 N. C. 251 385 Kenney, C. v., 130 Mass. 387 315 V. S., 5 R. I. 885 301 Kenny, Reg. v., 13 Cox C. C. 897 486 Kenrick, Reg. «., 5 Q. B. 49 331, 885 Kent, C. v., 6 Mete. 331 850 V. 8., 84 Ga. 438 320 Kentucky v. Dennison, 34 How. 66 360, 368 Keppele v. Williams, 1 Ball. 29 341 Kepper, C. e., 114 Mass. 378 137 Ker ». Illinois, 119 U. 8. 346 253 Kerr v. P., 42 111. 807 467 Kerrains v. P., 60 N. Y. 331 174 PAGE Kerrigan, P. «., 78 Cal. 333 131 Kessler, 8. v., 78 N. C. 469 404 Kew, Reg. v., 13 Cox C. C. 355 15 Key B. C, 3 Bibb (Ky.), 495 345 Keyes v. 8., 132 Ind. 537 93 8. v., 8 Vt., 57 458 Keyn, Reg. «., 13 Cox C. C. 403 56 Keyser «. Pickwell, 4 App. D. C. 198 193 Kidd ». Pearson, 138 U. 8. 1 44 Kidder, C. »., 107 Mass. 188 451, 454 Kiefortli «. S., 88 Wis. 183 27 Kilburn v. Thompson, 103 U. 8. 168 886 Kilcrease, 8. «., 6 8. C. 444 91 Kilham, Reg. «,, 11 Cox C. C. 561 370 lOlkelly V. 8., 43 Wis. 604 301 Killam, In re, 55 Kans. 700 70 Killman v. 8., 3 Tex. App. 223 809 Kilpatrick, U. 8. d., 16 Fed. R. 765 121 Kimball, C. «., 31 Pick. 373 39 8. »., 50 Me. 409 380 Kincaid v. C, 139 111. 218 106 Kincaid's App., 66 Pa. 8t. 411 43 King, C. v., 9 Cush. 284 421 Exp., Ambler, 333 344 v. P., 83 N. Y. 587 309 R. »., R. & R. 333 30 8. »., 98 N. C. 648 410 U. 8. v., Fed. Cas. 15,535 8Sl U. 8. v., 9 Mackey (D. C), 404 56 Kingsbury's Case, 106 Mass. 333 363 Kingsbury, S. v., 58 Me. 338 306 King's Langley, R. v., 1 8tr. 631 6 Kingsley, P. »., 3 Cow. 533 104 8. v., 108 Misso. 135 142 Kinnersley, R. »., 1 8tr. 193 335 Kinney, C. v., 2 Va. Cas. 139 490 V. S., 88 Ala. 334 453 Kinsey, R. v., 7 C. &. P. 447 74 Kipps, Reg. »., 4 Cox C. C. 167 376 Kirby«. 8., 63 Ala. 51 370 ». 8., 89 Ala. 63 188 V. 8., 57 JSt. J. L. 330 363 Kirk 1). C, 9 Leigh (Va.), 637 351 Kiser v. 8., 13 Tex. App. 201 85 Kissam v. Forrest, 25 Wend. 651 304 Kit ». 8., 11 Humph. (Tenn.) 167 494 Kittelle,8. ».,110N. C. 560 9 Kitter ». 8., 35 111. 43 135 Kizer v. 8., 13 Lea (Tenn.), 564 157 Klein v. Livingston Club, 177 Pa. St. 224 373 Kline, 8. v., 54 Iowa, 183 302 Klingen d. S. , 50 Ind. 557 181 Klinger v. Missouri, 13 Wall. 257 146 Klintock, U. S. »., 5 Wheat. 144 56 Knapp, C. v., 9 Pick. 496 19 C. »., 10 Pick. 477 24 588 Table Of Oases PAGE Knapp, P. 0., 26 Mich. 113 20 P. »., Edm. Sel. Cas. 177 184 S. v., 45 N. H. 148 136 0. Thomas, 39 O. St. 337 233 Kneeland, 0. v., 20 Pick. 206 41 Kneffler v. C, 94 Kent. 359 353 Knickerbocker, P. «., 1 Park. Or. R. 302 185 Knight's Case, 3 Mod. 117 288 Knight V. House, 29 Md. 194 206 Knode v. Williamson, 17 Wall. 586 205 Knoll V. S., 35 Wis. 249 189 Knote ». U. S., 95 U. S. 149 235 Knott ». P., 83 111. 532 338 Knotts, 8. v., 2 Speers (S. C), 692 450 Knowles v. S., 3 Day (Conn.), 103 453 Knox, S. »., Phill (N. C.) L. 312 465 Koch, S. v., 4 Harr. (Del.) 570 108 Koerner, S. v., 51 Misso. 174 215 Kohl V. Lehlbaek, 160 V. S. 293 59, 217 Kowalsky, In re, 73 Cal. 130 438 Kraft, P. v., 91 Hun, 474 185 Kramer v. P., 87 Pa. St. 399 393 Krans, Exp., 1 B. & C. 358 73 Kring v. Missouri, 107 U. S. 231 47, 137 S. «., 64 Misso. 591 133 Kroeger, 8. v., 47 Misso. 553 377 Krber v. P„ 78 111. 394 149 Krummer, P. o., 4 Park. Cr. R. 317 378 Kuhuke, 8. v., 26 Kans. 405 169 Kurtz V. S., 22 Flor. 36 363, 264 Labadie, P. »., 66 Mich. 702 144, 157 Reg. »., 32 U. C. Q. B. 429 290 La Bore, 8. v., 36 Vt. 765 314 Lacefield v. 8., 34 Ark. 277 299 Lacher, U. 8. »., 134 U. 8. 624 37 La Coste, U. 8. v., Ted. Cas. 15,548 103 Ladd V. S., 17 Flor. 215 146 Lafayette v. New Albany, 13 Ind. 90 146 La Ponta, Exp., 3 Rob. (La.) 495 84 La Fontaine ». Southern Under- writers, 83 N. C. 132 339 Laird, P. v., 102 Mich. 135 187, 303 e. 8., 61 Md. 309 89 Lake v. Butler, 5 E. & B. 92 38 P. v., 110 N. Y. 61 404 Lakeman, C. v., 5 Gray, 82 487 Lamb, C. v., 1 Gray, 493 293 V. P., 96 HI. 73 30 V. 8., 66 Md. 385 186, 382 Lambert v. P., 9 Cow. 578 306 8. «., 9 Nev. 331 428 Lambeth, S. v., 80 K. C. 393 371 PAGE Lambreth, In re, 55 Kans. 147 73 L'Amoreaux v. Crosby, 2 Paige, 433 341 Lancaster v. Mishler, 100 Pa. St. 624 246 Reg. v., 16 Cox C. C. 737 318 V. 8., 53 Ala. 398 453 U. 8. v., 44 Fed. R. 896 331 Landin ». S., 10 Tex. App. 63 426 Landsberg, U. 8. v., 23 Fed. R. 585 464 Lane v. C, 59 Pa. St. 371 402 C. v., 113 Mass. 458 313, 404 V. Cotton, 13 Mod. 472 27 In re, 135 U. S. 443 94 V. P., 10 111. 305 436 Reg. v., 6 Mod. 138 ' 114 8. »., 4Ired. (N. C.)L. 113 104 Lang, C. v., 10 Gray, 11 313 Langdale v. P., 100 111. 368 104, 173 Lange, Exp., 18 Wall. 163 81, 366 Langford, Reg. »., Car. & M. 603 13 a. 8., 33 Flor. 233 383 V. S., 8 Tex. 115 414 Langley, S. ■»., 34 N. H. 529 470 Langtree, P. »., 64 Cal. 356 196 Lanier, S. «., 71 N. C. 388 288 Lankford v. Somerset, 73 Md. 105 26 Lannan, C. »., 1 Allen, 590 96 C. v., 153 Mass. 287 422 Lapage, 8. «., 57 N. H. 245 187 Lapeyre v. U. 8., 17 Wall. 191 36 Lapier, R. v., 1 Leach, 330 415 Larner, Reg. «., 14 Cox C. C. 497 368 Larson ®. Furlong, 63 Wis. 323 450 Lascelles ®. Georgia, 148 U. 8. 537 263, 364 Lathrop, 8. v., 15 Vt. 279 371 Laubach v. 8., 12 Tex. App. 583 157 Laugher, Reg. *., 3 Cox C.C. 135 179 Laurens, The, Fed. Cas. 8,132 339, 343 Lavender f. 8., 60 Ala. 60 106 Lavery, C. »., 101 Mass. 207 173 Law B. C, 75 Va. 885 6 Lawless, C. v. 101 Mass. 32 101 Lawley, R. v., 2 Str. 904 109 Lawrence v. C, 3 Tex. App. 479 470 ». C, 30 Gratt. (Va.) 845 14 Reg. «., 4 Cox C. C. 438 15 8. 0., 95 N. C. 659 404 S. »., 97 N. C. 493 46 U. S. v., Fed. Cas. 15,573 131 Lawson «. 8., 30 Ala. 65 386 Lawton v. Commissioners, 3 Caines (N. Y.), 178 365 V. Steele, 152 U. 8. 133 40, 41, 42 Lawyer ». Fritcher, 54 Hun, 586 276 Lazier v. C, 10 Gratt. (Va.) 708 131 Table Of Cases 589 Lea, S. B , 3 Ala. 602 Leach, 0. v., 156 Mass. 99 PAGE 464.468 182, 283, OQQ League b. 8., 36 Md. 257 51, 155 Learnard, S. v., 47 Me. 426 97 S. »., 41 Vt. 585 19 Leaiy, In re. Fed. Oas. 8,162 264 Leathers, S. v., 31 Ark. 44 373 Leavitt, S. v., 3 N. H. 44 367 Le Blanch, S. v., 31 N. J. L. 82 429 Le Brun v. Le Brun, 55 Md. 496 315 Leckie, U. S. v.. Fed. Oas. 15,583 133 Lee, C. »., 149 Mass. 179 369 V. Peter, 6 Gill & Johns. (Md.) 447 153 Reg. v., 9 Cox 0. C. 304 365 Reg. «., 9 Cox C. C. 460 366 ». S., 51 Miss. 566 132 S. v., 27 Minn. 407 187, 188 8. «., 39 Minn. 445 52 8. «., 13 Mont. 248 194 S. » , 80 N. 0. 483 156 8. v., 87 Tenn. 114 92 U. 8. «., 4 Mackey (D. C), 489 146 Leech, C. v., 34 Pa. 8t. 55 34 Lee Kong, P. »., 95 Cal. 666 304 Lees 0. U. 8., 150 U. S. 476 49, 64, 229 Lee Yune Chong, P. »., 94 Cal. 379 213 Lefevre «. 8., 50 O. 8t. 584 177 Lefroy, Reg. v., L. R. 8 Q. B. 134 336 Legingham, R. ■»., 1 Mod. 71 30 Lehman, U. 8. v., 39 Fed R, 768 111 Leigh ». Cole, 6 Cox C C. 329 74 R. «., 2 East P. C. 694 421 Leighton, 8. «., 56 Iowa, 595 494 Leonard, C. »., 140 Mass. 473 187, 486 P. v., 11 Johns. 504 373 V. Rodda, 5 App. D. C. 356 73 S. »., 22 Misso. 449 447 Leschi v. Terr., 1 Wash. T. N. 8. 13 402 Lesley Reg. »., 8 Cox C. 0. 269 363 Lester, 0. v., 2 Va. Cas. 198 3 V. P., 150 111. 408 344 V. 8., 33 Ark. 737 177 i>. S., 9 Misso. 666 103, 397 Levi, 8. c, 4 Tex. 563 371 Levire, 8. ■»., 85 Cal. 39 162 Levison v. -8., 54 Ala. 520 403 Levy v. Edwards, 1 C. & P. 40 63 o. 8., 79 Ala. 359 232, 429 B. S., 38 Tex. App. 203 161,206 S. 1)., 24 Minn. 362 82 Lewin v. Uzuber, 65 Md. 451 66 Lewis, C. «., 1 Mete. 151 7, 369 C. «., Addison (Pa.), 379 387 C. «., 4 Leigh (Va.), 664 443 PAGE Lewis, In re, 39 How. Pr. 155 304 ». P., 37 Mich. 518 378 ». 8., 30 Ala. 54 481 1). S., 16 Conn. 33 333 f. 8., 73 Ga. 164 393 V. 8., lie Ind. 59 166 8. 8., 3 8. & R. 351 329 8. «., 134 Ind. 250 42 8. v., 10 Kans. 157 464 U. S.,».,146U. S. 370 131,143 Leyman ». Latimer, 13 Cox C. C. 632 ; 14 lb. 51 335 fjeyshon, P. v., 108 Cal. 440 99 Liddell, Exp., 93 Cal. 633 45 Light, Reg. «., 7 Cox C. C. 389 69 Lightner, P. »., 49 Cal. 226 309 Lincoln, C. v., 11 Allen, 333 366, 370 8. ■!).,49N. H. 464 113 V. Shaw, 17 Mass. 410 862 Lindenthall, 8. »., 5 Rich, (S. C.) L. 237 419 Lindsey, 8. v., 19 Nev. 47 403 Ling, Reg. v., 12 Cox G. C. 451 368 Lingerfelt, 8. «., 109 N. C. 775 84, 87 Lining v. Bentham, 3 Bay (8. C), 1 336 Lim V. C, 96 Pa. 8t. 385 463 C. «., 158 Pa. St. 33 316, 317 Liscomh, P. «j., 60 N. Y. 559 370 Lissner v. S., 84 Ga. 669 373 IT. 8.»., 13 Fed. R. 840 384 Lister, Reg. v., 7 Cox C. 0. 342 454 Little V. C, 35 Gratt. (Va.) 931 199 ». P., 157 111. 153 169 Reg. v., 10 Cox C. C. 559 222 S. »., 1 N. H. 257 53 Livingston v. Kiersted, 10 Johns. 362 198 V. 8., 3 Tex. App. 74 335 Livingstone «. C, 14 Gratt. (Va.) 592 384 Lloyd, C. v., 141 Pa. 8t. 38 307 Locke's App., 73 Pa. St. 491 44 Locke, Reg. »., 13 Cox C. C. 244 15, 295 Locker, R. »., 5 Bsp., 107 331 Lockhart, 8. »., 24 Ga. 420 333 Lockwood, C. v., 109 Mass. 333 136, 318 Logan 8. U.S., 144 13. S. 363 133,134, 150, 181, 196, 199, 334 Lohman, P.»., 3Barb. 216 109,111 S. »., 3 Hill (8. C), 67 214 Loney, In re, 134 U. 8. 372 463 Long 0. P., 135 111.435 116 P. »., 50 Mich. 249 414 ». S.,74Md. 565 40 V. 8., 34 Tex. 566 209 8. v., 76 N. C. 254 443 590 Table Of Cases PAGE Long, S. v., 94 N. C. 896 449 Longbottom, Reg. v., 3 Cox C. C. 439 15 Longfellow o. S., 10 Neb. 105 309 Longley. S. v., 10 Ind. 483 113 Look ®. Dean, 108 Mass. 116 71 Loomis V. Edgerton, 19 Wend. 419 1 P. v., 4 Den. 880 411, 413 Looneyo. S., 43 Ark. 389 33 Lopez V. 8., 30 Tex. 780 430 S. v., 15 Key. 407 136 Lord V. S., 16 N. H. 335 353 V. Veazie, 8 How. 351 341 Lott V. Sweet, 33 Mich. 308 71, 397 Loughbridge, P. «., 1 Neb. 11 439 Loughery, U. S. v., Fed. Cas. 15,631 143 Louisville v. Portsmouth, 140 U. S. 469 36, 38 Louisville R. R., C. v., 80 Kent. 391 496 V. Mask. 64 Miss. 738 148 D. S., 3 Head (Tenn ), 533 448 Love v. P., 160 ni. 501 15 Lovejoy o. U. 8., 128 U. 8. 171 143 Lovell, Reg. «., 8 Q. B. D. 185 416 Lovett, C. »., 4 Pa. L. J. Rep. 5 453 Low, C. »., Thach. Cr. Cas. 477 416 B. P., 3 Park. Cr. R. 37 413, 432 Lowder ». 8 , 63 Ala. 143 331 Lowe o. Blake, 3 Dessaus. (8. C.) 369 345 D. Kansas, 163 U. 8. 81 37, 333 Reg. »., 4 Cox C. C. 449 388 8. v., 93 Misso. 547 398 Lowenstein v. P., 54 Barb. 399 309, 310 Lowery v. 8., 98 Ala. 45 194 Lowrey v. C., 158 Mass. 18 330 Loyd V. 8., 42 Ga. 331 33 Lubin, P. ■»., 99 Mich. 89, n. 118 Lucas, C. »., 2 Allen, 170 19 Luck ». Heisler, 87 Wis. 644 66 Luckett, C. »., 14 Phila. 363 55 Ludwig, In re, 33 Fed. R. 774 255 Lundy, 8. v., 60 Ga. 143 416 Luscomb, C. v., 130 Mass. 43 165, 173 Lutz V. C, 39 Pa. 8t 441 398 Lyle, 8. »., 41 Tex. 172 146 Lyman ». P., 7 Brawdw. (111.) 345 93 Lymburn, 8. v., 1 Brev. (8. C.) 397 18 Lymus, 8. v., 36 O. 8t. 400 413 Lynch, P. i>., 101 Cal. 339 396 S v., 88 Me. 195 98 Lynes, C. »., 143 Mass. 577 198 Lyon, S. »., 13 Conn. 487 393 Lyons v. Woods, 153 U. 8. 649 36 McAdams v. S., 35 Ark. 405 393 McAllister, S. v., 36 Me. 374 95 PAGE McAloon, 8. «., 40 Me. 133 487 McAnulty, Exp., T. U. P. Charlt. (Ga.) 310 248 8. »., 26 Kans. 533 107 McAtee, C. v., 8 Dana (Ky.), 38 18 McBean v. 8., 83 Wis. 206 300 McBride v. C, 13 Bush (Ky.), 337 439 V. 8., 7 Ark. 374 168 V. 8., 10 Humph. (Tenn.) 615 103 McCall, 8. »., 4 Ala. 643 321 McCann v. C, 14 Gratt. (Va.) 570 52 ®. 8., 9 8m. & M. (Miss.) 465 153 McCarthy, C. •»., 119 Mass. 354 188 C, «., 163 Mass. 468 133 McCarty, Resp. »., 3 Dall. 86 13 V. 8., 1 Wash. 377 106 8. v., 17 R. I. 370 115 McChord, C. »., 2 Dana (Ky.), 343 118 McClanahan, C. »., 2 Mete. (Ky.) 8 326 McClear, 8. »., 11 Nev. 39 48 McClellan ». S., 53 Ala. 640 287 McClerkin o. 8., 20 Flor. 87il 309 McCloskey ». P., 5 Park. Cr. R. 308 144 McClure, P. «., 88 Hun, 505 188 8. 11., Phili: (N. C.) 491 73 McClusky, C. »., 151 Mass. 488 138 McConkle, S. v., 16 W. Va. 736 126 McCool V. S., 23 Ind. 127 223 McCorda. P.,46N. Y. 470 15 P. v., 76 Mich. 300 15 McCorkle, Exp., 39 Tex. App. 210 269 V. S., 14 Ind. 39 209 McCormack, C. v., 136 Mass. 258 122, 129 V. 8., 8 Or. 236 438 McCormick, S. »., 37 Iowa, 402 398 8. »., 84 Me. 566 211 McCourt V. P., 64 N. Y. 583 426 McCowan v. 8., 58 Ark. 17 108 McCoy ®. 8., 9 Houst. (Del.) 432 73 ». S., 78 Ga. 490 159 McCrary k. P., 45 N. Y. 153 101 McCulloch, C. v., 15 Mass. 237 306 McCune, 8. B.,5 R. L 60 498 McCurley v. 8tockbridge, 62 Md. 422 241 McDaniel, 8. v., Winst. (N. C.) pt. I, 349 333 McDonald, Exp., 45 Md. 98 81 P. v., 9 Mich. 150 168, 483 Reg. v., 15 Cox C. C. 757 7 e. 8., 45Md. 90 51,219 8. «., 65 Me. 466 175 U. 8. v., Fed. Cas. 15,667 459 McDonnell, P. «., 80 Cal. 285 348 Table Op Cases 591 PAGE McDowell, S. v., Dudley (S. C), 346 310 McDuffle, S. «., 34 N. H. 593 413 McDufly, 0. »., 126 Mass. 467 370 McElroy v. S., 14 Tex. App. 235 398 V. U. S., 164 U. S. 76 135 McElvaine, P. a., 125 N. Y. 596 119 McEvoy, S. v., 73 Iowa, 557 167 McFadden «. C, 23 Pa. St. 12 146, 155 V. Murdoch, Ir. R. 1 C. L. 211 189 McFarland v. S., 68 Wis. 400 53 McGahey, C. v., 11 Gray, 194 71, 72 S. «., 3 N. Dak. 293 156 McGary v. P., 45 N. T. 153 172 McGee v. S., 4 Tex. App. 625 172 McGehee v. S., 26 Ala. 154 101 McGinnis v. S., 24 Ind. 500 432 McGinty, P. v., 34 Hun, 62 493 McGowau, C. i>., 2 Pars. (Pa.) 341 335 P. »., 17 Wend. 386 494 S. v., 2 Conn. 345 290 McGratt, C. »., 140 Mass. 296 315 ». Merwin, 113 Mass. 467 495 Reg. «., 11 Cox 0. C. 347 416 «. S., 25 Neb. 780 320 McGraw, S. o., 35 S. 0. 283 156 McGregor v. S., 16 Ind. 9 100, 349 8. »., 41 N. H. 407 309, 310 McGuire, P. »., 135 N. Y. 639 185 V. S., 37 Miss. 369 148 McGungil, P. 1}., 41 Cal. 429 50 McHale, C. v., 97 Pa. St. 897 1 McHugh, G. »., 147 Mass. 401 180 i>. S„ 31 Ala. 317 182 Mclntyre v. S., 19 Minn. 93 280 S. ■»., 3 Ired. (N. 0.) L. 171 458 McKane, P. »., 143 N. Y. 455 17, 181 B. S., 11 Ind. 195 481 McKay, P. v., 18 Johns. 212 143 Reg. v., 3 Crawf. & D. 305 74 McKee v. S., Ill Ind. 378 831, 383 McKenna, C. v., 135 Mass. 397 139 McKenny, 0. v., 9 Gray, 114 173 McKenzie «. S., 6Eng. (Ark.) 594 365 S. B., 43 Me. 393 379 McKinney, P. v., 10 Mich. 54 139 V. 8., 25 Wis. 378 100 McKnight, 8. v., Ill N. C. 690 321 McLaughlin, C. e., 5 Allen, 507 396 C. B., 13 Gush. 615 100, 112 C. 11., 105 Mass. 460 165 C. ■»., 123 Mass. 449 468 V. Mencke, 80 Md. 83 204 P. v., 44 Cal. 485 181 McLean v. Humphreys, 104 111. 378 45 P. v., 68 Mich. 480 68 PAGE McLeod, P. v., 1 Hill, 377; 35 Wend. 483 55, 80 McMahon v. Greene, 34 Vt. 69 62 P. 11., 15 N. Y. 384 180 V. S., 16 Tex. App. 357 803 McManus, 8. v., 89 N. C. 555 335 McMillan v. S., 68 Md. 307 335 McMinn, S. v., 83 N. C. 668 33 McNab, 8. »., 20 N. H. 160 84 McNally, S. v., 55 Md. 559 112, 120 McNamara, P. « , 94 Cal. 509 168 McNeil, S. v., 93 N. C. 553 135 McNeill, Keg. i)., 1 Crawf. & D. C. C. 391 447 S. «., 75 N. C. 15 220 MoNinch, K. »., 90 N C. 695 70 McPherson, S. v., 70 N. C. 239 321 McQuillan v. 8., 8 8m. & M. (Miss.) 587 126 McQuoid V. P., 8 111. 76 232 McRae, 8. i;.. Ill N. C. 665 108 McReynolds, P. «., 103 Cal. 308 86 McWhirt's Case, 3 Gratt. (Va.) 594 395 Mace, S. v., 5 Aid. 337 35, 64 Macino v. P., 13 Hun, 127 419 Mackalley's Case, il Rep. 65 69, 89 Mackini). P., 115 111. 312 462 Macklin, Heg. «., 5 Cox C. C. 216 223 Macloon, C. «., 101 .Mass. 1 384, 385 Macomber, C. «., 3 Mass. 254 3 Macpherson, Reg. «., 11 Cox C. C. 604 111 185 326 195 176 311 71 84 35 Madan, C. v., 103 Mass. 1 Maddox, 8. v., 74 Ind. 105 Magoon, S. v., 50 Vt. 333 Maguire i). 8., 47 Md. 485 Mahalovitch v. S., 54 Ga. 317 Mahon v. Justice, 137 U. S. 700 S. «., 3Harr. (Del.) 568 Mahoney, P. v., 13 Mich. 481 Reg.'a, 6Cox C. C. 487 379 Main, 8. «., 31 Conn. 573 138,139,309 i Maitremme, S. ■»., 14 La. Ann. 830 181 ' Majone, P. v., 91 N. Y. 311 3^6 Makely, C. v., 131 Mass. 431 290 Makin v. Atty.-Gen., 17 Cox C. C. 704 188 178 124 52 78 239 272 149 482 Male, Reg. v , 17 Cox C. C. 689 Malia, S. v., 79 Me. 540 Mailing, 8. »., 11 Iowa, 339 Mallinson, R. v., 3 Burr. 679 Reg «., 16 Q. B. 367 Malone, Exp., 30 Ala. 49 Maloney, S. v., 118 Misso. 113 Manchego, P. v., 80 Cal. 306 Manchester, In re, 5 Cal. 337 263, 363 592 Table Of Cases 340 B. Massachusetts, 139 U. S. 56 303 154 42 366 Maner, S. «., 3 Hill (8. C), 453 Manfredi, 0. v., 163 Pa. St. 144 Mangan v. S., 76 Ala. 60 Mangum, 8. v., 116 N. C. 998 Manhattan Ins. Co. «. Francisco, 17 Wall. 673 159 Mankei). P., 17Hun,410. 189 Manktelow, Reg. v., 6 Cox C. C. 143 375 Manley, Reg. v., 1 Cox C. C. 104 19 Mann, C. «., 1 Va. Cas. 308 443 P. v., 113 Cal. 76 303 i>. 8., 33 Flor. 610 189 Mannassau, P. v., 60 Mich. 15 181 Mansfield, Reg. v., Car. & M. 140 106 8. 1)., 41 Misso. 470 141 Manson, C. »., 2 Ashm. (Pa.) 31 331 March v. Harrell, 1 Jones (N. C.) L. 339 307 Marchant, U. S. v., 13 Wheat. 480 135, 143, 144 Marcus, Reg. v., 3 C. & K. 356 380 B. 8., 98 Ala. 33 33 Marigold, U. S. v., 9 How. 560 347, 348 Marion v. 8., 16 Net). 349 47 Markham u. U. 8., 160 U. 8. 319 466, 467 Markins, 8. B.,95Ind. 464 404 Marks v. Beyfus, 17 Cox C. C. 196 202 P. »., 4 Park. Cr. R. 153 334 R. 1)., 3 E. 157 72, 80 Marler ». 8., 67 Ala. 55 194 Marlier, 8. v., 46 Mo. App. 233 105 Marmont b. 8., 48 Ind. 21 9 Marriott, R. •»., 4 Mod. 144 374 Reg. v., 8 C. & P. 425 393 Marsh, Reg. »., 3 Cox C. C. 570 304 8. v., 64 N. C. 378 376 Marshal's Case, 1 Lewin, 76 11 Marshall, P. v., 59 Cal. 586 375 Marston e. Jenness, 11 N. H. 156 53 S. ».,.31 Me. 393 134 Martin v. Reg. 3 Cox C. C. 318 148 Res;, v., 5 Cox C. C. 356 341 Reg.B., lOCoxC. C. 383 369 Reg. v., 13 Cox C. C. 304 136 Reg. v., 14 Cox C. C. 633 385 0. 8., 59 Ala. 34 9 V. 8., 18 Tex. App. 234 348 8. v., 31 La. Ann. 849 325 H. v., 134 Misso. 514 182 8. »., 83 N. C. 673 173, 428 8. v., 30 Wis. 316 53 Martinez v. 8., 16 Tex. App. 133 433 Mash, C. «., 7 Mete. 473 136, 313 Mason v. P., 36 N. Y. 200 319, 333 8. v., 26 Or. 373 14 PAGE Massie v. 8., 5 Tex. App. 81 467 Masterton v. 8., 144 Ind. 340 462, 467 Mather, P. »., 4 Wend. 339 205, 333, 335 Matteson, P. v., 3 Cow. 433 199 Matthews, C. i)., 89 Kent. 387 184 R. «., 5 T. R. 162 98 8. »., 37N. H. 450 343 8. v., 43 Vt. 543 100 V. U. 8., 161 U. S. 500 170 Mattox V. U. 8., 146 U. 8. 140 154, 188, 183, 185, 200, 216 D. U. 8., 156 U. 8.237 35,51,194 Maulsby, Exp., 18 Md. 625 80, 91, 344 Maurice «. Worden, 54 Md. 333 437 Maxwell, C. v., 3 Pick. 139 99, 106 8. »., 33 Conn. 259 354 S. !)., 51 Iowa, 314 176 V. Wilkinson, 113 U. 8. 656 208 May V. S., 90 Ga. 793 403 «. S., 17 Tex. App. 213 369 8. v., 20 Iowa, 305 410 Mayberry, S. v., 48 Me. 318 333 Maybush v. C, 39 Gratt. (Va.) 857 471 Mayes v. P., 106 111. 306 393 Mayfield, U. 8. v., 59 Fed. R. 118 178 Mayhew, 8. v., 3 Gill (Md.), 487 62 Mayo, U. 8. «., Fed. Cas. 15,754 133 Mayor ». Commissioners, 61 Md. S26 140 V. Cox, L. R. 2 Ch. D. 678 301 V. Ferry Co., 64 N. Y. 632 343 R. v., Cro. Car. 353 8 i>. Radecke, 49 Md. 217 40 ». 8., 15 Md. 376 63 Mead v. Morris, 21 Wis. 310 338 R. v., 4 C. & P. 535 409 Meade, C. »., 10 Allen, 398 6 Meader, 8. v., 47 Vt. 78 302 Mears v. C, 3 Grant (Pa.), 385 3 Medbury, 8. »., 8 R. I. 543 386 Medley, Exp., 134 U. S. 160 47 Mee V. S., 33 Tex. App. 565 171 Meek v. Pierce, 19 Wis. 300 67 Reg. v., 9 C. & P. 513 464 8. «., 70 Misso. 355 280 Meeker ». Van Rensellacr, 15 Wend. 397 454 Meeks ». 8., 51 Ga. 429 303 Meerchouse, 8. »., 34 Misso. 344 330 Mehan v. 8., 7 Wis. 670 169 Meister ». P., 31 Mich. 99 93 Melton, 8. v., 106 Misso. 683 168 Memphis R. R., U. 8. v., 6 Fed. R. 337 342 Mendez, R. p., 1 8tr. 473 241 Mercein, P. ■» , 8 Paige, 47 370 V. P., 35 Wend. 64 45 Mercer v. 8., 17 Ga. 146 200 Table Of | Cases 593 PAGF, Mercer, S. «., 32 Iowa, 405 9 Mercersmith v. S., 8 Tex. App. 211 20 Mergentheim «. 8., 107 Ind. 567 156 Merrill, C. »., Thacher Or. Cas. 1 333 Merrlman v. 8., 6 Blackf. (Ind.) 149 164 S. v., 34 8. C. 16 146 Merritt, S. »., 35 Conn. 314 449 Mertens, S. v., 14 Misso. 94 94 Merwin v. P., 26 Mich. 298 170 Metcalf , 8. v., 65 Mo. App. 681 56, 309 Meyer «. 8., 41 N. J. L. 6; 42 lb. 145 353 B. 8., 4 Tex. App. 121 173 Michael, Reg. e., 9 C. & P. 356 ; 2 Moody, 120 19 Middlehurst, R. v., 1 Burr. 899 167 Middlesex Spec. Comm., 6 C. & P. 90 91 Middleton ». S., Dudley (S. C), 275 329 Mifflin V. C, 5 W. & S. 461 274 Mighell ». Sultan, 1894, 1 Q. B., C. A., 149 55 Mikesell, 8. v., 70 Iowa, 176 494 Milburne, Exp., 9 Pet. 74 87 Miles V. 8., 58 Ala. 390 384 V. 8., 1 Tex. App. 510 437 V. U. S., 103 U. 8. 304 314, 315 U. 8. v., 3 Ut!ah, 19 313 V. Weston, 60 111. 361 69 Millard, S. «., 18 Vt. 574 453 Miller, C. a., 3 Ashm. (Pa.) 61 475 C. «., 139 Pa. 8t. 77 451 C. v., 2 Par. Sel. Cas. (Pa.) 480 113, 113 Miller's'base, 3 Couper, 116 11 Miller v. Knox, 4 Bing. N. 0. 574 63, 337 e. P., 33 Color. 530 369 V. P., 53 N. Y. 304 104, 173 P. »., 83 Cal. 107 831 P. v., 14 Johns. 371 339 Reg. v., 6 Cox C. C 353 486 V. S., 5 How. (Miss.) 350 99 V. 8., 39 Neb. 437 133 V. S., 18 Tex. App. 333 180 8.®., 34 Conn. 533 100 8. v., 39 Kaus. 43 143 S. «., 43 La. Ann. 1186 177 8. »., 47 Wis. 530 393 V. V. 8., 6 App. D. C. 6 33 Millican, S. v., 15 La. Ann. 557 157 Milliman, C. v., 18 8. & R. 403 450 Millish V. Lloyds, 13 Cox C. C. 575 438 Mills B. C, 13 Pa. St. 631 379 Reg. »., 7 Cox C. C. 263 36- ». S.-, 76 Md. 274 134, 143 PAGE Mills, 8. »., 19 Ark. 476 309 8. ».,17Me. 211 366,373 S. v., 104 N, C. 905 373 V. U. 8., 164 U. 8. 644 480, 481 Milne, P. v., 60 Cal. 71 304, 305 Milwaukee R. R. b. Kellogg, 94 U. 8. 469 189 Milwaukee School ». Schubel, 29 Wis. 444 366 '0. Supervisors, 40 Wis. 328 45 Mincher ». S., 66 Md. 337 442 Miner v. P., 58 111. 59 284, 286 Minet ». Morgan, L. R. 8 Ch. App. 361 201 Minich «. P., 8 Color. 440 117 Mink, C. v., 133 Mass. 432 9, 387, 397 Minneapolis '0. Milner, 57 Fed. R. 276 43 Mishler v. C, 62 Pa. St. 55 86 Missouri v. Dinsmore, 108 U. 8. 30 266 1). Finley, 38 Kans. 550 43 Missouri R. R. d. Mackey, 137 U. 8. 205 ■ 38 Mitchell V. C., 78 Kent. 304 379 0. C, 88 Kent. 349 319 C. •»., 3 Bush (Ky.), 35 363 Reg. ».,17CoxC. C.503 180 V. 8., 94 Ala. 68 306 V. g., 83 Md. 527 53 e. 8., 3 Misso. 283 225 ®. 8., 43 Tex. 512 143 8. »., 9 Ired. (N. C.) L. 429 395 8. v., Phill. (N. C.) L. 447 179 8. v., 83 N. C. 674 132 Mitchum v. 8., 11 Ga. 615 157, 393 Mix, 8. v., 15 Misso. 153 349 Mizner. S. v., 50 Iowa, 145 298 Moah, Reg. v., 7 Cox C. C. 503 378 Moan, 1'. v., 65 Cal. 532 384 Mogul Steamship Co. «. McGregor, 38 Q. B. D. 598 333 Mohn, C. »., 53 Pa. St. 243 316, 330 Mohr, In re, 73 Ala. 503 264 Moland, Reg. »., 2 Moody, 276 18, 371 Moline Plow Co. v. Webb, 141 U. 8. 616 329 Molton V. 8., 105 Ala. 18 416 Monahan, C. v., 9 Gray, 119 171 Mongeons. P., 55N.Y. 613 33 Monroe Cattle Co. v. Becker, 147 U. 8. 47 101 Montgomery, Resp. v., 1 Yeates, 419 443 ■». 8., 80 Ind. 338 283 S. ■»., 98 Misso. 399 402 Moody ®. P., 30 111. 315 406 P. »., 69 Cal. 184 119 Reg. v., 9 Cox C. C. 166 378 V. Rowell, 17 Pick. 490 305, 207 40 594 Table Of Oases PAGE Mooney, Reg. v., 5 Cox C. C. 318 183 S. ■»., Phill. (N. C.) L. 434 294 Moore ». C, 6 Mete. 248 285 «. C, 8 Pa. St. 260 411 C. v., 143 Mass. 136 148 C. v., 162 Mass. 441 7 C. v., 99 Pa. St. 570 365 In re, 11 Ir. C. L. N. S. 1 45 V. Missouri, 159 U. S. 673 53, 220 P. v., 63 Mich. 497 234 P. ■»., 50 Hun, 356 295 V. S., 59 Miss. 25 167 S. v., 39 Conn. 244 459 S. v., 15 Iowa, 412 37d S. ■»., 25 Iowa, 128 279 S. v., 12 N. H. 42 6 S. «., 11 Ired. (N. C.) L. 70 410 S. v., 24 S. C. 650 103 V. Sanborne, 2 Mich. 519 449 V. U. S., 150 U. S. 57 185, 188 V. TJ. S., 160 U. S. 268 98, 107, 358, 360 V. S. 0., Fed. Cas. 15,803 465 Moorehead v. S., 9 Humph. (Tenn.) 635 Mooring, S. v., 115 N. C. 709 Moran, P. v., 123 N. Y. 254 S. v., 7 Iowa, 236 Mordecai, S. v., 68 N. C. 207 Morey, C. b., 8 Mass. 78 S. »., 3 Wis. 494 Morgan, C v., 159 Mass. 375 0. Curtenius, 18 How. 8 Exp., 30 Fed. K. 298 V. S., 11 Ala. 289 V. S., 16 Tex. App. 593 S. «., 33 Md. 44 S. v., 85 N. C. 581 Morihan, C. v., 4 Allen, 585 Mormon Church?). U. S., 136 U. S. 1 Morphy, S. v., 33 Iowa, 270 Morrill, C. »., 8 Cush. 571 S. «., 68 Vt. 60 Morris v. Columbian Iron Works, 76 Md. 354 R. v., 1 Leach, 109 V. S., 1 Blackf. (Ind.) 37 8. «., 47 Conn. 179 S. B., 22 N. J. L. 587 U. S. v., Fed. Cas. 15,815 U. 8. v., 14 Pet. 464 Morris Canal Co., 8. v., 22 N. J. L 537 Morrison, C. ■»., 16 Gray, 224 8. v., 3 Dey. (N. C.) L. 399 Morris R. R., 8. ■»., 23 N. J. L. 360 8 Morrow, 8. «., 40 8. C. 221 66, 280 U. S. v., Fed. Cas. 15,819 349 Morse, C. v., 14 Mass. 217 108 179 73 304 403 330 243 107 162 366 260, 361 404 401 139 397 74 41 384 15, 373 429 208 101 319 323 95 143 27 30 380 169 PAGE Morton v. P., 8 Cow. 137 108 V. S., 46 Ga. 393 335 8. »., 107 N. C. 890 307 Moseley, la re, 1893, A. C. 138 333 Hosier, C. v., 135 Pa. St. 331 142, 149 Mosley, H. v., 1 Moody, 98 183 Mostyn v. Fabrigas, Cowp. 161 161 Mott, C. »/.,21Pick.492 34 8. v., 61 Md. 297 40 Mouat, U. 8. v., 124 U. S. 303 442 Mouflet V. Cole, L. R. 8 Exch. 82 28 Moulton, C. v., 108 Mass. 307 105, 172 Mount ». 8., 14 Ohio, 295 116 Moylan, Reg. »., 2 Crawf. & D. 500 103 Mucklow, R. v., 1 Moody, 160 417 Mugler V. Kansas, 123 U. 8. 623 37, 39, 44 Mulcahy «. Reg., 3 H. L. C. 306 146 Mulford ». P., 139 111. 586 359 Mulkey, P. v., 65 Cal. 501 173 Mullaly ». P., 86 N. Y. 365 413 Mullany, Reg. v., 10 Cox C. C. 97 464 Mullee, In re, Fed. Cas. 9,911 233 Mullen V. S., 45 Ala. 43 304 8. v., 30 Iowa, 303 414 S. v., 35 Iowa, 199 309 Muller, P. »., 32 Hun, 309 161 Mullins, C. »., 3 Allen, 295 198 Munshower v. 8., 55 Md. 11 142, 181, 193 Munslow, Reg. «., 18 Cox C. C. 112 436, 439 Munson, C. »., 127 Mass. 459 9, 285, 453 V. P., 5 Park. Cr. R. 16 455 ». 8., 79 Ind. 541 104 8. v., 7 Wash. 239 323 Murdoch, 8. v., 71 Me. 454 IT Murphy, C. v., 2 Allen, 168 484 C. v., 165 Mass. 66 14 C. »., 166 Mass. 171 325 P. v., 45 Cal. 137 194 P. »., 93 Mich. 41 14 R. 0., 6 C. & P. 103 20 «. Ramsey, 114 U. 8. 15 41 Reg. v., 13 Cox C. C. 398 367 Reg. v., 1 Crawf. & D. 20 73 e. S., 34 Miss. 590 97 8. »., 6 Ala. 675 332 8. v., 10 Gill & Johns. (Md.) 365 86 8.».,17R. 1. 698 99 8. «., 55 Vt. 547 89 Murray, C. v., 2 Ashm. (Pa.) 41 396 C. B. 2 Va. Cas. 504 78 e. Hoboken, 18 How. 273 86, 37 ». Louisiana, 163 U. 8. 101 38, 59 P. e., 89 Mich. 276 131 R. v., 5 C. <&; P, 135 111 Table Of Cases 595 PAGE Muscoe 0. C, 86 Va. 443 68, 69, 71 Musurus Bey v. Gadban, 1894, 3 Q. B., C.A. 353 55 Mutton, Beg. v., 10 Cox C. C. 6 450 Myers v. Baker, 120 111. 567 43 C. 0., 160 Mass. 530 179 e. 8,, 46 O. St. 473 343 8. »., 19 Iowa, 517 296 8. v., 68 Misso. 366 309 8. v., 83 Misso. 558 188, 372 8. «., 10Lea(Teiin.), 717 134 8. !)., 8 "Wash. 177 89 Nagle, S. v., 14 U. I. 331 129 Nail, S. 0., 19 Ark. 563 113 Nail O.S., 34 Ala. 382 476 Naramore, 8. ■»., 58 N. H. 273 100 Narrows Island, 8. «., 100 N. C. 477 449 Nash, C. v., 135 Mass. 541 160 V. Douglass, 12 Abb. Pr. R. N. S. 187 374 V. S., 30 Tex. App 384 331 S. v., 86 N, C. 650 100 Natal V. Louisiana, 139 U. 8. 621 37 Nathan, 8. o., 4 Rich. (8. C.) L. 513 278 National Bk. ». Kennedy, 17 Wall. 19 189 «. Madden, 114 N. Y. 380 a08 National Fertilizer Co. ■». Lambert, 48 Fed. R. 458 43 Naughton, P. v., 38 How. Pr. 130 136 Neagle, In re, 135 U. 8. 1 57, 63, 398 Neal 41. Delaware, 103 U. 8. 370 38 V. Osborne, 15 How. Pr. 81 338 ». 8., 54 Ga. 381 398 8. v., 37 Me. 468 299 8. v., 43 Misso. 119 467 NefE V. 8., 57 Md. 385 71, 137 Negus, Reg. «., 13 Cox C. C. 492 423 Neill, P. 41., 74 111. 68 - 341 Neis, S. v., 108 N. C. 787 9 Nelson, P. v., 58 Cal. 104 323 4). S., 32 Flor. 344 206 V. 8., 10 Humph. (Tenn.) 518 167 ». 8., 1 Tex. App. 41 V. 8., 25 Tex. App. 51 8. 4)., 58 Iowa, 208 8. 4)., 29 Me. 339 U. 8. v., Fed. Cas. 15,861 PAGE 0. C. Newboult, Reg. v., 12 Cox 148 173 Newburyport, C. 4), 9 Pick. 143 96 Newcomb v. 8., 37 Miss. 383 400 Newell, C. 4)., 7 Mass. 245 3 V. Hemingway, 16 Cox C. C. 604 9 Resp. v., 3 Yeates, 407 98, 115 S. »., 13 Mont. 303 269 Newman, 8. v., 9 Nev. 48 439 New Orleans R. R. 4). Louisiana, 157 U. 8. 319 37 N. Y. Life Ins. Co. b. Armstrong, 117 U. 8. 591 186 N. Y. R. R. V. Bristol, 151 U. 8. 556 38,41 Nibbs, R. »., 1 Moody, 35 106 Nichol, R. v., R. & R. 130 15 Nicholas, R. »., 7 C. & P. 538 113 Nicholls V. Ingersoll, 7 Johns. 145 84,85 R. 41., 13 Cox C. C. 75 9, 388 Nichols, C. v., 114 Mass. 285 286 V. 8., 17 N. Y. 114 434 Nicholson, R. v., 2 Leach, 610 419 4). 8., 72 Ala. 176 53 41. 8., 38 Md. 140 177 Nicoll, R. 41., 3 8tr. 1337 335 Nicolls 4). S., 35 Wis. 308 115 4). 8., 68 Wis. 416 330 Nickens, 8. 4i , 132 Misso. 607 156 Nickerson, C. 4i., 5 Allen, 518 406 8. 41 , 46 Iowa, 447 467 Nielsen, In re, Vil U. 8. 176 52 Nino, P. 4)., 149 N. Y. 317 191 Nixon V 8., 3 8m. & M. (Miss.) 497 131 Noble, 8. v., 15 Me. 476 165, 173 Noe 11. P., 39 111. 96 104 Noel, 8. 4)., T. U. P. Charlt. (Ga.) 43 Noelke, U. 8. v., 1 Fed. R. 436 398 495 149 113, 486 349 Nesbit, C. v., 34 Pa. St. 398 945 Neubrandt v. 8., 53 Wis. 89 334 Neverson, U. 8. v., 1 Mackey (D. C), 152 134, 207 Nevins, P. v., 1 Hill, 154 77, 344 Newark 4). Hunt, 50 N. J. L. 308 43 Noftsinger 4). 8., 7 Tex. App. 301 Nogales Club v. 8., 69 Miss. 218 Nolan, P. v., 32 Mich. 229 8. v., 15 R. I. 539 V. Traber, 49 Md. 460 Noles 4). 8., 24 Ala. 673 4). 8., 36 Ala. 31 Nomaque v. P., Breese (III.), 109 Noonan v. 8., 55 Wis. 258 Norberg's Case, 4 Mass. 81 Norcross, C. v., 9 Mass. 492 Norris v. Crocker, 13 How. 439 Reg. v., 9 C. & P. 347 V. S., 35 O. St. 317 North, Reg. v., 8 Cox C. 0. 433 338 149, 156 180 9 330 99 7 400 403 309 190 137 314 39 409 317 419 596 Table Of Cases PAGE Northfleld v. Plymouth, 20 Vt. 582 314 Northumberland, S. v., 46 N. H. 156 165 Norton ®. Ladd, 5 N. H. 203 413 P. v., 7 Barb. 477 442 R. v., R. & R. 510 101 Reg. v., 8 C. & P. 196 120 S. v., 2 Ired. (N. C.) L. 40 328 V. Shelby Co., 118 U. S. 425 35 Norwich Transportation Co. v. Flint, 18 Wall. 3 182 Norwood V. S., 45 Md. 68 137 Noyes, C. b., 25 Vt. 415 332 Nugent, Reg. »., 11 Cox C. C. 64 66 Terr, v., 1 Mart. (La.) 103 239 Nute V. Nute, 41 N. H. 60 206 Nutting, S. v., 39 Me. 359 139 Nyce, P. v., 34 Hun, 298 169 Nye, S. •»., 33 Kans. 301 169 Oaks, C. v., 113 Mass. 8 448, 451 Gates, Reg. »., 6 Cox C. C. 540 366 0'Bannon,S. «., 1 Bailey (S. C), 144 277 O'Brien, C. »., 8 Gray, 487 354 C. »., 107 Mass. 208 100, 301 C. v., 119 Mass. 843 187 Exp., 137 Misso. 477 81 V. P., 17 Color. 561 133 S. v., 81 Iowa, 88 364 S.«.,33N. J. L. 169 388 O'Connell v. Reg., 1 Cox 0. C. 418 111, 133 V. 8., 6 Minn. 279 483 S. v., 82 Me. 30 190 O'Conner v. S., 40 Tex. 227 221 O'Connor, C. v., 7 Allen, 583 98, 336 Reg. !)., 5 Q. B. 16 103 S. v., 38 Minn. 243 261 O'Donnell, C. v., 1 Allen, 593 96 R. v., 7 C. &. P. 138 74 O'Hagan, S. «., 38 Iowa, 504 467 OilCo. ».VanEtten,107TJ. S.325 206 Olcott, P. v., 2 Johns. Cas. 301 335 Oldham, C. «., 1 Dana (Ky.), 466 241 P. v.. Ill Cal. 648 432 Olds 1). S., 97 Ala. 81 330 O'Leary i>. P., 4 Park. Cr. R. 187 268 Oleson V. B., 30 "Wis. 58 100 Olifer, Reg. v., 10 Cox C. C. 402 275 Olms e. 9., 49 "Wis. 415 216 Olmstead, v., 30 Mich. 431 97 O'Malley, C. v., 97 Mass. 584 359 O'Neill, Exp., 8 Md. 237 370 P. »., 112 N. Y. 355 180, 183, 186 «. S., 16 Ala. 85 287 S. ■»., 51 Kans. 651 100 PAGE O'Neil, S. 0., 58 Vt. 140 65 Opinion of Justices, 41 N. H. 550 49 Oppenheimer, 8. v., 41 Tex. 82 467 O'Reilly e. P., 86 N. Y. 154 463 Ornelas «. Ruiz, 161 U. 8. 503 356 Ortega, U. 8. «., Fed. Cas. 15,971 295, 299 ©'Shields «. 8., 81 Ga. 801 138 Osborn, R. v., 3 Burr. 1697 329 ». 8., 52 Ind. 526 376, 377 8. v., 54 Kans. 473 436 ». U. 8., 91 U. S. 474 235 Osborne v. P., 3 Park. Cr. R. 583 324 O' Sullivan «. P., 144 111. 604 232 Oswald, Resp. »., 1 Dall. 319 342 Overby, C. v., 80 Kent. 208 86 Overstreet, 8. v., 43 Kans. 299 276 Owen, R. b., 1 Moody, 96 19 B. 8., 31 Ala. 387 825 Owens v. Owens, 81 Md. 519 199, 200 V. 8., 104 Ala. 18 481 0. 8., 67 Md. 807 208 V. 8., 8 Tex. App. 404 326 Oyer and Terminer, P. v., 83 N. Y. 436 205 Pace 1). Alabama, 106 U. S. 583 38 Paetz «. Dain, 1 Wilson (Ind.), 148 71, 297 Page, P. v., 1 Idaho, 189 194 e. S., 3 Heisk. (Tenn.) 198, n 825 Pah-Mah-Gay, Reg. v., 20 U. C. Q. B. 195 199 Paige V. P., 3 Abb. App. 439 379, 881 Paine, R. v., 5 Mod. 163 436 Painter v. P., 147 111. 444 186, 188 Palin V. 8., 38 Neb. 862 183 Palliser, In re, 136 U. 8. 257 56, 438 Palmer ». P., 138 111. 856 102 P. «!., 43 Hun, 897 136 Palmore v. 8., 29 Ark. 248 402 Pardee, Reg. «., 17 Cox C. C. 715 291 Pargeter, Reg. v., 3 Cox C. C. 191 388 Park, C. v., 1 Gray, 558 114, 168 Parker e. Bidwell, 8 Conn. 84 84 C. B., 165 Mass. 526 358 C. v., 146 Pa. St. 343 386 P. «., 38 N. Y. 85 338 V. 8., 81 Ga. 383 310 V. 8., 136 Ind. 136 158 V. S., 67 Md. 329 156, 484 8. i>., 96 Misso. 382 206 S. v., 65 N. C. 453 97 Parkinson v. 8., 14 Md. 184 26 Parlement Beige, The, 5 P. D. 197 55 Parmenter, C. v., 5 Pick. 279 171 C. u., 101 Mass. 211 102 Table Op Cases 597 PAGE Parnell, R. v., 3 Burr. 806 240, 463 Parr, Reg. v., 2 Moody & R. 346 33 Parrish «. S., 14 Md. 238 72, 80, 82, 85 V. S., 18 Neb. 403 403 S. !)., 33 Iowa, 384 134 Parshall, P. v., 6 Park. Cr. R, 129 275 Parsons ®. S., 21 Ala. 800 384 «. S., 81 ATa. 577 11 Partridge v. Hood, 120 Mass. 443 25 Passaic Society, S. v., 54 N. J. L. 360 8, 309 Passmore, Resp. «., 3 Yeates, 441 343 Patch, C. v., 97 Mass. 221 48 Patcbin v. Mayor, 13 Wend. 664 266 Patillo, S. v., 4 Hawks (N. 0.) L. 348 329 Pattee, C. v., 12 Ousb. 501 33 Patten «. Rhymer, 3 El. & El. 1 32 Patterson v. Gaines, 6 How. 550 314 V. Nutter, 78 Me. 509 2! 9 V. P., 12 Hun, 137 169 S. v., 45 Vt. 308 154 Patton, S. ■»., 4 Ired, (N. C.) L. 16 30 Paul, C. ■»., 170 Pa. St. 384 47 9. !)., 69 Me. 315 96 Paulk 11. S., 52 Ala. 427 " 307 Payne ». C, 1 Mete. (Ky.) 370 401 V. P., 6 Johns. 103 411 Reg. v., 12 Oox 0. C. 118 196 ». S., 61 Miss. 161 184 Payton, S. v., 90 Misso. 330 33 Peabody, P. v., 25 Wend. 473 378 Peacock, P. v., 6 Cow. 72 377 Pearce v. Atwood, 13 Mass. 324 69 Reg. »., 9 Cox C. C ■.'58 464 S. v., 14 Flor. 15 : 95 8. »., 3 Blackf. (lud.) 318 384 «. Texas, 155 U. S. 311 361 Pearson's Case, 3 Lewin, 144 11 Pearson, R. v., 1 Moody, 313 114 Pease v. Burt, 3 Day (Conn.), 845 84 C. v., 16 Mass. 91 25 Pegalow V. S., 20 Wis. 61 21S Peck V. Heurich, 6 App. D. C. 373 ' 327 ». S., 86 Tenn. 259 181 Peckham v. Lebanon, 39 Conn. 231 449 Peete». S., 2Lea(Tenn.), 513 379 Pelletreau v. Jackson, 7 Wend. 478 266 Pembina Mining Co. «. Pennsyl- vania, 125 U. S. 181 38 Pembliton, Reg. ■»., 12 Cox C. C. 607 38 Pence®. S., llOInd. 95 437 Pendleton, P. «., 79 Mich. 317 336 Penn «. Brewer, 12 Gill & Johns. (Md.) 113 340 PAGE Pennimau, C. »., 8 Mete. 519 111 Pennington, S. v., 3 Head (Tenn.), 399 452, 458 Pennoyer v. Neff, 95 U. S. 15 36 Pennsylvania v. Bridge Co., 13 How. 518 450 Pennsylvania Co. v. Rudel, 100 111. 603 151 Peoples B. C, 87 Kent. 487 379, 283 People's R. R. v. Green, 56 Md. 84 163 Perdue «. 8., 3 Humph. (Tenn.) 494 349 Perkins v. C, 7 Gratt. (Va.) 651 104, 173 Exp., 29 Fed. R. 900 • 344 Exp., 3 Dessaus. (8. C.) 549 344 «. P., 37 Mich. 386 379 8. »., 6 Blackf. (Ind.) 30 356 8. »., 45 Tex. 10 487 V. Stickney, 133 Mass. 317 190 Perley, S. v..86 Me. 437 107, 494 Perrigo, C. «., 3 Mete. (Ky.) 5 1 00 Perrin v. 8., 88 Wis. 135 185 Ferris, C. »., 108 Mass. 1 323 Perrott, R. »., 2M. . S., 87 Tex. App. 39 387 Poison 9. S., 137 Ind. 519 209. Pomeroy v. S., 98 Ind. 96 4S1 Pond V. a., 8 Mich. 150 289 PAGE Pond S. »., 93 Misso. 606 44 Popp, 8. c, 45 Md. 432 28 Porath V. S., 90 Wis. 527 112 Porter, C. v., 1 Gray, 476 452 P. «., 2 Park. Cr. R. 14 316,317 P. 1)., 4 Park. Ci'. R. 524 138 Reg. v., 12 Cox C. C. 444 62 8. v., 38 Ark. 637 309 8. v., 90 N. C. 719 289 Portland v. Bangor, 65 Me. 120 37 S. B., 74 Me. 268 8 Posey, C. v., 4 Call (Va.), 109 293 Post V. U. S., 161 U. S. 583 65 Potter, C. v., 1 Park. Cr, R. 47 73 S. ».,53Vt. 33 386 V. U. S., 155 U. S. 438 38, 98, 163 Potterfleld ». C, 91 Va. 801 163 Potts, R. v., R. & R. 353 19 Powell, C. »., 87 Cal. 348 146 Exp., 30 Flor. 806 262 0. Pennsylvania, 127 U. S. 678 43 Reg. v., 5 Cox C. C. 396 410 Resp. v., 1 Dai]. 47 328 V. S., 52 Ala. 1 402 ». 8., 67 Miss: 119 398,393 ». S., 13 Tex. App. 344 384 Powers V. McKenzie, 90 Tenn. 167 193 S. v., 36 Conn. 77 309 Poynton, Reg. v., 9 Cox C. C. 249 415 Pray, C. v., 13 Pick. 359 97, 101, 111, 306, 330 P. »., 1 Mich. N. P. 69 369 Pratt. P. v., 32 Hun, 300 69 Reg. ®.,6Cox C. C. 373 417 Prescott V. S., 19 O. St. 184 45 U. S. v., Fed. Cas. 16,085 180 Presser v. Illinois, 116 U. S. 353 35, 86 Preston v. P. 45 Mich. 486 53 ». 8., 63 Ala. 127 325 Prewitt, C. »., 82 Kent. 240 494 Price, C. a., 10 Gray, 472 350 V. Hutchinson, L. R. 9 Eq. 534 340 Reg. v., 11 Ad. & El. 727 30 Reg. «., 15 Cox C. C. 389 246, 453 ». S., 8 Gill (Md), 295 119,139 ». S., 36 Miss. 531 133 V. S., 18 O. St. 418 179 0. 8., 18 Tex. App. 474 395 S. «., 31 Md. 448 96 Prichard b. P., 149 111. 50 314 Priddy, S. »., 4 Humph. (Tenn.) 439 388 Pridgeon, U. S. v., 153 U. S. 48 80, 81, 219 Table Of Cases 599 PAGE Pxiestly, 8. v., 74 Misso. 34 482 Prince, Reg. »., 13 Cox C. C. 138 377 Prindeville v. P., 43 111. 217 159, 167 Printz V. S., 42 Mich. 144 4b8 Prior ». S., 70 Ala. 56 196 Pritcliard, R. «., 7 C. & P. 803 118 Pritchett ®. S., 92 Ga. 65 1B3 Proby, R. » , 1 Keny. 250 347 Proprietors, C. » , 3 Gray, 339 8 Prout, U. S. «., Fed. Cas. 16,094 353 Prynii's Case, 5 Mod. 459 64 Pryor, U. 8. »., Fed. (.'as. 18,090 500 Puckering, R. »., 1 Moody, 343 106 Pulaski Association, C. v., 92 Kent. 197 8 Pullens, 8. !i., 81 Misso. 387 i04 Purcell 1). Macnamara, 9 E. 157 170 Purefoy ». P., 65 111. App. 167 496 Purple V. Horton, 13 Wend. 11 149 Purse, 8. v., 4 McCord (8. C), 473 4"54 Puryear «. Reese, 6 Coldw. (Tenn.) 21 191 Push, 8. v., 33 La. Ann. 14 146 Putnam®. U.S., 162 U. 8. 687 169,308 Pybos ». 8., 3 Humph. (Tenn.) 49 91 Quail, Reg. v., 4 F. & F. 1076 304 Qnanstrom, P. ■»., 93 Mich. 354 197 Queen, 8. e., 66 N. C. 615 69 Quick, P. v., 58 Mich. 331 157 Quin, C. »., 5 Gray, 478 104 Quinch, R. v., 4 C. & P. 571 247 Quinn v. Heisel, 40 Mich. 576 69 e. P., 71 ?^. Y. 56L 319 Quitman, U. 8. »., Fed. Cas. 16,111 340 Quitzow V. 8., 1 Tex. App. 47 438 Radford, Reg. v., 1 Cox C. C. 168 379 Rae, P. »., 66 Cal. 433 418 Rafferty v. P., 69 111. Ill 395 Ragg, Reg. »., 8 Cox C. C. 363 366 Railing «, C, 110 Pa. 8t. 100 183, 283 Railroad v. Grant, 98 U. 8. 398 33 Railroad Co. ». Husen, 95 U. 8. 465 43 Ramirez, P. v., 56 Cal. 533 137 Ramsay, Keg. ».,15CoxC. C. 331 316 Ramsey v. 8., 93 Ga. 53 69 S. II., 78 N. C. 448 453 Rand, C. »., 7 Mete. 475 409, 414, 438 8. «)., 51N. H. 361 17 Randall v. C, 34 Gratt. (Va.) 644 110 C. v., 4 Gray, 36 111, 399 V. 8., 133 Ind. 539 97 Randenbush, TJ. S. v., 8 Pet. 288 52 Rando, P. » , 3 Park. Cr. R. 335 488 Randolph, C. »., 146 Pa. St. 83 303 Raneyo. 8., 83 Kent. 534 86 PAGE Rankin «. C, 9 Bush (Ky.), 553 245 8. v., 3 8. C. 438 448 Ransdell v. Patterson, 2 App. D. C. 489 29 Ransford, Reg. v., 13 Cox C. C. 9 497 Ransom v. 8., 49 Ark. 176 118 Rapier, In re, 143 U. 8. 110 40 Ratclifle's Case, 3 Rep. .37 276 Ravara, U. 8. «., 3 Dall. 272 288 Rauscher, U. S. »., 119 U. 8. 407 353 Raven, R. »., J Kel. 34 417 KawJes, S. v., 65 N. C. 334 394 Rawlings, u. 8. 3 Md. 201 111 Rawn, P. v., 90 Mich. 377 146 Ray V. Bell, 34 111. 444 306 C. «., 3 Gray, 441 171 C. v., 1 Va. Cas. 363 334 Exp., 45 Ala. 15 373 8. v., 63 N. H. 406 45 S. »., lOIred. (N. C.)L. 39 373 Raymond, C. v., 97 Mass. 567 109 Rea V. Hayden, 3 Mass. 34 132 Read v. Case, 4 Conn. 166 84 Reader, R. v., 1 Str. 531 82 Reagan v. U. S. 157 U. 8. 301 197, 203 Reakey, 8. «■., 1 Mo. App. 3 115 Reaney, 8. v.. 13 Md. 230 86 Reardon, C. r., 6 Cush. 78 385 Reaves v. 8., 29 Flor. 527 123 Reder, U. 8. v., 69 Fed. R. 965 162, 163 Redman, R. »., 1 Keny. 384 136 Redstrake, S. e., 39 N. J. L. 365 380 Reed, P. «., 70 Cal. 529 172 Reg. ■i).,6CoxC. C. 284 423 Reg. »., 12 Cox C. C. 1 454 V. Rice, 2 J. J. Marsh. (Ky.) 44 62 ■0. 8., 11 Tex. App. 509 391 8. v., 45 Iowa, 469 307 8. v., 53 Kans. 757 183 8. v., 41 La. Ann. 581 137 S. »., 40 Vt. 603 299 U. 8. v., Fed. Cas. 16,136 98 Reese «. U. 8., 9 Wall. 13 85 U. 8. v., 92 U. 8. 214 27 Reeve v. Wood, 10 Cox C. C. 58 197 Reeves, Reg. v., 9 C. & P. 25 383 Reformatory, P. v., 148 111. 413 45 Reggel, Exp., 114 U. 8. 642 260, 261, 268 P. v., 8 Utah, 21 199 Reiche v. Smythe,Fed. Cas. 11,666 29 Reid, C. v., 8 Phila. 385 282 8. v., 20 Iowa, 413 91 U. 8.»., 12HOW.861 184 Reilly, R. v., Jebb, 51 424 8. v., 4 Mo. App. 392 359 Reiner's App., 100 Pa. St. 182 373 600 Table Of Cases PAGE Remsen v. P., 43 N. Y. G 187 Reneau ». S., 2 Lea (Term ), 720 389 Renfrew, 8. v.. Ill Misso. 589 ll'.i Renton, S. »., 15 N. H. 169 490 Renwick b. Morris, 3 Hill, 631 2!) B. Morris, 7 Hill, 575 448 Revel, R o., 1 Htr. 430 346 Reyes, P. «., 5 Cal. 347 149 Reynolds, C. e., 14 Gray, 87 96, 98, 115, 458 C. »., 120 Mass. 190 73 Exp., 15 Cu.x 0. 0. 108 50 V. Howe, 51 Conn. 473 45 P. e., 16 Cal. 128 149 V. 8., 34 Flor. 175 119 V. 8., 1 Tex App. 616 835 ®. U. 8., 98 U. 8. 145 11,41,51, 147, 148,150, 194,813 Rhodes®. 8., 138 Ind. 129 146 Rice, P. ®., 73 Cal. 210 487 P. «., 144 N. Y. 249 ' 838 Reg. »., 10 Cox C. C. 155 853 ®. 8., 35 Flor. 336 481 ■0. S., 3 Ueisk. (Tenn.) 215 486 Richards ■o. C, 81 Va. 110 120 n. P., 81 111. 551 341 P. «., 1 Mich. 316 :i33 V. 8., 60 Vt. 449 146 Richardson v. 8., 66 Md. 305 104, 114, 436 8. »., 34 Minn. 115 360, 363 8. 0., 38 N. H. 208 459 U. S. »., 38 Fed. R. 01 124, J 29 Richie o. 8., 58 Ind. 355 297, 484 Richmond?). Dayton, 10 Johns. 393 336 V. Fisk, IHOMass. 34 295 P.O., 39 Cal. 414 12 Rickers v. 8imcox, 1 Utah T. 33 74 Ricketson, C. ■»., 5 Mete. 412 156 Ricketts v. 8., 79 111. 85 9 S. »., 79 N. C. 187 209 Riddle ». 8., 80 Tex. App. 435 173 Ridgely ». 8., 75 Md. 510 156, 158 8.®., 3 Harr. & McH. (Md.) 130 402 Riggs 0. 8., 3 Coldw. (Tenn.) 85 389 RUey, Reg. »., 6 Cox C. C. 88 418 Reg. »., 18 Cox C. C. 285 378 v. 8., 16 Conn. 47 476 8. 0., 113N. C.648 159 Rinaldi, Reg. v., 9 Cox C. C. 391 878 Ring, Reg. v., 17 Cox C. C. 491 304 8. v., 29 Minn. 78 141 Rippon, S. v., 2 Bay (S. C), 99 216 Ritchey ■o. Davis, 11 Iowa, 124 342 Ritson, Reg. v., 11 Cox C. C. 353 377 Rivers, 8. v., 58 Iowa, 103 116 Roane, 8. v., 2 Dev. (N. C.) L. 58 888 Roberts, C. b., 108 Mass. 396 18-', 183 In re, 34 Fed. R. 132 364 Roberts s. P., 11 Color. 318 ». P., 99 III. 275 8. P., 19 Mich. 401 R. «,, 1 Campb. 399 Reg. «., 7 Cox C. C. 39 V. Keilly, 116 U. 8. 80 PAGE 203 171 12, 803 306 303 360, 261, 368, 364 Resp. v., 2 Dall. 134 ; 1 Yeates, 6 384 ». 8., 73 Ga. 673 e. 8., 2 Tex. App. 4 ». 8., 5 Tex. App. 141 S. »., 11 Humph. (Tenn.) 589 ®. Whalley, 14 Fed. R. 167 Robertson v. P., 20 Color. 279 ' V. 8., 2 Lea (Tenn.), 239 V. S., 86 Texas, 846 Robins v. S., 14 Neb. 540 V. Shelby District, 130 U. 8. 489 Robinson v. C, 33 Gratt. (Va.)866 C. «'., 1 Gray, 555 C. »., 126 Mass. 359 . C. »., 146 Mass. 571 Exp., 19 Wall. 505 ». P., 159 111. 440 P. «., 19 Cal. 40 B.Randall, (52111.531 Reg. B., 8 Cox C. C. 115 B. 8., 93 Ga. 77 63, 63, 69 B. 8., 53 Md. 151 173, 323 B. 8., 57 Md. 14 183, 277, B. 8., 1 Coldw. (Tenn.) 129 B. 8., 82 Gratt. (Va.) 866 S. B., 55 Minn. 169 8. B., 2 Lea (Tenn.), 114 8. B., 27 8. C. 615 Robson, R. v., R. & R. 413 B. 8., 83 Ga. 166 Roby, P. »., 52 Mich. 577 Rocco B. S., 37 Miss. 357 Rockafeller, 8. v., 6 N. J. L. 333 Rockwell, P. B., 89 Mich. 503 Roddy V. Finuegan, 43 .Md. 490 Roderigas, P. b., 49 Cal. 9 Rodgers b. P., 86 N. Y. 360 U. 8. B. 150 U. S. 349 55, 56, 300 Roebuck, Reg. B., 7 Cox C.C. 136 mQ 153 101 184 463 339 37,44 387 369 98 46 135 135 53 188 340 178 177 149 870 ,278 434 105 10 124 115 430 15 14 176 91 385 18 277 323 Rogers, C. v., 7 Mete. 500 P. B., 118 N. Y. 9 R. B., 3 Burr. 1809 Reg. B., 7 Mod. 28 u. S., 60 Ark. 76 V. 8., 90 Ga. 463. Rogh V. Gassert, 149 U. 8. 17 Rohan v. Bavin, 5 Cush. 281 Rohfrischt, S.B., 12 La. Ann. 383 Roland, C b., 97 Mass. 598 Rolland v. U.. 83 Pa. St. 306 B. C, 85 Pa. 8t. 66 11, l!»l 11 73 339, 345 300 101 229 70 180 116 143 331 Table Of Cases 601 PAGE Rollins V. S., 98 Ala. 709 108 S. B.,8N. H. 550 406 S. »., 22 N. H. 538 153 S. »., 55 N. H. 101 100 Romlne, Terr. 9., 2 N. Mex. 114 403 Rood V. Chicago Railway, 43 Wis. 146 33 Roosevelt v. Goddard, 53 Barb. 588 35 Roosnell, 0. «>., 148 Mass. 33 482 Roper, S. v., 1 Dev. & B. (N. C.) 208 453 Rose V. S., 83 Ind. 344 309 S. v., 33 La. Ann. 933 156 S. »., 33 Misso. 560 453 Rosen v. U. 8., 161 U. S. 39 15, 97, 104, 315 Rosinsky, R. v., 1 Moody, 19 15 Ross, In re, 140 U. 8. 453 58 P. v., 108 Gal. 435 468 S. »., 31 Iowa, 467 71 8. v., 39 Minn. 32 52 U. 8. «., 92 U. S. 381 185 Roth V. House of Refuge, 81 Md. 339 45 Rothbaiier v. 8., 33 "Wis. 468 310, 313 Roulstone, S. ■»., 8 8need (Tenn.), 107 118 Rourke, C. v., 10 Gush. 397 410 Rover, 8. v., 10 Nev. 888 402 Rowan e. S., 30 Wis. 129 400 Rowe, P. v., 4 Park. Cr. R. 358 71 8. v., 73 Md. 548 40 8. «., 98 JSr. C. 639 207,820 8. «., 43 Vt. 365 139 V. U. 8., 157 U. 8. 675 390 V. U. 8., 164 U. S. 546 391 Rowell V. Fuller, 59 Vt. 688 163 Rowland v. 8., 136 Ind. 517 318 Rowley, S. v., 12 Gonn. 101 90 Rowton, Reg. v., 10 Gox G. C. 25 187 Roy V. 8., 91 Ind. 417 103 Royal, P. v., 53 Gal. 63 481 U. 8. v., Fed. Gas. 16,301 380 Royall V. Thomas, 38 Gratt. (Va.) 130 356 U. 8. v.. Fed. Gas- 16,303 330 Roycroft, Reg. v., 6 Gox G. G. 76 139 Royson's Gase, Gro. Gar. 146 841 Rubin, C. v., 165 Mass. 453 -414, 418, 419 Ruch «. Rock Island, 97 U. 8. 693 308 Rucker v. 8., 7 Tex. App. 549 100 8. »., 68 N. G. 211 110 Rudy 0. G., 138 Pa. 8t. 500 174 Ruffner, G. c, 38 Pa. 8t. 359 65 Ruean, 8. v., 68 Misso. 214 176 Rugg, P. »., 98 N. Y. 537 403 Rjiggles, P. e.,8 Johns. 39a 41 41 PAGE Ruhl, 8. c, 8 Iowa, 477 376, 377 8. «., 63 Iowa, 400 14 Ruloff V. P., 45 N. Y. 213 20 P. v., 3 Park. Gr. R. 401 178, 366 P. v., 5 Park. Gr. R. 77 80 Runnels, G. «., 10 Mass. 518 489 Russell V. G., 7 8. & R. 489 115 R. v., 8 E. 437 450 R. v., 1 Moody, 856 397 8. v., 14 R. I. 506 96 Russett, Reg. »., 17 Gox 0. G. 584 419 Ruston's Gase, 1 Leach, 408 187 Rutherford v. G., 78 Kent. 639 136 Ruthven, 8. v., 58 Iowa, 131 134 Rutten, 8. «., 13 Wash. 308 396 Ryan, G. v., 155 Mass. 533 359, 433 V. Couch, 66 Ala. 344 156 Ryder, U. 8. v., 110 U. 8. 729 84 8acket, G. v., 33 Pick. 894 187, 304 8ackett, 8. v., 39 Minn. 69 141 Sah Quah, In re, 81 Fed. R. 337 39 8t. Clair e. U. 8., 154 U. 8. 134 56, 57, 103, 118, 163, 305, 307, 398 St. Johnsbury v. Thompson, 59 Vt. 300 17 8t. Joseph «. Elliott, 47 Mo. App. 418 41 V. Harris, 59 Mo. App. 133 43 St. Louis, P. t., 10 111. 351 450 V. Roche, 138 Misso. 541 43 8. A. L., 8. »., 77 Wis. 467 104 Salmon, Reg. v., 14 Cox C. G. 494 20, 387 Sam t). 8., 38 Miss. 347 393 Sampson ». C, 5 W. & 8. 885 389 C. 4)., 97 Mass. 407 113 S. »., 13 8. G. 567 319 Samuel, C. »., 3 Pick. 103 169 8. 0., 8 Jones (N. C.) L. 74 395 Sanborn, In re, 53 Fed. R. 588 331 Sanchar's Case, 9 Rep. 117 79 Sanchez ■». P., 23 N. Y. 147 398 Sanders v. 8., 85 Ind. 318 330 S. v., 30 Iowa, 583 285 8. «., 68 Misso. 303 163 Sanford v. Nichols, 13 Mass. 384 337 Sanges, U. 8. »., 144 U. 8. 310 51, ^ 316,335 Sasse e. 8., 68 Wis. 530 136, 157 Sater v. 8., 56 Ind. 378 174 Satterwhite, 8. «., 30 8. C. 536 82 Saunders, Reg. v., 13 Cox G. C. 118 453 S, «., 63 Misso. 482 371 Sauvinet, 8. «., 24 La. Ann, 119 333 Savage «.£)., 84 Ya. 619 44 602 Table Of Cases PAGE Savage v. S., 18 Flor. 909 20, 144 Savin, In re, 131 U. S. 267 337 Savoyard v. Conant, 11 Mass. 264 80 Saward, Reg. v., 5 Cox C. C. 295 424 Sawtelle, 0. v., 11 Cush. 142 105, 107, 431 Sawyer, In re, 124 U. S. 200 278, 344 Sayres v. C, 88 Pa. St. 291 185 Scaife, Reg. v., 5 Cox C. C. 243 194 Scarborough «. S., 46 Ga. 26 310 Scavage v. Tateham, Cro. Eliz. 829 79 SchafEer v. S., 22 Neb. 557 398 Scbaunhurst, S. v., 34 Iowa, 547 404 Schell V. Plumb, 55 N. Y. 592 206 Schingen, C. v., 20 Wis. 74 423 Schlemm, S. v., 4 Harr. (Del.) 577 264 Sclilemmer, S. v., 42 La. Ann. 1166 39,43 Schloss, S. o., 93 Misso. 361 115 Schmidt, P. «., 63 Cal. 28 398 Schmier v. P., 23 111. 17 137 Schmous, C. v., 162 Pa. St. 326 210 Schnelle, S. ■»., 24 W. Va. 767 97, 157 Schoudel v. S., 57 N. J. L. 209 285, 453 Schr. Exchange v. McFaddon, 7 Cranch, 116 55 Schultz, Exp., 6 Whart. (Pa.) 269 246, 249 Schultze V. S., 43 Md. 295 82, 85, 86 Schumann, U. S. «., Fed. Cas. 16,235 138 Schupe, S. ■»., 16 Iowa, 36 464 Schuyler, P. v., 6 Cow. 572 425 Schwab V. Berggren, 143 U. S. 442 219 Schwartz v. C, 27 Gratt. (Va.) 1025 471 P. v., 32 Cal. 160 101 Scott, C. »., 123 Mass. 221 93 C. o., 5 Gratt. (Va.) 697 213 B. Eldridge, 154 Mass. 25 69 Exp., 9 B. & C. 446 71 P. a., 6 Mich. 287 302 Reg. 0., 3 Q. B. 543 448 0. S., 70 Miss. 247 141 S. v., 64 N. C. 586 417 Terr, v., 2 Dak. T. 212 99 ScrafEord, In re, 59 Hun, 320 264 Scribner, S. b., 2 Gill & Johns. (Md.) 246 96, 439 Scripps V. Reilly, 35 Mich. 371 155 Scripture, S. ■»., 42 N. H. 485 321 Scruggs, S. v., 115 N. C. 805 141 Scudder, R. »., 3 C. & P. 605 279 Seagler, S. v., 1 Rich. (S. C.) L. 36 416 Searle, C. v., 2 Binney, 332 379 Searls «. Viets, 2 N. Y. Sup. Ct. 224 66 Security Bank, S, v., 2 S. Dak. 538 124 PAGE Seeley, P. v., 37 Hun, 190 275 Seeley & Johnson, Case of, 6 Abb. Pr. R. 217, n. 339 Seiler v. P., 77 N. Y. 4) 1 7 Self V. S., 6 Baxt. (Tenu.) 244 178 Sellers, S. v., 7 Rich. (S. 0.) 368 362 Sellman v. Bowen, 8 Gill & Johns. (Md.) 50 314 Semayne's Case, 5 Rep. 91 72 Semmes, C. «., 1 Leigh (Va.), 667 83 V. U. S., 91 U. S 21 235 Sercomb ». Catlin, 128 111. 5J6 342 Serlested's Case, Latch, 202 328 Serne, Reg. v., 16 Cox C. C. 311 394 Sessions, P. «< , 58 Mich. 594 279, 281, 28S P. v., 2 Caine's Cas. 319 273 Setter, S v., 57 Conn. 461 332 Seven Hickory v. Ellery, 103 U. S. 423 26 Seward o. Hayden, 150 Mass. 158 28 Seymour, S. e., 36 Me. 225 322 Shafer «. Ahalt, 48 Md. 171 284 V. Mumma, 17 Md. 331 37, 40, 52 Shaffer, Resp. ■»., 1 Dall. 236 93 ShafEner v. C, 72 Pa. St. 60 186 Shaughnessy, P. o., 110 Cal. 598 430 Shannon v. C, 14 Pa. St. 226 284 V. P., 5 Mich. 71 103 Sharp 11. P., 39 111. 464 302 P. v., 58 Mich. 528 176 11. S., 58 N. J. L. 511 164 Sharpe, Reg. n., 7 Cox C. C. 314 10, 454 Sharpless, C. •»., 3 S. & R. 91 45.J Shartzer v. S., 63 Md. 149 484 Shattuck, C v., 4 Cush. 141 373, 375 B. Woods, 1 Pick. 171 863 Shaw, C. »., 4 Allen, 308 416 C. v., 145 Mass. 349 lOti Exp. 61 Cal. 58 87 R. 11., 6 C. & P. 872 395 Reg. •»., 16 Cox C. C. 503 206 V. S., 18 Ala. 547 100 V. S., 3 Sneed (Tenn.), 86 483 V. S., 32 Tex. App. 155 119 S. »., 31 Me. 523 289 S. «., 3 Ired. (N. C.) L. 532 148 U. S. »., 58 Fed. R. 110 141 Shea, P. v., 147 N. Y. 78 188 Shear, S. o., 51 Wis. 460 168, 484 Shearman, Reg. v., 6 Cox C. C. 312 879 Sheay v. S., 74 Md. 52 307 Shebbeare, R. v., 1 Burr. 460 82 Shed, C. »., 1 Mass. 237 362 Sheehan «. Sturgess, 53 Conn. 481 399 Sheets v. Sel^en, 8 yf?,]], 177 38 Table Of Cases 603 PAGE Sheffield Gas Co., Reg. v., 23 Eng. L. & Eq. 200 450 Shelby, S. »., 90 Misso. 303 335, 336 Sheldon, Exp., 34 O. St. 319 261, 263 Shelton d. 8., 1 Stew. & P. (Ala.) 308 93 Shepler v. S., 114 Ind. 194 ' 103 Sheppard v. S., 42 Ala. 531 430 Sherburne, S. v., 59 N. H. 99 166 Sheridan, R. v , 31 How. St. Tr. 543 123 Sheriff, R. «., 1 H. Bl. 543 343 Sherrill, S. v., 95 N. C. 663 366 Sherwood, Reg. v., 7 Cox C. C. 370 366 S. v., 68 Vt. 414 312, 314, 315 Shickle, Reg. «., 11 Cox C. C. 189 413 Shideler ». S., 139 Ind. 523 53 Shields, C. «., 2 Bush (Ky.), 81 153 S. v., 45 Conn. 356 481 V. Smith, 78 Ind. 435 86 Shine v. Brown, 30 Ga. 375 45 Shoemaker, U. S. v., Fed. Cas. 16,379 139 Sholes, C. v., 13 Allen, 554 95 Shotwell v. S., 43 Ark. 345 323 Shouse V. C., 5 Pa. St. 83 212 Shriedly v. 8., 23 O. St. 130 488 Shuffin V. P., 63 N. Y. 329 395 Shular v. '8., 105 Ind. 389 93, 136, 340 Shulman, P. o., 8 N. Y. App. Div. 514 307 Shultze «. S., 43 Md. 395 140 Shumaker «. S., 5 Wis. 324 146 Shupe, 8. v., 10 Iowa, 366 463 ShurtliflEe, 8. v., 18 Me. 368 377 Siebold, Exp., 100 U. 8. 371 80 Sifred ». C, 104 Pa. St. 179 33 Sigman, S. v., 106 N. C. 738 390 ■Silsbee, C. v.. 9 Mass. 417 30 Silver v. 8., 17 Ohio, 365 462 Silverlock, Reg. v., 18 Cox C. C. 104 371 Simms, S. »., 71 Misso. 538 119 Simmonds, R. »., 1 Moody, 408 429 Simmons v. C, 5 Binney, 617 439 V. Jacobs, 52 Me. 147 26 V. 8., 4 Ga. 465 23 V. S., 61 Miss. 343 174 8. «., 1 Ark. 265 343 ». U. 8., 142 U. 8. 148 158 U. 8. v., 96 U. S. 360 96, 304 Simon v. S., 5 Flor. 285 178 Simons, 8. «., 2 Speers (S. C), 761 373 Simpson, C. v., 9 Mete. 138 100 P. «., 50 Cal. 304 289 R. ■»., lOMod.248 78 Reg. 1)., 10 Mod. 341 132 Reg. ■B.,6CoxO. C. 422 415 I PAGE Simpson v. 8., 5 Yerg. (Tenn.) 356 287 S. «., 28 Minn. 66 53 8. »., 67 Misso. 647 116 Sim's Case, 2 Str. 1207 341 S. 1}., 16 S. C. 486 70, 490 Sinclair, Reg. »., 13 Cox C. C. 28 397 Sing, In re, 43 Fed. R. 359 40 Singer v. 8., 72 Md. 464 44 Sinnott f. S.,11 Lea(Tenn.), 281 341 Skinner, S. »., 76 Iowa, 147 93 8. 1)., 29 Or. 599 417 Skolfield, 8. v., 86 Me. 149 110 Slack, C. !)., 19 Pick. 304 109 P. «., 15 Mich. 193 313 Slagle, 8. e.,83N.C, 653 279 S. »., 83 N. C 630 398 Slate, 0. «., 11 Gray, 60 487 Slater, P. «., 5 Hill, 401 393 Slattery, C. »., 147 Mass. 423 15, 311 Slaughter-House Cases, 16 Wall. 36 39, 41 Slauson, Exp., 73 Fed. R. 666 263, 264 Sledd V. C, 19 Gratt. (Va.) 813 313 Sleeper, S. v., 37 Vt. 122 467 Slingerland, S. v., 19 Nev. 135 437 Sloan, S.B., 67 N. C. 357 120 Sloanaker, 8. v., 1 Houst. (Del.) Cr. 63 396 Slocum V. P., 90 111. 374 376 Slowly, Reg. v., 12 Cox C. C. 269 419 Small V. C, 91 Pa. St. 304 183 Smallwood, 8. v., 75 N. C. 104 158 Smart, 8. ».,4Rich.(8.C.)L. 356 413 Smedley v. S., 30 Tex. 214 493 Smith «. Alabama, 124 U. 8. 465 44 V. Briscoe, 65 Md. 561 207 V. Brown, 3 Tex. 360 341 V. C, 6 B. Monr. (Ky.) 31 353 V. C, 14 Bush (Ky.), 31 410 V. C, 95 Kent. 323 ' 140 s. C, 59 Pa. St. 320 333 V. C, 100 Pa. St. 334 396 V. C, 104 Pa. St. 339 124 C. II., 11 Mass. 456 2li5 Smith's Case, Comb. 386 249 Smith V. Crichton, 33 Md. 103 158 V. Dawley, 93 Iowa, 313 183 Exp., Fed. Cas. 13,968 260, 263 In re, 4 Color. 532 318 V. Kitchens, 51 Ga. 158 90 V. Maryland, 18 How. 71 67 V. P., 25 111. 17 374, 331 ». P., 53 N. Y. Ill 418 v. P., 23 Tex. App. 357 391 P. v., 23 Cal. 280 424 P. v., 103 Cal. 563 109 P. v., 28 Hun, 636 16 R. v., 6 C. & P. 136 73 R. v., 3 Dougl. 441 31 604 Table Of Cases PAGE Smith, R. 0., 1 Str. 704 451 Reg. D., 4 Cox C. C. 42 132 Reg. v., 5 Cox C. C. 583 417 Reg. ».,6CoxO. C. 554 486 Reg. »., 8 Cox C. C. 32 378 Reg. v., 8 Cox C. C. 597 223 Reg. v., 11 Cox C. C. 310 388 Reg. a., L.&C. 607 159 ». S., 9 Ala. 990 180 e. S., 55 Ala. 59 428 B. S.,29Flor. 408 172 o. S., 28 Ind. 321 433 V. S., 58 Ind. 340 433 «. S., 91 Kent. 588 86 «. S., 33 Me. 48 279 0. S., 6 Gill (Md.), 425 3,288, 310 e. S., 45 Md. 49 . 130 V. S., 55 Miss. 513 368 V. S., 50 O. St. 584 177 V. S., 18 Tex. App. 399 104 V. S., 37 Tex. App. 50 471 e. S., 43 Tex. 444 136 S. «., 49 Conn. 376 133 S. 0., 5 Harr. (Del.) 490 103 S. v., 61 Me. 386 99 S. 0., 65 Me. 357 388 S. v., 67 Me. 328 138 S. V. 29 Minn. 193 309, 311 S. 0., 80 Misso. 516 301 S. v., 119 Misso. 439 120 S. »., 1 N. H. 346 69 S. v., 49 N. H. 155 138 S. V. 10 Nev. 106 220 S. a., 3 Hawks (N. C), 378 328 S. v., PMU. (N. C.) 340 397 S. a., 2 Ired. (N. C.) L. 402 118 S. ■»., 11 Or. 305 132 S. v., 15 R. I. 34 310 9. v., 44 Tex. 443 29 S. v., 63 Vt. 201 468 ». U. S., 94 U. S. 97 132 V. U. S., 151 U. S. 150 159 V. U. S., 161 U. S. 85 402 U. S. v., Fed. Cas. 16,332 65 U. S. v., Fed. Cas. 16,338 114 U. S. 0., 5 Wheat. 153 27, 473 ». Whitney, 116 U. S. 167 273 Smouse, S. ■»., 50 Iowa, 43 100 Smyth, S. o., 14 R. I. 100 43 Snapp V. C, 82 Kent. 173 423 Snead, S. v., 16 Lea (Tenn.), 450 454 Snelling, C. v., 15 Pick. 331 129, 130 C. 0., 15 Pick. 337 28 C. v., 4 Binney, 379 493 Snow, C. v., 116 Mass. 47 279 S. «., 18 Me. 346 489 V. Walker, 113 Mass. 179 332 Snowden o. S., 17 Flor. 386 98 PAGE Snowden v. S., 69 Md. 303 33 «. U. S., 3 App. D. C. 89 484 Snyder v. Nations, 5 Blackf. (Ind.) '^95 137 V. P., 26 Mich. 106 290 ■B. S., 59 Ind. 105 398 Sohler v. Trinity Church, 109 Mass. 1 43 Solgard, R. ■»., 2 Str. 1097 247 Solomon's Case, 1 Abb. Pr. 347 363 Solomans, Reg. v., 17 Cox C. C. 93 364, 419 Soon Hing «. Crowley, 113 U. S. 703 41, 43 South V. Maryland, 18 How. 396 62, 442 Southern, R. v., R. & R. 444 19 Sowerby, Reg. v., 17 Cox C. 0. 767 371 Spalding v. Preston, 21 Vt. 9 74 S.®., 10 Paige, 284 345 Sparf 0. U. S , 156 U. S. 51 158, 180, 181 Sparks o. C, 3 Bush (Ky.), Ill 387 C. 0., 26 Tex. 737 337 V. S., 59 Ala. 83 309 S. v., 78 Ind. 166 110 Sparling, R. 9., 1 Str. 497 78 Spear, C. v., 2 Va. Cas. 65 329 S. 0., 13 R. I. 324 437 Spears, Exp., 88 Cal. 640 261 V. S., 3 O. St. 583 179 Specht V. C, 8 Pa. St. 312 41 Speiden o. S., 3 Tex. App. 157 15 Speller, S. v., 86 N. C. 697 335 Spencer, R. v., 3 C. & P. 420 367 Reg. v., 10 Cox C. C. 525 388 V. S., 50 Ala. 124 174 S. !)., 45 La. Ann. 1 468 Spicer, Reg. c, 1 Den. C. C. 82 528 107 Spielman v. S., 27 Md. 520 101, 121 Spies, Exp., 133 U. S. 131 150 «. Illinois, 133 U. S. 131 143 In re, 123 U. S. 131 36 Spilman, C. v., 124 Mass. 327 97, 381 Spilsbui-y, R. «., 7 C. & P. 187 177 Spokes B. Banbury Board, L. R. 1 Eq. 42 342 Spotten V. Keeler, 23 Abb. N. C. 105, n. 176 Spring Co. ®. Edgar, 99 U. S. 645 189 Springfield, C. e., 7 Mass. 9 114 Spry, Reg. v., 3 Cox C. C. 231 135 Squire, C. «., 1 Mete. 358 110 R. e., 1 Russ. Cr.,9 ed. 677-678 393 V. S., 46 Ind. 459 313 Stacy, In re, 10 Johns. 328 343 Staeger o. C, 103 Pa. St. 469 110 Table Op Cases 605 PAGE Stafford's Case, Raym. 407 117 Stagner ». C, 9 Tex. App. 440 151 Stakes, P. v., 1 Wheeler Cr. Cas. Ill 452 Stalcup, S. v., 2 Ired. (N. C.) L. 50 74 Stamper v. C, 7 Bush (Ky.), 612 16 Stanfieldo. Boyer, H Harr. & Johns. (Md.) 248 284 Stanglein v. S., 17 O. St. 453 314 Stanley v. C, 86 Kent. 440 298 Exp., 25 Tex. A.pp. 372 262 S. v., 64 Me. 157 366 S. B.,4 Jones(N. C.)L. 290 288 Stanton v. Embry, 93 U. S. 548 229 Staples V. Staples, 87 Wis. 592 338 Stapylton, Reg. v., 8 Cox C. C. 69 129 Starchman a. S, 62 Ark. 538 324 Starin v. P., 45 N. Y. 333 24 Starkey ». P., 17 111. 17 137, 183, 184 Starkie v. C, 7 Leigh (Va.), 752 419 Starr «. Cragin, 24 Hun, 177 V. V. §., 153 U. S. 614 206 68, 77 158, 390, 394 Startup «. S., 39 N. J. L. 423 115 Staten, S. v., 88 N. C. 654 110 Statler v. U. S., 157 U. S. 277 211 Statum V. S., 9 Tex. App. 273 172 Steadman v. S., 81 Ga. 736 824 Steamship Co. v. JolifEe, 2 Wall. 450 34 Stearns v. S„ 81 Md. 293 99, 100 Stebbins, C. v., 8 Gray, 492 209 V. S., 31 Tex. App. 294 115 Steele, S. v., 1 Yerg. (Tenn.) 394 468 c. South-wick, 9 Johns. 214 437 Steer, Reg. v., 3 Cox C. U. i«7 424 Stegar v. S., 39 Ga. 18J 494 Steimling, C. v., 156 Pa. St. 40 410 Stein, P. v., 1 Park. Cr. R. 202 486, 487 9. S., 37 Ala. 123 Stephen v. S., 11 Ga. 225 Stephens, P. «., 79 Cal. 428 S. v., 71 Misso. 535 U. S. v., 12 Fed. B. 52 Stephenson, C. v., 8 Pick. 354 C. ■»., 11 Cush. 481 V. Higginson, 3 H. L. Gas. 683 Reg. v., 15 Cox C. C. 679 Sterling v. Drake, 29 O. St. 457 S. v., 34 Iowa, 443 Sternberg v. S., 42 Ark. 127 Sterrett, S. v., 68 Iowa, 76 Stetson V. Packer, 7 Cush. 562 Sterens v. C, 4 Leigh (Va.), 683 C. »., 1 Mass. 203 R. »., 5 E. 244 V. S., 66 Md. 202 109 482 52 127 304 820 379 27 247 234 333 86 188 73 166, 173 172 101 484 PAGE V. S., 19 Neb. 647 494 Stevenson; Reg. v., 8 F. & F. 106 328 V U. S., 163 U. S. 313 158 Stevick ». (;., 78 Pa. St. 460 112 Stewart, Exp., 9i Ala. 66 80 «. P., 23 Mich. 63 211 P. B., 6 Conn. 47 289 V. Railroad, 103 Ind. 44 215 ». S., 62 Md. 412 430 ». S , 64 Miss. 626 386 S. v., 89 N. C. 563 141 S. v., 26 8. C. 125 119 S. ■B.,59 Vt.373 113 Stimpson v. Putnam, 41 Vt. 238 888 Stinson, P. «., 43 111. 397 420, 429 Stites, P. v., 75 Cal. 570 303 Stockdale®. S., 32 Ga. 225 325 Stockwell, U. S. «., 133 U. S. 1 27 Stokes, P. «., 103 Cal. 193 56 V. U. S., 157 U. S. 187 193 Stoll, S. v., 17 Wall. 425 33 Stollenwerk®. S., 55 Ala. 142 lOg Stolz V. Thompson, 44 Minn. 271 43 Stone, C. v., 3 Gray, 453 103 0.!)., 152 Mass. 498 165 V. Dana, 5 Mete. 98 287 ». Mayer, 25 Wend. 151 265 V. Mississippi, 101 U. S. 814 41 V. P., 8 111. 336 131 P. «., 9 Wend. 182 329 S. »., 40 Iowa, 547 442 Stoneman v. C, 25 Gratt. (Va.) 887 298 Stoner v. Devilbiss, 70 Md. 144 205 Stoops V. C, 7 S & R. 491 28 Stoots 1). P., 108 Ind. 415 149 Storey v. S., 71 Ala. 830 398, 890 Story, R.®.,R.&R. 81 ' 365 Stout V. C, 11 S. & R. 177 102, 299 V. S., 76 Md. 317 57, 154, 246 Stover V. P., 56 N. Y. 315 432 Stoyell, S. v., 54 Me. 24 376 Strain, C. »., 10 Mete. 521 371 Strait, P. v., 148 N. Y. 566 191 Strangford, C. v., 112 Mass. 289 105 Stratton, C. »., 114 Mass. 303 295 Reg. v., Dougl. 240 134 Strauder v. West Virginia, 100 U. S. 303 38, 59 Strauss v. Heiss, 48 Md. 292 26 S. v., 49 Md. 388 44 Straw, S. »., 33 Me. 354 489 Streep ». U. S., 160 U. S. 128 260 Street v. S., 67 Ala. 87 325 Strichtd v. S., 25 Tex. App. 430 173 Strickland, S. «., 10 S. C. 191 115 Stroll, S. «., 1 Rich (S. C.) L. 344 329 Stroud, S. v., 95 N. C. 626 486 Strouther v. C, 92 Va. 789 429 Strupney, C. v., 105 Mass. 588 320 '606 Table Of Cases PAGE Stuart V. C, 28 Gratt. (Va.) 950 52 V. P., 42 Mich. 255 324 Stupp, In re, Fed. Cas. 13,563 257 Sturdivant, 8. v., 21 Me. 9 454 Sturoc, In re, 48 N. H. 428 342 Sturtevant, P. »., 9 N. Y. 263 338 Sturtivant, C. v., 117 Mass. 122 188 Sullivan, C. »., 6 Gray, 477 112 C. v., Addison (Pa.) 143 480 P. «., 115 N. Y. 185 155 R. »., 7 C. & P. 641 388 V. Robinson, 89 Ala. 613 223 S. v., 85 N. C. 506 274 8. B., 43 8. C. 205 206 Summer, 8. v., 2 Speers (S. C), 599 490 Summerlin v. 8., 3 Tex. App. 444 326 Summers, Exp., 5 Ired. (N. C.) L. 149 339 Sumner, S. •»., 98 N. C. 702 285 8. v., 5 Strobli. (8. 0.) 53 287 Sundstrom,Exp.,22Tex.App. 133 41 Susquehannah ®. P., 15 Wend. 267 29 SutclifEe, 8. v., 4 Strobh. (8. 0.1 L. 372 292 Sutherland, C. v., 109 Mass. 342 176 P. »., 104 Mich. 468 302 SutliSe B. Eldred, 2 Dowl. P. C. 184 87 Sutton, Reg. v., 3 Nev. & M. 353 7 8. v., 4 Gill (Md.), 494 215 Sutton's Hospital, In re, 10 Rep. 23 8 SwafEord, P. v., 65 Cal. 228 131 Swan, In re, 150 U. 8. 637 341 Swann ». 8., 64 Md. 628 232 Swart e. Kimball, 43 Mich. 443 146 Swaze, S. •<;., 30 La. Ann. 1323 401 Swearingen v. U. 8., 162 U. 8. 446 27, 99 Sweat V. 8., 90 Ga. 315 493 Sweeney, P. v., 41 Hun, 332 183 Swepson, 8. »., 79N. C. 632 53 S. »., 81 N, 0. 571 129 Swetland, P. v., 77 Mich. 53 379 Swift, P. v., 59 Mich. 529 272 Swigarto. P.,154111.284 32 Swindall, Reg. »., 2 Cox 0. 0. 141 20 Swindles. 8., 2 Yerg.(Tenn.)5Sl 435 Swisher v. C, 26 Gratt. (Va.) 963 183 SydserfE e. Reg., 11 Q. B. D. 245 333 Sylvester v. 8., 42 Tex. 496 309 Symonds, C. v., 2 Mass. 163 99 8. B., 1 N. H. 289 108 Tabart ». Tipper, 1 Campb. 350 140 Tabor, 8. v., 95 Misso. 585 186 TafEe «. 8., 23 Ark. 34 138 Taggart v. G., 21 Pa. St. 527. 455 Talbert, S. »., 41 8. C. 526 184 PAGE Talton V. Mayes, 163 U. 8. 376 36 Tankard, Reg. », 17 Cox 0. C. 719 108 Tanner v. C, 14 Gratt. (Va.) 685 426 Tappan v. Wilson, 7 Ohio, 190 437 Taranto, U. 8. »., 74 Fed. R. 219 186, 353 Tarbox, C. •»., 1 Cush. 66 104 ». S.,38 0. St. 581 186 Tarlton v. Peggs, 18 Ind. 24 26 Tarr, U. 8. »., Fed. Cas. 16,434 349 Tate V. 8., 6 Blackf. (Ind.) 110 19 Tatum V. 8., 66 Ala. 465 89 V. 8., 59 Ga. 638 302 Taylor ». 0., 94 Kent. 281 365 V. C, 20 Gratt. (Va.) 825 483 V. C, 77 Va. 692 156 C. 0., 132 Mass. 261 279 C. v., 5 Binney, 277 375 P. B.,-3 Den. 99 104 Reg. «., 9 C. & P. 672 250 Reg. «., 1 F. & F. 511 391 Reg. v., 6 Cox 0. C. 58 192 Reg. 0., 11 Cox CO. 261 168 Reg. v., 13 Cox C. C. 68 21 Reg. V , 13 Cox C. C. 77- 198 ». 8., 22 Ala. 15 287 ». 8., 100 Ala. 68 101 ■0. S., 50 Ga. 79 482 11. 8., 7 Tex. App. 659 414 8. »., 45 Me. 322 290 8. v., 98 Misso. 340 93 8. v., 27 N. J. L. 117 412 V. Taintor, 16 Wall. 366 84, 86 U. 8. »., Fed. Cas. 16,441 888 U. 8. v., 11 Fed. R. 470 159 Tazwell, 8. s., 30 La. Ann. 884 323 Teal, R. ® , 11 E. 307 216 Tees V. Huntingdon, 28 How. 2 305 Teischer, Resp. v., 1 Dall. 335 1 Temple ». 8., 6 Baxt. (Tenn.) 496; 7 lb. 109 373 Tenney, C. »., 97 Mass. 50 380 Tenney's Case, 23 N. H. 580 343 Tennessee v. Davis, 100 U. S. 257 60 Ternan, In re, 9 Cox C. C. 532 472 Terry?). 8., 17 Ga. 204 158 Exp., 128 U. 8. 289 342 Thatcher v. 8., 48 Ark. 60 858 S. v., 35 N. J. L. 445 368 V. Weeks, 79 Me. 547 74 Thayer v. C. 12 Mete. 9 325 0. v., 8 Mete. 5^5 32 Therasson «. P., 82 N. Y. 238 868 Thiede ». Utah Terr., 159 U. 8. 510 149, 185 Thomas ». Croswell, 7 Johns. 264 438 ». Cummins, 1 Yeates, 1 343 V. Kinkhead, 55 Ark. 502 73 R. v., 7 C. & P. 817 11 Table Of Cases 607 PAGE Thomas, R. v., 2 East P. C. 605 ; 3 Leach, 634 438 Reg. v., 3 C. & K. 806 105, 173 «. S.,97Ala. 3 333 S, v., 64 N. C. 74 50 Thompson ». Androscoggin, 54 N. H. 545 449 C. v., 6 Allen, 591 ; 11 lb. 33 385 0. v., 99 Mass. 444 386 C. v., 108 Mass. 461 280 In re, 117 Misso. 83 39 B. P., 144 111. 378 133 V. P., 8 Park. Or. R. 208 338 P. v., 34 Cal. 671 414 P. v., HI Cal. 343 99 V. Parker, 3 Johns. 260 339 Reg. »., 5 Cox'C. C. 166 335 Reg. v., 11 Cox C. C. 362 18 Reg. s., 12 Cox C. C. 203 196 Reg. «., 17 Cox 0. C. 641 177, 178 V. S., 70 Ala. 36 288 ». B., 94 Ala.535 415 i>; 8., 100 Ala. 70 187 V. S., 106 Ala. 67 331, 833 ». S., 26 Ark. 323 403 «. S., 33 Tex. App. 473 157 S. v., 80 Me. 194 193 S. v., 33 Minn. 144 131 S. v., 10 Mont. 549 169 S. v., 3 Strobh. (S. C.) L. 13 39 V. U. ,S., 155 U. S. 271 160 Thorns, P. »., 3 Park. Cr. R. 256 181 Thornton, C. •»., 14 Gray, 41 170 Exp., 9 Tex. 635 260 V. Savings Bank, 76 Va. 432 341 Thristle, Reg. v., 8 Cox 0. C. 573 417, 424 Thurlow, C. v., 24 Pick. 374 169 Thurmond v. S., 35 Tex. App. 366 380 Tierney, C. «., 148 Pa. St. 553 9 Tiller v. S., 96 Ga. 430 131 Tilley, R. v., 3 Leach, 663 96 Tilton, C. v., 8 Mete. 333 353, 453 Timmons ®. B., 34 O. St. 436 320 Tindall i). S., 71 Ala. 314 118 S. »., 40 Mo. App. 271 9 Tinkler, Reg. v., 1 P. & P. 513 375 Tipton, S. «., 1 Blackf. (Ind.) 166 343 Tisdale, Reg.-«. 30 U. C. Q. B. 272 363 Tite, Reg. »., 8 Cox C. C. 458 423 Titus, C. v., 116 Mass. 43 436 Tobin. C. v., 108 Mass. 436 6, 73 C. »., 135 Mass. 303 209 Todd «. S., 31 Ind. 514 370 «. U. S., 158 U. S. 378 37, 61 Toledo 8. Jacksonville, 67 111. 37 40 Toler V. S., 16 0. St. 583 174 Tolever, S. »., 5 Ired. (N. C.) L. 452 375 ToUemache, Reg. v., 3 Lowndes, Maxw. & P. 401 343 Tollett, Reg. »., Car. & M. 112 425 Tolliver, C. v., 8 Gray, 386 171 Tolman ». Leonard, 6 App. D. C. 224 . 338 Tolson, Reg. i>., 16 Cox C. C. 129 313 Tom, 8. v., 3 Dev. (N. C.) L. 569 335 Tomasi, 8. «., 67 Vt. 313 14 Tomlin, S. v., 29 N. J. L. 13 , 367 Tomlinson, P. v., 103 Cal. 19 418 8. B., 11 Iowa, 401 316 Thompkins, P. v., J Park, Cr. R. 334 80, 367 Thompson, C. »., 3 Cush. 551 385 Tongue, R. «., 6 How. St. Tr. 325 118 Toole, Reg. v., 11 Cox C. C. 75 425 Toplitz V. Hedden, 146 U. S. 253 206 Topper, 8. «., 118 Ind. 110 17 ' Toshack, Reg. v-, 4 Cox C. C. 38 378 Totten V. U. S., 93 U. S. 105 302 ' Towers, Reg. v., 12 Cox C. C. 530 385 Townley, Keg. «., 3 Cox C. C. 59 413 Townsend, C. v., 5 Allen, 316 133 P. v., 3 Hill, 479 6, 8 S. «., 5 Harr. (Del.) 187 69 S. v., 86 N. C. 676 104, 171 Towse, Reg. «., 14 Cox C. C. 327 13 Tracy, Reg. v., 6 Mod. 30 114 8. »., 73 Md. 447 360 Exp., 35 Vt. 93 133 «. Perry, 5 N. H. 504 234 V. Tuffley, 134 U. S. 206 33 Tragesser v. Gray, 73 Md. 35 44 Train v. Boston, 144 Mass. 533 43 Trask ». P., 151 111. 523 172 Traverse, C. »., 11 Allen, 360 170 Traylor v. 8., 101 Ind. 65 383 Treat, P. v., 77 Mich. 348 157 Trilloe, Reg. »., Car. & M. 650; 3 Moody, 260 883 Trimmer, C. »., 84 Pa. St. 65 121 Triplett, 8. »., 52 Kans. 678 394, 396 Troy, P. »., 96 Mich. 530 149 Tubbs, C. »., 1 Cush. 3 306 ». Tukey, 8 Cush. 488 69 Tuck, C. »., 20 Pick. 856 99, 138, 139 Tucker, C. v., 110 Mass. 403 • 389 V. Henniker, 41 N. H. 317 157 v. P., 133 111. 583 50 V. 8., 8 Lea (Tenn.), 638 376 B. 8, 85 Tex. 113 385 0. U. S., 151 U. S. 164 12 Tuckwell, Reg. »., Car. & M. 315 21 Tugman ®. Chicago, 78 111. 405 40 Turbervil ». Stamp, 2 Salk, 647 215i 608 Table Of Cases PAGE Turberville v. S., 4 Tex. 138 404 Turnbull, S. «., 78 Me. 392 103 Turner «. C, 86 Pa. St. 54 174 V. Circuit Judge, 88 Micli. 359 168 lu re, Fed. Gas. 14,847 39 1). Maryland, 107 U. S. 38 42 P. ®.,113Cal. 278 380 . R. ■» , 1 Moody, 239 98 V. S., 97 Ala. 57 165 V. a., 102 bid. 435 429 ». S., 55 Md. 340 33 ®. S., 1 0. St. 422 492 V. S., 89 Tenn. 547 161, 184 i>. S., 30 Tex. App. 691 467 S. v., 66 N. C. 618 413 S. v., 36 S. C. 534 205 U. S. o., 7 Pet. 133 378 Turpin v. S., 55 Md. 462 403 Turpin v. S., 19 O. St. 540 97 S. e., 77 N. C. 473 403 Turweston, Reg. »., 4 Cox C. C. 349 165 Tuttle 1). P., 36 N. Y. 431 467 Twilley v. Perkins, 77 Md. 353 41, 73 Twitchell, C. v., 4 Cush. 74 110 ». Pennsylvania, 7 Wall . 321 36 Tye, R. »., R. & R. 345 397 Tyler, In re, 149 U. S. 164 341 V. Murray, 57 Md. 418 133 Reg. v., 8 C. & P. 616 12 Tynen, U. S. v., 11 Wall. 88 32, 33 Tyrell, Reg. v., 17 Cox C. C. 716 17 Ulman v. Mayor, 72 Md. 587 36 Ulrich, S. v., 110 Misso. 350 202 Umfrey ®. S., 63 Ind. 303 427 Underwood, S. o., 49Me. 181 439 Ungerichl v. S., 119 Ind. 379 495 Union Pacific ®. Botsford, 141 U. S. 350 50 Union R. R. v. Moore, 80 Ind. 458 156 Unitt, R. v., 1 Str. 567 340 Upchurch, S. v., 9 Ired. (K 0.) L. 454 110 Updegraph ». C, 11 S. & R. 394 105, 317 Upstone V. P., 109 111. 169 132 Upthegrove «. S., 37 O. St. 662 302 Useful Mfg. Co., 8. t;.,43 N. J. L. 504 449 U. 8. Life Ins. Co. v. Vocke, 139 111. 557 250 Vadnais, S. »., 21 Minn. 383 4 Vail, P. v., 6 Abb. N. C. 206; 57 How. Pr. 81 133 Van Blarcum, P. v., 2 Johns. 105 390 PAGE Vance v. C, 3 Va. Cas. 162 119 S. v., 17 Iowa, 138 387 Vanderbilt, 8. ■»., 27 N. J. L. 328 369, 372 Vanderstein, Reg. v., 10 Cox C. C. 177 19 Vandervoort «. Smith, 2 Caines (N. T.), 155 137 Vandimark, 8. v., 35 Ark. 396 87 2 Van Doran, S. «., 109 N. C. 684 101 Van Houten b. S., 46 N. J. L. 16 453 Van Muyen, R. «., R. & R. 118 427 Vann, 8. »., 84 N. C. 722 137 Van Schaack, C. v., 16 Mass. 105 389 Van Tassel v. S., 59 Wis. 531 307 Van Tuyl, C. «., 1 Mete. (Ky.) 1 371 Van Wezel v. Van Wezel, 1 Edw. Ch. (N. Y.) 113 344 Varnedoe v. 8., 75 Ga. 181 156 Varney, C. «., 10 Cush. 403 171 Vass V. C, 3 Leigh (V a.), 786 184 Vaughan v. S., 58 Ark. 353 194 Vaughn v. S., 83 Ala. 55 385 Vaux's Case, 4 Rep. 44 19 Veazie's Case, 7 Me. 131 173 Vedder, P. v., 34 Hun, 380 381, 282 P. v., 98 N. Y. 630 379 Veneman ®. Jones, 118 Ind. 41 63 Vermont R. R. v. Vermont Central, 46 Vt. 792 342 Verran v. Baird, 150 Mass. 141 162 Vess V. S., 93 Ind. 211 373 Vice, P. «., 21 Cal. 344 493, 493 Vickery, S. v., 19 Tex. 326 370 Vidal 1). Girard, 2 How. 127 316 Villines v. S., 96 Tenn. 141 99 Vincent, Reg. «., 5 Cox C. C. 537 414 Virginia, Exp., 100 U. S. 339 36 «. Dulany, Fed. Cas. 16,959 138 V. Rives, 100 U. 8. 313 59, 272 Vogel V. Gruaz, 110 U. 8. 311 302 Vyse, R.v.,1 Moody, 318 4ii Wade, C. e., 17 Pick. 895 173, 293 Reg. e., 11 Cox C. C. 549 427 Wadsworth, P. «., 63 Mich. 500 359 Wagner v. S., 43 Neb. 1 17, 19 S. v., 118 Misso. 626 112 WagstafE, Reg. »., 10 Cox C. C. 530 11 Waite, C. v., 11 Allen, 264 43 R. v., 3 Burr. 780; 1 Ld. Keny. 511 240 Reg. v., 17 Cox C. C. 554 6 Wakeman v. Chambers, 69 Iowa, 169 17 Waldeu «. Finch, 70 Pa. St. 460 306 Walford,.li. v., 5 Esp. 63 4 Table Of Cases 609 PAGE Walker o. Brewster, L. R. 5 Bq. 25 451 V. C, 8 Leigh (Va.), 743 433 C. v., 163 Mass. 236 175 v. London, 11 Cox C. C. 280 238 P. »., 38 Mich. 156 433 v. Pennsylvania, 137 U. S. 699 43 Reg. v., 13 Cox C. C. 94 31 V. S., 63 Ala. 49 331 o. S., 37 Tex. 366 185 S. v., 32 Me. 195 334 S. v., 44 N. J. L. 88 43 V. Shephardson, 2 Wis. 384 273 Wall, Exp., 107 U. S. 265 340 Wallace, P. v., 27 111. 45 97, 381 V. P., 63 111. 451 101 ®. S., 10 Tex. App. 255 388 S. v. 9 N. H. 515 284, 314 Waller o. S., 40 Ala. 335 309 WaUis, Reg. v., 3 Cox C. C. 67 416 V. S., 7 Blackf . (Ind.) 572 335 Walrath «. S., 8 Neb. 80 23 Walsh V. Boyle, 30 Md. ' 263 28 C. B., 134 Mass. 83 143 V. P., 65 111. 58 303, 818 Walls, S. o., 90 Ala. 618 399 Walter v. S., 165 Ind. 589 169 S. v.. 14 Kans. 375 104 Walters, Reg. v., Car. & M. 164 13 V. S., 39 O. St. 315 174 V. S., 17 Tex. App. 226 422 Walton, S. B., 92 Iowa, 455 184 S. v., 114 N. C. 783 188 Warburton, Reg. v., 11 Cox C. C. 584 318 Ward, C. v., 3 Mass. 397 172 C. v., 4 Mass. 497 343 0. Levi, 1 B. & C. 268 87 V. P., 3 Hill, 395 17, 108 e. P., 6 Hill, 144 17, 410, 414 V. 8., 48 Ala. 161 413 B. S., 2 Misso. 130 92 8. B., 43 Conn. 489 321 8. B., 49 Conn. 429 129 S. v., 61 Vt. 153 161 Warden, C. v., 128 Mass. 52 453 Warden, P. b., 144 N. T. 529 44 Wardle, R. »., R. & R. 9 100 Wardroper, Reg. v., 13 Cox C. C. 397 8 Wardwell, C. b., 186 Mass. 164 488 Ware b. 8., 67 Ga. 349 302 B. S., 96 Ga. 349 180 ». 8., 2 Tex. App. 547 430 S. B., 38 N. H. 314 89 Warner, P. b., 5 Wend. 271 172 B. S., 54 Ark. 660 167, 483 S. B., 74 Misso. 83 483 PAGE Warren, C. e. 67 Mass. 72 839 C. «., 143 Mass. 568 169 c. Doolittle, 5 Cow. 678 324 V. 8., 1 Greene (Iowa), 106 418 8. B., 77 Md. 131 100, 428 Warriner b. S., 8 Tex. App. 104 53 Wartman v. Wartman, Fed. Cas. 17, 210 343, 344 Washburn, 8. »., 11 Iowa, 245 350 Washington o. 8., 82 Ala. 31 389 B. Scribner, 109 Mass. 487 303 Road*. 8., 19 Md. 239 39 Wasson, P. v., 65 Cal. 538 184 Waterborough, C. b., 5 Mass. 259 64, 89 Waterman, Exp., 88 Fed. R. 39 132 B. P., 67111. 91 378 Waters, Reg. b., 12 Cox C. C. 390 52 S. B., 39 Me. 54 184 8. B., 1 Mo. App. 7 115, 134 8. B., 1 Brev. (8. C.) 507 101 Watkins, S. o., 27 Iowa, 415 898 8. v., 4 Humph. (Tenn.) 356 373 Watson B. Carr, 1 LewLn, 6 69 B. P., 87N. T. 561 366 Reg. B., 1 Campb. 215 438 B. 8., 134 111. 374 112 B. 8., 36 Miss. 593 429 B. 8., 9 Tex. App. 237 281, 283 B. 8., 13 Tex. App. 76 314 8. B., 34 La. Ann. 669 93 8. B., 3 R. 1. 114 487 Watts, Reg. v., 6 Cox C. C. 304 411 B. 8., 5 W. Va. 582 21 8. B., 48 Ark. 58 4 8. B.,82N. C. 656 185 Wauklyn, Reg. b., 8 C & P. 290 135 Way's Case, 41 Mich. 399 61 Weatherby, 8. b., 43 Me. 358 284 Weatherwax, 8. b., 12 Kans. 463 ; 17 lb. 427 82 Weaver o. C, 29 Pa. 8t. 445 476 B. Leiman, 52 Md. 708 314 B. P., 182 111. 536 174 B. 8., 88 Ind. 289 118 Webb, C. »., 6 Rand. (Va.) 726 454 B. 8., 52 Ala. 422 822 B. 8., 51 N. J. L. 189 68 8. B., 26 Iowa, 262 365 Weber, 8. b., 22 Misso. 321 117, 118 Webster, C. b., 8 Gratt. (Va.) 702 220 s. P., 92 N. T. 422 872 Reg. »., 9 Cox C. C. 13 108, 414 Wedge, In re, 16 Fed. R. 332 355 Weed 8. Lewis, 80 Md. 126 265 B. P., 31 N. T. 465 320 B. P., 56 N. T. 638 381 Weekley, 8. b., 39 Ind. 306 387 Weeks, 8. b., 33 Or. 3 313 43 610 Table Of Oases PAGB Weese, S. »., 53 Iowa, 93 403 Weggener ». P., 36 111. App. 164 299 Weighorst v. S., 7 Md. 442 403 Weikel v. Gate, 58 Md. 105 61 Well V. Ualhoun, 35 Fed. R. 867 44 Weinberg v. S., 35 Wis. 370 314 Welby V. Still, 66 L. T. 533 341 Welch, P. v., 141 N. Y. 366 56 Keg. B., 4 Cox C. 0. 430 349 Welcome v. Batchelder, 33 Me. 85 200 Weldon, P. v., HI N. Y. 569 487 S. e., 39 S. C. 318 198 Wellar v. P., SO Mich. 16 393 Wellington, 0.«., 7 Allen, 299 165, 173 Welman, Reg. v., Dearsly, 188 365 Wellman, In re, 3 Kans. App. 100 37 S. «., 34 Minn. 331 409 Wells V. C, 13 Gray, 336 103 Exp., 18 How. 307 333, 234, 245 P. v., 89 Hun, 96 437 Welsh 0. p., 17 111. 339 430 Wentworth, S. ■»., 37 N. H. 196 104, 176, 178 West «. Cabell, 153 U. 8. 78 6 '" p. v., 106 K Y. 393 Reg. v., 3 Cox C. C. 500 S. v., 39 Minn. 331 Westbeer, R. »., 2 8tr. 1183 Westbrook, P. v., 94 Mich. 629 P. v., 12 Hun, 646 V. S., 52 Miss. 577 Western Insurance Co., In re, 38 111. 389 Western R. R., S. »., 89 N. C. 584 West Jersey Traction Co. ®. Camden, 58 N. J. L. 536 Weston V. P., 6 Hun, 140 Wetherbee v. JSI orris, 103 Mass. 565 205 Wethered v. Bray, 7 Ind. 706 450 Wetmore v. Tracey, 14 Wend. 250 29 Weymouth, C. v., 3 Allen, 144 319 Whalea v. Olmstead, 61 Conn. 273 45 Whaley, 8. »., 3 Harr. (Del.) 538 408 Whalley, Reg. ».,2CoxC. C.331 136 Wheat v. &., 6 Misso. 455 169 Wheatly, R. v., 3 Burr. 1135; 1 W. Bl. 273 364 Wheeler v. Gilsey, 35 How. Pr. 189 338 ®. Roberts, 7 Cow. 536 367 V. 8., 42 Md. 568 112, 154 S. »., 19 Minn. 209 381 V. Thomas, 57 Ga. 161 343 V. U. 8., 159 U. 8. 523 196, 197 V. Wheeler, 7 Mass. 169 85 Wheeler Co. v. McCarty, 53 N. J. L. 836 365 Whipple, 8. v., 57 Vt. 637 90 35 383 312 4 197 88 309 389 90 342 151 PAGE Whitcomb v. Gilmau, 85 Vt. 297 496 8. »., 52 Iowa, 85 385 White, C. «., 11 Cush. 488 418 C. ®., 110 Mass. 407 394 C. v., 123 Mass. 430 485 C. «., 133 Pa. St. 182 492 In re, 45 Fed. R. 387 364 B.lSlicholls,3How.366 437,438 V. P., 139 111. 143 30 P. v., 34 Cal. 183 348 P.!;., U Wend. HI 187 V. Polk County, 17 Iowa, 418 93 30 249 480 830 331 174 174 158 101 177 201 11 181 98,115 175 75 77 384 33 311 17 481 281 59, 268, 371 Whittington v. Polk, 1 Harr. & Johns. (Md.) 336 85 «. Southworth, 36 Mich. 881 365 181 129 875 403 114 68 92 150 467 55 161 173 336 411 402 169 53 100 16,685 R. v., R. & R. 99 Reg. v., 3 El. & El. 137 Reg. v., 6 Cox C. C. 213 V. S., 49 Ala. 844 «. 8., 51 Ga. 285 V. S., 31 Ind. 262 V. S., 58 Ind. 595 ». S., 13 Tex. 138 V. 8., 34 Tex. App. 381 V. S., 32 Tex. App. 635 S. v., IS Kans. 465 S. v., 64 N. H. 68 S. v., 68 N. C. 158 8. »., 15 8. C. 381 V. U. 8., 164 U. 8 U. 8. v., Fed. Cas Whitechurch, Exp., 1 Atk. 55 Whitehead, R. »., 1 C. & P. 57 Whitehurst ». 8., 43 Ind. 478 Whitlock V. 8., 4 Ind. App. 483 Whittaker v. C, 45 Kent. 683 V. 8., 50 Wis. 518 Whitten ».Tomlinson, 160 U. 8. Wiborg V. U. S., 163 U. S. 633 Wickshire v. 8., 19 Conn. 477 Widenhouse, 8. v., 71 N. C. 379 Wiggins V. P., 93 U. S. 465 Wilbor, 8. v., 1 R. I. 199 Wilcox, C. v., 1 Cush. 503 8. v., 84 N. C. 847 8. v.,n Wash. 215 U. 8. »., Fed. Cas. 16,692 Wildenhus, In re, 130 U. 8. 1 Wilder, U. 8. v., 14 Fed. R. 898 Wiley, P. «., 8 Hill, 194 J). S., 53 Ind. 516 Wilke, Exp., 34 Tex. 155 Wilkens «. 8., 98 Ala. 1 Wilkerson v. S., 13 Misso. 91 V. Utah, 9§ y. 8, 180 Table Of Oases 611 PAGE Wilkes, R. v., 1 Leach, 103; 2 East P. 0. 746 35 R. «., 3 Wils. 150 67 "Wilkins «. S., 113 Ind. 514 44 Wilkinson, C. «., 16 Pick. 175 449 Willard, C. »., 23 Pick. 476 17 Willey V. S., 53 Ind. 346 281 Williams ®. C, 91 Pa. St. 493 130 C. i>., 3 Cush. 582 109 <-. Johns, 1 Mer. 803 340 V. Jones, Oas. Temp. Hardw. 298 66 «. P., 101111.382 172 V. P., 131 111. 84 44 R.o.,3Campb.506 167,388,438 R. u., 10 Mod. 63 7 R. »., 1 Moody, 387 69 V. Reg., 1 CoxC. C. 179 115 Reg. v., 10 Cox C. C. 155 309 *. S.,44 Ala. 41 391 V. 8., 47 Ala. 659 174 V. S., 58 Ala. 413 181 V. S., 47 Ark. 330 115 V. S.,63 Ga. 306 310 V. S., 35 Ind. 150 429 V. 8., 60 Md. 403 310, 313, 403 V. S., 64 Md. 384 189, 190 ». 8., 9 Misso. 378 489 V. 8., 91 Pa. St. 493 142 V. 8., 1 Tex. App. 90 483 V. 8., 85 Va. 607 161 S. «., 19 Ala. 15 104 B. »., 61 Iowa, 517 333 8. »., 5 Md. 83 , 180, 131 S. »., 30 Me. 484 148 8. ■»., 30 Misso. 364 471 8. v., 35 Misso. 339 424 S. ti., 12 Mo. App. 415 . 369 S. »., 30 N. J. L. 102 309, 853 8. v., 65 N. C. 398 7 8. v., 90 N. C. 724 319 S. »., 2 Strebh. (8. C.) 474 29 8. e., 86 Tex. 853 397 V. U. 8., 3 App. D. 0. 335 169, 197 U. 8. v., Fed. Cas. 16,706 881 U. S. v., Fed. Cas. 16,707 95 U. 8. «., Fed. Oas. 16,709 134 Williamson v. Carnan, 1 Gill & Johns. (Md.) 184 365, 366 V. Freer, L. R. 9 C. P. 893 437 In re, 36 Pa. St. 9 343 Reg. o., 11 Cox C. C. 328 365 Willis, Reg. v., 13 Cox C. C. 193 110 S. v., 7 Jones (N. C.) L. 190 330 331 Wills 8). Russell, 100 U. S. 626 ' 156 Wilson 0. 0., 12 H. Monr. (Ky.) 2 358 C. v., 152 Mass. 12 187 Wilson, Exp., 114 U. 8.417 V. Hamilton, 9 Rich. | 882 1). P., 89 N. Y. 459 P. »., 64 111. 195 PAGE •5 3. C.) 439 417 842 V. Phoenix Powder Co., 40 W. Va. 413 454 Reg. «. 8 0. & P. Ill- 420 Re^. v., 8 Cox C. C. 486 171 Reg. »., 7 Cox CO. 190 279,280 1). 8., 33 Ark. 1557 326 V. 8., 16 Ind. 392 ■ 93 V. 8., 70 Miss. 595 92 8. a., 8 Misso 125 375 V. 8., 3 Heisk. (Tenn.) 278 288 V. 8., 45 Tex. 76 438 ». S., 18 Tex. App. 370 ■ 486 8. v., 23 La. Ann. 558 183 8. v., 40 La. Ann. 751 309 8. v., 131 Misso. 484 809 S. »., 181 Misso 485 876 S. v., 1 N. J L. 439. 331 1). U. 8„ 149 U. S. 60 157, 197, 239 D. U. 8., 168 U. 8. 613 168, 177, 179, 186 U. 8. v.. 7 Pet. 150 126, 334, 335 Wiltberger, U. 8. v., 5 Wheat. 76 37 Windsor, In re, 10 Cox C. C. 118 377 V. McVeigh, 93 U. 8. 874 81 Wimberg, 8. «., 3 McC. (8. 0.) 190 110 Wing, C. »., 9 Pick. 1 395 Wingate, C. v., 6 Gray, 485 160 Winkey,. 8. ,«., 48 N. H. 480 314 Winn 0. 8., 11 Tex. App. 304 426 Winnescheik v. Sweller, 60 111. 465 ■■ 149 Winninger ». S., 18 Ind. 540 490 Winsmore v. Greenbank, Willes, 577 374 Winston, 8. «., 116 N. C. 990 179 Winthrop, 8. v., 43 Iowa, 519 383 Wise V. Ackermau, 76 Md. 375 206 Wish, 8. «.. 15 Neb. 448 34 Withal, R. v., 1 Leach, 88 167 Witham, 8. »., 47 Me. 165 105 8. ».,72Me. 531 386 Withers ®. C, 5 8. & R. 59 185 Wittig, U. 8. v., Fed. Cas. 16,748 9 Wohlford V. 8., 148 111. 396 174 Wolf ®. 8., 19 O. St. 248 400 !). 8., 14 Tex. App. 210 428, Wolflngton V. 8., 53 Ind. 842 426 Wolfstein «. P., 6 Hun, 131 422. Wolverton ». C, 75 Va. 909 409 Wong i>. Astoria, 13 Or. 548 37 Wong Ah Bang, P. v., 65 Cal. 805 137 Wong Wang, P. v., 92 Cal. 877 103 612 'J'ablb Of Cases PAGE Wong Wing v. U. S., 163 U. 8. 299 80, 38, 64 W«ng Yung Quy, In re, 3 Fed. R. ZU 43 Wood, C. «., 4 Gray, 11 103, 129 0. v., 11 Gray, 85 381, 282 C. 0., 13 Mass. 313 313 C. »., 97 Mass. 225 810 In re, 140 U B. 378 38 V. P., 59 N. Y. 117 464 P. * , 3 Park. Or. R. 081 185 S. «., 53 Vt. 56« 183 U. S. »., 14 Pet. 430 471 Woodhurst, Reg. »., 12 Cox C. U. 443 15 Woodlawn Cemetery o. Everett, 118 Mass. 354 43 Woodman, Reg. v., 14 Cox C. C. 179 ;!65 S. v., 3 Hawks (N. C). 384 103 Woodrow, Reg. »., 15 M. & W. 404 14 Woods, C. »., 7 L. R. 58 331 V. P., 55 N. Y. 515 484 Woodside,Reg.ii.,7CoxC. 0.238 319 Woodson V. S., 19 Flor. 549 182 S. v., 5 Humph. (Tenn.) 55 339 Woodward, 0. v., 102 Mass. 155 l98 Reg. v., 9 Cox C. C. 95 486 0. §., 5 Tex. App. 396 335 S. v., 30 Iowa, 541 380 S. v., 25 Vt. 616 99 Woodworth v. S., 36 O. St. 196 29 Woody, P. v., 45 Cal. 289 16 S. »., 2 Jones(NiC.)L. 335 288 Woodyear v. Schaefer, 57 Md. 1 448 Wooler, R. »,, 2 Stark. Ill 309 Wooley, Reg. v., 4 Cox C. 0. 193 366, 369 330 389 16 157 363 48 Woolf, R. v., 1 Chitty, 401, 583 Woolsey v. S., 30 Tex. App. 346 Woolweaver v. S., 50 O. St. 277 Word D. C, 3 Leigh (Va.) 743 Work 0. Carrington, 34 O. St. 64 «!. S., 2 O. St. 396 World V. B., 50 Md. 49 65, 187 Worrall, U. S. v., 3 Dall. 384 57 Worthington v. Bcribner, 109 Mass. 487 303 V. S., 58 Md. 403 439 Woulfe, S. v., 58 Ind. 17 138 Woven Tape Skirt Co. In re, 12 Hun, 111 Wren v. C, 25 Gratt. (Va.) 989 V. C, 26 Gratt. (Va.) 952 Wright V. C, 77 Pa. St. 470 841 23 28 335 Wright, C. v., 1 Cush 46 104 C. v., 158 Mass. 149 69 V. Keith, 34 Me. 158 69 P. v., 9 Wend. 198 99 P. v., 80 Mich. 70 186 V. Pearson, L. R. 4 Q B. 583 29 «. R., 1 Ad. & El. 434 103 Reg. »., 9 C. &P. 754 16 V. 8., 4 Humph. (Tenn.) 194 481 S. »., 41 Ark. 410 453 V. Sharpe, 11 Mod. 175 329 ». Wright, 2 Md. 429 36 Wroe V. a., 8 Md. 416 455 «. S., 20 O. St. 460 204 Wyatt, Reg. v., 3 Ld. Raym. 1189 ; 1 Salk. 380 63, 67 Wycherly, Keg. ■»., 8 C. & P. 363 333 WyckofE, 8. v., 31 N. J. L. 65 23 Wyeth V. Walzl, 43 Md. 436 206 Wynn, Reg. »., 8 Cox C. 0. 271 427 V. S., 1 Blackf. (Ind.) 28 213 Wynne, S. «., 116 N. C. 981 307 Wyse, 8. »., 32 8. C. 45 211 Yanta, S. v., 71 Wis. 669 167 Yates V. P., 38 111. 527 160 U. S. «., 6 Fed. R. 861 347 Yeldell v. 8., 100 Ala. 26 157 Yeoman v. S., 31 Neb. 171 404 Yewell, 8. «., 63 Md. 130 32 Yick Wo V. Hopkins, 118 U. 8. 356 38,40 Yonoski v. 8., 79 Ind. 393 496 Yopp, 8. v., 97 N. C. 477 41 Yordi, 8. v., 30 Kans 221 398 York, C. v., 9 Mete. 93 392 R. v., 5 Burr. 2684 77 S.- v., 6 Harr. (Del.) 493 427 V. Texas, 137 U. 8. 15 87 Young's Case. 4 Rep. 40 13 Young V. S., 58 Ala. 569 178 !). S., 10 Lea (Tenn.), 165 316 8. v., 119 Misso. 495 49, 180 8. v., 45 N. H. 266 377 8. v., 37 N. J. L. 184 338 8. v., 77 N. C. 498 310 V. Slaughterford, 11 Mod. 238 149 ■a. U. S., 97 U. 8. 39 501 Younger v. 8., 37 Ark. 116 215 Zenobio v. Axtell, 6 T. R. 163 105 Zimmerman v. 8., 56 Md. 536 141, 151 Zweifel v. S., 27 Wis. 396 307 Zulueta, Reg. v., 1 Cox C. C. 20 138